Roberthenry Davis, Sr. v. Time Warner Cable of Southeastern Wisconsin, L.p.

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1423
ROBERTHENRY DAVIS, SR.,
Plaintiff-Appellant,
v.
TIME WARNER CABLE OF
SOUTHEASTERN WISCONSIN, L.P.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08 C 0652—Lynn Adelman, Judge.
ARGUED SEPTEMBER 30, 2010—DECIDED JULY 5, 2011
Before FLAUM, MANION, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Roberthenry Davis, Sr., an
African American salesperson, was fired from Time
Warner Cable of Southeastern Wisconsin (“Time Warner”)
after his white boss concluded that Davis violated
Time Warner’s zero-tolerance Employee Guidelines
by processing a noncommissionable transaction as a
commissionable one. Davis complained about his termi-

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2 No. 10-1423
nation to Time Warner’s human resources department
and was ultimately reinstated after the customer
whose transaction Davis allegedly botched clarified the
type of service he had requested. Shortly after Davis
returned to work, Time Warner made changes to its
compensation scheme that Davis believed adversely
affected his future earnings potential. Believing that
both his termination and the new compensation scheme
were racially or vindictively motivated, Davis sued
Time Warner under 42 U.S.C. § 1981(a) and Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Time Warner and Davis cross-moved for summary judg-
ment. The district court granted Time Warner’s motion
and denied Davis’s. Davis appeals, and we affirm.
I. Background
Davis is a member of Time Warner’s “inside sales
team,” a small group of salespeople that fields telephone
calls from current and prospective subscribers to Time
Warner’s Business Class services. Members of the inside
sales team are required to meet monthly sales quotas
and are paid per-transaction commissions to comple-
ment their modest base salaries, but they are not respon-
sible for soliciting new corporate clients or managing
complex customer accounts. Those duties fall to the
“outside sales team,” a larger group of salespeople
whose members earn higher base salaries. At times rele-
vant to this case, the inside sales team was composed
mostly of African American salespeople, and the
outside sales team was composed mostly, and at times
exclusively, of white salespeople.

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No. 10-1423 3
Though Davis offers a lengthy description of these events in 1
his opening brief, he fails to articulate a ground for relief, such
as a hostile work environment claim, which could directly
redress any injury he may have incurred from them. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002). The
district court recognized that Davis might have been trying to
make stronger use of this evidence by attempting to assert a
hostile work environment claim, see Davis v. Time Warner Cable
of Se. Wis., L.P., No. 08-C-0652, 2010 WL 322748, at *3 (E.D. Wis.
Jan. 20, 2010), but because he has failed to develop such a
claim in his brief, we find it waived, Scruggs v. Garst Seed Co.,
587 F.3d 832, 841 (7th Cir. 2009).
A. Events Prior to Davis’s Termination
In November 2003, Time Warner brought in a new
Director of Business Class Sales, a white man named
Ron Cleboski. Davis contends that Cleboski, who termi-
nated him some three years later, did so because he was
biased against Davis and other African Americans.
Davis highlights as background evidence, see Nat’l1
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002),
various incidents in which Cleboski’s alleged “phobia” of
African Americans manifested itself. These incidents
occurred sporadically over a three-year span and in-
cluded Cleboski displaying “motivational” signs bearing
the tagline “Clebonics,” which Davis perceived as an
offensive amalgam of “Cleboski” and “Ebonics”; com-
menting that an African American’s telephone
demeanor was “too urban”; and telling a different
African American salesperson, Ron Coleman, that he
was “not management material.”

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4 No. 10-1423
Coleman was the longest-serving member of the team and 2
therefore acted as the team “lead,” a role which conferred oc-
casional responsibilities but no formal supervisory authority.
Davis repeatedly asserts that the base salary for inside 3
salespeople was $20,000, but the copy of his 2006 compensation
contract in the record indicates that he was paid a base salary
of $30,000. Either way, there is no dispute that the three
African American inside salespeople consistently earned
significantly more than the base salary.
In early 2005, two women joined the inside sales team.
Victoria Rodgers, who is African American, took to her
job quickly and meshed well with Davis and Coleman,
the lead inside salesperson. Mary Schmitt, who is white,2
had more trouble learning Time Warner’s computer
system, keeping her sales numbers up, and getting
along with her colleagues. Coleman, Rodgers, and Davis,
who consistently exceeded their sales quotas by wide
margins (they regularly earned six figures despite
having base salaries of $20,000 or $30,000 ), felt that3
Schmitt’s lackluster performance was holding the team
back and complained to management about her. Schmitt
in turn blamed her poor performance on the others’
failure to train her properly and lodged her own com-
plaints with management. Coleman testified that the
atmosphere in the inside team’s small workspace was
“tense,” while Schmitt stated in her affidavit that she
sometimes “felt like a lamb in the middle of a wolf
pack.” John Woodrum, a human resources director,
testified that the inside team was “dysfunctional,” and
Rodgers reported that “[t]here was a personality conflict
between all four of us.”

