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Johnson v. Advocate Health and Hospitals Corp.

United States Court of Appeals, Seventh Circuit

June 8, 2018

Warren Johnson, et al., Plaintiffs-Appellants,
Advocate Health and Hospitals Corporation, doing business as Advocate Christ Medical Center, Defendant-Appellee.

          Argued September 15, 2017

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:14-cv-08141 - Manish S. Shah, Judge.

          Before Manion, Rovner, and Hamilton, Circuit Judges.

          Rovner, Circuit Judge.

         Employees 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.


         Plaintiffs 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. § 1981.[1]

         In 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.

         The 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.


         The 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 recitations:

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.

         Although 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).

         On top 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.

         Plaintiffs 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)).

         Despite 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 workers.

         A. Pay disparity

         Plaintiffs 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)).

         Once 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.

         The 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. at 323.

         Other 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 discrimination.

         Advocate 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.

         But we 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.

         Smith 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.

         Likewise, 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.

         B. Failure to promote

         The 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 ...

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