Firestine, Cynthia v. Parkview Hosp Inc ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1909
CYNTHIA FIRESTINE,
Plaintiff-Appellant,
v.
PARKVIEW HEALTH SYSTEM, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:01-CV-0414—William C. Lee, Judge.
____________
ARGUED DECEMBER 17, 2003—DECIDED JUNE 10, 2004
PUBLISHED OCTOBER 22, 2004*
____________
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Cynthia Firestine sued
Parkview Health System, Inc., under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17, alleging that
the company retaliated against her by removing her from
her position for complaining about religious discrimination.
*
This decision was originally released as an unpublished order.
In response to a motion from Firestine to publish, it is now issued
as an opinion.
2 No. 03-1909
The district court granted summary judgment in favor of
Parkview, concluding that Firestine could not establish that
she had engaged in protected activity and, alternatively, had
no evidence that Parkview’s stated, non-discriminatory
reason for removing her from her position was pretextual.
Because we conclude that there are genuine issues of material
fact about whether Parkview retaliated against Firestine, we
reverse the district court’s grant of summary judgment and
remand for further proceedings.
I. Background
Taking all facts and inferences in favor of Firestine, see
Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir.
2002), we recount the relevant events leading up to her
termination from Parkview. Firestine had worked as an
administrative secretary in the medical/oncology/nursing
department at Parkview since May 1998. After working as
a manager in that department, Janette Bowers in March
2001 became Firestine’s immediate supervisor.
Firestine often talked about her conversion to Catholicism
with friends at work, including Bowers, former supervisor
Lynn Gerig, and Karen Slabaugh. Firestine would also tell
Bowers and Gerig when she was attending the Catholic
Mass offered by Parkview during lunch about once a week.
In response Bowers allegedly would roll her eyes. According
to Firestine, in December 2000 Bowers shared with
Firestine that she had once been Catholic. In the same con-
versation, both Bowers and Gerig warned Firestine that if
she sent her son to Catholic school he would become “brain-
washed,” and Bowers said that he would “feel guilty about
everything he does for the rest of his life.”
At some point before November 2000, Firestine discovered
through conversations with Slabaugh that Bowers was a
lesbian and later confirmed that information with Bowers.
After learning about Bowers’s sexual orientation, Firestine
No. 03-1909 3
shared with Bowers that her Catholic beliefs kept her from
approving of Bowers’s lifestyle, but that her views did not
affect her friendship with Bowers.
Believing her coworkers’ comments about Catholicism to
have been made in the context of friendship, Firestine never
complained at the time to Human Resources about religious
discrimination. But after receiving her first performance
evaluation from Bowers on March 13, 2001, Firestine’s out-
look changed. Bowers had conducted the performance evalu-
ation two weeks after becoming Firestine’s supervisor with
no input from Firestine’s former supervisor, Gerig. Al-
though the numerical rating, which affects merit raises,
actually increased from the previous year (resulting in a two
percent merit raise), Firestine took issue with comments
about her job performance that she thought harsh and inac-
curate. She feared that the comments could possibly affect
future attempts to advance at Parkview. In particular,
Firestine disagreed with Bowers’s admonishment “to be con-
tinually aware of the need for confidentiality and to main-
tain a quiet and professional manner in patient care areas.”
The evaluation also contained some criticism about Firestine’s
ability to prioritize and timely complete tasks, such as
filing.
Bowers and Cassie Carney, another manager in the de-
partment, presented the evaluation to Firestine on March
13, 2001. Firestine was extremely upset about the evalua-
tion and requested to talk further about it with Bowers.
Bowers agreed, but insisted that Carney should be present
as well, which Firestine says made her “feel ganged up on.”
According to Firestine, at this second meeting on the morning
of March 14, Bowers attempted to explain some of the
comments but got upset when she realized that Firestine
was taking notes.
Immediately after this meeting Firestine contacted Kari
Vanness, an Employee Relations Specialist. Firestine main-
tains that she told Vanness that the only reason she could
4 No. 03-1909
discern for the harsh comments was that she was Catholic,
and Bowers knew that as a Catholic she did not approve of
homosexual lifestyles. Vanness told Firestine that she
would look into the comments. Although Vanness normally
maintains records on investigations into employees’ com-
plaints, she had none regarding Firestine’s complaint of
religious discrimination.
