Christian S. Peters v. Renaissance Hotel Operating Company , doing business as RENAISSANCE CHICAGO HOTEL

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-4026
C HRISTIAN S. P ETERS ,
Plaintiff-Appellant,
v.
R ENAISSANCE H OTEL O PERATING C OMPANY ,
doing business as R ENAISSANCE C HICAGO
H OTEL and M ARRIOTT I NTERNATIONAL ,
I NCORPORATED ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3990—William J. Hibbler, Judge.
____________
A RGUED JUNE 7, 2002—DECIDED S EPTEMBER 20, 2002
____________
Before B AUER , P OSNER and R IPPLE , Circuit Judges.
R IPPLE , Circuit Judge. Christian S. Peters brought this
action pursuant to 42 U.S.C. § 1981 and 42 U.S.C § 2000e
et seq. against his former employer, Renaissance Hotel
Operating Corp. (“Renaissance”). Mr. Peters alleged that
Renaissance had subjected him to discriminatory treat-
ment and had terminated his employment on the basis of
his race and in retaliation for voicing concern on issues
of diversity. The district court granted summary judgment

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2 No. 00-4026
for Renaissance, and Mr. Peters appealed. We now affirm
the judgment of the district court.
I
BACKGROUND
A. Facts
1. Employment History
Mr. Peters was employed by Renaissance as a Loss
Prevention Officer (“LPO”) from March 1996 to November
17, 1997; Mr. Peters typically worked the third shift. As a
LPO, Mr. Peters’ duties included providing for the safety
and security of guests, monitoring Renaissance guest and
associate activity, and working with outside agencies like
the Chicago Fire Department. LPOs were supposed to re-
cord their activities in an activity log; the importance
of keeping an accurate activity log was communicated to
all LPOs at a departmental meeting in October 1997.
a. Discriminatory Treatment of Guests
Mr. Peters maintains that he began to notice discrimina-
tory treatment toward African-American guests shortly after
he began his employment. Mr. Peters points to four inci-
dents during his employment that evidenced this discrim-
ination. First, Mr. Peters states that LPOs were instructed
to watch or follow African-American guests, but were
not given similar instructions with respect to Caucasian
guests. As well, a Renaissance bartender reported that an
African-American man was taking money from the coin
fountain; after investigation, it was determined that the
report was unfounded. Furthermore, according to Mr.
Peters, on at least one occasion, a party of African-American

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No. 00-4026 3
1 At the time of Mr. Peters’ employment, the Loss Prevention
department had two supervisors, James Ware and Jeffrey Simons,
as well as a department director, Mark Baughman.
2 The comment was not directed at Mr. Peters.
guests was not provided with additional ice and cups,
while noisier parties of Caucasian guests were moved, with
hotel assistance, to public rooms and provided with addi-
tional supplies. Finally, Jeffrey Simons, a Loss Prevention
supervisor, 1 referring to music being played by some
African-American guests, commented that he could not
wait until the “wicca wicca woo” music was turned off.
R.69, ¶ 97.
b. Discriminatory Treatment of Employees
In addition to discriminatory treatment of guests, Mr.
Peters maintains that Renaissance engaged in discrimina-
tory treatment of its employees. Mr. Peters recalls an in-
cident in which he overheard a Caucasian LPO use the
word “nigger.” 2 Mr. Peters claims that he complained about
this incident “up the chain of command” and, at least
initially, “was told to mind his own business,” R.77, ¶ 134;
however, Mr. Peters also admits that the offending LPO
was required to apologize to Mr. Peters and was sus-
pended for the use of the term. The incident also prompted
management to hold diversity training classes for the Loss
Prevention department. See R.69, ¶¶ 136 and 144; R.77,
¶¶ 136 and 144.
Mr. Peters also points to other ways that African-Ameri-
can employees at Renaissance were subjected to different
treatment. Mr. Peters states that Steve Keith, Renaissance’s
director of human resources, would greet Caucasian em-

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4 No. 00-4026
3 The meeting was held in the hotel restaurant. Mr. Peters did
not believe that this was the best place to hold the meeting
because guests might overhear the conversation; specifically, Mr.
Peters gestured to a group of Japanese guests. Stewart-Moore
responded that the guests probably could not understand Eng-
lish anyway, and the meeting continued on in the restaurant.
ployees, but did not greet Mr. Peters or another African-
American LPO, Tyrone Kuehnel, in the same manner. As
well, on one occasion, Simons, a supervisor, asked Milt
Stroner, a Caucasian LPO, to retrieve coins from the foun-
tain, but Mr. Peters and Kuehnel were not asked to per-
form this duty.
c. Retaliation
According to Mr. Peters, when he brought complaints to
management concerning the treatment of African-American
patrons and employees, he soon started to experience
retaliation in response to these complaints. With one
exception, Mr. Peters does not identify the specific nature
of his complaints, to whom the complaints were addressed
and when, in proximity to the alleged retaliation, the
complaints were made. The record does reflect that, in
September 1997, Mr. Peters and Kuehnel met with Anthony
Stewart-Moore, the General Manager, to discuss their
concerns about diversity. 3
The first of the alleged retaliatory actions occurred in
June 1996, after several Renaissance guests complained that
they had not received the breakfasts that they had placed
orders for the previous evening. It is the responsibility of
LPOs on the night shift to pick up breakfast order cards.
When Baughman confronted Mr. Peters, who had been
on duty on the evening in question, Mr. Peters claimed that

