Linh Thanongsinh v. Board of Education , District U-46

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3002
L INH T HANONGSINH ,
Plaintiff-Appellant,
v.
B OARD OF E DUCATION , D ISTRICT
U-46 and H ANAN J AVETZ , individually
and in his official capacity,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 8842—Samuel Der-Yeghiayan, Judge.
____________
A RGUED F EBRUARY 10, 2006—DECIDED S EPTEMBER 13, 2006
____________
Before POSNER , R IPPLE and K ANNE , Circuit Judges.
R IPPLE , Circuit Judge. On December 8, 2003, Linh
Thanongsinh, a custodian at Oakhill Elementary School,
brought the present suit against his employer, School
District U-46 (the “School District”), and his supervisor,
Hanan Javetz, in his individual and official capacities. Mr.
Thanongsinh alleges that he was demoted from Group V
Head Custodian to Group II Building Custodian in violation
of both Title VII, see 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981(a). The district court granted summary judgment in

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2 No. 05-3002
favor of the defendants. The plaintiff now appeals. We
affirm in part and reverse in part the judgment of the
district court and remand for proceedings consistent with
this opinion.
I
BACKGROUND
A. Facts
Mr. Thanongsinh, an Asian-American of Chinese and
Laotian descent, began working as a custodian for School
District U-46 in 1991. He subsequently was promoted to the
position of Group V Head Custodian and assigned to
Oakhill Elementary School in Kane County, Illinois. His
immediate supervisor at Oakhill was Hanan Javetz, the
Director of Plant Operations for the School District.
Mr. Thanongsinh received consistently favorable work
performance evaluations while employed as a Group V
Head Custodian at Oakhill. For example, in 2001, the
principal of Oakhill, Carolyn O’Neal, ranked as “outstand-
ing” or “exceptionally high” Mr. Thanongsinh’s job knowl-
edge, quantity and quality of work, dependability, organiza-
tion, flexibility and potential level of ability; Mr.
Thanongsinh was given “excellent” or “high” marks in the
remaining categories, attendance and cooperation. R.28,
Ex.B at 4-5. O’Neal remarked in this evaluation that Mr.
Thanongsinh is “fussy about things being done right. This
was especially evident after our retrofitting project was
completed,” id. at 4, and that “he can do many things in the
way of repairs, and he does so,” id. at 6.
Similarly, in 2002, O’Neal gave Mr. Thanongsinh the
highest marks possible in the categories of job knowledge,

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No. 05-3002 3
1 Mr. Thanongsinh also received an outstanding employee
evaluation in 1999. He was given excellent marks for job knowl-
edge, quantity and quality of work, cooperation, organization,
flexibility and potential level of ability; he received an above
average mark for dependability and attendance. The School
District official performing the evaluation noted that
Mr. Thanongsinh’s “most impressive characteristic is the pride
and ownership he shows for Oakhill School. As a result, he
takes the initiative to keep everything in good repair.” R.28, Ex.B
at 8.
quantity of work, dependability, organization, flexibility
and potential level of ability. He received favorable marks
in the other categories—quality of work, attendance and
cooperation. O’Neal added the following comments:
Linh has a wide variety of skills related to maintenance
and upkeep of the physical plant, equipment and
supplies. These skills are evidenced by the work he has
done in the areas of plumbing, electricity, and HVAC,
without assistance of those in the trades.
Id. at 1. O’Neal concluded that Mr. Thanongsinh is fully
“capable of handling more responsibility.” Id. at 2. 1
The employment of School District custodians is governed
by a collective bargaining agreement between the School
District and the Education Support Services Organization,
the union that represents School District employees. In late
2002, the School District and the union, due to budgetary
constraints, agreed to phase out Group V custodians
through the implementation of a two-part certification
process. To remain a Group V custodian under the 2002-
2005 Collective Bargaining Agreement (the “Agreement”),
the employee first was required to score at least 50 out of
100 on a written exam. If he scored below 50, he was

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4 No. 05-3002
2 The hands-on test covered ten topics: Change Electric Ballast,
Switch or Outlet; Take Boiler or Cooling Tower Water Test; Test
Low Water Cut-Off; Reset Security Alarm—Bypass Zone; What
To Do In Full Fire Alarm During Occupied Hours; Asbestos
Inspection; Rebuild Sloan Value or P-Trap; Playground Equip-
ment Inspection; File on M.S.D.S. Sheets; and Change Schedule
on EMS Time of Day/Holiday. See R.24, Ex.L.
permitted to retest; if, however, after the second try, he did
not pass the written exam, he would not be allowed to
proceed to the second portion of the exam, which tested
hands-on skills. By contrast, those who scored 50 or above
on the written exam then were asked to perform tasks for
which a Group V Head Custodian traditionally is respon-
sible—for example, testing boiler water and performing
asbestos and playground inspections. 2 To obtain certifica-
tion, the employee’s average score from the two portions of
the test had to equal or exceed 70. See Collective Bargaining
Agreement, R.24, Ex.G-1.
Mr. Thanongsinh took the written portion of the test in
November 2002. He received a score of 55. He proceeded
to the hands-on portion of the exam, which was adminis-
tered on March 14, 2003, by Mr. Javetz and Ron Dugo, the
Maintenance Supervisor for the School District. He received
a score of 66.62. The average of his written and hands-on
scores was 60.81, which, under the terms of the Agreement,
constituted a failing score.
Pursuant to this Agreement, Mr. Thanongsinh was
permitted to retake the test. He received a score of 46 on the
written portion and did not advance to the hands-on
portion of the exam. Effective July 1, 2003, the School
District therefore demoted Mr. Thanongsinh to the position

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No. 05-3002 5
3 The second written test had been administered prior to the
exhaustion of six months following the conclusion of the first
certification exam, in violation of the Memorandum of Under-
standing between the union and the School District. Therefore,
the School District agreed to allow Mr. Thanongsinh a third
opportunity to take the certification exam after his demotion. He
scored a 35.91 on the written portion of the third exam, which
was administered on September 26, 2003; he did not proceed
to the hands-on portion of the examination.
of Group II Building Custodian. 3 As a Group V Head
Custodian, Mr. Thanongsinh had earned $20.77 per hour;
upon demotion, he suffered a pay loss of approximately
$6 per hour. Although Mr. Thanongsinh remains employed
as a custodian at Oakhill, numerous job responsibilities
formerly performed by Mr. Thanongsinh were reassigned
upon his demotion to a Group 9 employee, Mike DiGioia,
who visits Oakhill once weekly.
Shortly after Mr. Thanongsinh’s demotion, his union
representative requested a grievance-based meeting with
School District officials to discuss the reduction in pay
associated with Mr. Thanongsinh’s demotion. The persons
present at this meeting included Mr. Thanongsinh; his
union representative; Catherine McNamara, a School
District Supervisor; and Mr. Javetz. Mr. Thanongsinh
expressed at the meeting his frustration with the difficulty
of the test; Mr. Javetz’s response to Mr. Thanongsinh’s
concerns is the subject of vigorous dispute between the
parties. In his affidavit, Mr. Thanongsinh claimed:
At the meeting, I began explaining my side of the story
regarding the hands-on portion of the certification
testing program. Mr. Javetz crossed his arms and said in
an argumentative manner that he could not understand

