Brian Murphy v. Caterpillar Inc.

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1517
BRIAN J. MURPHY,
Plaintiff-Appellant,
v.

CATERPILLAR INC.,
Defendant-Appellee.
____________________

Appeal from the United States District Court for the
Central District of Illinois.
No. 1:21-cv-01282-JES-JEH — James E. Shadid, Judge.
____________________

ARGUED DECEMBER 4, 2024 — DECIDED JUNE 18, 2025
____________________

Before HAMILTON, JACKSON-AKIWUMI, and PRYOR, Circuit
Judges.
HAMILTON, Circuit Judge. In this appeal, evidence conﬂict-
ing with an employer’s stated justiﬁcations for adverse em-
ployment action permits a reasonable inference of pretext and
unlawful intent. Plaintiﬀ-appellant Brian Murphy alleges that
his former employer, Caterpillar Inc., constructively dis-
charged him based on his age and his prior assertions of his
rights in violation of the Age Discrimination in Employment
2 No. 24-1517

Act of 1967 (ADEA),
29 U.S.C. § 623
(a). The district court
granted summary judgment for Caterpillar.
We reverse on Murphy’s age discrimination claim but af-
ﬁrm on his retaliation claim. Murphy presented suﬃcient ev-
idence for a reasonable jury to ﬁnd constructive discharge.
Caterpillar placed him on a performance action plan written
so that he had already failed, and it then refused to amend the
plan when he pointed out that ﬂaw. Murphy also oﬀered ev-
idence that his performance history over decades, including
his most recent review, contradicted Caterpillar’s stated ra-
tionale for the adverse action—namely, that his performance
was substandard. Murphy also presented evidence that Cat-
erpillar oﬀered inconsistent explanations for the adverse ac-
tion, which also supports a reasonable inference of pretext.
Caterpillar may ultimately persuade a jury that its reasons for
implementing the performance action plan were not discrim-
inatory, but the case calls for trial on that issue rather than
summary judgment. St. Mary’s Honor Center v. Hicks,
509 U.S.
502, 511
(1993) (evidence of pretext permits inference of un-
lawful discrimination).
On Murphy’s retaliation claim, more than a decade passed
between his protected activity and the adverse employment
action. That makes any causal connection implausible, and
the record contains no evidence of retaliatory animus. Also,
key Caterpillar managers had an earlier opportunity to retal-
iate against him if they had been so inclined but did not do so.
On this record, no reasonable jury could ﬁnd that Caterpillar
unlawfully retaliated against Murphy.
No. 24-1517 3

I. Factual and Procedural History
We set forth the relevant facts through the summary judg-
ment lens, construing the evidence in the light most favorable
to Murphy as the non-moving party. E.g., Trade Finance Part-
ners, LLC v. AAR Corp.,
573 F.3d 401, 406
(7th Cir. 2009). To
survive summary judgment, a party must point to speciﬁc
facts showing that there is a genuine issue for trial.
Id.
at 406–
07.
A. Murphy’s History with Caterpillar
Plaintiﬀ Murphy was born in 1959 and was 58 years old
when his employment with Caterpillar ended. He began
working for Caterpillar—a manufacturer of construction and
mining equipment, engines, turbines, and locomotives—in
1979, at the age of nineteen. During his ﬁrst fourteen years
working for Caterpillar, he obtained an engineering degree
and was promoted to Senior Design Engineer.
In August 2000, Murphy and several other engineers—all
then over the age of 40—were passed over for promotion.
Murphy complained that he was not promoted because of his
age and was later placed on a performance action plan. In No-
vember 2000, Caterpillar ﬁred him. Murphy sued Caterpillar
for age discrimination and unlawful retaliation. The court
granted summary judgment for Caterpillar on the age dis-
crimination claim, but the retaliation claim went to trial. A
jury found in Murphy’s favor and awarded him double his
lost wages. The district court ordered Caterpillar to reinstate
Murphy. In January 2005, Murphy and Caterpillar settled that
case on terms that reinstated Murphy and included a promise
from Caterpillar not to retaliate against him.
4 No. 24-1517

In 2008, Murphy was promoted to a leadership role in Cat-
erpillar’s Sound Program, an engineering team focused on re-
ducing engine noise. From 2010 through January 2013, Mur-
phy reported directly to Jim Sibley. Then, in January 2013,
Matthew Rampenthal became Murphy’s supervisor. At some
in point in 2013—the record does not specify exactly when—
Sibley told Murphy that he was aware of his earlier lawsuit.
Around the same time, Sibley also informed Rampenthal of
the previous litigation.
Rampenthal appeared satisﬁed with Murphy’s perfor-
mance and conduct. From 2013 to 2017, Murphy’s perfor-
mance reviews consistently indicated that he either met or ex-
ceeded expectations.
In late 2015, Caterpillar introduced a voluntary retirement
program oﬀering a severance package and additional retire-
ment beneﬁts to employees aged 55 and older who chose to
retire. At 56 years old, Murphy was eligible but decided not to
retire at the time. In early 2016, Caterpillar management
asked Murphy to lead eﬀorts to reduce sound in a new engine
model. He accepted the assignment while continuing to fulﬁll
his existing responsibilities as a “Job Owner Lead.” Driven by
Murphy’s leadership and technical expertise, the sound re-
duction project was completed in late 2017 and was praised in
Caterpillar’s internal communications.
B. Caterpillar Takes Action Against Murphy
In mid-January 2018, shortly after successful completion
of the engine sound reduction project, managers seemed to
turn against Murphy. Rampenthal met with Heather Huber
from Caterpillar human resources and told her that Murphy’s
performance had declined and that he was not working the
No. 24-1517 5

expected number of hours. Rampenthal asked Huber to doc-
ument Murphy’s time spent at Caterpillar’s oﬃces from Oc-
tober 2017 to February 2018.
On March 8, 2018, Murphy met with Rampenthal to dis-
cuss his 2017 ﬁnal performance review. Murphy met or ex-
ceeded expectations in every evaluation category. But about a
week later, on March 16, Rampenthal and Huber told Murphy
that he would be placed on a performance action plan. Ramp-
enthal and Huber presented PowerPoint slides to Murphy
outlining several areas of concern, including his job perfor-
mance, attendance, interpersonal relationships, and leader-
ship style.
On March 26, 2018, Murphy met with Rampenthal and
Huber to review the proposed action plan. The action plan
outlined several areas for improvement based on alleged
changes in Murphy’s performance over the preceding three
months, including the issues addressed in the PowerPoint
presentation. The plan also stated that Murphy’s “failure to
successfully complete and sustain improvement on the action
item(s) listed above could result in reassignment, demotion,
and/or disciplinary action, up to and including separation.”
The next day, Rampenthal sent Murphy a copy of the plan
and asked him to identify any concerns by March 28.
On March 28, Murphy emailed Rampenthal and Huber
with his reservations regarding the action plan. Most relevant
for this appeal, Murphy objected that the deadline for one ac-
tion item had already passed. That meant he was already in
violation of the plan as written. The following morning,
though, Huber told Murphy that she and Rampenthal would
“not be changing any part of the action plan.” On March 29,
Huber delivered a copy of the ﬁnal action plan to Murphy. It
6 No. 24-1517

