Toy A. Collins v. American Red Cross , 715 F.3d 994 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3345
T OY C OLLINS,
Plaintiff-Appellant,
v.
A MERICAN R ED C ROSS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08-cv-50160—Frederick J. Kapala, Judge.
A RGUED N OVEMBER 28, 2012—D ECIDED M ARCH 8, 2013
Before K ANNE, W OOD , and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Toy Collins worked for the Ameri-
can Red Cross. The Red Cross later fired her after an
investigation concluded that Collins committed mult-
iple acts of employee misconduct. Collins sued under
Title VII, claiming that she was really fired because of
illegal retaliation and discrimination. The district court
found that Collins did not present enough evidence to
support her claims and granted summary judgment for
the Red Cross. We agree with the district court and affirm.
2 No. 11-3345
I. B ACKGROUND
Toy Collins first started working with the American
Red Cross in 1998 as a paid volunteer with AmeriCorps,
a federal community service organization. After her
AmeriCorps stint ended in 2000, the Red Cross hired
Collins as a full-time employee in its Rockford, Illinois
office.
Collins is African-American. In the summer of 2006,
Collins called the Red Cross’s 24-hour confidential
hotline to complain about discrimination: she alleged
that her co-workers put tacks on her chair, damaged her
property, demanded private information, stole her
files, required her to pay business costs from her own
pocket, and otherwise harassed and sabotaged her. On
August 31, 2006, she filed a racial discrimination
charge with the Equal Employment Opportunity Com-
mission (“EEOC”). The EEOC gave her a “right-to-sue”
letter on February 26, 2007, but Collins did not sue at
that time.
In June 2007, several of Collins’s co-workers com-
plained that Collins (1) told others that the Red Cross
was out to get minorities; (2) said she could not work
with homosexuals; (3) instructed an employee to falsify
records; (4) coerced a subordinate into teaching a class
for free; and (5) gave out blank certifications for
Red Cross courses. The Red Cross assigned Janet Stice,
a human resources officer from a different office, to
investigate the complaints. Stice interviewed eight wit-
nesses between June 26, 2007, and June 28, 2007. Stice
also interviewed Collins, who denied the allegations
No. 11-3345 3
against her. Ultimately, Stice found all of the allega-
tions against Collins were “[s]ubstantiated.” (R. 77-20 at
8.) Stice compiled her findings in a written report and
recommended that Collins be terminated. (Id. at 2-8.)
Based on the report, the Red Cross terminated Collins
on July 16, 2007. Collins sued under Title VII, alleging
that the Red Cross retaliated against her for filing the
2006 EEOC complaint and discriminated against her be-
cause of her race. The district court granted summary
judgment in favor of the Red Cross, and Collins now
appeals.
II. A NALYSIS
Summary judgment is proper where “there is no
genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We review the district court’s entry of summary
judgment de novo and view the evidence in the light
most favorable to the nonmoving party. Arizanovska v.
Wal-Mart Stores, Inc., 682 F.3d 698, 702 (7th Cir. 2012). That
said, we will not draw inferences “that are supported
by only speculation or conjecture.” Harper v. C.R. England,
Inc., 687 F.3d 297, 306 (7th Cir. 2012). A genuine issue
of material fact exists only where there is enough
evidence that a reasonable jury could return a verdict
in favor of the nonmoving party. Id. Here, Collins raises
two Title VII claims: one for retaliation, see 42 U.S.C.
§ 2000e-3(a), and another for discrimination, see 42 U.S.C.
§ 2000e-2(a). The district court entered summary judg-
ment in favor of the Red Cross on both claims, and we
will address each in turn.