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No. 00-4026 5
4 Additionally, Mr. Peters claims that, when he had enough
seniority to merit his choice of days off and desired to have
Thursdays and Fridays off, Baughman commented that he
“would rather die” than see him get those days off. R.78, ¶ 63.
(continued...)
he had, in fact, picked up the breakfast cards. Baughman
reviewed Mr. Peters’ activity log and discovered that it
did not reflect time collecting the cards. Mr. Peters was
counselled that he “should document on his activity log
all times, actions and observations.” R.77, ¶ 71. Mr. Peters
also was issued a warning for failing to document his
activities on his activity log: “Failure to properly docu-
ment actions on the Activity Log will result in further
disciplinary action and retraining.” Id. Mr. Peters believes
that he should not have been given this warning because
the more generic term “touring floors,” which was stated
in his activity log, encompasses picking up the breakfast
cards. R.77, ¶ 71.
Also early in Mr. Peters’ employment, Baughman was
alerted by other members of Renaissance management
that unauthorized telephone calls were being charged to
a telephone located in the Audio Visual Room. Baughman
set up a hidden surveillance camera to determine who was
making the calls. Mr. Peters was recorded on video using
the telephone. Baughman again reviewed Mr. Peters’
activity log to see if his log reflected his calls from the
Audio Visual Room, but the log reflected no such activity.
When questioned by Baughman, Mr. Peters stated that
he did not recall making the calls. In a subsequent meet-
ing with Baughman and Keith, Mr. Peters admitted making
the calls, but claimed that he did not know that he could
not make calls from that room. Mr. Peters received another
warning for this action. 4

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6 No. 00-4026
4 (...continued)
Despite this comment, however, Mr. Peters does not point to
any evidence of record that suggests that either he was denied
days off or he was prevented from taking his choice of days.
5 Mr. Peters’ log stated that he was in the retail area, which is
a general term for an area that includes the sales office, for
only five minutes.
d. Events Leading to Mr. Peters’ Termination
In November 1997, an employee in the national sales of-
fice (“NSO”) reported to Baughman that she believed
someone was entering the office after hours without au-
thorization. As a result, an investigation was conducted,
and Baughman set up a hidden camera in the office. At
about 11:15 p.m. on November 12, 1997, Mr. Peters was
asked by Erik Williamson, an off-duty, Caucasian LPO, if
Mr. Peters would come to the NSO with Williamson and
help Williamson look for computer disks containing soft-
ware he needed for a Loss Prevention department project.
Once in the sales office, Mr. Peters and Williamson opened
drawers and closets to see if they could find what William-
son wanted. Williamson also turned on the computer
and showed Mr. Peters how to access the internet. Mr.
Peters and Williamson were in the sales office for about
51 minutes.
Mr. Peters’ activity log, however, did not reveal any time
spent in the sales office. In contrast, his log stated that
he was various places performing his duties during that
time period. 5 Mr. Peters later explained that he had pre-
entered some of the items on the log, but had forgotten to
change them later.
On November 17, 1997, Baughman and Keith met with
Mr. Peters and Williamson in separate meetings and ter-

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No. 00-4026 7
6 Mr. Peters claims in his brief that the termination papers make
no mention of his being terminated for being in the NSO for an
extended period of time without authorization; his support for
this statement is, in part, the transcript of his termination
meeting. The transcript, however, does not bear out Mr. Peters’
characterization. In the meeting in which Keith and Baughman
terminated Mr. Peters, Keith stated: “There was none [authoriza-
tion] given. We’ve got it on camera, we were shocked to see
these things. NSO told us a couple of weeks ago that stuff
was missing, postage. M[ark Baughman] set up surveillance . . . .
All this time there was no authorization. This goes on for
51 minutes. You had no reason to be in there.” R.70, Vol. VII,
Ex.28, Ex.4. Later Keith commented again on the length of time:
“51 minutes . . . We’re going to go look for computer discs . . . .”
Id. Near the end of the interview, Keith says again, “I want to
stress that this is not something we want to see happen. As
an LPO your accountabilities are high. You had no reason to be
in there. That’s why we’re taking this action. . . .” Id. Conse-
quently, it was clear from the termination meeting that the
amount of time and the issue of authorization played at least
some role in the decision.
Mr. Peters also references the termination paper placed in his
file. Again the amount of time and the lack of authorization
were mentioned. The employee action form states:
Chris was observed entering the NSO at approx. 11:15 p.m.
Once inside the NSO, Chris was observed opening file
drawers and cabinets. Chris was observed departing the
NSO at approx. 12:06 a.m., or approx. 51 min. after entry.
According to Chris’s L.P. Activity Log, between 11:23 p.m. to
(continued...)
minated their employment with Renaissance. Williamson
was terminated for being in the sales office while off-duty,
for using the computer and for accessing the internet
without authorization. Mr. Peters was terminated for being
in the office for an extended time without authorization
and for falsification of his activity log. 6

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8 No. 00-4026
6 (...continued)
11:27 p.m. Chris was touring the retail area and Kinkos
(see Log). From 11:27 p.m. to 12:02 a.m. Chris was in the
Hotel lobby monitoring guest and associate activity (see
Log). This is a violation of work rule #4, Falsification of
employment or time records . . . or other hotel records,
and #19, using hotel . . . Facilities for purposes other than
hotel business without authorization.
R.70, Vol. IV, Ex.25, Ex.38.
7 At the same time, Mr. Peters sought to amend his first charge
to include the allegations set forth in his second charge. It is
(continued...)
2. Charges of Discrimination
In February 1998, shortly after his termination, Mr.
Peters brought his first charge of discrimination against
Renaissance, charge number 210981300. In that charge,
Mr. Peters claimed that he had been terminated on the basis
of his race and sex. Specifically, he charged that:
I. I began my employment with the above named
Respondent in or about March 1996 as a Loss Preven-
tion Officer. On November 17, 1997, I was discharged.
II. Respondent’s reason for my discharge was “falsifi-
cation of documents.”
III. I believe I was discriminated against because of
my race and sex (Black male) in violation of Title VII
of the Civil Rights Act of 1964 . . . in that Respondent
discharged me whereas White males and White females
are not discharged for falsifying records.
R.70, Vol. III, Ex.25, Ex.3. The notice of right to sue on this
charge was issued on March 31, 1998.
On June 18, 1998, Mr. Peters filed a second charge of dis-
crimination with the EEOC, charge number 210983015. 7

