Maman D. Bio v. Federal Express Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2849
M AMAN D. B IO ,
Plaintiff-Appellant,
v.
F EDERAL E XPRESS C ORPORATION ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:03-cv-010-LJM-WTL—Larry J. McKinney, Chief Judge.
____________
A RGUED J ANUARY 12, 2005—D ECIDED S EPTEMBER 16, 2005
____________
Before F LAUM , Chief Judge, and E ASTERBROOK and W OOD ,
Circuit Judges.
W OOD , Circuit Judge. Maman D. Bio sued his former
employer, Federal Express Corporation (FedEx), under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq., and 42 U.S.C. § 1981, claiming that it took disciplinary
action against him and terminated his employment for
racially discriminatory reasons. The district court granted
FedEx’s motion for summary judgment, finding that Bio
had failed to submit evidence showing that a similarly
situated employee received more favorable treatment. We
affirm.

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2 No. 04-2849
I
Bio began working for FedEx in 1994 as a Material
Handler at FedEx’s Hub facility in Indianapolis, Indiana.
Around November 1996, he was promoted to the position of
Engineering Specialist in the Engineering Department,
where he was responsible for preparing and monitoring
long-range operational plans, planning for and assisting
with the implementation of required changes in operations,
and providing engineering support to the operating and
corporate departments of the Indianapolis Hub.
FedEx has a Performance Improvement Policy that guides
its supervisors in addressing employees’ performance
problems. The “tools” (as the Policy describes them) include
verbal counseling, written counseling, and performance
reminders. When evaluating a performance issue, a super-
visor may take an employee’s past performance into account
to determine which tool is appropriate. The Policy describes
a performance reminder as “a written disciplinary notifica-
tion that is normally warranted when: there is a severe
performance problem or the same or similar performance
problem has occurred on at least [two] or more occasions
within the last 12 months.” It provides that an employee
can be terminated if she receives three “performance
reminders” or disciplinary notifications within a
twelve-month period. Verbal counseling and written
counseling do not count toward the three disciplinary
notifications required before termination. FedEx also has
an Acceptable Conduct Policy, which states that employees
can be disciplined or discharged for misconduct such as
insubordination, refusal to follow instructions, or not
performing work in a timely manner without valid reason.
Bio received copies of both policies.
Bio’s employment history was not problem-free. Over
time, he received oral and written counseling on numerous
occasions about difficulties he had in performing his duties

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No. 04-2849 3
as an Engineering Specialist. In September 1999, Bio was
counseled about erroneous volume entries, calculation
errors, failure to meet deadlines, and failure to communi-
cate with internal customers. He was counseled in writing
on November 11, 1999, for failing to complete a volume
projections assignment on time and for failing to give timely
notice that he was unable to meet the deadline. In Decem-
ber 2000 and January 2001, Bio was counseled about
deficiencies in two operational plans and a project memo he
published. None of these incidents resulted in the issuance
of a performance reminder.
Bio received his first performance reminder on March 16,
2001, for poor quality of work related to a plan that he
published. At first he contested the performance reminder,
but later he withdrew his complaint. On May 14, 2001, Bio
received an annual performance evaluation stating that he
had problems with prioritizing and completing tasks and
with following through on assignments without prompting.
On August 29, Bio received his second performance re-
minder, this time for failing to complete an assignment
from the previous night. At the beginning of his shift on
August 28, Bio’s supervisors asked him to revise the volume
projections of the September 2001 Monthly Operating Plan.
He was instructed to post the revised file on the facility’s
computer network and then notify the Operations Control
Room that he had completed this task before the end of his
shift. Bio’s supervisor, Robin Damm, testified that she went
to Bio’s cubicle at approximately 4:30 a.m. and saw that he
had cleaned up his work area and left for the night. She
then looked for Bio’s revisions on the computer network but
did not find the updated files that Bio was supposed to
complete.
Bio tells a different story. He claims that the September
2001 Plan was originally prepared by another Engineering
Specialist, Ken Scoda, and that his assignment on the night
of August 28 was to help Scoda by correcting the errors in