4 No. 11-3345
A. Retaliation
Title VII forbids retaliating against an employee
“because he has opposed any practice made . . .
unlawful . . . by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a). Here, Collins attempts
to prove her retaliation claim under the “direct method”
of proof. To do so, she must show that (1) she engaged
in protected activity under Title VII; (2) she suffered
an adverse employment action; and, (3) there is a
causal link between her protected activity and the
adverse action. See Coleman v. Donahoe, 667 F.3d 835, 859
(7th Cir. 2012). The Red Cross rightly concedes that
filing an EEOC complaint was a protected activity and
that Collins’s termination was an adverse employment
action. See Arizanovska, 682 F.3d at 703-04. Thus, the
only question is whether there was a causal link
between the two.
To answer this question, Collins directs us to Janet
Stice’s report recommending that the Red Cross
terminate Collins. The “Disposition” section of the report
included a list of allegations that Stice found to be
“[s]ubstantiated.” (See R. 77-20 at 8.) One of those conclu-
sions was that Collins “has told others that [the Red Cross]
is out to get minorities.” (Id.) According to Collins though,
none of Stice’s interviews actually substantiated this claim.
Thus, Collins concludes, the report must have been refer-
ring to Collins’s EEOC complaint, and a reasonable jury
could find in her favor.
No. 11-3345 5
We disagree. Stice’s report begins with a list of allega-
tions, one of which was that Collins “told others that
[the Red Cross] is out to get minorities.” (Id. at 2.) From
there, the report contains several pages of brief sum-
maries of interviews with Collins’s co-workers. Following
that are several pages of what appear to be rough tran-
scriptions of Stice’s interview with Collins. Finally, the
last page of the report concludes that the initial allega-
tions are “[s]ubstantiated” and recommends that Collins
be terminated.
Read as a whole, we think it clear that Stice’s report
was not referring to Collins’s EEOC complaint when it
concluded that Collins “told others that [the Red Cross] is
out to get minorities.” (Id. at 8.) The report does not ever
mention Collins’s nearly year-old EEOC complaint.
What it does mention, however, is a series of complaints
and allegations about Collins stirring up tensions
between her co-workers. According to one interview
summary in the report, Collins called one co-worker “a
racist” and another co-worker “a lesbian.” (Id. at 3.) A
third co-worker said that Collins “is very paranoid
about other people” and “thinks that people have con-
spiracies out to get her.” (Id. at 4.) The transcript of
the interview with Collins also provides guidance; it
indicates that Stice asked Collins “Did you tell Adrianna,
we have to stick together because they are all racist?”;
and “[D]id you say that Kathy was a racist?” (Id. at 5-6.)
Given this context, we think it clear that the report
was concerned with Collins sowing racial tension in
the office, not with her EEOC complaint.
6 No. 11-3345
Collins responds that the report did not do a par-
ticularly good job of supporting this conclusion. And
Collins is not wrong. For instance, the report indicates
that Stice asked if Collins told “Adrianna” that “we have
to stick together because they are all racist?” (Id. at 5.)
Stice’s summary of her interview with “Adriana,” how-
ever, does not specifically mention this allegation. (Id. at
3.) Doubtless, then, Stice could have documented her
findings more clearly. Nevertheless, at least something in
the report suggests that it was concerned with
Collins sowing racial tension in the office. Indeed, several
parts of the report do. But nothing in the report suggests
that it was concerned with Collins’s EEOC complaint.
And we see no reason why a reasonable jury would
reject a proposition supported by some, albeit imperfect,
evidence in favor of a proposition supported by no evi-
dence at all.
Thus, we do not think that a reasonable jury could
find that the report’s conclusions referred to Collins’s
EEOC complaint. Of course, that does not mean that the
report’s conclusions were correct. Collins denies making
the statements that the report attributes to her, and
we must assume, at this stage, that Collins is telling the
truth. Stice’s report was sloppy, and perhaps it was
also mistaken or even unfair. But Title VII does not
forbid sloppy, mistaken, or unfair terminations; it
forbids discriminatory or retaliatory terminations. See
Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101,
1106 (7th Cir. 2012). Collins has provided evidence show-
ing, at most, that the report’s conclusions were wrong. But
she has not provided anything—apart from mere specula-
No. 11-3345 7
tion—that the report’s conclusions were wrong because of
Collins’s EEOC complaint. As a result, the Red Cross was
entitled to summary judgment.1
B. Discrimination
Collins also claims that the Red Cross racially discrimi-
nated against her. Title VII makes it illegal for an employer
“to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privi-
leges of employment” on the basis of race. 42 U.S.C.
