Darrel Smith v. Denise Bray , 681 F.3d 888 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1935
D ARREL S MITH,
Plaintiff-Appellant,
v.
D ENISE B RAY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-3615—John W. Darrah, Judge.
A RGUED O CTOBER 26, 2011—D ECIDED M AY 24, 2012
Before R IPPLE and H AMILTON, Circuit Judges, and
M YERSCOUGH, District Judge.Œ
H AMILTON, Circuit Judge. In most employment dis-
crimination cases that arise in the private sector, the
defendants are the employers themselves, most often
corporations or other business organizations. In this case
Œ
The Honorable Sue E. Myerscough of the Central District
of Illinois, sitting by designation.
2 No. 11-1935
of alleged race discrimination and retaliation, however,
the employer has gone through bankruptcy and so
cannot be sued for relief. The plaintiff in this case has
sought relief from two individuals who worked for the
bankrupt employer. Such claims are permitted under 42
U.S.C. § 1981 for race discrimination and retaliation
in contractual relationships, including employment.
In this appeal we consider what is needed to prove
that a particular individual is legally responsible for
the alleged discrimination and/or retaliation. We also
address the problem that can arise when a party moving
for summary judgment uses her reply brief to object to
the admissibility of evidence on which the non-moving
party relies in opposing summary judgment, and the non-
moving party has no further opportunity to respond to
the objection.
Plaintiff Darrel Smith claims that he endured serious
racist harassment from his immediate supervisor at
former defendant Equistar Chemicals, LP, and was fired
for complaining about it. Equistar was an affiliate of
another former defendant, Lyondell Chemicals Company,
but both companies are now bankrupt and discharged
from any liability to Smith. His only hope for a damages
remedy was to sue the individuals responsible for the
alleged wrongs. Smith has settled his claims against
the primary wrongdoer, his former supervisor James
Bianchetta. This appeal involves Smith’s claims against
Equistar’s human resources manager Denise Bray,
who Smith says conspired with Bianchetta to retaliate
against him in violation of § 1981. Smith asserts that Bray
ignored his complaints about the harassment and per-
No. 11-1935 3
suaded her bosses to terminate him to retaliate for
lodging them. The district court granted Bray’s motion
for summary judgment, and Smith appeals.
We must decide whether Smith presented sufficient
evidence: (1) that Bray caused him to be fired; and if so,
(2) that she acted with the motive to retaliate against
him. Although we find that Smith has presented
evidence sufficient to raise a genuine issue of material
fact as to whether Bray participated in the decision to
fire him, we hold that he has not offered sufficient ad-
missible evidence to allow a reasonable jury to find
that she was motivated by a desire to retaliate against
him for his complaints of race discrimination.
I. Factual and Procedural Background
We review de novo the district court’s decision to grant
summary judgment to Bray. E.g., Gross v. PPG Industries,
Inc., 636 F.3d 884, 888 (7th Cir. 2011). “Summary judg-
ment is appropriate when there are no genuine issues
of material fact and judgment as a matter of law is war-
ranted for the moving party.” Id., citing Fed. R. Civ. P. 56(a)
and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
We may affirm summary judgment for Bray only if no
reasonable trier of fact could find in Smith’s favor.
E.g., id. Because we are reviewing summary judgment
against Smith, our account of the facts gives him
the benefit of conflicts in the admissible evidence and
favorable inferences from that evidence, but we do not
vouch for the objective truth of this account. See O’Leary
v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).
4 No. 11-1935
In November 2000, Smith began working as a process
technician at Equistar’s polypropylene unit in Morris,
Illinois. From June 2003 forward, Smith’s direct
supervisor was former defendant James Bianchetta.
Smith is African American; Bianchetta is white. Smith
has testified that Bianchetta and some co-workers made
viciously racist statements in his presence. Among them
were statements that black people are lazy; that slavery
should be revived; that Hurricane Katrina was a good
thing to the extent it removed African Americans from
prime real estate in New Orleans; and that the growth of
the black population should be limited by mandatory
abortions and castrations. Smith testified that these of-
fensive racist conversations took place at least weekly.
Bianchetta would also call Smith into his office to
subject him to hours-long racist tirades, and toward the
end of Smith’s employment such harassment occurred
multiple times per week.
Defendant Bray was the manager of the Equistar
plant’s human resources department and was re-
sponsible for investigating complaints of discrimination
there. Smith complained about Bianchetta’s harassment
several times to Joy Nixon, a human resources repre-
sentative, who relayed Smith’s complaints to Bray.
Also, the polypropylene unit superintendent, Jim Arrajj,
testified that in May 2006, Bray showed him a
complaint from Smith describing racist statements made
by co-workers. Equistar company policy required local
human resources managers like Bray to notify the corpo-
rate human resources department when they learned
that racial harassment had occurred. Bray did not recall
No. 11-1935 5
ever discussing Smith’s complaints with anyone in
the corporate office, nor did Bray herself discipline
Bianchetta or any other employee for harassing Smith.
Smith also reported having conflicts with other em-
ployees, including Mark Hieser, a white process tech-
nician on a different shift. In 2004, Smith complained
several times to Bianchetta, Bray, and Nixon about
Hieser “not doing his job.” Hieser countered that
Smith was not cleaning up the work area after his shift.
Smith complained about Hieser’s “constant harassment”
to Bray, who told him that Hieser was an “equal oppor-
tunity picker” and that she would not get involved.
On February 3, 2005, an anonymous caller registered
an employee hotline complaint accusing Smith of using
incorrect materials. Hieser submitted a statement
about Smith’s error, prompting Smith — according to the
hotline caller — to call Hieser a “racist bigot m***** f*****”
and to say that the “gloves are off” and “I’ll get even
after this.” Smith denied making the statements. Hieser
reported this incident to Bray, who investigated and
did not discipline either man.
In January 2006, Smith volunteered for a special
project to boost his promotion prospects. The project
required Smith to identify, test, and label hundreds of
circuit-breakers in the Morris plant and to enter his
findings in an electronic spreadsheet. The breaker
project was in addition to Smith’s other responsibilities.
At some point during Smith’s work on the project, an
employee placed a sign in Smith’s work area that said
“DVL,” which apparently meant that Smith “does very
6 No. 11-1935
little.” On April 9, 2006, an anonymous caller registered
a second hotline complaint about Smith, this one
accusing him of sleeping on the job and keeping
inaccurate time records of his work hours. Smith was not
disciplined for his alleged dozing, but he and other em-
ployees received oral reprimands for the time-sheet
discrepancies. On May 1, 2006, Smith stopped working
on the incomplete breaker project because another em-
ployee was taking over his duties. Bianchetta asked
Smith to transfer his work product to the replacement,
but Smith refused. Equistar’s information technology
department recovered the spreadsheet and found it
to be largely blank. Around June 7, 2006, Bianchetta
issued a written reprimand to Smith for deleting
the spreadsheet. Smith blamed co-workers for erasing
the data.
