                        NONPRECEDENTIAL DISPOSITION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 May 22, 2015
                               Decided September 1, 2015

                                         Before

                        FRANK H. EASTERBROOK, Circuit Judge

                        ANN CLAIRE WILLIAMS, Circuit Judge

                        DAVID F. HAMILTON, Circuit Judge



No. 14-2842



BEUGRE S. NEHAN,                                Appeal from the United States District
    Plaintiff-Appellant,                        Court for the Northern District of Illinois,
                                                Eastern Division.
      v.
                                                No. 11 CV 646
TOOTSIE ROLL INDUSTRIES, INC.,
    Defendant-Appellee.                         John J. Tharp, Jr.,
                                                Judge.



                                       ORDER


       After his termination, Beugre Nehan, a native of the Republic of Côte d’Ivoire,
sued his former employer, Tootsie Roll Industries, Inc. (“Tootsie Roll”) alleging race and
national origin discrimination in violation of Title VII of the Civil Rights Act of 1964,
and disability discrimination in violation of the Americans with Disabilities Act
(“ADA”). He also claimed Tootsie Roll retaliated against him for having engaged in
protected conduct in violation of 42 U.S.C. § 1981. The district court entered summary
No. 14-2842                                                                         Page 2

judgment in favor of Tootsie Roll on all claims because Nehan did not provide sufficient
evidence to support any of those claims. Nehan disagrees and now appeals the district
court’s grant of summary judgment on his claims of race and national origin
discrimination, and retaliation. However, we affirm.
                                    BACKGROUND
        Nehan, who is a native of the Republic of Côte d’Ivoire, was employed by Tootsie
Roll in its Chicago, Illinois plant from June 18, 2002 to August 18, 2010. Nehan was
initially hired as a general laborer. At the time of his discharge, he was working as a
forklift driver in the shipping and receiving department. Nehan suffered multiple back
injuries while at Tootsie Roll, resulting in medical work restrictions.
       During Nehan’s employment, Tootsie Roll maintained Plant Work Rules that set
forth the disciplinary steps for certain infractions. For example, insubordination resulted
in suspension in the first instance and discharge in the second. Tootsie Roll reserved the
right to accelerate or decelerate disciplinary steps based upon the nature of the conduct.
Tootsie Roll also required employees to work mandatory overtime, and employees were
informed that repeated refusals to work mandatory overtime would result in
disciplinary action.
        Nehan received numerous disciplinary actions for attendance, tardiness, and
other issues beginning in August 2002. We review some, but not all of these infractions.
In June 2008, Nehan was suspended for two days for tardiness. In August 2008, he was
issued a one-day in-house suspension for tardiness and an additional verbal warning for
tardiness. In April 2009, he received a five-day suspension for tardiness. In July 2009, he
received a written warning for absenteeism.
      Following these events, on July 30, 2009, Nehan filed a charge of discrimination
based on race, national origin, and disability with the Illinois Department of Human
Rights (“IDHR”) and the Equal Employment Opportunity Commission (“EEOC”).
Nehan complained that his supervisor, Willie McCaa, who is African-American, ordered
Nehan to perform jobs that were not within his medical restrictions.
       After filing this charge, Nehan continued to receive disciplinary actions. In
October 2009, he was given a written warning for absenteeism. In December 2009,
Nehan was given a warning for failure to wear a seatbelt and safety glasses. In February
2010, Nehan was suspended for two days for refusing to perform his cleaning
assignment and leaving his workspace. In March 2010, Nehan was issued a warning for
insubordination because he refused to work mandatory overtime. In April 2010, he
received another warning for a safety violation. In May 2010, Nehan was issued a
five-day suspension for insubordination and a two-day in-house suspension for
No. 14-2842                                                                            Page 3