§ 2000e-2(a)(1). Generally speaking, there are two ways
of proving such a claim: the “direct” method of proof
and the “indirect” method of proof. See Naficy v. Ill. Dep’t
of Human Servs., 697 F.3d 504, 509 (7th Cir. 2012). But cf.
Coleman, 667 F.3d at 863 (Wood, J., concurring) (arguing
that the direct/indirect distinction is unnecessarily com-
1
The reader may wonder about Collins’s alleged comments
that Stice’s report found to be “[s]ubstantiated.” (R. 77-20 at 8.)
For example, according to the report, Collins “told others that
[the Red Cross] is out to get minorities” and told one of her co-
workers that another co-worker was a racist. (Id. at 3, 8.) Did the
Red Cross retaliate against Collins for making these statements?
And, if so, would that give rise to a Title VII claim? Interesting
questions all, but we need not address them. Collins denies
making the statements that Stice’s report attributes to her.
(See, e.g., Appellant’s Br. at 11, 14.) And, needless to say, Collins
cannot win a suit based on factual events that she insists
never happened.
8 No. 11-3345
plicated and that “the time has come to collapse all
these tests into one”). Under the direct method, a
plaintiff must provide either direct or circumstantial
evidence that the employer had a discriminatory motiva-
tion. Naficy, 697 F.3d at 509. And under the indirect
method, a plaintiff must satisfy the well-worn require-
ments of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Naficy, 697 F.3d at 509.
Collins employs both methods here, and we will start
by addressing the indirect method. Under the indirect
method, a plaintiff must first establish a prima facie case
by providing evidence “that (1) she is a member of the
protected class; (2) she met her employer’s legitimate
job expectations; (3) she suffered an adverse employ-
ment action; and (4) similarly situated employees
outside of the protected class were treated more favor-
ably.” Id. at 511. If she does so, then the burden shifts to
the employer “to introduce a legitimate, nondiscrim-
inatory reason for the employment action.” Id. If the
employer meets that burden of production, then the
burden shifts back to the plaintiff to provide evidence
that the employer’s reason was pretextual. Id. at 511-12.
“Normally a court should first determine if a plaintiff
has established a prima facie case before subjecting the
employer to the pretext inquiry.” Hague v. Thompson
Distrib. Co., 436 F.3d 816, 823 (7th Cir. 2006). But where,
as here, “an employer has cited performance issues as
the justification for its adverse action, the performance
element of the prima facie case cannot be separated
from” the pretext inquiry. Duncan v. Fleetwood Motor
No. 11-3345 9
Homes of Ind., Inc., 518 F.3d 486, 491 (7th Cir. 2008) (per
curiam). Thus, we may appropriately begin with pretext.
See Senske v. Sybase, Inc., 588 F.3d 501, 507 (7th Cir. 2009).
“Pretext means a lie, specifically a phony reason for
some action.” Millbrook v. IBP, Inc., 280 F.3d 1169, 1175
(7th Cir. 2002) (internal quotation marks omitted). Thus,
the question before us “is not whether the employer’s
stated reason was inaccurate or unfair, but whether the
employer honestly believed the reasons it has offered to
explain the discharge.” Coleman, 667 F.3d at 852. “It is not
the court’s concern that an employer may be wrong
about its employee’s performance, or may be too hard on
its employee. Rather, the only question is whether the
employer’s proffered reason was pretextual, meaning
that it was a lie.” Id.