After meeting with Vanness, Firestine contacted a doctor
treating her for depression to schedule an emergency
therapy session around 12:30 p.m. that afternoon. Bowers,
and Bowers’s supervisor, Eileen Bracket, however, asked to
meet with Firestine about her concern over her evaluation
at 12:15 p.m. Feeling “cornered” and in need of seeing her
doctor, Firestine sobbed uncontrollably throughout the
meeting, causing Brackett to ask her why she was so upset
about a positive evaluation. Finally, they allowed Firestine
to leave the meeting in order to attend the doctor’s appoint-
ment. Afterward Vanness spoke with Bowers about modify-
ing the comments and Bowers agreed to do so. To ensure a
fair evaluation, Bowers also asked Brackett to conduct a
second review of Firestine.
Firestine’s doctor, after seeing her that day, placed her on
a two-week leave due to her emotional state. That night,
Firestine spoke with coworker Slabaugh by telephone about
her evaluation. Firestine told Slabaugh that the only reason
she could think of for Bowers’s negative comments was
“that I’m a Catholic and Catholics do not believe in gay
lifestyles, and due to her past comments about my Catholi-
cism and her problems with Catholicism.” According to
Slabaugh, Firestine mentioned bringing legal action against
Parkview, but Firestine denies this.
After the conversation Slabaugh told Bowers that Firestine
believed she had received a bad evaluation because Bowers
was prejudiced against Firestine for her Catholic beliefs
about sexual orientation, and that Firestine planned to take
No. 03-1909 5
legal action. Bowers then contacted Vanness and Jon
Dortch, the Vice President of Human Resources, to discuss,
in Bowers’s words, “the lesbian issue, and the Catholic is-
sue, and the money amount.” Bowers also met with Brackett
to inform her about Firestine’s conversation with Slabaugh
(although Brackett recalls hearing only about the sexual
orientation issue, not Firestine’s related comment about re-
ligious discrimination). Brackett, after having seen Firestine
and Bowers interact during the meeting on March 14 and
now hearing of Firestine’s comments about Bowers’s sexual
orientation, called Dortch and, she says, told him to move
Firestine from her position. But Dortch does not remember
this call.
Bowers, Vanness, and Dortch met, focusing their discus-
sion on Firestine’s comments to Slabaugh about Bowers’s
sexual orientation and not the “Catholic issue.” Parkview
has a policy that forbids negative comments about another’s
sexual orientation, as well as race, color, gender, religion,
national origin, age, and disability, and makes such com-
ments a dischargeable offense. The three discussed whether
Firestine had violated that policy in conversing with Slabaugh
by telephone concerning her belief that, Bowers, because
she was a lesbian, had discriminated against Firestine for
her Catholic views about sexual orientation. Vanness then
set up a time to talk to Firestine upon her return from
leave.
Firestine received an order directing her to report to
Human Resources on March 28, 2001, the day she returned
to work. At that time Vanness met with Firestine to discuss
her after-hours conversation with Slabaugh. Firestine
explained that she had simply communicated her belief that
Bowers had discriminated against her and why. Vanness,
though, replied that Bowers was angry about the comment
to Slabaugh concerning her sexual orientation and “does not
want to work with you anymore.” According to Firestine,
Vanness said, “It would be best to move you somewhere
6 No. 03-1909
else, so that you can better your career.” Although Firestine
insists that Vanness told her that she could no longer work
under Bowers, Vanness asserts that Firestine opted to be
removed from the department in order to resolve the
situation.
Parkview arranged to move Firestine internally. Firestine
was given 30 days to find another position at Parkview with
the help of the recruiting department, which was the
standard method of transferring current employees without
positions for whatever reason. In addition, Firestine was to
receive two weeks’ pay while she looked for a replacement
job; after that she would have to use her vacation time for the
remainder of the 30-day period. Vanness took Firestine to
meet Eric Weeks, an internal recruiter, who would assist
her internal job search. According to Weeks, an employee is
responsible for maintaining contact with him. Firestine had
difficulty reaching Weeks by phone (although he did return
her emails), and he showed her only lesser-paying, part-
time jobs or full-time jobs in the evening, which were not
comparable to her former employment. Furthermore,
although Parkview had a website where new job openings
were to be posted, the postings were not kept current, so
Firestine did not find the website useful. But Parkview did
post a hard copy of current job postings at each Parkview
facility. After an April 5 email to him, Firestine did not
contact Weeks again.
