Denise Coleman v. Patrick R. Donaho , 667 F.3d 835 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3694
D ENISE C OLEMAN,
Plaintiff-Appellant,
v.
P ATRICK R. D ONAHOE, Postmaster General,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-03824—David H. Coar, Judge.
A RGUED S EPTEMBER 14, 2011—D ECIDED JANUARY 6, 2012
Before W OOD , T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. In 2006, the United States
Postal Service terminated plaintiff Denise Coleman’s
32 years of employment as a mail processing clerk. The
Postal Service contends that it fired Coleman because
she told her psychiatrist she was having thoughts of
killing her supervisor, and it believed she posed a
danger to her fellow employees. Coleman alleges
that her termination was discriminatory (she is African-
2 No. 10-3694
American and a woman) and retaliatory (she had previ-
ously complained, both formally and informally, of
discriminatory treatment). In support of her disparate
treatment claims under Title VII of the Civil Rights Act
of 1964, Coleman presented evidence that two white
male employees at the same facility had recently threat-
ened another employee at knife-point, yet received
only one-week suspensions from the same manager
who fired her.
The district court found that these comparator em-
ployees were not similarly situated to Coleman because
they had different direct supervisors and held different
positions. Coleman therefore failed, in the district
court’s view, to establish a prima facie case of discrim-
ination under the “indirect method” of proof derived
from McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The district court also held that Coleman had not
provided any evidence that the Postal Service’s stated
reason for firing her — that she violated its rule pro-
hibiting workplace violence and threats — was pre-
textual. The district court therefore granted the Postal
Service’s motion for summary judgment on all claims.
Coleman appeals.
We reverse summary judgment on Coleman’s discrim-
ination claims and her retaliation claims. This appeal
raises two recurring questions concerning comparator
evidence in employment discrimination cases using the
indirect method of proof: First, just how alike must com-
parators be to the plaintiff to be considered similarly
situated? Second, can evidence that a similarly situated
No. 10-3694 3
employee received better treatment serve not only as
an element of the plaintiff’s prima facie case, but also
satisfy the plaintiff’s burden to show that the employer’s
legitimate nondiscriminatory reason for its action
was pretextual?
For the first question, we reiterate here that the similarly-
situated inquiry is flexible, common-sense, and factual.
It asks “essentially, are there enough common features
between the individuals to allow a meaningful compari-
son?” Humphries v. CBOCS West, Inc., 474 F.3d 387, 405
(7th Cir. 2007), aff’d, 553 U.S. 442 (2008). There must be
“sufficient commonalities on the key variables between
the plaintiff and the would-be comparator to allow the
type of comparison that, taken together with the other
prima facie evidence, would allow a jury to reach an
inference of discrimination.” Id. In other words, the
proposed comparator must be similar enough to permit
a reasonable juror to infer, in light of all the circum-
stances, that an impermissible animus motivated
the employer’s decision. Here, Coleman’s two white,
male co-workers were disciplined by the same decision-
maker, subject to the same code of conduct, and dis-
ciplined more leniently for violating the same rule as
she. Their case is close enough to Coleman’s to provide
a “meaningful comparison” and to permit a reasonable
jury to infer discrimination. Id.
The answer to the second question is yes. In McDonnell
Douglas itself, the Supreme Court noted that comparator
evidence would be “[e]specially relevant” at the pretext
stage. 411 U.S. at 804. Under our circuit precedents, too,
4 No. 10-3694
an employment discrimination plaintiff may demon-
strate pretext by providing evidence that a similarly
situated employee outside her protected class received
more favorable treatment. Coleman has done so. The
evidence of selective application of the rule against vio-
lence and threats to Coleman — whose confidential ex-
pressions of anger during inpatient psychotherapy were
not direct threats at all, and who was discharged as
stable before the Postal Service even heard about those
thoughts — undercuts the Postal Service’s assertion that
it was just neutrally enforcing its “no tolerance” policy.
Together with other evidence calling into ques-
tion the honesty of the Postal Service’s rationale,
Coleman’s comparator evidence presents a jury ques-
tion as to pretext.
I. Factual and Procedural Background
In assessing whether the Postal Service is entitled to
summary judgment, we examine the record in the
light most favorable to Coleman, the non-moving party,
resolving all evidentiary conflicts in her favor and ac-
cording her the benefit of all reasonable inferences
that may be drawn from the record. O’Leary v. Accretive
Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). Our
account of the facts therefore is not necessarily true in
an objective sense, but reflects the standard that applies
to motions for summary judgment.
Coleman began working for the Postal Service in 1974.
She had a good employment record until January 2005,
when her longtime supervisor retired. William Berry was
No. 10-3694 5
selected as the replacement by William Sove, the plant’s
maintenance manager. Sove is white; Berry is black.
Coleman believed Sove had passed over her for the
promotion because she was female. She also felt Berry
was treating her poorly in his new supervisory role.
She related these complaints in an April 2005 email to
Gregory Johnson, the head of the facility where she
worked. The following month, Coleman emailed Sove,
accusing him and Berry of discrimination and
threatening to file a charge with the Equal Employment
Opportunity Commission (EEOC).
On June 5, 2005, Coleman learned that she would soon
undergo surgery. Two days later, she submitted a
request to Johnson and Sove to advance her two weeks
of future paid sick leave for her convalescence. The
same day, Berry directed Coleman to clean an especially
dingy area behind a storeroom and to move some
heavy boxes — tasks, she says, that were not among
her regular duties. Coleman refused, telling Berry that
she was unable to lift the boxes because of her up-
coming surgery and that the storeroom’s chemicals
and dust would exacerbate her chronic asthma. Berry
issued Coleman a “Letter of Warning” for failing to
follow instructions. On June 9, 2005, Johnson denied
her request for advanced sick leave.
As scheduled, Coleman had surgery on June 10, 2005.
She returned to work on June 23, 2005, subject to the
medical restriction that she avoid climbing stairs for
two weeks. Because Coleman’s usual work station was
up one flight of stairs, Berry informed her that she
6 No. 10-3694
could work in the ground-floor storeroom, but because
of her asthma this was not an attractive alternative to
Coleman. When she rejected it, Berry sent her home.
She returned to the mail facility a week later with
revised medical restrictions permitting her to climb
stairs once or twice per day. But Berry then told
Coleman that all employees had to clock in using a par-
ticular time-clock — a change that would require her
taking more than the maximum stairs she was advised
to ascend. She again left work. The following week,
Berry issued Coleman an absent-without-leave notice
because she had not worked or announced her absence
in five days. As this conflict unfolded, Coleman filed
an EEO request for pre-complaint counseling on June 21,
2005, identifying Berry and Sove as the discriminating
officials. She supplemented her request with additional
information on July 1, 2005.
On July 12, 2005, Coleman checked herself into the
psychiatric unit of a hospital complaining of depression,
anxiety, and insomnia. In her admission interview,
Coleman experienced “severe crying spells, helpless-
ness, [and] hopelessness with suicidal ideation.” The
treating psychiatrist, Dr. Ofelia Ionescu, observed
Coleman’s “extremely paranoid/obsessional thinking
about being harassed by her supervisor, Mr. Berry,” and
she described Coleman as “endorsing . . . homicidal
ideation ‘every time I’m talking about him [Berry].’ ”
Coleman remained at the hospital for three weeks while
she received talk therapy and various medication. The
course of treatment did her good. When she was dis-
charged on August 3, 2005, Coleman displayed “a
No. 10-3694 7
marked reduction in depression and in particular the
paranoid symptoms” and “a reasonable control for her
anger and aggression.” In her final report, Dr. Ionescu
described Coleman as a “model patient” in “stable”
condition: “Alert, awake, . . . oriented . . . cooperative,
[and] pleasant . . . . No formal thought disorder. Affect
was reactive, smiling. Mood was ‘good.’ There were no
reports of delusions[,] . . . hallucinations[,] . . . [or] suicidal
or homicidal ideation.”
But on the day of Coleman’s discharge, Dr. Ionescu
returned a phone call from Berry, who had called to
ask about Coleman’s treatment. In her final report,
Dr. Ionescu wrote: “I did inform Mr. Berry that I am not
discussing with him about [sic] my patient; but it was
considered to be my responsibility [sic] as the
patient’s physician to warn him that my patient had
been expressing threats to his life in my presence.” The
content and form of these “threats” remain something of
a mystery: the record contains no elaboration from
Dr. Ionescu beyond the vague “homicidal ideation”
language in the discharge report. Coleman claims she
never formed any plan to harm Berry and that a “language
barrier” caused Dr. Ionescu, whom she described as
“a foreigner,” to “take me literally.” Coleman Dep. 82.
Berry immediately relayed the phone conversation
with Dr. Ionescu to Sove and another upper-level
manager, Charles Von Rhein. That same day, the day
that Coleman was released, the three managers then
decided to place her in “emergency off-duty status”
without pay. Two weeks later, Berry notified the police.
8 No. 10-3694
According to the police report, Berry explained that the
Postal Service was “in the process of terminating
Coleman,” and Berry wanted to “document the threat.”
In October 2005, the Postal Service did an internal in-
vestigation. Berry told a postal inspector that “he
hoped that Coleman would get better and maybe return
to work one day.” Although Berry would later claim
that he was “frightened, afraid and scared” by what he
took to be “a very credible threat,” he did not express
such fears to either the police or the Postal Service in-
vestigators. He also failed even to mention Coleman’s
supposed threat in an email about his conflict with her,
though he sent it just days after his phone call with
Dr. Ionescu.