During the first few months of 2006, Smith and
Bianchetta argued frequently. In one argument,
Bianchetta raised his voice, slammed the door, and in-
dicated that he was going to tell Bray that Smith had
been insubordinate. Smith retained a lawyer. When
Bianchetta learned this, he told Smith that getting a
lawyer was “the worst f***ing thing you can do,” that
he would “let Denise [Bray] know that you have a law-
yer,” and that “we’re going to deal with you from here
on, from this point on. You’re going to be sorry.
You’re going to regret this.” Smith Dep. 345.
The situation deteriorated even further in June 2006.
One day in mid-to-late June, Smith discovered garbage
and feces in his locker. Smith saw a psychologist and
No. 11-1935 7
physician the next day, and he called Bianchetta to
explain his absence and to inform him that he would
be pursuing a medical leave. Bianchetta told him, “ain’t
nothing wrong with you and you’re faking it, and Denise
[Bray] and I already know, you won’t be coming back.”
Smith Dep. 162. In a later phone call, Bianchetta
elaborated, “you’re fired, and [Bray] and myself said
you’re fired and you won’t be coming back.” Id. at 173.
During his absence from work, Smith also called Bray,
who told him, “if Jim [Bianchetta] is not going to talk
to you[,] I’m not going to talk to you.” Id. at 169.
(Bianchetta had instructed his employees not to
accept telephone calls from Smith during his absence.)
On June 19, 2006, Smith applied for short-term
disability benefits through Concentra, a third-party
administrator of benefits for Equistar. Around the
same date, Smith received a note from his doctor ad-
vising him not to work for two weeks because of work-
related stress. Smith also informed Bianchetta of the
doctor’s recommendation. On June 23, Concentra
tried to contact Smith’s doctor to verify his medical
status but was not successful. On June 28, Concentra
informed Smith that it could not complete its review
of his claim because it had been unable to obtain
sufficient information. On July 6, Smith’s doctor sent
him a letter directing him not to work for thirty days,
and Concentra received a copy. On July 21, Concentra
called Smith’s doctor. Although it is not clear that a
Concentra representative actually spoke with the physi-
cian, that same day Concentra denied Smith’s applica-
8 No. 11-1935
tion.1 Smith did not return to work after he received
Concentra’s notice of denial, but he filed an appeal with
Concentra on July 28. Concentra asked Smith to send
his relevant medical records, for purposes of the appeal,
but he did not do so. Concentra denied Smith’s appeal
on August 1, 2006 and notified Equistar of the denial.
Plant manager Richard Purgason learned of Con-
centra’s decision, decided that Smith had been absent
from work without leave, and directed Bray to ask corpo-
rate headquarters for permission to fire Smith. Equistar’s
termination policy was structured as follows: the super-
visor and plant manager would direct Bray to file a termi-
nation request with headquarters; Bray would send
the request to headquarters; and Bray would gather
facts and coordinate the termination proceedings. Bray
did not have the authority to fire an employee, but she
prepared the termination report for Purgason, who testi-
fied that human resources managers like Bray were
1
Smith claims that Bray gave false and damaging information
to Concentra that led Concentra to deny his leave request.
Smith’s only evidence for this allegation comes from
Concentra’s case notes, which the district court did not
consider because they, along with numerous other state-
ments contained in Smith’s summary judgment materials,
contained hearsay, lacked foundation, and were unauthenti-
cated. The district court’s decision on this point was not an
abuse of discretion, and Smith’s effort to supplement the
record after the district court ruled came too late. We also do
not consider his factual allegations based on Concentra’s
case notes.
No. 11-1935 9
involved in termination decisions “to some degree.”
Purgason spoke with Bray frequently in summer 2006
about Smith’s absences, his request for disability leave,
and Concentra’s denial of it. Arrajj, the unit superinten-
dent, also indicated that Bray regularly participated
in the disciplinary decision-making process, although
he added that such decisions were often made by con-
sensus among a group of supervisors.
Smith received notice of his termination on August 4,
2006. Equistar informed Smith that he was being termi-
nated because his “absence since June 21, 2006 [had]
not been certified by medical case management. This
absence is considered an absence without leave in clear
violation of the Company’s policies and procedures.”
Smith later admitted that at the time of his firing he
felt ready to return to work and that he had asked
Bianchetta to put him on the work rotation.
Smith originally filed his discrimination and retaliation
claims against four defendants — Equistar, its parent/
affiliate Lyondell, and Bianchetta and Bray as individ-
uals. Smith voluntarily dismissed that complaint be-
cause Equistar and Lyondell filed for bankruptcy pro-
tection that discharged such pre-filing debts. Smith then
filed an amended complaint against only Bianchetta
and Bray alleging race discrimination and retaliation in
violation of 42 U.S.C. § 1981. The district court denied
Bianchetta’s motion for summary judgment, and he
then reached a settlement with Smith. The district court
granted Bray’s motion for summary judgment on all
of Smith’s claims against her.
10 No. 11-1935
The focus of this appeal is Smith’s retaliation claim,
which the district court rejected for two reasons. First,
the court did not find sufficient evidence that Bray had
participated in his termination. Second, even if Bray
had contributed to causing Smith’s termination, there
was no evidence that she did so because he had com-
plained about discrimination. Although we disagree on
the first point and find that Smith presented sufficient
evidence to permit a finding that Bray participated in
the decision to fire him, we agree with the district court
on the second point. We affirm summary judgment in
favor of Bray because Smith has identified no admissible
evidence supporting a finding that she acted for a re-
taliatory purpose.
II. Analysis
Just after the Civil War, and long before enactment
of Title VII of the Civil Rights Act of 1964 outlawed race
discrimination and retaliation in most employment,
Congress enacted the Civil Rights Act of 1866, which
protects the right of all persons “to make and enforce
contracts” regardless of race. 42 U.S.C. § 1981(a). The
Supreme Court gave a narrow construction to that key
phrase in Patterson v. McLean Credit Union, 491 U.S. 164,
171 (1989), by holding that § 1981 did not apply to
conduct after a contractual relationship had been estab-
lished. Congress then superseded Patterson by pro-
viding broadly that the statute protected “the making,
performance, modification, and termination of contracts,
and the enjoyment of all benefits, privileges, terms, and
No. 11-1935 11
conditions of the contractual relationship.” Civil Rights
Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071,
codified at 42 U.S.C. § 1981(b); see Jones v. R. R. Donnelley
& Sons Co., 541 U.S. 369, 383 (2004) (“The 1991 Act over-
turned Patterson by defining the key ‘make and enforce
contracts’ language in § 1981 to include the ‘termination
of contracts, and the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship.’ ”).
The Supreme Court has held that § 1981 authorizes
claims for retaliation, if one person takes action against
another for asserting the right to substantive con-
tractual equality provided by § 1981. CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 445 (2008). In the context of
laws governing employment rights, “unlawful retalia-
tion occurs when an employer takes an adverse employ-
ment action against an employee for opposing impermis-
sible discrimination.” Rogers v. City of Chicago, 320
F.3d 748, 753 (7th Cir. 2003). The substantive standards
and methods of proof that apply to claims of racial discrim-
ination and retaliation under Title VII also apply to
claims under § 1981. See Humphries v. CBOCS West, Inc.,
474 F.3d 387, 403-04 (7th Cir. 2007), aff’d, 553 U.S.
442 (2008).2
2
One key difference between § 1981 and Title VII is that the
latter authorizes suit only against the employer as an entity
rather than against individual people who are agents of
the employer. Under § 1981, individuals may be liable.
