Rae McCann v. Badger Mining Corporation ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2420
RAE MCCANN,
Plaintiff-Appellant,
v.
BADGER MINING CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18-cv-00073 — James D. Peterson, Chief Judge.
____________________
ARGUED APRIL 8, 2020 — DECIDED JULY 14, 2020
____________________
Before RIPPLE, BRENNAN, and SCUDDER, Circuit Judges.
RIPPLE, Circuit Judge. Rae McCann brought this action
against her former employer Badger Mining Company
(“Badger”) under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112, and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621–634. She al-
leged that Badger discriminated against her on the basis of
her age and disability when it failed to transfer her to a posi-
tion in a different department and when it eliminated her
2 No. 19-2420
position as part of a reduction in force. After discovery,
Badger moved for summary judgment on all claims. The dis-
trict court granted the motion.
Before us, Ms. McCann maintains only that the district
court erred in granting summary judgment to Badger on her
disability claim related to the elimination of her position.
Under the ADA, Ms. McCann was required to come forward
with evidence that, but for her disability, Badger would not
have eliminated her position. She did not meet that burden,
and we therefore affirm the judgment of the district court.
I
BACKGROUND
A.
Ms. McCann began her employment with Badger’s pre-
decessor, Atlas Resin Proppants (“Atlas”), at its Merrillan
1
West facility in September 2010. In early 2013, Ms. McCann
applied for and obtained a laboratory technician position in
the research and development (“R & D”) laboratory. At her
year-end evaluation for 2013, she received an overall ap-
2
praisal of “Right on Track.” However, her supervisor noted
some shortcomings in her ability to deal with conflict, work
with others, communicate, and problem-solve with her
coworkers. The review also noted some limitations in
1 Atlas, which was a company that produced coated sand products for
use in industrial applications, had three coating facilities: Taylor, Merril-
lan East, and Merrillan West. All of these facilities are located in Wiscon-
sin.
2 R.42-3 at 8.
No. 19-2420 3
Ms. McCann’s ability to perform new tasks and in her ability
3
to understand others’ roles in the department.
Until May of 2014, Cathleen Hegge supervised
Ms. McCann. Following Hegge’s departure, Erica Grant
oversaw R & D, and Kimberly Breid became Ms. McCann’s
direct supervisor. At the time, the R & D department con-
sisted of Breid, Weston Lewis (an engineer), and three labor-
atory technicians: Ms. McCann, Penny Higley, and Kory
Kowahl, who specialized in conductivity and calibration
tests. While she was Ms. McCann’s supervisor, Breid (and
other individuals on the management team) observed that
4
Ms. McCann had difficulties getting along with others.
Higley also had problems getting along with her coworkers.
On March 16, 2015, Grant and Breid gave Ms. McCann
5
her evaluation for calendar year 2014. Again, her overall rat-
6
ing was “Right on Track”; however, her rating in a number
of individual areas declined. For instance, she only “Some-
7
times” displayed mastery of “Ethics and Respect.” In this
3 See id. at 3 (noting that “[s]ome new things are alarming to Rae,
[ ](changes in documentation and routine) but she does get there” and
that “[Rae] does seek to understand others[’] jobs and challenges, but …
if an initial interaction does not go well on solving a conflict between the
two, Rae often gives up and resorts to talking it up to others”).
4 See R.57-1 ¶¶ 24–29.
5 See R.42-4.
6 Id. at 6.
7 Id. at 2.
4 No. 19-2420
category, it was noted that Ms. McCann could be blunt, did
not resolve disputes using the appropriate channels, and
8
needed to stay out of others’ disputes. Ms. McCann admits
that she had problems getting along with Higley, but main-
tains that she no longer had interpersonal problems once
9
Higley left Atlas sometime after June 2014.
Ms. McCann also received a “Sometimes” rating with re-
10
spect to “Communication.” The review noted that she had
a difficult time understanding instructions: “if everything
isn’t written down in the exact right order Rae will have
11
questions and not proceed until they are answered.” The
performance review also noted that she needed improve-
12
ment in finding solutions to problems.
In late 2014, there was a downturn in oil prices and, as a
result, a downturn in the demand for Atlas’s products. As of
March 15, 2015, Atlas reduced its production schedule and
requested that associates limit overtime hours. In a further
attempt to survive the downturn in business, Atlas merged
with Badger on April 1, 2015.
8 See id.
9 See Appellant’s Br. 47–48 (admitting that “there was some friction in
June of 2014 between Higley and McCann” and arguing that “Higley’s
employment with Badger Mining ended in 2014, as did McCann’s per-
ceived negativity”).
10 R.42-4 at 2.
11 Id.
12 See id. at 3.
No. 19-2420 5
Shortly after the merger, Ms. McCann began working on
the night shift. According to Ms. McCann, she requested the
13
change to avoid working with Kowahl. Kowahl had diffi-
14
culty controlling his temper, and his ire sometimes was di-
rected at Ms. McCann.