tardiness.
      In June 2010, Nehan filed a second charge of discrimination with the IDHR and
EEOC, this time complaining that plant managers had taken Nehan’s forklift away from
him and assigned it to someone else. The EEOC granted Nehan the right to sue.
        In August 2010, Tootsie Roll terminated Nehan after he again refused to perform
mandatory overtime. In March 2012, Nehan sued Tootsie Roll in federal court, alleging
race and national origin discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and disability discrimination in violation of the ADA. He
also claimed Tootsie Roll retaliated against him for having engaged in protected conduct
in violation of 42 U.S.C. § 1981 (“Section 1981”). The district court entered summary
judgment in favor of Tootsie Roll on all claims, finding there was no evidence that
Nehan’s race, national origin, alleged disability, or two charges of discrimination (or any
other protected activity) had anything to do with his discipline and ultimate discharge.
The district court noted that Nehan was subject to over twenty disciplinary actions prior
to being terminated, which showed that he was not meeting Tootsie Roll’s legitimate
expectations concerning employee conduct.
       Nehan now appeals the district court’s grant of summary judgment on his claims
of race and national origin discrimination, and retaliation. He does not seek review of
the summary judgment grant on his disability discrimination claim.
                                        ANALYSIS
       We review the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to Nehan and drawing all reasonable inferences in his
favor. Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015). Summary judgment is
appropriate where there is no genuine issue of material fact and the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986).
       Nehan alleges that Tootsie Roll disciplined and terminated him because of his
national origin (Republic of Côte d’Ivoire) and his race (African-American), in violation
of Title VII and Section 1981. Title VII makes it unlawful for an employer “to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Section 1981 prohibits racial discrimination
and retaliation against employees when a contractual relationship exists between the
employer and employee. See 42 U.S.C. § 1981(b); Davis v. Time Warner Cable of Se. Wisc.,
L.P., 651 F.3d 664, 671 (7th Cir. 2011). A plaintiff may use either the direct or indirect
method of proof to avoid summary judgment on a race or national origin
No. 14-2842                                                                                            Page 4

discrimination claim under Title VII or Section 1981. See Chaib v. Indiana, 744 F.3d 974,
981 (7th Cir. 2014); Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012); Davis, 651 F.3d
at 671–72 (noting that the “methods of proof and elements of the case are essentially
identical” in Title VII and Section 1981 cases).
       Under the direct method of proof, a plaintiff must introduce evidence that
“points directly” to a discriminatory reason for adverse employment action to survive
summary judgment. Abuelyaman v. Ill. State Univ., 667 F.3d 800, 809 (7th Cir. 2011)
(citing Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008)). A plaintiff can make this
showing through “an acknowledgement of discriminatory intent by the defendant,”
Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 272 (7th Cir. 2004), or by circumstantial
evidence that “suggests discrimination through a longer chain of inferences,” Atanus,
520 F.3d at 671. Examples of circumstantial evidence that might suggest intentional
discrimination are suspicious timing, ambiguous statements, comments directed at
employees in the protected group, and examples of similarly situated employees
outside the protected class who received better treatment. See id. at 672.
       Nehan has presented no evidence whatsoever of discrimination based on race or
national origin sufficient to make the required showing under the direct method. The
evidence Nehan cites consists of medical records, statements in his post-deposition
affidavit, 1 work status reports, and correspondence regarding his medical treatment
and physical status. No portion of this evidence relates to Nehan’s race or national
origin. If anything, it alludes to some possible discrimination on the basis of a disability,
but this appeal does not involve any claims under the ADA. In the context of a
discrimination claim tried under the direct method, “the assembled evidence must
point ‘directly to a discriminatory reason for the employer’s action’ for [a plaintiff’s]
claim to survive summary judgment.” Davis, 651 F.3d at 672 (quoting Adams v. Wal–
Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003). Nehan’s evidence does not come close
to meeting this burden.

1 Nehan claims the district court was wrong to disregard portions of his post-deposition affidavit in
which he stated that his refusal to work mandatory overtime was justified by his alleged belief that he
would not be able to use a forklift after June 4, 2010. However, Nehan made clear in his deposition that he
was permitted to use a forklift after that date. The district court thus properly disregarded portions of
Nehan’s post-deposition affidavit that conflicted with his prior deposition testimony. See United States v.
Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars, 403 F.3d 448, 466 (7th Cir. 2005) (“We
have long followed the rule that parties cannot thwart the purposes of Rule 56 by creating ‘sham’ issues
of fact with affidavits that contradict their prior depositions.”) (quoting Bank of Ill. v. Allied Signal Safety
Restraint Sys., 75 F.3d 1162, 1168–69 (7th Cir. 1996)); see also Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th
Cir. 1995) (noting this court “ha[s] been highly critical of efforts to patch up a party’s deposition with his
own subsequent affidavit”).
No. 14-2842                                                                           Page 5