While off-duty, Coleman filed two formal EEOC com-
plaints. The first, lodged on August 13, 2005, alleged
that Berry, Sove, and Von Rhein had discriminated
against her on the basis of race and sex by refusing
to accommodate her post-surgery medical restrictions
and by denying her request for advanced sick leave.
The second charge, filed on December 8, 2005, claimed
that Berry and Von Rhein placed Coleman on off-duty
status because of disability- and sex-discrimination and
to retaliate against her for her first EEOC complaint.
Meanwhile, the Postal Service’s own investiga-
tion proceeded. According to the postal inspector’s in-
vestigative memorandum of October 11, 2005, Coleman
admitted she had told her psychiatrist that she felt
suicidal and homicidal, but said she had never hurt
anyone or formed any sort of plan to harm Berry. As part
No. 10-3694 9
of the internal investigation, Coleman also participated
in a telephone interview with Von Rhein on December 13,
2005. She confirmed having had “homicidal thoughts”
about Berry, but indicated that she was continuing in
outpatient therapy and was ready to return to work.
Von Rhein told Coleman that she had failed to provide
documentation of her improved conditions. On Decem-
ber 20, 2005, a psychiatric resident then treating Coleman
faxed Sove to confirm that she was “stable” and “able
to return to her work duties,” provided it was not
“under the supervision of . . . Berry.”
On January 13, 2006, Coleman was fired. Von Rhein and
Sove both signed the “Notice of Removal,” which stated
that the termination was based on “unacceptable
conduct, as evidenced by your expressed homicidal
ideations toward a postal manager.” The notice stated
that by having voiced her threats toward Berry, Coleman
had violated the Postal Service’s ban on “Violent
and/or Threatening Behavior.” The rule provides: “it is
the unequivocal policy of the Postal Service that there
must be no tolerance of violence or threats of violence
by anyone at any level of the Postal Service.”
The notice also informed Coleman of her right to file
a grievance challenging her removal, and she did so.
The matter proceeded to arbitration a year later. In
the hearing, her union challenged the Postal Service’s
characterization of Coleman’s statements as “a true
threat” and contended that the more appropriate
action would have been to refer her for a fitness-for-
duty examination. The arbitrator agreed, finding that
10 No. 10-3694
the Postal Service had lacked “just cause” to terminate
Coleman because it could not prove that she “actually
had an intent to harm Mr. Berry.” Considering that
“psychological illness” was the cause of Coleman’s
“aberrant behavior,” and given her “length of satisfactory
employment,” the arbitrator concluded that a fitness-for-
duty examination “would have been a more reasonable
course for the Service to follow.” The arbitrator ordered
Coleman reinstated, pending successful completion of
a fitness-for-duty exam. The arbitrator declined to award
back pay, however, because he could not determine
when Coleman first became qualified to return to work.
Coleman passed her fitness-for-duty exam and resumed
her duties at the Postal Service facility on September 1,
2007, roughly two years after she was suspended. During
this period, Coleman pursued her two EEOC charges
against the Postal Service. An administrative law
judge denied both complaints, and the EEOC rejected
Coleman’s consolidated appeals on April 28, 2009.
Coleman then filed this suit alleging that the Postal
Service had discriminated against her on the basis of
race, sex, and disability by placing her on off-duty
status and terminating her, and had retaliated against
her for reporting discrimination. Coleman also alleged
that the Postal Service violated the Rehabilitation Act
by failing to accommodate her disability.
Following discovery, the district court granted the
Postal Service’s motion for summary judgment in its
entirety. Its judgment on Coleman’s discrimination and
retaliation claims rested on three grounds: First, the
No. 10-3694 11
court held that Coleman had failed to establish a prima
facie case under the McDonnell Douglas “indirect” method
of proof because she had not identified any similarly
situated employees outside of her protected classes
who were treated more favorably. Second, the district
court determined that Coleman had offered no evidence
of pretext. Third, the district court held that Coleman
had not presented sufficient direct or circumstantial
evidence of discriminatory or retaliatory animus
under Title VII’s “direct” method of proof.
Coleman appeals from summary judgment on her Title
VII claims of race and sex discrimination and retaliation.
She does not seek review of summary judgment on
her disability claims. We consider first the race and sex
discrimination claims, and then the retaliation claims.
II. Discrimination Claims
Title VII makes it unlawful for an employer to dis-
charge or discipline an employee because of that person’s
race or sex, among other grounds. 42 U.S.C. § 2000e. In a
disparate treatment case such as this one, a plaintiff may
prove discrimination either directly or indirectly.
See Silverman v. Board of Educ. of the City of Chicago, 637
F.3d 729, 733 (7th Cir. 2011). Under the “direct method,”
the plaintiff may avoid summary judgment by pre-
senting sufficient evidence, either direct or circum-
stantial, that the employer’s discriminatory animus
motivated an adverse employment action. Of course,
“smoking gun” evidence of discriminatory intent is hard
to come by. See United States Postal Service Board of Gover-
12 No. 10-3694
nors v. Aikens, 460 U.S. 711, 716 (1983) (“There will seldom
be ‘eyewitness’ testimony as to the employer’s mental
processes.”). So in a line of cases beginning with
McDonnell Douglas, the Supreme Court developed a
burden-shifting framework known as the “indirect meth-
od” of proof, designed to “sharpen the inquiry into the
elusive factual question of intentional discrimination.”
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
255, n.8 (1981). Coleman has attempted to establish dis-
crimination through both the direct and indirect
methods of proof. Because she presented sufficient evi-
dence to survive summary judgment under the
indirect method, there is no need to evaluate her dis-
crimination claims under the direct method.
A. The McDonnell Douglas Framework
Under the indirect method, the plaintiff carries “the
initial burden under the statute of establishing a prima
facie case of . . . discrimination.” McDonnell Douglas,
411 U.S. at 802. To establish a prima facie case of discrimi-
nation a plaintiff must offer evidence that: “(1) she is a
member of a protected class, (2) her job performance
met [the employer’s] legitimate expectations, (3) she
suffered an adverse employment action, and (4) another
similarly situated individual who was not in the
protected class was treated more favorably than the
plaintiff.” Burks v. Wisconsin Dep’t of Transportation, 464
F.3d 744, 750-51 (2006). Once a prima facie case is estab-
lished, a presumption of discrimination is triggered.
“The burden then must shift to the employer to articulate
No. 10-3694 13
some legitimate, nondiscriminatory reason” for its action.
McDonnell Douglas, 411 U.S. at 802; see Burks, 464 F.3d
at 751. When the employer does so, the burden shifts
back to the plaintiff, who must present evidence that the
stated reason is a “pretext,” which in turn permits an
inference of unlawful discrimination. McDonnell Douglas,
411 U.S. at 804; see Burks, 464 F.3d at 751.
The Postal Service concedes for purposes of summary
judgment that Coleman has satisfied the first three ele-
ments of her prima facie case: (1) she is a member of
two protected classes (race and sex); (2) her job perfor-
mance was satisfactory; and (3) the Postal Service sub-
jected her to two adverse employment actions (place-
ment on emergency off-duty status and then termination).
The Postal Service disputes the fourth element, arguing
that the white, male co-workers Coleman identified
as receiving more favorable treatment were not similarly
situated as a matter of law. The Postal Service has also
offered a non-discriminatory reason for terminat-
ing Coleman — it claims she violated its code of
conduct — but Coleman contends that this reason is
pretextual.
B. Similarly Situated Co-workers
The similarly-situated analysis calls for a “flexible,
common-sense” examination of all relevant factors.
Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007). “All
things being equal, if an employer takes an action
against one employee in a protected class but not
another outside that class, one can infer discrimination.
14 No. 10-3694
The ‘similarly situated’ prong establishes whether all
things are in fact equal.” Filar v. Board of Educ. of City
of Chicago, 526 F.3d 1054, 1061 (7th Cir. 2008) (internal
citation omitted). Its purpose is to eliminate other pos-
sible explanatory variables, “such as differing roles,
performance histories, or decision-making personnel,
which helps isolate the critical independent variable” —
discriminatory animus. Humphries, 474 F.3d at 405.
Similarly situated employees “must be ‘directly compara-
ble’ to the plaintiff ‘in all material respects,’ ” but they
need not be identical in every conceivable way. Patterson
v. Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir.
2009), quoting Raymond v. Ameritech Corp., 442 F.3d 600,
610-11 (7th Cir. 2006). We are looking for comparators,
not “clone[s].” Chaney v. Plainfield Healthcare Center, 612
F.3d 908, 916 (7th Cir. 2010). So long as the distinctions
between the plaintiff and the proposed comparators
are not “so significant that they render the comparison
effectively useless,” the similarly-situated requirement
is satisfied. Humphries, 474 F.3d at 405; see also Crawford
v. Indiana Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th
Cir. 2006) (the question is whether “members of the
comparison group are sufficiently comparable to [the
plaintiff] to suggest that [the plaintiff] was singled out
for worse treatment”).
This flexible standard reflects the Supreme Court’s
approach to Title VII in McDonnell Douglas and its prog-
eny. To offer a prima facie case of discrimination under
the indirect method, the plaintiff’s burden is “not oner-
ous.” Burdine, 450 U.S. at 253. The Supreme Court “never
intended” the requirements “to be rigid, mechanized, or
No. 10-3694 15
ritualistic . . . [but] merely a sensible, orderly way to
evaluate the evidence in light of common experience as it
bears on the critical question of discrimination.” Furnco
Construction Corp. v. Waters, 438 U.S. 567, 577 (1978). The
Court has cautioned that “precise equivalence . . . between
employees is not the ultimate question.” McDonald v. Santa
Fe Trail Transportation Co., 427 U.S. 273, 283 n.11 (1976). The
touchstone of the similarly-situated inquiry is simply
whether the employees are “comparable.” Id., quoting
McDonnell Douglas, 411 U.S. at 804.
