Withdrawing an EEO Complaint Does Not Negate Protected Activity, but Temporal Proximity Alone Will Not Prove Title VII Retaliation Absent Corroboration When the Employer Honestly Relies on Admitted Medication Errors

I. Introduction

In Hakeem Abayomi v. Douglas A. Collins, the Seventh Circuit affirmed summary judgment for the Department of Veterans Affairs (“VA”) on a former clinical pharmacist’s Title VII claims for race discrimination and retaliation. Abayomi, the only African American pharmacist at the Hines, Illinois facility, alleged that he was terminated because of his race and in retaliation for filing an internal EEO complaint against his supervisor.

The appeal centered on two recurring Title VII questions: (1) whether the VA’s stated reason for discharge—serious medication errors—was pretext masking discriminatory animus; and (2) whether Abayomi could show but-for causation for retaliation where he filed (and then withdrew) an EEO complaint shortly before a disciplinary inquiry and termination near the end of a probationary period.

II. Summary of the Opinion

The court held that Abayomi failed to produce evidence from which a reasonable jury could find that the VA’s reason for firing him was pretextual. His own admissions during the VA’s “Weingarten investigation” that he committed multiple medication-related mistakes substantially undercut any inference that the termination rationale was a lie. Comparator evidence also failed because alleged comparators were unsupported in the record, and the most developed comparator differed materially (different decisionmaker, different probationary status, different investigative posture, and contested allegations).

On retaliation, the court rejected the VA’s suggestion that Abayomi’s voluntary withdrawal of his EEO complaint negated protected activity. However, it concluded that Abayomi lacked evidence of but-for causation: timing alone, without corroborating evidence of retaliatory motive, could not overcome the VA’s contemporaneous reliance on reported medication errors—three of which Abayomi admitted.

III. Analysis

A. Precedents Cited

1. Summary judgment posture and evidentiary burdens

  • Scaife v. United States Dep't of Veterans Affs.: The court reiterated that facts are viewed in the light most favorable to the non-movant at summary judgment, framing how the record is read but not permitting conjecture to replace evidence.
  • Adebiyi v. S. Suburban Coll. and Johnson v. Accenture LLP: These cases grounded the de novo standard of review and the requirement that the non-movant identify specific evidence creating a genuine dispute for trial.
  • Metzler v. Loyola Univ. Chicago: The court invoked the principle that judges cannot “fill in evidentiary holes with speculation,” a key constraint on Abayomi’s comparator and inference-based arguments.

2. Discrimination framework, “the sole question,” and pretext

  • McDonnell Douglas Corp. v. Green and Lohmeier v. Gottlieb Mem'l Hosp.: The opinion used the familiar burden-shifting structure for circumstantial discrimination claims, including the role of comparators and the subsequent pretext inquiry once an employer provides a nondiscriminatory reason.
  • Ortiz v. Werner Enters., Inc.: The court emphasized that all evidence must be considered “as a whole” and refocused the analysis on the “sole question that matters”: whether the plaintiff would have kept his job if everything were the same but for his protected trait.
  • Vassileva v. City of Chicago (quoting Benuzzi v. Bd. of Educ. of City of Chicago): These cases supported the court’s decision to move directly to pretext where the employer has articulated a nondiscriminatory explanation, recognizing overlap between the prima facie and pretext inquiries.
  • Sweatt v. Union Pac. R.R. Co. and Harper v. C.R. England, Inc.: The court applied the Seventh Circuit’s strict conception of pretext—“a dishonest explanation, a lie”—and the “honest belief” rule: the question is not whether the decision was correct or fair, but whether the employer honestly believed the stated reason.
  • Cunningham v. Austin: Reinforced that federal courts are not “superpersonnel department[s]” that re-weigh performance judgments, a direct answer to Abayomi’s attempts to relitigate the accuracy and gravity of the medication errors.
  • Tyburski v. City of Chicago (quoting Benuzzi v. Bd. of Educ. of City of Chicago): The court stressed that demonstrating inaccuracy is not enough; the plaintiff must identify circumstances supporting an inference of unlawful motive.

