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

No. 03-2569
HENRY L. DAVIS,
                                             Plaintiff-Appellant,
                                v.


CON-WAY TRANSPORTATION CENTRAL EXPRESS, INC.,
now known as CON-WAY CENTRAL EXPRESS, INC.,
                                             Defendant-Appellee.

                         ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, South Bend Division.
                 No. 02 C 34—Allen Sharp, Judge.
                         ____________
   ARGUED DECEMBER 10, 2003—DECIDED MAY 18, 2004
                  ____________



 Before EASTERBROOK, MANION, and KANNE, Circuit
Judges.
  KANNE, Circuit Judge. Henry L. Davis lost his job with
Con-Way Central Express on December 11, 2000. Con-Way
asserts it “economically terminated” Davis and eliminated
his position because of a downturn in the trucking industry.
Davis alleges it was because of his race, African American,
and in retaliation for filing two charges of discrimination
against the company. The district court granted Con-Way’s
summary-judgment motion on Davis’s race discrimination
2                                                    No. 03-2569

and retaliation claims. We affirm the judgment of the
district court.


                          I. History
  The following is an account of the facts developed by the
lengthy record in this case, related in the light most fa-
vorable to Davis, as is required at the summary-judgment
stage of any proceeding. See Rogers v. City of Chicago, 320
F.3d 748, 750 (7th Cir. 2003). We pause to note that our
findings track those made by the district court, upon which
Davis has cast aspersions for its alleged failure to draw all
inferences in his favor. After our own review of the parties’
submissions, we find that the district court fairly summa-
rized the evidence presented and did not neglect its duty.
Rather, we are compelled to note that Davis has obviously
misrepresented the record in more than several in-
stances—both to the district court and to this court on
appeal.1


1
  To provide but two examples for illustrative purposes, Davis
mischaracterizes Dan Pence’s testimony with regard to Con-Way’s
economic circumstances and Dennis Radican’s testimony with
regard to his opinion of the fairness of Davis’s termination. Pence
initially testified that Con-Way began experiencing an economic
downturn after September 11, 2001, but later clarified, both in his
deposition and in the errata sheet submitted after his review of
his deposition, that he meant September of 2000, not 2001. Yet,
Davis, in support of his pretext argument, referenced only Pence’s
testimony using the mistaken September 2001 date. Davis then
declared that the company lied about its economic situation
because Pence said the decline started a year later than what the
company now claims. Our review reveals that Pence’s testimony,
as corrected, is clearly in line with the other witnesses, the
company’s own internal documents, and Pence’s own e-mails
during the relevant time frame, showing that the decline started
in the fall of 2000, not 2001.
                                                    (continued...)
No. 03-2569                                                      3

  Davis worked for Con-Way’s South Bend, Indiana service
center in its maintenance department. Trucks delivered
freight to the center and that freight was then sorted and
reloaded onto other trucks for delivery within Con-Way’s
system. Davis started as a part-time, temporary employee
in April of 1996, but was promoted in January of 1999 to
the newly created shop maintenance specialist position,
which was full time. The position, which had been added in
some other Con-Way service centers, was designed to help
get trucks on the road sooner and cut down on out-of-service
time. When the service center manager at the time, Greg
Monticcioli, proposed adding the position, Mike Grima, the
director of maintenance and Monticcioli’s superior, did not
initially approve it. Grima thought that the South Bend
service center was not large enough to warrant the extra
staffing. He ultimately “flexed” to local management and
approved the addition based on assurances that it would
improve the center’s efficiency. Grima then supported
management’s choice to promote Davis into the position.
  Con-Way’s organizational structure included several lay-
ers of management and branching reporting lines, which,
for the purposes of this case, are important to understand.
At all times during his employment with Con-Way, lead
mechanic Dennis Radican directly supervised Davis.
Radican reported to three superiors: the South Bend service
center manager, a position held by Chuck Patrick beginning


