Robert Leonard v. Eastern Illinois University

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2443
ROBERT LEONARD,
Plaintiff-Appellant,
v.
EASTERN ILLINOIS UNIVERSITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07 C 2172—Michael P. McCuskey, Chief Judge.
SUBMITTED FEBRUARY 8, 2010—DECIDED MAY 26, 2010
Before BAUER, EVANS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Robert Leonard, a Native Ameri-
can, worked at Eastern Illinois University (“EIU”) for
nearly twenty years, during which time EIU passed him
over for several promotions. Believing that the most
recent denied promotion was motivated by anti-Native
American bias, Leonard sued EIU under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 - 2000e-17.
The district court granted summary judgment in favor

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2 No. 09-2443
of EIU, and in Leonard’s appeal, we consider de novo
whether the following evidence, construed in Leonard’s
favor, creates a triable issue on his Title VII claim. See
Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010).
Leonard is a Native American through the family history
of his father, who was a member of the Saginaw Band of
the Ojibway Nation. While at EIU, Leonard worked as a
“building services worker,” a janitorial and mechanical
support position, but his time on campus was more than
a job for a paycheck. Leonard was an outspoken advocate
on Native American issues, and he frequently com-
plained to the EIU student newspaper about Native-
American-related articles or advertisements that he
found offensive.
Leonard was a particular critic of “Chief Illiniwek,” the
image formerly used by the University of Illinois at
Urbana-Champaign (“U of I”) to represent University
athletics. Leonard was not alone in opposing the Chief,
which had generated controversy for decades. See, e.g.,
Jodi S. Cohen, Hail to the Chief—and Farewell, Chi. Trib.,
Feb. 22, 2007, at 1; Tracy Dodds, Illinois Fans Still Divided
Over Use of Mascot, Indianapolis Star, Sept. 4, 2005, at C1.
But Leonard’s opposition even led to a nationally publi-
cized lawsuit. Sometime around 2005, Leonard sued the
“Honor the Chief Society” for denying him entry to the
showing of a pro-Chief movie, allegedly based on his
Native American status. Leonard’s involvement in the
lawsuit, which ultimately settled out of court, received
CNN news coverage.
As mentioned, in between his civil rights activities,
Leonard had a regular job at EIU as a building services

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No. 09-2443 3
worker. Over the years, Leonard participated in several
interviews (four or five, he didn’t recall exactly) for
promotion to the more supervisory “building services
subforeman,” but none led to a promotion. One of the
more recent interviews, on March 24, 2005, triggered the
dispute that is the basis of this lawsuit.
Leonard interviewed before a panel of six EIU supervi-
sors: Herb McElwee, Travis Magee, Valerie Leonard
(no relation), Kevin Larkin, Steven Gilbert, and John Sigler.
Although the appellant had worked with all of these
people before, the interview started out tensely for him
when McElwee and Magee removed their jackets to
reveal shirts with the Chief Illiniwek logo.
McElwee’s and Magee’s choice to wear Chief shirts that
day might have been unremarkable given the “March
Madness” context. During the 2005 college basket-
ball season, the U of I men’s team was making a strong
showing in the NCAA tournament. In fact, on the very
March 24 date of Leonard’s interview, the Fighting Illini
were scheduled to play (and ultimately won) a Sweet
Sixteen match against the University of Wisconsin—
Milwaukee. This Illini basketball hype provides one
possible, innocuous explanation for McElwee’s and
Magee’s Chief shirts. As Leonard acknowledged during
his deposition, the EIU campus was home to many Illini
fans, who frequently wore Chief apparel during the
2005 season.
Still, March Madness aside, Leonard thought that
McElwee and Magee wore their Chief shirts as a state-
ment against Leonard’s opposition to Chief Illiniwek. He

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4 No. 09-2443
was offended by the shirts and felt that his anger came
across during the interview, negatively affecting his
performance. As it turned out, Leonard didn’t get the
promotion after his March 2005 interview, but notably,
no one else was promoted to building services subfore-
man at that time. The record does not reveal how many
other candidates, if any, participated in the March 2005
interviews, how Leonard performed compared to those
candidates, or why no one was promoted.
Shortly after his interview, in April 2005, Leonard made
a complaint to EIU’s Office of Civil Rights about
McElwee’s and Magee’s Chief shirts. After hearing Leon-
ard’s complaint, a representative from the civil rights
office told McElwee and Magee not to wear Chief apparel
when dealing with Leonard, and Leonard said that he
was satisfied with this outcome.
Several months later, in October 2005, Leonard inter-
viewed again for the building services subforeman job
along with seven other candidates. The interview panel
consisted of the same six supervisors, none of whom
wore anything Illini-related or otherwise offensive to
Leonard. Leonard thought that he interviewed well, but
unfortunately, he didn’t do well enough to get the promo-
tion. Based on the numerical scoring system used by
the panel, Leonard ranked seventh out of the eight candi-
dates. Only the candidates with the top three scores
were promoted.
Leonard sued EIU under Title VII, claiming that the
interview panel’s decision not to promote him was re-
taliation for his April 2005 civil rights complaint about