After the merger, Breid and Lewis (the R & D engineer)
“were responsible for performing a multitude of functions
within the R & D department,” including “mixing new
lab-batches of resin-coated products (a task which Higley
had performed before she resigned from her employment in
15
August of 2014).” Given Breid’s and Lewis’s other respon-
sibilities, Grant decided that someone else should be trained
to perform this task and arranged for Breid to teach
Ms. McCann batch mixing. According to Ms. McCann, this
training consisted of “a single, two hour training session
with Breid, during which Breid showed her how to mix a
16
batch.” Ms. McCann recounts that, “[a]fter [she] observed
Breid mixing a batch, McCann mixed a batch, alone, on her
17
next night shift.” “Breid was not present when [she] mixed
the batch and [she] did not ask Breid questions while mixing
the batch on the night shift. McCann found mixing the batch
to be easy and did not have any problems with mixing a
13 See R.67 ¶ 229.
14 See id. ¶¶ 216–18.
15 R.57-1 ¶¶ 46, 49.
16 R.67 ¶ 177.
17 Id. ¶ 178.
6 No. 19-2420
18
batch.” She further notes that the one batch she mixed “was
used by Badger,” and that she “was not informed of any
problems with the batch … or errors in the mixing proce-
19
dure.” Ms. McCann later inquired if Breid wanted her to
mix additional batches, but Breid told her “not to worry
about the batches and that McCann needed to work on the
20
ISO project.” Badger acknowledges that, “on one occasion
McCann completed one of the assigned recipes,” but ex-
plains that Ms. McCann “had numerous questions regarding
the timing, amounts, and chemicals used in the other recipes
which ultimately prevented her from completing them dur-
21
ing her shift.” Given this experience and “Breid’s past ex-
periences with McCann, Breid concluded both that McCann
could not competently and efficiently perform the mixing
responsibilities and that it was too time consuming to keep
22
repeating answers to the questions [she] raised.” Breid dis-
cussed the situation with Grant, and, “in approximately July
of 2015, Breid and Grant began discussing options for hav-
ing another laboratory technician—who could pick up the
task quickly and perform it independently—assist with mix-
23
ing batches, as well as performing other assigned tasks.”
18 Id. ¶ 179.
19 Id. ¶ 180.
20 Id. ¶183.
21 R.57-1 ¶ 55 (emphasis added).
22 Id. ¶ 56.
23 Id. ¶ 57.
No. 19-2420 7
Grant and Breid approached lab coaches Lisa Rodriguez
and Rhonda Miller to identify other employees who could
move into the R & D department to perform batch mixing.
Both Rodriguez and Miller recommended Nathan Co-
24
blentz. Coblentz had assisted in the R & D department on
occasion, had expressed an interest in R & D, and could
25
work independently. Acting on these recommendations,
26
Grant met with Coblentz on or about September 14, 2015,
to discuss his possible transfer. Grant wanted to transfer Co-
blentz immediately, but his present production team needed
his help to complete a work-instruction project.
Prior to Coblentz’s coming to the R & D department,
Ms. McCann had been experiencing pain and numbness in
her hands and, on September 2, 2015, sought treatment from
Dr. Richard Rogge. Dr. Rogge diagnosed Ms. McCann with
arthritis, ordered an x-ray, and confirmed changes in her
hands. He also noted that “[t]his certainly could be just oste-
oarthritis from the repetitive motion and then it may be just
27
warranted to treat this symptomatically.” Although
Dr. Rogge prescribed medication, he did not place any re-
strictions on Ms. McCann’s activities at that time.
Ms. McCann had a follow-up visit with a physician’s assis-
24 See id. ¶¶ 59–61.
25 See id. ¶ 63.
26 Coblentz testified that this conversation occurred approximately three
weeks before he started in R & D. See R.29 at 4 (Coblentz Dep. 14). He
began in R & D on October 5, 2015.
27 R.69-1 at 1.
8 No. 19-2420
tant in the orthopedics department on September 18; the
physician’s assistant noted “[b]ilateral hand degenerative
joint disease … and bilateral carpel tunnel syndrome, all
most likely related to overuse and some things she does for
28
work and occupation.” The physician’s assistant recom-
mended, among other steps, some initial testing for carpal
tunnel.
On September 21, 2015, Ms. McCann sent an email to
Breid and copied Grant and Julie Casperson from human
resources. In the email, Ms. McCann reported that she had
been diagnosed with arthritis and carpal tunnel syndrome
and that she would need time off for follow-up tests, ap-
pointments, and possibly two surgeries. She specifically re-
quested to take off three shifts for appointments between
September 30 and October 16. Casperson responded to
Ms. McCann, expressing regret Ms. McCann was having so
much pain in her hands and advising that Ms. McCann
probably should start some paperwork for family medical
leave and short-term disability. Casperson indicated that an-
other individual from human resources, Greta, would be in
touch with paperwork. Breid responded that Ms. McCann
could have the time off. Ms. McCann’s September 21 email
was the first notice to anyone at Badger about Ms. McCann’s
hand condition.
After Ms. McCann informed Breid and Casperson of her
hand condition, Casperson followed up with Breid to de-
termine whether Ms. McCann’s condition could be
28 R.69-2 at 2.
No. 19-2420 9
work-related. Breid responded that Ms. McCann had indi-
cated that her hands hurt worse after doing crush testing.