(...continued)
  When asked whether he thought Davis’s termination was fair,
Radican stated that it wasn’t. When asked why, he said he felt it
wasn’t fair because he (Radican) had to pick up Davis’s job duties.
By citing only to Radican’s testimony that he felt the termination
was unfair, Davis attempts to characterize it as an admission that
the decision was based on impermissible factors. Radican’s
testimony clearly lends no support to this theory.
4                                               No. 03-2569

in June of 1999 after Monticcioli left; the field maintenance
manager, Brian Keck; and the director of maintenance,
Grima. Keck worked out of Con-Way’s central region office
in Indianapolis, Indiana. Grima worked out of division
headquarters in Ann Arbor, Michigan. Patrick, who was in
charge of the entire South Bend service center facility,
reported to Dan Pence, the central region manager. Pence
was responsible for fourteen service centers, including
South Bend, and, like Keck, worked out of Indianapolis.
Pence reported directly to Kevin Hartman, the vice presi-
dent of operations, located in Ann Arbor. Hartman reported
to Dick Palazzo, the president and CEO, also in Ann Arbor.
  On October 26, 2000, in a staff meeting at its division
headquarters, the company discussed the possible need for
workforce reductions—termed “economic terminations”—
based on forecasts of a slowing economy. Pence, Grima,
Hartman, Palazzo, and other upper management were
present, including Rick Trott, Con-Way’s director of human
resources. Region managers, including Pence, were directed
to supply Hartman with a service-center-by-service-center
plan of adjustments necessary to ensure each region met its
established goals. It was stressed that the various service
centers needed to “rightsize” by matching employee counts
to current and forecasted business levels. The region
managers were also directed to supply Trott with lists
projecting economic terminations by location.
  Pence conducted a conference call with his fourteen
service center managers, including Patrick, on October 27,
2000 to report on the staff meeting and the economic con-
ditions discussed. Thereafter, on Monday, October 30, 2000,
Pence e-mailed his service center managers, giving them
until the end of the week to suggest ways to respond to
concerns about the downturn in current and projected
business levels. In terms of economic terminations, he en-
couraged them “to look at all positions in every service
center, and make sure we are making the proper cuts in all
No. 03-2569                                                    5

job classifications, including salary and hourly.”
  Patrick, who had already noticed that the business levels
in South Bend were trending negatively, e-mailed Pence the
next day with numerous suggestions. He included nine
possible terminations, one of which was Davis. According to
Patrick, he believed that the shop maintenance specialist
position held by Davis, which had been created by Patrick’s
predecessor, Monticcioli, was no longer necessary given the
economic circumstances.
  Pence forwarded Patrick’s termination recommendations
to Trott in human resources. Trott, aware that Davis had
previously filed two discrimination charges against the
company,2 sought justification for Davis’s termination from
the director of maintenance, Grima. Grima identified three
centers, including South Bend, where the maintenance
specialist position could no longer be considered “mission
critical.” In the other two centers, which were both larger
than South Bend (they maintained a fleet of 150 and 184
trucks, respectively, compared to South Bend’s 104), the


2
  Davis filed his first charge of discrimination on September 8,
1999, based primarily on what he perceived as racially harassing
conduct from coworkers and his supervisors’ failure to adequately
address it. The South Bend Human Rights Commission
(“SBHRC”) dismissed the charge. The Equal Employment
Opportunity Commission (“EEOC”) adopted the SBHRC’s
conclusions as its own and issued a notice of right to sue. Davis
did not bring any legal action against Con-Way for the instances
alleged in the September 8, 1999 charge.
  Davis filed his second charge of discrimination on January 17,
2000, again primarily based on what he perceived as racially
harassing behavior perpetrated by coworkers and the company’s
inadequate response. As before, the charge was dismissed, and
Davis chose not to sue.
6                                               No. 03-2569

