Brown v. Advocate South Suburban Hospital , 700 F.3d 1101 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1135
JOSALYNN M. B ROWN AND C AROLYN W ILSON,
Plaintiffs-Appellants,
v.
A DVOCATE S OUTH S UBURBAN H OSPITAL AND
A DVOCATE H EALTH & H OSPITALS C ORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 cv 5386—Robert W. Gettleman, Judge.
A RGUED S EPTEMBER 21, 2012—D ECIDED N OVEMBER 21, 2012
Before P OSNER, K ANNE, and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Over a span of several years,
two hospital nurses, Josalynn M. Brown and Carolyn
Wilson, raised a series of complaints about their
working conditions, including complaints of racial dis-
crimination. They later sued their employers, defendants
Advocate South Suburban Hospital and Advocate Health
2 No. 12-1135
and Hospitals Corporation (collectively referred to as
“Advocate”). Brown and Wilson argued that Advocate
had discriminated against them and subsequently re-
taliated against them for complaining about the discrim-
ination. The district court concluded that there was
not enough evidence to support the nurses’ claims and
granted summary judgment for Advocate. Having inde-
pendently reviewed the record, we agree with the
district court and affirm.
I. B ACKGROUND
Josalynn M. Brown and Carolyn Wilson began
working as nurses at Advocate Christ Medical Center
(which we will refer to as “Advocate Christ” and which is
not a party to this action) in 2005. Both plaintiffs are
African-American. On May 10, 2008, the plaintiffs and
ten other nurses delivered a Petition for Change in Labor
Practices to their human resources department. The
petition alleged that Advocate Christ treated its Filipino
nurses better than its African-American nurses by
giving them easier assignments, more training, and more
leadership opportunities. Several human resources em-
ployees at Advocate Christ investigated the claims in
the petition and ultimately concluded that the claims
could not be corroborated.
Both plaintiffs resigned their positions at Advocate
Christ in mid-September 2008. In October 2008,
they began working at Advocate South Suburban
Hospital and quickly became concerned with the way
things were being run. Brown complained that other
No. 12-1135 3
nurses were sleeping while on duty, that her unit’s cul-
ture was unprofessional, and that her work assignments
were unequal and unfair. Wilson similarly complained
about patient care and safety issues. When their super-
visors failed to make the changes that the plaintiffs rec-
ommended, the plaintiffs began to suspect that they
were being ignored because of their race and started
lodging complaints about that as well. In March 2009,
both plaintiffs started applying for positions at other
Advocate facilities. Brown and Wilson both received
an interview for one position, but neither was ultimately
hired. Wilson claims that she eventually applied to over
one hundred different positions within Advocate’s net-
work and never received any of them, although she
also admits that she was unqualified for many of these
positions, that forty-three of them were cancelled without
being filled, and that, since January 2010, a medical
condition has prevented her from providing direct
patient care.
Both plaintiffs filed charges of discrimination with
the Equal Employment Opportunity Commission in
May 2009. They subsequently filed this lawsuit on
August 31, 2009, against Advocate South Suburban Hos-
pital and its parent corporation, Advocate Health and
Hospitals Corp. On December 20, 2011, the district
court entered summary judgment in favor of Advocate,
and the plaintiffs filed a timely notice of appeal on
January 18, 2012.
4 No. 12-1135
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, viewing all of 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). “However, our favor toward the nonmoving
party does not extend to drawing inferences that are
supported by only speculation or conjecture.” Harper v.
C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012)
(internal quotation marks and brackets omitted). Rather,
a genuine issue of material fact exists only if there is
enough evidence that a reasonable jury could return a
verdict in favor of the nonmoving party. Id.The plaintiffs raise two claims under Title VII—a dis-
crimination claim and a retaliation claim.1 The district
court granted summary judgment to the defendants
on both claims. The plaintiffs’ briefs in this court also
raise a hostile work environment claim under Title VII
and a claim under the Family and Medical Leave Act.
But the plaintiffs did not raise these claims anywhere
1
Technically, the plaintiffs brought their discrimination and
retaliation claims under 42 U.S.C. § 1981 as well as Title VII,
but the elements and methods of proof for § 1981 claims are
“essentially identical” to those under Title VII, Montgomery
v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010), so
we need not analyze them separately.