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6 No. 05-3002
me. He immediately thereafter stated that I should learn
better English. Mr. Javetz’s comment about my alleged
need to learn better English was not made in response
to any statements by me in regard to the written portion
of the certification exam or my English language abili-
ties.
R.28, Ex.D at 2. Mr. Javetz, by contrast, testified in his
deposition that he merely suggested to Mr. Thanongsinh
that he improve his English skills because, without such
skills, there would be little opportunity for job advance-
ment:
I said any position, . . . if you want to move to a higher
position from four and higher, you have to take a
written test; and to pass the test you need to have
some basic or even a little higher than basic English
skills. So to do that, to be more successful, you know, I
would recommend that you can see if we had some free
incentive administration, basically, the same idea, some
programs that might be free to improve your skills.
R.24, Ex.D at 216.
B. District Court Proceedings
Upon receiving a right-to-sue letter from the EEOC, on
December 8, 2003, Mr. Thanongsinh filed a complaint in
the United States District Court for the Northern District of
Illinois against the School District and Mr. Javetz. He
alleged that his demotion was motivated by his race, in
violation of both Title VII, see 42 U.S.C. § 2000e et seq., and

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No. 05-3002 7
4 Mr. Thanongsinh’s first complaint also stated a claim under
state law for intentional infliction of emotional distress. His
amended complaint, however, omits this claim for relief.
5 Mr. Thanongsinh does not allege that the written portion of the
test was discriminatory. Although he suggests in his deposition
that the test was unfair because it was written in English, the
complaint itself is limited to the allegedly discriminatory
administration of the hands-on portion of the exam.
Nor does Mr. Thanongsinh challenge the validity of the
imposition of a hands-on certification requirement; rather, he
challenges only the administration and scoring of that test. See
Pl.’s Memo. of Law in Opposition to Def.’s Motion for Sum-
mary Judgment, R.27 at 1 (“Linh does not complain about
Defendants’ decision to administer a hands-on certification
test.”).
42 U.S.C. § 1981(a). 4 Specifically, Mr. Thanongsinh claimed
that he had the “ability to meet and exceed the expecta-
tions for the hands-on test,” but that Mr. Javetz’s scoring
and administration of that portion of the test was “racially
motivated” and “willful and wanton.” 5 R.12 at 4-5. He
requested both equitable and legal relief, including back
pay, attorneys’ fees and compensatory and punitive dam-
ages.
After the district court denied the defendants’ motion to
dismiss, the defendants filed a motion for summary judg-
ment. In this motion, the defendants contended that Mr.
Thanongsinh had not established a prima facie case of
discrimination and had not rebutted the defendants’ claim
that he was demoted for the legitimate, non-discriminatory
reason that he was unable to pass the Group V certification
exam. The defendants also contended that Mr. Javetz could
not be held liable in his official capacity under Title VII

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8 No. 05-3002
because the claim was duplicative of the plaintiff’s claims
against the School District.
In response to this motion, Mr. Thanongsinh invited the
court’s attention to three pieces of evidence that he claims
demonstrate that the hands-on portion of the test was
scored in a discriminatory manner. First, according to
Mr. Thanongsinh, he was scored in a manner different from
at least one Caucasian custodian, Mitchell Cain. Specifically,
on Topic 9 of the hands-on exam, Group V Head Custodians
were required to demonstrate their knowledge of how to
complete Material Safety Data Sheets (“M.S.D.S.”). Mr.
Thanongsinh forgot to bring his M.S.D.S. materials to the
exam and therefore was awarded zero points for these
questions. Cain’s score sheet indicates that he also forgot to
bring his M.S.D.S. materials to the exam; nevertheless, Mr.
Javetz and the other School District official administering
the exam asked Cain the relevant M.S.D.S. questions, and
Cain was awarded a score of 10 out of 10 on Topic 9.
Second, Mr. Thanongsinh contended that he was not given
“calming instructions” at the commencement of the hands-
on exam, as were Caucasian applicants. R.27 at 7. As a
result, the testing room was filled with “tension in the air,”
causing Mr. Thanongsinh nervousness and anxiety and,
ultimately, resulting in mistakes on the exam. Id. at 8
(internal quotation marks omitted). Third, Mr. Thanongsinh
claimed that Mr. Javetz gave Caucasian custodians an
average score on the hands-on exam of 79.5, while he gave
minority custodians an average score of 67.2, supporting an
inference of discriminatory intent.
On March 23, 2005, the defendants filed a supple-
mental motion for summary judgment, requesting that the
court also dismiss Mr. Thanongsinh’s claims against Mr.
Javetz in his individual capacity. The defendants contended

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No. 05-3002 9
that the plaintiff had failed to demonstrate that Mr. Javetz
“personally participated” in the administration of the
written tests that led to Mr. Thanongsinh’s demotion. R.35
at 2.
The district court granted the defendants’ motions for
summary judgment on June 13, 2005. Applying the burden-
shifting analysis of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the court first held that Mr. Thanongsinh
was not qualified as a Group V Head Custodian:
Thanongsinh admits that he attempted to obtain certifi-
cation on three separate occasions and that he received
a failing score on all three attempts. Thanongsinh was
given every opportunity to achieve certification. The
fact that on two of his three attempts he could not even
proceed past the written portion of the certification
process which tests his knowledge of the requirements
for a Group V position is a clear indication that he was
not qualified for the position.
R.40 at 7-8 (internal citations omitted).
The district court next concluded that Mr. Thanongsinh
had failed to identify similarly situated individuals who
were treated more favorably than he. Mitchell Cain, accord-
ing to the court, perhaps was similarly situated to Mr.
Thanongsinh because both were Group V employees, but
the only evidence that Cain was treated more favorably than
Mr. Thanongsinh—the interview score sheet— was inadmis-
sible at trial. According to the court,
Thanongsinh has pointed to no testimony or evidence
that would lay a proper foundation for the introduc-
tion of the score sheet at trial. In the testimony of
Dugo that Thanongsinh refers to on this issue, Dugo

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10 No. 05-3002
merely indicated what information he saw on the paper
given to him at the deposition.
Id. at 10-11. Additionally, Mike DiGioia, the Caucasian
employee who took over various custodial responsibil-
ities from Mr. Thanongsinh at Oakhill, is not similarly
situated to Mr. Thanongsinh because he is not a Group V
employee. Notably, he was not required to take the Group
V certification exam, the subject of the present litigation. The
court further rejected the contention that the Caucasian
employees who had taken the Group V certification exam
and therefore are similarly situated to Mr. Thanongsinh
were treated more favorably than he was because of
“calming instructions” administered at the beginning of the
exam. Id. at 13. There is no evidence, according to the
district court, that the administration or non-administration
of these instructions was based on the applicant’s race.
Rather, one of the interviewers, Cathy McNamara, gave the
instructions to all candidates, whereas other interviewers,
such as Dugo and Mr. Javetz, gave the instructions to no
candidate. See id. at 14 (concluding that the calming instruc-
tions were “merely how McNamara chose to speak to the
test takers before administering the tests”).
The district court also held that, even if Mr. Thanongsinh
could establish a prima facie case of discrimination, the
defendants had offered a legitimate, non-discriminatory
reason for his demotion—that Mr. Thanongsinh failed
the certification exam. According to the district court,
the plaintiff had not established that this reason was
pretextual. First, Mr. Thanongsinh’s favorable work perfor-
mance evaluations as a Group V Head Custodian “do[] not
automatically mean that he would not make mistakes on the
test.” Id. at 16. Moreover, Mr. Thanongsinh’s comparison of
passage rates for minority versus non-minority candidates