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No. 10-1423 5
The team did not earn the prize because of a shortfall 4
in Schmitt’s sales.
The inside sales team’s interpersonal problems became
fodder for Time Warner’s rumor mill. In early Septem-
ber 2006, Cleboski heard through the grapevine that
some Time Warner employees believed that Coleman,
Rodgers, and Davis were treating Schmitt poorly while
Cleboski looked the other way. Cleboski and Jim Fraser,
who directly managed the inside team, called a meeting
of the team to discuss the rumors. Davis testified that
during that meeting, Cleboski characterized the rumors
as, “I’m being told that . . . I’m allowing my blacks to
get away with murder.” Fraser and Cleboski em-
phasized the importance of teamwork and attempted
to promote a cohesive team atmosphere by offering the
inside sales team a monetary prize if they were able
to work together to achieve a team sales goal. Fraser4
and Cleboski then left the room to encourage the
inside team members to talk through their conflicts. This
attempt failed; Schmitt left the meeting before any-
thing constructive could be accomplished.
Coleman, Rodgers, and Davis jointly sought out
Fraser and Cleboski for further discussion after Schmitt
left. According to Davis, “[w]e basically expressed our
concern with the way that we were being portrayed as
ostracizing Ms. Schmitt, not helping her . . . we voiced
our concern that, you know, from the very beginning
we were singled out as the reason for her failures and
that, you know, we didn’t appreciate that.” Cleboski

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6 No. 10-1423
responded by explaining that the underlying goal of the
meeting was to foster better teamwork; instructing
Coleman, Rodgers, and Davis to be more patient with
Schmitt; and cautioning that he would be forced to
resort to disciplinary action if the problems continued.
During an individual meeting the next day, Coleman
told Cleboski that he believed Cleboski’s handling of the
rumors was “unfair.” Davis also met with Cleboski indi-
vidually at some point within the next few days. He told
Cleboski that he too believed that he, Coleman, and
Rodgers had been treated “unfairly.” Davis also told
Cleboski that he believed the African American inside
salespeople were “being treated less favorably than our
white counterparts.” He gave as examples: “Our white
counterparts were allowed to sell to our accounts. . . . [O]ur
white counterparts were allowed to demean us by
calling us order takers and referencing us as not being
salespeople. Us being blamed for the lack of success for
our lone white counterpart.” Davis told Cleboski that he
blamed Cleboski for the perceived differential treatment.
Davis’s “white counterparts” included Schmitt and
most (or all) of the outside sales team. There was long-
standing hostility between the inside and outside teams,
apparently due to the outside sales team’s resentment
of the large commissions the inside sales team earned
without shouldering the responsibilities of cold-calling.
Despite management’s efforts to defuse the tension—
Davis alleges that the inside team was instructed not
to celebrate its success in front of the outside team, and
that in November or December 2006 management put

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No. 10-1423 7
the issue of “outside representative recognition” on the
agenda for a meeting of the entire sales staff—the teams
occasionally squabbled. In or about September 2006, a
dispute erupted between Rodgers and a white member
of the outside sales team. Coleman brought the dispute
to Cleboski’s attention, which prompted Cleboski to com-
ment to Coleman that “his team of African Americans
kept getting him into trouble.” Davis did not learn of
this comment until several months later.
B. Events Surrounding Davis’s Termination
In late September 2006, after the meetings about the
rumors and Davis’s individual meeting with Cleboski,
Rodgers took a call from a customer who wanted to move
his cable connection from one spot in his building to
another. Rodgers concluded that the customer wanted
a “relocate” rather than a “transfer”—the former is a
noncommissonable service request that gets referred to
a different department, while the latter is a commis-
sionable transaction handled by the inside sales team.
She therefore sent the call to the billing department. For
some reason, the call came back to the inside sales team
and Davis answered the phone. Davis spoke with the
customer, concluded that he wanted a “transfer,” and
proceeded to initiate a new service agreement with a
special promotional rate for the customer. Davis logged
a $25 commission in the process. When the customer’s
manager learned about the sales agreement later that
day or the next day, he called back to inquire about the
necessity of the new agreement. Davis put the manager

