Deloria Johnson v. Eric Holder, Jr. , 700 F.3d 979 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1703
D ELORIA J. JOHNSON,
Plaintiff-Appellant,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-04160—William J. Hibbler, Judge.
A RGUED O CTOBER 3, 2012—D ECIDED N OVEMBER 9, 2012
Before F LAUM, R IPPLE and W ILLIAMS, Circuit Judges.
R IPPLE, Circuit Judge. Deloria Johnson, a 67-year-old
African-American woman and a retired legal assistant
at the United States Department of Justice, appeals from
the grant of summary judgment against her in this
employment-discrimination action. The district court
concluded that Ms. Johnson had failed to establish a
prima facie case of race, sex or age discrimination.
2 No. 12-1703
Because the district court properly concluded that
Ms. Johnson had failed to produce sufficient evidence
of unlawful discrimination, we must affirm the judg-
ment of the district court.
I
BACKGROUND
A. Facts
Deloria Johnson worked for sixteen years as a secretary
and legal assistant at the United States Attorney’s Office
for the Northern District of Illinois until her voluntary
retirement in September 2007.
Just weeks before her retirement, Ms. Johnson had
a verbal altercation with another legal assistant, Beryl
Mosley. Ms. Johnson told Mosley that she wanted to
“throw up” upon hearing Mosley praise their supervisor,
Sharon Getty, for easing her workload in stressful times.
Mosely, upset and embarassed, went to Getty’s office
to cry. Getty, recalling her conversation with Mosley in
her office, testified in her deposition that Mosley had
told her that Ms. Johnson used terms other than
“throw up,” including “puke” and “puke in your face.”
After meeting with Mosley, management eventu-
ally decided that the office would best be served by
Ms. Johnson’s reassignment to another floor, rather than
by a formal reprimand. Accordingly, Ms. Johnson was
reassigned for 120 days to the eleventh-floor file room
where she was tasked with helping to index a large back-
log of closed cases.
No. 12-1703 3
Ms. Johnson’s salary and benefits did not change. Her
duties and some of the conditions under which she
worked were altered. For example, she was generally
restricted to the file room during business hours (aside
from breaks), and she was not authorized to allow others
into the file room or to work overtime. After an intro-
ductory period with lower expectations, Ms. Johnson
was asked to index nine to ten files a day. She retired
before her assignment expired.1
B. District Court Proceedings
Ms. Johnson brought this action against the Department
of Justice (“DOJ”) for discrimination based on her age,
sex and race. She attempted to prove unlawful discrimina-
tion under both the direct and indirect methods. With
respect to the direct method, she asserted that the trier
of fact could infer discriminatory intent from a “mosaic
of evidence” comprised of the DOJ’s arguably contra-
dictory witness statements and from her assertions that
similarly situated employees had received preferential
1
Because we decide this case on other grounds, we need not
determine whether these changes amounted to an adverse
employment action. See, e.g., Vance v. Ball State Univ., 646 F.3d
461, 474-75 (7th Cir. 2011) (declining to consider whether
changes to plaintiff’s employment constituted a materially
adverse employment action because “even if Vance had estab-
lished that Ball State subjected her to a materially adverse
action, her claim would fail because she has not satisfied
the final element of the prima facie analysis”).
4 No. 12-1703
treatment.2 In her answer to an interrogatory, Ms. Johnson
identified seven employees who, in her view, were simi-
larly situated. These individuals included Carol Bithos,
Ms. Johnson’s white, female, former supervisor who
“was reassigned from her supervisory position to
indexing case files” but “never isolated to the file room,
nor was she restricted to certain floors[,]” 3 and Mark
Zavodny and Pat Ennis, two white men who worked
with her in the eleventh-floor file room. In her answers,
she noted that the two men often argued with one
another, presumably without incurring any discipline.
She further recalled one time when Ennis let his family
visit him at work for fifteen minutes, although she was
“not authorized to allow others in the file room.” 4
Ms. Johnson’s interrogatory answers concede that
Getty, her supervisor, did not supervise Bithos, Zavodny
or Ennis.
Proceeding under the indirect method, Ms. Johnson
contended that she could make out a prima facie case
of discrimination because she belonged to a protected
class, had met her employer’s legitimate expectations,
suffered an adverse employment action when reassigned
to the file room and was treated differently from
the similarly situated employees identified in her inter-
rogatory answers. She also argued that the DOJ’s stated
nondiscriminatory reason for her reassignment was
2
R.39-3 at 11.
3
R.33-1 at 9.
4
R.33-1 at 10.
No. 12-1703 5
“illegitimate” because the DOJ used a vague standard
to discipline her on account of her age, race or sex.
The district court granted the DOJ’s motion for sum-
mary judgment, concluding that Ms. Johnson had failed
to establish the existence of a genuine issue of
material fact under either the direct or indirect method.
With respect to the direct method, the court held that
Ms. Johnson had failed in her attempt to present a
mosaic of circumstantial evidence because she had pre-
sented no evidence of her supervisors’ prejudicial
remarks or behavior, presented only a conclusory state-
ment that she was treated differently than similarly
situated employees and could not show discriminatory
intent based merely on evidence that the reassignment
was a disproportionate response to her comments to
Mosely. The court noted that Ms. Johnson’s answers
to interrogatories contained “some reference to disparate
treatment of coworkers,” but the court disregarded
that evidence because, in its view, “a party cannot use
his own interrogatory answers to support or oppose
summary judgment.” Johnson v. Holder, 2012 WL 645933,
at *3 (N.D. Ill. Feb. 27, 2012). The court also concluded
that, even considering the employees Ms. Johnson had
identified as similarly situated in her interrogatory an-
swers, Ms. Johnson had failed to establish a prima
facie case under the indirect method because she did not
produce sufficient evidence that these employees were
in fact similarly situated to her.