was identical to the proposed plan. Also important to this ap-
peal, Huber, Rampenthal, and Rampenthal’s supervisor had
already signed the portion of the plan indicating with their
signatures that Murphy had failed to meet its requirements.
Believing that putting him on a performance action plan that
he had already violated was merely a pretext for his termina-
tion, Murphy refused to agree to its terms. He submitted his
notice of retirement on April 2, 2018.
Murphy then ﬁled this suit. Following discovery, the dis-
trict court granted summary judgment for Caterpillar on all
claims. Murphy v. Caterpillar Inc.,
2024 WL 520020
(C.D. Ill.
Feb. 9, 2024). Murphy has appealed, and we have appellate
jurisdiction under
28 U.S.C. § 1291
.
II. Rampenthal’s “Desk Notes”
Before turning to the merits, we ﬁrst address an eviden-
tiary issue that can arise in many employment discrimination
cases, when a manager keeps a plaintiﬀ-speciﬁc log of obser-
vations and criticisms. In this case, Caterpillar supported its
motion for summary judgment with a collection of Rampen-
thal’s personal notes—referred to as his “desk notes”—about
Murphy. In opposing summary judgment, Murphy chal-
lenged the admissibility of the notes. He repeated his objec-
tion in his post-judgment motion under Federal Rule of Civil
Procedure Rule 59(e) and on appeal.
Evidence supporting and opposing a motion for summary
judgment must be admissible in the same manner as at trial,
except that parties may rely on sworn declarations in lieu of
live testimony. See Baines v. Walgreen Co.,
863 F.3d 656, 662
(7th Cir. 2017), citing Federal Rule of Civil Procedure 56(c)(2);
Malin v. Hospira, Inc.,
762 F.3d 552
, 554–55 (7th Cir. 2014);
No. 24-1517 7

Widmar v. Sun Chem. Corp.,
772 F.3d 457, 460
(7th Cir. 2014).
Rampenthal’s desk notes critical of Murphy ﬁt the deﬁnition
of hearsay: they contain out-of-court statements oﬀered for
the truth of their contents—namely, that Murphy failed to
meet Caterpillar’s performance expectations in various ways.
See Federal Rule of Evidence 801(c). Accordingly, the desk
notes are inadmissible unless they fall within a recognized ex-
ception to the hearsay rule. 1
Caterpillar defends the district court’s reliance on the
notes based on the business records exception to hearsay in
Federal Rule of Evidence 803(6). We conclude that Rampen-
thal’s notes do not meet the requirements for the business rec-
ords exception. Rule 803(6) excepts from the rule against hear-
say:
(6) Records of a Regularly Conducted Activity.
A record of an act, event, condition, opinion, or
diagnosis if:
(A) the record was made at or near the
time by—or from information transmit-
ted by—someone with knowledge;

1 In its text-only order denying Murphy’s Rule 59(e) motion, the dis-

trict court did not analyze the admissibility of the desk notes under any
specific exception to the hearsay rule. Instead, in denying the motion, the
court appeared to rely on Rampenthal’s sworn declaration, which it char-
acterized as attesting that the desk notes were “true and correct.” To be
sure, a hearsay objection can be overcome if a witness testifies in court or
in an affidavit on summary judgment so as to adopt the truth of the out-
of-court statement. The problem here is that the court’s description of the
Rampenthal declaration was not accurate. He testified only that the desk
notes were true and correct copies of the originals—not that the contents of
the notes were in fact accurate.
8 No. 24-1517

(B) the record was kept in the course of a
regularly conducted activity of a busi-
ness, organization, occupation, or call-
ing, whether or not for proﬁt;
(C) making the record was a regular
practice of that activity;
(D) all these conditions are shown by the
testimony of the custodian or another
qualiﬁed witness, or by a certiﬁcation
that complies with Rule 902(11) or (12) or
with a statute permitting certiﬁcation;
and
(E) the opponent does not show that the
source of information or the method or
circumstances of preparation indicate a
lack of trustworthiness.
“To be admissible as a business record, a document must have
suﬃcient indicia of trustworthiness to be considered relia-
ble.” Woods v. City of Chicago,
234 F.3d 979, 988
(7th Cir. 2000).
Indicia of trustworthiness include factors such as systematic
checking, habits of precision on the part of the keeper, reliance
by others on the records, or a duty to record accurately.
5 Weinstein’s Federal Evidence § 803.08 (2025).
Typically, “to demonstrate such trustworthiness and reli-
ability 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 anyone qualiﬁed
to speak from personal knowledge that the documents were
admissible business records.” Woods,
234 F.3d at 988
. Such an
No. 24-1517 9

aﬃdavit is generally required unless limited exceptions ap-
ply—for example, where the opposing party has previously
relied on or conceded the accuracy of the records.
Id.
at 988–
89. Caterpillar does not argue that any such exception applies
here.
Caterpillar instead argues that the notes are admissible be-
cause Rampenthal “properly laid a foundation to establish
that his desk notes are business records.” In support, it relies
primarily on Komal v. Arthur J. Gallagher & Co.,
833 F. Supp. 2d
855, 864
(N.D. Ill. 2011), where the district court granted in
part an employer’s motion for summary judgment in an em-
ployment case. The court relied on hearsay statements found
in emails, meeting memoranda, performance evaluations,
corporate policies, and disciplinary records under the busi-
ness records exception.
Id.
at 859–60.
We do not disagree with Komal, but its treatment of that
evidence does not apply to the desk notes here for two rea-
sons. First, the documents admitted in Komal were accompa-
nied by an aﬃdavit from a qualiﬁed aﬃant who attested that
they were either drafted by him or “created in the normal
course of business overseen by him.”
Id. at 859
. Rampenthal’s
declaration in this case lacks such a statement. This is espe-
cially important because it is not self-evident from the docu-
ments that they were created in the regular course of business.
To the contrary, it appears that Rampenthal made these desk
notes only with reference to Murphy and the speciﬁc occa-
sions when Murphy reported to him. Rampenthal’s declara-
tion said: “While Murphy reported to me, I took contempora-
neous notes regarding meetings, incidents and discussions I
had with Murphy and others regarding Murphy’s employ-
ment….” Second, the plaintiﬀ in Komal “admitted nearly all of
10 No. 24-1517