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8 No. 10-1423
on speaker phone, and Rodgers and Coleman both ques-
tioned Davis as to whether the customer really needed
a “transfer” and new service agreement. Davis main-
tained that the transaction was a “transfer” and sent
the service agreement off for processing.
The contested service agreement made its way to the
desk of Cheryle Parker, who processed agreements and
arranged for technicians to complete the requested ser-
vices. Parker reviewed the agreement and concluded that
the transaction should have been handled as a
noncommissionable “relocate.” She also questioned the
applicability of the promotional rate Davis gave the
customer. Parker expressed her concerns to management.
Cleboski responded by asking Rodgers and Coleman
about the incident, and they explained that they had
questioned Davis’s characterization of the transaction.
Cleboski then telephoned the customer and concluded
from that discussion that the customer wanted a “relo-
cate” and not a “transfer.” Cleboski also discussed the
incident with at least two other managers, Fraser and
Dan Conrad, his superior and vice president of the Busi-
ness Class service team. The managers agreed that
Davis had violated Time Warner’s Employee Guide-
lines and should accordingly be terminated.
Before he could terminate Davis, Cleboski had to get
approval from a human resources manager, Dionne
Archie. Cleboski relayed his version of events to Archie.
Archie agreed that Davis’s handling of the transaction
violated Time Warner’s Employee Guidelines, which
deem insubordination and “[f]alsification of . . . business-

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No. 10-1423 9
related documents” misconduct for which “employment
may be terminated at any time without a prior warning.”
Cleboski then prepared a termination notice for Davis,
which Archie reviewed and approved. The termination
notice stated that Davis had violated Time Warner’s
insubordination and falsification Employee Guidelines.
It explained, “Based on the deception of a customer sale
to gain a commission after you were instructed not to
do so is grounds for termination.” The termination
notice also included a section entitled “[p]rior disciplinary
action,” even though Davis’s file at worst contained
only short notes and no formal corrective actions.
Parker testified that before Cleboski gave Davis the
notice, she saw Cleboski wave a sheaf of papers and
heard him say excitedly, “I got him now. It’s not the
first time, he’s done it before and I’ve got documenta-
tion.” When Cleboski, accompanied by Fraser, presented
Davis with the notice, Davis disputed the accusations
against him and refused to sign the termination notice.
Security guards escorted Davis from the building. Be-
cause of his departure, he was unable to apply for an
open managerial position he had planned to seek.
C. Events Surrounding Davis’s Reinstatement
About a week after his termination, Davis telephoned
Archie and arranged a meeting to voice concerns about
his termination. After speaking with Davis, Archie
decided further investigation was warranted. Archie in-
terviewed several people about the transaction and termi-
nation, including the customer. (She also investigated

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10 No. 10-1423
Davis’s allegations about Cleboski’s “getting away
with murder” comment.) Archie concluded that the
facts were not as clear-cut as she once thought and that
Davis should be “given the benefit of the doubt since
he has been a stellar performer in the department.” Archie
recommended that Davis be reinstated immediately,
with back pay, but subject to a written warning and
a performance improvement plan. John Woodrum,
Archie’s superior, reviewed her report and continued
the investigation by interviewing some people she
had not, including Cleboski. After he completed his
investigation, Woodrum remained convinced that Davis
had been properly terminated. But after the customer
weighed in a final time with a story supporting Davis’s
position, the vice president of human resources over-
ruled Woodrum and decided it would be best to
reinstate Davis with back pay, including projected com-
missions and some bonuses.
Davis returned to his position on November 2, 2006.
He was greeted by Kevin Mahlberg, a white former
member of the outside sales team who had been
promoted to the managerial position Davis had wanted
to apply for before his termination. Mahlberg gave
Davis a performance improvement plan, which Davis
signed under protest. Davis then went to Mahlberg’s
office, where Cleboski, in a defensive tone, told him
something to the effect of, “Despite what you think or
what you believe, or whatever, you know, there was
nothing personal with your termination.” Cleboski then
escorted Davis around the Business Class workspace
and explained to the inside and outside sales teams that

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No. 10-1423 11
Davis was “back with us after being out on an extended
leave.” Davis said that he was “demotivated” by this
welcome, which was not as warm as another he re-
called. He still managed to meet his sales quotas, how-
ever, notwithstanding the tepid welcome and the division
of his customers among Rodgers, Coleman, and Schmitt.
Sometime shortly after Davis’s return, Time Warner
developed a new compensation plan for the Business
Class sales teams that was to take effect in 2007. (Neither
Davis nor Time Warner has provided us with a copy of
the plan or given any clear indication of when it was
developed, distributed, or put into effect.) According to
Davis, in whose favor we view the record, the new
plan increased the inside team’s sales quotas and shifted
to the outside team some commissionable transactions
that had been previously handled by the inside team.
These changes allegedly reduced the potential commis-
sions available to Davis and the rest of the inside sales
team while raising the potential compensation for the
outside team. Davis was highly dissatisfied with the
plan, the terms of which no one was given the oppor-
tunity to negotiate.
D. Discrimination Complaints &
District Court Proceedings
In February 2007, Davis filed complaints with the
Equal Rights Division of the Wisconsin Department of
Workforce Development and the federal Equal Employ-
ment Opportunity Commission (“EEOC”). He alleged
that Time Warner discriminated against him on the basis