No. 12-1135 5
in their complaint; accordingly, these two additional
claims are forfeited, and we will confine our discussion
to the two Title VII claims that the plaintiffs properly
preserved for appeal. See Econ. Folding Box Corp. v.
Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir.
2008) (“it is axiomatic that an issue not first presented to
the district court may not be raised before the appellate
court as a ground for reversal”) (internal brackets omitted).
A. Discrimination
Title VII makes it illegal “for an employer to fail or
refuse to hire or to discharge any individual, or other-
wise 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). To prove that discrimination occurred, a
plaintiff may proceed under either the direct method or
the indirect method of proof. Dandy v. United Parcel
Serv., Inc., 388 F.3d 263, 272 (7th Cir. 2004). Under the direct
method, the plaintiff must produce either direct or cir-
cumstantial evidence of discriminatory intent. Id.And under the indirect method, the plaintiff must
satisfy the familiar burden-shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dandy,
388 F.3d at 273. The plaintiffs proceed under both
methods here.
The district court found that the plaintiffs had not
established a triable issue of fact under either method,
and we think that the district court was correct. The
6 No. 12-1135
indirect method is easily addressed. To establish dis-
crimination under the indirect method, the plaintiffs
must, among other things, provide evidence that their
employer treated them differently than “similarly situ-
ated” employees outside of their protected class. Maclin
v. SBC Ameritech, 520 F.3d 781, 787 (7th Cir. 2008). To
meet this burden, they must show that there is someone
who is directly comparable to them in all material
respects except for membership in the protected class.
Winsley v. Cook Cnty., 563 F.3d 598, 605 (7th Cir. 2009).
But the plaintiffs have not identified any such person.
Instead, they offer only a bare assertion that “nurses
with far less experience who were not African-Ameri-
can” received transfers and more desirable shifts. (Ap-
pellants’ Br. at 18.) But, of the documents that the
plaintiffs cite for this proposition, the only one that
actually supports it is their complaint. Mere allegations
in a complaint, however, are not “evidence” and do not
establish a triable issue of fact. Tibbs v. City of Chicago,
469 F.3d 661, 663 n.2 (7th Cir. 2006). Accordingly, we
agree with the district court that the plaintiffs cannot
survive summary judgment under the indirect method.
Nor do the plaintiffs fare any better using the direct
method. Under this method, they must provide “either
direct evidence or circumstantial evidence that shows
that the employer acted based on prohibited animus.”
Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1122 (7th
Cir. 2009). Because Advocate has not openly admitted
to discriminating against them, the plaintiffs must con-
struct “a convincing mosaic of circumstantial evidence
that allows a jury to infer intentional discrimination by
No. 12-1135 7
the decisionmaker.” Phelan v. Cook Cnty., 463 F.3d 773,
779 (7th Cir. 2006). The pieces of this mosaic generally
take one of three forms. First, the plaintiffs may show
evidence of suspicious timing, ambiguous behavior,
statements or comments directed at employees in the
protected group, and “other bits and pieces from which
an inference of discriminatory intent might be drawn.”
Id. at 781. Second, they may provide evidence that a
“similarly situated employee received more favorable
treatment.” Id. And third, they may provide evidence
that the plaintiff “was qualified for the job in question
but passed over in favor of (or replaced by) a person not
having the forbidden characteristic, and that the em-
ployer’s stated reason for the difference in treatment is
unworthy of belief.” Id.The plaintiffs offer two tiles to fill out their mosaic
here. First, they contend that other, less-qualified, non-
African-American nurses were given transfers and better
shifts. But, as discussed, the plaintiffs provided no
actual evidence to support this contention. Second, the
plaintiffs argue that the defendants did not adequately
respond to their complaints about discrimination,
safety violations, and workplace conditions. But we do
not think that a reasonable jury could infer bias from
these circumstances.
