                     NONPRECEDENTIAL DISPOSITION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 29, 2008
                             Decided February 12, 2008

                                       Before

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-3683

CALVIN KEYS, JR.,                              Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Northern District of
                                               Indiana, Fort Wayne Division
      v.
                                               No. 1:04-CV-214 WCL
FOAMEX, L.P.,
    Defendant-Appellee.                        William C. Lee,
                                               Judge.


                                     ORDER

       Calvin Keys, Jr., an African American, sued his former employer, Foamex,
L.P., claiming that Foamex’s decisions to test Keys for drugs and terminate his
employment (after Keys failed his drug test) amounted to race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.
The district court granted Foamex’s motion for summary judgment, and Keys now
appeals. Because Keys has failed to establish a genuine issue of material fact, we
affirm the judgment of the district court.

       The facts are construed in the light most favorable to Keys. Foamex, a maker
of foam products, employs approximately 191 individuals at its Fort Wayne,
Indiana, facility. Under Foamex’s “Drug Free Workplace Drug Policy,” Fort Wayne
No. 05-3683                                                                   Page 2

employees are prohibited from reporting to work under the influence of alcohol or
drugs (with some exceptions for nonimpairing prescription medications). To that
end, “any employee who is involved in a serious or lost time on-the-job accident, and
any employee whose on-the-job behavior indicates that he or she may be under the
influence of alcohol or drugs, may be subjected to a medical examination or test to
determine if there is a presence of alcohol or drugs in the employee’s body.”
Violation of the policy—namely, reporting to work under the influence—is a basis
for immediate termination, although it does not compel that result.

        On April 1, 2003, an argument broke out between Keys and two other shift
workers, Tony Romero and Juan Lopez, at a work station at the Fort Wayne
facility. Keys accused Romero and Lopez of refusing to help him as he lifted heavy
pieces of foam off of a machine. But Romero felt it was Keys who was not
cooperating with his fellow workers, not the other way around, and threatened to
call their shift supervisor, Mark Thomas. The disagreement did not escalate
further—Romero did not make good on his threat to call Thomas—and the
remainder of the shift passed peaceably.

       The following day, however, Lopez and another Foamex employee, Garth
Hazlett (who also had worked with Keys the day before), spoke to Thomas about
Keys’s behavior. After listening to the two employees recount that Keys had been
uncooperative and at times unresponsive the day before, Thomas emailed their
report and his own observations of Keys’s “odd” behavior to Christopher Welbaum,
Foamex’s local human resources manager. Welbaum decided to have Keys tested
immediately for drugs in light of what Welbaum believed to be uncharacteristic
behavior. Welbaum reports that his decision was also influenced by long-standing
rumors that Keys had used drugs during work hours with two other Foamex
employees who Welbaum had recently terminated for violation of the drug policy.

       Keys, meanwhile, knew nothing of these conversations and had just begun
his shift that day when he was asked to accompany a supervisor off-site. Keys
agreed to do so and was quietly escorted to a RediMed facility, where he submitted
to a drug test. Upon returning to the Fort Wayne facility, a supervisor told Keys
that he should go home and return only after Foamex received the results of the
drug test. A few days later, however, RediMed informed Foamex that Keys had
tested positive for marijuana. And Welbaum promptly terminated Keys for
violating Foamex’s drug policy.

       Keys timely filed a discrimination charge with the Equal Employment
Opportunity Commission and timely filed a complaint in the district court after
receiving a right-to-sue letter. Keys alleged that Foamex had engaged in race
discrimination by subjecting Keys—but not other similarly situated individuals
outside of his protected class—to a drug test and then discharging him after he
No. 05-3683                                                                          Page 3

failed the test. Keys advanced two distinct claims in the district court: first, that
the drug test was an act of race discrimination; and second, that the termination
that flowed from failing the drug test constituted a second act of race
discrimination. But the district court rejected both arguments, instead granting
summary judgment in favor of Foamex. Regarding the first claim, the district court
determined that, even accepting Keys’s version of the facts as true, his drug test did
not amount to an adverse employment action because it was performed in a routine
fashion and did not amount to harassment or humiliation; thus, Keys could not
make out a prima facie case of discrimination under the indirect method of
McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-03 (1973). Regarding the
second claim, the district court held that Keys similarly could not make out his
prima facie case because he could not point to similarly situated individuals who,
like Keys, tested positive for drugs or alcohol but were not terminated.