3. Comparator evidence and “similarly situated” limits

  • Napier v. Orchard Sch. Found. (quoting Khowaja v. Sessions) and Coleman v. Donahoe: The opinion treated comparator evidence as relevant to pretext and reiterated that the “similarly situated” inquiry aims to eliminate alternative explanations (role, history, standards, decisionmakers) to isolate discriminatory animus.
  • Schandelmeier-Bartels v. Chi. Park Dist.: Used to identify the proper “decisionmaker” for comparator purposes, which mattered because the relevant decisionmaker (Lynx) was not present for the later comparator employee.
  • Steinhauer v. DeGolier: Supported the proposition that probationary status can be a material difference defeating comparator similarity.

4. Retaliation doctrine: protected activity, material adversity, and but-for causation

  • Abrego v. Wilkie: Supplied the Seventh Circuit’s elements for Title VII retaliation claims, including but-for causation.
  • Xiong v. Bd. of Regents of the Univ. of Wis. Sys.: Reinforced but-for causation while clarifying that protected activity need not be the only cause; it must be the cause without which the adverse action would not have occurred.
  • Thompson v. N. Am. Stainless, LP and Burlington N. & Santa Fe Ry. Co. v. White: These Supreme Court cases supported the panel’s conclusion that filing a charge is protected activity and that the anti-retaliation provision is construed broadly to deter employer conduct that would dissuade reasonable workers from complaining.
  • Castro v. DeVry Univ., Inc.: Used for two propositions: (1) a complaint qualifies as protected activity if sincerely and reasonably believed; and (2) no bright-line temporal proximity rule—timing can support causation when combined with corroborating evidence of retaliatory motive.
  • Alley v. Penguin Random House and Kidwell v. Eisenhauer: Cited for the types of circumstantial evidence relevant to causation (ambiguous statements, differential treatment, pretext, suspicious timing).

5. Union representation and investigative interviews

  • N.L.R.B. v. J. Weingarten, Inc.: Provided the foundation for “Weingarten investigations,” i.e., investigatory interviews where unionized employees have a right to representation when questioning may lead to discipline.

6. Waiver and undeveloped theories

  • Matthews v. Waukesha Cnty.: Mentioned as the canonical “cat’s paw” authority, but the court did not reach the theory.
  • Rock Hemp Corp. v. Dunn and Anderson v. Donahoe: The panel held that perfunctory, undeveloped arguments and arguments not presented at summary judgment are waived—used to reject any belated “cat’s paw” framing based on the supervisor’s alleged bias.

B. Legal Reasoning

1. Discrimination: pretext could not be shown where admissions supported the stated reason

The VA articulated a legitimate, nondiscriminatory rationale: careless work performance and failure to follow policy tied to medication errors, specifically the April 8 heparin dispensing error and April 13 labeling error. The panel treated the case as turning on pretext (consistent with Vassileva v. City of Chicago and Ortiz v. Werner Enters., Inc.), asking whether the VA’s explanation was a lie.

Abayomi attacked the accuracy and seriousness of the Weingarten findings, but the court applied the “honest belief” framework from Harper v. C.R. England, Inc.: even if the employer is mistaken or harsh, Title VII is violated only if the stated reason is dishonest. The court found that Abayomi’s own statements during the investigation—admitting three errors and partly contesting the fourth—made it unreasonable to infer fabrication. His admissions that he was “rushing” functioned as direct support for the VA’s “careless work performance” characterization.

2. Discrimination: comparator theory failed on missing proof and meaningful differences

Abayomi attempted to show pretext by selective enforcement, invoking four pharmacists. The court rejected three comparators due to lack of record evidence of their errors. As to Patrick Hammond, the court explained that the “similarly situated” requirement from Coleman v. Donahoe was not met for multiple independent reasons:

  • Different decisionmaker: Lynx was the likely final decisionmaker for Abayomi’s termination, but Lynx had left by Hammond’s employment (Schandelmeier-Bartels v. Chi. Park Dist.).
  • Different probationary status: Hammond was not probationary at the relevant time, a recognized differentiator (Steinhauer v. DeGolier).
  • Different evidentiary posture: Hammond contested allegations and was cleared of most, whereas Abayomi admitted three errors.
  • Speculative comparison of investigative mechanisms: Abayomi offered no evidence that a Weingarten interview is more punitive than an OMI investigation; without such evidence, the court would not speculate (Metzler v. Loyola Univ. Chicago).

