Martin Garcia v. KRISTI L. NOEM, Secretary, United States Department of Homeland Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2024
Decided July 30, 2025
Before
CANDACE JACKSON-AKIWUMI, Circuit Judge
DORIS L. PRYOR, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 24-1887
MARTIN GARCIA,
Plaintiff-Appellant,
v.
KRISTI L. NOEM,
Secretary, United States Department of
Homeland Security*,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:21-cv-00405
Joan H. Lefkow,
Judge.
* Kristi L. Noem replaced Alejandro Mayorkas as the Secretary of Homeland Security and is
substituted as the respondent. See Fed. R. App. P. 43(c)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 24-1887 Page 2
O R D E R
Martin Garcia, who is of Mexican descent, works as a Federal Air Marshal for the
U.S. Department of Homeland Security (DHS). During a 2018 pre-mission briefing at
the Chicago field office, Gene Schneider, a supervisor, made several inappropriate
comments that Garcia interpreted as negative remarks about Garcia’s national origin.
DHS conducted an internal investigation and issued a letter of counseling to Schneider.
Garcia reported the incident to the Equal Employment Opportunity Commission and
eventually filed this lawsuit against DHS alleging a hostile work environment, national
origin discrimination, and retaliation for complaining of discrimination.
The district court granted summary judgment to DHS on Garcia’s discrimination
and retaliation claims but allowed the hostile work environment claim to proceed to
trial. The jury returned a verdict for DHS. Garcia now appeals the district court’s grant
of summary judgment on the discrimination claim and two of its pre-trial evidentiary
decisions. Because the district court did not err in its summary judgment decision and
did not abuse its discretion in excluding evidence, we affirm.
I
We recount the facts relevant to the summary judgment decision in the light
most favorable to Garcia as the non-moving party. Horne v. Elec. Eel Mfg. Co., Inc., 987
F.3d 704, 713 (7th Cir. 2021).
On October 27, 2018, Garcia, along with three other federal air marshals,
attended a pre-mission briefing led by Gene Schneider, the duty supervisor assigned for
that day. During the meeting, Garcia and Schneider had the following exchange:
Schneider: “[W]here are you from?”
Garcia: “I am from Chicago. South side, Little Village.”
Schneider: “I wouldn’t have taken you for south side guy, for a Chicago
guy. You have an accent, an East LA accent.”
Schneider added that Garcia’s accent reminded him of a character who is deported in
the movie Born in East L.A. and described Garcia as a “‘Hey Vato’ type of guy.” Garcia
understood the term “Hey Vato” to have a negative connotation associated with gang
membership. He also testified that he felt “[h]umiliated,” “in a state of shock,”
“belittled,” “degraded,” and “embarrassed.” The briefing lasted about fifteen minutes,

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No. 24-1887 Page 3
then Garcia left for the mission.
Three days later, Garcia made initial contact with an Equal Employment
Opportunity (EEO) Counselor to file a complaint. Garcia asked the other air marshals
who were present during the briefing to write statements describing what they
witnessed. Schneider found one of these statements, read it, and texted Garcia:
I just wanted to let you know that because of [the discovered statement], I
realized just how much of an idiot I am and just how sorry I am for saying
things that were not appropriate. I truly do apologize. I ask for your
forgiveness for something that was actually meant with fondness and
appreciation. When I was in LA I lived with my girlfriend’s family for a
while and you remind me of her brother. Anyway, excuses are not worth
anything, so I will just say I am sorry and hope you can forgive my
foolishness.
Garcia did not respond, and the two men never spoke again.
DHS investigated the incident. Two of Garcia’s supervisors asked him to provide
a statement: Darren Gengler asked him via email, and Bradley Curtis asked in person.
Garcia declined both times, stating that the EEO office advised him not to discuss the
matter further and to direct inquiries to the office. Following the internal investigation
of the incident, DHS issued Schneider a letter of reprimand but later reduced it to a
letter of counseling.
In the years that followed, Garcia continued to fly missions out of the Chicago
field office and received high performance reviews. In 2020, Gengler miscoded Garcia’s
leave as regular sick (instead of weather-safety-sick) but corrected the mistake within
hours. And, in 2021, Garcia told Gengler that he was interested in serving as a mentor
and as a team leader, but Gengler ultimately chose other air marshals for the roles.
Garcia brought three claims against DHS in federal court: national origin
discrimination, retaliation, and hostile work environment. After determining that a jury
could not conclude that Garcia suffered an adverse action, the district court granted
summary judgment to DHS on the discrimination and retaliation claims. Garcia
proceeded to trial solely on his hostile work environment claim.
Before trial, DHS moved to exclude several pieces of evidence, two of which are
relevant on appeal. First, DHS argued that evidence Schneider had engaged in prior