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12 No. 10-1423
of his race and retaliated against him because of his
comments to Cleboski about the rumors. Davis later
filed a second complaint with the EEOC. The EEOC
issued Davis right-to-sue letters in May 2008.
In July 2008, Davis filed suit against Time Warner in
the Eastern District of Wisconsin. He alleged that Time
Warner racially discriminated or retaliated against him
when it fired him and when it changed the compensation
plan upon his return, in violation of 42 U.S.C. §§ 1981 &
2000e, and sought a variety of relief, including punitive
damages, reinstatement of the previous compensation
plan, and managerial training. We assume arguendo
that Davis’s EEOC filings, some of which are absent
from the record, contained his Title VII claims; Time
Warner has not argued otherwise. See Sitar v. Ind. Dep’t
of Transp., 344 F.3d 720, 726 (7th Cir. 2003) (“Generally,
a plaintiff may not bring claims under Title VII that
were not originally included in the charges made to the
EEOC.”).
Davis and Time Warner cross-moved for summary
judgment on Davis’s claims. The district court concluded
that there was no evidence that race was a motivating
factor in Davis’s termination or the changes made to the
compensation plan. The district court was unable
to discern whether Davis was alleging retaliation or
hostile work environment claims. See Davis, 2010 WL
322748, at *3 (“[H]e does not develop coherent argu-
ments in connection with either.”). “For the sake of com-
pleteness,” id., it considered whether he had amassed
adequate evidence to warrant a trial on those claims.

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No. 10-1423 13
The district court concluded that he had not and
granted summary judgment in Time Warner’s favor.
The district court denied Davis’s cross-motion for sum-
mary judgment and his pending motion to strike on
the merits, and denied as moot three other nondisposi-
tive motions.
II. Discussion
We review the district court’s decision on cross-
motions for summary judgment de novo, construing all
facts and drawing all reasonable inferences in favor of
Davis, the party against whom summary judgment was
granted. Gross v. PPG Indus., Inc., 636 F.3d 884, 888 (7th Cir.
2011). Summary judgment is appropriate where the
admissible evidence considered as a whole shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a) & (c).
Title VII of the Civil Rights Act of 1964 prohibits em-
ployers, see 42 U.S.C. § 2000e(b), from discriminating
against their employees based on race, see 42 U.S.C.
§§ 2000e-2(a)(1). Title VII also prohibits retaliation,
or discrimination against an employee “because he has
opposed any practice made an unlawful practice by
this subchapter. . . .” 42 U.S.C. § 2000e-3(a). Section 1981
prohibits racial discrimination and retaliation against
employees when a contractual relationship exists be-
tween the employer and employee. See Thompson v.
Mem. Hosp. of Carbondale, 625 F.3d 394, 402-03 (7th Cir.
2010); Hobbs v. City of Chi., 573 F.3d 454, 460 (7th Cir. 2009).

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14 No. 10-1423
Davis’s reinstatement does not negate the fact that his 5
termination constituted an adverse employment action.
See Phelan v. Cook County, 463 F.3d 773, 780-81 (7th Cir. 2006).
Though the statutes differ in the types of discrimination
they proscribe, “the methods of proof and elements of
the case are essentially identical.” McGowan v. Deere & Co.,
581 F.3d 575, 579 (7th Cir. 2009) (quotation omitted).
Davis contends that Time Warner violated these pro-
visions when it fired him and changed the compensa-
tion plan after reinstating him. He claims that Time
Warner fired him either (or both) because of the com-
plaints he made to Cleboski or his race, and that it
changed its compensation plan for one or both of those
reasons as well. This means Davis presents a total of
four claims: discriminatory firing, retaliatory firing,
discriminatory compensation, and retaliatory compensa-
tion. We address them in turn.
A. Termination Claims
1. Discrimination
Davis alleges that he was terminated not because of his
handling of the transaction but because of his race. To
avoid summary judgment on this claim, Davis, who has
elected to proceed only under the direct method, must
demonstrate a triable issue as to whether discrimination
motivated the adverse employment action of which5
he complains. Nagle v. Vill. of Calumet Park, 554 F.3d

