Argued October 2, 2014.
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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 5869 -- Sheila Finnegan, Magistrate Judge.
For Elizabeth Castro, Michael A. Florez, Latonya Brooks, Plaintiffs - Appellants: Thomas C. Crooks, Attorney, Chicago, IL.
For Devry University, Inc., Defendant - Appellee: Brian M. Stolzenbach, Attorney, Seyfarth Shaw Llp, Chicago, IL.
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge.
Plaintiffs Elizabeth Castro, LaTonya Brooks, and Michael Florez sued their former employer, defendant DeVry University, Inc., under Title VII of the Civil Rights Act of 1964. Plaintiffs allege that DeVry retaliated against them by terminating their employment for complaining about their supervisor's racially and ethnically derogatory remarks. DeVry transferred the supervisor about three months after plaintiffs complained. After that time, he neither supervised plaintiffs nor participated in any of the termination decisions. Plaintiffs were discharged at different times, from ten to thirty months after their complaint, and the evidence concerning their individual circumstances and job performance varies. The district court granted summary judgment to DeVry on all three retaliation claims.
We affirm the district court's decision on the claims by Castro and Brooks, but we reverse its decision on the claim by Florez. Castro was terminated thirty months after the complaint because of poor performance over a sustained period. Brooks was terminated fifteen months after the complaint because of multiple instances of dishonesty and inconsistent performance. Neither Castro nor Brooks has raised a genuine issue of material fact on whether these reasons were pretexts for retaliation.
Florez, however, has raised a genuine issue of material fact about retaliatory motive. He was terminated ten months after the complaint for two stated reasons: inconsistent performance and his " volatile behavior." On appeal, DeVry has conceded that Florez's performance did not justify his termination. Florez has also offered evidence that DeVry's " volatile behavior" explanation was a pretext for retaliation. First, he has presented evidence that his managers did not honestly believe he had behaved unprofessionally. Second, he has offered evidence that DeVry falsely told the Equal Employment Opportunity Commission that his manager--who made the key recommendation for his firing--did not know about the complaint when in fact she did know. Third, an email recommending his termination referred specifically to his complaint about the supervisor's remarks. Although a reasonable jury would not be compelled to find retaliation on this record, such a finding would be permissible. DeVry was not entitled to summary judgment on Florez's claim.
I. Procedural Background
Plaintiffs filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., asserting two claims: (1) they were subjected to a racially and ethnically hostile work environment, and (2) DeVry terminated their employment in retaliation for complaining about their supervisor's racially and ethnically derogatory remarks. The parties consented to the jurisdiction of the magistrate judge under 28 U.S.C. § 636(c).
After more than a year of discovery, DeVry moved for summary judgment on all claims. Plaintiffs conceded that their hostile work environment claims should be dismissed but argued that they had raised genuine issues of material fact on their respective retaliation claims. The district court disagreed, granting summary judgment to DeVry on all three retaliation claims. Castro v. DeVry University, Inc., 941 F.Supp.2d 965 (N.D.Ill. 2013).
We review de novo the grant of summary judgment, examining the record in
the light most favorable to the nonmoving parties and drawing all reasonable inferences in their favor. E.g., Carter v. Chicago State University, 778 F.3d 651, 657 (7th Cir. 2015). Summary judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
II. The Law of Retaliation & Summary Judgment
Title VII prohibits employers from retaliating against employees who engage in activity protected by the statute. 42 U.S.C. § 2000e-3(a). We have often said there are two ways plaintiffs may prove their claims, which we have labeled the " direct" and " indirect" methods of proof. E.g., Silverman v. Board of Education of City of Chicago, 637 F.3d 729, 740 (7th Cir. 2011). But over the past several years, we have questioned the utility of the distinctions between them, recognizing that both methods of proof converge on the same fundamental question: could a reasonable trier of fact infer retaliation or discrimination, as the case may be? See, e.g., Bass v. Joliet Public School District No. 86, 746 F.3d 835, 840 (7th Cir. 2014); Perez v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir. 2013); Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013); Naficy v. Illinois Dep't of Human Services, 697 F.3d 504, 514 (7th Cir. 2012); Harper v. C.R. England, Inc., 687 F.3d 297, 313-14 (7th Cir. 2012); Coleman v. Donahoe, 667 F.3d 835, 862-63 (7th Cir. 2012) (Wood, J., concurring).