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No. 05-3002 11
6 Mr. Thanongsinh conceded in the district court that the Title
VII claim against Mr. Javetz in his individual capacity should
be dismissed. See R.40 at 18.
was based on “pure speculation”; the relevant inquiry is not
the raw scores received by candidates of a particular race,
but “whether all applicants received fair scores based upon
their performance on the tests.” Id. Evidence that Mr. Javetz
harbored animosity towards Mr. Thanongsinh also was not
dispositive, according to the court: Stress or tension in the
examination room logically could be attributed to the
“natural atmosphere that might develop during a test which
is often a stressful experience for a test taker.” Id. at 17.
Finally, the district court held that the stray comment by Mr.
Javetz in the post-demotion meeting that Mr. Thanongsinh
“should learn better English” merely was intended as
helpful advice; it simply is “not sufficient evidence to meet
the pretext requirement even when considered with the
other evidence mentioned above.” Id.
With regard to the Title VII and § 1981 claims against Mr.
Javetz in his official capacity, 6 the district court dismissed
them as redundant, holding that they were “synonymous
with [the] claim against the public entity itself.” Id. at 18-19.
Lastly, the district court granted summary judgment to
the School District and Mr. Javetz in his individual capac-
ity on the plaintiff’s § 1981 claims. It held that there was
no evidence of a “policy or practice” of discrimination by
the District. Id. at 19. With regard to the individual
claim against Mr. Javetz, the court reiterated that Mr.
Thanongsinh had failed to establish a prima facie case of
discrimination and held that there certainly was no
specific evidence that any discriminatory conduct “con-

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12 No. 05-3002
7 Mr. Thanongsinh also challenges the district court’s dismissal
of his Title VII claim against Mr. Javetz in his official capacity.
The district court held that this claim was duplicative of his claim
against the School District. We agree. The covered entity under
Title VII is the “employer.” 42 U.S.C. § 2000e-2(a). As a result, we
have “interpret[ed] the statute not as imposing personal liability
on agents, but as invoking the doctrine of respondeat superior to
make employers responsible for the actions of their agents.”
Gastineau v. Fleet Mortg. Corp., 137 F.3d 490, 493 (7th Cir. 1998).
Because the claim against Mr. Javetz is a claim against his office,
for which his employer, the School District, would be liable, it is
no different than his claim against the School District itself. The
claim therefore was properly dismissed by the district court.
8 Mr. Thanongsinh does not pursue on appeal his Title VII claim
against Mr. Javetz in his individual capacity, his § 1981 claim
against Mr. Javetz in his official capacity or his § 1981 claim
against the School District.
cerned the making and enforcing of a contract,” a requisite
element of a § 1981 cause of action. Id. at 20 (internal
quotation marks omitted).
The plaintiff timely appealed.
II
DISCUSSION
The plaintiff submits that the district court erred in
dismissing his Title VII claims against the School District 7
and his § 1981 claim against Mr. Javetz in his individual
capacity. 8 Our review of a district court’s judgment on a
motion for summary judgment is de novo. See In re Copper
Antitrust Litig., 436 F.3d 782, 788 (7th Cir. 2006). Summary
judgment is appropriate when “there is no genuine issue as

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No. 05-3002 13
to any material fact and . . . the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Our
function is not to weigh the evidence but merely to deter-
mine if “there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In performing
this task, we must construe all facts and draw all reasonable
inferences from those facts in the light most favorable to the
nonmoving party. See id. at 255.
A. Title VII
Under Title VII, an employer may not “discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff can establish a
prima facie case of discrimination in response to a mo-
tion for summary judgment in one of two ways: by pro-
ducing direct or circumstantial evidence under the direct
method of proof; or by utilizing the indirect, burden-shifting
method set forth in McDonnell Douglas, 411 U.S. 792.
Mr. Thanongsinh relies on the indirect method of proof,
which requires him to demonstrate that he: (1) is a member
of a protected class; (2) is qualified for the position sought;
(3) was rejected for the position; and (4) was treated less
favorably than similarly situated individuals outside of
his protected class. See id. at 802. If a plaintiff fulfills all four
requirements, then the burden shifts to the defendant to
demonstrate a legitimate, non-discriminatory reason for the
adverse employment action taken. See id. at 802-03. The
plaintiff ultimately bears the burden of producing sufficient
evidence from which a reasonable fact-finder could con-

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14 No. 05-3002
9 The defendants do not contest that Mr. Thanongsinh is a
member of a protected class or that his demotion constitutes
an adverse employment action.
clude that the defendant’s proffered reason is pretextual. See
id. at 804.
Mr. Thanongsinh raises three issues with regard to his
Title VII claim: whether he is qualified for the position of
Group V Head Custodian; whether he has identified
similarly situated individuals outside his protected class
who were treated more favorably than he; and whether his
failure to pass the hands-on portion of the certification exam
constitutes a non-discriminatory, non-pretextual justifica-
tion for his demotion. 9 We address each of these issues in
turn.
1. Qualification
To show that he was meeting his employer’s legitimate
expectations at the time of his demotion, Mr. Thanongsinh
relies on his 2000 and 2001 work performance evaluations
and the deposition testimony of Ron Dugo. See Dugo Dep.,
R.28, Ex.C at 17 (stating that, under Mr. Thanongsinh’s care,
Oakhill “was in generally good condition”). The defendants
concede that Mr. Thanongsinh received strong annual
employment evaluations, but contend that he nevertheless
was not meeting the School District’s legitimate expectations
because he failed to obtain Group V certification under the
terms of the Agreement between the union and the School
District.
We do not think that the defendants can rely on the
certification test to establish that the plaintiff lacks the

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No. 05-3002 15
requisite qualifications to be a Group V Head Custodian.
After all, Mr. Thanongsinh alleges that the administration of
that examination in a racially discriminatory manner was
the vehicle employed by the school board to demote him on
account of his race. Consequently, the results of that exami-
nation cannot be the basis of establishing that Mr.
Thanongsinh is unqualified as a Head Custodian.
Certainly, Mr. Thanongsinh’s certification through a fairly
administered examination would be a legitimate measure of
his qualification as a Group V Head Custodian. Here,
however, the integrity of the administered examination is at
issue, and Mr. Thanongsinh is attempting to establish,
through the indirect method, that the examination was
administered in a racially discriminatory manner. At this
initial stage of the proceedings, therefore, we must rely on
the record evidence of Mr. Thanongsinh’s performance,
other than the examination, to determine whether he has
met this initial requirement of his prima facie case.
The other evidence of record is the very favorable work
reviews that he had received in the past for performing
the duties of a Group V Head Custodian. Notably, perform-
ing on a daily basis tasks that are similar in form and
substance to the tasks tested on the hands-on exam, Mr.
Thanongsinh received consistently favorable annual reviews
from the principal of Oakhill. He was commended for “the
pride and ownership he shows for Oakhill School” in 1999,
R.28, Ex.B at 8; his job knowledge and quality of work in
2001, see id. at 4-5; and his “wide variety of skills” and
“capab[ility]” in 2002, id. at 1-2. This evidence is sufficient
to show that Mr. Thanongsinh was performing his duties
satisfactorily. Cf. Johnson v. Zema Sys. Corp., 170 F.3d 734, 743
(7th Cir. 1999) (“Johnson bears a burden only of producing
some evidence that he was meeting Zema’s legitimate