Compare Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995)
(holding that supervisor may not held liable in his individual
(continued...)
12 No. 11-1935
Under both statutes, a retaliation plaintiff may
proceed under the “direct” or “indirect” methods of
proof. Id. at 404. In the district court, Smith advanced
both methods in opposing summary judgment, but on
appeal he relies only on the direct method. To avoid
summary judgment on his retaliation claim against
Bray under the direct method, Smith must present
direct evidence of (1) his statutorily protected activity;
(2) a materially adverse action taken by Bray; and (3) a
causal connection between the two. See Coleman v.
Donahoe, 667 F.3d 835, 859 (7th Cir. 2012). Smith easily
satisfies the first element. As the district court noted,
“there is no real dispute that Smith complained about
perceived discrimination.” The other two elements
present closer questions.
(...continued)
capacity for discrimination under Title VII), with Patterson v.
County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (“individuals
may be held liable under §§ 1981 and 1983 for certain types
of discriminatory acts”). Other important differences are that
claims under § 1981 have a relatively long four-year statute
of limitations, see Jones v. R. R. Donnelly & Sons Co., 541 U.S.
369, 382 (2004); Dandy v. United Parcel Service, Inc., 388 F.3d
263, 269 (7th Cir. 2004), are not subject to the damage caps
enacted in the Civil Rights Act of 1991, see 42 U.S.C.
§ 1981a(b)(4), and do not require exhaustion of administrative
remedies. See, e.g., Fane v. Locke Reynolds, LLP, 480 F.3d 534,
539 (7th Cir. 2007).
No. 11-1935 13
A. Bray’s Participation in Smith’s Termination
When Smith was fired, he suffered an adverse action
sufficiently serious to support a claim for retaliation.
Because he has sued Bray as an individual, the relevant
point of disagreement is whether Bray “participated” in
his termination for purposes of § 1981. Cf. Musikiwamba v.
Essi, Inc., 760 F.2d 740, 753 (7th Cir. 1985) (“personal
liability cannot be imposed on a corporate official for
the corporation’s violation of section 1981 when
that official is not alleged to have participated in actual
discrimination against the plaintiff”). Smith does not
argue that Bray fired him herself. His theory is that
she prevailed on plant manager Purgason and other
decision-makers to fire Smith by providing damaging
information to Purgason and then, at his request, prepared
the report formally requesting Smith’s termination.
Our cases have long recognized that a final decision-
maker’s reliance on an improperly motivated recom-
mendation from a subordinate may render the corporate
employer liable because the subordinate acts as the
firm’s agent. See, e.g., Shager v. Upjohn Co., 913 F.2d 398,
405 (7th Cir. 1990) (“If the [formal decision-makers]
acted as the conduit of the [subordinate’s] prejudice — his
cat’s-paw — the innocence of [the decision-makers] would
not spare the company from liability.”); see also Hicks v.
Forest Preserve Dist., No. 11-1124, 2012 WL 1324084, at *6
(7th Cir. Apr. 18, 2012) (applying cat’s paw theory to
retaliation claim under Title VII). As applied in this
circuit, “cat’s paw” liability may be imposed on an em-
ployer “where the plaintiff can show that an employee
14 No. 11-1935
with discriminatory animus provided factual informa-
tion or other input that may have affected the adverse
employment action.” See Alexander v. Wisconsin Dep’t
of Health & Family Services, 263 F.3d 673, 684 (7th Cir.
2001), quoting Dey v. Colt Construction & Development
Co., 28 F.3d 1446, 1459 (7th Cir. 1994).3
The Supreme Court endorsed the “cat’s paw” theory of
employer liability in Staub v. Proctor Hosp., 131 S. Ct.
1186, 1191 (2011) (applying theory to claim suit under
Uniformed Services Employment and Reemployment
Rights Act of 1994, which is “very similar to Title VII”).
This circuit and many others have also held or assumed
that a cat’s paw theory will support holding the employer
vicariously liable under both § 1981 and 42 U.S.C. § 1983,
which applies to local governmental entities (and state
and local government employees sued in their official
capacities). See, e.g., Chappell v. Bilco Co., 675 F.3d 1110,
1120 (8th Cir. 2012) (applying cat’s paw theory to
3
The “cat’s paw” theory derives its name from a fable in
which a monkey convinces an unusually dim cat to pull chest-
nuts out of a hot fire. Cook v. IPC Int’l Corp., 673 F.3d 625, 628
(7th Cir. 2012). “As the cat scoops the chestnuts from the fire
one by one, burning his paw in the process, the monkey
eagerly gobbles them up, leaving none left for the cat.” EEOC
v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484
(10th Cir. 2006). In the law of employment discrimination,
the “cat’s paw” theory can apply when a biased subordinate
who lacks decision-making power uses the formal decision-
maker “as a dupe in a deliberate scheme to trigger a discrim-
inatory employment action.” Id.No. 11-1935 15
plaintiff’s § 1981 retaliation claims, but distinguishing
Staub on its facts); Amini v. City of Minneapolis, 643 F.3d
1068, 1075 n.6 (8th Cir. 2011) (in race discrimination case
brought against city under § 1981, stating that “[i]f a
non-decision-maker performs an act motivated by a
discriminatory bias that is intended to cause, and that
does proximately cause, an adverse employment action,
then the employer is liable under the cat’s paw theory of
liability”); Campion, Barrow & Assocs., Inc. v. City of Spring-
field, 559 F.3d 765, 771 (7th Cir. 2009) (in § 1983 action,
stating that plaintiff did not “make the argument that
the [decision-making] aldermen merely functioned as the
‘cat’s paw’ of those with identifiable retaliatory motive,”
but assuming that a cat’s paw theory would be available
in a case in which the evidence showed that decision-
makers “relied on . . . the [subordinate’s] . . . intent, making
it permissible to base municipal liability on [his] discrimi-
natory animus”); Arendale v. City of Memphis, 519 F.3d
587, 604 n.13 (6th Cir. 2008) (in § 1983 discrimination
and retaliation action, stating that “[w]hen an adverse
hiring decision is made by a supervisor who lacks im-
permissible bias, but that supervisor was influenced
by another individual who was motivated by such bias,
this Court has held that the employer may be held
liable under a ‘rubber-stamp’ or ‘cat’s paw’ theory of
liability”); Quinn v. Monroe County, 330 F.3d 1320, 1327
(11th Cir. 2003) (in § 1983 retaliation case, stating that
a “decision-maker may serve as the conduit of the sub-
ordinate’s improper motive, for example, if he merely
‘rubber-stamps’ the recommendation of a subordinate”),
quoting Hitt v. Connell, 301 F.3d 240, 248 (5th Cir. 2002)
16 No. 11-1935
(same); Kendrick v. Penske Transportation Services, Inc.,
220 F.3d 1220, 1231 (10th Cir. 2000) (in the § 1981 discrimi-
nation context, assuming that an employer “may be
held liable if the manager who discharged the plaintiff
merely acted as a rubber stamp, or the ‘cat’s paw,’ for
a subordinate employee’s prejudice, even if the
manager lacked discriminatory intent”). Cf. Waters v.