On April 15, 2001, still within the 30-day period but pre-
sumably a couple of days into her vacation time, Firestine
found an external job at United Art and Education for $9.00
per hour. In responding to Parkview’s motion for summary
judgment, Firestine’s counsel represented that this job paid
less than Firestine’s former position. There is no evidence
about Firestine’s salary at Parkview, although the person
who replaced her there was paid $10.92 per hour. Parkview
officially terminated Firestine on May 10, 2001, several weeks
after the 30-day period, since she had not secured another
No. 03-1909 7
job at Parkview. Parkview, however, did not dispute
Firestine’s assertion at oral argument that no comparable
jobs ever became available before that time.
Firestine filed a charge with the Equal Employment
Opportunity Commission alleging religious discrimination
and retaliation. In August 2001 she received her right-to-
sue letter from the EEOC and then timely filed this action.
Before summary judgment Firestine voluntarily dismissed
her discrimination claim; only her retaliation claim re-
mained. The district court granted summary judgment for
Parkview on that claim, reasoning that Firestine could not
establish the first step of her prima facie case—engaging in
a protected activity—and that she also lacked evidence of
pretext.
II. Analysis
Firestine proceeded under the indirect method of estab-
lishing retaliation, which required first that she present
evidence sufficient to establish a prima facie case that
Parkview retaliated against her. Hilt-Dyson, 282 F.3d at
465. For a prima facie case, the plaintiff must demonstrate
that (1) she engaged in statutorily protected activity, (2) she
was performing her job according to her employer’s legiti-
mate expectations, (3) despite meeting those expectations,
she suffered a materially adverse action, and (4) she was
treated worse than a similarly situated employee who did
not engage in statutorily protected activity. Id.; Stone v.
City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642 (7th
Cir. 2002); see McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). If a prima facie case is established, the
burden then shifts to the defendant to provide a legitimate,
non-discriminatory reason for the adverse employment
action. Rhodes v. Ill. Dep’t. of Transp., 359 F.3d 498, 508
(7th Cir. 2004); Hilt-Dyson, 282 F.3d at 465. Once the
defendant has provided a legitimate reason, the burden
8 No. 03-1909
shifts back to the plaintiff to show that the proffered reason
is pretextual. Hilt-Dyson, 282 F.3d at 465.
On appeal Firestine first correctly argues that the district
court erred in finding that she did not engage in statutorily
protected activity. According to Firestine, her complaint to
Vanness about what she reasonably believed to be religious
discriminatory animus by Bowers satisfied the first step of
the prima facie case. In order to establish that she had
engaged in a protected activity, Firestine was required to
demonstrate that she complained about an act that
she “ ‘reasonably believed in good faith . . . violated
Title VII.’ ” Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752
(7th Cir. 2002) (quoting Alexander v. Gerhardt Enters., Inc., 40
F.3d 187, 195 (7th Cir. 1994)); see Dey v. Colt. Constr. & Dev.
Co., 28 F.3d 1446, 1457-58 (7th Cir. 1994). Only a groundless
claim “resting on facts that no reasonable person possibly
could have construed as a case of discrimination” could not
constitute a statutorily protected activity. Fine, 305 F.3d at
752. And a mistake as to the merits of a complaint does not
cost an employee the protection of Title VII. Mattson v.
Caterpillar, Inc., 359 F.3d 885, 892 (7th Cir. 2004).
In finding that Firestine did not engage in statutorily
protected activity, the district court first expressed doubt
about the good faith of her belief that Bowers had discri-
minated against her because, in the court’s view, the eval-
uation that sparked the subsequent events was positive.
Firestine, however, focuses on the comments in the evaluation,
particularly the admonition to show greater awareness of
the need for confidentiality. Parkview, for its part, did not
present any evidence about how the evaluations are used
and their effect on advancement. Nor did Parkview dispute
Firestine’s statement that the suggestion she was not
maintaining the confidentiality of patient information could
doom advancement. Instead Parkview characterizes the
evaluation as good, focusing on the numerical ranking, and
asserts that the comments were valid. The validity of such
No. 03-1909 9
comments and their characterization, however, is disputed.