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No. 10-1423 15
1106, 1114 (7th Cir. 2009). Despite his use of the “direct
method,” Davis need not present direct evidence, such
as an admission of discrimination, to survive summary
judgment; he may “establish[ ] a discriminatory motive
on the part of the employer through a longer chain of
inferences.” Van Antwerp v. City of Peoria, Ill., 627 F.3d
295, 298 (7th Cir. 2010). We have also described such
an inferential chain as “a convincing mosaic of circum-
stantial evidence that would allow a jury to infer inten-
tional discrimination by the decisionmaker.” Silverman
v. Bd. of Educ. of City of Chi., 637 F.3d 729, 734 (7th Cir.
2011) (quotation omitted). Whether deemed a chain or
mosaic, the assembled evidence must point “directly to
a discriminatory reason for the employer’s action”
for Davis’s claim to survive summary judgment. Adams
v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003).
We agree with the district court that Davis’s evidence
fails to forge the requisite path. This is not, as Time
Warner seems to believe, because he relies heavily on
“bits and pieces [of evidence] from which an inference
of discriminatory intent might be drawn,” Troupe v. May
Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994); that sort
of evidence is one of the three primary types generally
employed in this sort of case, Silverman, 637 F.3d at 734.
Nor is it because his briefing amounts to little more
than a bombastically worded laundry list of perceived
wrongs. It is because Davis has not demonstrated “a
real link between the bigotry and an adverse employ-
ment action.” Gorence v. Eagle Food Ctrs., Inc., 242 F.3d
759, 762 (7th Cir. 2001).

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16 No. 10-1423
There is some evidence in the record indicating that
Cleboski was at best insensitive and at worst a bigot.
Chief among this are the “Clebonics” signs and his inap-
propriate characterization of the rumors. But while these
occasional incidents demonstrate that Cleboski could be
boorish and tactless, Davis has not shown how, if at all,
they are linked to his termination. See Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007)
(“Isolated comments that are no more than stray
remarks in the workplace are insufficient to establish
that a particular decision was motivated by discrim-
inatory animus.”). Davis theorizes that Cleboski fired
him in an effort to stop the rumors, but he has not pre-
sented any evidence that the rumors continued at the
time of his termination or that Cleboski—or any of the
six other individuals he consulted—was motivated by
anything other than a genuine belief that Davis flouted
Time Warner’s stringent Employee Guidelines. See
Gates v. Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir. 2008).
Davis attempts to get around his lack of proof by point-
ing to Cleboski’s comment to Parker (“I got him now”),
which he claims was not only a “flagrant and slanderous
lie” but also “compelling evidence that . . . Cleboski
had attempted to set-up and frame” him. While we
must infer that Cleboski was referring to Davis when
he used the undefined pronoun “him,” we fail to see
how the statement implicates Davis’s race or demon-
strates any type of set-up. If anything, it shows
the opposite—that Cleboski had suspected Davis of
overstepping the bounds set forth in the Guidelines
but had been unwilling to take disciplinary action until

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No. 10-1423 17
presented with evidence of a transgression. Indeed, Davis
repeatedly emphasizes both the lack of prior disciplinary
action against him and his prowess in earning commis-
sions.
Davis attempts to analogize his case to Humphries v.
CBOCS W., Inc., 474 F.3d 387, 407 (7th Cir. 2007), aff’d, 553
U.S. 442 (2008), wherein we concluded there was
sufficient circumstantial evidence from which a jury
could conclude that plaintiff Humphries’ employer had
set him up. Humphries is distinguishable, however. In
that case, there was some dispute that Humphries had
engaged in the activity for which he was terminated—the
only evidence implicating Humphries was testimony
from the very coworker about whom he had lodged
a discrimination complaint; a different coworker
had observed the manager acting differently toward
Humphries and believed he was “up to something”; the
manager conducted absolutely no investigation before
firing Humphries; and there was no evidence that the
employer fired anyone else for similar missteps. Most
of those factors are absent here. There is no dis-
pute that Davis engaged in the transaction—the issue
was whether he did so properly; Cleboski interviewed
numerous people, including the presumably impartial
customer, a human resources specialist, and his own
superior, to ensure he had an accurate understanding
of the transaction and that termination was an appro-
priate course of action; and there is ample evidence in
the record indicating that Time Warner strictly enforced
its Employee Guidelines and fired at least fifteen people,
seven of whom were white, for similar transgressions
during a two-year period around Davis’s firing.

