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

No. 03-4099
STEPHEN EZELL,
                                             Plaintiff-Appellant,
                                v.


JOHN E. POTTER, Postmaster General,
                                             Defendant-Appellee.

                          ____________
        Appeal from the United States District Court for the
         Northern District of Indiana, Hammond Division.
             No. 01 C 637—Philip P. Simon, Judge.
                          ____________
  ARGUED SEPTEMBER 10, 2004—DECIDED MARCH 16, 2005
                    ____________



  Before FLAUM, Chief Judge, and POSNER and ROVNER,
Circuit Judges.
  ROVNER, Circuit Judge. Stephen Ezell, a longtime em-
ployee of the United States Postal Service, sued his employer
for race, gender and age discrimination. He contended that
he was treated in a disparate manner based on these
prohibited factors and also that he was subject to a hostile
environment. The district court granted summary judgment
in favor of the Postal Service on all of the claims. We affirm
in part and vacate and remand for further proceedings in
part.
2                                               No. 03-4099

                             I.
  Ezell is a Caucasian man over the age of fifty. He has
worked as a letter carrier for the Postal Service since 1972,
and has worked in the Valparaiso, Indiana branch since
1988. Ezell’s supervisor at the Postal Service during the
events leading to this lawsuit was Tangela Wright, an
African-American woman. Ezell had an uneasy relationship
with Wright that culminated in the Postal Service issuing
him a termination letter. According to Ezell, he had an un-
blemished record at the Postal Service until Wright became
his supervisor. Ezell complains that Wright frequently
made inappropriate and discriminatory comments based on
race, gender and age. Ezell believes that Wright was
motivated by race, gender and age in taking an adverse em-
ployment action against him based on the following inci-
dent.
  On March 6, 2001, Ezell was on his route and stopped to
buy his lunch at a Wendy’s fast food restaurant. Coinci-
dentally, Wright and Mike Pavlides, another Postal Service
supervisor, were also out on the road that day and saw
Ezell’s mail truck parked at the Wendy’s restaurant. The
parties dispute the timing of events that day, but on summary
judgment, we construe all reasonable inferences in favor of
the party opposing judgment, in this case Ezell. According to
Ezell, he purchased his lunch and returned to his truck
promptly. He then drove across the street to a parking lot
pay phone where he called his wife and spoke to her for
approximately three minutes. He next headed to a conve-
nience store to purchase a newspaper to read during his
allotted half hour lunch break, drove to his route and parked
his truck. He ate his lunch within the allowed time limit and
then sorted the mail in his truck for deliveries to his own
route and to an additional route he was covering that day.
When he exited his truck to begin the deliveries, he saw that
another Postal Service vehicle was parked behind him. As he
approached the other vehicle, Wright and Pavlides emerged
No. 03-4099                                                   3

and began “rifling” through Ezell’s truck. They asked him
questions about where he was on his route but made no men-
tion of his taking an allegedly overextended lunch period.
After inspecting Ezell’s truck, Wright and Pavlides left the
scene and Ezell continued to deliver the mail.
  Six days later, on March 20, 2001, Ezell was called into the
office for questioning by Wright and Postmaster David Dew.
Ezell’s union steward, Mike Daily, was also present for this
meeting. Wright and Dew asked Ezell where he had lunch on
March 14 and whether it was possible he had taken an
extended lunch that day. When Ezell could not recall where
he had lunched six days earlier, Wright and Dew treated him
as if he were being uncooperative. On April 5, 2001, he was
called back into the office and issued a “Notice of Removal”
letter. The letter indicated he would be removed from the
Postal Service on May 12, 2001, but could counter the termi-
nation by filing a grievance with the union steward. The letter,
which was signed by both Wright and Dew, specified as the
reason for the termination that Ezell had received pay for
time not worked. The letter detailed the events of March 14,
2001, from the perspective of Wright and Pavlides. According
to their version of Ezell’s lunch break that day, Ezell ex-
ceeded his thirty minute lunch by another thirty minutes
without informing his supervisor of this fact. The letter noted
that Ezell received penalty overtime pay that day. According
to the letter, Ezell admitted he knew the Postal Service poli-
cy on lunch breaks, could not recall the specific events of
March 14, 2001, and conceded that he sometimes exceeded
his lunch break without notifying management. Citing the
Employee and Labor Relations Manual, Wright and Dew
concluded that this was a dischargeable offense.
  Ezell filed a grievance and won reinstatement. The
Notice of Removal letter was withdrawn and in its place,
the Postal Service issued a letter of warning. Ezell believed
his termination was the result of race, gender and age dis-
crimination by Wright and so on June 4, 2001, Ezell filed
4                                                No. 03-4099

