                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1


            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                               Argued January 3, 2007
                              Decided January 26, 2007

                                        Before

                  Hon. FRANK H. EASTERBROOK, Chief Judge

                  Hon. DIANE P. WOOD, Circuit Judge

                  Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-2736

BRIAN MALONE, also known as                       Appeal from the United States
JAWANZA MALONE, DOUGLAS                           District Court for the Northern
RHODES, also known as FUNDISHI                    District of Illinois, Eastern
MPATANISHI, and JHATAYN                           Division.
TRAVIS, also known as HASANI
TRAVIS,                                           No. 04 C 8186
     Plaintiffs-Appellants,
                                                  Matthew F. Kennelly,
                    v.                            Judge.

AMERICAN FRIENDS
SERVICE COMMITTEE,
     Defendant-Appellee.

                                      ORDER
  This appeal arises out of a decision by the American Friends Service Committee to
terminate the employment of Plaintiffs Brian Malone, Douglas Rhodes, and Jhatayn
Travis after initiating an investigation into allegations of misconduct against them.
Challenging the termination, Plaintiffs, all African Americans, filed suit against their
employer. They now appeal the district court’s dismissal of their claims on summary
judgment and the denial of their motion for leave to file an amended complaint. We
affirm, finding first that Plaintiffs are unable to cite to any direct or circumstantial
evidence of racial discrimination or establish a prima facie case of discrimination. We
No. 06-2736                                                                                     Page 2

also conclude that there is no evidence of a conspiracy to interfere with Plaintiffs’ civil
rights. Finally, we determine that the district court did not abuse its discretion in
denying Plaintiffs leave to file an amended complaint, as the proposed changes either
were unduly delayed and posed a risk of undue prejudice or were futile.


                                       I. BACKGROUND
   Plaintiffs were employees of the African-American Community Empowerment
Program (“AACEP”), an entity established by Defendant American Friends Service
Committee (“AFSC”) in 1990 to serve the Chicago area’s African-American community
through youth programing and cultural activities. During the period relevant to this
litigation, AACEP’s staff consisted solely of the three plaintiffs.
   In September 2003, AFSC learned of the involvement of the organization Simba Na
Malaika Wachanga (“Wachanga”) in AACEP. AACEP staff allegedly had to be
members of Wachanga to retain their positions in AACEP. During this time, AFSC
executives also received an e-mail, which identified Rhodes, Travis, and another
individual as the leaders of Wachanga and noted that Wachanga also operated under
the name “African-American Community Empowerment Program .” The e-mail, which
contained a host of allegations, accused the leaders of Wachanga of abusing their
positions of power to create an atmosphere of domination and control among
Wachanga’s members. Around October 6, 2003, AFSC suspended the operations of
AACEP and placed Plaintiffs on paid leave pending an investigation into the
allegations. After an unsuccessful attempt to retain one investigator, in December
2003, AFSC hired Kroll International, an outside company, to conduct the
investigation.
  In April 2004, after interviewing numerous witnesses, Kroll completed its
investigation and produced a detailed report for AFSC concerning AACEP.1 Among
the report’s findings were that AACEP was the public face of Wachanga and that
AACEP meetings were held as Wachanga meetings when AFSC representatives were
not present. In addition, witnesses reported that Rhodes was aware of another
Wachanga leader’s sexual advances and abuse toward women involved in Wachanga
but took no action to stop the behavior. Witnesses also described an atmosphere of
control, domination, and verbal and emotional abusiveness caused by Rhodes and
Travis. After Kroll issued the report, AFSC’s General Secretary, Mary Ellen McNish,


1
 After oral argument, Plaintiffs filed a motion for “instructions and relief,” in which they suggest that
the Kroll report is not part of the record on appeal. We deny Plaintiffs’ motion (which we construe as a
motion to strike) because we do not rely on the report itself in this disposition. Our references to the
report’s conclusions are taken from the affidavit of AFSC’s General Secretary, Mary Ellen McNish, in
support of AFSC’s motion for summary judgment, which was included in the appellate record. Although
Plaintiffs dispute the significance of the report’s conclusions cited in McNish’s affidavit, they do not
contest that these were, in fact, Kroll’s conclusions.
No. 06-2736                                                                        Page 3

decided to discontinue AACEP, which precipitated the termination of Plaintiffs’
employment.
   In December 2004, Plaintiffs filed suit alleging that AFSC terminated their
employment because of their race in violation of 42 U.S.C. § 1981. Plaintiffs’ complaint
also cites to 42 U.S.C. § 1986, which creates a cause of action against a person that
neglects or refuses to stop a conspiracy to violate the civil rights of a member of a
protected class. After the parties engaged in discovery, AFSC moved for summary
judgment. Plaintiffs responded to AFSC’s motion and requested leave to amend their
complaint to add Title VII and breach of contract claims. Plaintiffs also sought to
allege that AFSC tortiously altered evidence (an employee handbook). The district
court granted summary judgment in favor of AFSC and denied Plaintiffs’ request to
amend their complaint. Plaintiffs appeal.