maintenance specialist position was vacant. Grima de-
termined that the absence of a maintenance specialist in
those two facilities did not impair their ability to function
and recommended that they remain vacant for the fore-
seeable future. As for South Bend, Grima supported the
recommendation to economically terminate Davis and sug-
gested eliminating his position entirely. Recounting that he
never believed South Bend’s size warranted the creation of
the position, but permitted it because of local management’s
assurances of its success, he expressed that he had “seen no
benefit whatsoever” from the position, as South Bend’s
productivity had not increased. He also noted that another
similarly sized service center did not have a maintenance
specialist position and had not “lost out on any operational
‘readiness’ . . . .”
  Trott, hoping that the economy would improve, decided to
delay giving final approval for Davis’s termination despite
Grima’s justification. However, seven of the nine economic
terminations recommended by Patrick for the South Bend
facility were implemented between November 8 and 14,
2000. The other candidate for termination quit before the
company could act on Patrick’s recommendation.
  Economic conditions continued to slide, in Con-Way’s
estimation. On November 29, 2000, Patrick submitted to
Pence another set of belt-tightening recommendations, in-
cluding economically terminating two more employees and
again recommending Davis’s termination because his posi-
tion was one they could “survive without.” Since Davis’s
responsibilities had been previously handled by other
employees before the creation of his position, Patrick
reasoned that Davis’s job duties could be reabsorbed. Pence
again forwarded the recommendations to Trott.
  Meanwhile, South Bend’s failure to meet its profitability
goals had not escaped the notice of vice president Hartman.
On December 4, 2000, Hartman e-mailed Pence and Patrick
No. 03-2569                                                   7

directly about South Bend’s profitability, stating that it was
“obvious” more staffing reductions were needed. In terms of
economic terminations, he encouraged Pence and Patrick to
look at any area that would help return costs in line with
revenues.
  Pence telephoned Hartman to discuss his e-mail and to
notify him that Patrick had anticipated his concerns and
had already suggested additional economic terminations. In
reviewing Patrick’s suggestions with Hartman, Pence noted
that Davis had been previously suggested as a candidate for
economic termination, but that was not acted upon because
of Trott. Hartman, who supported eliminating Davis
because of the decrease in business levels at South Bend
and because he believed the maintenance specialist position
was not essential there, discussed the situation with Trott.
It was then that he learned of Davis’s race and his prior
charges of discrimination against the company. Neverthe-
less, Hartman directed Pence to implement Patrick’s
suggestions for economic terminations, including firing
Davis.
  Davis’s employment with Con-Way ended on December
11, 2000. At the time briefing closed in this matter, Con-
Way had not filled Davis’s position, his job duties having
been assumed by Davis’s former supervisor, Radican, and
others in the maintenance department.
  Including the ten at the South Bend facility, Con-Way
ended up economically terminating approximately fifty em-
ployees in Indiana alone during the last quarter of 2000 and
the first quarter of 2001 in response to the perceived
economic downturn.
  On February 22, 2001, Davis dual-filed a charge of
discrimination with the EEOC and the SBHRC, his third
against Con-Way. He alleged that his termination was due
to his race and/or religion and/or was in retaliation for filing
the two previous charges. After exhausting his administra-
8                                                No. 03-2569

tive remedies, he sued under Title VII, 42 U.S.C. §§ 2000e
et seq., claiming race-based harassment, discrimination, and
retaliation. The district court granted summary judgment
on all of Davis’s claims. Davis only appeals the grant of
summary judgment on the race discrimination and retalia-
tion claims.


                       II. Analysis
  We review a district court’s grant of summary judgment
de novo, and, as already noted above, we construe all facts
and inferences in the light most favorable to the non-mov-
ing party. Rogers, 320 F.3d at 749; Cerutti v. BASF Corp.,
349 F.3d 1055, 1060 (7th Cir. 2003); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary
judgment is appropriate where “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 judgment as a matter of law.” Cerutti, 349 F.3d
at 1060 (quoting Fed. R. Civ. P. 56); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
  This is yet another case in which the appellant “appear[s]
to have simply collected the sum total of all the unpleasant
events in [his] work history . . ., dumped them into the legal
mixing bowl of this lawsuit, set the Title VII-blender to
puree and poured the resulting blob on the court.” Volovsek
v. Wis. Dep’t of Agric., Trade and Consumer Prot., 344 F.3d
680, 686 (7th Cir. 2003). Although poorly delineated, Davis
appears to argue that he should have survived summary
judgment on both his race and retaliation claims because he
provided direct evidence that his termination was intention-
ally discriminatory and/or retaliatory. He also posits
alternative theories, based on indirect evidence, that his
economic termination was a pretext for Con-Way’s true
discriminatory and/or retaliatory intent. We will address
No. 03-2569                                                       9

each argument in turn, starting with his race discrimina-
tion claim and concluding with his retaliation claim.3