Because Ms. McCann was going to miss several days of
work in the upcoming weeks, and may have been out for
more extended periods of time, Grant believed that she
needed to transfer Coblentz to R & D on a more expedited
29
basis. On September 22, 2015, Grant sent an email to Breid
updating her on a conversation that she had had with Co-
blentz concerning his transfer; it states:
Nate was at Taylor today and I mentioned to
him that Rae would be in and out for the next
few months (I didn’t say why) and we might
need some help. I told him I didn’t want to
step on your toes and that I hadn’t officially
talked to you on this yet but that you would be
around tomorrow and we would discuss fur-
ther. He was very interested and just ask[ed]
that we keep Rhonda and Lisa in the loop if
this is something you decide would make
sense.
Hopefully I didn’t overstep my bounds here.
30
We can discuss further in the morning.
On October 5, 2015, Breid sent an email to McCann notifying
her that Coblentz had been formally transferred to R & D
and would be performing batch-mixing responsibilities.
29 See R.22 at 14 (Grant Dep. 55–56).
30 R.69-7.
10 No. 19-2420
Also in the late summer and early fall of 2015, manage-
ment at Badger continued to explore ways that it could cut
costs and increase efficiencies. Sometime in late August or
early September, a meeting was held during which members
of the leadership team discussed the possibility of layoffs
and had preliminary discussions about who might be laid
off. At that time, there was no formal list and “very limited”
discussions of individuals who eventually might have to be
31
laid off; Beth Nighbor, who was in charge of human re-
sources for Badger, does not recall Ms. McCann being men-
32
tioned. On September 2, Lori Phillipi, Co-President of the
Badger Advisory (leadership) Team, sent an email to other
members of management outlining the timeline for cost-
cutting measures. It read:
1) Have all cost cutting items to me by September
16. The Advisory team will be reviewing these
on September 17th.
2) Don’t wait to start implementing. Start knock-
ing off low hanging fruit.
3) Be ready to share your cost cutting ideas at the
next Advisory/Leader meeting on Oct 20. Also
share any ideas that you already implemented.
4) Any staff changes will be handle[d] with the
following timeline:
31 See R.48 at 7 (Nighbor Dep. 22–23).
32 See id. at 9 (Nighbor Dep. 32).
No. 19-2420 11
a. Have any staff reductions to Beth and
Lori by September 16th.
b. First consideration will be given to peo-
ple interested in early retirement. Those
will be defined by October 1st, so ad-
justments can be made on teams that
need to reduce staff. As always low per-
formers will be the ones let go if teams
have to reduce.
C. Packages will be developed for those losing
their jobs. All terminations will be an-
nounced on one day at the end of October.
33
Please keep this confidential!
On September 29, all Badger employees over the age of sixty,
including Ms. McCann, were offered an early retirement
34
package. The employees had two weeks to act on the offer.
33 R.42-18.
34 At the meeting in which Ms. McCann was offered early retirement,
she advised Casperson and Nighbor that she was having trouble with
her hands and told them that she had requested that Dave Goplin, in
Safety Personnel, raise the height of her work table. Casperson immedi-
ately followed up with an email to Goplin asking if Ms. McCann had had
“a conversation with you about some safety and ergonomic is-
sues/concerns a few weeks ago? If so, have you looked into them and
what is the status?” R.42-16. Goplin informed Casperson that he had as-
signed it to a subordinate who had failed to follow up. That same after-
noon, Goplin gave instructions for Ms. McCann’s table to be raised, and,
the following day, he informed Casperson that the task had been com-
pleted.
12 No. 19-2420
Ms. McCann initially indicated to Breid that Coblentz
would be “a great addition to the R & D group” and that she
35
“look[ed] forward to working with him!” However, the
day after Ms. McCann received the news of Coblentz’s trans-
fer (October 5), she went to Breid and asked if Coblentz was
replacing her. Breid informed Ms. McCann that the decision
to transfer Coblentz to R & D had been made earlier. The
timing of his transfer was designed “to ensure sufficient
coverage in the event McCann had to be away from work for
36
medical appointments.”
After this discussion, Ms. McCann went to speak to Cas-
person in human resources. Ms. McCann told Casperson
about the discussion she had had with Breid and asked Cas-
person if Coblentz was being brought in to replace her. Cas-
person told Ms. McCann that she did not know what was
going to happen with the R & D department and that she
(Ms. McCann) would need to discuss that with Grant. Cas-
person also inquired whether Ms. McCann might be inter-
ested in transferring back to production, where she had
worked before taking the position in R & D. Ms. McCann in-
dicated that she would be.
On October 12, Ms. McCann still had not responded to
Badger’s early retirement offer. Consequently, Casperson
emailed Ms. McCann to inquire whether she had made a de-
cision regarding the offer; Casperson also asked
Ms. McCann about her hands. Ms. McCann responded that
35 R.42-13.
36 See R.35 ¶ 13.
No. 19-2420 13
she had decided not to take the offer, reiterated that she was
interested in transferring out of R & D, and informed Cas-
person that “[m]y hands are feeling great since I got the in-
37
jections in them, so maybe that did the trick!!!”
In the end, only six individuals accepted the early retire-
ment packages, and involuntary staff reductions became
necessary. Badger management determined that thirty-three
positions across three facilities needed to be eliminated; this
number included one position in R & D. Grant made the de-
38
cision regarding the position to eliminate. In doing so, she
considered each R & D employee’s 2013 and 2014 perfor-
39
mance reviews, her own knowledge and observations, and
40
feedback from the team coaches. The layoff criteria in
Badger’s employee handbook dictated that she apply the fol-
lowing criteria in order of importance:
 required job functions for production
 voluntary layoffs
 work habits and attitude

41
prior work performance[.]