City of Chicago, 580 F.3d 575, 586 n.2 (7th Cir. 2009) (ques-
tioning whether cat’s paw theory can be used to
establish municipal liability under § 1983 where the
biased subordinate is not a policy-maker).4
In addition, at least five circuits have indicated that
a cat’s paw theory would support imposing individual
liability under § 1983 on subordinate governmental
employees with unlawful motives who cause the real
decision-makers to retaliate. See, e.g., Tejada-Batista v.
Morales, 424 F.3d 97, 102 (1st Cir. 2005) (affirming jury
verdict against subordinate law enforcement officers
who, to retaliate against plaintiff for engaging in pro-
tected First Amendment activity, recommended
plaintiff’s discharge; the “properly motivated” decision-
maker “does not insulate[ ] the ill-motivated subordi-
nate” who “is a but-for cause of the firing”); Maestas v.
Segura, 416 F.3d 1182, 1191 (10th Cir. 2005) (“While
Segura made the final decision to transfer Plaintiffs,
Pratt, though a subordinate, might be liable if he
4
Because this case arises in the private sector under § 1981,
we need not consider who is a policy-maker and related issues
of municipal liability that can complicate cases under § 1983.
No. 11-1935 17
possessed a retaliatory motive which set in motion the
events that ultimately led to Plaintiffs’ transfers. In this
case, Pratt did not set in motion the chain of events
which ultimately led to Plaintiffs’ transfers.”) (citations
omitted); Strahan v. Kirkland, 287 F.3d 821, 826 (9th Cir.
2002) (“Even if the ultimate decision-maker can establish
that the adverse action was not in retaliation for
protected conduct, a subordinate with a retaliatory motive
can be liable ‘if an improper motive sets in motion
the events that lead to termination that would not other-
wise occur . . . . [A] subordinate cannot use the
nonretaliatory motive of a superior as a shield against
liability if that superior never would have considered a
dismissal but for the subordinate’s retaliatory con-
duct.’ ”) (emphasis added), quoting Gilbrook v. City of
Westminster, 177 F.3d 839, 854-55 (9th Cir. 1999); Darnell
v. Ford, 903 F.2d 556, 561-62 (8th Cir. 1990) (affirming
jury verdict against defendant, a subordinate patrol
major who investigated the conduct of and recom-
mended the demotion of a captain, for violating the cap-
tain’s First Amendment right of association); Saye v. St.
Vrain Valley Sch. Dist. RE-1J, 785 F.2d 862 (10th Cir. 1986)
(reversing directed verdict for defendant school district
and defendant principal in § 1983 retaliation action
brought by teacher because she presented evidence
that principal had recommended her non-renewal in
retaliation for her union participation, that the super-
intendent “relied on [the principal’s] recommendation
to a substantial extent in presenting the matter to the
School Board,” and that “School Board members . . . relied
completely on the recommendations of the administra-
18 No. 11-1935
tion in voting not to renew” plaintiff’s contract); Profes-
sional Ass’n of Coll. Educators v. El Paso County Cmty. Coll.
Dist., 730 F.2d 258, 266 (5th Cir. 1984) (upholding
liability under § 1983 of college president who recom-
mended discharge of faculty members in retaliation for
First Amendment activity where the Board of Trustees
followed that recommendation, and holding that “[i]t is
not necessary that the improper motive be the final link
in the chain of causation: if an improper motive sets
in motion the events that lead to termination that would
not otherwise occur, intermediate step[s] in the chain
of causation’ do not necessarily defeat the plaintiff’s
claim”) (internal quotation marks omitted).5 As with
§ 1981, individual liability under § 1983 is appropriate
5
The Eighth Circuit has stated that the “innocent
decisionmaker” should not be held personally liable under
§ 1983 for the discriminatory animus of a subordinate. See
Dedmon v. Staley, 315 F.3d 948, 949 n.2 (8th Cir. 2003) (“Although
other circuits have stated that discriminatory or unlawful
motive can be imputed to the formal decisionmaker [under
§ 1983], we think that is only for the limited purpose of deter-
mining whether the employer could be held liable. We found
no case suggesting that an otherwise innocent decisionmaker
could be personally liable for the discriminatory motive of
another.”) (internal citation omitted). That reasoning is con-
sistent with the cases cited in the text, including the
Eighth Circuit’s own decision in Darnell, 903 F.2d at 561-62,
which show that individual liability under § 1983 may be
imposed only on the biased subordinate (that is, the manipula-
tive monkey), not on the duped decision-maker (the gullible
cat).
No. 11-1935 19
where the “individual defendant caused or participated
in a constitutional deprivation.” Hildebrandt v. Illinois
Dep’t of Natural Resources, 347 F.3d 1014, 1039 (7th Cir.
2003), quoting Vance v. Peters, 97 F.3d 987, 911 (7th Cir.
1996).
So the substantial weight of authority shows that a cat’s
paw theory will support entity liability for retaliation
under Title VII, § 1981, and § 1983, except perhaps
when the defendant is a municipal corporation and the
biased or retaliatory subordinate is not a policy-maker.
Compare Campion, 559 F.3d at 771 (assuming theory
might establish municipal liability under § 1983 if biased
mayor and aldermen had influenced majority of city
council to act), with Waters, 580 F.3d 586 n.2 (ques-
tioning same). There is also precedent from five other
circuits for imposing individual liability on the
unlawfully motivated subordinate (the monkey, in the
cat’s paw fable) under § 1983. This case presents a
related but distinct question of first impression: whether
the subordinate with a retaliatory motive may be indi-
vidually liable under § 1981 for causing the employer
to retaliate against another employee.
The answer is yes. In general, the same standards
govern intentional discrimination claims under Title VII,
§ 1981, and § 1983, e.g., Steinhauer v. DeGolier, 359 F.3d
481, 483 (7th Cir. 2004), and recognizing individual cat’s
paw liability under § 1981 is consistent with our parallel
approaches to these statutes. It logically follows that an
individual can be liable under § 1981 for retaliatory
conduct that would expose her employer to liability
20 No. 11-1935
under Title VII or § 1981. It also makes sense as a matter
of basic fairness: why should the “hapless cat” (or at
least his employer) get burned but not the malicious
“monkey”? The cat’s paw theory can support individual
liability under § 1981 for a subordinate employee
who intentionally causes a decision-maker to take
adverse action against another employee in retaliation
for statutorily protected activity.
Applying the theory to the facts of this case, we find
that Smith has presented enough evidence to create a
genuine issue of fact as to whether Bray intentionally
helped cause the adverse employment action against
him. In Staub, the Supreme Court explained that the
“recommendations of [non-decision-makers] that were
designed and intended to produce the adverse action”
may support imposition of liability on the corporate
employer. 131 S. Ct. at 1193. The key question is whether
the non-decision-maker’s actions were a “causal factor,”
based on common-law proximate cause principles, in
the termination decision. Id. Our decisions teach that
when a subordinate harbors a discriminatory animus
and advises the ultimate decision-maker to take an
adverse action against the plaintiff, that evidence can
support a claim against the corporate employer. See,
e.g., Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir.