Whether a comparator is similarly situated is “usually
a question for the fact-finder,” and summary judgment
is appropriate only when “no reasonable fact-finder
could find that plaintiffs have met their burden on the
issue.” Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir.
2009). There must be “enough common factors . . . to
allow for a meaningful comparison in order to divine
whether intentional discrimination was at play.” Barricks
v. Eli Lilly and Co., 481 F.3d 556, 560 (7th Cir. 2007).
The “number [of relevant factors] depends on the
context of the case.” Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617 (7th Cir. 2000). In the usual case a plain-
tiff must at least show that the comparators (1) “dealt
with the same supervisor,” (2) “were subject to the
same standards,” and (3) “engaged in similar conduct
without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s
treatment of them.” Gates v. Caterpillar, Inc., 513 F.3d
680, 690 (7th Cir. 2008), quoting Snipes v. Illinois Dep’t of
Corrections, 291 F.3d 460, 463 (7th Cir. 2002). This is not
16 No. 10-3694
a “magic formula,” however, and the similarly-
situated inquiry should not devolve into a mechanical,
“one-to-one mapping between employees.” Humphries,
474 F.3d at 405.
With this legal standard in mind, we turn to Coleman’s
proposed comparators. According to Coleman’s evi-
dence, two white male employees, Frank Arient and
Robert Pelletier, “held a knife to the throat of a black male
co-worker” “while holding down his legs.” 1 Arient’s and
Pelletier’s direct supervisor, Brian Turkovich, learned
of the incident a few days later and conducted an in-
vestigation. Von Rhein, who supervised all three men,
participated in the investigation, personally interviewing
the two attackers and several witnesses. Von Rhein
and Turkovich concluded that the incident was just
“horseplay,” and Von Rhein suspended Arient and
Pelletier without pay for fourteen days. Von Rhein and
Turkovich later reduced these suspensions to seven days
after objections by the union. According to Von Rhein,
Sove approved their suspensions. Von Rhein Dep. 175.
In his own deposition, Sove described Arient’s and
Pelletier’s actions as “some stupid prank that they were
playing with each other.” Sove Dep. 121.
1
The Postal Service calls Coleman’s version an “embellished”
“misstatement of the facts” because they only “pulled” a knife
and did not hold it to the victim’s throat. We doubt that the
difference between holding a knife to a man’s throat and
merely displaying it while holding him down is material
for purposes of summary judgment.
No. 10-3694 17
The district court concluded that Arient and Pelletier
could not serve as comparators because they “reported
to a different supervisor” and “held a substantially dif-
ferent job than Coleman.” Although the court acknowl-
edged there was “at least some similarity in terms of
the seriousness of the incident,” it was “not enough” to
overcome the other dissimilarities. We think that this
analysis focused too much on minor differences and was
too demanding for purposes of summary judgment.
1. Same Supervisor
The similarly-situated requirement “normally entails”
the existence of a common supervisor. Radue, 219 F.3d
at 617. When the same supervisor treats an otherwise
equivalent employee better, one can often reasonably
infer that an unlawful animus was at play. The inference
of discrimination is weaker when there are different
decision-makers, since they “may rely on different
factors when deciding whether, and how severely, to
discipline an employee.” Ellis v. United Postal Service,
523 F.3d 823, 826 (7th Cir. 2008); see also Little v. Illinois
Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004) (disci-
pline from a different supervisor “sheds no light” on
the disciplinary decision). For this reason, this court
generally requires a plaintiff to demonstrate at a mini-
mum that a comparator was treated more favorably by
the same decision-maker who fired the plaintiff. See
Ellis, 523 F.3d at 826.
In this case, there was a common decision-maker for
Coleman, Arient, and Pelletier: the facility’s maintenance
18 No. 10-3694
operations manager, Charles Von Rhein. Von Rhein
approved Coleman’s termination and the men’s suspen-
sions. The district court relied on the fact that Arient’s
and Pelletier’s direct supervisor (Turkovich) was not
the same as Coleman’s (Berry). But this misses the point
of the common supervisor factor. While we have some-
times phrased the question ambiguously as whether
the comparators “dealt with the same supervisor,” e.g., Gates,
513 F.3d at 690 (emphasis added), the real question is
whether they were “treated more favorably by the same
decisionmaker.” Ellis, 523 F.3d at 826 (emphasis added); see
Little, 369 F.3d at 1012 (“A similarly-situated employee
must have been disciplined, or not, by the same
decisionmaker who imposed an adverse employment
action on the plaintiff.”). This point follows logically
from the cause of action itself, which requires proof
“that the decisionmaker has acted for a prohibited
reason.” Schandelmeier-Bartels v. Chicago Park Dist., 634
F.3d 372, 379 (7th Cir. 2011), quoting Rogers v. City of
Chicago, 320 F.3d 748, 754 (7th Cir. 2003) (emphasis in
original). Under Title VII, a “decisionmaker is the
person ‘responsible for the contested decision.’ ” Id.,
quoting Rogers, 320 F.3d at 754.
For both Coleman’s termination and Arient’s and
Pelletier’s suspensions, that person was Von Rhein. He
signed the letters placing Coleman on off-duty status
and terminating her, and he conducted the internal in-
vestigation of her in the interim period. Von Rhein also
personally investigated Arient’s and Pelletier’s actions
and testified that he made the decision to suspend them.
The district court downplayed Von Rhein’s supervisory
No. 10-3694 19
role in the response to the knife incident, asserting he
merely “sign[ed] off on Turkovich’s decision” to suspend
them. But, again, the issue is not only who proposed
the suspension but who was “responsible” for the deci-
sion. Schandelmeier-Bartels, 634 F.3d at 379, quoting Rogers,
320 F.3d at 754. Only Von Rhein, and not Turkovich, had
the authority to discipline Arient and Pelletier. For pur-
poses of Title VII, he was the decision-maker.
2. Same Standards of Conduct
The Postal Service contends that because Arient and
Pelletier had different job titles and duties, they cannot
be considered situated similarly to Coleman. That is
not correct. In the context of this case of differential
discipline, it is irrelevant to the comparison that Arient
and Pelletier are maintenance mechanics and Coleman
is a maintenance support clerk. We have repeatedly
made clear that a “difference in job title alone is not
dispositive.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d
781, 791 (7th Cir. 2007); see Rodgers v. White, 657 F.3d 511,
518 (7th Cir. 2011) (“Formal job titles and rank are not
dispositive . . . .”).
The question is not whether the employer classified
the comparators in the same way, “but whether the
employer subjected them to different employment poli-
cies.” Lathem v. Dep’t of Children & Youth Services, 172
F.3d 786, 793 (11th Cir. 1999). Comparators need only be
similar enough to enable “a meaningful comparison.”
Humphries, 474 F.3d at 405. Arient and Pelletier worked
at the same job site as Coleman, were subject to the
20 No. 10-3694
same standards of conduct, violated the same rule, and
were disciplined by the same supervisor. Their different
titles and duties do not defeat, as a matter of law, the
probative value of their different disciplinary treatment.
The application of this “same standards” factor also
depends on the specific facts of the case. In cases
involving the quality of job performance, for example, a
would-be comparator’s professional role may be so dif-
ferent from the plaintiff’s as to “render the comparison
effectively useless.” Humphries, 474 F.3d at 405; accord, e.g.,
Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009)
(salesmen with “lower-ranking sales positions” were not
similarly situated to the plaintiff, who was fired for
performance reasons); Burks, 464 F.3d at 751 (a recep-
tionist and a supervisor were not similarly situated to
the plaintiff, a program manager who was fired for per-
formance reasons); Keri v. Board of Trustees of Purdue
University, 458 F.3d 620, 626 (7th Cir. 2006) (tenured
university professors were not similarly situated to
untenured plaintiff professor who was not reappointed
after “widespread complaints from both students and
supervisors”). Where the issue is the quality of a
plaintiff’s work, a difference between the plaintiff’s and
comparators’ positions can be important because this
difference will often by itself account for the less
favorable treatment of the plaintiff. Cf. Senske, 588 F.3d
at 510 (“the comparators must be similar enough that
differences in their treatment cannot be explained by
other variables, such as distinctions in their roles or
performance histories”).
No. 10-3694 21
In contrast, Arient’s and Pelletier’s different positions
provide no such self-evident explanation for their more
lenient punishment. The reason is obvious. Coleman
and her comparators were disciplined not for bad per-
formance but for violating a general workplace rule
that applied to employees in all departments and of all
ranks. In such misconduct cases (as opposed to perfor-
mance cases), comparisons between employees with
different positions are more likely to be useful. See,
e.g., Rodgers, 657 F.3d at 513 (where plaintiff was
punished more harshly than his supervisor for the
same misconduct, the “general rule” that “employees of
differing ranks usually make poor comparators . . . does
not apply”). “[W]hen uneven discipline is the basis for
a claim of discrimination, the most-relevant similarities
are those between the employees’ alleged misconduct,
performance standards, and disciplining supervisor,”
rather than job description and duties. Id. at 518.