a one page “EEO Complaint of Discrimination in the Postal
Service.” On the form, Ezell listed his supervisor, Tangela
Wright, and Postmaster David Dew as the persons who
allegedly engaged in discriminatory actions. In an area of
the form titled “Type of Discrimination You Are Alleging,”
Ezell checked boxes for race, sex, age and retaliation. (He
has since dropped his retaliation claim.) The other options
available to allege the type of discrimination were color,
religion, national origin and disability. Ezell left those
boxes blank. For the “Date on Which Alleged Act(s) of
Discrimination Took Place,” Ezell wrote, “4-5-01.” The form
offered an opportunity to “[e]xplain the specific action(s) or
situation(s) that resulted in you alleging that you believe
you were discriminated against (treated differently than
other employees or applicants) because of your race, color,
religion, sex, age (40+), national origin, or disability.” In
the six lines allotted, Ezell wrote the following:
    Black, female supervisor has acted rude, disrespectful
    and confrontational toward me. She fabricated charges
    against me to have me fired. I am a white male 51 yrs.
    old. She has made racist, sexist remarks toward me.
    She has also made derogatory remarks about my age.
    I have also given statement in other EEO activities.
R. 2, Ex. A. In response to a question regarding what rem-
edy he sought to resolve his complaint, Ezell specified, “To
be made whole. The damage done to me cannot be undone.
I want to be returned to the job I love and have performed
for 28+ years.” R. 2, Ex. A.
  Ezell subsequently filed an EEO investigative affidavit
further describing the basis of his complaint. R. 30, Ex 2.
He again claimed discrimination on the basis of age, sex
and race. He cited Tangela Wright as the person who dis-
criminated against him and stated that she based the April
5, 2001 letter of removal on trumped-up charges. Ezell
complained that Wright often made derogatory remarks
No. 03-4099                                                 5

about older mail carriers in general and about him in
particular, that she often referred to his gray hair and his
slow work. He stated that Wright’s co-supervisor, Mike
Pavlides, told a new hire that their (Pavlides’s and Wright’s)
plan was to get rid of older carriers and replace them with
younger, faster carriers. Ezell complained that Wright was
rude, disrespectful, dishonest, confrontational and racist.
Ezell attributed a number of comments to Wright that
he characterized as racist, although that meaning is not
immediately apparent unless one is familiar with Ezell’s
view of the reputations of the Indiana towns of Gary and
Valparaiso. Wright came from Gary, which Ezell charac-
terizes as a primarily African-American city with a repu-
tation for high crime rates. According to Ezell, Valparaiso,
colloquially called “Valpo” by residents of Indiana, is
primarily populated by Caucasians and has a reputation
for a relatively low crime rate. The Valparaiso Post Office
employed only a few African-American workers. Ezell re-
ported that Wright threatened to take the Valparaiso
workers to Gary for carrier training, taunting them with
claims that they would not last a week. Wright complained
about being stopped frequently by the police when driving
in Valparaiso, and on one occasion, Ezell overheard Wright
tell someone on the phone, “These people in Valpo think their
shit don’t stink.” On another occasion, when a Caucasian
man was shot and killed in Valparaiso, Wright stated in a
joyful tone, “I didn’t think there was any crime in Valpo.”
  Ezell also detailed what he considered to be evidence of
Wright’s sexism. Wright told the Valparaiso workers, for
example, that women with children were faster carriers
than men because they wanted to get home to their chil-
dren. She said that men are lazy and “want to milk all the
overtime they can get.” Ezell complained that Wright gave
favorable assignments to women in the office, and when he
told her his feeling about this, she subjected him to “street
supervision and intense scrutiny.” Ezell also averred that
6                                                  No. 03-4099