                  A. Race Discrimination
1. Direct Evidence
   Direct evidence of race discrimination “is evidence that,
if believed by the trier of fact, would prove discriminatory
conduct on the part of the employer without reliance on
inference or presumption.” Cerutti, 349 F.3d at 1061. Direct
evidence can take two forms. The first is an outright
admission by the decisionmaker that the challenged action
was undertaken because of the appellant’s race. Id. (citing
Rogers, 320 F.3d at 753). The second consists of a “convinc-
ing mosaic of circumstantial evidence . . . that point[s] di-
rectly to a discriminatory reason for the employer’s action.”
Id. (internal quotations and citations omitted).
  The closest thing Davis has to an admission of discrimina-
tory intent by Con-Way is a statement by Pence, the central
region manager, to Patrick, the South Bend service center
manager, to “find a way get rid of him”—with “him” mean-
ing “Davis.” Davis overheard this statement on March 15,
2000 after Pence, who was visiting the South Bend service
center in the course of his duties, verbally reprimanded
Davis for being out of uniform. Davis was wearing a plastic
baggie on his head to protect his hair from melting snow
and ice while working under the trucks; the only headgear


3
  We note that the district judge did not consider Davis’s alleged
direct evidence of discrimination or retaliation (hardly the judge’s
fault, considering Davis’s briefing below was even less clear than
that presented to this court), granting summary judgment after
evaluating Davis’s case under the McDonnell-Douglas burden-
shifting method. This error is harmless, however, because of our
obligation to review this fully developed record de novo.
10                                               No. 03-2569

allowed under Con-Way’s uniform policy was the company-
issued cap. Davis later received a written “letter of instruc-
tion” for his violation of the uniform policy, which he claims
is racially discriminatory because white employees were
allowed to wear bandannas, sweat sponges, and other
protective headgear without receiving such warnings.
  Assuming that Pence’s “find a way to get rid of him”
statement was made because of Davis’s race, it does not
demonstrate that Davis’s termination nine months later
was the direct result of racial animus. Although Pence and
Patrick both recommended Davis’s termination as part of
South Bend’s strategy for dealing with the company-wide
economic downturn, they were not the ultimate decision-
makers. “ ‘A decisionmaker is the person responsible for the
contested decision.’ ” Venturelli v. ARC Cmty. Servs., Inc.,
350 F.3d 592, 600 (7th Cir. 2003), cert. denied, ___ S. Ct.
___, 2004 WL 405801 (2004) (quoting Rogers, 320 F.3d at
754). The record is clear that neither had the authority to
act on any economic termination without the approval of
Trott, the director of human resources. Moreover, in this
instance, the final decision to terminate Davis was made by
Hartman, the vice president of operations, after consulting
with Trott. Pence’s statement, therefore, sheds no light on
Hartman’s and Trott’s motivations underlying the decision
to terminate Davis’s employment and cannot amount to
direct evidence of discrimination. See id. (holding that a
manager’s allegedly discriminatory comments, who had
input on hiring decisions but no actual hiring authority, did
not amount to direct evidence of pregnancy discrimination).
  Davis appears to take the position that Hartman and
Trott simply “rubber-stamped” the recommendation by
Pence and Patrick, which would make Pence and Patrick
the true decisionmakers. But, the record does not bear this
theory out. Rather, Hartman and Trott independently
determined the economic necessity of Davis’s termination.
Trott did so by seeking input from Grima, and Hartman did
No. 03-2569                                                 11