Title VII protects against discrimination, not “personal
animosity or juvenile behavior.” Shafer v. Kal Kan Foods,
Inc., 417 F.3d 663, 666 (7th Cir. 2005). The record demon-
strates that, between 2008 and 2010, the plaintiffs made
numerous complaints to management, some involving
racial issues and others involving general workplace
8 No. 12-1135
disputes. The defendants investigated many of the com-
plaints, took action on some of them, and declined to
take action on others. The plaintiffs also claim that
the defendants harassed them in response to these com-
plaints, but this “harassment” appears mainly to have
been criticism about the plaintiffs’ perceived lack of
teamwork. Specifically, a supervisor wrote a draft of a
“negative summary of associate review” and a “perfor-
mance deficiency notice” for Brown (but never actu-
ally finalized either document, nor placed them in
Brown’s personnel file, nor even told Brown about
them), and Wilson was called a “trouble maker,” a “cry
baby,” and a “spoiled child” during a meeting by a super-
visor, causing Wilson to leave the meeting in tears.
The plaintiffs contend that we can infer bias from
these facts because the defendants did not respond to
the plaintiffs’ complaints as the plaintiffs would have
liked. But the fact that someone disagrees with you (or
declines to take your advice) does not, without more,
suggest that they discriminated against you. Nor do any
of the criticisms that the plaintiffs experienced suggest
a discriminatory motive. All of the criticisms used non-
racial language, and nothing else about their context
suggests that they were racially motivated. Cf. Yancick
v. Hanna Steel Corp., 653 F.3d 532, 546 (7th Cir. 2011)
(“Johnson made some remarks with racial undertones,
but he did not hurl racially charged epithets at his
co-workers. He had a hostile attitude and was at times
aggressive, but other than speculation, Yancick cannot
connect Johnson’s behavior with racial animus.”). Perhaps
their supervisors’ criticisms were unfair—clearly the
No. 12-1135 9
plaintiffs feel that they were—but there is no evidence
that they were unfair because they were motivated by race,
as Title VII forbids. See 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”); see also id. (quoting
Brill v. Lante Corp., 119 F.3d 1266, 1273 (7th Cir. 1997))
(“’The question is not whether the employer’s per-
formance ratings were right but whether the employer’s
description of its reasons is honest.’ ”) (internal brackets
omitted). Accordingly, the plaintiffs did not present a
triable issue of fact under the direct method or the
indirect method, and the district court correctly granted
summary judgment on the discrimination claim.
B. Retaliation
That brings us to the plaintiffs’ retaliation claim. In
addition to forbidding workplace discrimination, Title
VII also prohibits retaliating against an employee
“because he has opposed any practice made an
unlawful employment practice by [this subchapter,] or
because he has made a charge, testified, assisted, or
participated in any manner in an investigation, pro-
ceeding, or hearing under [this subchapter.]” 42 U.S.C.
§ 2000e-3(a). As before, the plaintiffs attempt to prove
this claim under both the direct and indirect methods.
Like a discrimination claim, proving a retaliation
claim under the indirect method requires evidence that a
10 No. 12-1135
similarly situated employee who did not engage in the
statutorily protected activity received better treatment.
Harper, 687 F.3d at 309-10. As discussed, the plaintiffs
have not pointed to any such person. Thus, we can
again make short work of the plaintiffs’ arguments
under the indirect method.
So we move on to the direct method. To establish re-
taliation under the direct method, the plaintiffs must
satisfy three elements. First, they must show that they
engaged in protected activity under Title VII. Coleman
v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012). Second,
they must show that they suffered an adverse employ-
ment action. Id. And third, they must show that there is
a causal link between their protected activity and the
adverse action. Id. Or, to put it another way, the plaintiffs
must produce evidence that a “retaliatory animus” moti-
vated the defendants’ adverse actions against them.
Smith v. Bray, 681 F.3d 888, 901 (7th Cir. 2012). “Not
everything that makes an employee unhappy is an action-
able adverse action.” Stephens v. Erickson, 569 F.3d 779,
790 (7th Cir. 2009) (internal brackets omitted). Because
an adverse employment action under Title VII’s retalia-
tion provision must be “materially” adverse, “it is impor-
tant to separate significant from trivial harms”; an action
is only adverse if it might dissuade a reasonable
worker from making or supporting a charge of discrim-
ination. Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006).