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No. 24-1887 Page 4
bad acts, including asking an African-American employee to “give him skin,” would
violate Federal Rules of Evidence 401, 403, and 404(b). The district court agreed. It
excluded the “give me skin” comment under Rule 403 because it would confuse the jury
and unfairly prejudice DHS.
Second, DHS moved to exclude the testimony of Freeman Jordan, a former
supervisor at the Chicago field office. Jordan would have opined that the office was
“more tolerant” of discrimination and harassment committed by white employees than
by minority employees. The district court excluded the testimony, reasoning that
because the only issue going to the jury was whether Garcia was “subjected to severe
harassment at the October 27, 2018 meeting and whether [DHS] reasonably responded,”
Jordan’s testimony could only serve to show the Chicago field office’s propensity for
discrimination. See Fed. R. Evid. 404(b).
The jury, after hearing the evidence, returned a verdict for DHS. Garcia now
appeals the summary judgment decision on his discrimination claim, and the pre-trial
evidentiary rulings that excluded prior bad acts and culture of discrimination evidence
at the trial on his hostile work environment claim.
II
Garcia’s first argument on appeal is that the district court incorrectly granted
summary judgment to DHS on his discrimination claim. To survive summary judgment
on a Title VII discrimination claim, a plaintiff must show that his protected
characteristic caused an adverse employment action. See Ortiz v. Werner Enters., Inc., 834
F.3d 760, 765 (7th Cir. 2016).
We would be well within our discretion to find Garcia waived his argument. On
appeal, he lists five incidents in the facts section of his brief but presents no argument
on why any of them qualify as an adverse action. See White v. United States, 8 F.4th 547,
552 (7th Cir. 2021) (“A party that omits from its opening appellate brief any argument in
support of its position waives or abandons that party’s claim on appeal.”). But even
taking as adverse actions the five incidents he identifies on appeal and the one
additional action he identified in the district court, Garcia does not present enough
evidence for a factfinder to determine that his national origin caused any of the alleged
adverse actions.
The six incidents Garcia identifies are: (1) Garcia feeling humiliated after the pre-
mission briefing with Schneider, which reduced his mission effectiveness that day;

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(2) Garcia’s supervisors’ asking that he provide a statement about the briefing;
(3) Schneider receiving a letter of counseling rather than a more serious consequence;
(4) Gengler not selecting Garcia as a mentor or team leader; (5) Gengler improperly
coding Garcia’s sick leave; and (6) Gengler giving Garcia performance reviews that
were not as positive as they should have been.
The first three incidents did not affect “an identifiable term or condition of
employment” and so are not adverse actions under our case law. Muldrow v. City of St.
Louis, 601 U.S. 346, 355 (2024). Garcia is correct that between the district court’s decision
and now, Muldrow changed the standard for what constitutes an adverse action in the
discrimination context. However, he is still unable to meet the lower standard. Muldrow
explains that an adverse action must cause “some injury in employment terms or
conditions.” Id. at 356. Garcia’s feelings of humiliation, his supervisors’ requests that he
provide statements for an internal investigation, and the punishment of someone else,
did not affect any condition of Garcia’s employment that Garica has identified or that
we can identify.
As for the last three incidents, Garcia does not connect any of them to his
national origin such that a jury could say his protected characteristic caused the adverse
action. Garcia argues that Schneider made biased comments. But Garcia does not allege
that Schneider played any part in Gengler’s decision to select other employees as
mentors and team leaders, or Gengler’s miscoding of Garcia’s sick leave. See Perez v.
Thorntons, Inc., 731 F.3d 699, 709 (7th Cir. 2013). Garcia states that Schneider “consulted”
with Gengler about performance reviews. But to impute Schnieder’s animus to Gengler,
Garcia would need to show that Schneider’s influence was so great as to make Gengler
“an unwitting dupe” in the performance review decisions. Woods v. City of Berwyn, 803
F.3d 865, 871 (7th Cir. 2015). Here, Garcia’s bare statement—without citation to the
record or argument—that Schneider consulted on the performance reviews is not
enough for a jury to find Schneider caused the performance reviews to be worse than
they should have been.
Because there is insufficient evidence for a jury to find that Garcia’s national
origin caused any adverse action, we agree with the district court that summary
judgment for DHS on Garcia’s discrimination claim was appropriate.
Turning to the district court’s evidentiary rulings, Garcia contends the court
abused its discretion by excluding the other bad acts and culture of discrimination
evidence. We review the district court’s evidentiary rulings for abuse of discretion.
Jackson v. Esser, 105 F.4th 948, 963 (7th Cir. 2024). We will reverse under this deferential