Grant, determined, and Ms. McCann admits, that Breid
and Lewis (the engineer) had experience that was critical to
37 R.36-3 at 1.
38 See R.22 at 10 (Grant Dep. 39).
39 See id. at 12 (Grant Dep. 46–48).
40 See id. at 10 (Grant Dep. 39–40).
41 R.37-4.
14 No. 19-2420
the R & D department and that they possessed skills that
Ms. McCann did not have. Grant also determined that
Kowahl’s services were necessary because he was responsi-
ble for performing conductivity testing, a task that
42
Ms. McCann never had performed by herself. Thus, Grant’s
ultimate decision was whether Ms. McCann or Coblentz
should be let go.
According to Grant, she considered each of their tech-
nical skills and concluded that Ms. McCann and Coblentz
were equally skilled with respect to lab testing, but that Co-
blentz was more skilled at batch mixing. She also believed
that, based on her past performance, Ms. McCann would not
be able either to adapt to the changes in Badger’s workforce
or to work with limited direction and instruction; Coblentz,
on the other hand, could “adapt to change, troubleshoot on
43
the fly, and work with limited direction.” Grant also relied
on the recommendation of Breid in making the decision.
Ms. McCann was notified on October 26, 2015, that her posi-
tion was being eliminated. Upon her separation, Badger
provided Ms. McCann a letter of reference; the letter de-
scribed Ms. McCann as “willing to learn and … a valuable
member of her team” and as “flexible, prompt and reliable
44
and quality focused.”
42 See R.30 at 25–26 (McCann Dep. 100–02).
43 R.37 ¶ 20.
44 R.67 ¶ 277.
No. 19-2420 15
B.
Ms. McCann filed the present action on February 2, 2018.
She alleged that Badger had discriminated against her based
on her disability and age when it eliminated her position
and failed to accommodate her. Following extensive discov-
ery, Badger moved for summary judgment on all claims. The
district court granted Badger’s motion.
Pertinent to the issues on appeal, the district court ob-
served that, to establish that she had suffered disability dis-
crimination, Ms. McCann had to show that she was disabled
within the meaning of the ADA, that she was otherwise
qualified to perform the essential functions of the job with or
without reasonable accommodation, and that her disability
caused the adverse job action.
Turning to the first element—whether Ms. McCann was
disabled—the district court noted that Ms. McCann had ar-
gued both that she was disabled and that Badger perceived
her as disabled. It concluded, however, that it did not need
to resolve this issue because Ms. McCann had not shown
that her disability was the reason Badger had eliminated her
position.
In reaching this conclusion, the district court considered
the evidence upon which Ms. McCann relied to establish
disability discrimination and concluded that it would not
support a finding of discrimination. This evidence included:
“suspicious timing,” with her departure following closely on
the heels of her revelation that she may need surgery; Badg-
er management’s discussion of how to handle Ms. McCann’s
hand issues; and evidence that Badger’s purported reasons
for retaining Coblentz were pretextual. With respect to pre-
16 No. 19-2420
text, the district court noted that, “[t]o create a genuine issue
of material fact on the issue of intent, McCann must demon-
45
strate that all of Badger Mining’s reasons are pretextual.”
Consequently, although the district court believed that there
was a genuine dispute of material fact whether Coblentz
possessed superior batch-mixing abilities, this disagreement
did not defeat summary judgment because Ms. McCann had
not come forward with evidence that Badger’s other reasons
for eliminating here position were pretextual. The district
court therefore granted Badger’s motion for summary judg-
ment.
Ms. McCann timely appealed.
II
DISCUSSION
On appeal, Ms. McCann pursues only her claim that
Badger eliminated her position because she was disabled.
“To prove a violation of § 12112(a), a plaintiff must show
that: (1) he is disabled; (2) he is otherwise qualified to per-
form the essential functions of the job with or without rea-
sonable accommodation; and (3) the adverse job action was
caused by his disability.” Monroe v. Ind. Dep’t of Transp., 871
F.3d 495, 503–04 (7th Cir. 2017) (quoting Roberts v. City of
Chi., 817 F.3d 561, 565 (7th Cir. 2016)). Although the parties
devote a significant portion of their submissions to the ques-
tion whether Ms. McCann is disabled, we need not resolve
that issue. Here, we agree with the district court that, even
45 R.96 at 24 (citing Garofalo v. Vill. of Hazel Crest, 754 F.3d 428, 439 (7th
Cir. 2014)).
No. 19-2420 17
assuming she is disabled, her disability was not the cause of
the adverse job action.
To establish causation, Ms. McCann concedes that she
“must show that … her employer would not have fired h[er]
46
but for h[er] actual or perceived disability.” “Under Ortiz v.