Here, the Red Cross claims that Collins’s misconduct, as
described in Stice’s report, was a legitimate, nondiscrimi-
natory reason for terminating her. Specifically, Stice
concluded that Collins had (1) told others that the Red
Cross was out to get minorities; (2) said she could not
work with homosexuals; (3) instructed an employee to
falsify records; (4) coerced a subordinate into teaching a
class for free; and (5) gave out blank certifications for
Red Cross courses. (R. 77-20 at 8.) Based on these
findings, Stice recommended that the Red Cross ter-
minate Collins. (Id.)
Collins argues that Stice’s findings were pretextual. In
support, she provides only one piece of evidence: the
fact that she “denied all of the allegations generated
during” the Red Cross’s investigation. (Appellant’s Br. at
10 No. 11-3345
14.) But, as discussed, a plaintiff must show that her
employer is lying, not merely that her employer is
wrong. See Coleman, 667 F.3d at 852.
As a result, arguing “about the accuracy of the em-
ployer’s assessment” is a “distraction” in the pretext
context; the fact that a statement is inaccurate does not
mean that it is a deliberate lie. Jones v. Union Pac. R.R. Co.,
302 F.3d 735, 744 (7th Cir. 2002). Accordingly, merely
denying the employer’s allegations, as Collins does here,
is not enough to survive summary judgment under
the indirect method.
That leaves the direct method. Under this method,
Collins must provide either direct evidence or circum-
stantial evidence that the Red Cross terminated her
because of racial animus. See Brown, 700 F.3d at 1105.
Direct evidence of discrimination would require some-
thing akin to an admission from the Red Cross that it
terminated Collins because of her race. See Raymond v.
Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006). Circum-
stantial evidence, on the other hand, would require
Collins to “construct a convincing mosaic” that “allows
a jury to infer intentional discrimination by the
decisionmaker.” Brown, 700 F.3d at 1105 (internal quota-
tion marks omitted). Collins identifies only one
piece of such evidence here: the “apparently false claim
that she had told unnamed ‘others’ that [the Red Cross]
was ‘out to get’ minorities.” (Appellant’s Br. at 14.) “This
baseless allegation,” she continues, “strongly suggests
racial animus as a motive for the termination.” (Id.)
We do not see how. True, the report used the word
“minorities,” but never in reference to Collins’s status as
No. 11-3345 11
a minority. And even assuming, as we must at this stage,
that the report’s allegation was “baseless,” it does not
follow that it was racially motivated. Evidence that
an employer came to the wrong conclusion might
suggest discrimination if the conclusion were incredible
on its face or if it were accompanied by other circum-
stantial evidence. See Boumehdi v. Plastag Holdings, LLC,
489 F.3d 781, 792 (7th Cir. 2007) (plaintiff “must identify
such weaknesses, implausibilities, inconsistencies, or
contradictions . . . that a reasonable person could find
them unworthy of credence and hence infer” that the
employer was lying). But none of the evidence in this
case fits that bill; Stice’s conclusions are not facially
incredible, and nothing in the record suggests—directly
or indirectly—that Stice or the decisionmakers at the
Red Cross held any racial animus. And so we are left, at
most, with evidence that the Red Cross was wrong. That
is not enough to survive summary judgment on a dis-
crimination claim. See Brown, 700 F.3d at 1106 (“Perhaps
their supervisors’ criticisms were unfair—clearly the
plaintiffs feel that they were—but there is no evidence
that they were unfair because they were motivated by race,
as Title VII forbids.”); Dickerson v. Bd. of Trs. of Cmty.
Coll. Dist. No. 522, 657 F.3d 595, 603 (7th Cir. 2011) (“al-
though [plaintiff] disagreed with his negative evalua-
tions, that does not mean that the evaluations were the
result of unlawful discrimination”); cf. Malacara v. City
of Madison, 224 F.3d 727, 731 (7th Cir. 2000) (“An
employer may hire or refuse to hire an employee for a
good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not
12 No. 11-3345
for discriminatory reason.”) (internal quotation marks
omitted).
III. C ONCLUSION
We A FFIRM the district court’s entry of summary judg-
ment in favor of the American Red Cross.
3-8-13