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No. 00-4026 9
7 (...continued)
undisputed that the EEOC had completed its proceedings and
had issued a right-to-sue letter on the first charge prior to the
time that the amended charge was sent.
In this second charge, Mr. Peters claimed that he had
suffered retaliation, including retaliatory termination, as
a result of his protesting to management the discriminatory
treatment of African-American guests and employees.
See R.76, Ex.A. Mr. Peters received a notice of the right to
sue for this charge on June 30, 1998.
B. District Court Proceedings
Mr. Peters filed his initial complaint in the district court
on June 29, 1998. His complaint contained two substan-
tive counts—discriminatory termination and hostile work
environment—brought pursuant to 42 U.S.C. §§ 1981 and
2000e et seq. Mr. Peters later amended his complaint
to correct the names of the parties. See R.30. On March 10,
2000, Mr. Peters moved for leave to file a second amended
complaint that included a count (Count I-A) of retaliation.
The court granted Mr. Peters’ motion on March 23, 2000.
Both parties engaged in substantial discovery, and, after
the discovery period closed, Renaissance moved for sum-
mary judgment on all counts. Specifically, Renaissance
maintained that some of Mr. Peters’ claims could not be
considered by the court because they had occurred over
300 days prior to the date on which he filed his first charge
of discrimination with the EEOC, February 4, 1998. In
addition, Renaissance argued that Mr. Peters’ § 1981 claims
were barred by a two-year statute of limitations. With
respect to both Mr. Peters’ hostile work environment
claim and his retaliatory discharge claim, Renaissance

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10 No. 00-4026
urged that the claims were procedurally barred because
they are outside the scope of the charge of discrimination
on which Mr. Peters rested his complaint. Finally, Renais-
sance argued that Mr. Peters could not establish a prima
facie case of discriminatory discharge or, alternatively,
could not establish pretext.
After receiving the briefs and materials from all parties,
the court ruled in favor of Renaissance. First, the court
agreed with Renaissance that any claims that occurred
more than 300 days prior to his charge of discrimination
were barred. The court recognized, however, that these
incidents may constitute relevant background evidence
for determining Renaissance’s intent in terminating Mr.
Peters’ employment. Second, the court held that Illinois’
two-year statute of limitations for personal injury actions
applied to Mr. Peters’ § 1981 claims. Specifically, the
court found that 28 U.S.C. § 1658, the federal four-year
statute of limitations, did not apply to § 1981 claims be-
cause § 1981 was enacted prior to December 1, 1990, the
effective date of § 1658. Consequently, Mr. Peters’ § 1981
claims were time barred. Third, the court agreed that Mr.
Peters could not proceed on claims that were outside
the scope of the original charge. Finally, turning to the
merits of the discriminatory discharge claim, the court
found that Mr. Peters had failed to make out a prima facie
case of discrimination. The court determined that
[i]n this case, it is abundantly clear that Plaintiff failed
to satisfy Defendant’s legitimate expectations. Almost
immediately after his probationary status ended,
Plaintiff was written up for falsifying documents. Then
two months later, Plaintiff was given a final warning
for unauthorized phone calls and falsifying documents.
Then, Plaintiff was terminated for entering the National
Sales Office without permission, and once again falsify-
ing documents.

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No. 00-4026 11
8 On July 30, 2002, Congress amended § 1658 by designating
the quoted language as subsection (a) and adding subsection
(b) which provides:
Notwithstanding subsection (a), a private right of action that
involves a claim of fraud, deceit, manipulation, or contriv-
(continued...)
R.100 at 12. In the alternative, the district court determined
that Mr. Peters had not established pretext.
The district court then held that Mr. Peters had not come
forward with any evidence of a causal connection between
his termination and his meeting with the general manager
two months earlier; this lack of evidence doomed his
retaliation claim. As well, the court rejected Mr. Peters’
claim of hostile work environment and found that “[i]t can
hardly be said that the harassment Plaintiff endured was
sufficiently severe or pervasive to alter his employment.”
Id. at 16. Consequently, the district court entered judgment
in favor of Renaissance, and Mr. Peters timely appealed.
II
ANALYSIS
A. Statute of Limitations
Mr. Peters first submits that the district court erred in
holding that Illinois’ two-year statute of limitations for
personal injury actions, as opposed to the federal four-year
statute of limitations set forth in 28 U.S.C. § 1658, applied
to his § 1981 claims. Specifically, Mr. Peters explains that
28 U.S.C. § 1658 provides that “a civil action arising un-
der an Act of Congress enacted after the date of enact-
ment of this section may not be commenced later than four
years after the cause of action accrues.” 42 U.S.C. § 1658(a). 8

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12 No. 00-4026
8 (...continued)
ance in contravention of a regulatory requirement concerning
the securities laws, as defined in section 3(a)(47) of the
Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47)), may be
brought not later than the earlier of—
(1) 2 years after the discovery of the facts constituting
the violation; or
(2) 5 years after such violation.
Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204 § 804(a), 116
Stat. 745, 801 (2002). Nothing in the amendment affects the lan-
guage of now subsection (a).
Mr. Peters acknowledges that § 1981 was enacted well
before § 1658. However, he maintains that his claims do not
“arise under” § 1981 as it existed when § 1658 was adopted,
but arise under the amendments to § 1981 contained in
the Civil Rights Act of 1991.
Historically, courts interpreted § 1981 to allow recovery
for discrimination occurring during the employment
relationship. However, in Patterson v. McLean Credit Union,
491 U.S. 164 (1989), the Supreme Court determined that
§ 1981 was not so broad; its prohibition against discrimina-
tion in the “mak[ing] and enforc[ing]” of contracts ap-
plied only to “conduct at the initial formation of the con-
tract and [to] conduct which impairs the right to enforce
contract obligations through legal process.” Id. at 185.
Congress quickly “overruled” Patterson with the passing
of the 1991 Civil Rights Act. In that legislation, Congress
added a subsection to § 1981 that defined “make and
enforce contracts” broadly enough to encompass discrimi-
nation that occurs during, and at the end of, the employ-
ment relationship.
Mr. Peters argues that post-Patterson § 1981 claims that
rely on this broader definition of “make and enforce” could