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18 No. 10-1423
These facts also distinguish this case from Lang v. Ill.
Dep’t of Children & Family Servs., 361 F.3d 416 (7th Cir.
2004), in which an African American employee who
filed a discrimination claim found himself bombarded
by nearly three dozen memoranda nitpicking every
aspect of his work, unprecedented demands that he file
daily reports, and repeated baseless allegations that he
was shirking his duties. Even though Time Warner ulti-
mately changed course on Davis’s termination, there is
no indication that it was “setting him up to fail by en-
forcing department policies against him in an unrea-
sonable manner,” or “holding him to unrealistic stan-
dards.” Id. at 420. Davis’s African American coworkers
questioned his handling of the transaction and testified
that Time Warner had a “zero-tolerance” approach to
violations of its customer service Employee Guidelines,
which provided that a single violation could result in
termination of employment “at any time without a prior
warning.” The standards were clear and there is no evi-
dence that Time Warner interpreted or applied them
differently based on employees’ races.
Davis further claims that he, like Humphries and the
plaintiff in Dash v. N.L.R.B., 793 F.2d 1062, 1069 (9th Cir.
1986), was denied an opportunity to “defend his inno-
cence,” but there is no evidence that Time Warner pur-
posefully turned a deaf ear to him, see Dash, 793 F.2d
at 1069, or failed to investigate the incident al-
together, Humphries, 474 F.3d at 407. Cleboski did not in-
terview Davis during the course of his pre-termination
investigation, but that omission alone does not support
an inference of racial bias or an invidious set-up, cf.

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No. 10-1423 19
Humphries, 474 F.3d at 407 (“This is not to say that merely
pointing to an employer’s shoddy investigatory efforts
is sufficient to establish pretext.”), particularly in the
absence of evidence showing that Cleboski’s investi-
gation was not in compliance with Time Warner’s
standard procedure.
No reasonable jury could conclude that Cleboski set up
or terminated Davis because of his race. We affirm the
district court’s grant of summary judgment on this claim.
2. Retaliation
In the alternative, Davis contends that he was fired in
retaliation for private comments he made to Cleboski.
During a private meeting, Davis accused Cleboski of
being “unfair” and treating his white subordinates more
favorably than his African American ones. Davis argues
that Cleboski was angry about the comments and got
back at him by terminating him on baseless grounds.
Such retaliation is prohibited by both Title VII and
§ 1981. See, e.g., Stephens v. Erickson, 569 F.3d 779, 786
(7th Cir. 2009). Davis seeks to prove that Time Warner
violated either or both of these provisions by way of the
direct method. In the retaliation context, this means that
Davis has to show three things to survive summary
judgment: (1) that he engaged in an activity protected
by one or both of those statutes, (2) that he suffered a
materially adverse employment action, and (3) that the
protected activity is causally related to the adverse em-
ployment action. Jones v. Res-Care, Inc., 613 F.3d 665,
671 (7th Cir. 2010).

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20 No. 10-1423
Time Warner makes only a half-hearted effort to
dispute that Davis’s informal comments to Cleboski are
within the scope of protected activity. That is wise, as
we have held that “an informal complaint may
constitute protected activity for purposes of retaliation
claims.” Casna v. City of Loves Park, 574 F.3d 420, 427 (7th
Cir. 2009). Davis’s complaints to his supervisor here
were much more direct than the query, “Aren’t you being
discriminatory?” that we deemed protected in Casna. See
id. at 426-27. We thus conclude that Davis’s comments
to Cleboski are “protected activity” for the purposes of
Title VII and § 1981. Time Warner does not dispute
that termination from one’s job, even if later overturned,
is a materially adverse employment action. See Phelan,
463 F.3d at 780-81. That leaves us with only one question:
Has Davis produced sufficient evidence from which a
reasonable jury could infer that his complaints to
Cleboski were causally connected to his termination?
As with Davis’s discriminatory termination claim,
we answer that question in the negative. In addition to
rehashing verbatim the arguments we rejected above,
Davis emphasizes that he was fired within days—there
is some discrepancy as to how many, but somewhere
between three and about fourteen—of lodging his com-
plaints. As he correctly observes, “the timing of events
‘is often an important evidentiary ally of the plaintiff.’ ”
Lang, 361 F.3d at 419 (quoting Lalvani v. Cook Cnty., 269
F.3d 785, 790 (7th Cir. 2001)). Indeed, we have recently
reiterated that “[o]ccasionally, . . . an adverse action comes
so close on the heels of a protected act that an inference
of causation is sensible.” Loudermilk v. Best Pallet Co., 636

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No. 10-1423 21
F.3d 312, 315 (7th Cir. 2011). But “ally” does not mean
“panacea.” We have also cautioned that “[s]uspicious
timing may be just that—suspicious,” and underscored
the importance of context in assessing whether an infer-
ence of causality is warranted or not. Id.; see also
Silverman, 637 F.3d at 736 (“Mere temporal proximity is
not enough to establish a genuine issue of material
fact.” (quotation omitted)).
The context here does not justify such an inference.
Davis urges us to treat this case like Loudermilk, where
the plaintiff was fired immediately after handing his
supervisor a written complaint, see 636 F.3d at 314, or
Lang, where the plaintiff’s supervisors inexplicably
found fault with every aspect of his work performance
after he lodged a discrimination complaint, see 361 F.3d
at 420, or Humphries, 474 F.3d at 407, and Dash, 793 F.2d at
1068, where complaining plaintiffs were swiftly dis-
charged without any investigation after allegedly
engaging in minor infractions for which no one was
generally disciplined. These comparisons are apt only if
we close our eyes to the other facts of this case. In
asserting that the proximity of events here similarly
implies causation, Davis completely ignores the elephant
in the room: the questionable transaction in which he
engaged. Uncontroverted evidence in the record shows
that Time Warner regularly dismissed employees of all
races when it had reasonable cause to believe they had
violated its Employee Guidelines. Even though Time
Warner ultimately reversed course in this case, the fact
remains that there was a significant intervening event
separating Davis’s complaints from his discharge. See