When these disputes of fact exist, it is the role of the
factfinder to determine whether Firestine believed in good
faith that Bowers’s comments stemmed from a discrim-
inatory animus. See Payne v. Pauley, 337 F.3d 767, 770 (7th
Cir. 2003).
Relying on a statement in Clover v. Total Sys. Servs., Inc.,
176 F.3d 1346, 1351 (11th Cir. 1999), that “the objective
reasonableness of an employee’s belief that her employer
has engaged in an unlawful employment practice must be
measured against existing substantive law,” the district
court also reasoned that Firestine’s belief was not reason-
able because negative evaluations do not amount to adverse
employment actions. But, even if the perceived act of
discrimination does not “reach a level where it affects the
terms and conditions of employment,” the employee may
have a valid retaliation claim if the employer fires her for
complaining about that act. Hamner v. St. Vincent Hosp. and
Health Care Ctr., Inc., 224 F.3d 701, 707 (7th Cir. 2000).
Firestine did not need to establish a successful underlying
Title VII claim to satisfy the first element of the prima facie
case for a retaliation claim. See Durkin v. City of Chicago,
341 F.3d 606, 615 (7th Cir. 2003) (conduct at issue does not
need to violate Title VII); Alexander, 40 F.3d at 195
(complained-of conduct need not violate Title VII). Even
though negative evaluations cannot support a Title VII
discrimination claim, see, e.g., Hilt-Dyson, 282 F.3d at 466,
the evidence established that Firestine reasonably believed
she was complaining about an action in violation of Title
VII based on Bowers’s previous anti-Catholic comments and
her allegedly negative comments in the evaluation just two
weeks after she moved into a position to affect Firestine’s
job. See Haywood v. Lucent Tech., Inc., 323 F.3d 524, 532
(7th Cir. 2003) (negative job evaluation may evidence
discrimination); Collins v. State of Ill., 830 F.2d 692, 702
(7th Cir. 1987) (holding that employee engaged in statutorily
10 No. 03-1909
protected activity when she complained that new supervisor’s
frequent, negative evaluations were racially motivated).
Parkview’s characterization of Firestine’s evaluation as
“objectively positive,” does, however, affect our analysis of
whether Firestine was meeting Parkview’s legitimate job
expectations. According to Parkview, Firestine failed to
meet its legitimate expectations only to the extent that
after receiving her evaluation she commented on Bowers’s
sexual orientation in the course of complaining to coworker
Slabaugh during an after-hours conversation about per-
ceived discrimination. Because this position coincides with
Parkview’s proffered nondiscriminatory reason for removing
Firestine, our later discussion about pretext covers analysis of
the second step in the prima facie case. See Gordon v.
United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001).
We turn then to the third prong of the prima facie case.
Firestine argues that her removal from her job by itself
constitutes an adverse action. She asserts that the offer of
a 30-day window to transfer internally was a sham, exem-
plified by Parkview’s failure to find her a comparable full-
time job on the day shift. Transfers that quantitatively affect
benefits or wages or that significantly reduce an employee’s
career prospects may constitute adverse action. Sitar v. Ind.
Dep’t of Transp., 344 F.3d 720, 727 (7th Cir. 2003);
Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th
Cir. 2002). And although Parkview directs its response to
whether Firestine suffered an “adverse job action” (empha-
sis added), retaliatory conduct that can incur liability is not
so limited in scope. See Herrnreiter, 315 F.3d at 746.
Here, the evidence established that Firestine suffered an
adverse action—she was removed from her job, she had to
use some of her vacation time to seek another position at
Parkview, and ultimately the jobs made available to her
paid less, involved entirely different work, and had less
desirable hours. There is no dispute that these jobs were
No. 03-1909 11
not comparable. And although Firestine left before the 30-
day window expired, Parkview never challenged Firestine’s
assertion at oral argument that no comparable jobs ever
became available before the end of that period. Removing
Firestine from her position and then providing her with the
option of transferring only to jobs quantitatively and
qualitatively worse than her former position was a materi-
ally adverse action. Sitar, 344 F.3d at 727 (explaining that
whether transfer is adverse action depends on how disad-
vantageous the change is); Smart v. Ball State University,
89 F.3d 437, 441 (7th Cir. 1996) (holding that transfer that
leads to reduction in pay or benefits is adverse action).