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16 No. 05-3002
expectations. In coming forward with consistently positive
employment evaluations and President Reyes’ recommen-
dation, Johnson has met his burden.”).
The defendants nevertheless maintain that Mr.
Thanongsinh’s failure to pass the written certification
exam on his second and third attempts demonstrates that he
does not have the requisite skill level to perform compe-
tently the responsibilities of a Group V Head Custodian.
They contend that there is no causal link between the
allegedly discriminatory administration of the hands-on
portion of the exam and Mr. Thanongsinh’s demotion. In
their view, Mr. Thanongsinh “suffered no adverse employ-
ment action at the time of his failure of the hands-on
portion,” but instead was not demoted until after having
failed the written portion of the exam for the third time
in September 2003. Appellees’ Br. at 13.
We cannot accept this argument. At this stage of the
proceedings, we must assume that there is at least the
possibility that the scores Mr. Thanongsinh received on
his second and third attempts to pass the written exam were
tainted by the results of the hands-on exam. Mr.
Thanongsinh testified in his deposition that he reviewed his
materials for the first written exam in November 2002, but
chose not to study before retaking the exam in June 2003 or
in September 2003. See Supp. App., Ex.B at 290. A jury
reasonably could conclude that Mr. Thanongsinh’s indiffer-
ence in preparing to retake the written exam was traceable
to the defendants’ discriminatory conduct: If an individual
believes that the outcome of an event may be beyond his
control because of an improper consideration, such as his
race, it certainly is reasonable that he would exert less than
maximum effort in readying himself for that event. Cf. Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66 (1977)

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No. 05-3002 17
(“When a person’s desire for a job is not translated into a
formal application solely because of his unwillingness to
engage in a futile gesture he is as much a victim of discrimi-
nation as is he who goes through the motions of submitting
an application.”). Even if this were not true, we have no
difficulty in finding a causal relationship between the
defendants’ allegedly discriminatory conduct and Mr.
Thanongsinh’s ultimate demotion. Reading the evidence in
the light most favorable to the non-movant, Mr.
Thanongsinh was required to retake the written exam only
because of the defendants’ discriminatory conduct; had the
hands-on portion of the test been scored fairly, Mr.
Thanongsinh would have received a passing score on his
first certification exam. Cf. Vakharia v. Swedish Covenant
Hosp., 190 F.3d 799, 807 (7th Cir. 1999) (observing that, when
the standards for assessing qualifications are themselves
allegedly discriminatory, whether the plaintiff was meeting
her employer’s “legitimate performance expectations . . .
dovetails with the issue of pretext” and requires a court to
assume, for the purpose of reaching the pretext inquiry, that
the plaintiff had made out a prima facie case).
The district court therefore erred in determining that
Mr. Thanongsinh had not met his burden of establishing
under McDonnell Douglas that he was meeting his em-
ployer’s expectations as a Group V Head Custodian.
2. Similarly Situated Individuals
The district court also erred in determining that Mr.
Thanongsinh had not identified similarly situated individu-
als outside of his protected class who were treated more
favorably on the hands-on portion of the exam than he. To
be similarly situated to the plaintiff, an individual must

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18 No. 05-3002
be “directly comparable to [the plaintiff] in all material
respects.” Brummett v. Sinclair Broad. Group, Inc., 414 F.3d
686, 692 (7th Cir. 2005) (internal quotation marks omitted;
alteration in original). In the course of this inquiry, “we
consider all of the relevant factors,” including
whether the employees (i) held the same job description,
(ii) were subject to the same standards, (iii) were subor-
dinate to the same supervisor, and (iv) had comparable
e x p e r i e n c e , e d u c a t i o n , a n d o t h e r
qualifications—provided the employer considered the
latter factors in making the personnel decision.
Id. at 692-93 (internal quotation marks omitted). Mr. Tha-
nongsinh identifies a number of similarly situated em-
ployees; we address each relevant individual in turn.
a. Mike DiGioa
The first similarly situated individual identified by the
plaintiff is Mike DiGioia, a Caucasian Group 9 Custodian
employed by the School District. After Mr. Thanongsinh
was demoted to the position of Group II Custodian, various
custodial tasks previously performed by Mr. Thanongsinh
at Oakhill were transferred to DiGioia, who travels among
various elementary schools in the area and visits Oakhill
once weekly.
The plaintiff’s comparison is unavailing. Unlike Mr.
Thanongsinh, who before his demotion was a Group V
employee, DiGioia is a Group 9 employee. Although in
some situations this may be merely a “job title[],” Appel-
lant’s Br. at 30 (internal quotation marks omitted), in this
context it is a material distinction. Under the Agreement
between the School District and the union, only Group V
employees were required to take the Group V certifica-

-- 18 of 37 --

No. 05-3002 19
10 This document was under a protective order in the district
court, and it never was produced on appeal, despite the parties’
failure to renew the protective order in this court. See Seventh
(continued...)
tion exam; therefore, DiGioia, as a Group 9 employee, never
took this exam. He was not “subject to the same standards”
as, and cannot be considered “similarly situated” to, Mr.
Thanongsinh. Brummet, 414 F.3d at 692.
b. Mitchell Cain
Mr. Thanongsinh also identifies Mitchell Cain as a
similarly situated individual. We agree that Cain meets
the criteria of a similarly situated individual. Cain is a
Caucasian male who, at the time of taking the Group V
certification exam, had been employed by the School District
as a Head Custodian for a year. In that position, he had a job
description similar to and was subject to the same standards
as Mr. Thanongsinh. Specifically, like Mr. Thanongsinh,
Cain was required to obtain an average composite score of
70 on the certification exam to remain a Group V employee.
Although it is not clear from this record whether Cain and
Mr. Thanongsinh had the same supervisor, Mr.
Thanongsinh and Cain’s certification exams both were
administered by Mr. Javetz.
Mr. Thanongsinh has presented sufficient evidence that he
was treated less favorably than Cain by the interviewers.
Notably, both men forgot to bring their M.S.D.S. materials
to the hands-on portion of the exam. See Thanongsinh Score
Sheet, R.24, Ex.L at D184 (interviewers handwrote “don’t
have” next to question 9); Cain Score Sheet, R.27, Ex.F
(noting, in the narrative section, “No M.S.D.S. book”). 10 The