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No. 09-2443 5
the Chief Illiniwek shirts. The district court granted
summary judgment in favor of EIU, concluding that
Leonard had no evidence linking the denied promotion
to the civil rights complaint. Leonard appeals.
The controversy surrounding the use of Chief Illiniwek
to symbolize U of I athletics is not new to this court. In
Crue v. Aiken, 370 F.3d 668, 678-80 (7th Cir. 2004), we
addressed the tension between students’ First Amend-
ment right to protest the Chief and the smooth operation
of the University’s athletic programs. (While the free
speech issues in Crue were important, the Crue opinion’s
lasting contribution may be its scholarly discussion of
great college nicknames, including the all-time favorite
“Banana Slug” of the University of California—Santa
Cruz. Id. at 671-72.) Fortunately, this case does not
require us to delve into the Chief controversy, which is
relevant only insofar as it relates to the April 2005
civil rights complaint underlying Leonard’s Title VII
retaliation claim.
Title VII prohibits an employer from retaliating
against an employee for conduct that is protected under
the Act. See 42 U.S.C. § 2000e-3(a). A plaintiff may
make out a Title VII retaliation claim using either the direct
or indirect method of proof, although the distinction
between the two methods “is often fleeting.” Turner, 595
F.3d at 688 (quoting Martino v. MCI Commc’ns Servs., Inc.,
574 F.3d 447, 452 (7th Cir. 2009)). The direct method
requires “evidence of (1) a statutorily protected activity;
(2) a materially adverse action taken by the employer;
and (3) a causal connection between the two.” Id. at 687

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6 No. 09-2443
(citation omitted). The indirect method also requires
evidence of the first two elements, “but instead of proving
a direct causal link, the plaintiff must show that he was
performing his job satisfactorily and that he was treated
less favorably than a similarly situated employee who
did not complain of discrimination.” Stephens v. Erickson,
569 F.3d 779, 786-87 (7th Cir. 2009) (citation omitted).
Leonard argues that he has shown a triable issue
under the direct method of proof, and EIU responds that
Leonard’s case fails on each of the three direct-method
elements. We need only focus on the third element,
whether Leonard can establish a causal connection be-
tween his civil rights complaint and EIU’s failure to
promote him.
From our review of the record, Leonard simply lacks
any evidence linking his April 2005 Chief-related com-
plaint to his denied promotion. Leonard has presented
no evidence that any of his interviewers, or anyone else
at EIU, was angered by the complaint. On the contrary,
although Leonard testified that he didn’t have “great
respect” for EIU’s civil rights office, he acknowledged
that EIU encouraged its employees to bring forth com-
plaints of discrimination whenever they felt necessary.
The scoring results for Leonard’s October 2005 inter-
view also contain no hint of unlawful discrimination.
Under the interview process, the interview panel asked
each candidate a series of standardized, pre-written
questions. Each interviewer then gave the candidate a
score of 1 to 5 points in each of five job-related categories,
for a possible total score of 5 to 25 from each interviewer

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No. 09-2443 7
and, with six interviewers, a possible combined total
score of 30 to 150. The interviewers were all consistent
in scoring Leonard among the bottom 50% of the candi-
dates. Leonard’s resulting combined total score of 109
placed him only seventh out of the eight candidates, far
from the top three who earned a promotion.
Given the standardized interview format and the con-
sistency of the interviewers’ scoring, Leonard cannot
show that any interviewer(s) denied him a promotion
in retaliation for his civil rights complaint. See id. at 788
(describing a similar interview process with standardized
questions and numerical scoring as “reasonable and fair”).
Notably, McElwee and Magee, the Chief shirt wearers
most likely to be upset over Leonard’s complaint, gave
Leonard scores that were within the mainstream.
McElwee’s and Magee’s total scores for Leonard were
19 and 18, respectively, which were actually higher than
the 17 given by Larkin and the 16 given by Sigler. True,
McElwee and Magee gave Leonard the lowest score of
any candidate, but so did Valerie Leonard and Gilbert.
This consistent scoring pattern by the interviewer panel
suggests only that Leonard was outperformed by other
candidates, not that he was the target of retaliation.
Leonard argues that “suspicious timing” between his
civil rights complaint and his denied promotion implies
a causal relationship, but we are unpersuaded. The six-
month lag between Leonard’s April 2005 complaint to
the civil rights office and his October 2005 unsuccessful
interview is too long to infer a link between the two.
See Turner, 595 F.3d at 687 (finding no connection