2004) (holding that where decision-maker would not
have turned down plaintiff for promotion but for recom-
mendation of her supervisor, the supervisor’s sexism
was cause of plaintiff’s injury); Little v. Illinois Dep’t of
Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004) (“Even
someone who merely recommends a termination is con-
sidered a decisionmaker for purposes of assessing
No. 11-1935 21
pretext when he was the one functionally, if not
formally, responsible for the decision.”).
Viewing the evidence here in the light reasonably
most favorable to Smith, Bray was substantially in-
volved at every stage of his workplace controversies:
his discrimination complaints, his disciplinary issues,
his disability-leave application, and the decision to ter-
minate him. She regularly participated in decisions
on terminations. She spoke with plant manager
Purgason frequently about Smith in the weeks leading
up to his termination. A reasonable juror could infer
that Purgason relied on Bray’s input and advice in de-
ciding to request authority to fire Smith. At Purgason’s
request, Bray also wrote the report to corporate head-
quarters requesting the termination, and we can assume
for purposes of summary judgment that headquarters
relied heavily on Bray’s report in deciding to fire Smith.
This is enough evidence to create a genuine issue of fact
as to whether Bray “provided factual information or
other input that may have affected” Smith’s termination.
See Alexander, 263 F.3d at 684, quoting Dey, 28 F.3d at
1459. Smith has therefore sufficiently established the
second element of the direct method inquiry (Bray’s
participation in the adverse employment action) to
avoid summary judgment.
B. Retaliatory Motive
Turning to the final element, however, we agree with
the district court that there simply is not enough admissi-
ble evidence showing that Bray acted with a retaliatory
22 No. 11-1935
motive, i.e., that she caused Smith’s termination
because he had complained about discrimination. As we
evaluate this issue, we keep in mind that Bray’s day-to-day
human resources responsibilities meant that she would
be involved in many aspects of Smith’s case. Because
Smith asserts a claim for individual liability, we must
focus on evidence that is admissible against Bray herself
concerning her own motives.
To meet the causation or motive requirement, Smith
must show that his complaints about Bianchetta were
a “substantial or motivating factor” in Bray’s decision to
recommend his termination. See Coleman, 667 F.3d at 860,
quoting Culver v. Gorman & Co., 416 F.3d 540, 545 (7th
Cir. 2005). Smith could do so with direct evidence,
which would “entail something akin to an admission” by
Bray that she had a retaliatory motive. See O’Leary,
657 F.3d at 630; accord, Hicks, 2012 WL 1324084, at *6 &
n.2 (affirming judgment for plaintiff on retaliation claim
where intermediate supervisor testified that he had
been told by his boss that plaintiff had “to be gotten rid
of” for complaining about race discrimination). A good
example of such an admission by Bianchetta about his
own motives appears in Smith’s deposition testimony
in this very case: Bianchetta’s statement to Smith that
getting a lawyer (signaling protected activity) was “the
worst f***ing thing you can do,” and that Smith was “going
to be sorry.” These alleged statements are direct evidence
of only Bianchetta’s retaliatory animus—not Bray’s. They
do not provide direct evidence that Bray herself acted
with an unlawful motive.
No. 11-1935 23
In the absence of an admission, a retaliation plaintiff
may also satisfy the causation or motive element by
presenting a “ ‘convincing mosaic’ of circumstantial
evidence” that would support the inference that a retalia-
tory animus was at work. See Rhodes v. Illinois Dep’t of
Transp., 359 F.3d 498, 504 (7th Cir. 2004), quoting Troupe
v. May Dep’t Stores Co., 20 F.3d 734, 737 (7th Cir. 1994).
In general, there are three categories of circumstantial
evidence available to a plaintiff using the “convincing
mosaic” approach:
One includes suspicious timing, ambiguous state-
ments oral or written, . . . and other bits and pieces
from which an inference of retaliatory intent might
be drawn. Another is evidence, but not necessarily
rigorous statistical evidence, that similarly situated
employees were treated differently. Another type is
evidence that the employer offered a pretextual
reason for an adverse employment action.
Coleman, 667 F.3d at 860 (brackets, citations, and quota-
tion marks omitted). Smith has not offered evidence
that similarly situated employees were treated more
favorably or that Equistar’s reason for terminating him
was pretextual. He therefore must try to construct a
convincing mosaic of Bray’s retaliatory animus through
“bits and pieces” that would suggest to a reasonable
juror that she tried to get him fired because he had com-
plained about discrimination.
Most of Smith’s mosaic consists of “bits” that, without
more, do not support an inference that Bray acted with
a retaliatory motive, though the point of a mosaic is
24 No. 11-1935
that the bits must be considered together. Smith relies
most heavily on his own deposition testimony about
Bianchetta’s direct threat to retaliate when he learned
that Smith had hired a lawyer. In making this threat,
Bianchetta clearly implied that he intended to work with
Bray to retaliate against Smith. That deposition testi-
mony would be sufficient to defeat a summary judg-
ment motion for either the employer or Bianchetta on
the issue of retaliatory motive, but as the district
court found, it is inadmissible against Bray. Without
the Bianchetta threat, Smith’s remaining bits of evi-
dence — that Bray rebuffed his attempts to speak with
her, that she did not investigate his complaints, and
that his termination was proximate in time to his dis-
crimination complaints — are not enough to present a
genuine issue of fact as to whether Bray’s personal
motives included retaliation.
1. Bianchetta’s Threat to Retaliate
We focus first on Smith’s testimony that Bianchetta
made a number of threatening statements indicating
that he was working with Bray to retaliate against Smith.
After learning Smith had retained a lawyer, Bianchetta
told him, “that’s going to be the worst f***ing thing you
can do,” he would “let Denise [Bray] know,” “we’re going
to deal with you from here on,” and “You’re going to be
sorry.” Smith Dep. 345. The following day, Smith claims,
Bianchetta told him that he had “told Denise you had a
lawyer and you’re going to find your ass — your ass is
almost out of here.” Id. at 346. As soon as Smith went on
No. 11-1935 25
sick leave, Bianchetta allegedly told him: “Didn’t you
understand what I told you last time[?] [Y]ou’re fired,
and Denise [Bray] and myself said you’re fired and you
won’t be coming back.”
The district court declined to consider Smith’s testi-
mony about Bianchetta’s statements as evidence against
Bray. The court concluded that they were “inadmissible
hearsay to the extent . . . offered against Bray” and that no
hearsay exception or exemption applied. Even at the
summary judgment stage, “we review the district court’s
decision that a particular statement is not admissible
as hearsay under an abuse of discretion standard.”
Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009).