the factual allegations based on those documents,” even
where the documents themselves lacked accompanying aﬃ-
davits.
Id.
In contrast, Murphy has expressly disputed the as-
sertions regarding his performance in Rampenthal’s desk
notes.
The hearsay evidence here is far more like the evidence
excluded in Jones v. Board of Trustees of Community College Dist.
No. 508,
75 F. Supp. 2d 885
(N.D. Ill. 1999). There, the defend-
ant-employer ﬁled a motion in limine seeking to enter into ev-
idence a supervisor’s notes regarding the plaintiﬀs’ perfor-
mance. The district court found that the notes did not meet
the criteria for the business records exception. The employer
failed to demonstrate “that making personal ﬁle notes about
employees’ performance was a regularly conducted business
practice or that such evaluations were recorded as a matter of
regular practice.”
Id.
at 888–89. Accordingly, the court rea-
soned: “The memoranda were ‘not created with the kind of
regularity or routine which gives business records their inher-
ent reliability….’”
Id. at 889
, quoting Pierce v. Atchison Topeka
& Santa Fe Railway Co.,
110 F.3d 431, 444
(7th Cir. 1997).
The notes in Jones simply did not have indicia of reliability
required for the business records exception. The supervisor’s
notes were “not systematically checked by anyone else; noth-
ing indicates that he has any special habits of precision or that
anyone else relied on these records; and he was under no duty
to record that information accurately.”
Id.
Instead, the circum-
stances suggested that the supervisor may have had an incen-
tive to create a favorable record in preparation for litigation,
potentially undermining the reliability of the notes.
Similarly, here, Caterpillar has not shown that Rampen-
thal regularly took notes on other employees besides Murphy.
No. 24-1517 11

As with the notes in Jones, no evidence suggests that Rampen-
thal (or any other Caterpillar employee) systematically
checked his notes for accuracy. Nor is there evidence that
Rampenthal had special duties or habits of precision or that
anyone else within Caterpillar relied on his notes to make de-
cisions. There is no sign of any other internal mechanism that
would ensure these records were accurate.
The reasoning of Jones on this issue is consistent with our
decision in Pierce v. Atchison Topeka & Santa Fe Railway Co., su-
pra, which the Jones court cited. In Pierce, the district court
held that a memorandum prepared by the plaintiﬀ’s supervi-
sor summarizing a meeting during which the plaintiﬀ ac-
cepted a severance package and signed a release relinquish-
ing any claims against his former employer did not qualify as
a business record.
110 F.3d at 444
. We aﬃrmed on grounds
that apply here. The supervisor testiﬁed that he maintained
personnel ﬁles in the ordinary course of business and that he
drafted memoranda to document unique interactions with
employees. However, he also conceded that it was not cus-
tomary for him to draft such memoranda. Despite arranging
“six or eight” comparable releases, he had never drafted a
similar memorandum in connection with execution of a sev-
erance agreement.
Id.
We aﬃrmed because the district court’s exclusion “was
sensitive to the concerns embodied in Rule 803(6)” as the su-
pervisor’s memorandum “was not created with the kind of
regularity or routine which gives business records their inher-
ent reliability.”
Id.,
quoting with approval the district court’s
ruling on the issue. The district court did not abuse its discre-
tion when it determined that the memorandum was meant
“to memorialize an unusual incident … that [the supervisor]
12 No. 24-1517

may have been concerned could have some litigation poten-
tial to it.”
Id.,
again quoting the district court’s ruling.
The record here oﬀers even stronger grounds for rejecting
the business records exception than in Pierce. In Pierce, the su-
pervisor at least testiﬁed that he occasionally drafted similar
memoranda in the course of his duties.
110 F.3d at 444
. Here,
there is no evidence that Rampenthal regularly took notes
about other employees or that he took them in years other
than 2013 and 2018. Without a more substantial showing of
regular practice and reliability, the desk notes are not admis-
sible as business records. See, e.g., Paddack v. Dave Christensen,
Inc.,
745 F.2d 1254, 1258
(9th Cir. 1984) (aﬃrming district
court’s refusal to admit audit reports under Rule 803(6): “The
irregular frequency and nature with which the audits were
conducted also precludes their classiﬁcation as business rec-
ords of the Employer.”). This lack of regularity is not saved by
any other indicia of trustworthiness. See Willco Kuwait (Trad-
ing) S.A.K. v. deSavary,
843 F.2d 618
, 628 (1st Cir. 1988) (recog-
nizing that non-routine business records may be admissible
under Rule 803(6) if they meet rule’s other requirements and
attendant circumstances do not indicate a lack of trustworthi-
ness).
As in Pierce, it is plausible that Rampenthal may have pre-
pared his desk notes with an eye towards potential litigation,
especially because he began taking them in 2013, after learn-
ing of Murphy’s previous lawsuit against Caterpillar. See
Palmer v. Hoﬀman,
318 U.S. 109
, 113–14 (1943) (rejecting admis-
sion of railroad accident reports as business records because
their “primary utility [was] in litigating, not in railroading”).
In any event, Rampenthal’s notes are no more business rec-
ords than an employee’s personal diary recording grievances
No. 24-1517 13

against management. See, e.g., United States v. Santos,
201 F.3d
953, 963
(7th Cir. 2000) (reports of employee’s complaints
about boss and employee’s diary were not admissible as busi-
ness records); see also Collins v. Kibort,
143 F.3d 331, 338
(7th
Cir. 1998) (employee’s diary was inadmissible hearsay that
also could not be admitted as past recollection recorded under
Rule 803(5)).
So as the record stands, Rampenthal did not attest to the
truth of the contents of the desk notes in his declaration, Mur-
phy has contested their accuracy, and the record does not oth-
erwise support their reliability. The desk notes are thus inad-
missible hearsay. As a result, the district court improperly re-
lied on the notes in granting Caterpillar’s motion for sum-
mary judgment. Though the district court cited the desk notes
extensively in its ruling, we do not need to separate all the
wheat from all the chaﬀ here. Independent grounds for rever-
sal on Murphy’s age discrimination claim exist, which we
turn to now.
III. Age Discrimination
An ADEA plaintiﬀ may proceed by introducing direct or
circumstantial evidence that he suﬀered an adverse employ-
ment action because of his age. Carson v. Lake County,
865 F.3d
526
, 532–33 (7th Cir. 2017). A plaintiﬀ may also proceed
through the burden-shifting framework adapted from
McDonnell Douglas Corp. v. Green,
411 U.S. 792
(1973); see also
Carson,
865 F.3d at 533
(explaining that these are alternative
routes). To set forth a prima facie case of age discrimination
under the burden-shifting approach, a plaintiﬀ must show
“(1) he was over forty years of age; (2) he was meeting his em-
ployer’s legitimate expectations; (3) he suﬀered an adverse
employment action; and (4) similarly situated, substantially
14 No. 24-1517

