September 15, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:14-cv-08141 -
Manish S. Shah, Judge.
Manion, Rovner, and Hamilton, Circuit Judges.
Rovner, Circuit Judge.
of Advocate Health and Hospitals Corporation (Advocate) claim
that they were treated unfairly based on their race. The
district court granted Advocate's motion for summary
judgment, finding that the plaintiffs failed to offer
evidence necessary to support an element of their claim. We
agree with the district court on all issues but the question
of the hostile work environment, and remand to the district
court for a determination of that claim.
Warren Johnson, Robert Pannell, Kimberly Scott-Murray,
Annette Smith, and Sherry Young all claim that they faced
race discrimination at the hands of supervisors when they
worked as Environmental Service Technicians (EVS techs) at
Advocate. EVS techs perform work that would traditionally be
called janitorial work. They clean and disinfect hospital
rooms and common areas, make beds, and the like. The EVS
techs claim that they were treated unfairly because of their
race in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et. seq. and 42 U.S.C. §
2012, Advocate contracted with Aramark Healthcare Support
Services and reorganized the supervision and operation of the
EVS department. Under the Service Agreement between Advocate
and Aramark, Aramark was responsible for managing the EVS
department while abiding by the policies of Advocate,
including, among other policies, Advocate's
non-discrimination policy. See, e.g., R. 62-6 at 6, 16, Page
ID 1941, 1951. Shortly thereafter, the plaintiffs claim that
Aramark-employed supervisors Susan Castillo, Christopher
Skalnik, and Mariusz Michalkowski engaged in discriminatory
acts against the plaintiffs. The claims of discrimination
include: (1) Johnson and Smith were paid less than white EVS
techs; (2) Pannell and Scott-Murray were denied promotions
and raises; (3) Plaintiffs were managed and disciplined more
scrupulously than their non-African-American co-workers, and
terminated in a discriminatory fashion; (4) African-American
plaintiffs were given less desirable and more strenuous
assignments; (5) Aramark supervisors subjected the plaintiffs
to offensive and derogatory racial comments, creating a
hostile work environment.
district court granted Advocate's motion for summary
judgment on all counts, concluding that the plaintiffs did
not experience severe or pervasive race-based harassment,
that there was no basis for employer liability, and that the
plaintiffs failed to demonstrate that racial animus motivated
the decisions to terminate Johnson, Scott-Murray and Smith.
Johnson v. Advocate Health & Hosps. Corp., No.
14 CV 8141, 2016 WL 5871489 (N.D. Ill. Oct. 7, 2016). As for
the hostile work environment claim, the lower court held that
the comments, although concerning, were too isolated,
indirect, and sporadic, and not so serious as to have
affected the plaintiffs' working conditions. Id.
at *8. The district court also concluded that there was no
basis for employer liability. Id.
plaintiffs' brief is awash in facts and controversies.
They claim that these numerous disputes and presentations of
conflicting evidence create genuine issues of material fact.
It is true that cases with jumbles of ostensibly disputed
facts often signal the need for a trial on the facts. See
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Not
all disputed facts, however, are relevant and material. On
summary judgment we must view the facts and make all
reasonable inferences that favor them in the light most
favorable to the party opposing summary judgment. Parker
v. Four Seasons Hotels, Ltd., 845 F.3d 807, 814 (7th
Cir. 2017). The following common refrains in summary judgment
cases are important to recall in a case with so many factual
On summary judgment a court may not make credibility
determinations, weigh the evidence, or decide which
inferences to draw from the facts; these are jobs for a
factfinder. Rather, the court has one task and one task only:
to decide, based on the evidence of record, whether there is
any material dispute of fact that requires a trial. Summary
judgment is not appropriate if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. We must look therefore at the evidence as a jury
might, construing the record in the light most favorable to
the nonmovant and avoiding the temptation to decide which
party's version of the facts is more likely true. As we
have said many times, summary judgment cannot be used to
resolve swearing contests between litigants.
Payne, 337 F.3d at 770 (internal citations and
quotations omitted). To defeat a motion for summary judgment,
the party opposing it must make a "showing sufficient to
establish the existence of an element essential to the
party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Summary judgment is a
critical moment for a non-moving party. It must "respond
to the moving party's properly-supported motion by
identifying specific, admissible evidence showing that there
is a genuine dispute of material fact for trial. Grant v.
Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017).
Inferences supported only by speculation or conjecture will
not suffice. Skiba v. Ill. Cent. R.R. Co., No.
17-2002, 2018 WL 1190856, at *7 (7th Cir. Mar. 8, 2018).