Smith’s deposition testimony about Bianchetta’s state-
ments fits the definition of hearsay: “a statement that:
(1) the declarant does not make while testifying at
the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in
the statement.” Fed. R. Evid. 801(c). Bianchetta’s state-
ments, as recounted by Smith, were not made at a
hearing, and Smith seeks to use them to prove that they
were true, i.e., that Bianchetta told Bray that Smith
had retained a lawyer, and that they agreed to try to
have him fired based at least in part to retaliate against
that action. To overcome the hearsay objection by Bray,
Smith contends that his testimony about Bianchetta’s
statements is admissible under the co-conspirator ex-
ception to the hearsay rule in Rule 801(d)(2)(E). We
deal first with a procedural challenge to the theory
and then with the substance.
26 No. 11-1935
a. The Procedural Problem — No Opportunity to Reply
to the Reply
The procedural challenge is Bray’s argument that
Smith waived his co-conspiracy theory by not presenting
it to the district court. The general rule, of course, is
that arguments presented for the first time on appeal
are waived. E.g., Harper v. Vigilant Ins. Co., 433 F.3d 521,
528 (7th Cir. 2005). Bray’s waiver argument, however,
raises a problem that can arise in the summary judg-
ment procedure when the moving party asserts in her
reply brief that the opposing party is relying on inad-
missible evidence. Is it fair to say that an opposing
party waived an argument that he never had the oppor-
tunity to present in the district court? After all, even
when an evidentiary objection seems likely, as in this
case, the proponent of the evidence ordinarily need
not make an argument in anticipation of an objection
that may never be made. With the explosive growth
in summary judgment practice in recent decades, this
is a quandary that can arise frequently.
The first step is the motion for summary judgment
itself, which can merely assert that the opposing party
has the burden of proof on a particular issue and has
no evidence that can meet that burden. See Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). The opposing
party then files opposing papers, including the evi-
dence the party relies upon to meet the burden of proof
on the challenged issue. Most courts then allow the
moving party to file a reply brief, which provides the
moving party an opportunity to object to the admissi-
No. 11-1935 27
bility of the evidence the opponent relies upon.6
That was the situation here. So the evidence is offered
and an objection is raised. What then? Does the pro-
ponent of the evidence have a good response to the ob-
jection? Does the proponent have an opportunity to
give that response?
If oral argument on the motion is allowed, it could
provide such an opportunity, but many summary judg-
ment motions are decided without oral argument.
Surreply briefs are relatively rare. In the seven districts
in the Seventh Circuit, the local rules of five districts
are silent on the subject of surreply briefs and certainly do
not encourage them. The Southern District of Illinois
flatly prohibits all surreply briefs in its Local Rule 7.1(c).
See S.D. Ill. L.R. 7.1(c). The Southern District of Indiana
allows surreply briefs in opposition to summary judg-
ment motions as a matter of right, though with a
short seven-day deadline and limited to addressing
evidentiary objections in a reply brief and new evidence
submitted with a reply brief. S.D. Ind. L.R. 56-1(d). Another
option may arise when the moving party files a separate
6
Among the seven districts in this circuit, for example, six
have local rules allowing reply briefs on summary judgment.
See S.D. Ind. L.R. 56-1(c) (allowing reply briefs); E.D. Wis.
Civ. L.R. 56(b)(3) (same); C.D. Ill. L.R. 7.1(D)(3) (same); N.D. Ind.
L.R. 56-1(c) (same); N.D. Ill. L.R. 78.3 (assuming reply brief
allowed). The Southern District of Illinois rule states, how-
ever, that reply briefs are not favored and should be filed “only
in exceptional circumstances.” S.D. Ill. L.R. 7.1(c). The local
rules of the Western District of Wisconsin are silent on
the matter.
28 No. 11-1935
motion to strike evidence submitted by an opponent, but
such motions to strike are usually discouraged because
of their tendency to multiply the proceedings and
prolong briefing.
There is an inherent tension between a court’s desire
to keep briefing of summary judgment motions within
reasonable boundaries and a party’s opportunity to be
heard on what may be a decisive evidentiary issue. The
record here does not indicate that the district court
heard oral argument on the defendants’ motions for
summary judgment, which might have provided an
opportunity to address the objection. Smith also might
have sought leave to file a surreply brief, but we have
previously written that “ ‘there is no requirement that
a party file a sur-reply to address an argument believed
to be improperly addressed,’ and a party need not ‘seek
leave to file a sur-reply in order to preserve an argu-
ment for purposes of appeal.’ ” Costello v. Grundon, 651
F.3d 614, 635 (7th Cir. 2011) (internal citation omitted)
(reversing summary judgment that had been granted
based on issue first raised by moving party in his reply
brief), quoting Hardrick v. City of Bolingbrook, 522 F.3d
758, 763 n.1 (7th Cir. 2008) (“Should a party be required
to seek leave to file a sur-reply in order to preserve
an argument for purposes of appeal, arguments before
the district court would proceed ad infinitum making
litigation unruly and cumbersome.”).
Along similar lines of basic due process rights, we
have often reminded district courts that they may grant
summary judgment sua sponte only if they have given
No. 11-1935 29
the affected parties advance notice of their intent to do
so and a fair opportunity to respond with argument
and evidence. E.g., R.J. Corman Derailment Services, LLC
v. Int’l Union of Operating Engineers, Local 150, 335 F.3d
643, 650 (7th Cir. 2003) (reversing summary judgment
granted without notice and opportunity to respond);
Simpson v. Merchants Recovery Bureau, Inc., 171 F.3d 546,
549 (7th Cir. 1999) (same), citing Celotex, 477 U.S. at 326.
The same basic principles of fairness apply here. Where
the appellant did not have a meaningful opportunity to
be heard on the evidentiary issue in the district court,
it would not be fair to refuse to consider his argu-
ments presented for the first time on appeal. In man-
aging summary judgment practice in their courts, dis-
trict courts need to ensure that they do not base their
decisions on issues raised in such a manner that the
losing party never had a real chance to respond. If a dis-
trict court does not provide an opportunity to be heard,
our doors will be open to consider those arguments.
b. The Co-Conspirator Exclusion
Turning to the substance of the evidentiary issue,
Rule 801(d)(2)(E) excludes from the definition of hearsay
a statement made by an opposing “party’s coconspirator
during and in furtherance of the conspiracy.” The party
seeking admission of a statement under the co-conspirator
exemption must demonstrate by a preponderance of
the evidence that: “(1) a conspiracy existed, (2) the defen-
dant and the declarant were members of the conspiracy,
and (3) the statement sought to be admitted was made
30 No. 11-1935
during and in furtherance of the conspiracy.” E.g., United
States v. Alviar, 573 F.3d 526, 540 (7th Cir. 2009). The
rule provides that the offered statement “must be con-
sidered but does not by itself establish . . . the existence
of the conspiracy or participation in it.” Fed. R. Evid.
801(d)(2); see also Bourjaily v. United States, 483 U.S.
171, 184 (1987) (Stevens, J., concurring) (“a declarant’s
out-of-court statement is inadmissible against his
alleged co-conspirators unless there is some cor-
roborating evidence to support the triple conclusion
that there was a conspiracy among those defendants,
that the declarant was a member of the conspiracy, and
that the statement furthered the objectives of the con-
spiracy”); Fed. R. Evid. 801(d)(2), 1997 Advisory Comm.