younger employees were treated more favorably.” Franzoni v.
Hartmarx Corp.,
300 F.3d 767
, 771–72 (7th Cir. 2002). If the
plaintiﬀ has established this prima facie case, the burden
shifts “to the defendant to ‘articulate a legitimate, nondis-
criminatory reason for the adverse employment action, at
which point the burden shifts back to the plaintiﬀ to submit
evidence that the employer’s explanation is pretextual.’”
Simpson v. Franciscan Alliance, Inc.,
827 F.3d 656, 661
(7th Cir.
2016), quoting Andrews v. CBOCS West, Inc.,
743 F.3d 230, 234
(7th Cir. 2014). From evidence of pretext, a trier of fact may,
but is not required to, infer the employer acted with an un-
lawful motive. St. Mary’s Honor Center v. Hicks,
509 U.S. 502,
511
(1993).
We pause on this point for a moment to clarify the signiﬁ-
cance of evidence of pretext under McDonnell Douglas. The
district court here quoted our decision in Bless v. Cook County
Sheriﬀ’s Oﬃce,
9 F.4th 565
(7th Cir. 2021): “What’s more, ‘a
showing of pretext alone is not enough; the plaintiﬀ must also
show that the explanations are pretext for the prohibited ani-
mus.’”
Id. at 573
, quoting Hitchcock v. Angel Corps, Inc.,
718
F.3d 733, 740
(7th Cir. 2013), citing in turn Van Antwerp v. City
of Peoria,
627 F.3d 295, 298
(7th Cir. 2010). Those statements
are correct but can be easily misunderstood. In St. Mary’s
Honor Center, the Supreme Court made clear that a showing
of pretext is suﬃcient to permit an inference of unlawful dis-
crimination.
509 U.S. at 511
. The Court also made clear that
“[n]o additional proof of discrimination is required.”
Id.,
quot-
ing with approval and adding emphasis to Hicks v. St. Mary’s
Honor Center,
970 F.2d 487
, 493 (8th Cir. 1992) (decision under
review).
No. 24-1517 15

Accordingly, our statements in Bless and Hitchcock and
other cases to the eﬀect that the plaintiﬀ must “also show that
the explanations are a pretext for the prohibited animus”
should not be understood to require additional evidence from
a plaintiﬀ, such as some further indication of unlawful ani-
mus. Pretext does not require an inference of unlawful ani-
mus, but it does permit that inference. This principle means
that when a plaintiﬀ has oﬀered evidence permitting a rea-
sonable inference of pretext, summary judgment should be
denied. E.g., Vichio v. US Foods, Inc.,
88 F.4th 687
, 694–95 (7th
Cir. 2023) (reversing summary judgment; employer’s dishon-
est explanation for adverse action is suﬃcient to permit infer-
ence of unlawful motive), citing and quoting Runkel v. City of
Springﬁeld,
51 F.4th 736
, 745 n.3 (7th Cir. 2022) (reversing sum-
mary judgment; plaintiﬀ who shows pretext need not oﬀer
additional evidence of unlawful intent), and Joll v. Valparaiso
Community Schools,
953 F.3d 923, 932
(7th Cir. 2020) (reversing
summary judgment); Shager v. Upjohn Co.,
913 F.2d 398, 401
(7th Cir. 1990) (reversing summary judgment; pretext permits
inference of unlawful motive, and “if the inference of im-
proper motive can be drawn, there must be a trial”). 2
Regardless of the plaintiﬀ’s chosen method(s), at the sum-
mary judgment stage the court must consider all admissible

2 When a case gets to trial, we have explained, jurors need not and

probably should not be instructed on the intricate steps of the McDonnell
Douglas test. Instead, jurors should be instructed that the ultimate question
they must decide is whether the employer in fact acted with the unlawful
animus. See Gehring v. Case Corp.,
43 F.3d 340, 343
(7th Cir. 1994) (leaving
for argument by counsel inferences to be drawn from evidence of pretext);
see generally Ortiz v. Werner Enterprises, Inc.,
834 F.3d 760
, 764–66 (7th Cir.
2016) (clarifying standards and methods for proof of employment discrim-
ination).
16 No. 24-1517

evidence to decide whether a reasonable jury could ﬁnd that
the plaintiﬀ suﬀered an adverse action because of his age.
Ortiz v. Werner Enterprises, Inc.,
834 F.3d 760, 765
(7th Cir.
2016) (explaining that the legal standard “is simply whether
the evidence would permit a reasonable factﬁnder to con-
clude that the plaintiﬀ’s [age] caused the discharge or other
adverse employment action. Evidence must be considered as
a whole….”).
With respect to his claim for age discrimination, Murphy
proceeds under McDonnell Douglas. The parties agree that
Murphy, at age 58, was a member of the class protected by the
ADEA but disagree as to all of the remaining elements of
McDonnell Douglas. We ﬁrst consider whether Murphy was
subjected to an adverse employment action.
A. Constructive Discharge as Adverse Action
Constructive discharge amounts to an adverse employ-
ment action. E.E.O.C. v. Univ. of Chicago Hospitals,
276 F.3d
326, 331
(7th Cir. 2002). The district court found, and we agree,
that Murphy presented suﬃcient evidence for a reasonable
jury to conclude that he was constructively discharged. Mur-
phy,
2024 WL 520020
, at *9. Relevant to this appeal, a plaintiﬀ
can demonstrate constructive discharge by showing that he
was forced to resign because his working conditions were
made “‘so intolerable that a reasonable person would have
felt compelled to resign.’” Stamey v. Forest River, Inc.,
37 F.4th
1220, 1225
(7th Cir. 2022), quoting Pennsylvania State Police v.
Suders,
542 U.S. 129, 147
(2004). In other words, constructive
discharge occurs where, based on an employer’s actions, “the
handwriting [was] on the wall” and the proverbial axe was
about to fall. Lindale v. Tokheim Corp.,
145 F.3d 953, 956
(7th
Cir. 1998).
No. 24-1517 17

To be clear, though, Caterpillar’s decision to place Murphy
on a performance action plan—absent any reduction in pay or
imposition of other adverse employment conditions—would
on its own not be suﬃcient to establish constructive dis-
charge. See Fields v. Board of Educ. of City of Chicago,
928 F.3d
622
, 625–26 (7th Cir. 2019) (aﬃrming summary judgment for
employer because negative performance reviews and perfor-
mance action plans did not constitute constructive discharge:
“initiating disciplinary procedures does not necessarily mean
that an employer is preparing to ﬁre an employee because the
employer could, for example, hope that criticism will lead to
better performance by the employee”); Davis v. Time Warner
Cable of Southeastern Wisc., L.P.,
651 F.3d 664, 670, 677
(7th Cir.
2011) (holding that performance action plan which increased
employee sales quotas and reduced potential commissionable
transactions did not constitute adverse employment action:
“Performance improvement plans, particularly minimally on-
erous ones like that here, are not, without more, adverse em-
ployment actions.”); Cole v. Illinois,
562 F.3d 812
, 816–17 (7th
Cir. 2009) (holding that performance action plan that did not
deprive employee of “responsibility, hours, pay, or any other
relevant accoutrement of her position” by itself did not con-
stitute adverse employment action).
In this case, however, Caterpillar’s performance action
plan for Murphy was quite unusual. Like many performance
action plans, Caterpillar’s plan warned that failure to com-
plete it successfully could result in termination. Unlike other
plans, however, this plan imposed a deadline that had already
passed. Murphy was already in violation of its requirements
from the outset. That oddity cannot be explained away as an
inadvertent oversight. When Murphy raised the obvious
problem and asked for a modiﬁcation, Huber and
18 No. 24-1517