The real issue is whether Arient and Pelletier were
subject to the same standards of conduct as Coleman, and
of course they were. The Postal Service rules against
workplace violence and threats apply equally to
mechanics and clerks. The employee handbook frames
the prohibition in all-encompassing terms: “it is the
unequivocal policy of the Postal Service that there must
be no tolerance of violence or threats of violence by
anyone at any level of the Postal Service. Similarly,
there must be no tolerance of harassment, intimidation,
threats, or bullying by anyone at any level.” (Emphases
added.) Since the purpose of the rule is to ensure a
“safe and humane working environment,” there is no
22 No. 10-3694
objective reason for it to apply with greater or lesser
force to employees of certain positions.
Even if there might have been some theoretical basis
for enforcing the rule differently based on job position,
there is no evidence that the Postal Service actually
took Arient’s, Pelletier’s, or Coleman’s roles into account
when it disciplined them. A proposed comparator’s
position or rank may be important, but only “provided
that the employer took these factors into account when
making the personnel decision in question.” Eaton v.
Indiana Dep’t of Corrections, 657 F.3d 551, 559 (7th Cir.
2011) (emphasis in original), quoting Patterson v. Avery
Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002); see also
Peirick v. Indiana University-Purdue University Indianapolis,
510 F.3d 681, 689 (7th Cir. 2007) (“we doubt that the
[employer] took heed of employee classifications
when doling out sanctions”). “A characteristic that dis-
tinguishes two employees, regardless of its significance
when objectively considered, does not render the em-
ployees non-comparable if the employer never con-
sidered that characteristic . . . [because it] cannot provide
any insight as to whether the employer’s decision as
motivated by discriminatory intent.” Eaton, 657 F.3d at
559. Here, the record provides no indication that the
Postal Service considered job titles at all significant when
deciding on discipline for Arient, Pelletier, and Coleman.
There are a number of potential explanations for
why Arient and Pelletier got off with such lighter punish-
ments than Coleman. Perhaps it was because managers
honestly perceived them as less culpable or dangerous.
No. 10-3694 23
Perhaps it was because they were white or male. But it
was surely not because they were mechanics.
3. Conduct of Comparable Seriousness
In a disparate discipline case, the similarly-situated
inquiry often hinges on whether co-workers “engaged
in comparable rule or policy violations” and received
more lenient discipline. Naik v. Boehringer Ingelheim
Pharms., Inc., 627 F.3d 596, 600 (7th Cir. 2010), quoting
Patterson, 589 F.3d at 365-66. The Supreme Court has
made clear that “precise equivalence in culpability
between employees is not the ultimate question: as we
indicated in McDonnell Douglas, an allegation that
other ‘employees involved in acts against [the em-
ployer] of comparable seriousness’ ” received more favorable
treatment “is adequate to plead an inferential case” of dis-
crimination. McDonald, 427 U.S. at 283 n.11, quoting
McDonnell Douglas, 411 U.S. at 804. Following this lan-
guage, our circuit, like many others, has adopted this
“comparable seriousness” standard. E.g., Peirick, 510
F.3d at 689; Davis v. Wisconsin Dep’t of Corrections,
445 F.3d 971, 978 (7th Cir. 2006); Johnson v. Artim Transpor-
tation System, Inc., 826 F.2d 538, 543 (7th Cir. 1987).2
2
For cases from other circuits, see, for example, Russell v. City
of Kansas City, 414 F.3d 863, 868 (8th Cir. 2005) (employing
“comparable seriousness” standard); Graham v. Long Island R.R.,
230 F.3d 34, 40 (2d Cir. 2000) (same); Kendrick v. Penske Transpor-
tation Services, Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (same);
(continued...)
24 No. 10-3694
Comparators must have “engaged in similar — not
identical — conduct to qualify as similarly situated.”
Peirick, 510 F.3d at 691, 689 (reversing summary judg-
ment in relevant part; university tennis coach “accused
of using abusive language, unsafe driving, leaving
students behind during a road trip, and pitting the stu-
dents against the administration” was similarly situated
to coaches who “did not engage in the exact same mis-
conduct” but who “violated the very same rules”), quoting
Ezell v. Potter, 400 F.3d 1041, 1050 (7th Cir. 2005)
(reversing summary judgment in relevant part; mail
carrier accused of taking too long a lunch was similarly
situated to another carrier who had lost a piece of certified
mail). To determine “whether two employees have en-
gaged in similar misconduct, the critical question is
whether they have engaged in conduct of comparable
seriousness.” Peirick, 510 F.3d at 689.
Again, the analysis is straightforward here. Arient
and Pelletier violated the Postal Service rule that
prohibits “Violent and/or Threatening Behavior” — the
same rule Coleman was accused of breaking. That they
did not break the rule in precisely the same manner
does not mean that summary judgment was appropri-
ate. By directly threatening another employee with a
2
(...continued)
Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (same); Taylor
v. Virginia Union University, 193 F.3d 219, 234 (4th Cir. 1999)
(en banc) (same), abrogated in part on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003).
No. 10-3694 25
knife in the workplace, Arient and Pelletier engaged in
conduct that appears, at least for purposes of summary
judgment, at least as serious as Coleman’s indirect
“threat” against Berry — and arguably even more so.3
Where a proposed comparator violated the same rule as
the plaintiff in an equivalent or more serious manner,
courts should not demand strict factual parallels. See
Lynn v. Deaconess Medical Center-West Campus, 160 F.3d 484,
488 (8th Cir. 1998) (“To require that employees always
have to engage in the exact same offense as a
prerequisite for finding them similarly situated would
result in a scenario where evidence of favorable treat-
ment of an employee who has committed a different
but more serious, perhaps even criminal offense, could
never be relevant to prove discrimination.”), abrogated
on other grounds, Torgerson v. City of Rochester, 643 F.3d
1031 (8th Cir. 2011) (en banc).
The Postal Service argues that Arient and Pelletier
are not appropriate comparators because the Postal
Service viewed their behavior “as an ‘isolated instance’
3
Perhaps if the situation were reversed, if Coleman had
threatened another employee with a weapon while Arient and
Pelletier had only made alarming statements to a third-party,
their conduct would be less serious. For example, the Tenth
Circuit once found that a proposed comparator who had
threatened a co-worker with assault and then arguably threat-
ened his supervisor with physical violence “did not violate
work rules of comparable seriousness” as the plaintiff, who
had physically assaulted his supervisor by pushing him to
the ground. See Kendrick, 220 F.3d at 1232.
26 No. 10-3694
where ‘no particular threats were involved,’ ” while
Coleman had made a “credible threat.” The Postal
Service may make that argument at trial, but it is not a
winner on summary judgment. When two grown men
hold a person down while brandishing a knife (whether
at his throat or not), not only is a “particular threat[ ] . . .
involved” — a jury could reasonably conclude that it
was a far more immediate one than an employee
confiding in her psychiatrist in a private therapy
session that she was having thoughts about killing her
boss. To be sure, the Postal Service is right to take
seriously all threats made by, and against, its employees.
But at the summary judgment stage, the employer cannot
defeat a plaintiff’s prima facie case of discrimination on
the theory that it applied its “no tolerance” policy on
threats to some workers while dismissing dangerous
acts of others as mere “horseplay.” See Gordon v. United
Airlines, Inc., 246 F.3d 878, 891 (7th Cir. 2001) (“It is not
the province of this court to question an employer’s
decision to punish some conduct more harshly than
other conduct. Nevertheless, we are not bound by the
labels that an employer uses and must scrutinize the
conduct behind those labels to determine if they are
applied to similar conduct.”). Such fact issues are the
province of the jury.4
4
The Postal Service may mean simply that the Arient and
Pelletier suspensions are not comparable to Coleman’s ter-
mination because the plant leadership did not honestly regard
them, but did regard Coleman, as presenting a serious
(continued...)
No. 10-3694 27
We have noted with some concern the tendency of
judges in employment discrimination cases “to require
closer and closer comparability between the plaintiff and
the members of the comparison group.” Crawford,
461 F.3d at 846.5 The purpose of the similarly-situated
4
(...continued)
ongoing threat. An employer’s honest belief about its motives
for disciplining a Title VII disparate treatment plaintiff is
relevant, but at the pretext stage, not for the plaintiff’s prima
facie case. The similarly-situated inquiry is about whether
employees are objectively comparable, while the pretext
inquiry hinges on the employer’s subjective motivations. As
discussed below, however, there are reasons to doubt even
that the Postal Service subjectively believed Coleman was
dangerous. The Postal Service also cites Bodenstab v. County
of Cook, 569 F.3d 651, 657 n.2 (7th Cir. 2009), for the proposi-
tion that fighting with other employees and bringing a gun
to the workplace are not comparable to threatening to kill a
supervisor. But Bodenstab’s passing discussion of the similarly-
situated prong in footnote 2 is dicta; the court chose to
“skip over” the prima facie analysis, and its central holding
was that the plaintiff had failed to establish pretext. Id. at 657.
5
For scholarly criticism of this phenomenon, see Suzanne B.
Goldberg, Discrimination by Comparison, 120 Yale. L.J. 728, 734
(2011) (“The judicial demand for comparators continues
largely unabated . . . , sharply narrowing both the possibility of
success for individual litigants and, more generally, the very
meaning of discrimination.”); Charles A. Sullivan, The Phoenix
from the Ash: Proving Discrimination by Comparators, 60 Ala. L.
Rev. 191, 216 (2009) (criticizing the tendency of courts “to
(continued...)
28 No. 10-3694
requirement is to “provide plaintiffs the ‘boost’ that the
McDonnell Douglas framework intended.” Humphries,
474 F.3d at 406, citing Stone v. City of Indianapolis Public
Utilities Div., 281 F.3d 640, 643 (7th Cir. 2002).
Demanding nearly identical comparators can transform
this evidentiary “boost” into an insurmountable hurdle.