Plaintiffs proceed under only the direct method of proof. Under this method, plaintiffs must offer evidence of three elements: (1) they engaged in protected activity, (2) they suffered adverse employment actions, and (3) there was a causal connection between the protected activity and the adverse employment actions. E.g., Greengrass v. Int'l Monetary Systems Ltd., 776 F.3d 481, 485 (7th Cir. 2015). Whether we apply this method formally or just cut to the chase and ask the fundamental question directly--could a reasonable trier of fact infer retaliation?--makes no difference.
The first two elements are satisfied. Plaintiffs complained to Human Resources manager Alana Hurt on April 16, 2007 that their supervisor, Phil Giambone, often used racially and ethnically derogatory language in the workplace. Whether Giambone's comments went so far as to violate Title VII does not matter. Plaintiffs sincerely and reasonably believed they were complaining about conduct prohibited by Title VII, which is all that is required to establish protected activity. E.g., Magyar v. St. Joseph Regional Medical Center, 544 F.3d 766, 771 (7th Cir. 2008). The plaintiffs were all terminated at various times after the complaint. A termination is of course a materially adverse employment action. E.g., Nichols v. Southern Illinois University--Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007).
The question is whether plaintiffs have offered sufficient evidence to create a genuine issue of material fact on whether their complaint caused their terminations. To establish this causal link, plaintiffs can rely on direct or circumstantial evidence. E.g., Harper, 687 F.3d at 307. Plaintiffs do not claim they have any direct evidence of DeVry's retaliation--i.e., there is no admission from a DeVry agent that it discharged the plaintiffs because they complained. Plaintiffs rely on circumstantial evidence.
Circumstantial evidence suffices if " a convincing mosaic of circumstantial evidence" would permit a reasonable trier of fact to infer retaliation by the employer.
Rhodes v. Illinois Dep't of Transportation, 359 F.3d 498, 504 (7th Cir. 2004) (internal quotation marks omitted). In retaliation cases, we have recognized three categories of circumstantial evidence available to a plaintiff using the " convincing mosaic approach." Coleman, 667 F.3d at 862. These categories include (1) evidence of suspicious timing, (2) evidence that similarly situated employees were treated differently, and (3) evidence that the employer's proffered reason for the adverse employment action was pretextual. Id. at 860, citing Silverman, 637 F.3d at 734 (suspicious timing); Volovsek v. Wisconsin Dep't of Agriculture, Trade & Consumer Protection, 344 F.3d 680, 689 (7th Cir. 2003) (disparate treatment); Dickerson v. Board of Trustees of Community College District No. 522, 657 F.3d 595, 601 (7th Cir. 2011) (pretext). Each category of circumstantial evidence can suffice by itself to preclude summary judgment, depending on its strength in relation to the other evidence, but plaintiffs may also use them together. Coleman, 667 F.3d at 862; Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). Here, plaintiffs rely on both suspicious timing and pretext.
Suspicious timing can sometimes raise an inference of a causal connection, but temporal proximity alone is " rarely sufficient" to establish causation. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). We have rejected any bright-line rule about how close the events must be to establish causation, but in cases where there is " corroborating evidence of retaliatory motive," an " interval of a few weeks or even months may provide probative evidence of the required causal nexus." Coleman, 667 F.3d at 861. We have also noted, though, that the mere passage of time " does not conclusively bar an inference of retaliation." Malin v. Hospira, Inc., 762 F.3d 552, 560 (7th Cir. 2014) (reversing summary judgment for employer where evidence showed patient retaliation over period of several years).