Rampenthal refused to make any change. Moreover, Huber
and Rampenthal both signed the plan in a box labeled “Did
Not Meet Action Plan” before Murphy had even accepted the
plan’s terms, let alone had an opportunity to perform under
it. Though Huber later testiﬁed that company policy requires
signing this section on the day the action plan is executed, it
is not obvious that a jury would be required to accept the truth
of such an odd policy. Moreover, Caterpillar admitted that, in
the case of Murphy’s coworker, Greg Atkins, “the signature
block at the end of the Final Atkins Action Plan contain[ed] no
signatures because Greg Atkins satisﬁed the terms and condi-
tions of his plan.”
Caterpillar’s decision to place Murphy on a performance
action plan he had already, by its terms, failed is similar to the
adverse employment actions in Lopez v. S.B. Thomas, Inc.,
831
F.2d 1184, 1188
(2d Cir. 1987), Green v. Town of East Haven,
952
F.3d 394, 409
(2d Cir. 2020), and Welch v. University of Texas,
659 F.2d 531
, 533–34 (5th Cir. 1981). In Lopez, the Second Cir-
cuit held that a supervisor’s statement—that the employee
would be terminated at the end of a probationary period re-
gardless of performance—raised a genuine dispute as to con-
structive discharge.
831 F.2d at 1188
. In Green, the court re-
versed summary judgment for the employer, holding that a
jury could reasonably ﬁnd constructive discharge where the
employee was advised to resign because a mandatory proce-
dural hearing would “almost certainly” result in her termina-
tion.
952 F.3d at 409
. And in Welch, the Fifth Circuit concluded
that a supervisor’s assertion that he could no longer work
with the employee, coupled with a demand to know when she
would leave, created circumstances under which “a reasona-
ble person would certainly resign.” 659 F.2d at 534.
No. 24-1517 19

The constructive discharge analysis in these cases focused
on whether an employee would reasonably conclude that
continued employment was no longer viable, regardless of ac-
tual performance. Murphy’s circumstances are similar, at
least when viewing the evidence through the summary judg-
ment lens. Caterpillar required him to sign a performance ac-
tion plan that was impossible to complete in full, and Huber,
Rampenthal, and Rampenthal’s boss seemed to have signed
oﬀ on his failure before the plan even took eﬀect. To make
matters worse, Caterpillar refused to revise the plan when
Murphy pointed out the problem. Even if Murphy had dili-
gently complied with the plan’s remaining achievable terms,
Caterpillar could still terminate him for failure to complete
the plan. Requiring Murphy to sign this plan was, in eﬀect,
like a bank demanding that a borrower sign a promissory note
indicating that the borrower is already in default.
Caterpillar’s alleged practice of preemptively having su-
pervisors sign performance action plans as having been failed
reinforces our view that constructive discharge turns on gen-
uine issues of fact. Caterpillar appears to claim that, pursuant
to its internal policy, action plans are designated as failures
by default until they are completed in full. Upon completion,
the story goes, the failure designation would be rescinded and
any associated signatures would be removed. We do not ex-
press an opinion on this unusual supposed policy other than
to say we do not think a jury would be required to believe the
story on this record. Caterpillar has presented no evidence
that any other employee’s performance action plan was
treated similarly. The only other performance action plan in
the record, that of Greg Atkins, lacks comparable signatures
or any indication they were removed as Caterpillar claims. A
reasonable jury could ﬁnd that the evidence about this
20 No. 24-1517

supposed practice—marking Murphy’s plan as failed before
it had even begun—signaled to Murphy that his fate had been
decided.
To borrow the language from Lindale, the handwriting
may not have been on the wall, but it was certainly etched into
the signature block of the action plan, and the axe was poised
to fall because Murphy was already in breach of the plan’s
terms. See
145 F.3d at 956
. A reasonable jury could ﬁnd that
Murphy’s termination was a foregone conclusion. Accord-
ingly, there exists a genuine dispute of material fact as to
whether Murphy was constructively discharged. For pur-
poses of summary judgment, we must accept that he suﬀered
an adverse employment action.
B. Caterpillar’s Justiﬁcation and Comparators
Caterpillar justiﬁes its adverse employment action by as-
serting that Murphy was failing to meet its legitimate perfor-
mance expectations. It also argues that Murphy has failed to
establish that his chosen comparators were similarly situated
because, unlike Murphy, they were meeting Caterpillar’s le-
gitimate performance expectations. See Senske v. Sybase, Inc.,
588 F.3d 501, 510
(7th Cir. 2009) (“comparators must be simi-
lar enough that diﬀerences in their treatment cannot be ex-
plained by other variables, such as distinctions in their roles
or performance histories”). As a result, the question whether
Murphy was meeting Caterpillar’s legitimate expectations
merges with the question whether Caterpillar’s reasons for
taking adverse employment action against Murphy were pre-
textual. In such cases where the issue of meeting legitimate
job expectations and the question of pretext overlap, we may
skip a sequential McDonnell Douglas analysis and turn directly
to pretext. Brooks v. Avancez,
39 F.4th 424, 435
(7th Cir. 2022).
No. 24-1517 21

C. Pretext
To say that an employer’s justiﬁcation is a pretext means
to say that it is “a lie, speciﬁcally a phony reason for some
action.” Kinney v. St. Mary’s Health, Inc.,
76 F.4th 635, 646
(7th
Cir. 2023), quoting Chatman v. Board of Educ. of City of Chicago,
5 F.4th 738, 746
(7th Cir. 2021). We have also described pretext
as “‘deceit used to cover one’s tracks.’” Millbrook v. IBP, Inc.,
280 F.3d 1169, 1175
(7th Cir. 2002), quoting Clay v. Holy Cross
Hosp.,
253 F.3d 1000, 1005
(7th Cir. 2001). To meet his burden,
Murphy “‘must identify such weaknesses, implausibilities,
inconsistencies, or contradictions’ in the employer’s asserted
‘reasons that a reasonable person could ﬁnd it unworthy of
credence.’” Marnocha v. St. Vincent Hosp. & Health Care Center,
Inc.,
986 F.3d 711, 721
(7th Cir. 2021), quoting Boumehdi v. Plas-
tag Holdings, LLC,
489 F.3d 781, 792
(7th Cir. 2007).
We have said repeatedly, however, that the court is not a
“super personnel department that second-guesses employers’
business judgments.” Riley v. Elkhart Community Schools,
829
F.3d 886, 895
(7th Cir. 2016), quoting Millbrook,
280 F.3d at
1181
. Our focus “is not on the wisdom of the decision” to take
adverse employment action “but on its genuineness.” Galvan
v. Indiana,
117 F.4th 935, 939
(7th Cir. 2024). And at the risk of
repeating ourselves, evidence of pretext does not require but
does permit an inference of unlawful motive, meaning that
summary judgment should be denied and the ultimate ques-
tion of motive given to the trier of fact to decide. St. Mary’s
Honor Center,
509 U.S. at 511
; Vichio, 88 F.4th at 694–95; Tester-
man v. EDS Technical Products Corp.,
98 F.3d 297, 303
(7th Cir.
1996).
We have long held that an employer’s shifting and incon-
sistent explanations for an adverse employment action can
22 No. 24-1517