-- 19 of 37 --

20 No. 05-3002
(...continued)
Circuit Operating Procedure 10(a) (providing that all documents
sealed by the district court are considered public in this court
unless a motion is made to seal). Although the document is
absent from the record, the parties admit to what the document
contains—namely, proof that Cain did not bring with him to
his hands-on interview his M.S.D.S. materials but nevertheless
was awarded points on the question related to those materials.
We interpret this admission as a stipulation by the parties as
to the contents of the Cain score sheet.
test administrators therefore awarded Mr. Thanongsinh zero
points on Topic 9 of the hands-on portion of the exam,
which required the candidate to answer various questions
related to the M.S.D.S. materials. See also Dugo Dep., R.28,
Ex.C at 57 (explaining that Mr. Thanongsinh “[m]ost likely”
received zero points on these questions because he did not
bring to the interview his M.S.D.S. materials). But Cain,
despite also failing to bring the relevant documents to the
exam, was awarded ten points on Topic 9, after being asked
by the interviewers follow-up questions related to the
missing M.S.D.S. materials.
The defendants respond that the only evidence supporting
the conclusion that Cain and Mr. Thanongsinh were treated
differently by interviewers is inadmissible. The district court
held that Mr. Thanongsinh had failed to lay a proper
foundation for the admission of the document containing
Cain’s interview scores and the interviewers’ handwritten
notes; according to the court, because the document would
be inadmissible at trial, it also could not be relied upon by
Mr. Thanongsinh to survive summary judgment. We review
the district court’s evidentiary ruling for abuse of discretion.
See United States v. White, 443 F.3d 582, 591 (7th Cir. 2006)
(“This Court will reverse a district court’s evidentiary ruling

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No. 05-3002 21
11 This score sheet was prepared by Cathy McNamara, the second
interviewer; the score sheet for Cain’s interview prepared by Mr.
Javetz is not in the record. The defendants, however, do not
contest that the hand-written notes on the score sheet prepared
(continued...)
only upon a showing that the district court committed an
abuse of discretion.”).
The district court abused its discretion when it ex-
cluded the interviewers’ score sheet from Cain’s interview
and the handwritten notes on that sheet. This document
is admissible under the business record exception to the
hearsay rule. See Fed. R. Evid. 803(6). Rule 803(6) provides
that
[a] memorandum, report, record, or data compilation,
in any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from infor-
mation transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business activity,
and if it was the regular practice of that business activ-
ity to make the memorandum, report, record or data
compilation, all as shown by the testimony of the
custodian or other qualified witness, or by certification
that complies with Rule 902(11) [or] Rule 902(12)
shall be admissible at trial, even when introduced for the
truth of the matter asserted. Id. “Because a business depends
on the accuracy of its recordkeeping, its records, although of
course not sworn, are likely to be at least reasonably
accurate, or at least not contrived for the purpose of making
the business look better if it is sued.” Lust v. Sealy, Inc., 383
F.3d 580, 588 (7th Cir. 2004).
In this case, Cain’s score sheet 11 is precisely the type of

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22 No. 05-3002
(...continued)
by McNamara reflect accurately the events of the interview.
Notably, McNamara’s notes indicate that, although Cain did not
bring with him to the interview his M.S.D.S. materials, he
nevertheless was asked by the interviewers the questions
associated with those materials.
12 The defendants contend that, even if Cain’s score sheet itself is
a business record, the “examiner’s handwritten notes[] [on that
score sheet] cannot be interpreted as . . . a business record.”
Appellees’ Br. at 16. These notes, however, are part of the
admissible business record: The notes were made at the time of
the interview by a person with knowledge, and, like the rest of
the document, were kept with personnel records by the School
District in the ordinary course of business. See also Crimm v.
Missouri Pac. R.R. Co., 750 F.2d 703, 709 (8th Cir. 1984) (holding
that handwritten notes taken during an interview and kept with
the interview report were admissible as a business record).
The defendants further argue that, because it is impossible
to identify who made the handwritten notes, the plaintiff cannot
authenticate this crucial portion of the document. But only two
individuals—McNamara and Mr. Javetz—administered the
hands-on exam to Cain; one logically can conclude that these two
individuals, and the custodian of School District records, were
the persons with primary access to the document and likely are
(continued...)
“memorandum” or “record” that falls within the ambit of
the business record exception. Fed. R. Evid. 803(6). First, the
parties do not dispute that interviews were conducted, the
sheets completed and kept, and the notes taken in the
normal course of business. It was the “regular practice” of
the School District to conduct certification interviews of
Group V employees pursuant to their agreement for certifi-
cation testing with the union. Id. Moreover, it was the
School District’s regular practice to keep records of these
interviews. Cf. R.32, Ex.1 at 1-2. 12 Second, the Cain score

-- 22 of 37 --

No. 05-3002 23
12 (...continued)
the persons who made the notation in question. They can be
called at trial and can authenticate the handwritten
note if necessary. Moreover, no evidence has been offered by
the defendants to suggest that the chain of custody was broken,
or that any other individual had access to or tampered with this
record. Cf. United States v. King, 613 F.2d 670, 673 (7th Cir. 1980)
(holding that Social Security Administration interview forms
were business records and admissible at trial, given that the
defendants had failed to identify a “danger of unreliability” in
the manner in which the forms were kept).
sheet was completed “at or near the time” of the events in
question, Fed. R. Evid. 803(6); there is no reason to believe
that the handwritten comments, such as the notation that
Cain had forgotten his M.S.D.S. materials, were not made
during the interview itself. Lastly, the score sheet was
completed by “person[s] with knowledge”—the interview-
ers, McNamara and Mr. Javetz; these two administrators
filled out the score sheet as a way to transmit information
about the content of the interview to other School District
officials, in order to facilitate an informed certification
decision and to maintain accurate personnel records.
The defendants respond that Cain’s hands-on score
sheet has not been properly authenticated because, in
response to the motion for summary judgment, Mr.
Thanongsinh “did not present testimony from the person
who created the record.” Appellees’ Br. at 15. But Mr.
Thanongsinh need not present testimony from the inter-
viewers themselves; rather, Rule 803(6) permits the authen-
tication of a business record by the “custodian” of the record
or any “other qualified witness.” Fed. R. Evid. 803(6).
Ordinarily, the custodian or other qualified witness will
testify in court that it was the “regular practice” of the

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24 No. 05-3002
business to make and keep the business record. Id. Alterna-
tively, the plaintiff can certify the document under Rule
902(11) or 902(12), both of which require the plaintiff to
introduce at trial a “written declaration” by the custodian or
other qualified person that the record:
(A) was made at or near the time of the occurrence of
the matters set forth by, or from information transmitted
by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted
activity; and
(C) was made by the regularly conducted activity as
a regular practice.
Fed. R. Evid. 902(11), 902(12). In both situations, the custo-
dian need not be the individual who “personally
gather[ed] . . . in a business record. The custodian of the
records need not be in control of or have individual knowl-
edge of the particular corporate records, but need only be
familiar with the company’s recordkeeping practices.”
United States v. Jenkins, 345 F.3d 928, 935 (6th Cir. 2003)
(internal quotation marks and citations omitted).
On appeal from an order granting summary judgment, the
party seeking admission of a document as a business record
need not have secured already the deposition testimony of
these witnesses. Instead, he only need establish that the
document has “sufficient indicia of trustworthiness to be
considered reliable.” Woods v. City of Chicago, 234 F.3d 979,
988 (7th Cir. 2000). Generally,
to demonstrate such trustworthiness and reliability at
the summary judgment stage, the party seeking to
offer the business record must attach an affidavit sworn
to by a person who would be qualified to introduce the
record as evidence at trial, for example, a custodian or