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4 No. 04-2849
the file. While Bio does not contest that he was required to
post the updated file on the network and to notify the
Control Room afterwards, neither of which he did, he
maintains that he completed the assignment and left a
voicemail message to that effect with the Control Room
before he left work that night.
The next night, Damm told Bio that she was unable to
find the updated volume reports and asked why he had not
completed his assignment. Bio responded that he had given
her a printed copy of the updated file the night before and
that he had left a voicemail message as well as a hard copy
with the Control Room. According to FedEx, neither Damm
nor anyone else had seen these alleged updates, either on
the network or in printed form. After reviewing Bio’s
employment file and checking with her supervisor, Joseph
Stephens, as well as a Human Resources representative,
Damm issued the August 29 performance reminder for his
failure to complete the assignment. Because Bio had failed
to show improvement over the course of his employment,
Damm also gave him a “Decision Day” in accordance with
FedEx’s policies. A Decision Day is a day off granted to an
employee so that he can determine whether he desires to
remain employed at the company. If the employee decides
to continue employment, he is required to prepare a
Personal Performance Agreement demonstrating his
commitment to improve his performance. Damm warned
Bio that FedEx would consider a failure on his part to
develop and produce a Personal Performance Agreement to
be a violation of the Acceptable Conduct Policy and a
voluntary resignation of employment.
When Bio returned to work the next evening, he told
Damm that he wanted to remain employed at FedEx but
that he refused to prepare a Personal Performance Agree-
ment because he believed that the August 29 performance
reminder was unwarranted. Later that night, Damm issued
a Warning Letter to Bio for failing to prepare the required

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No. 04-2849 5
Personal Performance Agreement. FedEx fired Bio on
September 5, 2001, because he had received three disciplin-
ary notifications within a twelve-month period: the two
performance reminders on March 16, 2001, and August 29,
2001, and the Warning Letter on August 31, 2001.
Four days later, Bio filed an internal complaint stating
his disagreement with the last two disciplinary actions
taken against him, claiming that he had been treated
unfairly. Notably, he did not mention racial discrimination
in this complaint. On June 3, 2002, Bio filed charges of
racial discrimination against FedEx with the Equal Em-
ployment Opportunity Commission (EEOC) and the Indiana
Civil Rights Commission. After he received his Notice of
Right to Sue from the EEOC, he filed this action in district
court on January 3, 2003, complaining about both the
disciplinary actions and the firing.
At the end of discovery, FedEx moved for summary
judgment, arguing that Bio had failed to identify a similarly
situated white employee who received more favorable
treatment and that Bio’s performance did not meet its
legitimate expectations. It also contended that it had
legitimate reasons for disciplining and terminating Bio. In
opposition to FedEx’s motion, Bio argued that he had
established a prima facie case and that there was a suffi-
cient dispute of material fact to place the issue of pretext
before the jury. The district court granted summary
judgment in favor of FedEx on the ground that Bio had not
identified a similarly situated employee who was treated
more favorably. Bio now appeals.
II
We review a district court’s grant of summary judgment
de novo, construing all facts and inferences in the light most
favorable to the party opposing the motion. See Brummett
v. Sinclair Broad. Group, Inc., 414 F.3d 686, 692 (7th Cir.

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6 No. 04-2849
2005). We will affirm if the summary judgment record
shows that “there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law.” F ED . R. C IV . P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). A court must grant a motion
for summary judgment against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial. See Celotex, 477 U.S. at
322.
Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, condi-
tions or privileges of employment, because of such individ-
ual’s race.” 42 U.S.C. § 2000e-2(a)(1). Section 1981 provides
that “[a]ll persons within the jurisdiction of the United
States shall have the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens.” 42 U.S.C. §
1981. To prevail on his race discrimination claim under
Title VII or § 1981, Bio must either show direct evidence of
discriminatory motive or intent or rely on the indirect
burden-shifting method outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Gonzales v.
Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir.
1998). Lacking direct evidence of discrimination, Bio has
elected to proceed under the indirect method.
To establish a prima facie case of discrimination under
this approach, a plaintiff must present evidence that, if
believed by the trier of fact, would show: (1) he was a
member of a protected class; (2) his performance met his
employer’s legitimate expectations; (3) he suffered an
adverse employment action; and (4) he was treated less
favorably than similarly situated employees who are in a
different class. Brummett, 414 F.3d at 692. If a plaintiff
meets this burden, the defendant has the opportunity to