Werner Enterprises, Inc., the ultimate question in a discrimi-
natory employment termination case is ‘[w]hether a reason-
able juror could conclude that [the plaintiff] would have
kept his job if he [was not disabled], and everything else had
46 Appellant’s Br. 30 (citing Serwatka v. Rockwell Automation, Inc., 591
F.3d 957, 962 (7th Cir. 2010)). Prior to the ADA Amendments Act of 2008
(“ADAAA”), Pub. L. 110-325, 122 Stat. 3553, employers were liable for
their discriminatory acts taken “because of” an employee’s disability,
and we interpreted this language to require “but for” causation. See Mon-
roe v. Ind. Dep’t of Transp., 871 F.3d 495, 504 (7th Cir. 2017). “One of the
changes made to the statute under the ADAAA was to change the lan-
guage from prohibiting employers from discriminating ‘because of’ a
disability to prohibiting employers from discriminating ‘on the basis of’
a disability.” Id. Several of our sister circuits have determined that this
change in language has not altered the substantive standard, see Murray
v. Mayo Clinic, 934 F.3d 1101, 1106 n.6 (9th Cir. 2019); Natofsky v. City of
New York, 921 F.3d 337, 349–50 (2d Cir. 2019); Gentry v. E.W. Partners Club
Mgmt. Co., Inc., 816 F.3d 228, 234 (4th Cir. 2016); Lewis v. Humboldt Acqui-
sition Corp., Inc., 681 F.3d 312, 321 (6th Cir. 2012), but the question is still
technically an “open” one in our circuit, see Monroe, 871 F.3d at 504.
There seems little doubt that our sister circuits’ approach is the correct
one, see Bostock v. Clayton Cty., 2020 WL 3146686, at *4 (U.S. June 15, 2020)
(quoting University of Texas Southwestern Medical Center v. Nassar, 570 U.S.
338, 350 (2013), for the proposition that “the ordinary meaning of ‘be-
cause of’ is ‘by reason of’ or ‘on account of’”), however, we do not need
to resolve the issue. Here, “the parties … have not argued that another
causation standard should apply, so we will continue to apply the ‘but
for’ causation standard.” Monroe, 871 F.3d at 504.
18 No. 19-2420
remained the same.’” Graham v. Arctic Zone Iceplex, LLC, 930
F.3d 926, 929 (7th Cir. 2019) (alterations in original) (quoting
Ortiz v. Werner Enters. Inc., 834 F.3d 760, 764 (7th Cir. 2016)).
One way to meet this burden—and one method Ms. McCann
pursues—is for the plaintiff to “show[] that the stated rea-
sons for the firing were pretextual.” Id.
A.
“In evaluating pretext, ‘the question is not whether the
employer’s stated reason was inaccurate or unfair, but
whether the employer honestly believed the reason it has
offered to explain the discharge.’” Id. (quoting Monroe, 871
F.3d at 505). Pretext therefore “requires more than just
‘faulty reasoning or mistaken judgment on the part of the
employer’”; rather the plaintiff must show that the reason
given “is [a] lie, specifically a phony reason for some action.”
Id. (alteration in original) (quoting Monroe, 871 F.3d at 505).
With this standard in mind, we evaluate each of Badger’s
stated reasons,47 mindful that its reasons may be interrelated
or that one may be “so … suspicious” as to raise an inference
of discrimination. Russell v. Acme-Evans Co., 51 F.3d 64, 70
(7th Cir. 1995).
1.
Ms. McCann first submits that Badger’s assertion that
“she refused to or struggled to mix batches” is a “deliberate
47 Because we evaluate each of Badger’s reasons, we need not decide
definitively whether the district court took too crabbed a view of the evi-
dence by relying on Garofalo, 754 F.3d at 439. See supra note 45 and ac-
companying text.
No. 19-2420 19
48
falsehood.” According to Ms. McCann, Badger has changed
its rationale with respect to her batch-mixing skills. She
submits that Badger initially maintained that she “refused to
perform mixing tasks absent extremely detailed instructions
49
and constant guidance from her leaders”; however, it later
defended its actions on the ground that Ms. McCann had
50
“struggled” with batch mixing. She maintains that Badger’s
changing rationale constitutes evidence of pretext.
“Shifting and inconsistent explanations can provide a ba-
sis for a finding of pretext. But the explanations must actual-
ly be shifting and inconsistent to permit an inference of
mendacity.” Schuster v. Lucent Techs., Inc., 327 F.3d 569, 577
(7th Cir. 2003) (internal citation omitted). It is not enough
that an employer’s word choice or phraseology change over
time. See id. Here, Badger never argued that Ms. McCann
“refused” to do any task in an insubordinate manner. Its ar-
gument always has been that she could not perform batch
mixing “absent extremely detailed instructions and constant
51
guidance from her leaders.” Therefore, Badger’s rationale
did not shift in a way to suggest it was a pretext.
Ms. McCann also claims that she has raised a genuine is-
sue of material fact as to Badger’s conclusion that she “had
48 Appellant’s Br. 39.
49 See R.69-19 at 8 (response of Badger’s counsel to Ms. McCann’s charge
of discrimination).
50 See Appellant’s Br. 39.
51 R.69-19 at 8.
20 No. 19-2420
52
difficulty learning batch mixing responsibilities.” However,
Ms. McCann’s argument misses the mark. Pretext is not
shown when an employer is “wrong about its employee’s
performance, or [is] too hard on its employee,” but when the
employer’s proffered reason is “a lie.” Ineichen v. Ameritech,
410 F.3d 956, 961 (7th Cir. 2005) (quoting Ransom v. CSC Con-
sulting, Inc., 217 F.3d 467, 471 (7th Cir. 2000)). Here, after
Breid trained Ms. McCann in batch mixing, Breid concluded
that Ms. McCann could not perform this task efficiently and
53
did not ask Ms. McCann to perform this task again. Indeed,
Breid began to look for a lab technician who could perform
batch mixing, and Coblentz was recruited to perform that
function. Once in R & D, Coblentz spent twelve to sixteen
hours per week performing that task and considered himself
54
“the batch mixer.” Consequently, regardless whether
Breid’s assessment of Ms. McCann’s batch-mixing skills was
accurate, Breid’s subsequent actions establish that her belief
was genuinely held: Breid did not believe Ms. McCann
could fulfill those responsibilities and sought out another lab
55
technician to do so.