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No. 00-4026 13
9 The application of the two-year statute of limitations to Mr.
Peters’ retaliation claim will be discussed in greater detail in
Part C of this opinion.
not have been brought prior to the passage of the 1991
Civil Rights Act and therefore “arise under” that act for
purposes of § 1658. His § 1981 claim, therefore, is gov-
erned by § 1658’s four-year statute of limitations.
We recently had the occasion to consider and resolve
this very issue in Jones v. R.R. Donnelley & Sons, Co., No.
01-3271 (7th Cir. September 16, 2002). In Jones, we reviewed
the history of § 1981 and determined that claims, such
as those brought by Mr. Peters, arose both under the
original § 1981 as well as § 1981(b). Consequently, the dis-
trict court did not err in applying that statute of limita-
tions and barring Mr. Peters’ § 1981 claims which arose
more than two years prior to Mr. Peters’ filing his com-
plaint. 9
B. Title VII Discriminatory Discharge
Mr. Peters argues that the district court erred in grant-
ing summary judgment on his discriminatory discharge
claim. Mr. Peters maintains that he established that he
was meeting Renaissance’s expectations, that Caucasian
employees were treated more favorably than he was,
and that Renaissance’s decision to terminate his employ-
ment was pretextual. We review the district court’s grant
of summary judgment de novo. See Gordon v. United Air
Lines, Inc., 246 F.3d 878, 885 (7th Cir. 2001).
Because Mr. Peters does not have direct evidence that his
discharge was discriminatory, we evaluate his claim un-
der the familiar burden-shifting analysis. In order to es-

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14 No. 00-4026
tablish a prima facie case of discrimination, Mr. Peters must
show that (1) he is a member of a protected class; (2) at
the time of his discharge, he was meeting his employ-
er’s legitimate expectations; (3) he was discharged; and
(4) his employer treated similarly situated individuals
outside of the protected class more favorably. See, e.g.,
Gonzales v. Ingersoll Mill Mach. Co., 133 F.3d 1025, 1032
(7th Cir. 1998). If Mr. Peters meets this burden, the burden
of production then shifts to Renaissance to articulate a
legitimate nondiscriminatory reason for its action. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000); Peeley v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th
Cir. 2002). Assuming Renaissance meets this burden, the
burden shifts back to Mr. Peters to show that the reason
set forth by Renaissance was not its true reason, but a
pretext—“a dishonest explanation, a lie rather than an
oddity or an error.” Kulumani v. Blue Cross Blue Shield Ass’n,
224 F.3d 681, 685 (7th Cir. 2000).
There is no dispute that Mr. Peters is a member of a
protected class and that he was discharged. With respect
to the second prong—meeting Renaissance’s expectations,
Mr. Peters points to the fact that he was given a satisfac-
tory performance evaluation at the review preceding his
termination and that he received the LPO of the month
award in September 1997. However, the question is not
whether at any time in Mr. Peters’ employment he was
meeting his employer’s expectations; the question is
whether he was meeting his employer’s expectations at
the time he was terminated. See Karazanos v. Navistar Int’l
Transp. Corp., 948 F.2d 332, 336 (7th Cir. 1991). At the time
of his termination, Mr. Peters had spent nearly an hour in
the NSO, had used equipment without permission and,
despite having received repeated warnings concerning
the necessity of properly documenting his activity, had
failed to identify his whereabouts on his activity log.

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No. 00-4026 15
Especially given the responsibility of LPOs to monitor guest
and associate activity, Mr. Peters was not performing his
duties to Renaissance’s satisfaction at the time of his
termination.
Mr. Peters also contends, in the alternative, that he
should not be held to the “meeting expectations” require-
ment. Specifically, Mr. Peters concedes that he violated
Renaissance rules with his actions in the NSO and with
respect to his activity log. In such circumstances, he
posits, the proper inquiry is not whether he was meeting
Renaissance’s legitimate expectations, but whether he was
treated more harshly than other individuals who broke
the same rules. Mr. Peters relies upon Flores v. Preferred
Technical Group, 182 F.3d 512 (7th Cir. 1999), in support of
his argument.
In Flores, several employees, including Flores—a Hispanic,
had staged a protest concerning a new break policy. How-
ever, only Flores was terminated for the incident. In con-
sidering whether Flores had made out a prima facie case
of discriminatory discharge, this court stated that
[i]t makes little sense in this context to discuss whether
she was meeting her employer’s reasonable expecta-
tions. . . . PTG could have fired any or all of [the offend-
ing employees]. The issue in this case is whether Flores
was singled out for discipline because she is Hispanic.
Therefore, under the facts of this case, Flores does
not have to show that she was meeting her employer’s
legitimate expectations in order to establish a prima
facie case of discriminatory discharge.
Id. at 515.
Mr. Peters, however, was not “singled out for discipline”
as the plaintiff was in Flores. Mr. Peters and Erik William-
son were both LPOs. Neither had authorization to be in the