Note (“It provides that the contents of the declarant’s
statement do not alone suffice to establish a conspiracy
in which the declarant and the defendant participated.
The court must consider in addition the circumstances
surrounding the statement, such as the identity of the
speaker, the context in which the statement was made,
or evidence corroborating the contents of the state-
ment in making its determination as to each prelim-
inary question.”) (collecting cases). The district
court’s determination that a statement is admissible
under the co-conspirator exemption is ordinarily re-
viewed under a clearly erroneous standard. See United
States v. Westmoreland, 312 F.3d 302, 309 (7th Cir. 2002).
Where, as here, however, the proponent of the evidence
did not have an opportunity to be heard on the point in
the district court, it is only fair that we consider the
issue de novo.
No. 11-1935 31
Smith argues that Bray and Bianchetta conspired to
retaliate against him after he complained about discrim-
ination. Although this is not the sort of undertaking
the word “conspiracy” normally brings to mind, Rule
801(d)(2)(E) encompasses a broad definition that goes
well beyond the more confined concept of criminal con-
spiracy. See, e.g., United States v. Kelley, 864 F.2d 569, 573
(7th Cir. 1989) (“Rule 801(d)(2)(E) applies not only
to conspiracies but also to joint ventures, and . . . a
charge of criminal conspiracy is not required to invoke
the evidentiary rule.”); United States v. Coe, 718 F.2d 830,
835 (7th Cir. 1983) (“Conspiracy as an evidentiary
rule differs from conspiracy as a crime. The crime of
conspiracy comprehends much more than just a joint
venture or concerted action, whereas the evidentiary rule
of conspiracy is founded on concepts of agency law.
Recognizing this, some courts refer to the co-conspirator
exception as the ‘joint venture’ or ‘concert of action’
exception.”) (internal citations omitted), citing United
States v. Gil, 604 F.2d 546, 549 (7th Cir. 1979); see also
United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006)
(“[T]he rule, based on concepts of agency and partner-
ship law and applicable in both civil and criminal trials,
embodies the long-standing doctrine that when two
or more individuals are acting in concert toward a
common goal, the out-of-court statements of one are
admissible against the others, if made in furtherance of
the common goal.”) (internal quotations and ellipsis
omitted). The conspiracy Smith alleges — that Bray and
Bianchetta acted in concert toward the goal of getting
him fired — would qualify for the purposes of the co-
conspirator exemption.
32 No. 11-1935
The decisive question is whether Smith has
identified any admissible evidence substantiating
the existence of this conspiracy outside of Bianchetta’s
“we’re-gonna-get-you” hearsay statement itself. Smith’s
best evidence on this point is his deposition testimony
about what Bray told him after he repeatedly called
and paged her during his leave to talk about his health
insurance: “Well, I’m not going to discuss this, and I
told you before that if Jim [Bianchetta] is not going to
talk to you I’m not going to talk to you.” Smith Dep. 169.
This testimony is admissible against Bray as a state-
ment by a party opponent. See Fed R. Evid. 801(d)(2)(A).
We do not think this testimony shows that Bray con-
spired with Bianchetta to retaliate against Smith for his
complaints of discrimination. In a corporation or other
business or institution, one should expect to find
some concerted action among people with different
responsibilities who are expected to work together,
like supervisors and human resources staff. In a case of
individual liability, evidence of that legitimate con-
certed action should not be interpreted too easily as
evidence of a conspiracy so that one person’s admission
of an unlawful motive is attributed to another. The point
is parallel to criminal liability for conspiracy, where
the government must prove that the defendant agreed
to or shared the common criminal purpose of other con-
spirators. For example, “because the crime of conspiracy
requires a concert of action among two or more persons
for a common purpose, the mere agreement of one
person to buy what another agrees to sell, standing
alone, does not support a conspiracy conviction.” United
No. 11-1935 33
States v. Kimmons, 917 F.2d 1011, 1015-16 (7th Cir. 1990),
quoting United States v. Mancillas, 580 F.2d 1301, 1307
(7th Cir. 1978); see also United States v. Beech-Nut
Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989) (“In
order to support a conviction for conspiracy, the
evidence must be sufficient to permit the jury to infer
that the defendant and other alleged coconspirators
entered into a joint enterprise with consciousness of
its general nature and extent. When a conspiracy has
been charged, the alleged coconspirators’ actions may
be assessed in light of their interrelationship and inter-
dependency as well as the nature and duration of the
enterprise. Though accidentally parallel action is not
enough to establish a conspiracy, and a mere buyer-seller
relationship is not necessarily a conspiracy, a defendant
may be deemed to have agreed to join a conspiracy if
there is something more, some indication that the de-
fendant knew of and intended to further the illegal ven-
ture, that he somehow encouraged the illegal use of
the goods or had a stake in such use.”) (internal
citations and quotation marks omitted). In the terms of
Seventh Circuit Pattern Criminal Jury Instruction § 5.08:
“The government must prove beyond a reasonable
doubt that the defendant was aware of the common
[criminal] purpose and was a willing participant.” See
United States v. Stotts, 323 F.3d 520, 522 n.1 (7th Cir. 2003).
In this civil case, of course, Bray need not meet the
beyond-reasonable-doubt standard. Even under the
preponderance-of-the-evidence standard, however,
Bray’s refusal to talk with Smith falls short of proving
that she was aware of any unlawful motive of
34 No. 11-1935
Bianchetta’s. It may show some concert of action
between Bianchetta and Bray, but it does not indicate
that they shared a common unlawful motive. We can
assume that Bianchetta and Bray were working together
on issues involving Smith’s performance and employ-
ment and agreed he should be fired, at least after the
long unexcused absence from work. That is to be
expected between human resources staff and super-
visors in the corporate or other institutional setting. In
light of their “interrelationship and interdependency”
at Equistar, Beech-Nut Nutrition Corp., 871 F.2d at 1191,
Bianchetta and Bray’s parallel action here is not enough
to show she shared Bianchetta’s unlawful purpose.
When it comes to individual liability for retaliation,
Smith needed evidence, beyond Bianchetta’s statements,
that would allow a reasonable jury to find that Bray
knew about and shared Bianchetta’s retaliatory motive.
Bray’s refusal to talk with Smith simply does not do so.7
7
Smith’s two other admissible pieces of evidence of the
conspiracy between Bray and Bianchetta are even weaker.
First, there is the deposition testimony of Jason Cornelio, who
worked in the same unit with Smith, that Bianchetta said that
Bray had told him that if Smith “leaves and you don’t authorize
him leaving he’s fired. It’s job abandonment.” Smith argues
that this testimony corroborates Bianchetta’s threat that he
and Bray had already decided to fire Smith and thereby pro-
vides further proof that they were working together to
retaliate against him. That might be true if Bray herself had
made this statement to Cornelio, but this testimony was
also hearsay filtered through Bianchetta. It does no work
(continued...)