52 Appellant’s Br. 39–40.
53 R.67 ¶¶ 182–83 (“After mixing a batch in July, 2015, McCann asked if
they wanted her to mix any more batches. … In response to McCann’s
question, Breid told McCann no, not to worry about the batches … .”).
54 R.29 at 7, 10 (Coblentz Dep. 25, 40).
55 In her reply, Ms. McCann acknowledges that a mere disagreement
regarding her performance “would not be sufficient to support a finding
of pretext.” Reply Br. 12. She claims, however, that “the factual asser-
tions” on which Badger based its assessment “are untrue and represent
(continued … )
No. 19-2420 21
2.
Ms. McCann also claims that Badger’s other reasons for
choosing to eliminate her position instead of Coblentz’s —
that she lacked self-direction and troubleshooting skills—
56
were “implausible and unworthy of credence.” With re-
spect to the first, she admits that, when she first started with
57
R & D, “she had a learning curve.” Nevertheless, she sub-
( … continued)
things that did not happen, which can properly support a finding of pre-
text.” Id. With respect to batch mixing, Ms. McCann states that she “was
asked to and did mix a single batch, alone, on her night shift. McCann
did not ask any questions while mixing the batch. McCann found the
batch mixing to be easy and performed it without any problem.” Appel-
lant’s Br. 40 (internal citations omitted). She claims this is “directly con-
trary to what Breid said—that McCann had multiple questions while
mixing a batch on her own and could not complete other batch mixing
assignments.” Id. However, looking closely at the parties’ statements,
there is no inconsistency. Ms. McCann’s statement focuses on her suc-
cessful completion of a single batch. Breid acknowledges that
Ms. McCann successfully mixed a single batch. R.57-1 ¶ 55 (noting that
“on one occasion McCann completed one of the assigned recipes”). Breid
asserts that Ms. McCann, however, had numerous questions regarding
the timing, amounts, and chemicals used in the other recipes. Id.
Ms. McCann asserts that she “did not ask Breid questions while mixing
the batch on night shift.” R.67 ¶ 179. However, Breid does not assert that
Ms. McCann asked her (Breid) questions while on the night shift. Instead,
Breid states that Ms. McCann had questions that could not be answered
during Ms. McCann’s night shift (because Ms. McCann worked alone)
and that these lingering questions “prevented her from completing [the
other batches] during her shift.” R.57-1 ¶ 55.
56 Appellant’s Br. 41.
57 Id.
22 No. 19-2420
mits that, if she had lingering problems in this area, Badger
would not have allowed her to transfer to the night shift
where she was “unsupervised and without any assistance
58
available.”
Badger’s acquiescence to Ms. McCann’s transfer request,
however, does not raise a material fact regarding the veraci-
ty of its belief that Ms. McCann had difficulties with
self-direction or troubleshooting. In her review for 2014,
which was given to Ms. McCann in March 2015, Breid noted
that, “if everything isn’t written down in the exact right or-
der[,] Rae will have questions and not proceed until they are
59
answered.” The performance review also noted that she
60
needed improvement in finding solutions to problems.
Moreover, in her deposition, Ms. McCann acknowledged
that, as of March 15, 2015, she understood that Breid had
concerns about her ability to take initiative and to complete
61
tasks without detailed instructions. If she were provided
with detailed instructions and confined to known tasks, she
could do those alone without supervision. Indeed, as of
summer 2015, Ms. McCann was doing almost exclusively
crush-testing, a task that she was able to perform on her
own, without direct supervision.
58 Id.
59 R.42-4 at 2.
60 See id. at 3.
61 See R.30 at 25 (McCann Dep. 99).
No. 19-2420 23
3.
Ms. McCann not only maintains that the reasons given
for the elimination of her position were pretextual, she also
contends that Badger lied concerning the criteria that it em-
ployed in reducing its workforce. She notes that “work hab-
its and attitude” were among the stated criteria employed to
determine who would be retained and who would be let
62
go. Ms. McCann submits, however, that if Badger truly had
been concerned with employees’ attitudes, Kowahl and Co-
blentz, who had issues with their coworkers, should have
63
been laid off before her. Again, however, Ms. McCann’s ar-
gument is not supported by the record.
In making layoff determinations, Grant “adhered to the
layoff criteria as identified in [Badger’s] Associate Hand-
64
book.” The Handbook identifies “the following criteria in
order of importance: [r]equired job functions for production[,]
voluntary layoffs[,] work habits and attitude[, and] prior
65
work performance.” Looking at “required job functions for
production” or expertise, it is undisputed that Kowahl per-
formed all of the conductivity and calibration tests for the
66
R & D department. Ms. McCann admits that Kowahl was
62 R.37-4.
63 See Appellant’s Br. 45–46.
64 R.37 ¶ 15.
65 R.37-4 (emphasis added).
66 See R.57-1 ¶¶ 118–20.
24 No. 19-2420
67
“more proficient” in these areas and that she never had
68
performed conductivity testing on her own. Thus, unlike
Ms. McCann, Kowahl “possessed unique areas of expertise,
69
which were required in the R & D Department.”