he “found it very uncomfortable to work in an environment
where a supervisor is allowed to say, ‘I’ll fire every one of
you mother fuckers and hire a whole new crew.’”
  Ezell explained that Wright advised another employee to
sequence mail in his truck, and then had Ezell fired for
performing his job in that same manner. He contends he
was sequencing mail in his truck on the day that Wright
accused him of extending his lunch past the half-hour limit
without adjusting his time card accordingly. That charge,
of course, formed the basis for the Notice of Removal. In
concluding his EEO affidavit, Ezell asked to “be made whole
again, to have these wrongs righted.” He characterized the
treatment he had received as reprehensible and described
his emotional distress as immeasurable. He complained
that his reputation among his fellow employees and with
the postal patrons he had served was “forever tarnished.”
He described himself as being under a doctor’s care, re-
quiring treatment until his life could be restored.
   On the basis of his EEO claim and affidavit, the EEOC
issued an Acceptance Letter notifying the parties it had
received a complaint and that it was commencing an inves-
tigation. The Acceptance Letter listed “employment termi-
nated” as the specific issue involved, and April 5, 2001 as
the date of the incident. For types of discrimination alleged,
the Acceptance Letter listed race (white), sex (male), age
(DOB September 9, 1949), and retaliation.1 If the recipient
disagreed with the Letter, objections were required to be
filed within seven days of receipt of the Letter. Ezell filed
no objections and the claim investigator proceeded to treat
the claim as one for employment termination only. The
final agency decision was issued June 5, 2001. The agency


1
  Ezell did not appeal the district court’s grant of summary
judgment in favor of the defendants on his retaliation claim, and
we will therefore not address it further.
No. 03-4099                                                7

found that Ezell failed to establish a prima facie case for
race, gender, age or retaliatory discrimination, and also
failed to demonstrate that the employer’s stated reason for
the termination was pretextual. His claim was thus denied.
  Ezell then filed suit against the Postmaster General,
claiming that he was subjected to harassment and discrimi-
nation based on race, gender, age and retaliation. The
defendant moved for summary judgment. The district court
granted judgment in favor of the Postal Service on all of
Ezell’s claims. The court found that Ezell failed to exhaust
administrative remedies on his hostile environment claims.
In the alternative, the court found that Wright’s treatment
of Ezell was not severe or pervasive enough to meet the
standards for hostile environment claims. On his claims of
disparate treatment, the court found first that Ezell failed
to present sufficient direct evidence of race, gender or age
discrimination, and also failed to make out a claim under
the McDonnell Douglas burden-shifting method. In parti-
cular, the court found that Ezell failed to demonstrate that
he had suffered an adverse action. The court concluded
that the Letter of Warning issued after Ezell grieved his
termination was insufficient to constitute an adverse em-
ployment action. Because the earlier-issued Notice of
Removal was stayed pending resolution of Ezell’s grievance,
the court considered the Letter of Warning to be the only
sanction imposed on Ezell. Under our case law, the court
reasoned, such a sanction was insufficient to constitute an
adverse employment action. Alternatively, the court found
that Ezell failed to establish that other, similarly situated
employees outside the protected class were treated better
than he, or that the Postal Service’s non-discriminatory
explanation for its actions was pretextual. The court there-
fore granted summary judgment in favor of the Postal
Service. Ezell appeals.
8                                                No. 03-4099

                             II.
  On appeal, Ezell contends that he sufficiently preserved
his hostile environment claim in his original EEO com-
plaint and that he presented enough evidence to proceed to
trial on the merits of that claim. He also maintains that
the Notice of Removal constituted an adverse employment
action, that he presented adequate direct and indirect evi-
dence of Wright’s intent to discriminate against him based
on race, gender and age, and that he produced sufficient
evidence to demonstrate that the Postal Service’s explana-
tion for his discharge was pretextual. Our review is de novo.
Global Relief Found. v. New York Times Co., 390 F.3d 973,
981 (7th Cir. 2004). Summary judgment is appropriate
when there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). We view the record in the light most
favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Global Relief, 390 F.3d at
981.