support an inference of pretext. See Appelbaum v. Milwaukee
Metro. Sewerage Dist.,
340 F.3d 573, 579
(7th Cir. 2003) (“One
can reasonably infer pretext from an employer’s shifting or
inconsistent explanations for the challenged employment de-
cision.”); Schuster v. Lucent Techs., Inc.,
327 F.3d 569, 577
(7th
Cir. 2003) (“Shifting and inconsistent explanations can pro-
vide a basis for a ﬁnding of pretext.”).
A reasonable jury could ﬁnd Caterpillar’s justiﬁcations for
taking adverse employment action against Murphy pre-
textual, as its explanations for placing him on a performance
action plan—especially one he began in default—are diﬃcult
to reconcile with other evidence of his satisfactory perfor-
mance. Caterpillar, through Rampenthal, claimed that the ac-
tion plan was triggered by deﬁcient performance. However,
throughout his decades-long career at Caterpillar, Murphy al-
ways received performance evaluations indicating that he met
or exceeded expectations. Most notably, in Murphy’s perfor-
mance review immediately preceding the action plan, Ramp-
enthal rated Murphy as meeting or exceeding expectations in
every category.
We found that similar suspect justiﬁcations could support
a reasonable inference of pretext in Brown v. M & M/Mars,
883
F.2d 505
(7th Cir. 1989). There, we upheld a jury’s ﬁnding of
age discrimination despite evidence of deﬁcient performance.
Id.
at 506–10. Brown’s supervisor, Vincent, cited a production
line shutdown as evidence of Brown’s poor managerial skills
and oﬀered it as the reason for his termination. A jury rejected
Vincent’s explanation, concluding Brown was discriminated
against based on age. On appeal, we concluded that the jury’s
ﬁnding was supported by the record. First, Brown introduced
evidence of strong performance in the very areas his
No. 24-1517 23

supervisor criticized. From this, we reasoned that “there was
ample evidence from which the jury could conclude that
Brown was eﬀective in the areas in which Mars asserted he
was not.”
Id. at 508
. Second, a draft performance evaluation
prepared by Vincent just two months before Brown’s termi-
nation gave him “high marks,” consistent with positive as-
sessments of his performance from other witnesses.
Id. at 510
.
We reasoned that a jury could infer “that Vincent could not
give Brown high marks in the areas mentioned and yet sin-
cerely believe that Brown was the inﬂexible, recalcitrant man-
ager Vincent testiﬁed he was.”
Id.
Murphy’s case is similar to Brown, again keeping in mind
the summary judgment standard. Like Brown, Murphy intro-
duced evidence showing his positive performance. Through-
out his tenure at Caterpillar, he consistently met or exceeded
performance expectations, received promotions and raises,
and was entrusted with greater responsibility. Indeed, just be-
fore Caterpillar put in place the performance action plan,
Murphy was publicly commended for successfully leading a
high-proﬁle engine sound reduction project. Also as in Brown,
this is not a case “where the only evidence regarding [the
plaintiﬀ’s] performance was his own self-serving testimony.”
883 F.2d at 509
; cf. Billups v. Methodist Hosp. of Chicago,
922
F.2d 1300, 1303
(7th Cir. 1991) (aﬃrming summary judgment
for employer where employee denied employer’s account,
which was supported by evidence, but later changed her ar-
gument). Like Brown, who supported a ﬁnding of pretext by
presenting a positive draft evaluation prepared by his super-
visor two months before his termination, Murphy produced
substantial independent evidence of his satisfactory perfor-
mance. See Brown,
883 F.2d at 510
.
24 No. 24-1517

The source of Murphy’s favorable performance evidence
makes his arguments on pretext even more compelling. In
Brown, we found it signiﬁcant that some of the “testimony
about Brown’s good performance came from Mars’ manage-
rial employees.”
Id. at 509
. Here, Murphy’s most recent and
satisfactory performance review, issued just before he was
placed on the action plan, came from Rampenthal himself, the
same supervisor who initiated the plan.
We ﬁnd further support for reversal in Shager v. Upjohn
Co.,
913 F.2d 398
(7th Cir. 1990). There, we reversed summary
judgment for the employer in an age discrimination case. The
company claimed it had ﬁred Shager because “deﬁciencies in
account management and personnel supervision dragged
him below the level of expected performance.”
Id. at 401
.
Shager presented evidence that this criticism was “greatly ex-
aggerated” by presenting other evidence showing “good sales
performance in an unpromising territory.”
Id.
On summary
judgment, we concluded that the record described “a worker
who like the rest of us had the weaknesses of his strength.”
Id.
Because of his “zeal to sell,” Shager may have failed to “attend
as assiduously as he might have done to the drabber manage-
rial aspects of his job, but his overall performance was out-
standing….”
Id.
On that basis, we concluded that “Shager pre-
sented evidence that he was not an inadequate worker—that
he satisﬁed the employer’s legitimate expectations and there-
fore had not, as [his employer] contended, been ﬁred for fail-
ing to satisfy them[.]”
Id.
at 401–02. As a result, summary
judgment was inappropriate.
So too here. The thrust of Caterpillar’s criticism centers on
Murphy’s alleged diﬃculty transitioning from a technically
focused role to his position as a Job Owner Lead, which
No. 24-1517 25