Additionally, there is no evidence in the record that
Grant was aware of Coblentz’s interpersonal problems. Alt-
hough other individuals at Badger—specifically Julie Cas-
person in human resources and Lisa Rodriguez—knew that
Coblentz had encountered difficulties working with a
coworker, Judy Thronson, Grant testified that, at the time
she made the layoff decision, she had not been made aware
of these difficulties.
Ms. McCann maintains that Grant’s statement simply is
not credible, that Casperson and Rodriguez must have pro-
vided this information to Grant, and that the district court
made an improper credibility determination in concluding
otherwise. At the summary judgment stage, however, it is
not sufficient for a plaintiff, who bears the ultimate burden
of proof at trial, simply to assert that a jury may disbelieve
the defendant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256–57 (1986) (“We do not understand [our caselaw], how-
ever, to hold that a plaintiff may defeat a defendant’s
properly supported motion for summary judgment … with-
out offering any concrete evidence from which a reasonable
juror could return a verdict in his favor and by merely as-
67 See Appellant’s Br. 46.
68 See R.30 at 25 (McCann Dep. 100).
69 R.37 ¶ 16.
No. 19-2420 25
serting that the jury might, and legally could, disbelieve the
defendant’s denial … .”). “Instead, the plaintiff must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment. This is true even where the
evidence is likely to be within the possession of the defend-
ant, as long as the plaintiff has had a full opportunity to
conduct discovery.” Id. at 257. Ms. McCann does not come
forward with any testimony from Casperson or Rodriguez,
both of whom she deposed, that calls Grant’s testimony into
doubt. Indeed, Rodriguez testified that, when Breid and
Grant approached her about finding a lab technician that
would be a “good fit” in R & D, she recommended Co-
70
blentz. The undisputed evidence in the record is that Grant
had no knowledge that Coblentz had any of the interperson-
al problems that Ms. McCann had evidenced in her years
71
with Badger. Consequently, there is no basis on which to
conclude that Badger’s application of its layoff criteria was
pretextual or that its proffered reasons for eliminating
Ms. McCann’s position were pretextual.
B.
In addition to arguing that Badger’s reasons were pre-
textual, Ms. McCann maintains that the timing in her case is
70 See R.28 at 7 (Rodriguez Dep. 27–28).
71 Moreover, even if Ms. McCann were able to establish that Grant was
aware of Coblentz’s interpersonal problems, that evidence would not
undermine Grant’s conclusion, supported by Breid, that Coblentz would
be better able to fill the needs of the R & D department because he was
self-directed and could perform a greater range of tasks than
Ms. McCann without constant supervision.
26 No. 19-2420
suspicious and therefore supports an inference that her posi-
tion was eliminated because of her disability. We have held,
repeatedly, that “‘suspicious timing alone is rarely enough
to survive summary judgment’ particularly when ‘there are
reasonable, non-suspicious explanations for the timing of
[the] termination.’” Milligan-Grimstad v. Stanley, 877 F.3d 705,
711 (7th Cir. 2017) (alteration in original) (quoting Morgan v.
72
SVT, LLC, 724 F.3d 990, 998 (7th Cir. 2013)).
72 As an initial matter, Ms. McCann quotes Loudermilk v. Best Pallet Co.,
LLC, 636 F.3d 312, 315 (7th Cir. 2011), for the proposition that whether
timing is suspicious and allows an inference of discrimination is a ques-
tion for “[a] jury, not a judge.” However, in making this assertion,
Ms. McCann takes the Loudermilk quote out of context. In that case,
Loudermilk had handed his supervisor a note complaining about dis-
crimination, and his supervisor had fired him on the spot. In discussing
whether the timing of the termination was suspicious, this court stated:
The discharge’s timing also could support an adverse in-
ference by a reasonable trier of fact. Suspicious timing
may be just that—suspicious—and a suspicion is not
enough to get past a motion for summary judgment. See
Lewis v. Chicago, 496 F.3d 645, 656 (7th Cir. 2007). Occa-
sionally, however, an adverse action comes so close on
the heels of a protected act that an inference of causation
is sensible. See, e.g., Clark County School District v.
Breeden, 532 U.S. 268, 273 (2001) (“very close” temporal
proximity can suffice); Casna v. Loves Park, 574 F.3d 420,
427 (7th Cir. 2009); Spiegla v. Hull, 371 F.3d 928, 943 (7th
Cir. 2004); McClendon v. Indiana Sugars, Inc., 108 F.3d 789,
796–97 (7th Cir. 1997). Deciding when the inference is
appropriate cannot be resolved by a legal rule; the an-
swer depends on context, just as an evaluation of context
is essential to determine whether an employer’s explana-
tion is fishy enough to support an inference that the real
(continued … )
No. 19-2420 27
Here, Ms. McCann’s revelation of her hand condition
must be considered against the background of the reduction
in force, the early retirement program, and the search for a
lab tech who could perform batch mixing. Turning first to
the reduction in force, it is undisputed that, by September 2,
2015, a preliminary plan and timeline had been established
for staffing reductions: first early retirement packages would
be offered and then further reductions would be made based
on performance; team leaders were asked to provide cost-
cutting measures by September 16. Grant provided her pro-
posed measures for the R & D department on September 10.