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No. 05-3002 25
anyone qualified to speak from personal knowledge
that the documents were admissible business records.
Id.; see also F.D.I.C. v. Patel, 46 F.3d 482, 484 (5th Cir. 1995)
(holding that the affidavits submitted by the plaintiff
“constitute[d] appropriate summary judgment evidence
adequate to support a grant of summary judgment,” given
that those affidavits were sworn to by employees of the
bank who were familiar with its record-keeping practices
and therefore were “qualified to speak from personal
knowledge that the documents attached to the affidavits are
admissible business records”). The requirement that
the party seeking the admission of the evidence must submit
supporting affidavits, however, has been relaxed by this
court in certain, limited circumstances. For example, in
Woods, the plaintiff contended that the district court had
erred in relying on his arrest report and misdemeanor
complaint in granting summary judgment to the defendants
because those documents contained inadmissable hearsay;
the plaintiff further submitted that the documents were not
admissible as business records because they had not been
properly authenticated by an affidavit sworn to by the
custodian of the record or by an individual with personal
knowledge of the events. Although recognizing that, in most
cases, an affidavit authenticating the document as a busi-
ness record is required at summary judgment, we held that
an exception is applicable when the party challenging the
document’s admissibility relied on that same document “for
its accuracy” in earlier proceedings, or otherwise “conceded
the accuracy of the documents that the [opposing party]
sought to introduce.” Woods, 234 F.3d at 988.
In this case, Mr. Thanongsinh has not submitted an
affidavit by the custodian of the School District records,
attesting that the Cain score sheet qualifies as a business

-- 25 of 37 --

26 No. 05-3002
13 In addition, the defendants do not contest that the docu-
ment—absent the handwritten notes—is admissible as a business
record, nor do they contend that the plaintiff is required to
depose or obtain an affidavit from the custodian of the records.
record under Rule 803(6). But a careful examination of the
record reveals that the defendants have conceded the
admissibility of Cain’s score sheet. 13 See id. First, they
admitted in discovery that the score sheet is what the
plaintiff purports it to be. As verified by the affidavit sworn
to by Mr. Thanongsinh’s attorney, see R.32, Cain’s score
sheet was produced by the School District in the course of
discovery. The School District then confirmed in its response
to the plaintiff’s interrogatories that Cain “w[as] tested by
Defendant School District U-46,” and that Cain’s score sheet
was the product of hands-on testing for the Group V
certification exam. Id., Ex.1 at 1 (producing, in response to
an interrogatory, Cain’s score sheet). The School District also
confirmed that Cathy McNamara was the “individual[] from
School District U-46” who filled out the “Hands-On Test
Topics” sheet produced by the defendants. Id., Ex.2 at 2
(interrogatory 2).
Our sister circuits have held documents to be admissible
under the business record exception under similar cir-
cumstances. For example, in Cerqueira v. Cerqueira, 828
F.2d 863 (1st Cir. 1987), the plaintiff disputed the admissibil-
ity of an unsigned agreement between the parties prepared
by the plaintiff’s attorney for use in an earlier case between
them. The plaintiff conceded that he had drafted the
document, but nevertheless argued that the defendant was
required to authenticate the document as a business record.
The First Circuit recognized that, generally speaking, the
document should have been introduced “into the record
through affidavits.” Id. at 865. However, it held, there was

-- 26 of 37 --

No. 05-3002 27
“no point in remanding this case to permit [the defendant]
to file an affidavit stating the very thing that [the plaintiff]
has conceded, namely, that the document is what it purports
to be.” Id.; see also Woods, 234 F.3d at 989 (noting that the
reasoning in Cerqueira is “persuasive and applicable to the
facts of this case”). As in Cerqueira, the defendants’ re-
sponses to the interrogatories in this case provide us with
sufficient assurance that Cain’s score sheet was made at the
time of the interview by a person with knowledge and was
prepared and kept in the course of the regularly con-
ducted business activity of certifying Group V custodians
under the Collective Bargaining Agreement, rendering
a remand to “permit [Mr. Thanongsinh] to file an affida-
vit” on this question unnecessary. Cerqueira, 828 F.2d at 865.
Second, the School District, by relying on Mr.
Thanongsinh’s score sheet, which is substantially similar in
all material respects to the score sheet completed in the
course of Cain’s interview, has conceded the accuracy of
these documents. See Defs.’ Motion for Summary Judgment,
R.23 at 9 (relying on the score sheets from Mr.
Thanongsinh’s interview in the course of argument); Defs.’
St. of Undisputed Mat’l Facts, R.24 at 5-6; id., Ex.L (summa-
rizing the contents of Mr. Thanongsinh’s score sheet). Both
score sheets necessarily were prepared and kept by the
School District in the same manner and according to the
same internal procedures. As we did in Woods, we therefore
conclude that the defendants “cannot reasonably question
the reliability” of score sheets made by School District
employees and produced in the course of this litigation.
Woods, 234 F.3d at 989. “Requiring authenticating affidavits
in this case would be an empty formality.” Id.
Even if this were not true, the Cain score sheet would be
admissible against the School District as an admission by
one of its representatives under Federal Rule of Evidence

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28 No. 05-3002
801(d)(2). Rule 801(d)(2)(A) provides that written statements
may be admitted as non-hearsay against the party who
made the statement in their “individual or . . . representative
capacity.” Fed. R. Evid. 801(d)(2). In this case, Cathy
McNamara, the person who filled out the score sheet, is a
“representative” of the School District, id., or a “person
authorized” to complete the score sheet, id. 801(d)(2)(C). As
under Rule 803(6), Mr. Thanongsinh still would be required
to lay a foundation for the document’s status as an admis-
sion by a party-opponent under Rule 801(d)(2). Authentica-
tion for the purposes of Rule 801(d)(2) is governed by Rule
901(a), which requires that the plaintiff prove that the
document is “what its proponent claims.” Fed. R. Evid.
901(a); see also United States v. Dhinsa, 243 F.3d 635, 658 (2d
Cir. 2001) (“Rule 901 does not erect a particularly high
hurdle.” (internal quotation marks omitted)). Rule 901’s
requirements are satisfied if evidence has been introduced
from which a reasonable juror could find that the document
is authentic. See Dhinsa, 243 F.3d at 658. This standard has
been met in this case. As discussed previously, the School
District admitted in its response to the plaintiff’s interroga-
tories that Cain’s score sheet was completed by a School
District employee. See R.32, Ex.1 at 1; id., Ex.2 at 2 (identify-
ing Cathy McNamara as the individual who filled out the
score sheet previously produced). One can reasonably
conclude from these discovery documents that the Cain
score sheet is what the plaintiff claims it to be—the docu-
ment completed by interviewers in the course of Cain’s
hands-on certification exam.
Therefore, the district court abused its discretion in
refusing to credit this document as evidence that Mr.
Thanongsinh was treated less favorably than a similarly