With respect to the indirect method, the court fur-
ther concluded that Ms. Johnson’s case failed because
6 No. 12-1703
she had not produced evidence of similarly situated
employees.
II
DISCUSSION
Ms. Johnson first challenges the district court’s con-
clusion that she did not present a sufficient mosaic of
circumstantial evidence under the direct method of
proof. She asserts that she was treated differently from
similarly situated employees outside her protected
class, specifically, Bithos, Zavodny and Ennis. The only
evidence she produces in support of her position are
identical allegations in her interrogatory answers and
in her affidavit which, as discussed below, are insuf-
ficient to establish that the employees Ms. Johnson identi-
fied are similarly situated to her.
As a threshold matter, we note that, in discussing
the admissibility of Ms. Johnson’s interrogatory answers,
the district court misapprehended the breadth of our
holding in Luster v. Illinois Department of Corrections,
652 F.3d 726 (7th Cir. 2011), when it stated that Ms. John-
son could not use her own interrogatory answers to
oppose summary judgment. The employee in Luster
sought to show in his answer to an interrogatory that a
coworker of another race had been punished for miscon-
duct less severely than he had. Id. at 731. We stated
there that the employee could not use his own interroga-
tory answer to oppose summary judgment because
the answer was not based upon personal knowledge
No. 12-1703 7
or otherwise admissible. Id. n.2 (citing Fed. R. Civ. P.
56(c)(4)). The employee in Luster did not “supply an
admissible foundation from which to conclude” that
his assertions were based on personal knowledge; his
interrogatory answer was thus insufficient to avoid
summary judgment. Id. In Luster, we simply held, there-
fore, that evidence offered to support or oppose sum-
mary judgment must be admissible at trial, and affidavits
and declarations must be made with personal knowl-
edge. Id.Under Federal Rule of Civil Procedure 56(c), a district
court “may consider answers to interrogatories when
reviewing a motion for summary judgment so long as the
content of those interrogatories would be admissible
at trial.” Hardrick v. City of Bolingbrook, 522 F.3d 758, 761
(7th Cir. 2008). Simply stated, a person answering an
interrogatory can testify competently at trial to the infor-
mation contained in her answers so long as she has per-
sonal knowledge of such information. Much of Ms. John-
son’s interrogatory answers concerning proposed sim-
ilarly situated employees contain hearsay, and the
district court was correct in refusing to consider
these answers. The district court should have con-
sidered, however, the non-hearsay statements contained
in Ms. Johnson’s interrogatory answers. Some of
Ms. Johnson’s interrogatory answers incorporated her
own observations. For example, in one interrogatory
answer, Ms. Johnson addresses the reassignment of
her own supervisor to indexing duties. In another she
recounts verbal fights she observed between two of the
8 No. 12-1703
men who worked in the file room. In a third answer,
Ms. Johnson describes an incident when one of the
men who worked in the file room, Ennis, allowed
his family to visit him in the file room during office
hours. Because some of Ms. Johnson’s interrogatory
answers contained admissible evidence, the district
court should have considered them in determining
whether summary judgment was proper.
This misapprehension of the holding in Luster, how-
ever, is harmless. Even considering Ms. Johnson’s non-
hearsay interrogatory answers, she nevertheless failed
to provide sufficient evidence of a similarly situated
employee. Ms. Johnson has not produced facts demon-
strating that Bithos or the men in the file room shared
a similar record of misconduct, performance, qualifica-
tions or disciplining supervisors such that their different
treatment reflects a discriminatory intent on the part of
the DOJ. See Harris v. Warrick Cnty. Sheriff’s Dep’t, 666
F.3d 444, 449 (7th Cir. 2012) (holding that the plaintiff
failed to identify a similarly situated employee because
his comparators had not “violated standard operating
procedures, disobeyed direct orders, or show[n] a lack
of commitment to the job during their probationary
periods” as the plaintiff had). For instance, Ms. Johnson
does not contend that either Bithos or the men in the
file room made inappropriate comments to coworkers.
Nor does she suggest that Bithos or the file-room men
shared her job description or supervisor. “[W]hen uneven
discipline is the basis for a claim of discrimination,
the most-relevant similarities are those between the em-
No. 12-1703 9
ployees’ alleged misconduct, performance standards,
and disciplining supervisor.” Rodgers v. White, 657 F.3d
511, 518 (7th Cir. 2011). Bithos was a supervisor, not a
legal assistant like Ms. Johnson, and the record is silent
on the file-room men beyond stating their race and
sex. The record contains no information with respect
to any of the other individuals.
Ms. Johnson also challenges the district court’s con-
clusion that she cannot show discrimination under the
indirect method. Ms. Johnson asserts generally that
she was treated differently from similarly situated co-
workers. For the reasons that we have just discussed,
she has not established that she was treated less
favorably than any similarly situated employee. Because
of this failure, she cannot make out a prima facie case of
discrimination, which is required under the indirect
method. See Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670,
678 (7th Cir. 2012).
Ms. Johnson also alleges that DOJ’s stated non-discrimi-
natory reason for its assignment of Ms. Johnson to the file
room is pretextual. Because she has failed to establish
a prima facie case of discrimination, we need not reach
the issue of pretext. Under the indirect method, unless
Ms. Johnson established a prima facie case of discrim-
ination, summary judgment was proper, and the DOJ
was not required to offer a legitimate non-discriminatory
reason for its actions.
10 No. 12-1703
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
A FFIRMED
11-9-12