Jordan, Juanita v. Thompson, Donald L.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3772
JUANITA JORDAN,
Plaintiff-Appellant,
v.
CITY OF GARY, INDIANA and
DONALD THOMPSON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:01-CV-323-TS—Theresa L. Springmann, Judge.
____________
ARGUED MAY 26, 2004—DECIDED JANUARY 28, 2005
____________
Before BAUER, POSNER and COFFEY, Circuit Judges.
COFFEY, Circuit Judge. Juanita Jordan filed a complaint
on May 2, 2001 in federal court against her former em-
ployer, the City of Gary, Indiana, and her former supervisor
Donald Thompson alleging sex discrimination and harass-
ment in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., age discrimination in violation of
the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., as well as defamation of character and
2 No. 03-3772
violation of her freedom of speech. Following the defendant’s
motion for summary judgment, the district court, Judge
Theresa Springmann presiding, found as a matter of law
that Jordan failed to present sufficient evidence as to any
claim which would warrant a trial. The district court granted
the defendants’ motion for summary judgment and entered
judgment in their favor. We affirm.
I. Background
Juanita Jordan, a 60-year-old African-American female,
was employed by the City of Gary, Indiana, Division of
Health and Human Services (“HSS”) Health Clinic for 15
years, from June 1, 1984 until the date of her termination
on July 8, 2000.1 Jordan joined the Gary Health Department
(“GHD”) as a switchboard operator and through the years
was promoted a number of times, eventually attaining the
position of Senior Disease Intervention Specialist (“DIS II”),
which she held at the time of her discharge. As a DIS II,
Jordan contacted individuals infected with either syphilis
or HIV, arranged testing and treatment for them and their
infected, or potentially infected, partners and counseled
them on a number of disease-related matters. To qualify for
that position, Jordan, 58 at the time of her termination had
earned a degree in psychology from Purdue University
Calumet in 1978 and had attended regular continuing edu-
cation classes and seminars.
Throughout most of her tenure at the HSS, the record
establishes that Jordan was a distinguished and dedicated
employee. Indeed, for two consecutive years, in 1988 and
1989, Jordan was named the best Disease Intervention
1
In a letter dated August 28, 2000 Jordan was informed of her
termination, the effective date of which was identified as July 8,
2000.
No. 03-3772 3
Specialist in the State of Indiana. In addition, Jordan was
considered to be a valuable resource at the HSS by a num-
ber of her colleagues and supervisors. However, beginning
in 1993, and continuing until her termination in 2000, a
number of rather serious flaws began to manifest them-
selves in Jordan’s work history as a model employee.
From 1993 to 1999 Jordan was disciplined on a number
of occasions for violations of the City of Gary work rules and
policies, some very serious (e.g., failing to report to work and
using the city’s property without permission). These
violations resulted in various types of reprimands, referral
to a counselor under the City of Gary’s Employee Assistance
Program, and even suspension from her duties without
pay.2 For example, on or about June 24, 1997, in a conversa-
tion with a client, Jordan began belittling and badgering
him over the telephone. According to the record, when the
client failed to recall some specific information that Jordan
requested she (Jordan) became abusive, calling him a “mur-
2
In 1993 Jordan was cited twice for work rules violations; in
January of that year she was reprimanded in writing for failing to
attend a mandatory meeting and in August of the same year she
was suspended for one day without pay (and her city vehicle priv-
ileges were suspended for ninety days) for using a vehicle without
authorization. In March of 1995 Jordan was reprimanded in writ-
ing for being absent from work without permission (apparently
Jordan was habitually returning from lunch late). Eighteen months
later, in October of 1996, Jordan received a verbal warning that
she had excessive absences and was eligible for disciplinary
suspension pending termination. Also, in October of 1998, Jordan
was referred to counseling after she helped initiate a physical
confrontation between two clients in the mens room of the clinic.
Her supervisor described this incident as “against all protocol.” Tr.
Exh. 28. In a memo, the Administrator of the Health Department,
Helen Smith, observed that “Ms. Jordan’s obvious lack of compre-
hension, grandiose attitude and unwarranted anger yield some
serious concerns related to the state of her mental health.” Id.4 No. 03-3772
derer,” and hanging up. Tr. Exh. 25. This resulted in
Jordan’s suspension without pay for three days, effective
June 24, 1997. However, in an act of defiance, Jordan
returned to work the following day, in spite of the suspen-
sion order, and as a result an additional day was added to
her suspension. In addition, she was also required to
consult an Employee Assistance Program counselor before
returning to work.
In October of 1999, allegedly under pressure from the
Gary, Indiana Mayor’s office, changes in the HSS depart-
ment were initiated.3 Donald Thompson, the Division
Director of the HSS, claims he was directed to get to the
bottom of some alleged breaches of confidentiality and other
deficiencies manifested by staff members within the
department. As part of this initiative, Thompson enlisted
the help of the HSS Health Clinic Manager at the time,
Aleisa James (Jordan’ s supervisor from 1992-2000) and
instituted a number of changes in the department such as
a new policy requiring that, going forward, all DISs would
be required to hold a medical assistant certification, unless
they were licensed professional nurses. Also, in February of
2000 Thompson announced his intention to have the entire
staff re-apply for their positions.