The plaintiffs acknowledge that they were never
formally disciplined, terminated, or denied pay or bene-
No. 12-1135 11
fits. Beyond that, they are hazy about precisely
how they believe the defendants retaliated against
them. They argue in passing that they were unfairly
denied favorable shifts and work assignments, but, as
we have already discussed several times, the plaintiffs
presented no evidence to support this argument. The
plaintiffs’ counsel also stated during oral argument that
the defendants “tried” to terminate them, but again,
they provide no evidence to back up that claim.
That leaves three basic ways in which the plaintiffs
contend they were retaliated against. First, they argue
that the defendants treated them unfairly and ignored
their complaints. As the plaintiffs’ counsel explained
during oral argument, his clients were “not being
listened to” and getting “a cold shoulder from man-
agement.” Instead of taking the plaintiffs’ suggestions,
managers “wrongly accused” them of being “cry bab[ies]”
and “trouble maker[s]” and “left the wrongdoers undisci-
plined in any way.” Similarly, the plaintiffs’ brief cites
to evidence that a supervisor called Wilson a “trouble
maker,” a “cry baby,” and a “spoiled child.”
We do not think that this sort of behavior constitutes
a materially adverse employment action. “ ‘[P]ersonality
conflicts at work that generate antipathy’ and ‘snubbing
by supervisors and co-workers’ are not actionable” under
Title VII, Burlington Northern, 548 U.S. at 68 (quoting 1 B.
Lindemann & P. Grossman, Employment Discrimination
Law 669 (3d ed. 1996)), and we think that getting
a “cold shoulder” from your boss easily falls within
this non-actionable category. As far as being called a
12 No. 12-1135
trouble maker, a cry baby, and a spoiled child, it is
unclear whether these statements referred to the plain-
tiffs’ discrimination complaints or simply to some other
workplace issue. See Hamm v. Weyauwega Milk Prods.,
Inc., 332 F.3d 1058, 1066 (7th Cir. 2003) (Title VII pro-
hibits retaliation for complaints about discrimination,
not retaliation for complaints about other workplace
issues). But assuming, as we must at this stage, that
the comments referred to the plaintiffs’ discrimination
complaints, we are confident that the comments were
not materially adverse. In Dunn v. Washington Cnty.
Hospital, for example, a nurse complained that a doctor
sexually harassed her. 429 F.3d 689, 690 (7th Cir. 2005). In
response, the doctor asked the nurse to withdraw her
complaint in a “nasty and uncivil tone” and told her that
“paybacks are hell” but took no other action against her.
Id. at 692-93. Because the doctor’s statements did not
cause the nurse any actual injury, we held that they
would not have dissuaded a reasonable person from
complaining and therefore were not materially adverse
employment actions. Id. Similarly, the relatively mild
epithets at issue here were not materially adverse. See
id.; see also Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009)
(performance improvement plan instructing employee
to “ ‘become more aware of her tone’ and to ‘work on
becoming a better listener’ . . . would not dissuade a
reasonable person from exercising her rights”) (internal
brackets omitted); Stephens, 569 F.3d at 790 (being “stared
and yelled at . . . is not an actionable harm”); Recio v.
Creighton Univ., 521 F.3d 934, 940-41 (8th Cir. 2008) (getting
“the silent treatment” from colleagues not materially
No. 12-1135 13
adverse); Somoza v. Univ. of Denver, 513 F.3d 1206, 1214-15
(10th Cir. 2008) (incivility of co-workers at a meeting,
including eye-rolling, laughing at plaintiff’s opinions, and
commenting behind his back, were not materially ad-
verse); cf. Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1030
(7th Cir. 2004) (“It is well established that unfulfilled
threats that result in no material harm cannot be con-
sidered an adverse employment action under Title VII.”).
Or, to put it another way, we do not think that being
called a trouble maker, a cry baby, or a spoiled child
would dissuade a reasonable person from complaining
of discrimination.
The plaintiffs also claim that they were retaliated
against when their requests for transfers to other
hospitals were denied. That might be an adverse em-
ployment action, provided the transfer would have re-
sulted in higher pay or benefits. See Johnson v. Cambridge
Indus., Inc., 325 F.3d 892, 900 (7th Cir. 2003) (“the denial
of an opportunity to move to [a higher paying]
position, unlike the mere denial of a lateral transfer,
constitutes a materially adverse employment action”); cf.
