Lily Abebe v. Health and Hospital Corporatio

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2614
LILY ABEBE,
Plaintiff-Appellant,
v.
HEALTH AND HOSPITAL CORPORATION
OF MARION COUNTY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 20-cv-148 — James R. Sweeney II, Judge.
____________________
ARGUED APRIL 7, 2022 — DECIDED MAY 31, 2022
____________________
Before RIPPLE, KANNE, and SCUDDER, Circuit Judges.
KANNE, Circuit Judge. Lily Abebe, a Black woman of Ethi-
opian origin, began working as a dental assistant at the Health
and Hospital Corporation of Marion County, known as Es-
kenazi Health, in 2014. In 2018, she received a low rating in
her performance review that resulted in her not receiving a
merit-based raise. Abebe then contacted the Equal Employ-
ment Opportunity Commission (“EEOC”) and alleged race-
2 No. 21-2614
and national origin-based discrimination. According to
Abebe, Eskenazi Health placed her on a Performance Im-
provement Plan later that month because of her contact with
the EEOC. Abebe sued her employer, alleging discrimination
and retaliation in violation of Title VII of the Civil Rights Act
of 1964 and 42 U.S.C. § 1981. The district court granted sum-
mary judgment for Eskenazi Health. For the reasons set forth
in this opinion, we affirm.
I. BACKGROUND
Plaintiff Lily Abebe is a Black woman of Ethiopian origin.
In 2014, she began working for Eskenazi Health’s Grassy
Creek Dental Clinic as an “expanded function” dental assis-
tant, meaning that she was trained in filling cavities.
Employees at the clinic would receive an annual perfor-
mance review containing three metrics: “Eskenazi Health’s
Values,” which assesses an employee’s professionalism, re-
spect, innovation, development, and excellence; job compe-
tency; and operational goals. Under each metric are several
sub-metrics, which are rated from 0 (unsatisfactory) to 4 (out-
standing).
Abebe has had a record of behavior issues throughout her
employment. In Abebe’s 2015 performance review, the clinic
manager gave her a total weighted average of 2.0, noting that
she had “made great strides in her career growth this year.”
The next year, in 2016, Abebe received an average of 2.27. The
clinic manager gave her a score of 1 under the sub-metric for
“respect,” noting that “outside concerns or problems” can
sometimes “chang[e] her attitude and affect[] her interaction
with co-workers” and resolving to “encourage her to work on
her personal issues that are affecting her interaction with co-
No. 21-2614 3
workers.” In 2017, Abebe received an average of 2.22. She had
been disciplined earlier that year for an argument with a
coworker. In her performance review, the clinic manager gave
Abebe a score of 2 under “professionalism” and noted that,
“when she gets upset, her attitude turns to shocking,” and
that she “needs to balance her personality out and not react
so much to negative events or pressure that affects her inter-
action with co-workers.” The clinic manager also rated Abebe
a 1 under “respect,” referencing the argument with the
coworker, which “resulted [in] many of Lily’s coworkers see-
ing her as unapproachable.” Elsewhere in the review, the
clinic manager continued to note Abebe’s attitude and her
trouble cooperating with coworkers.
Abebe’s 2018 performance review is at issue in this case,
because it led to Abebe not receiving a merit-based raise. The
parties discuss three incidents that occurred prior to Abebe
receiving her performance review for 2018.
First, in March 2018, Abebe believed that a white dental
hygienist purposely left out an open needle for Abebe to clean
up. After the hygienist had stopped working at the clinic,
Abebe requested a copy of the incident report from a super-
visor by email, but the supervisor questioned why she wanted
the report and wrote that “we need to be careful with the
choice of words we use such as accusing [the hygienist of]
leaving the open needle intentionally.” Later, at a meeting
with the clinic manager, Carlos Hernandez, and the dental di-
rector, Abebe again requested the incident report, but Her-
nandez was “persistent” that Abebe should stop asking for
the report because providing it would “only open[] up a can
of worms.” The dental director agreed that Abebe should not
worry about the incident because the hygienist was gone
4 No. 21-2614
anyway.
Second, Abebe experienced personal problems with a den-
tist, Dr. Raquel Salvador, throughout 2018. Abebe claimed
that Dr. Salvador had pushed and communicated rudely with
multiple people, including her. In December 2018, Abebe
emailed Hernandez, the dental director, and the site coordi-
nator to report that Dr. Salvador had been “very rude” to her
that morning because of how Abebe was registering patients
and had “screamed” at Abebe to bring a patient back for treat-
ment.
Third, in March 2019, Abebe contested a protocol for
checking out dental burs (a tool used for filling cavities), al-
leging that Daisy Sierra, the only other expanded function
dental assistant, had better access to the dental burs because
the burs were located in her office.