Coleman’s proposed comparators (1) “dealt with the
same supervisor,” (2) “were subject to the same stan-
dards,” and (3) “engaged in similar conduct” of compara-
ble seriousness. Gates, 513 F.3d at 690. They are
similar enough to permit a reasonable inference of dis-
crimination, and that is all McDonnell Douglas requires.
C. Pretext
The Postal Service has offered a legitimate, nondiscrim-
inatory reason for terminating Coleman — it claims
she “posed a threat to kill her supervisor.” To show
this reason is pretextual, Coleman “must present
evidence suggesting that the employer is dissembling.”
O’Leary, 657 F.3d at 635. “The question is not whether
the employer’s stated reason was inaccurate or unfair,
but whether the employer honestly believed the
5
(...continued)
require the comparator to be the almost-twin of the plaintiff
before the comparison is sufficiently probative”); Ernest F.
Lidge III, The Courts’ Misuse of the Similarly Situated Concept
in Employment Discrimination Law, 67 Mo. L. Rev. 831, 832 (2002)
(noting that courts find “that potential comparators are not
similarly situated because of relatively minor, or irrelevant,
distinctions between the comparators and the plaintiff”).
No. 10-3694 29
reasons it has offered to explain the discharge.” Id. “It
is not the court’s concern that an employer may be
wrong about its employee’s performance, or may be
too hard on its employee. Rather, the only question
is whether the employer’s proffered reason was
pretextual, meaning that it was a lie.” Naik, 627 F.3d at
601, quoting Ineichen v. Ameritech, 410 F.3d 956, 961 (7th
Cir. 2005).
To meet this burden, Coleman must “identify such
weaknesses, implausibilities, inconsistencies, or con-
tradictions” in the Postal Service’s asserted reason “that
a reasonable person could find [it] unworthy of cre-
dence.” Boumehdi, 489 F.3d at 792. If the Postal Service
terminated Coleman because it “honestly believed” she
posed a threat to other employees — even if this reason
was “foolish, trivial, or baseless” — Coleman loses. Id. On
the other hand, “if the stated reason, even if actually
present to the mind of the employer, wasn’t what
induced him to take the challenged employment action,
it was a pretext.” Forrester v. Raulant-Borg Corp., 453
F.3d 416, 418 (7th Cir. 2006).
To show pretext, Coleman argues that the labor arbitra-
tor who ordered her reinstated found that the Postal
Service did not honestly believe she was a threat, and
that the district court should have given his decision
preclusive effect. We disagree on both points. On the
merits, however, we agree that Coleman has presented
enough evidence of pretext to avoid summary judg-
ment. First, like the arbitrator, we question whether
Coleman’s statements about Berry rose to the level of a
30 No. 10-3694
“true threat,” and thus whether Coleman can fairly be
said to have violated any workplace rule at all. Second,
a number of background facts cast doubt on the asser-
tion that Coleman was dangerous: her statements came
in a private therapy session, the Postal Service learned
of them the same day the psychiatrist discharged
Coleman as stable, and it had options short of termina-
tion available to gauge her propensity for violence.
Third, Coleman’s comparator evidence tends to show
that her Postal Service managers did not enforce this rule
evenhandedly. This evidence of similarly situated co-
workers is also relevant to the pretext inquiry. It
suggests that the Postal Service decision-makers here
did not take the rule against threats as seriously as they
claimed. As the Supreme Court, this court, and other
circuits have held, a discrimination plaintiff may em-
ploy such comparator evidence to discharge her burden
at the pretext stage as well as to satisfy the fourth
element of her prima facie case. Based on this evidence
here, a reasonable jury could conclude that the Postal
Service’s stated reason for firing Coleman was pretextual.
1. The Effect of the Arbitration
The arbitration does not support issue preclusion on
the issue of pretext for two independent reasons. First,
the arbitrator did not decide the same issue of pretext.
Second, Coleman’s case is subject to the general rule
under Title VII that arbitration decisions do not bind
either side regarding statutory discrimination claims.
No. 10-3694 31
We consider first just what the arbitrator decided.
Issue preclusion requires an identity of issues. Issue
preclusion, also known as collateral estoppel, “bars ‘suc-
cessive litigation of an issue of fact or law actually
litigated and resolved in a valid court determination
essential to the prior judgment,’ even if the issue recurs
in the context of a different claim.” Taylor v. Sturgell,
553 U.S. 880, 892 (2008), quoting New Hampshire v.
Maine, 532 U.S. 742, 748 (2001). In some cases, administra-
tive adjudications may have preclusive effect. See, e.g.,
University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986)
(“when a state agency acting in a judicial capacity
resolves disputed issues of fact properly before it which
the parties had an adequate opportunity to litigate,
federal courts must give the agency’s factfinding the
same preclusive effect to which it would be entitled in
the State’s courts”) (internal citation and quotation
marks omitted). Whatever the original forum, however,
the doctrine “applies only when (among other things) the
same issue is involved in the two proceedings and
the determination of that question is ‘essential’ to the
prior judgment.” King v. Burlington Northern & Santa Fe
Ry. Co., 538 F.3d 814, 818 (7th Cir. 2008).
Here the arbitrator did not examine whether the
Postal Service honestly believed Coleman was a danger,
but only whether Coleman really was a danger. Finding
that Coleman’s statements to her psychiatrist did not
constitute a “true threat,” the arbitrator ruled that the
Postal Service lacked just cause to terminate her. This
finding is not the same as a finding that the Postal
Service decision-makers were lying about their motives.
32 No. 10-3694
The most that Coleman can say is that the arbitrator
was skeptical that Berry genuinely feared Coleman,
suspecting he had “embellished” his story. Even if Berry
exaggerated his reaction to news of the threat, that
would not prove that Von Rhein and Sove, the super-
visors who decided to terminate Coleman, were also
disingenuous. The arbitrator acknowledged that
Coleman’s behavior raised “serious concerns about her
fitness for duty, and under what conditions she might
be able to work,” and he ordered Coleman to undergo
a psychiatric examination to ascertain whether she was
ready to return. He did not determine that the Postal
Service’s concerns about Coleman were lies, but only
that it had failed to meet its “burden of proving that [she]
engaged in conduct warranting her removal.” Issue
preclusion therefore could not apply.
Second, whatever the arbitrator’s findings, his decision
could not trigger collateral estoppel in this action. In
Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60 (1974),
the Supreme Court held that arbitration decisions
do not have preclusive effect in later litigation under
Title VII. The Court explained that “Congress
intended federal courts to exercise final responsibility
for enforcement of Title VII; deferral to arbitral decisions
would be inconsistent with that goal.” Id. at 56. The only
exception to this rule is where a clause in a collective
bargaining agreement has explicitly mandated that
“employment-related discrimination claims would be
resolved in arbitration.” 14 Penn Plaza v. Pyett, 129 S. Ct.
1456, 1464 (2009). In 14 Penn Plaza, the Supreme Court
held that such clauses are enforceable, distinguishing
No. 10-3694 33
Gardner-Denver on the grounds that, in that case, the
“employee’s collective-bargaining agreement did not
mandate arbitration of statutory antidiscrimination
claims.” Id. at 1467. Yet the Court recognized the con-
tinuing vitality of Gardner-Denver in cases like this
one, where the CBA did not “clearly and unmistakably
require[ ] union members to arbitrate claims arising
under” federal anti-discrimination laws: where the
“collective-bargaining agreement [gives] the arbitrator
‘authority to resolve only questions of contractual
rights,’ his decision could not prevent the employee
from bringing the Title VII claim in federal court ‘regard-
less of whether certain contractual rights are similar to,
or duplicative of, the substantive rights secured by
Title VII.’ ” Id. at 1461, 1467, quoting Gardner-Denver,
415 U.S. at 53-54. Here, the collective bargaining agree-
ment did not require submission of Title VII claims to
labor arbitration. Under Gardner-Denver, then, even if
the arbitrator had reached the pretext issue, his
findings would not have preclusive effect here.
2. Evidence of Pretext
Without giving preclusive effect to the arbitral decision,
however, we find that Coleman has offered evidence
of pretext in the form of context. “[A]n evaluation of
context is essential to determine whether an employer’s
explanation is fishy enough to support an inference
that the real reason must be discriminatory.” Loudermilk
v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011).
Much of Coleman’s context evidence is recounted in
34 No. 10-3694
the arbitrator’s findings. She is not barred from relying
on the these findings as evidence that the Postal Service’s
stated reason for terminating her was a pretext. As the
Gardner-Denver Court stated: “The arbitral decision may
be admitted as evidence and accorded such weight as
the court deems appropriate.” 415 U.S. at 60. In this case,
several of the arbitrator’s findings provide support for
Coleman’s argument that the Postal Service’s purported
reasons for terminating her were pretextual.
First, the arbitrator concluded that Coleman’s state-
ments to Dr. Ionescu did not constitute a “true threat.”
We think this is a reasonable inference that is tanta-
mount to a finding that Coleman did not actually violate
the Postal Service’s rule against threats of violence.