so through his individual analysis of South Bend’s economic
circumstances and subsequent consultation with Trott. This
is not a case in which we should recognize Pence and
Patrick as the actual decisionmakers under a “cat’s paw”
theory. See Rogers, 320 F.3d at 754 (noting that since there
was no evidence that the decisionmaker “rubber-stamped”
an alleged harasser’s recommendation in placing her in a
special program, the alleged harasser could not be consid-
ered the true decisionmaker).
  Davis also argues that he can directly prove discrimina-
tory intent through a “mosaic” of circumstantial evidence,
but what evidence he relies upon to do so is unclear. We
note that the majority of the facts he recounts that could be
fairly described as indicative of possible racial animus
relate to problems with his coworkers and with managers
Patrick and Pence. Any examples of allegedly discrimina-
tory treatment by coworkers is wholly irrelevant to the
mosaic, as his coworkers had nothing to do with the deci-
sion to terminate his employment. See, e.g., Johnson v.
Cambridge Indus. Inc., 325 F.3d 892, 896 (7th Cir.), cert.
denied, ___ U.S. ___, 124 S. Ct. 535 (2003) (“In spite of the
alleged racist comments from certain co-workers, Johnson
lacks direct evidence of race discrimination . . . .”). Further-
more, as already explained above, since Patrick and Pence
were not the decisionmakers, their actions do not bear di-
rectly on Hartman’s and Trott’s decision to terminate
Davis’s employment and thus are unpersuasive in establish-
ing discriminatory intent under the direct method.
2. Indirect Evidence
  To survive summary judgment under the burden-shifting
paradigm set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the plaintiff must first establish a
prima facie case by meeting the following elements: (1) he
was a member of a protected class; (2) he was meeting his
employer’s legitimate expectations; (3) he suffered an ad-
12                                               No. 03-2569

verse employment action; and (4) other similarly situated
employees who were not members of his protected class
were treated more favorably. Wells v. Unisource Worldwide,
Inc., 289 F.3d 1001, 1006 (7th Cir. 2002) (citing Paluck v.
Gooding Rubber Co., 221 F.3d 1003, 1012 (7th Cir. 2000)).
If Davis does this, the burden of production shifts to Con-
Way to provide a legitimate, nondiscriminatory reason for
terminating him. Cerutti, 349 F.3d at 1061. Davis must
then rebut Con-Way’s stated reason for his termination
with evidence that it is just a pretext for race discrimina-
tion. Id. To demonstrate pretext, Davis must show that
Con-Way’s articulated reason for firing him (1) had no basis
in fact; (2) did not actually motivate his discharge; or (3)
was insufficient to motivate his discharge. Wells, 289 F.3d
at 1006. In other words, “[a] pretext for discrimination . . .
means something worse than a business error; pretext
means deceit used to cover one’s tracks.” Id. (quoting Grube
v. Lau Indus., Inc., 257 F.3d 723, 730 (7th Cir. 2001)). “The
focus of a pretext inquiry is whether the employer’s stated
reason was honest, not whether it was accurate, wise, or
well-considered.” Stewart v. Henderson, 207 F.3d 374, 378
(7th Cir. 2000).
   Con-Way concedes for the purposes of appeal that Davis
can establish a prima facie case, instead arguing that its
stated reason for firing him—economic conditions com-
manding the elimination of Davis and his “non-mission
critical” position—is unassailable. Davis alleges the econo-
mic termination was mere pretext, and sets about proving
it by challenging Con-Way’s business determination that it
was suffering an economic downturn, arguing that the
company failed to observe seniority rights when it chose to
fire him, criticizing Con-Way’s rehiring policy, and describ-
ing his allegedly racially hostile work environment. None of
these arguments are persuasive.
  First, Davis argues that all the bluster about an economic
downturn was a ruse and that really Con-Way was quite
No. 03-2569                                                 13