On March 29, 2019, Abebe met with Hernandez, the clinic
manager at the time, to discuss her performance in 2018. In
her 2018 review, Abebe received her lowest total weighted av-
erage—1.43. Hernandez described Abebe’s communication
and teamwork issues. Under “professionalism,” for example,
Hernandez gave Abebe a 1 and noted that she needed to “im-
prove the way [she] approached other team members and
solve conflict the proper ways without becom[ing] personal
to others.” Hernandez also rated Abebe a 1 under “respect,”
noting that she was “still developing communication skills
with the team to … resolve day to day issues.” Overall, Her-
nandez remarked that Abebe was “still developing communi-
cation and team work skills” and recommended “developing
better professional relations with the team” and “addressing
issues properly [in] a respectful[] manner to others.”
No. 21-2614 5
At the March 29 meeting, Abebe asked for the basis of her
low scores in many of the metrics. Hernandez explained to
Abebe that she had experienced conflict with multiple team
members and needed to continue developing her conflict res-
olution skills. Specifically, “the way she complained about the
needle incident and her interaction with Dr. Salvador—using
a disrespectful and angry tone, gossiping, and making re-
peated accusations even after matters were addressed by
management—were examples of an ongoing problem.” After
this meeting, Abebe sent multiple emails requesting a meet-
ing with supervisors, an HR staffer, and union employees re-
garding her performance review, taking issue with the fact
that Hernandez had raised the needle incident at the March
29 meeting.
In 2019, Eskenazi Health announced merit-based pay
raises based on employees’ performance in 2018. Employees
who received a total weighted average of 2.0 or higher on their
performance reviews were eligible for raises of about two per-
cent. Because her average was too low, Abebe did not receive
a raise.
Abebe contacted the EEOC in August 2019. She told an
EEOC investigator about the needle incident, but the investi-
gator advised Abebe that she had not identified discrimina-
tion based on membership in a protected class. In September,
Abebe spoke with the investigator again. She alleged for the
first time that she had experienced race- and national origin-
based discrimination at work, citing the needle incident, the
conflict with Dr. Salvador, and the dental burs incident. The
investigator informed Abebe that there was likely no cause for
further EEOC investigation. According to Abebe, Eskenazi
Health placed her on a Performance Improvement Plan that
6 No. 21-2614
same month, after she spoke to the EEOC. The parties dispute
whether the Plan was actually issued or merely discussed,
though it appears to be undisputed that Abebe never received
the written Plan. In any event, about a month later, Eskenazi
Health ultimately decided not to impose the Performance Im-
provement Plan.
Based on these facts, Abebe sued Eskenazi Health under
Title VII and § 1981, alleging that her employer (1) discrimi-
nated against her when it gave her low scores on her perfor-
mance review resulting in her not receiving a merit-based
raise, and (2) retaliated against her when it placed her on a
Performance Improvement Plan after she reached out to the
EEOC. Eskenazi Health filed a motion for summary judg-
ment, which the district court granted. Abebe now appeals.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo, construing facts in the light most favorable to the
plaintiff and drawing all reasonable inferences in her favor.
Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir.
2011). “Summary judgment is appropriate where the admis-
sible evidence shows that ‘there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.’” Id. (citing Fed. R. Civ. P. 56(a), (c)). We discuss
Abebe’s discrimination and retaliation claims in turn. 1
1 Abebe brings her claims under Title VII and § 1981. Because the anal-
ysis for discrimination and retaliation is the same under both statutes, we
address each set of claims together. See Johnson v. City of Fort Wayne, 91
F.3d 922, 940 (7th Cir. 1996).
No. 21-2614 7
A. Discrimination
Abebe contends that Eskenazi Health discriminated
against her based on her race and national origin.
Under the burden-shifting framework set forth in McDon-
nell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff in
a Title VII race discrimination suit must first establish a prima
facie case of discrimination by showing that “(1) she is a mem-
ber of a protected class, (2) she was meeting the employer’s
legitimate expectations, (3) she suffered an adverse employ-
ment action, and (4) similarly situated employees who were
not members of her protected class were treated more favor-
ably.” Simpson v. Franciscan All., Inc., 827 F.3d 656, 661 (7th Cir.
2016).
Once a prima facie case has been established, “the burden
shift[s] to the defendant to ‘articulate a legitimate, nondis-
criminatory reason for the adverse employment action, at
which point the burden shifts back to the plaintiff to submit
evidence that the employer’s explanation is pretextual.’” Id.(quoting Andrews v. CBOCS W., Inc., 743 F.3d 230, 234 (7th Cir.
2014)). At bottom, the question “is simply whether the evi-
dence would permit a reasonable factfinder to conclude that
the plaintiff’s race, ethnicity, sex, religion, or other proscribed
factor caused the discharge or other adverse employment ac-
tion.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th
Cir. 2016).