Granted, even if Coleman broke no rule, the Postal
Service may still have mistakenly believed she did — and
that’s what counts in the pretext analysis. See Forrester,
453 F.3d at 418. Nevertheless, the Postal Service can be
presumed to understand its own code of conduct. The
incongruity between Coleman’s non-violation and her
termination casts at least some doubt on the Postal Ser-
vice’s motives. See, e.g., Loudermilk, 636 F.3d at 315
(“The Civil Rights Act of 1964 does not require em-
ployers to have ‘just cause’ for sacking a worker, but
an employer who advances a fishy reason takes the
risk that disbelief of the reason will support an inference
that it is a pretext for discrimination.”). And there is
inherent “fishiness” in an employer’s proffered reason
when it rests on a policy that does not legitimately apply
to the employee who was terminated. See, e.g., Gordon,
246 F.3d at 889 (“Here, an employer applied a rarely
No. 10-3694 35
used label to sanction conduct that does not clearly fall
within the chosen category. . . . [W]hen considered
together with the inconsistency [in the employer’s defini-
tion of the rule], it is sufficient evidence of pretext and,
therefore, precludes summary judgment.”); Stalter v. Wal-
Mart Stores, Inc., 195 F.3d 285, 290 (7th Cir. 1999) (reversing
summary judgment for employer where plaintiff had
been fired supposedly for theft; eating a few corn chips
from an open bag in a break room did not “fit within
a reasonable understanding of the term ‘theft’ ” and a
“jury could certainly infer . . . that [the employer’s] claim
of theft was a pretext for [the plaintiff’s] termination”).
As the arbitrator also identified, there are real questions
as to whether the Postal Service could have honestly
considered Coleman dangerous. For one, he em-
phasized that Coleman made her statements in a
private, confidential therapy session:
[W]e have an employee who, after determining she
could not deal with the stress and frustration of
being unable to work following her surgery, volun-
tarily admits herself for psychiatric treatment. During
this treatment, her psychiatrist probes the depth
of [Coleman’s] anger and finds that she is ex-
periencing suicidal and homicidal ideations.
The special context in which Coleman expressed
her anger cannot possibly have been lost on the Postal
Service. The psychotherapeutic environment is one
in which such extreme feelings would understandably
arise — and indeed, the one in which they should be
most encouraged. As the Supreme Court has noted:
36 No. 10-3694
“Effective psychotherapy . . . depends upon an atmo-
sphere of confidence and trust in which the patient is
willing to make a frank and complete disclosure of facts,
emotions, memories, and fears.” Jaffee v. Redmond, 518
U.S. 1, 10 (1996); see also Tarasoff v. Regents of University
of California, 551 P.2d 334, 347 (Cal. 1976) (“We realize
that the open and confidential character of psycho-
therapeutic dialogue encourages patients to express
threats of violence, few of which are ever executed. Cer-
tainly a therapist should not be encouraged routinely to
reveal such threats; such disclosures could seriously
disrupt the patient’s relationship with his therapist and
with the persons threatened.”).
It would therefore be troubling to think that anyone
who confides to her psychiatrist that she has fantasized
about killing her boss could automatically be subject
to termination for cause. To be sure, the situation
changes when a patient expresses a genuine and ongoing
intent to harm another person. That was the allegation
in the canonical Tarasoff case. See 551 P.2d at 432
(“Poddar informed Moore, his therapist, that he was
going to kill an unnamed girl, readily identifiable as
Tatiana, when she returned home from spending the
summer in Brazil.”). In this case, however, the Postal
Service had little reason to believe that Coleman posed a
continuing threat — and even more to the point, it appears
to have made no effort to ascertain whether she did or not.
On the contrary, the Postal Service had good reason to
believe that whatever danger Coleman ever posed had
subsided by the time she sought to return to work,
No. 10-3694 37
well after she expressed this thought to her therapist.
Dr. Ionescu informed Berry of Coleman’s statements the
very same day she discharged Coleman in “stable” condi-
tion, describing her as a “cooperative, pleasant,” “reac-
tive,” “smiling,” “model patient.”6 As the arbitrator noted:
It is obvious that any homicidal ideation [Coleman]
may have had toward Mr. Berry was part and parcel
of her psychiatric condition for which she sought
treatment. At the time she expressed this ideation,
she was hospitalized and, therefore, incapable of
acting upon it. She was not released from the
hospital until it had abated.
6
In her report, Dr. Ionescu indicated that Coleman gave “verbal
agreement” to the conversation she had with Berry. Such
consent would negate what might otherwise raise a serious
issue of physician-patient confidentiality. See 735 ILCS § 5/8-802
(“No physician or surgeon shall be permitted to disclose
any information he or she may have acquired in attending
any patient in a professional character, necessary to enable
him or her professionally to serve the patient.”). The Illinois
Mental Health and Developmental Disabilities Confidentiality
Act requires that “[a]ll records and communications” made
in the course of therapy “shall be confidential and shall not be
disclosed,” with certain exceptions. 740 ILCS § 110/3(a). One
such exception applies “when . . . a therapist, in his or her sole
discretion, determines that disclosure is necessary to . . . protect
the recipient or other person against a clear, imminent risk
of serious physical or mental injury or disease or death.” 740
ILCS § 110/11. In light of the fact that Dr. Ionescu discharged
Coleman as “stable” the very day she spoke with Berry, it
seems highly unlikely that she considered Coleman a “clear
imminent risk” to his safety at the time of their conversation.
38 No. 10-3694
On summary judgment, Coleman is entitled to the rea-
sonable inferences (a) that Dr. Ionescu would not have
released her from treatment if she believed Coleman
posed a danger to herself or others, and (b) that supervi-
sors considering the matter should and would have
realized as much before firing her.
Finally, if the Postal Service’s real concern was
Coleman’s potential danger, why did it not simply order
her to undergo a psychological evaluation? As the ar-
bitrator noted, “Both Mr. Berry and Mr. Von Rhein . . .
acknowledged that they could have referred [Coleman]
for a fitness-for-duty examination.” He concluded that,
“[u]nder the unique circumstances attendant to this
case, that would have been a more reasonable course
for the Service to follow. With her length of satisfactory
employment with the Postal Service, she deserved
as much.” The Postal Service’s failure to take this seem-
ingly natural step is further evidence suggesting that
Coleman’s mental stability was not its real motiva-
tion for firing her.
In short, while the arbitral decision is not binding,
its factual predicates and analysis give some boost to
Coleman’s claim that the Postal Service’s asserted
reasons for terminating her were pretextual.
3. Comparator Evidence to Show Pretext
Coleman has also presented additional evidence of
pretext: her evidence that similarly situated employees
outside her protected classes received more favorable
No. 10-3694 39
treatment from the same decision-maker. As detailed
above, Arient and Pelletier broke the same rule that
Coleman allegedly did and did so, a jury could rea-
sonably conclude, in a much more egregious man-
ner. Such evidence of selective enforcement of a rule
“calls into question the veracity of the employer’s ex-
planation.” Olsen v. Marshall & Ilsley Corp., 267 F.3d
597, 601 (7th Cir. 2001); accord, e.g., Delli Santi v. CNA
Ins. Cos., 88 F.3d 192, 202 (3d Cir. 1996) (The plaintiff’s
“showing that the company did not enforce such a pol-
icy” is evidence from which the “jury . . . could
rationally conclude that the legitimate non-retaliatory
reason offered by [the employer] was a pretext for dis-
charging [the plaintiff].”); Williams v. City of Valdosta,
689 F.2d 964, 975 (11th Cir. 1982) (“It is undisputed,
however, that the City’s adherence to its formal promo-
tional policy was inconsistent and arbitrary at best. This
inconsistency supports the conclusion that resort to the
examination requirement was a pretext for singling
out Williams for unfavorable treatment.”). Combined
with the additional circumstances discussed above,
Coleman’s evidence is sufficient to defeat summary
judgment on the pretext issue.
The Supreme Court holds that comparator evidence
is relevant at the pretext stage. In McDonnell Douglas
itself, the Supreme Court taught that “evidence that
white employees involved in acts . . . of comparable
seriousness” received more favorable treatment would
be “[e]specially relevant” to a showing that the em-
ployer’s “stated reason for [the plaintiff’s] rejection was
in fact pretext.” 411 U.S. at 804. In Burdine, too, the Court
40 No. 10-3694
made clear that in the pretext inquiry, “it is the plaintiff’s
task to demonstrate that similarly situated employees were
not treated equally.” 450 U.S. at 258, citing McDonnell
Douglas, 411 U.S. at 804. And in a closely related context,
the Supreme Court has affirmed the value of qualifications
evidence (that is, evidence that the employer hired a
less qualified person outside the plaintiff’s protected
class) in the pretext inquiry. Ash v. Tyson Foods, Inc.,
546 U.S. 454, 457 (2006) (“qualifications evidence may
suffice, at least in some circumstances, to show pretext”);
Patterson v. McLean Credit Union, 491 U.S. 164, 187-88
(1989) (plaintiff “might seek to demonstrate that [the
employer]’s claim to have promoted a better qualified
applicant was pretextual by showing that she was in
fact better qualified than the person chosen for the posi-
tion”), superseded on other grounds by 42 U.S.C. § 1981(b).
Our precedents also teach that the similarly-situated
inquiry and the pretext inquiry are not hermetically
sealed off from one another. We have often noted that
“the prima facie case and pretext analyses often overlap.”
Scruggs v. Garst Seed Co., 587 F.3d 832, 838 (7th Cir. 2009);
accord, Adelman-Reyes v. St. Xavier University, 500 F.3d
662, 665, (7th Cir. 2007); Olsen, 267 F.3d at 600. Where
the plaintiff argues that an employer’s discipline is
meted out in an uneven manner, the similarly-situated
inquiry dovetails with the pretext question. Evidence
that the employer selectively enforced a company
policy against one gender but not the other would go to
both the fourth prong of the prima facie case and the
pretext analysis. Thus, the “same inquiry into similarly
No. 10-3694 41
situated employees has been made at the pretext stage.”
Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir.