Neither will the mere scintilla of evidence. Grant,
870 F.3d at 571.
these common refrains are familiar, the task is often easier
to describe than to perform, and plenty of
credibility-weighing traps lay before a court, particularly
in such fact-intensive cases. See, e.g. Payne, 337
F.3d at 771. As our review is de novo, we affirm the district
court only when no reasonable jury could have found for the
plaintiffs. See, e.g., Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Roh v. Starbucks
Corp., 881 F.3d 969, 973 (7th Cir. 2018).
of the normal lattice of summary judgment demands, we must
also apply the constructs of employment discrimination law.
For years we have tangled with a "rat's nest of
surplus tests" in employment discrimination cases-
struggling to pigeon hole evidence into the direct or
indirect method with various overlaying requirements of
"convincing mosaics" and circumstantial or direct
evidence. Ortiz v. Werner Enters., Inc., 834 F.3d
760, 764-66 (7th Cir. 2016). Our Circuit has now clarified
the singular question that matters in a discrimination case:
"[W]hether the evidence would permit a reasonable
factfinder to conclude that the plaintiff's race,
ethnicity, sex, religion, or other proscribed factor caused
the discharge or other adverse employment action."
Ortiz, 834 F.3d at 765. "Evidence must be
considered as a whole, rather than asking whether any
particular piece of evidence proves the case by itself
… . Relevant evidence must be considered and
irrelevant evidence disregarded." Id.
allege that the district court's analysis failed to
comport with this new standard in Ortiz, but we
disagree. The district court did exactly as Ortiz
demands and ignored the old "convincing mosaic"
language and cut straight to the "bottom line and
determine[d] whether there [was] evidence from which a
reasonable trier of fact could infer discrimination from
Advocate's actions as to each particular plaintiff."
Johnson, 2016 WL 5871489, at *5 (N.D. Ill. Oct. 7,
2016), (citing Liu v. Cook Cty., 817 F.3d 307, 315
(7th Cir. 2016)).
doing away with the need for separate tests and
"mosaics, " the well-known and oft-used
McDonnell Douglas framework for evaluating
discrimination remains an efficient way to organize, present,
and assess evidence in discrimination cases. David v. Bd.
of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224
(7th Cir. 2017) (noting that "Ortiz, however,
did not alter [t]he burden-shifting framework created by
McDonnell Douglas Corp v. Green, 411 U.S. 792
(1973)"). There is no magic to this test; it is merely
one way of culling the relevant evidence needed to
demonstrate whether a reasonable factfinder could conclude
that an employer engaged in an adverse employment action
based on the plaintiff's race or other proscribed factor.
But because the framework is helpful we use it to evaluate
each of the plaintiffs' claims by looking to see whether
the plaintiffs (1) are members of a protected class; (2)
performed reasonably on the job in accord with their
employer['s] legitimate expectations; (3) were subjected
to an adverse employment action despite their reasonable
performance; and (4) similarly situated employees outside of
the protected class were treated more favorably by the
employer. David, 846 F.3d at 225. All of the
plaintiffs are African-American and thus fall within a
protected class. Using this framework as an organizational
guide, we address each of the plaintiffs' claims
individually, beginning with the plaintiffs' claims that
they received lower pay than non-African-American EVS
Johnson and Smith claim that they were paid less than white
associates because of their race. Plaintiff Pannell also
asserts that he did not receive "charge pay"- extra
pay for performing work outside of his job description. To
make these claims successfully, the plaintiffs needed to
produce evidence that similarly situated non-African-American
employees were treated more favorably. Reed v. Freedom
Mortg., 869 F.3d 543, 549 (7th Cir. 2017). Similarly
situated means "directly comparable" in all
material respects. Id. "The proposed comparator
need not be identical in every conceivable way, however, and
courts must conduct a common-sense examination."
Id. (quoting Perez v. Thorntons, Inc., 731
F.3d 699, 704 (7th Cir. 2013)). "The similarly-situated
inquiry is flexible, common-sense, and factual. It asks
'essentially, are there enough common features between
the individuals to allow a meaningful comparison?'"
Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir.
2012). In the Coleman opinion, the court warned
against using a mechanical "magic formula" for the
similarly-situated inquiry but yet set forth some examples of
evidence that would be required in the usual case. These
included whether the employees being compared (1) were
supervised by the same person, (2) were subject to the same
standards, and (3) "engaged in similar conduct without
such differentiating or mitigating circumstances as would
distinguish their conduct or the employer's treatment of
them." Id. (citing Gates v. Caterpillar,
Inc., 513 F.3d 680, 690 (7th Cir. 2008)).
again, this is not a hard and fast test, and there is no
magic to these considerations. In the employment
discrimination context, the requirement to find a similarly
situated comparator is really just the same requirement that
any case demands-the requirement to submit relevant evidence.