Abebe cannot establish a prima facie case because she has
not identified a proper comparator. “[T]he similarly-situated
inquiry … asks ‘essentially, are there enough common fea-
tures between the individuals to allow a meaningful compar-
ison?’” Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012)
8 No. 21-2614
(quoting Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th
Cir. 2007), aff’d, 553 U.S. 442 (2008)). Abebe contends that Rich-
ard Branham, a white male dental assistant, and Daisy Sierra,
a Hispanic expanded function dental assistant, did not receive
negative performance reviews despite being involved in sim-
ilar incidents to Abebe—Branham also got into a physical al-
tercation with Dr. Salvador, and Sierra was not subject to the
same check-out protocol for dental burs. But Abebe focuses
on the wrong features, precluding a meaningful comparison.
Abebe received low scores on her performance review not be-
cause she was involved in these incidents, but because she ad-
dressed them in a confrontational way. Abebe adduces no ev-
idence that either proposed comparator was similarly disre-
spectful or aggressive in communicating with their colleagues
or with management. (In any event, the dental burs incident
occurred in March 2019, so it could not have been relevant to
Abebe’s 2018 performance review.)
Eskenazi Health thus had a legitimate, non-discriminatory
reason for Abebe’s low performance review scores—her com-
munication was “confrontational and not solution-oriented.”
Abebe argues that the record does not support this explana-
tion. She points to emails she sent to others at Eskenazi Health
in which she does not believe she behaved disrespectfully. But
the fact that Abebe disagrees with her supervisor’s assess-
ment does not establish pretext. See Lauth v. Covance, Inc., 863
F.3d 708, 715 (7th Cir. 2017) (affirming summary judgment
where plaintiff merely contended “that he did not have the
communication issues that his supervisors saw as problem-
atic” but did not offer any other evidence that employer’s con-
cerns were pretextual). Abebe also claims that she can estab-
lish pretext because the Performance Improvement Plan her
employer placed her on was ultimately withdrawn, but that
No. 21-2614 9
does not necessarily show that Eskenazi Health had a shady
reason for giving her a negative review earlier.
In short, Abebe cannot establish a prima facie case of dis-
crimination, nor can she demonstrate that Eskenazi Health’s
reason for the low scores on her performance review was pre-
textual.
B. Retaliation
Abebe argues that Eskenazi Health retaliated against her
by placing her on a Performance Improvement Plan after she
contacted the EEOC about the alleged discrimination.
To survive summary judgment on her retaliation claims,
Abebe must show evidence of “(1) a statutorily protected ac-
tivity; (2) a materially adverse action taken by the employer;
and (3) a causal connection between the two.” Humphries, 474
F.3d at 404 (citing Sitar v. Ind. Dep’t of Transp., 344 F.3d 720,
728 (7th Cir. 2003)). For purposes of retaliation, an adverse
employment action is one that “well might have ‘dissuaded a
reasonable worker from making or supporting a charge of
discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211,
1219 (D.C. Cir. 2006)).
“Performance improvement plans, particularly minimally
onerous ones … are not, without more, adverse employment
actions.” Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d
664, 677 (7th Cir. 2011). Abebe’s plan may have contained
many burdensome requirements, but she never had to fulfill
them; even assuming, as Abebe contends, that her employer
actually issued the Performance Improvement Plan, the Plan
was withdrawn after about a month. And even if Abebe had
had to go through with the Plan, our precedent indicates that
10 No. 21-2614
it likely would not have been onerous enough to constitute a
materially adverse action. See, e.g., Cole v. Illinois, 562 F.3d 812,
816 (7th Cir. 2009) (finding that performance improvement
plan was not an adverse action even though employee was
required to submit daily and weekly schedules to her super-
visors).
As to causation, suspicious timing alone is not enough to
establish a causal connection between the adverse action and
the protected activity. Coleman, 667 F.3d at 860. That is all
Abebe can show here: her Performance Improvement Plan
was issued less than a month after she complained to the
EEOC. Yet Abebe maintains that other facts support a causal
connection: Eskenazi Health ultimately dropped her Perfor-
mance Improvement Plan, and she also has “meaningful com-
parator evidence.” (Appellant’s Br. at 19.) But, as explained
above, the fact that the Plan was ultimately dropped does not
necessarily shed light on Eskenazi Health’s intent in issuing
or planning to issue the Plan in the first place. And Abebe’s
comparators are improper for purposes of the retaliation anal-
ysis, too, because there is no evidence that either of them com-
plained of unlawful discrimination.
Thus, Abebe fails to adduce sufficient evidence to establish
a causal connection between her contact with the EEOC and
the issuance of the Performance Improvement Plan, and she
also cannot demonstrate that issuing the Plan was an adverse
employment action.
III. CONCLUSION
For these reasons, the district court’s judgment is AF-
FIRMED.