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16 No. 00-4026
NSO, to look through drawers or to use the computer.
Both were terminated as a result of their activities. Mr.
Peters is African-American; Williamson is Caucasian. Mr.
Peters was not singled out for this punishment on ac-
count of his race, and he has not established a prima
facie case of discriminatory termination.
In his reply brief, Mr. Peters argues that he should not
be compared to Williams, but to other LPOs who also
have altered their activity logs at some point during
their employment and have not been terminated. The
burden is on Mr. Peters to establish the similarity between
himself and the proposed comparable employees. See Radue
v. Kimberly-Clark, 219 F.3d 612, 618 (7th Cir. 2000). Specifi-
cally,
in disciplinary cases—in which a plaintiff claims that he
was disciplined by his employer more harshly than a
similarly situated employee based on some prohib-
ited reason—a plaintiff must show that he is similarly
situated with respect to performance, qualifications
and conduct. 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.
Id. at 617-18 (internal citations omitted). In the present
case, Mr. Peters has come forward with a list of the individ-
uals who allegedly falsified their activity logs or other
documents but were not disciplined or discharged for
their activities. See Appellant’s Br. at 34-35. However, even
if Mr. Peters’ allegations concerning these individuals’
activities are true, their conduct is not comparable to that
of Mr. Peters. Mr. Peters does not point to any LPO who,
like Mr. Peters, had been warned on multiple occasions

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No. 00-4026 17
10 In addition to the lack of similarities noted above, we believe
Mr. Peters’ proposed comparisons suffer from other infirmi-
ties. Mr. Peters first maintains that LPO Mark Bosch falsified
another employee’s activity log, but was not disciplined. In
support of this statement, Mr. Peters points to his statement
of additional facts submitted to the district court, which in turn
cites the deposition of Steven Keith, former human resources
director for Renaissance. See R.78, ¶ 14. However, a look at
Keith’s testimony does not suggest Bosch and Mr. Peters en-
gaged in the same type of behavior. Keith’s testimony centered
on the departure of another LPO, Ellen Carlson, and inter-
views that Keith conducted with LPO management and staff
immediately following her departure. These interviews re-
vealed that Carlson had on-going problems with Bosch, that
Bosch identified Carlson as “it” on the Loss Prevention board,
that she believed that he had changed her log entries, and that
he had “scribbled” things in her log. R.70, Vol. VII, Ex.28, Ex.9.
According to Keith’s testimony, “Ellen felt that Mark Bosch
was playing games with her.” Id., Ex.28 at 67. Concerning the
alleged falsification, he stated: “All I do recall is that she
said something about Mark Bosch scribbling comments on her
(continued...)
about keeping an accurate activity log, whose activity log
reported inaccurate activity for nearly an hour during
one shift and who, in conjunction with that inaccuracy,
was engaging in unauthorized activity that was itself
violative of company rules. Furthermore, Mr. Peters ig-
nores the fact that it was only after this egregious inci-
dent concerning his unauthorized entry into the NSO in
conjunction with the falsification of his log that his em-
ployment was terminated; prior failures to maintain ac-
curately his log resulted only in warnings. Consequently,
we do not believe that Mr. Peters has met his burden
of identifying similarly situated individuals who were
treated more favorably than he was.
10

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18 No. 00-4026
10 (...continued)
log and writing comments on the board about her, but I don’t
recall exactly whether this had anything to do with changing
her log entries.” Id. Keith further testified that he requested
Mark Baughman, director of the Loss Prevention department, to
look into the matter, but that he did not recall what the out-
come of Baughman’s investigation had been. See id. at 68. Mr.
Peters does not point to any other place in the record that
confirmed that Bosch had “falsified” Carlson’s logs or that
Bosch had not been disciplined for such activity. Therefore,
there is no competent testimony or other admissible evidence
that a “falsification” occurred or that Bosch had not been dis-
ciplined for his actions, and it is not the responsibility of this
court to ferret through the record for support for Mr. Peters’
arguments. See Colburn v. Trs. of Ind. Univ., 973 F.2d 581, 593
(7th Cir. 1992) (stating that parties “cannot leave it to this court
to scour the record in search of factual or legal support for
this claim”).
Mr. Peters also points to an alleged falsification by LPO Kelly
Prosser. According to Mr. Peters, Prosser was on a lengthy
personal telephone call, but her log reflected that she was
in the lobby. Furthermore, although Mr. Peters brought this
to Baughman’s attention, no disciplinary action was taken
against Prosser. To support this allegation, Mr. Peters cites his
additional statement of facts to the district court, R.78, which in
turn cites various forms of his own testimony and a letter writ-
ten by his counsel. Although Mr. Peters may believe that Prosser
was not disciplined, he does not establish by affidavit or testi-
mony that he would have been a party to the discipline of
Prosser, nor does he cite to any other competent testimony
that Prosser was not disciplined about the incident, a require-
ment for defeating Renaissance’s motion for summary judg-
ment. See Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999)
(“In opposition to the defendants’ motions for summary judg-
ment, Stagman cannot rely upon statements in Morgan’s affi-
(continued...)