Firestine also satisfies the “similarly situated” prong of
the prima facie case. Contrary to Parkview’s contention in
its summary judgment motion that Firestine needed to
identify a non-Catholic employee who did not complain but
was evaluated better than her, the proper comparison is
whether a similarly situated employee, who did not com-
plain about religious discrimination, was treated more favor-
ably, i.e., not removed from his or her position. See Stone,
281 F.3d at 644. Parkview concedes in its brief that no
other employee has complained of religious discrimination.
And if by “similarly situated” Parkview means someone else
who purportedly violated its policy against commenting on
a coworker’s sexual orientation, we think Parkview’s char-
acterization of its policy is disingenuous. The cited policy is
actually broader: it forbids comments on a coworker’s race,
color, gender, religion, national identity, age, disability, or
sexual orientation, and only because Parkview seeks to
narrow the policy’s scope can it insist that no others were
similarly situated. Three such persons are obvious to us,
and Parkview has never contended that any of them were
disciplined, let alone removed from their jobs after their
conduct came to light. Slabaugh, who previously had told
Firestine of Bowers’s sexual orientation, was not disciplined
for violating the policy, nor was former supervisor Gerig or
12 No. 03-1909
Bowers herself disciplined after their earlier disparaging
remarks about Firestine’s Catholicism had been made
known to Vanness.
And that brings us to pretext. In this case, whether
Parkview actually viewed Firestine’s after-hours conversa-
tion with Slabaugh as violating the policy forbidding negative
comments against another’s sexual orientation is a proposi-
tion sufficiently dubious to require resolution by the trier of
fact. See Gordon, 246 F.3d at 888 (to establish pretext,
plaintiff must demonstrate that employer’s proffered reason
was unworthy of belief). Although we do not stand as a
superpersonnel department and the proffered reason must
only be sincere, “a determination of whether a belief is
honest is often conflated with analysis of reasonableness.” Id.
at 889 (internal quotations omitted). Based on the record, the
conversation with Slabaugh mirrored Firestine’s complaint
to Vanness about possible workplace discrimination
concerning whether Firestine’s Catholic-based views on
sexual orientation caused Bowers to give her a harsher
evaluation. To view Firestine’s speculation about Bowers’s
motivation as a negative comment on her sexual orientation
and therefore in violation of the policy is not objectively
reasonable, creating doubt as to the sincerity of Parkview’s
reason. Vanness’s failure to keep written notes about
Firestine’s complaint and the investigation into her com-
ments about Bowers’s sexual orientation also undermine
the credibility of Parkview’s explanation for removing
Firestine.
In addition, Parkview presents an inconsistent story.
Parkview argues that Vanness and Dortch made the deci-
sion to remove Firestine for violating the anti-discrimination
policy after learning of her conversation with Slabaugh. But
Parkview was specifically asked in an interrogatory why it
removed Firestine from her position, and in its response the
company did not state that Firestine had violated a com-
pany policy. And Parkview added to its story again at
No. 03-1909 13
summary judgment, asserting alternatively that Brackett
was the decisionmaker and had determined that Bowers
and Firestine could not work together before Firestine’s
conversation with Slabaugh even occurred. Vanness, however,
attested that she did not discuss the decision to remove
Firestine with Brackett, and Dortch has no recollection of
a conversation with Brackett taking place. Although
Parkview argues that these various explanations are not
contradictory, the testimony of Vanness and Dortch suggest
otherwise. Parkview’s competing explanations call into ques-
tion their veracity. See Gordon, 246 F.3d at 891-92. With
that in mind, we conclude that Firestine has raised a gen-
uine issue of material fact as to the pretextual nature of
Parkview’s proffered explanation for removing her, requir-
ing a trial to resolve.
III. Conclusion
For the foregoing reasons, we REVERSE the decision of the
district court and REMAND for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-22-04