Dandy, 388 F.3d at 275 (“because her request was for
a lateral transfer offering parallel pay, benefits, and
responsibilities, UPS’s refusal to grant that request does
not constitute an adverse employment action”). But the
plaintiffs must also provide evidence that a retaliatory
animus motivated the denials, see Smith, 681 F.3d at
901, and they have not done so.
The plaintiffs argue that the decision-makers must
have known about their discrimination complaints
14 No. 12-1135
because the complaints had been covered in local news
media and might have been a subject of workplace chat-
ter. But the plaintiffs must produce evidence that a re-
taliatory motive actually influenced the decision-maker,
not merely that it could have, see Nagle, 554 F.3d at 1122;
our favor toward the nonmoving party on summary
judgment “does not extend to drawing inferences that
are supported by only speculation or conjecture,” Harper,
687 F.3d at 306. As it stands, the plaintiffs’ argument
for retaliatory animus relies entirely on speculation.
No affirmative evidence suggests that the decision-
makers were even aware of the plaintiffs’ discrimination
complaints before they denied the transfers, much less
that they did so intending to retaliate against the plain-
tiffs. Nor have the plaintiffs presented any affirma-
tive evidence that anybody improperly influenced the
decision-makers under the so-called “cat’s paw” theory
of liability. See Cook v. IPC Int’l Corp., 673 F.3d 625,
628 (7th Cir. 2012) (“the ‘cat’s paw’ metaphor refers to a
situation in which an employee is fired or subjected to
some other adverse employment action by a supervisor
who himself has no discriminatory motive, but who
has been manipulated by a subordinate who does have
such a motive and intended to bring about the adverse
employment action”); accord Staub v. Proctor Hosp., 131
S. Ct. 1186, 1192-94 (2011). Accordingly, even if the
transfer denials were adverse employment actions, the
plaintiffs have not provided enough evidence to show
that they were motivated by a retaliatory animus.
Finally, Brown claims that a supervisor drafted a
“negative summary of associate review” and a “perfor-
No. 12-1135 15
mance deficiency notice” that unfairly criticized her
conduct and, in turn, constituted retaliatory adverse
employment actions.2 At the outset, it is not clear
whether a negative performance review, standing
alone, can ever constitute a materially adverse employ-
ment action in the retaliation context. Compare Silverman
v. Bd. of Educ. of Chicago, 637 F.3d 729, 741 (7th Cir. 2011)
(“a negative performance evaluation could constitute
an adverse action within the meaning of the direct
method of proving retaliation”), with Davis v. Time Warner
Cable of Se. Wisc., L.P., 651 F.3d 664, 677 (7th Cir. 2011)
(“Performance improvement plans, particularly mini-
mally onerous ones like that here, are not, without
more, adverse employment actions.”), and Volovsek v. Wis.
Dep’t of Agric. Trade and Consumer Prot., 344 F.3d 680, 688
(7th Cir. 2003) (“disputed performance reviews . . . do not,
2
The plaintiffs have not actually provided these documents; the
only evidence they cite to prove their existence is a series of
selective excerpts to the deposition testimony of the supervisor
who allegedly wrote them. But “[t]he meaning of quoted
phrases often depends critically on the unquoted context.”
Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 669 (7th Cir. 2003).
As a result, it will often violate “the ‘best evidence’ rule of Fed.
R. Evid. 1002 and the ‘completeness’ rule of Fed. R. Evid. 106 to
present trial excerpts from a key document without intro-
ducing the document itself.” Id. (internal parentheses omitted).
Accordingly, it is unclear whether the deposition testimony
would even be enough to prove the existence of the docu-
ments at trial. But, because we can resolve the issue on
other grounds, we need not decide this question now.
16 No. 12-1135
themselves, amount to the kind of adverse employment
action that constitutes discrimination or retaliation”).
But we can set that issue aside for the purposes of this
case. As Brown acknowledges, the drafts of the negative
reviews “were never given to Brown or posted in her
personnel file,” (Appellants’ Br. at 19), and resulted in
no actual consequences for her. Even if these documents
could be considered adverse, we do not think they can
fairly be described as “materially” adverse. As a
result, the district court correctly granted summary
judgment on all of the plaintiffs’ claims.
III. C ONCLUSION
We A FFIRM the district court’s entry of summary judg-
ment in favor of the defendants.
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