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No. 00-4026 19
10 (...continued)
davit that fail to meet the requirements set forth in Federal
Rule of Civil Procedure 56(e). Specifically, Rule 56(e) states
that ‘[s]upporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.’ Thus,
statements outside the affiant’s personal knowledge or state-
ments that are the result of speculation or conjecture or merely
conclusory do not meet this requirement.”).
Mr. Peters also identifies an incident that allegedly occurred on
February 10, 1998, nearly three months after Mr. Peters was
terminated. According to the affidavit of LPO Levi Reed, Reed
observed another LPO, Greg Radke, drinking an “unknown
beverage” in the cafeteria at 7:25 a.m.; Radke’s log, however,
stated that he was inspecting floors from 7:02 to 8:00 a.m. See
R.76, Ex.F, Ex.A at 1, 4. Radke’s log does appear to report
something about touring floors; the copy of that log in the
record is, in large part, unreadable. See id., Ex.A at 4. However,
this allegation concerning Radke is similar to that concern-
ing Prosser. Neither Mr. Peters nor Reed states in his affidavit
that they would have been privy to discussions with Radke
concerning the inaccuracy in his log. Furthermore, Mr. Peters
does not establish through competent evidence that Radke was
not counselled or disciplined about failing to document his
activities fully on his activity log.
Finally, Mr. Peters points to an incident involving LPO Milt
Stroner in which Stroner’s log apparently stated that he was
on rounds when he actually was in the Loss Prevention office
eating his meal; Stroner was not disciplined for this action.
Mr. Peters’ support for this assertion is his affidavit, R.76, Ex.C,
¶ 7; Exhibit “O” to that affidavit; and General Manager Anthony
Stewart-Moore’s deposition, R.70, Vol. VII, Ex.29 at 70. Although
Mr. Peters may competently testify to what he observed and
(continued...)

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20 No. 00-4026
10 (...continued)
what he observed the log to report, he has not averred in his
deposition that he is competent to testify concerning any disci-
pline or counseling that Stroner would have received for this
discrepancy. Exhibit “O”, which concerns a customer’s com-
plaint, does not speak to the issue of Stroner’s discipline; further-
more, Mr. Peters admitted in the district court that it was
inadmissible. See R.93 at 8. Finally, Stewart-Moore’s deposi-
tion concerns only Mr. Peters raising the issue of Stroner with
Stewart-Moore; it does not speak to any discipline that followed
from the incident. Consequently, Mr. Peters did not present
admissible evidence that established that Stroner had not
been disciplined for his actions.
Finally, Mr. Peters takes issue with the district court’s
determination that he did not establish pretext. Specifi-
cally, he maintains that the district court failed to scruti-
nize sufficiently Renaissance’s rationale for terminating
his employment, as instructed by the Supreme Court in
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
Reeves and cases from this circuit interpreting Reeves
have reiterated the proposition that a district court may
look behind an employee’s performance or disciplinary
record to determine if they represent the employer’s hon-
est assessment of the employee’s conduct. See Reeves, 530
U.S. at 144-47; Gordon v. United Airlines, Inc., 246 F.3d 878,
893 (7th Cir. 2001). In other words, a court does not have
to “take an employer at its word”; if “good reason and
common sense” belie the employer’s assessment, then
pretext may have been shown. Gordon, 246 F.3d at 889.
However, the burden of demonstrating pretext is on the
plaintiff who must show that “the employer’s proffered
reasons are factually baseless, were not the actual motiva-

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No. 00-4026 21
11 Relying on the affidavit of Jamie Ware, Mr. Peters argues that
a statement allegedly made by Baughman in August 1996 sug-
gests that Baughman was looking for a reason to terminate
Mr. Peters. Specifically, at that time, the Loss Prevention depart-
ment recently had acquired a hidden camera. According to
Ware’s affidavit, Baughman stated, “we can set up Chris Peters
and get him Peters out of here.” R.76, Ex.E at 7. Putting
aside Renaissance’s argument that the affidavit should be
stricken because it contains information and allegations that
should have been revealed during the course of discovery, see
R.89 at 3-4; Appellee’s Br. at 17-18; Harris v. Owens-Corning
Fibreglass Corp., 102 F.3d 1429, 1433 (7th Cir. 1996) (refusing
to require district court to consider affidavit submitted nine
months after the discovery deadline had passed), we believe
that the alleged statement in August 1996 simply is not relevant
to Mr. Peters’ termination in November 1997 for several rea-
sons. First, there is no temporal proximity between the remark
and the termination. See Conley v. Vill. of Bedford Park, 215 F.3d
703, 711 (holding that allegedly discriminatory statements
made two years prior to failure to promote were “too distant
temporally to provide support” for that claim). Second, the
decision to terminate Mr. Peters was made by Keith and Stewart-
(continued...)
tion for the discharge in question, or were insufficient
to motivate the discharge.” Id. at 888-89. Mr. Peters has
not met this burden. First, Renaissance’s proffered reason
is not factually baseless. Renaissance caught Mr. Peters
and Williamson on video rummaging through the NSO
for 51 minutes; Mr. Peters’ activity log made no mention
of his activities—indeed it specifically stated that he was
elsewhere during this time period. Second, Mr. Peters
has not cast doubt that the events of November 12 were
not the “actual motivation” for his discharge. Mr. Peters
attempts to show that management harbored ill will toward
him 11 and that other employees were treated more leni-

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22 No. 00-4026
11 (...continued)
Moore. See R.69, ¶ 292; Mateu-Anderagg v. Sch. Dist. of White-
fish Bay, No. 01-3674, 2002 WL 1962222, at *6 (7th Cir. Aug. 26,
2002) (Ripple, concurring) (“Simply put, when an individual
plays no role in an adverse employment action, his discrimina-
tory animus generally proves irrelevant concerning the mo-
tivation behind the employer’s employment decisions.”). Finally,
the remark may demonstrate hostility between Baughman and
Mr. Peters; however “all dislike is not based on race.” Pilditch v.
Bd. of Educ. of Chi., 3 F.3d 1113, 1119 (7th Cir. 1993). Baughman’s
alleged remark is not focused on Mr. Peters’ race and, Mr. Peters’
“[m]ere subjective belief[] . . . —without the backing of hard
evidence—cannot prove that an action was inspired by improper
motivations.” Id.
ently than he with respect to similar violations of the rules.
However, there is no evidence that management tried to
bait or trap Mr. Peters into entering the NSO or falsify-
ing his activity log. And, as demonstrated above, there
were no employees who engaged in actions similar to Mr.
Peters yet were not terminated. Indeed, the fact that Wil-
liamson was terminated at the same time strongly sug-
gests that the activity of the two LPOs in the NSO moti-
vated the terminations.
Finally, Mr. Peters cannot establish that his actions in
the NSO, combined with the falsification of his log, were
not sufficient to motivate the discharge. LPO Williams,
a Caucasian, was terminated merely for being in the NSO
and using the equipment without authorization; not only
did Mr. Peters engage in the same activity, he compounded
his violations by failing to report his whereabouts in
his activity log. Consequently, we do not believe that Mr.
Peters has met his burden of showing pretext.