profitable, as demonstrated by its penultimate parent, CNF
Inc.’s, annual report. He also points to internal reports
maintained by Con-Way tracking certain business indica-
tors. We will not sit as a super-personnel department nor
second-guess Con-Way’s business strategies where, as here,
Davis has provided no convincing evidence that the com-
pany lied about its financial concerns. Stewart, 207 F.3d at
378. Rather, all of the evidence points to a sincere belief
that the economy was trending negatively and that eco-
nomic terminations were an appropriate business response.
In particular, we think it ridiculous to suggest that Con-
Way would terminate nine other employees from Davis’s
facility, not to mention forty others from around the state
of Indiana, on the pretense of economic hardship, just so it
could cover its tracks with respect to Davis. See, e.g., Wells,
289 F.3d at 1007 (rejecting the former employee’s elaborate
conspiracy theory regarding the transfer of jobs from
Illinois to Wisconsin, which caused her to lose hers, because
the record lacked a scintilla of evidence to support it).
Whether Con-Way’s concern over its economic prospects
was real or imagined, it was not a pretext for race discrimi-
nation.
  Second, Davis attacks Con-Way’s methodology in selecting
him for economic termination, alleging that he should have
been insulated based on his seniority, but was not, because
of his race. Davis’s argument is a non-starter. The undis-
puted evidence, which Davis stubbornly ignores and wholly
fails to rebut, is that seniority was observed within job
categories, not across facilities as a whole. Therefore, when
selecting individuals for economic termination, manage-
ment would determine the number of positions within a job
category that needed to be cut, then determine who those
people would be based on their seniority—in other words,
“last in first out.” Unfortunately for Davis, he was in a job
category that contained only one person—him. Although he
may have been more senior than others at the South Bend
14                                                   No. 03-2569

service center, he was senior to no one within his job
category.
   Third, Davis alleges that the company rehired white truck
drivers and dock workers it economically terminated once
economic conditions improved, but did not call him back to
work for the company in any capacity, thus demonstrating
that his economic termination was a pretext for racial
animus. Yet, Con-Way provided unrebutted evidence that
it calls back employees only into positions from which they
were laid off because those employees are already trained
in those positions and have the necessary certifications.
Con-Way did not call Davis back because it did not rein-
state the shop maintenance specialist position, the position
from which he was laid off and the position for which he
was trained. Further, there is no evidence that Davis had
worked for Con-Way in any of the positions for which it
chose to call back employees or that he actively reapplied
for any open positions. Therefore, Con-Way’s failure to re-
employ Davis proves nothing about its stated reason for
terminating him.
  Finally, Davis alleges that Patrick and Pence tolerated a
racially hostile work environment, failed to take his com-
plaints seriously, and discriminatorily disciplined him.4


4
  The district court concluded that because certain events cited by
Davis occurred outside the 300 days from the date he filed his
third administrative charge (for example, the instances on which
he based his first and second charges), they could not be relied
upon as evidence of pretext. However, the Supreme Court has
made clear in its recent case clarifying the “continuing violation”
doctrine, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002), that where, as here, the plaintiff timely alleged a discrete
discriminatory act (i.e., his termination based on his race and in
retaliation for filing prior charges), acts outside of the statutory
time frame may be used to support that claim. See Morgan, 536
                                                     (continued...)
No. 03-2569                                                    15

Even if these allegations are true—and we make no deter-
mination that they are—they fail to demonstrate pretext on
the part of the company. As discussed above in relation to
Davis’s direct evidence of discrimination, Patrick and
Pence’s possible prejudice against Davis fails to show that
the actual decisionmakers, Trott and Hartman, lied about
their reasons for choosing him for economic termination.
Rather, Trott specifically testified in his deposition that
race was not a factor in his decision to finally approve
Davis’s termination. And Hartman, who specifically called
for more economic terminations in South Bend because its
profitability continued to slip, did not know Davis’s race at
the time he formed his initial impression that Davis’s
position was one South Bend could do without. Hartman
testified that the reason for moving forward on the termina-
tion was because of economic necessity, and despite, not
because of, Davis’s race.
  In sum, Davis presents no evidence, under either the di-
rect or indirect method of proving race discrimination, from
which a trier of fact could infer that Davis’s termination
was motivated by his race.


                       B. Retaliation
1. Direct Evidence
 As with race discrimination claims, retaliation claims
under Title VII can be proven either directly or indirectly.