       Under the indirect method, a plaintiff must establish a prima facie case of
discrimination showing that (1) he is a member of a protected class, (2) he suffered an
adverse employment action, (3) he was meeting his employer’s legitimate expectations
at the time of the adverse action, and (4) the employer treated similarly situated
employees not in the protected class more favorably. Moultrie v. Penn Aluminum Int'l,
LLC, 766 F.3d 747, 752–53 (7th Cir. 2014). If these elements are established, the burden
shifts to the employer to articulate a legitimate nondiscriminatory reason for the
employment action. Id. at 753. If it does, the burden shifts back to the employee to show
that the proffered reason is pretext. Id. If a plaintiff cannot establish a prima facie case,
an employer is not subjected to the pretext inquiry. See Peele v. Country Mut. Ins. Co., 288
F.3d 319, 327 (7th Cir. 2002).
        Nehan can establish the first and second elements, as he is a member of protected
classes and was terminated from his position at Tootsie Roll. But as to the third element,
the record clearly shows Nehan was not meeting Tootsie Roll’s legitimate expectations.
Nehan was the subject of more than twenty disciplinary actions for tardiness,
inattention, and insubordination while at Tootsie Roll, many of which occurred in the
year he was discharged. Nehan’s performance issues continued after he filed his
charges of discrimination, and those charges did not preclude him from being
subsequently disciplined and ultimately terminated. See, e.g., Williams v. Airborne
Express, Inc., 521 F.3d 765, 768 (7th Cir. 2008) (plaintiff could not show he was meeting
employer’s legitimate job expectations where employer had already “disciplined him
three times (twice in the previous year) and still he was insubordinate again”). Nehan
also fails to establish the fourth element, that similarly situated employees outside of his
protected class were treated differently. Because Nehan failed to establish the third and
fourth elements of his prima facie case, summary judgment in favor of Tootsie Roll was
properly entered.
       We now turn to Nehan’s retaliation claim. Title VII bars discrimination against
an employee because the employee “oppose[s] any practice made an unlawful
employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). As with discrimination
claims, a plaintiff alleging retaliation can proceed under a direct or indirect method.
Moultrie, 766 F.3d at 754. Under the direct method, a plaintiff must show “(1) that he
engaged in activity protected by the statute; (2) that his employer took an adverse
employment action against him; and (3) that there is a causal connection between [his]
protected activity and the adverse employment action.” Id. The indirect method
involves burden shifting that “mirrors that for discrimination.” Alexander v. Casino
Queen, Inc., 739 F.3d 972, 983 (7th Cir. 2014) (quoting Davis v. ConWay Transp. Cent.
Express, Inc., 368 F.3d 776, 788 (7th Cir. 2004)).
No. 14-2842                                                                            Page 6

       Again, Nehan’s case fails under the indirect method because he cannot establish
that he met Tootsie Roll’s legitimate expectations. So, we consider Nehan’s evidence
solely under the direct method. There is no dispute that Nehan engaged in statutorily
protected activity when he filed charges with the IDHR and EEOC and that his
discipline and termination were adverse employment actions. The question is whether
there is a causal link between the two.
        Nehan contends the timing of his termination in August 2010, in relation to his
charges of discrimination (filed on July 30, 2009, and June 23, 2010) suggests retaliation.
We disagree. The timing here does not suggest that Tootsie Roll terminated Nehan
because he filed a charge of discrimination against the company; after all, Tootsie Roll
did not terminate Nehan for more than a year after his 2009 charge. See, e.g., Kidwell v.
Eisenhauer, 679 F.3d 957, 967 (7th Cir. 2012) (finding that “extended time gaps alone
militate against allowing an inference of causation based on suspicious timing”);
O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011) (finding two-month gap
between plaintiff’s complaint and termination was “not strongly suggestive of
retaliation”); McGuire v. City of Springfield, Ill., 280 F.3d 794, 796 (7th Cir. 2002) (noting
that a long gap in time “undercuts an inference of causation”). In any event, timing
alone rarely creates a fact issue, see, e.g., Donahoe, 667 F.3d at 860, especially where, as
here, a plaintiff had such a negative record of performance at work. Thus, we conclude
the district court’s grant of summary judgment on Nehan’s retaliation claim was
appropriate.
                                      CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s judgment.