        We review a district court’s grant of summary judgment de novo, construing
all facts and reasonable inferences in the nonmovant’s favor. Perez v. Ill., 488 F.3d
773, 776 (7th Cir. 2007); Phelan v. Cook County, 463 F.3d 773, 778 (7th Cir. 2006).
Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits demonstrate that 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(c). Accordingly, to survive summary judgment, the nonmoving party must
provide specific facts from which a jury could reasonably find in its favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

       Keys elected to proceed under the indirect, burden-shifting method of proving
discrimination. See McDonnell Douglas, 411 U.S. at 802-03. In order to prevail,
then, Keys must first establish a prima facie case by demonstrating that (1) he is a
member of a protected class; (2) his performance met Foamex’s legitimate
expectations; (3) he was subjected to an adverse employment action; and (4) Foamex
treated similarly situated employees outside of the protected class more favorably.
See, e.g., Barricks v. Eli Lilly and Co., 481 F.3d 556, 559 (7th Cir. 2007). This court
has recently held, in the termination context, that a plaintiff may alternatively
satisfy the fourth element of the prima facie case by showing that “the employer
needs to find another person to perform that job after the employee is gone . . . .”
Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 846 (7th Cir. 2007).1 Once
Keys has made out a prima facie case of discrimination, the burden of production
shifts to Foamex to articulate a legitimate, nondiscriminatory reason for the


       1
         Keys has not attempted to show that Foamex needs or has sought a replacement
employee, however, so this avenue is foreclosed to him. See Pantoja, 495 F.3d at 846; cf.
Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 687 n.2 (7th
Cir. 2007).
No. 05-3683                                                                   Page 4

adverse employment action. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th
Cir. 2006). But Keys can still prevail in the face of a legitimate, nondiscriminatory
reason if he can show that the proffered reason is a mere pretext for discrimination.
Id. Evidence of mistake will not suffice to show pretext, though; pretext “means a
lie, specifically a phony reason for some action.” Russell v. Acme-Evans Co., 51 F.3d
64, 68 (7th Cir. 1995).

       Keys first argues on appeal that the district court erred in finding that his
drug test did not constitute an adverse employment action. Adverse employment
actions contemplate more than inconvenience or minor irritation, and this court has
held that a mandatory drug test is an actionable adverse employment action only if
the test “is not performed in a routine fashion following the regular and legitimate
practices of the employer, but [rather] is conducted in a manner that harasses or
humiliates employees . . . .” Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997,
1001-02 (7th Cir. 2000). Keys argues that Foamex did not administer the drug test
in a routine fashion consonant with its drug policy because Welbaum’s suspicion
turned on (1) vague rumors of Keys’s previous drug use and (2) third-party reports
of Keys’s behavior—not the personal observations of Welbaum. Keys also argues
that the content of those third-party reports, which he characterizes as indicating
only poor performance, could not provide reasonable suspicion of drug use.

       Keys’s arguments are unpersuasive for a few reasons. First, Foamex’s policy
permits testing any employee whose behavior indicates the influence of alcohol or
drugs. There is no requirement of first-hand observation by the decision maker.
Second, the third-party reports were not limited to poor performance: in his email to
Welbaum, Thomas wrote that on April 1, 2003 Keys “was slow to respond to work
assignments, if he responded at all” and on the following day he was “acting oddly
and in a way that was contradictory to his normal behavior.” Finally, Foamex
admits that the rumors of Keys’s drug use were not alone sufficient to warrant a
drug test. It was only after receiving reports of strange behavior that Welbaum
chose to act. Accordingly, the decision to test Keys for drugs was consistent with
Foamex’s policy.

       Furthermore, Keys has not shown that Foamex conducted the testing in a
harassing or humiliating manner, as the law of this circuit requires. See Stockett,
221 F.3d at 1001-02. Keys rests instead on the conclusory assertion that because
the test was (allegedly) governed by a discriminatory motive it was necessarily
harassing and humiliating. But this ignores the adverse employment action
requirement of the prima facie case, which must be met before any presumption of
discrimination applies. See Simple v. Walgreen Co., 511 F.3d 668, 671 (7th Cir.
2007). Apart from a few supervisors, Foamex employees were unaware of the drug
test and the reason for Keys’s absence from work. And nothing in Keys’s account of
the events of that day suggests that he felt harassed or humiliated at the time (or
No. 05-3683                                                                      Page 5

that Foamex intended such a result)—although Keys obviously takes issue with
whether the drug test was warranted, an altogether different issue.

       Keys’s final argument on this point is that the drug test was nonroutine
because he is one of only two individuals to be tested under the suspicious-behavior
prong of the Foamex policy, and the other individual was also African-American.
But Keys neglects to mention that the other individual was one of the two with
whom he was rumored to be using drugs. The third individual in that group,
meanwhile, fell outside of the protected class but was also terminated for violation
of the policy, albeit after a workplace accident triggered his drug test. For all of the
foregoing reasons, the district court did not err in finding that Keys’s drug test was
not an adverse employment action. See Stockett, 221 F.3d at 1001-02.

       Keys next contends that the district court erred in granting summary
judgment to Foamex on Keys’s termination claim because Keys could not show that
similarly situated individuals outside of the class were treated more favorably. The
similarly situated requirement typically demands a showing that two employees
shared the same supervisor, were subject to the same standards, and engaged in
similar conduct without significant differentiating or mitigating circumstances.
Humphries v. CBOCS West, Inc., 474 F.3d 387, 404-05 (7th Cir. 2007), cert. granted,
76 U.S.L.W. 3154 (U.S. Sept. 25, 2007) (No. 06-1431) (other grounds). But this is a
flexible test that district courts may bend to analyze the particulars of any given
case. Id. at 405. Whether two individuals are similarly situated is ultimately “a
‘common-sense’ factual inquiry—essentially, are there enough common features
between the individuals to allow a meaningful comparison?” Id.