(...continued)
U.S. at 113 (“Nor does the statute bar an employee from using the
prior acts as background evidence in support of a timely claim.”).
  Again, the district court’s failure to include acts outside the
limitations period in evaluating Davis’s claims does not warrant
reversal, since we have taken into consideration all acts cited by
Davis in rendering our decision on appeal.
16                                               No. 03-2569

In order to survive summary judgment using the direct
method, “the plaintiff must present direct evidence of (1) a
statutorily protected activity; (2) an adverse employment
action taken by the employer; and (3) a causal connection
between the two.” Sitar v. Ind. Dep’t of Transp., 344 F.3d
720, 728 (7th Cir. 2003) (citing Stone v. City of Indianapolis
Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.), cert. denied,
537 U.S. 879 (2002)). “Direct evidence” is defined the same
for discrimination and retaliation claims— that is, it can be
an admission of intentional discrimination or a “mosaic” of
circumstantial evidence that directly points to a discrimina-
tory intent. See Volovsek, 344 F.3d at 689-90; Rogers, 320
F.3d at 753.
  Davis conflates much of the evidence offered in support of
his race discrimination claim with his retaliation claim. For
example, the only evidence he appears to offer of a direct
admission of discriminatory intent is Pence’s “find a way to
get rid of him” statement to Patrick. Both Patrick and
Pence ostensibly knew about his two discrimination
charges, filed in September of 1999 and January of 2000,
when Pence made the statement in March of 2000. As
already explained above, since neither Patrick nor Pence
were decisionmakers responsible for Davis’s termination,
this statement is irrelevant as direct evidence of retaliation.
  Moving to the “mosaic” approach, Davis also cites two in-
stances in which members of upper management referred
to him as a “problem child” or “problem person.” The first
instance occurred July 27, 2000 after Davis refused to sign
his annual review for the second time. The review had first
been presented to him on July 13, 2000, but he refused to
sign it then because he didn’t agree with some of the
rankings he received. After his supervisor, Radican,
changed it somewhat so that it reflected more favorably
upon him, Davis still refused to sign it. Keck, the field
maintenance manager who worked out of Indianapolis, then
sent an e-mail to his superior, Grima, giving him a “heads-
No. 03-2569                                             17

up” that they had a “problem child” on their hands. He then
went on to state, “I believe we are all aware of the past
issues with Mr. Davis. Chuck [Patrick], Denny [Radican]
and I discussed on my last visit to [South Bend] less than
two weeks ago.” The remainder of the e-mail explains that
Davis continued to refuse to sign his review, discusses the
fairness of the review, and questions whether it is consid-
ered insubordination for an employee not to sign. The e-
mail was “cc’d” to Pence, Patrick, and Radican.
  Davis makes much of the e-mail’s reference to “past is-
sues” with Davis and wants us to infer that those “past is-
sues” must refer to the charges filed some nine months and
six months prior. Yet, the undisputed testimony from Keck
and from those in receipt of the e-mail was that Keck was
referring exclusively to Davis’s failure to sign the first
version of his review two weeks prior, and which was the
topic of discussion on his last visit to South Bend. And,
plaintiff elicited no testimony tending to show that Keck
was even aware of Davis’s charges.
  Even if the e-mail was referencing Davis’s charges and
characterizing him as a problem person because of them, it
is undisputed that Keck was not involved in the decision to
terminate plaintiff’s employment five months later. As with
Patrick and Pence, there is no evidence that any prejudices
Keck may have harbored infected Trott and Hartman’s
decision to economically terminate Davis.
  The second instance Davis cites occurred on November 4,
2000 and was contained in an e-mail sent by Palazzo, the
president and CEO, to Trott and Hartman in response to a
report from Trott that Davis’s employee file was missing
from Radican’s office and that Radican suspected Davis of
taking it. When forwarding the report to Palazzo, Trott
stated that he would keep him apprised of this “latest
18                                                   No. 03-2569

debacle.”5 Palazzo responded that Radican should be taken
to task for keeping a file separate from that maintained by
human resources and stated, “[t]here’s no doubt our prob-
lem person has obtained what we had on file.”
  Davis again wishes us to infer that Palazzo believes Davis
to be a “problem person” because he filed discrimination
charges and to further infer that Palazzo’s poor opinion of
Davis led Trott and Hartman to fire him a month later
under the guise of an economic termination. Even if a trier
of fact could infer that Palazzo based his “problem person”
comment on more than irritation at a missing file, Davis
has failed to prove a causal connection between this
comment and Davis’s termination. There is no evidence that
Palazzo, except for generally directing that economic
terminations may be necessary throughout the organization
based on sinking profit margins, had any input in or
responsibility for the decision to economically terminate
Davis. The details of the plan to bolster the company’s
financial health were delegated to Hartman, Trott and their
subordinates. The district court found that both Keck’s and
Palazzo’s e-mails represented “stray comments” that had no
meaningful bearing on Davis’s job loss, and we agree with
this characterization. See Schuster v. Lucent Techs., Inc.,
327 F.3d 569, 576 (7th Cir. 2003) (“Because of the temporal
distance between the comments and the termination
decision, as well as the lack of any connection to that
decision, the district court properly viewed them as ‘stray’
workplace remarks, rather than evidence of the thought
process behind Schuster’s termination.”).
  Davis also argues that the “drastic” change in the way
he was treated—i.e., increased discipline—and evaluated by