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22 No. 10-1423
Hall v. Bodine Elec. Co., 276 F.3d 345, 359 (7th Cir. 2002)
(“[A]n employee’s complaint of harassment does not
immunize [him] from being subsequently disciplined or
terminated for inappropriate workplace behavior.”).
Such an event was absent from the cases on which
Davis relies.
Moreover, although Cleboski was the common denomi-
nator between Davis’s complaints and his termination,
at least three other Time Warner managers—Fraser,
Conrad, and Archie—signed off on the termination after
Cleboski relayed to them the findings of his investigation,
which involved consultations with other employees
who had lodged virtually identical informal complaints.
The mere fact Davis’s complaints closely preceded his
termination is not enough to make this case analogous
to others in which no investigation occurred, or where
the challenged supervisor (or employee about whom
the complaint was made) was the only party involved.
Time may be on Davis’s side, but no reasonable jury
could cross the evidentiary chasm separating Davis’s
protected activity from his termination without more
than he has presented here.
B. Compensation Plan
1. Discrimination
Davis’s next contention is that the new compensation
plan Time Warner implemented sometime around his
return was racially discriminatory, as was Time Warner’s
refusal to allow negotiation of the plan’s terms. He con-

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No. 10-1423 23
tends that Cleboski masterminded the plan, which
shifted some commissionable responsibilities from the
inside sales team to the outside sales team, thereby nega-
tively impacting his potential earnings and those of the
other African Americans on the inside sales team while
increasing the potential earnings of the mostly white
outside sales team. Davis asserts that he and his African
American coworkers “could see that the plan would
severely reduce their possible commissions and they
would lose at least 30% . . . of their future income,” while
Schmitt would be relatively unaffected in light of her
lower sales.
It is not entirely clear from Davis’s rambling appel-
late briefing whether he is asserting a disparate treat-
ment claim, a disparate impact claim, or both. (Both are
cognizable under Title VII. See Lewis v. City of Chi., Ill., 130
S. Ct. 2191, 2197 (2010).) In his summary judgment
brief before the district court, however, Davis unambigu-
ously identified his contention as a “disparate treatment
wage claim.” Dist. Ct. Dkt. 39 at 13. We confine our
analysis accordingly. See, e.g., Brown v. Auto. Components
Holdings, LLC, 622 F.3d 685, 691 (7th Cir. 2010).
As with his termination-related disparate treatment
claim, Davis may proceed past the summary judgment
stage only if he presents evidence from which a rational
trier of fact could reasonably infer that Time Warner
reduced his compensation (undoubtedly a materially
adverse action, see Herrneiter v. Chi. Hous. Auth., 315
F.3d 742, 744 (7th Cir. 2002)) and denied him the oppor-
tunity to negotiate the terms of the plan because of

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24 No. 10-1423
his race. In addition to the evidence of racial animus
associated with his termination, Davis points us to
Cleboski’s involvement with the plan and Time Warner’s
reliance on unspecified “marketing and budgetary con-
cerns” as the reason for the changes as evidence of
Time Warner’s discriminatory intent.
We fail to see how a rational jury could infer from
this evidence that the compensation plan was enacted
for discriminatory reasons. The plan applied to all
current and future members of the inside sales team,
including Schmitt, who is white. Davis dismisses this
as “collateral damage,” but it would strain credulity
to conclude that Time Warner consciously enacted a
discriminatory plan—either to halt rumors or simply
to disfavor African Americans—only to apply it even-
handedly to all current and future members of the
inside sales team. (This is where a developed disparate
impact claim might have been able to help Davis.) More-
over, Coleman testified that inside salespeople had
the opportunity to switch to the outside sales team—
which, according to Davis, received huge pay increases
as a result of the compensation plan. (Rodgers and
Schmitt both eventually made the switch.) It would be
wholly inconsistent to intentionally discriminate while
simultaneously giving the alleged targets of the discrim-
ination an unfettered option to remove themselves
from the situation.
We reach the same conclusion with respect to Time
Warner’s refusal to permit negotiations as to the terms
of the plan, inasmuch as that may be considered a materi-

