On July 10, 2014, the 7th Circuit affirmed summary judgment in a Title VII national origin discrimination and retaliation case. Tank v. T-Mobile USA, Inc., No. 13-1912 (7-10-2014). In its decision, the 7th Circuit discussed discriminatory remarks, similarly-situated comparators, and pretext. In order to raise an inference of discrimination, a discriminatory remark must be: (1) made by the decision-maker, (2) around the time of the decision, and (3) in reference to the adverse employment action. Isolated discriminatory comments made more than a year before the adverse employment action are not evidence of discrimination. In Tank, the plaintiff alleged that a decision-maker had mocked his Indian accent. However, the incident happened more than three years before his employment termination and, therefore, did not raise an inference of discrimination.

A similarly situated employee is one whose performance, qualifications, and conduct are comparable in all material respects. In Tank, the plaintiff alleged that he was paid less than similarly-situated non-Indian employees. However, the other employees were not valid comparators who were similarly-situated, because they had different standards, compensation schemes, experience, education, and qualifications. The fact that they held the same job title as the plaintiff and he was paid less was not enough to survive summary judgment.

The plaintiff also contended that the employer’s proffered reasons for his termination were pretext for discrimination. In order to establish pretext, a plaintiff must demonstrate that the employer’s proffered reasons for the employment decision are unworthy of credence. Pretext may be established with evidence that the proffered reasons: (1) are factually baseless; (2) were not the actual motivation for the decision; or (3) were insufficient to motivate the decision. Without evidence that the employer’s proffered reasons are pretextual, a discrimination or retaliation claim fails, as was the case in Tank.