requires eﬀective delegation and team management. Yet Cat-
erpillar has never questioned Murphy’s technical expertise.
To the contrary, it has repeatedly relied on that expertise—
recruiting him for signiﬁcant and complex engineering pro-
jects, publicly praising his technical acumen, and consistently
rating his technical skills as exceeding its expectations in per-
formance reviews. As in Shager, this record reﬂects that Mur-
phy may possess “the weaknesses of his strength.”
913 F.2d
at 401
. His focus on the technical minutiae of projects may
have, at times, led to lapses in fulﬁlling managerial duties. But
even in that domain, his reviews reﬂect at least satisfactory
performance. On this record, as in Shager, a reasonable jury
could ﬁnd that the employer’s justiﬁcation was overstated
and inconsistent with the totality of the evidence—making
summary judgment improper. See, e.g., Vichio, 88 F.4th at 692–
93 (reversing summary judgment in age discrimination case;
employee’s consistent record of positive performance, fol-
lowed by a sudden negative evaluation, permitted inference
of pretext).
In addition to the conﬂicts between Murphy’s positive
performance evaluations and the dramatic change in early
2018, another aspect of Caterpillar’s explanation for placing
Murphy on a performance action plan further invites an in-
ference of pretext. In its response to the EEOC, Caterpillar as-
serted that Murphy’s performance action plan was prompted
in part by allegedly inappropriate comments made by Mur-
phy in 2018 to two Asian coworkers. Other evidence tells a
diﬀerent story. Caterpillar told the EEOC that Rampenthal be-
came aware of the alleged remark around March 13 or 14,
2018, and—together with Huber—decided to place Murphy
on the action plan. Rampenthal later testiﬁed, however, that
he and Huber decided to initiate the performance action plan
26 No. 24-1517

before learning of the alleged comments. When asked
whether the decision to initiate the performance action plan
occurred before the complaint about Murphy’s alleged insen-
sitive remarks, Rampenthal responded, “[b]ased on [Mur-
phy’s] performance, yes.” Huber similarly testiﬁed in her
deposition that the decision to implement the action plan was
made on March 12, at least a day before Rampenthal allegedly
learned of the insensitive remarks.
Finally, the circumstances of the performance action plan
for Murphy lend further support to a ﬁnding of pretext. As
discussed above regarding constructive discharge, the plan
was written so that Murphy was already in default before it
began. One deadline had already passed before the plan was
presented to him. Then the managers refused to correct that
point when Murphy raised it. And they had signed the plan
in the box labeled “Signatures for Did Not Meet Action Plan.”
Murphy could reasonably believe the performance action
plan was not proposed in good faith. What’s more, a jury
could also ﬁnd it was not proposed in good faith, giving ad-
ditional grounds for ﬁnding pretext.
Our pretext inquiry centers on whether the employer’s
stated reason for the adverse employment action was hon-
estly held. Here, the record reveals conﬂicting accounts from
Caterpillar personnel about the reasons for placing Murphy
on the performance plan. Although Caterpillar told the EEOC
that Murphy’s 2018 comments contributed to the decision, the
timeline provided by Huber and Rampenthal indicates the
plan was initiated before those comments came to light. The
inconsistency casts doubt on the credibility of Caterpillar’s
proﬀered reasons for Murphy’s constructive discharge. View-
ing the evidence in the light most favorable to Murphy, as
No. 24-1517 27

required on summary judgment, these discrepancies add to
the case for pretext. See Hitchcock v. Angel Corps, Inc.,
718 F.3d
733, 738
(7th Cir. 2013) (reversing summary judgment because
shifting explanations for plaintiﬀ’s ﬁring were “suﬃciently
inconsistent or otherwise suspect to create a reasonable infer-
ence that they do not reﬂect the real reason for [plaintiﬀ’s] ﬁr-
ing”); Simple v. Walgreen Co.,
511 F.3d 668, 671
(7th Cir. 2007)
(reversing summary judgment for employer because defend-
ant “gave inconsistent explanations” for employment deci-
sion that were “suggestive of pretext”).
IV. Retaliation
Murphy also contends that Caterpillar was motivated to
constructively discharge him in retaliation for his earlier law-
suit, in violation of both the ADEA and the earlier settlement
agreement. Under the ADEA, it is unlawful for an employer
to retaliate against an employee for opposing or complaining
about age discrimination.
29 U.S.C. § 623
(d). On this claim,
Murphy needed to oﬀer evidence that: (1) he engaged in pro-
tected activity; (2) he suﬀered an adverse employment action;
and (3) there was a but-for causal connection between the two.
Kotaska v. Federal Express Corp.,
966 F.3d 624, 632
(7th Cir.
2020). This causal link may be established through either di-
rect or circumstantial evidence from which a jury may infer
intentional retaliation. Greengrass v. Int’l Monetary Systems
Ltd.,
776 F.3d 481, 486
(7th Cir. 2015). The same analysis ap-
plies to his contract claim.
Murphy’s earlier lawsuit, ﬁled in 2001 and resolved in
2005, was protected activity for purposes of his retaliation
claim. Stephens v. Erickson,
569 F.3d 779, 787
(7th Cir. 2009)
(parties agreed that ﬁling discrimination lawsuit was pro-
tected activity). As discussed above, there is at least a genuine
28 No. 24-1517

dispute of material fact as to whether Murphy’s placement on
the performance action plan constituted a constructive dis-
charge. Accordingly, on summary judgment, Murphy’s retal-
iation claim turns on the third element of the analysis:
whether he can establish a causal connection between his pro-
tected activity and the adverse employment action.
Murphy has not oﬀered evidence suﬃcient to support that
causal connection. To determine whether a genuine issue of
material fact exists as to causation in a retaliation claim, we
must consider the complete record and assess whether a rea-
sonable jury could infer retaliatory intent. King v. Ford Motor
Co.,
872 F.3d 833, 842
(7th Cir. 2017). A plaintiﬀ may establish
this causal connection through circumstantial evidence, in-
cluding but not limited to “suspicious timing, ambiguous
statements of animus, evidence other employees were treated
diﬀerently, or evidence the employer’s proﬀered reason for
the adverse action was pretextual.” Gnutek v. Illinois Gaming
Board,
80 F.4th 820, 824
(7th Cir. 2023), quoting Rozumalski v.
W.F. Baird & Associates, Ltd.,
937 F.3d 919, 924
(7th Cir. 2019).
Each of these categories, standing alone, may be suﬃcient to
preclude summary judgment. See Castro v. DeVry Univ., Inc.,
786 F.3d 559, 565
(7th Cir. 2015).
Caterpillar contends that the lapse of time between Ramp-
enthal’s awareness of Murphy’s prior lawsuit and the subse-
quent adverse employment action undermines any causal
connection. It is generally true that an “inference of retaliation
can be weakened by ‘a lengthy time period between the pro-
tected activity and the alleged retaliation.’” Alamo v. Bliss,
864
F.3d 541, 556
(7th Cir. 2017), quoting Carlson v. CSX Transp.,
Inc.,
758 F.3d 819, 828
(7th Cir. 2014). There is no bright-line
rule, however. We have recognized that even after intervals of
No. 24-1517 29