To show pretext, an employee " must present evidence suggesting that the employer is dissembling." O'Leary, 657 F.3d at 635; see also Naik v. Boehringer Ingelheim Pharmaceuticals, Inc., 627 F.3d 596, 601 (7th Cir. 2010). " The question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain the discharge." O'Leary, 657 F.3d at 635. To meet this burden, the employee " must 'identify such weaknesses, implausibilities, inconsistencies, or contradictions'" in the employer's proffered reason " 'that a reasonable person could find [it] unworthy of credence.'" Coleman, 667 F.3d at 852 (alteration in original), quoting Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007).
To survive summary judgment, plaintiffs' mosaic of circumstantial evidence must be strong enough to permit a reasonable trier of fact to find that DeVry terminated each plaintiff because he or she complained about Giambone's remarks. See University of Texas Southwestern Medical Center v. Nassar, 570 U.S.
__, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013).
Each plaintiff relies on a different assortment of evidence to establish a causal link between the protected activity and his or her firing. We begin by setting out the facts common to all plaintiffs. Next we analyze the evidence of suspicious timing upon which all three plaintiffs rely. We conclude that this evidence does not by itself create a genuine issue of material fact on causation for any of the plaintiffs. We then analyze the remaining evidence offered by each plaintiff to show that DeVry's stated reasons for each termination were pretextual.
III. Facts Common to All Plaintiffs
Defendant DeVry University, Inc. is a for-profit school with several campuses in the Chicago area. Plaintiffs Elizabeth Castro, LaTonya Brooks, and Michael Florez are former admissions officers of DeVry. Castro and Florez are Mexican-American; Brooks is African-American. In early 2007 Castro was an assistant director of admissions for DeVry. Her immediate supervisor was Phil Giambone, then the director of admissions for the Chicago campus. Florez and Brooks were academic advisors who reported to Castro.
DeVry's enrollment model is based on recruiting prospective students for classes that begin every other month--in January, March, May, July, September, and November. Admissions officers at DeVry are responsible for following up on " leads" (potentially interested students), interviewing applicants, and otherwise assisting prospective students with the enrollment process. The goal for admissions officers is to enroll new students.
On April 14, 2007, Florez approached Giambone and requested time off on May 5. Giambone responded by asking if Florez was going to " get drunk with your people" on Cinco de Mayo. Florez reported the remark to Castro. Castro, along with Florez and Brooks, then decided to approach Human Resources about Giambone's behavior.
A. Plaintiffs' April 16, 2007 Complaint to Human Resources
Plaintiffs met with HR manager Alana Hurt on April 16, 2007. They discussed their concerns about Giambone's racially and ethnically derogatory remarks. Other academic advisors corroborated plaintiffs' complaints about Giambone. Shortly after the meeting, Hurt called HR director Deb Maher to tell her about the complaint. Maher relayed the complaint to Christine Hierl, the dean of enrollment management for the Chicago area.
B. Giambone's Conduct After the April 16 Meeting
Ten minutes after Castro returned from the meeting with HR, Giambone came to her office. He was " furious" and asked Castro whether she had " anything to tell him." He then told Castro that she needed to do " phone work" with him. Castro had not done this type of work since she had been an academic advisor, eight years earlier.
Several days after the April 16 meeting, Giambone began steering " leads" about prospective students away from Castro's team toward another team. Giambone also told Brooks and Florez not to " hang out" or otherwise associate with Castro. Then, in early June 2007, Giambone told Florez that Castro was " stealing" his students, an accusation Castro denies.
C. The April 28, 2007 Sales Meeting
About two weeks after plaintiffs' complaint to HR, DeVry conducted a sales meeting in its Chicago office to address concerns about low enrollment numbers
for the July 2007 admissions class. At the meeting Castro complained about how the " leads" were being distributed in the Chicago office. Christine Hierl jumped in and " verbally attacked" Castro. Hierl later sent Castro a memo stating that her negativity was hurting morale in the office.
Immediately after the meeting, plaintiffs assert, Castro entered a stairwell and heard Hierl say to Giambone: " There's no way we're going to let a bunch of wetbacks run this office." Giambone responded with laughter.
After hearing the " wetbacks" comment, Castro filled out a transfer request for any opening for a director or assistant director of admissions at DeVry. Giambone approved the request. Hierl told Castro that she could be transferred anywhere she wanted if she ...