1998); accord, e.g., Buie v. Quad/Graphics, Inc., 366 F.3d
496, 508 (7th Cir. 2004) (“The disparate treatment of
similarly-situated employees who were involved in
misconduct of comparable seriousness, but did not have
a similar disability, could establish pretext.”); O’Regan
v. Arbitration Forums, Inc., 246 F.3d 975, 985 (7th Cir.
2001) (“to show pretext (as well as the fourth element of
a prima facie case) the inquiry remains the same: the
plaintiff must show that similarly situated employees
were treated more favorably than the plaintiff”), citing
Morrow, 152 F.3d at 561; Hiatt v. Rockwell Int’l Corp., 26
F.3d 761, 770 (7th Cir. 1994) (“In order to demonstrate
pretext under the McDonnell Douglas analysis, a plaintiff
may put forth evidence that (1) employees outside of
the protected class . . ., (2) who were involved in acts
of comparable seriousness, (3) were nevertheless re-
tained or rehired (while the plaintiff was not).”).
A good example is Gordon v. United Airlines, where
the airline fired an African-American male flight
attendant after he deviated from his flight schedule
without authorization. 246 F.3d at 880. The district court
granted summary judgment for United. We reversed:
“Our review of the record reveals inconsistencies in
definition and disparities in application [of the unautho-
rized deviation rule] that calls into question United’s
proffered justification . . . .” Id. at 889. As evidence of
pretext, the court pointed to Gordon’s showing that a
similarly situated employee had been disciplined less
harshly: “[T]he weakness of the proffered justification
42 No. 10-3694
for the termination is further emphasized by the fact
that the only other time that United has categorized an
action as an unauthorized deviation, the involved em-
ployee, a white female, was not terminated.” Id. at 892.
We explained: “A showing that similarly situated em-
ployees belonging to a different racial group received
more favorable treatment can also serve as evidence
that the employer’s proffered legitimate, nondiscrim-
inatory reason for the adverse job action was a pretext
for racial discrimination.” Id., quoting Graham v. Long
Island R.R., 230 F.3d 34, 43 (2d Cir. 2000). The reasoning
and result in Gordon confirm what we have stated in
many other cases: that comparator evidence can do
“double-duty” at both the prima facie and pretext stages.
Several other circuits agree. See, e.g., Hawn v. Executive
Jet Management, Inc., 615 F.3d 1151, 1158 (9th Cir. 2010)
(“The concept of ‘similarly situated’ employees may be
relevant to both the first and third steps of the McDonnell
Douglas framework.”); Graham v. Long Island R.R., 230
F.3d 34, 43 (2d Cir. 2000) (same); EEOC v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th Cir. 2000)
(“while evidence that a defendant treated a plaintiff
differently than similarly-situated employees is certainly
sufficient to establish a prima facie case, it is ‘[e]specially
relevant’ to show pretext if the defendant proffers a
legitimate, nondiscriminatory reason for the adverse
employment action”); see also Rodgers v. U.S. Bank., N.A.,
417 F.3d 845, 852-53 (8th Cir. 2005) (finding comparator
evidence relevant to both the prima facie and pretext
phases, but imposing a more “rigorous” standard at the
pretext stage), abrogated on other grounds, Torgerson, 643
No. 10-3694 43
F.3d at 1058; Simpson v. Kay Jewelers, Div. of Sterling, Inc.,
142 F.3d 639, 646 (3d Cir. 1998) (same).7
In this case, Coleman has offered evidence sufficient
to support a finding that Arient and Pelletier were
situated similarly to her, are outside her protected
classes, and received more lenient punishment for a
comparably serious violation of the same rule.
Together with the evidence identified by the arbitrator
concerning the seriousness of the supposed threat and
7
Other circuit courts, hewing more closely to McDonnell
Douglas, channel comparator evidence into the pretext phase
of the sequence. See, e.g. Rioux v. City of Atlanta, 520 F.3d 1269,
1277 (11th Cir. 2008) (“We, too, address the sufficiency of any
comparator evidence in our examination of pretext, rather
than as an element of Rioux’s prima facie case . . . .”); Conward
v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999) (“the
time to consider comparative evidence in a disparate treat-
ment case is at the third step of the burden-shifting ritual,
when the need arises to test the pretextuality vel non of the
employer’s articulated reason for having acted adversely to
the plaintiff’s interests”). This approach makes sense be-
cause the probative value of a proposed comparator
depends largely on the specific non-discriminatory reason
the employer has put forward. As one commentator argues:
“It makes no sense . . . to require the plaintiff to choose com-
parison cases based on their relevance to the employer’s not-yet-
’articulated’ justification. It would make far more sense
for courts to consider the presence or absence of good compara-
tive data as part of a review of the evidence as a whole . . . .”
Deborah C. Malamud, The Last Minuet: Disparate Treatment
after Hicks, 93 Mich. L. Rev. 2229, 2293 (1995).
44 No. 10-3694
the Postal Service’s response to it, this evidence of selec-
tive enforcement was enough to create a genuine issue
of fact as to whether the Postal Service’s asserted reason
for terminating Coleman was pretextual. We must
reverse summary judgment for the Postal Service on
Coleman’s claims of sex and race discrimination.
III. Retaliation Claims
Coleman also appeals the district court’s grant of sum-
mary judgment to the Postal Service on her Title VII
retaliation claims. Like discrimination, retaliation may
be established by either the direct or indirect methods
of proof. See Weber v. Universities Research Ass’n, 621 F.3d
589, 592 (7th Cir. 2010). In the district court and in her
appellate briefs, Coleman relied on both methods. In
oral argument, however, Coleman’s counsel conceded
that she lacked sufficient evidence to show a prima
facie case of retaliation under the indirect method. We
therefore consider Coleman’s retaliation claims under
only the direct method of proof.
To establish retaliation under the direct method,
Coleman must show that: (1) she engaged in activity
protected by Title VII; (2) the Postal Service took an
adverse employment action against her; and (3) there
was a causal connection between her protected activity
and the adverse employment action. See Leitgen v. Francis-
can Skemp Healthcare, Inc., 630 F.3d 668, 673 (7th Cir.
2011). The first two elements are not disputed. Her
formal EEOC charges were “the most obvious form of
statutorily protected activity.” Silverman v. Board of Educ.
No. 10-3694 45
of City of Chicago, 637 F.3d 729, 740 (7th Cir. 2011); see
42 U.S.C. § 2000e-3(a). She also offered evidence that
she had complained of race and sex discrimination to
her supervisors as early as May 2005, and her requests
for pre-complaint counseling before filing EEO charges
also qualify as protected activity. Coleman’s placement
on unpaid off-duty status and termination were both
adverse employment actions. The parties dispute
only whether Coleman has evidence supporting an in-
ference that her protected activity caused the Postal Ser-
vice’s adverse actions. Coleman can show causation
by showing that her complaints and EEO filings were
a “substantial or motivating factor” in the Postal
Service’s decisions to place her in off-duty status and/or
to fire her. Gates, 513 F.3d at 686, quoting Culver v. Gorman
& Co., 416 F.3d 540, 545 (7th Cir. 2005). This may be
done via direct evidence, which would “entail something
akin to an admission by the employer (’I’m firing you
because you had the nerve to accuse me of sex
discrimination!’).” O’Leary, 657 F.3d at 630. It may
also be done by presenting a “ ’convincing mosaic’ of cir-
cumstantial evidence” that would permit the same infer-
ence without the employer’s admission. Rhodes v. Illinois
Dep’t of Transportation, 359 F.3d 498, 504 (7th Cir.
2004), quoting Troupe v. May Dep’t Stores Co., 20 F.3d
734, 737 (7th Cir. 1994). Coleman has presented no
direct evidence of retaliation, so she relies on a mosaic
of circumstantial evidence.
In both retaliation and discrimination cases, we have
recognized three categories of circumstantial evidence
available to a plaintiff using the “convincing mosaic”
46 No. 10-3694
approach. See, e.g., Volovsek v. Wisconsin Dep’t of Agri-
culture, Trade & Consumer Protection, 344 F.3d 680, 689
(7th Cir. 2003). One includes “suspicious timing, ambigu-
ous statements oral or written, . . . and other bits and
pieces from which an inference of [retaliatory] intent
might be drawn.” Silverman, 637 F.3d at 734, quoting
Troupe, 20 F.3d at 736. Another is “evidence, but not
necessarily rigorous statistical evidence, that similarly
situated employees were treated differently.” Volovsek,
344 F.3d at 689. Another type is “evidence that the em-
ployer offered a pretextual reason for an adverse em-
ployment action.” Dickerson v. Board of Trustees of Com-
munity College Dist. No. 522, 657 F.3d 595, 601 (7th Cir.
2011); Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 586-
87 (7th Cir. 2011).8 “Each type of evidence is sufficient
by itself (depending of course on its strength in relation
to whatever other evidence is in the case) to support
a judgment for the plaintiff; or they can be used to-
gether.” Troupe, 20 F.3d at 736.
8
The latter two categories are similar to required
elements under the indirect method, so that “our analyses
overlap.” Egonmwan v. Cook County Sheriff’s Dep’t, 602 F.3d
845, 851 (7th Cir. 2010). The mosaic approach provides
parties and courts with a little more flexibility and room for
common sense than the indirect method sometimes allows.
See Hasan v. Foley & Lardner LLP, 552 F.3d 520, 529 (7th Cir.
2008) (“under the indirect method of proof, a plaintiff must
produce evidence of how the employer treats similarly situated
employees,” while “the direct method of proof imposes no
such constraints”).
No. 10-3694 47
Coleman has offered evidence of suspicious timing
and pretext, and that evidence is sufficient to present
a genuine issue of fact as to the Postal Service’s motives
in suspending and then firing her.