                                    II. ANALYSIS
A.   Plaintiffs cannot support their § 1981 race discrimination claim under
     either the direct or indirect method of proof.
  We review de novo the district court’s grant of summary judgment. Paul v. Theda
Med. Ctr., Inc., 465 F.3d 790, 793 (7th Cir. 2006). To establish a claim of race
discrimination, Plaintiffs may proceed under either the direct or indirect method of
proof. Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 272 (7th Cir. 2004). Because
Plaintiffs do not specify under which method they have chosen to proceed, this order
discusses the sufficiency of Plaintiffs’ claim under both.
   Using the direct method, a plaintiff can show that her employer’s termination
decision was motivated by a discriminatory purpose by presenting direct evidence of
discrimination, such as an outright admission from the employer, or circumstantial
evidence that is directly linked to a discriminatory reason for the termination decision.
See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir. 2006); Dandy, 388 F.3d
at 272. Lacking an outright admission of discrimination, Plaintiffs here attack the
conclusions of the Kroll report, claiming that it cites no specific allegations of improper
conduct by Malone or Travis, and that its findings against Rhodes are insufficient.
Although the report does not attribute the cited acts of misconduct directly to Malone,
Plaintiffs do not dispute that Malone was involved in Wachanga. Kroll’s investigation
revealed that Wachanga was improperly using AACEP’s resources for its own purposes
and conducting AACEP meetings as Wachanga meetings without AFSC’s knowledge.
As one of three employees of a program that was the subject of Kroll’s investigation,
it is immaterial that the report did not independently implicate Malone. Concerning
the findings against Travis, it is simply untrue that no allegations of misconduct were
made against her. The report identified both Travis and Rhodes as creating an
atmosphere of control, domination, and abusiveness in their leadership of Wachanga,
which had permeated AACEP. In addition, Rhodes himself was identified as having
No. 06-2736                                                                         Page 4

been complicit in a colleague’s alleged acts of sexual abuse. Because Plaintiffs have
pointed to nothing about the investigation from which we could infer a discriminatory
motive behind AFSC’s decision to terminate their employment, Plaintiffs are unable
to establish their claim of race discrimination under the direct method.
  Plaintiffs fare no better under the indirect burden-shifting method of proof, which
requires a plaintiff to satisfy the following elements of a prima facie case of
discrimination: (1) that she is a member of a protected class; (2) that she was meeting
the employer’s legitimate business expectations; (3) that she suffered an adverse
action; and (4) that she was treated less favorably than a similarly situated individual
outside of the protected class. See Paul, 465 F.3d at 794. If the plaintiff establishes
a prima facie case of discrimination, the burden then shifts to the defendant employer
to offer a legitimate, non-discriminatory reason for the termination. Id. If the
defendant makes this showing, the burden then shifts back to the plaintiff to
demonstrate that the defendant’s proffered reason is pretextual. Id.
    To their detriment, Plaintiffs do not argue a prima facie case of discrimination;
instead, they only claim that AFSC’s proffered reason for terminating Plaintiffs is
pretextual. But Plaintiffs’ argument is premature because they cannot make out the
second and fourth prongs of a prima facie case of discrimination. Plaintiffs make much
of AACEP’s past achievements and a positive evaluation given to Rhodes by AFSC’s
regional director in June 2003. However, our inquiry into the second prong, whether
Plaintiffs were meeting AFSC’s legitimate business expectations, centers on Plaintiffs’
performance in April 2004, the time of their termination. See Anders v. Waste Mgmt.
of Wis., Inc., 463 F.3d 670, 676 (7th Cir. 2006). Any previous accolades Plaintiffs
received carry little weight in establishing that they were meeting AFSC’s legitimate
business expectations when they were terminated. That Plaintiffs were not meeting
these expectations is evidenced by the investigation’s findings that Plaintiffs had
permitted one of AFSC’s programs to be co-opted by another organization.
  Turning to Plaintiffs’ inability to satisfy the fourth prong, as the district court found,
they “have provided no evidence to suggest that there where [sic] non-African-
American employees who were not fired even though they were using their AFSC
positions to recruit members for other organizations.” See Malone v. Am. Friends Serv.
Comm., No. 04 C 8186, 2006 WL 1308612, at *2 (N.D. Ill. May 9, 2006). Plaintiffs
make no attempt to argue otherwise on appeal. In their complaint, Plaintiffs allege
that AFSC regional director “Micheal McConnell supervised all the activities of the
Plaintiffs, and the AACEP staff; he was not fired nor [sic] disciplined. McConnell was
white.” Compl. ¶ 28. However, Plaintiffs point to no evidence that McConnell was
similarly situated to Plaintiffs in performance and qualifications, or that he “had
engaged in similar conduct without differentiating or mitigating circumstances as
would distinguish [his] conduct or the employer’s treatment of [him].” See Anders, 463
F.3d at 676 (internal quotations and citations omitted). Because Plaintiffs cannot
No. 06-2736                                                                        Page 5