                             A.
  Before addressing Ezell’s hostile environment claim on
the merits, we consider first whether Ezell preserved the
claim in his EEO complaint. “A plaintiff may pursue a
claim not explicitly included in an EEOC complaint only if
her allegations fall within the scope of the earlier charges
contained in the EEOC complaint.” Cheek v. Peabody Coal
Co., 97 F.3d 200, 202 (7th Cir. 1996). In determining
whether Ezell’s current allegations fall within the scope of
the earlier charges, we look to whether the allegations are
like or reasonably related to those contained in the EEOC
complaint. If they are, then we ask whether the current
claim reasonably could have developed from the EEOC’s
investigation of the charges before it. Cheek, 97 F.3d at 202.
Claims are reasonably related if there is a factual relation-
No. 03-4099                                                9

ship between them. Kersting v. Wal-Mart Stores, Inc., 250
F.3d 1109, 1118 (7th Cir. 2001). At a minimum, this means
that the EEOC charge and the complaint must describe the
same conduct and implicate the same individuals. Kersting,
250 F.3d at 1118. This limitation gives the employer some
warning of the conduct about which the employee is ag-
grieved and affords the EEOC and the employer an oppor-
tunity to attempt conciliation without resort to the courts.
Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir.
1992).
  Ezell’s EEOC charge alleged race, sex and age discrimina-
tion, occurring on April 5, 2001, the date he was given the
Notice of Removal Letter. In explaining the discriminatory
action taken against him, he stated that his “Black, female
supervisor has acted rude, disrespectful and confrontational
toward” him. He complained that she made racist and sex-
ist remarks toward him and also spoke in a derogatory
fashion about his age. He also contended that Wright fabri-
cated charges against him in order to have him fired. He
asked to be made whole and to be returned to the job that
he loved. The EEO investigator reviewing this charge ap-
parently read it to be a complaint related solely to the
termination of employment on April 5, 2001. In the Accep-
tance Letter, the investigator notified Ezell that the scope
of the investigation was “employment terminated.” The
investigator directed Ezell that if he did not agree with the
Acceptance Letter, he was required to provide his objec-
tions in writing within seven days.
   Ezell did not expressly object to the scope of the inves-
tigation as set forth in the Acceptance Letter. He did not
inform the investigator that Wright’s conduct had created
a hostile environment or that the offensive conduct oc-
curred over a period of time exceeding the single date he
specified, April 5, 2001. We recognize that employees often
file an EEOC charge without the assistance of a lawyer and
we therefore read the charge liberally. Haugerud v. Amery
10                                              No. 03-4099

School District, 259 F.3d 678, 689 (7th Cir. 2001). Again, to
determine whether a claim raised in a complaint is within
the scope of the earlier-filed EEOC charge, we ask what
EEOC investigation could reasonably be expected to grow
from the original charge. Ajayi v. Aramark Business
Services, Inc., 336 F.3d 520, 527 (7th Cir. 2003). Ezell’s
EEOC charge is ambiguous when we view it in this light.
Although he references a particular date for the discrimi-
natory action and discusses his discharge, he also complains
that his supervisor made racist, sexist and age-related
comments to him and treated him in a rude, disrespectful
and confrontational manner. He stated he was “uncomfort-
able” working in this “environment.” These charges could
suggest a hostile environment claim or could simply be
evidence of Wright’s discriminatory intent in having him
fired. Moreover, in addition to asking for reinstatement, a
remedy for termination, Ezell asks generally to be made
whole and speaks of the emotional distress he has suffered
as a result of Wright’s conduct toward him. The emotional
distress he suffered may be the result of being wrongfully
terminated for a discriminatory reason or it may have been
caused by exposure to a hostile environment. He could
be attempting in a non-lawyerly way to raise a hostile en-
vironment claim. In any case, the EEOC investigator read
the charge more narrowly, to be confined only to wrongful
termination. The charge and the later claim for hostile en-
vironment describe the same conduct and the same individu-
als. Cheek, 97 F.3d at 202. Still, it is unclear to us (and it
was unclear to the EEOC investigator) that Ezell was al-
leging a hostile environment claim in his EEOC charge. In
both the charge and the later-filed affidavit, Ezell appears
to be detailing Wright’s discriminatory conduct and speech
solely as evidentiary support for her discriminatory intent
in having him fired. He does not appear to be making an
additional claim of hostile environment.
  But we need not conclusively answer this question because,
in any event, the conduct that Ezell describes is not severe
No. 03-4099                                                 11