Timing: We have often invoked the general rule that
“temporal proximity between an employee’s protected
activity and an adverse employment action is rarely
sufficient to show that the former caused the latter.”
O’Leary, 657 F.3d at 635, citing Leitgen, 630 F.3d at 675.
When temporal proximity is one among several tiles in
an evidentiary mosaic depicting retaliatory motive, how-
ever, “[s]uspicious timing . . . can sometimes raise an
inference of a causal connection.” Magyar v. St. Joseph
Regional Medical Center, 544 F.3d 766, 772 (7th Cir. 2008);
see Scaife v. Cook County, 446 F.3d 735, 742 (7th Cir. 2006)
(“Close temporal proximity provides evidence of causa-
tion and may permit a plaintiff to survive summary judg-
ment provided that there is other evidence that supports
the inference of a causal link.”), quoting Lang v. Illinois
Dep’t of Children & Family Services, 361 F.3d 416, 419 (7th
Cir. 2004). Our cases reject any bright-line numeric rule,
but when there is corroborating evidence of retaliatory
motive, as there is here, an interval of a few weeks or
even months may provide probative evidence of the
required causal nexus. See Magyar, 544 F.3d at 772 (“This
court has found a month short enough to reinforce
an inference of retaliation.”), citing Lang, 361 F.3d at
419. “Deciding when the inference is appropriate cannot
be resolved by a legal rule; the answer depends on
context . . . . A jury, not a judge, should decide whether the
inference is appropriate.” Loudermilk, 636 F.3d at 315.
48 No. 10-3694
Coleman’s protected activity began with informal
complaints of race and sex discrimination that reached
Sove, one of the relevant decision-makers, in May 2005.
In June, Coleman received a new and unpleasant work
assignment, which she refused, resulting in discipline.
Then, after her request for advance sick leave was
denied, she filed an EEO request for counseling, she
was asked to work in a storeroom, she checked herself
into the hospital, and she was suspended—all within
a span of about six weeks. The suspension came on
August 3, 2005. That was the day she was released from
the hospital and the day her psychiatrist told Berry
of Coleman’s homicidal thoughts. But the suspension
also occurred a few weeks after the friction between
Coleman and Berry, which followed her complaints
of discrimination, had built up to the point that she
checked herself into the hospital. Later in August 2005,
she filed her first formal EEOC charge. She filed her
second formal EEOC charge in December 2005. Five
weeks after that, she was fired.
Even if the sequence of events alone would not be
enough by itself, this sequence of protected activity
and punitive action could lend some support to a rea-
sonable juror’s inference of retaliation. See, e.g.,
Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104
F.3d 1004, 1014 (7th Cir. 1997) (“Interpreting the facts
in [the plaintiff’s] favor, she can show a pattern of
criticism and animosity by her supervisors following
her protected activities . . . [that] supports the existence
of a causal link.”).
No. 10-3694 49
Pretext: Coleman’s timing evidence does not stand
alone. She has also presented evidence that the em-
ployer’s stated reason for acting was pretextual, which
also tends to support an inference of retaliation. The
Postal Service’s explanation for both the suspension on
August 3, 2005 and the termination on January 13, 2006
is Coleman’s supposed violation of the rule against
threats and violence. If that explanation were beyond
reasonable dispute, we would agree with the district
court and affirm summary judgment on the retaliation
claims. As we explained above in detail, however,
Coleman has offered substantial evidence that the sup-
posed rule violation was only a pretext for unlawful
motives. A jury could reasonably conclude (though of
course it would not be required to conclude) that the
Postal Service acted for reasons other than its stated
reason. Without repeating that discussion in detail, we
conclude that when combined with the fairly close se-
quence of Coleman’s protected activity and the actions
taken against her, that evidence of pretext could support
a reasonable inference of retaliatory intent, thus pre-
cluding summary judgment.9
9
In making her argument for retaliation based on circum-
stantial evidence, Coleman also offers Arient and Pelletier,
the white men involved in the knife incident, as comparators
who were outside her protected class. Such comparator
evidence can be relevant in showing retaliation under the
“mosaic” approach. See Volovsek, 344 F.3d at 689. But this
record is simply silent as to whether either of these two
(continued...)
50 No. 10-3694
Under the convincing mosaic approach, a retaliation
case can “be made by assembling a number of pieces of
evidence none meaningful in itself, consistent with the
proposition of statistical theory that a number of observa-
tions each of which supports a proposition only weakly
can, when taken as a whole, provide strong support if
all point in the same direction.” Cole v. Illinois, 562 F.3d
812, 815 n.2 (7th Cir. 2009), quoting Sylvester v. SOS Chil-
dren’s Villages Illinois, 453 F.3d 900, 903 (7th Cir. 2009).
On their own, Coleman’s evidence of suspicious timing
and pretext might not be enough to show a causal con-
nection between her protected activities and her sus-
pension or termination. Together, however, they are
sufficient to withstand summary judgment and create
a question for the jury.
IV. Conclusion
In adjudicating claims under federal employment
discrimination statutes, a court does not sit as a “super-
personnel department,” second-guessing an employer’s
9
(...continued)
white men ever complained of unlawful discrimination. Even
without the use of those comparators, Coleman has enough
evidence to avoid summary judgment. We will not speculate
further on the matter, but note only that it should be
fairly easy for a plaintiff in such a case to serve an
interrogatory asking whether the relevant decision-makers
had any knowledge of protected activity on the part of the
proposed comparators.
No. 10-3694 51
“business decision as to whether someone should be
fired or disciplined because of a work-rule violation.”
Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006),
quoting Balance v. City of Springfield, 424 F.3d 614, 621
(7th Cir. 2005). But we must also resist the temptation
to act as jurors when considering summary judgment
motions. Plaintiff Coleman has offered enough evidence
of race and sex discrimination and retaliation to with-
stand summary judgment. The judgment of the district
court is therefore R EVERSED and the case is R EMANDED
for further proceedings consistent with this opinion.
W OOD , Circuit Judge, with whom T INDER and
H AMILTON, Circuit Judges, join, concurring. The lead
opinion carefully analyzes Denise Coleman’s claims that
the Post Office’s decision to fire her violated Title VII’s
prohibitions against discriminatory employment deci-
sions (here, on grounds of race and sex) and retaliatory
actions. See 42 U.S.C. §§ 2000e-2(a)(1) (discrimination),
2000e-3(a) (retaliation). For the discrimination claim, the
opinion meticulously applies the so-called indirect
method of proof, which originated with the Supreme
Court’s 1973 decision in McDonnell Douglas Corp. v. Green,
52 No. 10-3694
411 U.S. 792 (1973); for the retaliation claim the opinion
turns to the so-called direct method of proof, and more
particularly to the indirect (or “mosaic”) way of directly
proving retaliation. It concludes succinctly that Coleman
managed to put enough in the record to defeat the defen-
dant’s motion for summary judgment. A jury might find
in Coleman’s favor, given the inconsistencies in the
Post Office’s treatment of other workers who also
violated the violence rule, even though the odds may
be against Coleman here. Summary judgment, however,
is not about odds, once a threshold has been crossed.
I agree with my colleagues that Coleman has presented
enough on both theories to move forward with her case.
I write separately to call attention to the snarls and
knots that the current methodologies used in discrimina-
tion cases of all kinds have inflicted on courts and litigants
alike. The original McDonnell Douglas decision was de-
signed to clarify and to simplify the plaintiff’s task in
presenting such a case. Over the years, unfortunately, both
of those goals have gone by the wayside. We now have,
for both discrimination and retaliation cases, two
broad approaches—the “direct” and the “indirect.” But
the direct approach is not limited to cases in which the
employer announces “I have decided to fire you because
you are a woman [or a member of any other protected
class].” Instead, the direct method permits proof using
circumstantial evidence, as we acknowledged in Troupe v.
May Dep’t Stores Co., 20 F.3d 734 (7th Cir. 1994). Like a
group of Mesopotamian scholars, we work hard to see if
a “convincing mosaic” can be assembled that would
point to the equivalent of the blatantly discriminatory
No. 10-3694 53
statement. If we move on to the indirect method, we
engage in an allemande worthy of the 16th century,
carefully executing the first four steps of the dance for the
prima facie case, shifting over to the partner for the
“articulation” interlude, and then concluding with the
examination of evidence of pretext. But, as my colleagues
correctly point out, evidence relevant to one of the
initial four steps is often (and is here) equally helpful
for showing pretext.
Perhaps McDonnell Douglas was necessary nearly 40
years ago, when Title VII litigation was still relatively
new in the federal courts. By now, however, as this case
well illustrates, the various tests that we insist lawyers
use have lost their utility. Courts manage tort litigation
every day without the ins and outs of these methods
of proof, and I see no reason why employment discrim-
ination litigation (including cases alleging retaliation)
could not be handled in the same straightforward way.
In order to defeat summary judgment, the plaintiff one
way or the other must present evidence showing that
she is in a class protected by the statute, that she
suffered the requisite adverse action (depending on her
theory), and that a rational jury could conclude that
the employer took that adverse action on account of her
protected class, not for any non-invidious reason. Put
differently, it seems to me that the time has come to
collapse all these tests into one. We have already done
so, when it comes to the trial stage of a case. See, e.g.,
EEOC v. Bd. of Regents of Univ. of Wisc. Sys., 288 F.3d
296, 301 (7th Cir. 2002). It is time to finish the job and
restore needed flexibility to the pre-trial stage.
54 No. 10-3694
With those observations, I concur in my colleagues’
opinion.
1-6-12