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No. 00-4026 23
12 Mr. Peters’ charge of retaliation alleges that he was subjected
to retaliation in three ways: he was denied his choice of days
off; Renaissance management did nothing to stem the tide
of a rumor that Mr. Peters had been seen kissing a Caucasian
employee; and he was terminated. In his opposition to Renais-
sance’s motion for summary judgment, Mr. Peters’ arguments
were limited to his discharge. See R.75 at 10-11. Mr. Peters
does not contest this characterization of his claims in his reply
brief. Because Mr. Peters’ arguments to the district court were
limited to his allegedly retaliatory discharge, we similarly lim-
it our discussion in this appeal.
C. Retaliation
Mr. Peters next maintains that the district court erred
in granting summary judgment to Renaissance on his
retaliation claim. 12 He believes the district court erred in
concluding that his retaliation claim was outside the scope
of his original charge of discrimination and that he failed
to establish the elements of his retaliation claim. We con-
sider Mr. Peters’ arguments below.
As noted above, the district court held that Mr. Peters’
retaliation claim was outside the scope of his original
charge of discrimination. Because Mr. Peters’ retaliation
claim was not part of this charge, and because the orig-
inal charge was the basis for his proceeding in court, the
district court determined that Mr. Peters should not be
allowed to proceed on his retaliation claim.
Mr. Peters maintains that the district court took too
narrow of a view of his original charge. Alternatively, he
urges that the district court should have viewed his second
charge of discrimination as curing any procedural defect.
“Generally a plaintiff may not bring claims under Title VII
that were not originally brought among the charges to the

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24 No. 00-4026
EEOC.” Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th
Cir. 1995). This rule both “afford[s] an opportunity for the
EEOC to settle the dispute between the employee and
employer and put[s] the employer on notice of the charge
against it.” Id. at 148. Nevertheless, this court has allowed
plaintiffs to proceed on claims not explicitly set forth in
a charge of discrimination if the claim is “ ‘like or reason-
ably related’ to the EEOC charges,” and the claim in the
complaint “reasonably [could] be expected to grow out of
an EEOC investigation of the charge[].” Id. (citations
omitted). For purposes of this standard, “[t]he claims are
not alike or reasonably related unless there is a factual
relationship between them. This means that the EEOC
charge and the complaint must, at minimum, describe the
same conduct and implicate the same individuals.” Id. (inter-
nal quotation marks and citations omitted).
In his first charge of discrimination, Mr. Peters alleged
only the following:
I. I began my employment with the above named
Respondent in or about March 1996 as a Loss Preven-
tion Officer. On November 17, 1997, I was discharged.
II. Respondent’s reason for my discharge was “falsifi-
cation of documents.”
III. I believe I was discriminated against because of
my race and sex (Black male) in violation of Title VII of
the Civil Rights Act of 1964 . . . in that Respondent
discharged me whereas White males and White fe-
males are not discharged for falsifying records.
R.70, Vol. III, Ex.25, Ex.3. We do not believe that Mr. Peters’
retaliation claim is like or reasonably related to this dis-
crimination charge. Critical to a prima facie case of retalia-
tion is that the plaintiff engaged in protected activity,
such as the filing of a charge of discrimination or other

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No. 00-4026 25
complaint of discriminatory activity. See Stone v. City of
Indianapolis Pub. Util., 281 F.3d 640, 642 (7th Cir. 2002),
petition for cert. filed, 71 U.S.L.W. 3093 (U.S. June 28, 2002)
(No. 02-16). However, the charge makes no mention of a
complaint of discrimination, to whom the complaint was
made or what adverse action allegedly resulted from the
complaint. Furthermore, although given the option to
check the box on the charge form indicating retaliation, Mr.
Peters did not do so. Keeping in mind that one of the
purposes of the charge is to alert the employer to the
offending behavior, we believe that Mr. Peters’ failure to
mention any type of protected activity and his failure to
identify retaliation as a basis for his charge preclude him
from relying on the original charge of discrimination as
a basis for his retaliation claim.
The question then becomes whether the district court
should have evaluated Mr. Peters’ retaliation claims in
relation to the second charge of discrimination. Renaissance
argues that any claims based upon this later charge are
procedurally barred. Renaissance points to the fact that
the right-to-sue letter for the second charge issued on
June 30, 1998. However, Mr. Peters did not add a claim
of retaliation to his complaint until March 2000, when
he filed his second amended complaint. Because Mr.
Peters did not act on his right-to-sue letter within 90 days
after receipt, Renaissance continues, Mr. Peters’ claim of
retaliation is time-barred. See 42 U.S.C. § 2000e-5(f)(1).
Mr. Peters acknowledges that his retaliation claim was
not presented in a complaint before the district court
until almost two years after he received his right-to-sue
letter on that charge. However, Mr. Peters argues that
our decision in Perkins v. Silverstein, 939 F.2d 463, 470 (7th
Cir. 1991), prevents us from imposing a procedural bar in
these circumstances. We respectfully disagree. In Perkins,