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standard only when “no reasonable person would take the judge’s view of the matter.”
United States v. Washington, 962 F.3d 901, 905 (7th Cir. 2020).
Evidence is relevant if it is probative (has “any tendency to make a fact more or
less probable than it would be without the evidence”) and material (is “of consequence
in determining the action”). Fed. R. Evid. 401. But not all relevant evidence will be
admitted. Federal Rule of Evidence 403 allows a district court to exclude evidence
whose probative value is substantially outweighed by the risk of unfair prejudice.
“Evidence is unfairly prejudicial only if it will induce the jury to decide the case on an
improper basis, commonly an emotional one, rather than on the evidence presented.”
Davies v. Benbenek, 836 F.3d 887, 890 (7th Cir. 2016) (citation modified). Another basis for
evidence exclusion comes from Rule 404(b), which prohibits evidence of a prior crime,
wrong, or bad act to prove that a person has a propensity to act in a certain way. Fed. R.
Evid. 404(b).
On appeal, first Garcia argues that the “give him skin” evidence was not
particularly inflammatory, and thus, the trial court erred in excluding it. We see no
abuse of discretion in the trial court’s ruling. Only Garcia’s hostile work environment
claim went to trial. The “give me skin” comment was uttered outside Garcia’s presence
and there is no indication that it factored into Garcia’s experience of hostility at work.
See Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir. 2000) (“Mean-spirited
or derogatory behavior of which a plaintiff is unaware, and thus never experiences, is
not ‘harassment’ of the plaintiff (severe, pervasive, or other).”). The district court was
within its discretion to find that any marginal probative value of the evidence was
substantially outweighed by the risk that the jury would be misguided by the evidence
to focus on Schneider’s conduct outside Garcia’s presence.
Second, Garcia argues that, for two reasons, the district court wrongly excluded
the culture of discrimination evidence. One, according to Garcia, Jordan’s testimony
was a party admission. But the district court did not exclude Jordan’s testimony as
hearsay, so the party-opponent exception does not apply. See Fed. R. Evid. 801(d)(2).
Two, Garcia insists that Jordan’s testimony was admissible lay testimony that would
help “prove discrimination.” Even assuming the testimony was lay (and not
inadmissible as unnoticed expert testimony), the district court’s exclusion was
reasonable. Evidence that white employees were generally disciplined less harshly than
minority employees would lead the jury to reason that because DHS tended to treat
minority employees worse, it discriminated against Garcia. Such propensity reasoning
is barred by Federal Rule of Evidence 404(b). That is not to say the evidence would be

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inadmissible in all cases. For example, in a disparate treatment case based on uneven
discipline, similar evidence could be admitted to show an employer’s intent or pretext.
See Manuel v. City of Chicago, 335 F.3d 592, 595–96 (7th Cir. 2003). But given the narrow
issue before the jury here, the district court was within its discretion to exclude the
culture of discrimination evidence as improper propensity evidence.
Finding no error in the district court’s decisions, we AFFIRM.

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