satisfy the second and fourth prongs necessary to present a prima facie case of
discrimination, their § 1981 claim fails under the indirect method as well.
   Even if Plaintiffs could make out a prima facie case of discrimination, they cannot
overcome their additional burden of proving that AFSC’s reason for the termination
is pretextual, or, in other words, a “deliberate falsehood.” See Forrester v. Rauland-
Borg Corp., 453 F.3d 416, 419 (7th Cir. 2006). Plaintiffs attack the factual conclusions
of the Kroll report, yet the issue is not whether AFSC’s reason “is correct but whether
it is the true ground of the employer’s action.” See id. at 417. Because there is no
evidence that AFSC did not actually rely on the report’s findings when it terminated
Plaintiffs’ employment, Plaintiffs’ pretext argument would fail.


B.   There is no evidence that AFSC engaged in a conspiracy to deprive
     Plaintiffs of their civil rights.
   Plaintiffs also contend that by terminating their employment, AFSC violated 42
U.S.C. § 1986. This provision creates a cause of action against a person that neglects
or refuses to stop a conspiracy to violate the civil rights of a member of a protected
class. 42 U.S.C. § 1986. An action under § 1986 only lies where a defendant has
violated § 1985(3), which prohibits a conspiracy to interfere with one’s civil rights. Keri
v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 642-43 (7th Cir. 2006). To sustain a claim
under § 1985(3), four elements are required: (1) a conspiracy; (2) a purpose of depriving
any person of equal protection of the laws; (3) an act in furtherance of the conspiracy;
and (4) injury to one’s person or property or a deprivation of a right or privilege of a
citizen of the United States. Id. at 642.
  Plaintiffs claim that AFSC hired Kroll “to provide it with a defense for its past torts
of suspension and the future torts of discharge.” (Appellants’ Br. 27.) However,
Plaintiffs provide no evidence to support this assertion, and, as we have already
determined, there is no basis for Plaintiffs’ position that AFSC’s termination decision
was motivated by an unlawful purpose. Because Plaintiffs cannot show that AFSC
violated § 1985(3), their § 1986 claim is foreclosed. See Keri, 458 F.3d at 642-43.


C.   The district court did not abuse its discretion in denying Plaintiffs’
     request to file an amended complaint.
    Plaintiffs sought to add three new claims to their complaint against AFSC: first,
that AFSC violated Title VII by terminating them based on their race; second, that the
termination constituted a breach of their employment contract; and third, that AFSC
tortiously altered an employee handbook that it produced during discovery. Plaintiffs
filed their motion on April 10, 2006, four months after discovery closed on December
15, 2005, and more than nine months after the June 20, 2005 deadline for filing
amendments to the pleadings. In considering a request to amend pleadings, the
No. 06-2736                                                                         Page 6

district court has the discretion to deny the request if “there is undue delay, bad faith,
or dilatory motive, or undue prejudice to the opposing party by virtue of allowance of
the amendment, or futility of amendment.” Park v. City of Chi., 297 F.3d 606, 612 (7th
Cir. 2002) (internal quotation and brackets omitted). On appeal, this court reviews the
district court’s denial of Plaintiffs’ motion for leave to amend for an abuse of discretion.
Id.
    The district court noted that Plaintiffs possessed the employee handbook and
deposed a witness concerning the alleged problems with the handbook no later than
December 2005. Plaintiffs chose to wait until after discovery was closed and briefing
of AFSC’s summary judgment motion had already begun to add their proposed tort and
contract claims; therefore, the district court concluded that grant of the amendment
would unfairly prejudice AFSC. On appeal, Plaintiffs provide no explanation for their
delay in seeking to amend. Because Plaintiffs’ proposed amendment was unduly
delayed and posed a risk of undue prejudice to AFSC, we do not find that the district
court abused its discretion by denying Plaintiffs’ request for leave to amend.
   Nor do we find that the district court abused its discretion in denying Plaintiffs’
request for leave to file their proposed Title VII claim, which the court also found to be
unduly delayed and prejudicial to AFSC. As recognized by the district court, Plaintiffs
received their Notice of Right to Sue from the EEOC in September 2004, nine months
before the deadline to amend pleadings arrived, giving them ample time to add their
Title VII claim. The district court also properly recognized that permitting Plaintiffs
to add this claim would be futile because the claim would fail for the same reason
Plaintiffs’ § 1981 claim had—Plaintiffs were unable to establish a prima facie case of
discrimination.


                                    III. CONCLUSION
   The district court’s grant of summary judgment in favor of AFSC and its denial of
Plaintiffs’ motion for leave to file an amended complaint are AFFIRMED.