       Keys argued in the district court that numerous similarly situated
individuals outside of the protected class received more favorable treatment, and he
now revives those arguments. The first is Crystal Martinez, a Foamex employee
and the girlfriend of Welbaum’s stepson. Welbaum knew that Martinez was
arrested in connection with a drug raid at Welbaum’s stepson’s house, yet Welbaum
did not require her to take a drug test. The second is Jason Moreno, a Foamex
employee who reported to work visibly intoxicated approximately one year prior to
Keys’s termination. A Foamex supervisor sent Moreno home immediately, under
the belief that Moreno was drunk, but Welbaum did not order a drug or alcohol test
upon Moreno’s return two days later, instead giving him a warning for
“questionable usage.” And finally Keys also claims that he is similarly situated to
an entire group of unnamed individuals outside of the protected class, each of
whom, like Keys, reported to work free of the influence of drugs and alcohol but,
unlike Keys, were not tested or fired.

      The district court correctly held that Martinez and those individuals who
reported to work sober without incident were not similarly situated to Keys, but it
No. 05-3683                                                                    Page 6

was error to reject Moreno as a comparator. Despite the circumstances of
Martinez’s arrest, Keys has failed to show—or even argue—that any Foamex
employee suspected her of reporting to work under the influence of drugs or alcohol.
And Welbaum submits that he had no reason to believe that Martinez used or was
ever under the influence of drugs or alcohol while at work, the only grounds for
termination under the policy. As for the proposed group, Keys is unlike those
individuals who reported to work free of the influence of drugs and alcohol without
incident. Keys asserts that his drug test revealed only that he had used marijuana
in the recent past (which he admits)—not that he reported to work under the
influence on April 1, 2003—and thus he belongs with his peers who similarly were
not intoxicated. But Foamex first looks for signs of an employee being under the
influence of drugs and alcohol, and then administers a test which, with respect to
drugs, serves as an imperfect indicator of a policy violation, although enough to
warrant termination. Keys has omitted an essential characteristic required of
anyone similarly situated: behavior perceived as sufficiently out-of-the-ordinary or
otherwise suspicious to warrant a drug test. And because the proposed group lacks
that quality, its members cannot be similarly situated.

       Moreno, however, offers a meaningful comparison that the district court
should not have rejected. The two men shared the same supervisor (Welbaum),
were subject to the same standards (the drug policy), and behaved in ways
sufficiently similar to arouse suspicion of drug or alcohol use. See Humphries, 474
F.3d at 404-05. The district court understood the similarly situated inquiry to
require a showing that another Foamex employee tested positive for drugs or
alcohol but did not suffer termination. But this requirement is too narrow to
vindicate the purpose of Title VII. Under the district court’s reasoning, a
discriminatory employer could evade detection by testing—and terminating—only
those employees within the protected class, leaving them powerless to establish a
prima facie case because of the absence of similarly situated employees. Far better
to require that Keys identify an employee outside of the protected class (and under
Welbaum’s supervision) who exhibited unusual behavior or other signs of
intoxication in the presence of Foamex employees but did not face a drug or alcohol
test. See id. Moreno is just such an individual.

       Even if Keys can complete his prima facie case for his termination claim,
though, he still cannot show that Foamex’s legitimate, nondiscriminatory reasons
for testing and termination are pretextual. See Ptasznik, 464 F.3d at 696. Foamex
claims that its decision to test Keys rests on reports of strange behavior at work and
rumors of past drug use, and its decision to terminate Keys stems from the results
of his drug test. Welbaum explains the difference in Moreno’s and Keys’s treatment
in terms of their respective intoxicants. Welbaum believed that Moreno was under
the influence of alcohol; he claims that he would have ordered a test had he known
of the supervisor’s suspicion on the day in question. But according to Welbaum, two
No. 05-3683                                                                       Page 7

days later, the test would have demonstrated nothing because alcohol leaves the
body much faster than marijuana. Truthfully, there are methods to test for alcohol
consumption well after two days have expired, see, e.g., The Role of Biomarkers in
the Treatment of Alcohol Use Disorders, SUBSTANCE ABUSE TREATMENT ADVISORY,
Sept. 2006, Vol. 5, Issue 4, at 4, Ex. 2.2 But this cannot help Keys because “[t]he
focus of a pretext inquiry is whether the employer’s reason is honest, not whether it
is accurate or wise.” Barricks, 481 F.3d at 560. And Keys has not provided any
reason to doubt that Welbaum honestly believed that it was too late to test Moreno
when he learned of his behavior two days later. Although Welbaum’s convenient
explanation for disparate treatment is troubling, Keys simply has not developed any
cogent argument that this explanation—or any of the explanations given for Keys’s
testing and termination—is pretextual.

      For these reasons, we AFFIRM the judgment of the district court.




      2
         http://kap.samhsa.gov/products/manuals/advisory/pdfs/0609_biomarkers.pdf (last
visited Feb. 12, 2008).