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No. 05-3002 29
14 Mr. Thanongsinh also suggests that all persons who “partici-
pated in the certification testing” can be considered similarly
situated for the purpose of this analysis, Appellant’s Br. at 23, and
that these non-minority candidates were treated more favorably
than were minority candidates, see id. at 11 (discussing statistical
passage rates). We previously have held that a plaintiff can use
statistical comparisons between himself and those subject to
similar standards but outside of his protected class to develop a
case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See, e.g., Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 669
(7th Cir. 1995); Powers v. Dole, 782 F.2d 689, 695 (7th Cir. 1986).
We have no occasion to address whether the statistical evidence
cited by Mr. Thanongsinh demonstrates that he was treated less
favorably than an individual similarly situated because he fails
to develop his argument in the appropriate fashion. Although he
cites a statistical discrepancy between minority and non-minority
employees in his Statement of Facts, see Appellant’s Br. at 11, he
does not explore the relevance of these statistics nor even contend
that the statistics demonstrate that minorities were treated less
favorably than similarly situated non-minorities. See also Ajayi v.
Aramark Bus. Servs., 336 F.3d 520, 529 (7th Cir. 2003) (“It is not
enough for [plaintiff] merely to refer generally to these actions in
her statement of facts; if she intends to challenge this aspect of the
district court’s ruling, she must identify the legal issue, raise it in
the argument section of her brief, and support her argument with
pertinent authority.”). We therefore deem the argument waived.
situated individual outside of his protected class. 14
3. Pretext
Now that we have determined that Mr. Thanongsinh has
identified a similarly situated individual outside of his
protected class who was treated more favorably than he, the
burden shifts to the defendants to identify a non-discrimina-

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30 No. 05-3002
tory reason for Mr. Thanongsinh’s demotion. The defen-
dants submit that Mr. Thanongsinh was demoted because
he failed to obtain Group V certification, a requirement
imposed on all employees similarly situated to the plaintiff.
The parties dispute whether Mr. Thanongsinh has estab-
lished that the defendants’ proffered reason for demotion is
pretextual, an issue on which Mr. Thanongsinh bears the
burden of proof. The district court disregarded each piece of
evidence cited by Mr. Thanongsinh on this matter as being
based on “pure speculation” or requiring unreasonable
inferences. R.40 at 16. Mr. Thanongsinh now responds that,
taken together, this evidence creates a material issue of fact
regarding whether the true reason for his demotion was his
race.
In order for a plaintiff to show that the defendant’s
explanation for the adverse employment action is
pretextual, he must show more than that the decision was
“mistaken, ill considered or foolish, [and] so long as [the
employer] honestly believes those reasons, pretext has
not been shown.” Ballance v. City of Springfield, 424 F.3d
614, 617 (7th Cir. 2005) (internal quotation marks omitted
and alteration in original). Pretext “means a dishonest
explanation, a lie rather than an oddity or an error.” Id.
(internal quotation marks omitted).
In this case, if the plaintiff is correct that the hands-on
certification exam was administered in a discriminatory
manner, then the defendant’s invocation of the results of
that exam to justify Mr. Thanongsinh’s demotion necessarily
cannot be considered a “legitimate, nondiscriminatory
reason for the [employment decision].” McDonnell Douglas,
411 U.S. at 802. We believe that Mr. Thanongsinh has
created a triable issue of fact regarding whether his hands-
on exam was administered in a discriminatory fashion and,

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No. 05-3002 31
therefore, whether the defendants’ justification for his
demotion is pretextual. Although each piece of evidence
offered by Mr. Thanongsinh may not be sufficient stand-
ing alone to create a material issue of fact for trial, when this
evidence is considered in the aggregate, a reasonable jury
could find discriminatory animus in the scoring of the exam.
First, the differential scoring of Cain and Mr. Thanongsinh
on Topic 9 of the exam is relevant and probative of the
defendants’ intent. Both Mr. Thanongsinh and Cain failed
to bring with them to the hands-on portion of the exam their
M.S.D.S. materials, a prerequisite to being able to answer
questions associated with Topic 9. But, as discussed previ-
ously, Cain’s score sheet indicates that he was asked the
questions relevant to these missing materials and scored 10
out of 10, while the plaintiff was not questioned on this
matter and was awarded zero points. See R.24, Ex.L at D196.
From this evidence, a reasonable jury could infer that Mr.
Javetz scored the hands-on exam differently for minority
and non-minority candidates based on their race.
The defendants respond that the discriminatory scoring of
Topic 9 is irrelevant because, even had he scored 10 out of
10 on this topic, Mr. Thanongsinh still would have failed the
certification exam and would have been demoted. With the
additional 10 points, Mr. Thanongsinh’s hands-on score
would have been 76.62; averaged with his score of 55 on the
written portion of the exam, his composite score would have
been 65.81, which constitutes a failing score under the terms
of the Collective Bargaining Agreement. See Appellee’s Br.
at 17. This argument misapprehends the import of this
evidence under McDonnell Douglas. Even if the discrimina-
tory scoring of Topic 9 was not outcome determinative in
Mr. Thanongsinh’s case, this evidence nevertheless is
relevant in assessing the accuracy of Mr. Thanongsinh’s

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32 No. 05-3002
15 The defendants also contend that Mr. Javetz did not cause the
demotion of Mr. Thanongsinh because he was interviewed and
scored not only by Mr. Javetz but also by Ron Dugo. Dugo,
however, admitted in his deposition testimony that, because Mr.
Javetz was his direct supervisor, he “took the lead role” in
administering the exam. Dugo Dep., R.28, Ex.C at 24. He also
conceded that he and Mr. Javetz would “compare” their scores
after the hands-on interview and change their scores accordingly.
He explained:
Q: Did you compare [interview] notes with [Mr. Javetz]?
A: Yes.
Q: [] [D]id [Mr. Javetz] at any point tell you to change
your score or that Linh should have had a lower score on
a particular topic?
A: Well, its possible, because we did—when we did com-
pare scores, we did change items at times. We would kind of
say give him or take away or—you know, because we both
kind of felt one way or the other. And if he was leading,
which normally he was, I would lean to his decision.
Q: Before you put a check mark in one of the categories, any
of the categories for any of the topics of his scoring sheet, did
you first look to see how [Mr. Javetz] scored it?
A: Sometimes.
Id. at 43-44. This deposition testimony creates a triable issue of
fact regarding whether Mr. Javetz’s allegedly discriminatory
scoring of the hands-on certification exam impacted Dugo’s
(continued...)
overall score on the exam: The fact that Mr. Thanongsinh
was treated differently than non-minority candidates on
Topic 9 is probative evidence that the exam as a whole may
have been administered in a racially discriminatory manner,
affecting the scoring of Mr. Thanongsinh’s performance on
other portions of that exam. 15