Consistent with the guidelines set forth on September 2—
that early retirement would be offered before determining
performance-based reductions—Grant noted that
73
Ms. McCann “could be an option for early retirement.”
Thus, the potential elimination of Ms. McCann’s position
was on the table prior to her giving notice of her hand issues;
however, it was tied to the first stage of Badger’s reduction
plan—early retirement—as opposed to the second stage—
( … continued)
reason must be discriminatory. The district court’s ap-
parent belief that timing never supports an inference of
causation is untenable. The closer two events are, the
more likely that the first caused the second. We think that
an inference of causation would be reasonable here. A jury,
not a judge, should decide whether the inference is ap-
propriate.
Id. (second emphasis added) (parallel citations omitted). Thus, it was the
unique facts of Loudermilk that made submission to the jury appropriate.
73 R.42-19 at 2.
28 No. 19-2420
performance-based staffing reductions. On September 29,
early retirement packages were extended to qualifying em-
ployees, including Ms. McCann. When Badger received the
tepid response to its offers, it became necessary to consider
more reductions on other bases. It therefore is not “suspi-
cious” that Ms. McCann’s position—and those of other em-
ployees—were identified for elimination in early October.
Ms. McCann also claims that Coblentz’s transfer to
R & D, which came close on the heels of her announcement
of her hand problems, evinces Badger’s motive to replace
her because of her disability. However, Grant, Rodriguez,
and Coblentz all testified that the process for hiring him into
the R & D department was prompted by the department’s
need for a batch mixer, that the process began in the summer
of 2015, and that it was completed prior to Ms. McCann’s
announcement that she was experiencing problems with her
74
hands. The transfer was delayed because of an on-going
project with which Coblentz was involved in his current po-
sition. However, when Badger was made aware of
Ms. McCann’s need to miss work for appointments and pos-
sible surgeries, the timeline for the transfer was expedited as
74 See R.22 at 8–9 (Grant Dep. 32–33) (describing a process of recruiting a
lab technician that began in “the summer of 2015,” receiving Rodriguez’s
recommendation of Coblentz “in August” of 2015, but initially delaying
his transfer to R & D until a work-instruction project was finished); R.28
at 7 (Rodriguez Dep. 28) (stating that she recommended Coblentz “a few
months before he actually got that position”); R.29 at 3–4 (Coblentz Dep.
12–14) (describing an interview with Grant three weeks before he was
transferred “in late September or the beginning of October”).
No. 19-2420 29
Grant explains in an email to Breid on September 22, 2015; it
states:
Nate was at Taylor today and I mentioned to
him that Rae would be in and out for the next
few months (I didn’t say why) and we might
need some help. I told him I didn’t want to
step on your toes and that I hadn’t officially
talked to you on this yet but that you would be
around tomorrow and we would discuss fur-
ther. He was very interested and just ask[ed]
that we keep Rhonda and Lisa in the loop if
this is something you decide would make
sense.
Hopefully I didn’t overstep my bounds here.
75
We can discuss further in the morning.
Ms. McCann reads this email differently; she maintains
that it establishes that Coblentz’s transfer was conceived of,
as opposed to merely effectuated, after her announcement.
As the nonmoving party, she believes that she is entitled to
this inference and that the inference raises a jury question.
However, a plaintiff is entitled to “reasonable inferences” from
the evidence, not those “supported by only speculation or
conjecture.” King v. Hendricks Cty. Comm’rs, 954 F.3d 981, 984
(7th Cir. 2020) (emphasis added). Reading the email as ex-
pediting the transfer process is consistent with the testimony
of every witness who was personally involved with Co-
blentz’s transfer; Ms. McCann’s reading, on the other hand,
75 R.69-7.
30 No. 19-2420
is based solely on “speculation and conjecture.” It does not
raise a question to be resolved by a jury.
C.
Finally, Ms. McCann maintains that there are “ambigu-
ous statements of animus” from which disability discrimina-
76
tion can be inferred. Specifically, she invites our attention
to a number of emails between Badger human resources and
management personnel discussing her hand condition.
These reveal, for instance, that Casperson (from human re-
sources) asked Breid whether Ms. McCann’s condition might
77
be work-related, that Casperson attempted to replicate the
crush test to determine if the repetitive motion caused
78
Ms. McCann’s injury, and that Breid was trying to ensure
coverage in the R & D department during the time that
79
Ms. McCann was out for her medical appointments. These
emails, however, reveal nothing more than knowledge of
Ms. McCann’s health condition, a concern for the origin of
her injury, and an attempt to cover any labor shortages re-
sulting from her absences. An employer’s knowledge of, and
conscientious responses to, an employee’s disability are not
evidence of discrimination.
76 Appellant’s Br. 55.
77 R.67 ¶ 98.
78 Id. ¶ 114.
79 Id. ¶ 123.
No. 19-2420 31
Conclusion
Ms. McCann has not come forward with evidence from
which a reasonable jury could conclude that “but for” her
disability, her position would not have been eliminated.
Summary judgment in favor of Badger was appropriate, and
we affirm the judgment of the district court.
AFFIRMED