Relevant evidence means evidence having "any tendency to
make a fact more or less probable than it would be without
the evidence." Fed.R.Evid. 401. Evidence of what has
happened to other employees is only relevant if that employee
is in the same boat as the plaintiff. For example, one would
expect an employee with ten years' experience to be paid
more than an employee with ten months' experience.
Whether a comparator is similarly situated is typically a
question for the fact finder, unless, of course, the
plaintiff has no evidence from which a reasonable fact finder
could conclude that the plaintiff met his burden on this
issue. Coleman, 667 F.3d at 846-47; Reed,
869 F.3d at 549.
plaintiffs argue that Johnson identified two white EVS
technicians named "Kelly" and "Diane"
(last names unknown) who disclosed their salary information
to plaintiff Johnson and, according to Johnson, told him that
they were paid at a higher rate than he was. The plaintiffs
argue that Advocate did not "adequately justify or
reconcile this pay discrepancy" and that even if it did,
Advocate mistakenly thought that Johnson was referring to
Diana Esparaza when actually Johnson was referring to a
different person named "Diane." (Appellants'
Brief at 10). The defendants, however, did not have an
obligation "to justify or reconcile this pay
discrepancy." It is the plaintiffs' responsibility,
on summary judgment, to make a "showing sufficient to
establish the existence of an element essential to the
party's case, and on which that party will bear the
burden of proof at trial." Ce-lotex, 477 U.S.
at 322. It is the plaintiffs' responsibility to go beyond
the pleadings and designate specific facts showing that there
is a genuine issue for trial. Id. at 324. There is
no requirement that the moving party support its motion with
any evidence negating the opponent's claim. Id.
than Johnson's statement that "Kelly" and
"Diane" told him they had higher salaries, and that
Diane told Johnson that she had no prior experience in a
hospital, the plaintiffs make no showing to establish an
essential element on which they would bear the burden at
trial-that is, whether Kelly and Diane were similarly
situated to the plaintiffs. They submitted no pay records,
nothing about their qualifications or experience (other than
that Diane was an aqua teacher at a park and had not worked
at a hospital before), who supervised Kelly and Diane, how
long they had worked for the hospital, what types of reviews
they received, and if they had been subject to any
discipline. In fact, the plaintiffs never revealed the last
names of "Kelly" and "Diane" such that
the defendant could, on its own, look for the answers to any
of these questions. Even if Kelly and Diane did, in fact,
receive more money than Johnson, without knowing whether they
were similarly situated, a court has no way of discerning
whether this information is relevant to a claim of race
also argues that Johnson's report of what
"Kelly" and "Diane" told him is hearsay.
Johnson retorts that this is a statement by the
defendant's employee on a matter within the scope of that
employee's relationship with Advocate and thus not
hearsay pursuant to the exclusions enumerated in Federal Rule
of Evidence 801(d)(2)(D). It is unlikely, however, that this
statement falls within the exclusion of Rule 801(d)(2)(D). In
order to be excluded, the declarant must be involved in the
"decisionmaking process affecting the employment
action." Simple v. Walgreen Co., 511 F.3d 668,
672 (7th Cir. 2007). These declarants were not.
need not belabor this hearsay point too much. As we have just
reasoned, even if the statement does not constitute hearsay,
it does not provide any relevant information that would help
defeat summary judgment. For purposes of Title VII,
plaintiffs need to produce evidence that similarly situated
non-African-American employees were treated more favorably.
Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 394
(7th Cir. 2010). And the plaintiffs have not done so.
makes the same claim-that two white associates, who did not
have previous housekeeping experience, informed her that
their hourly rates were higher than hers. R. 46-3 at 63, Page
ID 676. Smith's claims fail for the same reasons that
Johnson's do-lack of evidence that the other employees
were similarly situated.
Pannell claims that he was often directed to perform work
outside of his job description thus warranting extra
"charge pay, " but yet never received such pay. He
claims that there was no evidence that white employees in his
job category were asked to perform these tasks, nor was there
evidence that they were deprived of the charge pay. Once
again, however, the burden was on Parnell to produce evidence
of a disparity and he failed to do so in any manner. He did
not submit affidavits from white EVS technicians who were
paid for their work, records of assignments, pay, or any
other scintilla of evidence of how similarly situated white
employees were treated. In sum, the plaintiffs failed at
their burden of putting forth relevant evidence on these
facts, and thus cannot survive a motion for summary judgment
on the claim that African-American plaintiffs were paid less
than non-African-Americans, either in salary or charge pay.
Failure to promote
plaintiffs also contend that there are disputed questions of
material fact regarding whether the African-American EVS tech
plaintiffs were passed over for promotions in favor of white
EVS workers with less experience and seniority. Here again,
plaintiffs have failed to make a showing sufficient to
establish the existence of the same element discussed above
which is essential to their case and on which they will bear
the burden of proof at trial-that is, that ...