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8 No. 09-2443
between a firing and the employee’s complaints of
sexual harassment more than a half year earlier);
Argyropoulos v. City of Alton, 539 F.3d 724, 734 (2008) (same
where time interval was seven weeks); cf. Spiegla v. Hull,
371 F.3d 928, 943 (7th Cir. 2004) (inferring causation
where an unfavorable job transfer occurred just four
days after the employee’s protected speech).
The timing issue might be closer if we considered the
period immediately after Leonard’s March 2005 inter-
view, rather than after his October 2005 interview, as
the time when the denied promotion took place. If the
interview panel’s decision not to promote Leonard based
on his March interview came shortly after Leonard’s Chief-
related complaint against McElwee and Magee, this
close temporal connection could bolster a circumstantial
case of retaliation. Unfortunately for Leonard, his
evidence does not establish such a close sequence of
events. The record shows that Leonard interviewed on
March 24, 2005, and then made his civil rights com-
plaint sometime in April 2005, but Leonard offered no
evidence on when the panel made its decision in relation
to these two events. Very conceivably, the decision not
to promote Leonard after his March interview came
well before he made his April civil rights com-
plaint, in which case Leonard’s claim of suspicious
timing unquestionably fails. For a suspicious-timing
retaliation theory, the order of events is even more im-
portant than the time between them; the theory doesn’t
work if the retaliatory act precedes the protected activity.
Even assuming that the decision not to promote
Leonard came “on the heels” of his April 2005 civil rights

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No. 09-2443 9
complaint, Spiegla, 371 F.3d at 943, Leonard still could not
avoid summary judgment because “suspicious timing
alone is insufficient” to support a Title VII retaliation
claim. Turner, 595 F.3d at 687 (quotation omitted). The
timing issue is even less significant in this case given
the fact that, during his career at EIU, Leonard had
several unsuccessful interviews for a promotion. Since
Leonard repeatedly failed to get a promotion in prior
years, EIU’s decision not to promote him in 2005 was not
“suspicious.” Cf. Spiegla, 371 F.3d at 943 (noting that the
adverse job transfer occurred after seven years of unin-
terrupted postings on the plaintiff’s preferred job).
In a last effort to avoid summary judgment, Leonard
points to comments by two of his interviewers, Larkin
and Gilbert, that purportedly show an anti-Native Ameri-
can bias. We may easily dismiss these as “stray remarks”
that do not show that either Larkin or Gilbert used
the interview process to retaliate against Leonard’s
civil rights complaint. Petts v. Rockledge Furniture LLC,
534 F.3d 715, 721 (7th Cir. 2008).
The Larkin comment came in 1994 or 1995, after Leonard
had filed a complaint with the civil rights office about
EIU students making Chief-related statements towards
him. Following that complaint, Larkin allegedly told
Leonard “that if I [Leonard] cut my hair and act like
others, I wouldn’t have as many problems as I did.”
Assuming that Larkin’s comment could suggest some
level of anti-Native American bias, it is far too remote
from the 2005 denied promotion to help Leonard’s case.
To support an inference of retaliation, a discriminatory

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10 No. 09-2443
comment must be related in both time and subject matter
to the adverse employment action. See id. Larkin’s com-
ment was neither, as it came a decade before Leonard’s
2005 interview and had nothing to do with his prospects
for promotion. See id. (dismissing an offhand, sexist
comment that occurred more than a year before the em-
ployee’s firing).
The Gilbert comment identified by Leonard is equally
remote. Sometime during the 1990s, Leonard confronted
the Illinois governor during a town hall meeting, com-
plaining that the governor had not responded to
Leonard’s multiple applications to meet and discuss
Native American issues. In connection with this
complaint to the governor, Gilbert allegedly commented
that Leonard “didn’t know his place.” Whatever Gilbert
meant by this ambiguous comment, it was entirely unre-
lated to the decision several years later not to promote
Leonard to a building services subforeman.
In sum, Leonard lacks evidence that EIU officials
refused to promote him in retaliation for his April 2005
civil rights complaint, or for that matter any reason
other than his relatively poor interview performance. We
AFFIRM the district court’s grant of summary judgment
in favor of EIU.
5-26-10

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