or pervasive enough to qualify as a hostile environment.
Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806-07 (7th
Cir. 2000). To be actionable, harassment must be sufficiently
severe or pervasive to alter the conditions of employment
and create an abusive working environment. Hostetler, 218
F.3d at 806. “Whether the harassment rises to this level turns
on a constellation of factors that include ‘the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s
work performance.’” Hostetler, 218 F.3d at 806-07. A plaintiff
bringing a hostile environment claim must establish that
the workplace was both subjectively and objectively offen-
sive. Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.
2003); Hostetler, 218 F.3d at 807. A workplace is objectively
offensive when a reasonable person would find it hostile or
abusive considering all of the circumstances. Rogers, 320
F.3d at 752; Hostetler, 218 F.3d at 807. It is subjectively
hostile when the plaintiff actually perceives it as such.
Hostetler, 218 F.3d at 807.
  Wright’s offensive conduct was confined to verbal out-
bursts and never became physically threatening. Ezell com-
plains that she was rude to Caucasian employees and
threatened to fire the whole crew and replace them. In con-
trast, she complimented African-American workers and
treated them with respect. She commented in obtuse ways
on the differences between Gary and Valparaiso. She sug-
gested that men are slow workers who try to milk overtime
and that women worked faster so that they could return
home to their families. She also commented on the slow-
ness of older workers and remarked on their gray hair. We
have detailed her various other comments above and will not
repeat them here. Ezell testified by affidavit that Wright
made these kinds of remarks on a regular basis. Of course,
a regular basis could be daily, weekly, monthly or even
yearly; Ezell provides no detail on the regularity and so we
12                                               No. 03-4099

cannot consider the few comments detailed in the briefs to
be pervasive. We then must consider whether they are “se-
vere.” Although these comments are rude and inappropri-
ate, they are not so severe as to change the conditions of
Ezell’s employment. Wright’s comments (and we assume
for the purposes of summary judgment that she made the
alleged comments) reflected some ignorant stereotypes of
men, of older workers and of Caucasian workers but these
are not the types of comments that render a workplace
unworkable. Compare Rogers, 320 F.3d at 753 (offensive
conduct not sufficiently severe where defendant made sev-
eral sexually tinged comments to the plaintiff over a period
of several months) with Hostetler, 218 F.3d at 807-08
(workplace hostile where plaintiff was twice subjected to
unwelcome, forcible physical contact of an intimate nature
and received an uninvited proposition for a sex act).
Indeed, many of Wright’s comments were not directed at
Ezell personally but were simply made in his presence. We
have characterized this “second-hand” harassment as lesser
in impact than harassment directed at the plaintiff. Peters
v. Renaissance Hotel Operating Co., 307 F.3d 535, 552 (7th
Cir. 2002); Russell v. Board of Trustees of Univ. of Illinois
at Chicago, 243 F.3d 336, 343-44 (7th Cir. 2001). When it
comes to racial or ethnic slurs, we have stated there is no
magic number that constitutes a hostile environment. Cerros
v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th Cir.
2002). Certain unambiguously racial epithets fall on the
more “severe” end of the spectrum. Cerros, 288 F.3d at 1047.
And we have noted that in the case of racial and ethnic
slurs, some words are so outrageous that a single incident
might qualify for a hostile environment claim. Id. At the
same time, “a relentless pattern of lesser harassment that
extends over a long period of time also violates the statute.”
Id. What is alleged here is neither severe nor pervasive.
See Patt v. Family Health Systems, Inc., 280 F.3d 749, 754
(7th Cir. 2002) (eight offensive gender-based comments over
the course of several years were too isolated and sporadic
No. 03-4099                                               13

to constitute severe or pervasive harassment); Russell, 243
F.3d at 343 (where statements directed to plaintiff were
few and far between, were not physically intimidating or
threatening, were not sexually suggestive but were merely
offensive, statements did not constitute actionable conduct
under hostile environment theory). For that reason alone,
the court was correct to grant judgment in favor of the
Postmaster on Ezell’s hostile environment claim.


                             B.
  The district court granted judgment in favor of the
Postmaster on Ezell’s disparate treatment claims because
the court believed Ezell could not demonstrate that his
employer had taken an adverse employment action against
him. The Removal Letter was withdrawn before it ever took
effect as a result of Ezell’s challenge to his termination
through the union grievance procedure. The court found
that the resulting letter of warning was insufficient to con-
stitute an adverse employment action. Our review here is
again de novo. Global Relief, 390 F.3d at 981. The court
was correct that a letter of warning is generally considered
insufficient to qualify as an adverse employment action.
See Krause v. City of LaCrosse, 246 F.3d 995, 1000 (7th Cir.
2001); Sweeney v. West, 149 F.3d 550, 556-57 (7th Cir.
1998).
  The Removal Letter, however, did constitute an adverse
employment action even though it was later withdrawn. See
Molnar v. Booth, 229 F.3d 593, 600-01 (7th Cir. 2000). In
Molnar, we found that a career-ending negative evaluation
was an adverse employment action even though the eval-
uation was reversed six months later and the plaintiff’s
career was put back on track. Molnar, 229 F.3d at 600. We
reasoned that to hold otherwise would allow harassing su-
pervisors to demote employees who rejected their advances
with impunity, so long as they later reversed the demotion
14                                               No. 03-4099