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26 No. 00-4026
13 It appears from Mr. Peters’ second amended complaint that
his cause of action for retaliation is based on both Title VII and
§ 1981. Section 1981 claims are not subject to the same charge-
filing requirements as Title VII claims, see Jenkins v. Blue Cross
Mut. Hosp. Ins., Inc., 538 F.2d 164 (1976), and the statute of
limitations for § 1981 actions is not tolled while related Title VII
claims are pending with the EEOC, see Johnson v. Ry. Ex-
press Agency, Inc., 421 U.S. 454 (1975). Consequently, Mr. Peters’
§ 1981 retaliation claim must have been brought within two
years of the alleged retaliation. See supra Part A. Mr. Peters did
not meet this deadline. Renaissance terminated Mr. Peters’
employment in November 1997; however, Mr. Peters did not
seek to add a retaliation claim to his complaint until March 2000,
(continued...)
the plaintiff had filed a charge of discrimination and,
before a right-to-sue letter issued on that charge, brought
suit. This court held that, although facially deficient and
subject to dismissal prior to the issuance of the right-to-sue
letter, once the letter issued, that defect was cured. See id.
at 471. In this case, however, Mr. Peters did not “jump
the gun” and file his retaliation action prior to receiving
his right-to-sue letter. By contrast, when the EEOC issued
Mr. Peters a right-to-sue letter on his retaliation charge,
his complaint did not contain any allegations of retaliation.
Far from “jumping the gun” and filing before he had his
right-to-sue letter in hand, Mr. Peters failed to act on his
right-to-sue letter until almost two years after it was issued
by the EEOC, well outside the statutory 90-day period.
Consequently, because Mr. Peters did not proceed in a
timely manner on his second right-to-sue letter, his sec-
ond charge of retaliation cannot provide a basis for the
retaliation claim in his complaint. We, therefore, find
no error in the district court’s dismissal of Mr. Peters’
retaliation claim. 13

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No. 00-4026 27
13 (...continued)
well outside the two-year statute of limitations. Consequently,
Mr. Peters’ § 1981 retaliation claim is time-barred.
Because we dispose of Mr. Peters’ retaliation claims on these
procedural bases, we have no occasion to address the merits of
those claims.
D. Hostile Work Environment
Mr. Peters maintains that the district court erred in
granting summary judgment on his hostile work environ-
ment claim. Mr. Peters contends that the district court
erred in failing to consider events that took place more
than 300 days prior to his filing his charge of discrimina-
tion. Mr. Peters also believes that the district court erred
in holding that his charges of discrimination did not
fairly encompass his hostile work environment claim.
Finally, Mr. Peters believes that the district court erred
on the merits of his claim: The events he set forth show
a severe and pervasive pattern of harassment on the basis
of his race.
We see no need to parse through Mr. Peters’ procedural
arguments because, even if there were no procedural
hurdles to prevent us from considering this claim, Mr.
Peters cannot, as a matter of law, establish a hostile work
environment. “In order to survive summary judgment on
a hostile work environment claim, a plaintiff must pre-
sent evidence that would establish that the allegedly
hostile conduct was so severe or pervasive as to create
an abusive working environment in violation of Title VII.”
Russell v. Bd. of Trs. of the Univ. of Ill. at Chi., 243 F.3d
336, 342-43 (7th Cir. 2001). In determining whether the
conduct is sufficiently severe or pervasive to be action-
able, a court will look at all of the circumstances, includ-

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28 No. 00-4026
14 The last comment, of course, is highly offensive; however,
this comment was made only once, it was made by a co-worker
as opposed to a supervisor, see Rodgers v. Western-Southern Life
Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (“[A] supervisor’s use
of the term impacts the work environment far more severely
than use by co-equals.”), and management suspended the em-
ployee involved.
ing “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliat-
ing, or a mere offensive utterance; and whether it unrea-
sonably interferes with an employee’s work performance.”
Id. at 343 (internal quotation marks and citations omitted).
Evaluating Mr. Peters’ incidents against this standard,
a reasonable jury could not conclude that the events were
sufficiently severe or pervasive to constitute a hostile work
environment. First, many of the actions that Mr. Peters
identifies were not directed at him: the comments of Jeff
Simons, an LPO supervisor, “referr[ing] to black music
as ‘wicka wicka woo music,’ ” R.69, ¶ 97; a bartender’s
request to investigate an African-American guest who was
allegedly stealing coins from a fountain; other African-
American guests being denied additional ice and cups for
a party; and one incident when Stroner used the word
“nigger” in Mr. Peters’ presence. As “second-hand” harass-
ment, the impact of these incidents are “obviously not
as great as the impact of harassment directed at the plain-
tiff.” Russell, 243 F.3d at 343 (internal quotation marks
and citations omitted). 14
Indeed, Mr. Peters points only to three items that
were directed towards or involved him: 1) Simons asked
Stroner, a Caucasian LPO, to carry money out of the foun-
tain when Mr. Peters and Kuehnel also were present and
able to carry the money; 2) Keith, the human resources
director, failed to say hello to Mr. Peters or Kuehnel; and

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No. 00-4026 29
3) when Renaissance held diversity training for its employ-
ees, interracial strife was revealed. These events, even in
conjunction with the isolated, indirect incidents noted
above, are not so severe or pervasive to be considered
“abusive.” Offensive and insensitive conduct was infre-
quent—Mr. Peters points only to six incidents in the year
and a half he was employed by Renaissance. With the
exception of the one comment by Stroner, which was not
directed at Mr. Peters, the conduct complained of was only
mildly offensive. Mr. Peters simply has not presented
actions or comments, which by virtue of their frequency
or severity, rise to the level of a Title VII violation. Cf.
Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1046-47 (7th Cir.
2002) (reversing summary judgment for defendant on hos-
tile work environment claim where plaintiff was sub-
jected to direct and highly offensive racial epithets by both
coworkers and supervisors, where coworkers openly ad-
vocated the Klu Klux Klan and “White Power,” and where
there was racially offensive graffiti on the bathroom walls).
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
A FFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-20-02

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