No. 11-1935 35
2. Other Causation Evidence
The rest of Smith’s evidence is also too thin to support
a reasonable inference that Bray harbored a retaliatory
motive. Smith asserts that unlawful animus may be
inferred from Bray’s ignoring his complaints of discrim-
ination. If Bray had stood idly by while Smith com-
plained to her of race discrimination, this might provide
evidence of her own discriminatory animus. Cf. Nanda
v. Moss, 412 F.3d 836, 843 (7th Cir. 2005) (in § 1983 dis-
crimination suit, affirming denial of qualified immunity
to university dean who “completely ignore[d] each of
the complaints” about discrimination the plaintiff had
(...continued)
independent of the Bianchetta threat itself in implicating Bray
in a plot against Smith. Although the court may consider
inadmissible evidence in assessing a proffered co-conspirator
statement, see Bourjaily v. United States, 483 U.S. 171, 178 (1987),
the same reliability concerns animating the hearsay rule
may make certain hearsay statements insufficient to support
proof of the existence of a conspiracy.
Second, Smith points to Bray’s admission that she spoke to
Bianchetta about Smith’s medical leave benefits application,
arguing that this shows they were “coordinating with one
another following Smith’s sick leave.” The fact that Bray told
Bianchetta that Concentra was managing Smith’s disability
claim does nothing to suggest the existence of an unlawful
conspiracy between them. Rather, providing that sort of
information is precisely the kind of conversation one would
expect to occur routinely between human resource managers
and supervisors.
36 No. 11-1935
made against the department head); Hildebrandt v.
Illinois Dep’t of Natural Resources, 347 F.3d 1014, 1039
(7th Cir. 2003) (supervisors who “turn a blind eye” to
discrimination by subordinates may be personally
liable under § 1983), quoting Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995). In this case, however, Smith
has not identified a specific instance in which he com-
plained about discrimination and Bray failed to act
on it.8 Without evidence that Smith complained about
8
Smith alleges more generally that he “complained directly to
Bray about the discrimination and harassment” and that “Bray
ignored Smith’s complaints.” None of his record citations
support this assertion, however. In his deposition, Smith testi-
fied that he had complained to Bray about Hieser “not doing
his job” but did not indicate that he had described Hieser’s
harassment as racially-motivated. Smith Dep. 38. Although
Bray’s characterization of Hieser as an “equal opportunity
picker” suggests that Smith had accused Hieser of racial
harassment, Smith’s own testimony indicates that his
complaint to Bray was related to Hieser’s work rather than
discrimination. When Bray asked Smith if he had called Hieser
a “racist bigot m***** f******,” Smith denied it, and both in
conversation with her and at his deposition he attributed that
comment to another employee. Smith Dep. 45-46. A defendant
can be held liable for retaliation only if she knew the plaintiff
engaged in protected activity. See Nagle v. Village of Calumet
Park, 554 F.3d 1106, 1122 (7th Cir. 2009). A vague gripe about
a co-worker does not count as statutorily protected expres-
sion. See Durkin v. City of Chicago, 341 F.3d 606, 615 (7th Cir.
2003). Evidence that Bray ignored Smith’s complaint about
(continued...)
No. 11-1935 37
discrimination directly to Bray, or that she even knew
about any particular complaint he might have made, it
is impossible to conclude that she ignored him at all,
let alone to infer that a discriminatory animus motivated
her deliberate indifference. See, e.g., Morfin v. City of
East Chicago, 349 F.3d 989, 1005 (7th Cir. 2003) (“The
protected conduct ‘cannot be proven to motivate retalia-
tion if there is no evidence that the defendants knew of
the protected activity.’ ”) (brackets omitted), quoting
Stagman v. Ryan, 176 F.3d 986, 1000-01 (7th Cir. 1999).
Smith also argues that evidence of Bray’s unlawful
motive may be found in both her failure to return his
(...continued)
Hieser’s supposed incompetence does not provide evidence
that she harbored an unlawful animus.
Smith can point to evidence that he reported discrimination
to other employees, including Jim Arrajj, the unit superinten-
dent, and Joy Nixon, another human resources employee. Arrajj
testified that someone with “the HR group” showed him a four-
page discrimination complaint that Smith lodged against
Bianchetta, but that he did not remember which employee
it was. Arrajj Dep. 19. Nixon testified that Smith complained
about discrimination to her several times, and that she passed
on all his complaints to Bray. Nixon Dep. 51-52. Nixon did
not identify a specific occasion on which she reported a com-
plaint of Smith’s to Bray, nor did she state what response
Bray took or whether and for how long Bray delayed in re-
sponding. At the summary judgment phase, Nixon’s testi-
mony is enough to show that Bray knew Smith had com-
plained about race discrimination, but it does not show that
she received a particular complaint and refused to address it.
38 No. 11-1935
telephone calls during his disability leave and her state-
ment to Smith that if Bianchetta “is not going to talk to
you, I’m not going to talk to you.” We do not see how
either of these suggests that Bray wished to retaliate
against Smith for complaining about discrimination.
Her failure to call him back may have stemmed from
any number of causes, from innocent forgetfulness to
willful spite; friends and family breach etiquette in
this way as regularly as workplace nemeses do. And
while her refusal to speak to Smith because Bianchetta
would not may have been petty or unwise, we would
have to depend on speculation to conclude that it was
a response to Smith’s protected activity. It shows at
most a concert of action between Bray and Bianchetta,
but it does not indicate that she shared his retaliatory
motive.
Finally, Smith argues that the short gap (a few months)
between his complaints about discrimination and his
termination shows “suspicious timing” suggesting that
Bray had a retaliatory motive. Coupled with cor-
roborating evidence of retaliatory motive, evidence of
“suspicious timing . . . can sometimes raise an inference
of a causal connection,” but it is “rarely sufficient” by
itself. Coleman, 667 F.3d at 860, quoting Magyar v. St. Joseph
Regional Medical Center, 544 F.3d 766, 772 (7th Cir. 2008),
and O’Leary, 657 F.3d at 635. As explained above, Smith
has presented no other admissible evidence of Bray’s
retaliatory intent. This is therefore not a case in which a
“sequence of protected activity and punitive action could
lend . . . support to a[n] . . . inference of retaliation.”
Coleman, 667 F.3d at 861.
No. 11-1935 39
In sum, Smith’s retaliation claim does not satisfy
the causation element of the direct method because
he did not present sufficient circumstantial evidence
showing that his complaints about discrimination moti-
vated Bray to seek his termination.
Finally, the district court correctly granted summary
judgment for Bray on Smith’s constructive discharge
claim. A constructive discharge occurs when working
conditions become so unbearable that an employee is
forced to resign. We agree with the district court that
“Smith’s alternative claim that he resigned in June 2006
is in direct conflict with the evidence” showing that he
was fired. “We can make it no plainer than to reiterate
that constructive discharge ‘refers to a situation in which
an employee is not fired but quits.’ ” Jordan v. City of
Gary, 396 F.3d 825, 837 (7th Cir. 2005), quoting McPherson
v. City of Waukegan, 379 F.3d 430, 440 (7th Cir. 2004). As
in Jordan, where the plaintiff acknowledged being “termi-
nated because she failed to return to work as ordered
after . . . being absent without leave,” id. at 836, Smith
does not dispute that he was fired. His constructive
discharge claim therefore fails.
A FFIRMED.
5-24-12