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No. 10-1423 25
Davis also contends that Time Warner’s lack of “glee” upon 6
his reinstatement and Cleboski’s extension of a deadline so
that Rodgers rather than he would be victorious in a sales
contest likewise constitute materially adverse employment
actions. Davis failed to make these contentions below, how-
ever, so they are waived here. See Ellis v. CCA of Tenn. LLC, ___
(continued...)
ally adverse employment action. Davis has presented
testimony indicating that negotiations were allowed in
2004, 2005, and 2006. (Time Warner disputes this.)
This evidence does little for his claim of racial discrim-
ination: the composition of the inside sales team had
been constant since early 2005, when negotiations were
ostensibly permitted. And, like the changes to the com-
pensation plan, the negotiations ban was equally ap-
plicable to all members of the inside sales team.
A rational jury could not conclude from the evidence
in the record that the compensation plan or its take-it-or-
leave-it nature was motivated by discriminatory intent.
We affirm the grant of summary judgment on these issues.
2. Retaliation
Davis’s final contention is that Time Warner adjusted
its compensation plan and otherwise adversely changed
his working conditions to retaliate against him after he
complained to Cleboski and the EEOC about workplace
discrimination. As to the latter, he points mainly to
the “hostile” performance improvement plan he was
forced to sign.6

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26 No. 10-1423
(...continued) 6
F.3d ___, No. 10-2768, 2011 WL 2247384, at *7 (7th Cir. June 9,
2011).
Davis once more relies exclusively on the direct
method. As we noted earlier, that means that Davis can
overcome summary judgment on a retaliation claim
only by making a tripartite showing: (1) that he engaged
in statutorily protected activity, (2) that he suffered a
materially adverse employment action, and (3) that the
protected activity is causally related to the adverse em-
ployment action. Jones, 613 F.3d at 671.
There is no real dispute that Davis’s EEOC filings,
see Silverman, 637 F.3d at 740, and informal comments
to Cleboski constitute protected activity, see Casna, 574
F.3d at 427. It is similarly uncontested that a reduction
in compensation is a materially adverse employment
action. See Herrnreiter, 315 F.3d at 744. Time Warner
contends that the performance improvement plan does
not amount to an adverse employment action, and we
agree. “[N]ot everything that makes an employee
unhappy is an actionable adverse action.” Oest v. Ill.
Dep’t of Corr., 240 F.3d 605, 613 (7th Cir. 2001). Perform-
ance improvement plans, particularly minimally onerous
ones like that here, are not, without more, adverse em-
ployment actions. See Cole v. Illinois, 562 F.3d 812, 816-17
(7th Cir. 2009); Oest, 240 F.3d at 613 (“[J]ob-related
criticism can prompt an employee to improve her per-
formance and thus lead to a new and more constructive
employment relationship.”). That leaves us with only

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No. 10-1423 27
Davis does not develop a contention that Time Warner’s 7
refusal to allow negotiation of the terms of the compensation
plan was retaliatory in nature.
one adverse action to consider: the changes to the com-
pensation plan.7
Davis contends that the changes can be traced to his
complaints of discrimination. We do not believe a rea-
sonable jury could reach the same conclusion on the
evidence in this record. The compensation plan was
developed and implemented around the same time
that Davis lodged his complaints, but correlation is not
the equivalent of causation. Undisputed record evi-
dence shows that Time Warner changed its compensa-
tion plan annually, and Davis happened to file his
claims around the time of year in which the changes
were generally made. Without some evidence linking
the complaint(s)—the date on which the second EEOC
complaint was filed is absent from the record—to the
compensation plan, a rational jury would be hard-pressed
to connect the two. See Argyropoulos v. City of Alton,
539 F.3d 724, 734 (7th Cir. 2008). Its struggle would
be made even more challenging by the fact that the com-
pensation plan applied to the entirety of the inside
sales team, even those who did not express any com-
plaints of discrimination. Additionally, to the extent
that Davis relies on his informal complaint to Cleboski,
he has not demonstrated that anyone involved with the
creation of the compensation plan other than Cleboski
was aware that any such complaint had been made. See

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28 No. 10-1423
Durkin v. City of Chi., 341 F.3d 606, 615 (7th Cir. 2003) (“An
employer cannot retaliate if there is nothing for it to
retaliate against.”).
III. Conclusion
After conducting a de novo review of the record, we
conclude that the evidence it contains would not permit
a reasonable jury to infer that Davis was discriminated
against on the basis of his race or retaliated against
for voicing concerns about discrimination. We there-
fore AFFIRM in full the district court’s grant of summary
judgment in favor of Time Warner.
7-5-11

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