5
  According to Trott, there had been two instances of employee
theft at South Bend shortly before Davis’s file went missing,
which is why he referred to the occurrence as the “latest debacle.”
No. 03-2569                                                 19

his superiors at the local level, namely Pence, Patrick, and
Radican, after he filed his charges should be considered
part of the mosaic with the above stray comments. We need
not tarry long over this piece of the mosaic, again because
Pence, Patrick, and Radican were not the decisionmakers.
Their actions fail to demonstrate a causal connection
between Davis’s charges and his termination.


2. Indirect evidence
   Under the indirect method of proving retaliation, which
mirrors that for discrimination, the plaintiff must show: (1)
he engaged in a statutorily protected activity; (2) he
performed his job according to his employer’s legitimate
expectations; (3) despite his satisfactory job performance, he
suffered an adverse action from the employer; and (4) he
was treated less favorably than similarly situated employ-
ees who did not engage in statutorily protected activity.
Sitar, 344 F.3d at 728. “If the plaintiff establishes these
elements, the burden shifts to the defendant to come
forward with a legitimate, non-invidious reason for its ad-
verse employment action. . . . Once the defendant presents
a legitimate, noninvidious reason for the adverse action, the
burden shifts back to the plaintiff to show that the defen-
dant’s reason is pretextual.” Id. (citations omitted); see also
Volovsek, 344 F.3d at 692. This formulation of the Seventh
Circuit’s test for retaliation claims supported by indirect
evidence was only recently articulated in Stone v. City of
Indianapolis Public Utilities Division, 281 F.3d 640 (7th
Cir.), cert. denied, 537 U.S. 879 (2002).
  Before the district court, Con-Way at first conceded in its
opening brief that Davis could present a prima facie case of
retaliation based on the test articulated in Stone, supra.
Con-Way then argued the opposite on reply, stating that
Davis could not establish a prima facie case. In ruling on
20                                             No. 03-2569

Davis’s claim, the district court found that Davis failed to
come forward with any evidence to suggest that he was
treated less favorably than similarly situated employees
who did not engage in statutorily protected activity, and
thus could not establish the fourth prong of his prima facie
case. We agree with the district court’s conclusion.
  Davis argues, though, that since Con-Way at first con-
ceded Davis established a prima facie case below, we should
move beyond the prima facie showing and engage in the
pretext inquiry. Even if Con-Way waived its arguments
regarding Davis’s failure to establish a prima facie case,
Davis’s retaliation claim still fails because he so clearly
lacks any evidence of pretext.
  In urging that Con-Way’s stated reason for terminating
him actually sprang from a retaliatory motive, Davis simply
recycles all of the evidence previously reviewed and dis-
patched by this court as unpersuasive. For example, our
view of Davis’s challenges to Con-Way’s business determi-
nation that it was suffering an economic downturn and his
allegations that the company failed to observe seniority
rights has not changed since we looked at it above in re-
lation to his race discrimination claim. Nor are we any more
convinced now than at previous points in this opinion that
actions and statements by non-decisionmakers reveal the
pretextual nature of Con-Way’s decision.


                    III. Conclusion
  There are no issues of material fact that preclude sum-
mary judgment on Davis’s race discrimination and retalia-
tion claims. For this reason, the district court’s decision
granting summary judgment in favor of Con-Way is AF-
FIRMED.
No. 03-2569                                         21

A true Copy:
      Teste:

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




               USCA-02-C-0072—5-18-04