-- 32 of 37 --

No. 05-3002 33
15 (...continued)
scoring, and, ultimately, affected Mr. Thanongsinh’s overall score
on the exam.
16 The defendants argue that, because Mr. Thanongsinh did not
describe these events in this fashion in his deposition, his
affidavit should not be considered by this court. To be sure, Mr.
Thanongsinh’s deposition provides only minimal detail about the
grievance meeting and contains no reference to Mr. Javetz
crossing his arms or speaking in an “argumentative manner.”
R.28, Ex.D at 2. We previously have held that “self-serving
statements in affidavits without factual support in the record carry
no weight on summary judgment.” Butts v. Aurora Health Care,
Inc., 387 F.3d 921, 925 (7th Cir. 2004) (emphasis in original).
However, when the affidavit is “supported by facts in the
record,” it can be relied on to survive summary judgment. Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004) (holding that
(continued...)
Mr. Thanongsinh also contends that comments made by
Mr. Javetz at his post-demotion grievance meeting demon-
strate pretext. Specifically, in his affidavit, he claims that,
at this meeting, Mr. Javetz responded without sympathy
to his concerns about the administration of the certifica-
tion exam. According to Mr. Thanongsinh, after explain-
ing his
side of the story regarding the hands-on portion of the
certification testing program[,] Mr. Javetz crossed his
arms and said in an argumentative manner that he
could not understand me. He immediately thereafter
stated that I should learn better English.
R.28, Ex.D at 2 (also claiming that these comments were
unprovoked by statements by the plaintiff “in regard to the
written portion of the certification test or [his] English
language abilities”). 16

-- 33 of 37 --

34 No. 05-3002
16 (...continued)
the court may consider self-serving statements in an affidavit at
summary judgment if they: (a) “have factual support in the
record”; and (b) are based on “personal knowledge” (internal
quotation marks omitted)). In this case, as in Butts,
Mr. Thanongsinh’s description of events has factual support
in the record. The defendants admit that, in his deposition
testimony, Mr. Thanongsinh described the event generally and
acknowledged Mr. Javetz’s statement about needing to learn
better English. Although the affidavit did include additional
detail about the event, this description was not “materially
different from positions taken in the past” and therefore can be
considered by this court on appeal. United States v. Funds in
Amount of $30,670, 403 F.3d 448, 466 (7th Cir. 2005).
17 By contrast, Mr. Thanongsinh’s discussion of the “calming
instructions” given by one of the interviewers, Cathy McNamara,
is unavailing. According to Mr. Thanongsinh, in the course of
administrating the hands-on portion of the exam, McNamara
routinely gave interviewees instructions to “calm them down a
little bit.” Appellant’s Br. at 12. But the plaintiff can point to no
evidence that either Mr. Javetz or Dugo, the administrators of Mr.
Thanongsinh’s exam, ever gave these same instructions, much less
that they gave the instructions selectively only to Caucasian
candidates. In the absence of such evidence, this argument does
not support an inference of pretext.
Under McDonnell Douglas, “the task of disambiguating
ambiguous utterances is for trial, not for summary judg-
ment.” Huff v. UARCO, Inc., 122 F.3d 374, 384 (7th Cir. 1997)
(internal quotation marks omitted). Construing the evidence
in the light most favorable to Mr. Thanongsinh, as is
required at this stage of proceedings, Mr. Javetz’s remark
about the plaintiff’s English language abilities shows
pretext. 17 Although the defendants characterize this com-
ment as a “stray remark[]” and as helpful advice, see

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No. 05-3002 35
Appellees’ Br. at 23 (noting that Mr. Javetz simply suggested
to the plaintiff that he “explore low cost options” to improve
his English abilities), the context of the statement—a
grievance meeting at which the reasons for the demotion of
an Asian-American custodian were being explored by union
and School District representatives—leads us to conclude
that the statement could be interpreted reasonably by a juror
as probative evidence that Mr. Javetz harbored animus
against persons for whom English is a second language.
This is particularly true given that the comments were made
by Mr. Javetz “close in time and in substance to the alleged
act of discrimination.” Volovsek v. Wisconsin Dept. of Agric.,
Trade & Consumer Protection, 344 F.3d 680, 690 (7th Cir.
2003). Because determining the significance of these events
is a task more appropriate “for trial, not for summary
judgment,” Huff, 122 F.3d at 384 (internal quotation marks
omitted), we reverse the judgment of the district court that
the plaintiff did not meet his burden under McDonnell
Douglas of showing that the defendants’ proffered reason for
his demotion was pretextual. We remand for proceedings
consistent with this opinion.
B. 42 U.S.C. § 1981
Like Title VII, section 1981 prohibits discrimination
against an employee, and “[t]he same standards governing
liability under Title VII apply to section 1981.” Gonzalez v.
Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir.
1998); see also Bennett v. Roberts, 295 F.3d 687, 697 (7th Cir.
2002). Section 1981, however, is limited in scope to dis-
crimination on the grounds of race in the “mak[ing] and
enforc[ing] [of] contracts.” 42 U.S.C. § 1981(a). We have
concluded that Mr. Thanongsinh has created an issue of
material fact with regard to whether he was demoted

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36 No. 05-3002
because of his race in violation of Title VII; therefore,
we only must concern ourselves with the question of
whether the alleged discrimination took place in the context
of the making or enforcing of a contract.
The defendants contend that, even if Mr. Thanongsinh has
established a prima facie case of discrimination, Mr. Javetz
did not interfere with the making or enforcement of a
contract and therefore cannot be held liable under § 1981.
The defendants do not dispute that Mr. Thanongsinh’s
employment with the School District was governed by
contract, or that his demotion constitutes interference with
the terms of a contractual relationship. Instead, they submit
that there is no causal relationship between the alleged
discrimination and the contractual interference. Because Mr.
Thanongsinh’s “title, responsibilities, and compensation”
were altered only after he failed the written exam on his
third attempt, the defendants contend, the change in
contractual terms can be attributed to his own incompe-
tence, rather than to any particular action taken by the
School District or by Mr. Javetz. Appellees’ Br. at 26.
This argument relies on the same bootstrapping we
already have disclaimed. Mr. Thanongsinh has created a
triable issue of fact that he failed the certification exam
only because it was scored in a discriminatory manner; if a
jury finds in Mr. Thanongsinh’s favor on his Title VII claim,
it also could conclude that, but for the defendants’ actions,
Mr. Thanongsinh would not have been required to retake
the test and no demotion—and thus no change in his
contractual relationship with the School District— would
have occurred. We therefore reverse the district court’s
judgment granting summary judgment to Mr. Javetz in his
individual capacity on Mr. Thanongsinh’s § 1981 claim and
remand for further proceedings consistent with this opinion.

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No. 05-3002 37
Conclusion
For the reasons set forth in the foregoing opinion, we
affirm the district court’s dismissal of Mr. Thanongsinh’s
Title VII claim against Mr. Javetz in his official capacity. We
reverse the district court’s order granting summary judg-
ment to the defendants on Mr. Thanongsinh’s Title VII claim
against the School District and on Mr. Thanongsinh’s § 1981
claim against Mr. Javetz in his individual capacity. We
remand for proceedings consistent with this opinion. Mr.
Thanongsinh may recover his costs in this court.
A FFIRMED IN PART ;
R EVERSED AND R EMANDED IN PART
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-13-06

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