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No. 04-2849 7
articulate a legitimate nondiscriminatory reason for its
action; if it does so, the burden shifts back to the plaintiff to
show that this reason is pretextual. Id. The failure to
establish any one of the initial four elements defeats a
discrimination claim.
Bio, who is African American, is a member of a protected
class. He bases his discrimination claim on three adverse
employment actions taken against him: the August 29
performance reminder, the August 31 Warning Letter, and
the September 5 discharge. Because the district court found
that Bio could not point to a similarly situated non-African
American employee who was more favorably treated, we
turn first to this inquiry.
A similarly situated employee is one who is “directly
comparable to [the plaintiff] in all material respects.”
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th
Cir. 2002). In evaluating whether two employees are
directly comparable, the court must look at all relevant
factors, including whether the employees “(i) held the same
job description, (ii) were subject to the same standards, (iii)
were subordinate to the same supervisor, and (iv) had
comparable experience, education, and other qualifications
—provided the employer considered these latter factors in
making the personnel decision.” Ajayi v. Aramark Bus.
Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003).
Bio failed to identify a similarly situated employee with
respect to the August 31 Warning Letter. Bio received this
disciplinary letter for insubordination and not merely for
poor quality of work: he refused to comply with FedEx’s
requirement that he submit a Personal Performance
Agreement as a condition of continuing his employment
with the company. It is no sign of racial discrimination on
FedEx’s part if it decides to request such a document from
an employee who fails to show improvement over the course
of his employment. Moreover, Bio does not dispute that he

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8 No. 04-2849
was counseled on numerous occasions about his failure to
complete assignments on time and inaccuracies in his work.
Bio has not identified another employee who was also
required to prepare a Personal Performance Agreement to
remain on the job, flatly refused to do so, and evaded
disciplinary action. Thus, he cannot prevail on his claim
with respect to this disciplinary action. See Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).
Putting the August 31 letter to one side, Bio argues that
Ken Scoda, a white Engineering Specialist at the same
facility, is the similarly situated employee whose experi-
ences at FedEx should be compared to Bio’s. He contends
that Scoda received more favorable treatment because
FedEx did not issue any performance reminders against
him from April through August 2001 even though it had
received numerous complaints regarding inaccuracies and
other problems in Scoda’s work. Although both Scoda and
Bio held the same position and reported to the same
supervisor, the record cannot support the conclusion that
they were directly comparable. As the district court pointed
out, there was a considerable gap in experience between the
two men. Bio had been working as an Engineering Special-
ist for over four years when he was disciplined for the
August 28 incident. Scoda, on the other hand, was a novice.
He had been on the job only since December 2000, and the
performance complaints to which Bio alludes occurred
within the first eight months of his employment, while he
was still learning how to perform his duties. This substan-
tial gap in experience precludes a finding that the two were
similarly situated. See Wyninger v. New Venture Gear, Inc.,
361 F.3d 965, 979 (7th Cir. 2004) (identifying work experi-
ence as a relevant consideration); Patterson, 281 F.3d at 680
(same).
Bio argues that the experience gap between the two men
is irrelevant because after six months on the job, Scoda was
held to the same standards as all other Engineering

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No. 04-2849 9
Specialists. He points to a June 22, 2001, e-mail in which
Stephens, in response to Scoda’s continuing deficiencies in
job performance, wrote: “[T]he HONEYMOON IS OVER for
Mr. Scoda,” and instructed Damm to communicate to Scoda
that his repeated errors would no longer be tolerated and to
begin documenting Scoda’s performance lapses. Damm
testified that she interpreted this memo to mean that
Scoda’s training period was over and that he had enough
training to handle his job responsibilities. Bio argues that
these comments are enough to present a genuine dispute as
to whether Scoda and Bio were held to the same standards
and thus, were similarly situated employees.
Bio reads too much into these comments. Even if the end
of Scoda’s training period meant that he would henceforth
be subject to the same standards as a four-year veteran on
the job, Bio still cannot show that Scoda received more
favorable treatment. While it is true that Damm received
complaints regarding Scoda’s performance between June 22
and August 29 and did not issue any performance remind-
ers for these deficiencies, Bio also received numerous
performance complaints against him before he was issued
the first performance reminder. In fact, Scoda received his
first performance reminder on September 11, 2001—three
months after his training period had ended, and nine
months after he started working as an Engineering Special-
ist. Bio, on the other hand, did not receive his first perfor-
mance reminder until March 16, 2001, more than four years
after his promotion to the position, notwithstanding the fact
that his supervisors had received numerous complaints
concerning his job performance during this time. This
evidence tends to indicate that Bio in fact received more
favorable treatment than Scoda, because his deficiencies
were tolerated much longer than Scoda’s.
Along the same lines, Bio cannot show that he was
treated less favorably than Scoda when he was terminated
after receiving three formal disciplinary letters within a

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10 No. 04-2849
twelve-month period. Scoda was likewise terminated in
February 2002 after he received his third performance
reminder. In this regard, Bio and Scoda were treated the
same.
III
Because Bio cannot show that a similarly situated
employee was treated more favorably than he was, he
cannot prevail under either theory of racial discrimination
he has presented. We therefore A FFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-16-05

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