and restored the employees to their former positions.
Molnar, 229 F.3d at 600-01. We noted that the short dura-
tion of the adverse action was naturally relevant to the
degree of damage the plaintiff suffered, and that principle
would apply here as well. The Removal Letter damaged Ezell
from the time it was issued until it was reversed through
the union grievance process. Ezell’s damages may be rela-
tively modest but the Removal Letter constituted an adverse
employment action.
   The district court held in the alternative that Ezell’s dis-
crimination claims could not survive summary judgment
because (1) he did not have sufficient direct evidence of dis-
criminatory intent; (2) he failed to create a genuine issue of
material fact on the fourth prong of the McDonnell Douglas
burden-shifting test; and (3) he could not show that the
Postmaster’s stated non-discriminatory reason for his
termination was pretext. In the summary judgment
context, a plaintiff may meet the fourth prong of the
McDonnell Douglas prima facie case by demonstrating a
genuine issue of material fact on whether he was treated
less favorably than similarly situated employees outside of
his protected class. Peele v. Country Mutual Ins. Co., 288
F.3d 319, 326 (7th Cir. 2002). The district court found here
that Ezell had failed to produce evidence of any employee
outside his class who was similarly situated. In particular,
the district court found that the other employees cited by
Ezell had engaged in different misconduct and thus were
not similarly situated. One employee had lost a piece of cer-
tified mail and was not disciplined for this offense. Another
had altered time records in violation of the Fair Labor
Standards Act without punishment. Because neither of
these employees had made a claim for pay during a time
when they were not actually working, the court found they
were too dissimilar as a matter of law.
 In determining whether employees are similarly situated,
we must look at all relevant factors, the number of which
No. 03-4099                                               15

depends on the context of the case. Peele, 288 F.3d at 330.
In disciplinary cases, those cases in which the plaintiff
claims he or she was disciplined more harshly than another
employee based on a prohibited reason, the plaintiff must
show that he or she is similarly situated with respect to
performance, qualifications and conduct. Peele, 288 F.3d at
330.
    This 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.
Peele, 288 F.3d at 330 (quoting Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)). The district
court took this to mean that Ezell must produce a non-
Caucasian employee who committed exactly the same in-
fraction and was treated more favorably. But the law is not
this narrow; the other employees must have engaged in
similar—not identical—conduct to qualify as similarly situ-
ated.
  With those standards in mind, we will examine Ezell’s
evidence of similarly situated co-workers. On Ezell’s race
claim, he cites the case of Matt Walker, an African-American
employee who lost a piece of certified or registered mail and
was not disciplined for this offense. The Postmaster char-
acterizes Ezell’s claim that losing mail is a serious offense
as “self-serving” and states there is no evidence that losing
certified mail is considered a serious matter. This is a
curious claim from an entity whose primary business is de-
livering mail. Misplacing certified mail, that is, mail that
has been designated as especially important by its sender,
would seem to be a serious matter. Ezell points out evi-
dence in the record that another carrier was fired for
delaying mail and from this termination we may infer that
16                                              No. 03-4099