years, inferences of retaliatory intent may be reasonable
where, for example, the alleged retaliation would have been
the decision-maker’s ﬁrst opportunity to retaliate. E.g., Baines
v. Walgreen Co.,
863 F.3d 656, 666
(7th Cir. 2017); Malin v. Hos-
pira, Inc.,
762 F.3d 552
, 559–61 (7th Cir. 2014) (collecting cases
and explaining our law in this area).
In this case, the evidence of causation is too thin to allow
a reasonable inference of retaliation. First, the more than ten
years between Murphy’s protected activity and the adverse
employment action weaken any causal connection between
the two events close to the breaking point. And Murphy
agrees that Rampenthal, the relevant decision-maker, learned
of his prior lawsuit in 2013, ﬁve years before the initiation of
the performance action plan. We have previously said that
such a delay renders any connection between the two events
highly implausible. See Naﬁcy v. Illinois Dep’t of Human Servs.,
697 F.3d 504, 513
(7th Cir. 2012) (“The ﬁve-year gap [between
the protected activity and adverse employment action] makes
it extremely unlikely that the two events were related.”). We
have often found signiﬁcantly shorter intervals insuﬃcient to
establish a causal link. E.g., Leonard v. Eastern Illinois Univ.,
606
F.3d 428, 432
(7th Cir. 2010) (aﬃrming summary judgment;
six-month gap between complaint of discrimination and ad-
verse employment action was “too long to infer a link be-
tween the two”); Argyropoulos v. City of Alton,
539 F.3d 724,
734
(7th Cir. 2008) (aﬃrming summary judgment; seven–
week interval without more was not suspicious); cf. Spiegla v.
Hull,
371 F.3d 928, 943
(7th Cir. 2004) (reversing summary
judgment; jury could infer causation where adverse employ-
ment action occurred just four days after employee’s pro-
tected speech). We must again sound a note of caution here,
however. There is no bright-line rule based on a calendar. The
30 No. 24-1517

question is whether, in light of all the circumstances, a reason-
able jury could infer retaliatory motive for the adverse action.
The substantial interval between Murphy’s prior lawsuit
and the protected activity substantially weakens any plausi-
ble causal connection between the two events in this case, but
we pause to highlight a point that may bear on future retalia-
tion claims. The well-established principle—that a long time
between protected activity and an adverse employment ac-
tion undermines an inference of causation—also applies to an
employer’s proﬀered rationale for disciplining its employee.
Here, the performance action plan referred to allegedly inap-
propriate comments dating back to 2013—conduct for which
Murphy had already completed training about prohibited
harassment. A reasonable jury could view Caterpillar’s reli-
ance on years-old behavior as a tenuous justiﬁcation for the
disciplinary plan, potentially suggestive of pretext on Mur-
phy’s age-discrimination claim. Cf. Geier v. Medtronic, Inc.,
99
F.3d 238, 242
(7th Cir. 1996) (aﬃrming summary judgment
where long interval between a remark and the adverse action
defeated an inference of a “causal nexus between the remark
and decision to discharge”). Nevertheless, in this case, addi-
tional breaks in the causal chain warrant summary judgment
on Murphy’s retaliation claim, even in light of some evidence
of pretext.
Murphy’s retaliation claim is further weakened because
Rampenthal declined to retaliate against him when ﬁrst pre-
sented with the opportunity in 2013. As noted, we have rec-
ognized that an employer might have a long memory when it
comes to retaliation, see Malin,
762 F.3d at 560
(reversing sum-
mary judgment on retaliation claim), but an inference of retal-
iatory animus simply is not reasonable here. After learning of
No. 24-1517 31

Murphy’s lawsuit in 2013, Rampenthal was informed by sev-
eral Caterpillar employees of allegedly inappropriate com-
ments Murphy made at work. Murphy’s human resources
manager recommended placing him on a performance action
plan in response to the comments. Rampenthal, however, de-
clined. He instead directed Murphy to complete anti-harass-
ment training. Murphy did so and continued with his career
for several more years, successfully, under Rampenthal’s su-
pervision. This conduct does not reﬂect retaliatory intent, and
Murphy has provided no “evidence from which one may rea-
sonably infer that [his] former employer waited in the weeds
for ﬁve or ten years and then retaliated” against him. See Ve-
prinsky v. Fluor Daniel, Inc.,
87 F.3d 881
, 891 n.6 (7th Cir. 1996).
To the contrary, when Rampenthal learned of Murphy’s prior
lawsuit and allegedly inappropriate workplace conduct, he
chose a mild response, not even putting Murphy on an achiev-
able performance action plan, as human resources had recom-
mended. This evidence further weakens any inference of a
causal connection between Murphy’s lawsuit and the 2018
performance action plan. See Laurent-Workman v. Wormuth,
54
F.4th 201, 219
(4th Cir. 2022) (aﬃrming Rule 12(b)(6) dismissal
of employee’s discrete-act retaliation claim because manager
had earlier opportunities to retaliate but had not taken them).
Finally, the record lacks any additional evidence of retali-
atory animus. A plaintiﬀ may rely on circumstantial evidence
such as “ambiguous statements of animus” to survive sum-
mary judgment. Greengrass,
776 F.3d at 486
; see, e.g., Hall v.
City of Chicago,
713 F.3d 325
, 333–34 (7th Cir. 2013) (reversing
summary judgment for employer on hostile work environ-
ment claim; manager’s comments about slapping women
suggested gender-based animus). Murphy has oﬀered no ev-
idence of remarks, conduct, or patterns from Caterpillar that
32 No. 24-1517

would support an inference of retaliatory motive. The com-
munications in the record reﬂect a consistently professional
tone between management and Murphy throughout the rele-
vant period.
In sum, the years-long delay between Murphy’s protected
activity and the adverse employment action undercuts a rea-
sonable inference of causation. Additionally, the undisputed
evidence shows that Rampenthal passed on an earlier oppor-
tunity to retaliate, choosing instead a less harsh response to
inappropriate workplace comments. Finally, Murphy has
failed to oﬀer any evidence of retaliatory animus—direct or
circumstantial—that would allow a reasonable jury to con-
clude that Caterpillar retaliated against him based on his ear-
lier lawsuit or in violation of the 2005 settlement agreement.
V. Conclusion
Caterpillar’s explanations for Murphy’s performance ac-
tion plan—poor performance as a manager and a history of
inappropriate comments at work on sex and ethnicity—may,
if believed, carry the day at trial. When reviewing a grant of
summary judgment, however, our role is not to weigh com-
peting narratives. That task is for a jury. Viewing the record
in the light most favorable to Murphy, a reasonable jury could
infer that Caterpillar acted with discriminatory intent. How-
ever, no reasonable jury could ﬁnd that Caterpillar unlaw-
fully retaliated against Murphy. The judgment of the district
court is REVERSED as to his age discrimination claim and
AFFIRMED as to his claim for retaliation in violation of the
ADEA and the 2005 settlement agreement. The case is
REMANDED for further proceedings consistent with this
opinion.

Brian Murphy v. Caterpillar Inc.

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