3. Retaliation: withdrawal of the EEO complaint did not erase protected activity

A significant doctrinal clarification in the opinion is its rejection of the VA’s argument that Abayomi could not be retaliated against because he withdrew his EEO complaint before termination. Relying on Thompson v. N. Am. Stainless, LP and the anti-deterrence principle from Burlington N. & Santa Fe Ry. Co. v. White, the court held the “filing of a charge” is what matters and warned that adopting the VA’s theory would create a perverse incentive to pressure withdrawals. The panel also reaffirmed that protected activity does not require a meritorious complaint; it suffices that it is “sincerely and reasonably believed” (Castro v. DeVry Univ., Inc.).

4. Retaliation: causation failed despite close timing because corroboration was absent

The panel then applied the but-for causation requirement from Abrego v. Wilkie and Xiong v. Bd. of Regents of the Univ. of Wis. Sys.. Although the timeline was tight (complaint filed March 7; medication error reports starting April 8; Weingarten April 19; termination April 29), the court emphasized that temporal proximity is not enough when the record contains a concrete, non-retaliatory basis for discharge supported by the employee’s admissions.

Consistent with Castro v. DeVry Univ., Inc. and Coleman v. Donahoe, the court acknowledged it has “rejected any bright-line rule” and that weeks or months can be probative when combined with corroborating evidence of retaliatory motive. But Abayomi offered none beyond timing and his failed pretext showing. Accordingly, the evidence could not permit a reasonable jury to find that the EEO complaint was the but-for cause of the termination.

C. Impact

  • Protected activity survives withdrawal: The opinion strengthens plaintiffs’ ability to rely on filed-but-withdrawn internal complaints as the protected activity for Title VII retaliation, foreclosing an employer-friendly “withdrawal defeats protection” argument and aligning doctrine with Title VII’s deterrence-based purpose.
  • Temporal proximity remains contextual, but not self-sufficient: The decision illustrates that even a short interval will not carry causation absent corroboration—especially where the employer has a documented, safety-related rationale and the employee admits key misconduct.
  • Comparator evidence must be built on proof, not assertion: The court’s treatment of three unsupported comparators is a practical reminder that plaintiffs must place admissible record evidence of the comparator’s conduct and the employer’s response into the summary-judgment record.
  • Decisionmaker and probationary status are powerful differentiators: By treating the identity of the decisionmaker and probationary status as dispositive “other variables,” the court signals that comparators from different managerial regimes or employment statuses will often fail at the threshold.
  • Waiver doctrine polices “cat’s paw” and similar theories: The footnote underscores that plaintiffs must distinctly develop theories (with supporting authority) and preserve them in the district court, or risk forfeiture on appeal (Rock Hemp Corp. v. Dunn; Anderson v. Donahoe).

IV. Complex Concepts Simplified

McDonnell Douglas framework
A common method of proving discrimination with circumstantial evidence: the plaintiff first makes a basic showing (including that similarly situated employees were treated better), the employer then gives a lawful reason, and the plaintiff must show that reason is pretext.
Pretext
Not merely a wrong or unfair reason, but a dishonest one—an explanation that is a “lie” rather than a mistake or business judgment (Sweatt v. Union Pac. R.R. Co.).
Honest belief rule
Courts do not decide whether the employer was correct; they ask whether the employer honestly believed its stated reason when it acted (Harper v. C.R. England, Inc.).
Similarly situated comparator
A coworker used to test discrimination: to be comparable, the employee typically must share key features such as similar standards, similar conduct, and the same decisionmaker, without meaningful differentiating circumstances (Coleman v. Donahoe).
Weingarten investigation
An investigatory interview where a unionized employee can have union representation if the interview might lead to discipline, derived from N.L.R.B. v. J. Weingarten, Inc..
But-for causation (retaliation)
The plaintiff must show the adverse action would not have happened without the protected activity, even if other factors were also in play (Xiong v. Bd. of Regents of the Univ. of Wis. Sys.).

V. Conclusion

The Seventh Circuit’s decision in Hakeem Abayomi v. Douglas A. Collins reinforces two practical rules in Title VII litigation. First, an employee’s filing of an EEO complaint remains protected activity even if the complaint is later withdrawn—otherwise Title VII’s anti-retaliation goal would be undermined. Second, plaintiffs must still prove causation and pretext with evidence: temporal proximity without corroboration, and comparator theories without record support or without shared decisionmakers/status, will not defeat summary judgment—especially where the employer’s explanation is supported by the plaintiff’s admissions and framed as an honest patient-safety response.