losing mail would also be a serious offense, at least as ser-
ious as taking a long lunch. Ezell thus has raised a genuine
issue of material fact as to whether a similarly situated
employee outside his class received favorable treatment.
  Additionally, Ezell has produced evidence that Wright
herself doctored the time records of other employees. Ac-
cording to Joan Hoptowit, Wright disallowed overtime for
carriers by asking a timekeeper to change computer records
to eliminate previously approved overtime. According to
Hoptowit, this practice amounted to falsifying records and
violated the Fair Labor Standards Act. Yet Wright was
never disciplined much less terminated for this conduct.
Some of the affected employees brought grievances in order
to have their overtime restored, and even following these
successful grievances, Wright was not disciplined. This
offense is arguably very similar to the conduct which led to
Ezell’s termination, so again, he has sufficient evidence to
survive summary judgment on this prong of the burden-
shifting test for his race and sex claims.
  The Postmaster insists that even if Ezell clears this
hurdle, he has not shown that the defendant’s purported
non-discriminatory reason for firing him is pretext. But here
again Ezell has sufficient evidence to survive summary
judgment. Although Wright’s prejudicial comments were
insufficient to make out a hostile environment claim, they
are certainly sufficient to show that she may have been mo-
tivated by race and gender (we will get to age in a moment)
when she made the case to have Ezell terminated. The
defendant argues that Postmaster Dew, who was the final
decision-maker on Ezell’s fate, genuinely believed the non-
discriminatory reason given to justify the termination. But
Postmaster Dew relied largely on Wright’s recommendation
in deciding to terminate Ezell. In the case of termination,
which is a tangible employment action, actions taken by a
supervisor become, for Title VII purposes, the actions of the
employer. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
No. 03-4099                                               17

762-63 (1998). See also Faragher v. City of Boca Raton, 524
U.S. 775, 807-08 (1998) (no affirmative defense is available
to an employer in a sexual harassment case when the
supervisor’s harassment culminates in a tangible employ-
ment action such as discharge, demotion or undesirable
reassignment). Because Dew relied on the advice of a super-
visor who was arguably motivated by racial and gender
bias, Ezell’s race and gender claims survive summary
judgment.
  On his age claim, Ezell does not need the assistance of
the burden-shifting test for he produced direct evidence of
his supervisor’s discriminatory intent. Wright’s co-super-
visor, Mike Pavlides, told a new hire that their (Pavlides’s
and Wright’s) plan was to get rid of older carriers and
replace them with younger, faster carriers. Wright also fre-
quently made disparaging remarks about older workers,
referred often to Ezell’s gray hair and beard, commented on
his slowness and suggested that because of his speed, he
should consider another line of work. Pavlides’s statement
that he and Wright had a plan to get rid of older workers
and replace them with younger, faster workers is direct
evidence of discriminatory intent and is sufficient evidence
to allow Ezell to take his case to trial. Direct evidence is
evidence which can be interpreted as an acknowledgment
of the defendant’s discriminatory intent. Wichmann v.
Board of Trustees of Souther Illinois University, 180 F.3d
791, 801 (7th Cir. 1999), vacated and remanded on other
grounds, 528 U.S. 1111 (2000); Kormoczy v. HUD, 53 F.3d
821, 824 (7th Cir. 1995). To constitute direct evidence of
discrimination, a statement must relate to the motivation
of the decision-maker responsible for the contested decision.
Wichmann, 180 F.3d at 801; Rothman v. Emory University,
123 F.3d 446, 451 (7th Cir. 1997). Again, Postmaster Dew
accepted the recommendation of Wright and Pavlides in
deciding to terminate Ezell and therefore the supervisors’
discriminatory motive may be imputed to Dew. See Hunt v.
18                                               No. 03-4099

City of Markham, Ill., 219 F.3d 649, 652-53 (7th Cir. 2000)
(when the decision-makers themselves, or those who
provide input into the decision, express such discrimina-
tory feelings around the time of, and in reference to, the
adverse employment action complained of, then it may be
possible to infer that the decision-makers were influenced
by those feelings in making their decision). In Wichmann,
we found direct evidence of discriminatory intent in the
statement, “Think of it like this. In a forest you have to cut
down the old, big trees so the little trees underneath can
grow.” Wichmann, 180 F.3d at 801. Ezell has produced
evidence that Wright and Pavlides had a plan to eliminate
older workers because they believed they were slower than
younger workers. Wright frequently commented on Ezell’s
gray hair and slow speed. He may therefore take that claim
to a jury.


                            III.
  Ezell has not presented sufficient evidence to sustain a
hostile environment claim and we therefore affirm judgment
in favor of the defendant on that claim. But for the reasons
we have stated above, Ezell’s race, sex and age claims are
sufficiently supported to survive summary judgment and
we therefore vacate that part of the judgment and remand
for further proceedings. Ezell’s damages may be modest but
he may take these claims to trial.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.
No. 03-4099                                        19

A true Copy:
      Teste:

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




               USCA-02-C-0072—3-16-05
