On June 13, 2014, the 7th Circuit affirmed the district court’s grant of summary judgment on claims for national origin discrimination and retaliation under Title VII and Section 1981. Huang v. Continental Casualty Company, No. 12-1300 (7th Cir.) June 13, 2014. In order to establish a prima facie case of national origin discrimination under Title VII or Section 1981, the plaintiff was required to offer evidence that: (1) he is a member of a protected class; (2) he was meeting his employer’s legitimate performance expectations; (3) he suffered an adverse employment action; and (4) other similarly situated non-Chinese or non-Asian employees were treated more favorably. Unless all these elements are met, the claim fails. The plaintiff contended that the employer applied its job expectations unequally; so the elements of performance and disparate treatment merge. The employer contended that it terminated the plaintiff because he refused to follow a weekend-hours job requirement. The 7th circuit rejected the plaintiff’s argument that he met the employer’s job expectations by offering alternative scheduling. Employers are entitled to determine their own scheduling needs and decide whether employees are meeting them. The plaintiff’s argument that pager duty was illegitimate because it was not in the written job description also failed. Job duties do not have to be listed in a job description in order to be valid employment expectations. The plaintiff also provided no evidence of disparate treatment. In order to survive summary judgment, he had to identify at least one similarly situated non-Chinese employee who was treated more favorably under similar circumstances. The plaintiff failed to satisfy the elements of a prima facie case of employment discrimination; consequently, pretext does not even come into play.

Summary judgment was also affirmed on the plaintiff’s retaliation claim because he did not engage in protected activity. He did not make a complaint about unlawful discrimination. He only complained about workplace favoritism and a comment by his supervisor, without any evidence that his complaints were about unlawful discrimination. No protected activity, no retaliation claim.