Shortly thereafter, in March of 2000, Aleisa James, the
Clinic Manager and Jordan’s supervisor, announced that
she would be taking approximately six weeks of medical
leave. James suggested to Thompson that Jordan and an-
other employee, Roland Carey, II, be assigned to split the
3
In deposition testimony Thompson testified that in October of
1999 the HSS was placed on a 90-day period of probation by the
mayor’s office. Jordan contends that the probation was actually
instituted a year later, in October of 2000. However, the timing of
the actual probation period is ancillary to our decision here (as it
was to the district court) and, therefore, is not a triable issue of
material fact.
No. 03-3772 5
time that she would be on leave as acting Clinic Manager.
However, because Thompson had doubts about Jordan’s
abilities to take orders and follow directives, he instead
named Deputy Director of Health, Ida Parker, 55, as James’
replacement as the ranking officer in the HSS Health
Clinic. In addition, Carey, 37, was named supervisor/lead
case management person, based on “his previous working
relationship with Aleisa James and his case management
skills.” Carey’s role was to coordinate the case management
activities of the clinic (i.e., assign and manage the handling
and completion of cases on a day-to-day basis) and to report
on a daily basis to Ida Parker (who in turn reported to
Thompson as Director of the HSS).
Following Carey’s installation as supervisor, Jordan’s
instances of insubordination and insolence escalated. The
week of May 8, 2000, Jordan was late returning from lunch
on three consecutive days and was issued a written warn-
ing on May 12. Also on Friday, May 12, 2000 Jordan was
disciplined for breaching the City’s dress code policy when
she wore a head covering to work. After being ordered to
remove the article, she complied; however, the following
Monday Jordan returned to work wearing the same head
covering and was suspended for three days for insubordina-
tion. In addition, on May 25, 2000 Jordan was once again
suspended, this time for five days, for leaving the building
without permission in order to discuss a grievance she had
filed with the City’s human resources department regarding
the head covering incident. In a further act of defiance,
during her suspension from work for being absent without
leave, Jordan was identified on the Health Clinic property
without authorization and was escorted from the property
by security after being informed that she was not to be on
the property while suspended.4
4
After Jordan returned from her suspension, Thompson was
(continued...)
6 No. 03-3772
Reacting to the pattern of unacceptable behavior described
above, Thompson, in conjunction with his deputy, Ida
Parker, informed Jordan that she would be suspended until
July 5, 2000, demoted (with a corresponding $1,500 de-
crease in salary) and be placed on 90-days probation, after
which the status of her continued employment would be
reviewed. On July 5, 2000, Jordan failed to report for work
or to notify her supervisors that she would be absent.
Although Jordan filed a grievance the following day with the
City of Gary regarding the suspensions and demotion she
had received— in which she also alleged a pattern of
harassment—she persisted in her insubordination by failing
to report for work over the next two weeks. On July 19,
2000, Thompson sent Jordan a certified letter informing her
that she was absent without leave and advising her of the
fact that a recommendation for her termination had been
forwarded to the City’s human resources department.
Jordan’s dismissal from the Health Department became
final effective July 8, 2000.5 In response, Jordan filed a
complaint with the Equal Employment Opportunity
Commission (“EEOC”) on July 23, 2000, alleging discrimi-
nation on the basis of sex and age as well as failure to
promote, which was denied. Jordan was subsequently
issued Notice of Right to Sue by the EEOC in February of
2001.
Jordan filed a pro se complaint on May 2, 2001, in the
4
(...continued)
notified of a complaint lodged against Jordan alleging that she
had breached the HSS’s confidentially agreement by relaying sen-
sitive and confidential information about a patient to his mother
without the patient’s permission.
5
Jordan’s termination was effective July 8, 2000 pursuant to City
of Gary Policy Manual work rule A-19 which mandates that “[n]o
employee shall be absent for three consecutive work days or more
without notifying his/her supervisor.” Tr. Exh. 17.
No. 03-3772 7
United States District Court for the Northern District of
Indiana, alleging that the City of Gary and Thompson dis-
criminated against her on the basis of her sex, in violation
of Title VII and her age, in violation of the ADEA. Specifi-
cally, Jordan claimed that Thompson discriminated against
her on the basis of her sex and age when he selected, James,
a 55-year-old female, and Carey, a 37-year-old male, to as-
sume James’ responsibilities instead of promoting her (Jordan
herself was 60 years old at the time). In addition, Jordan
claims that she was also discriminated against on the basis
of both her age and sex when she was disciplined various
times in May of 2000, demoted and terminated in July of
that year. Jordan also included a surprising claim that she
was “constructively discharged” by Thompson when she had
no other recourse but to not return to work following her
final suspension and demotion, thereby causing her termi-
nation.
On February 14, 2003, after discovery had been conducted,
the defendants moved for summary judgment and the dis-
trict court agreed granting the motion to dismiss. Proof of
discrimination may be found under either the direct or
indirect method. The trial judge concluded that, under the
direct method of proof, Jordan had failed to establish that
Thompson had intentionally discriminated against Jordan
because she was an older female. In addition, under the
indirect method the court found that, assuming Jordan had
made out a prima facie case of age and sex discrimination
regarding her failure to promote claim, she had failed to
establish that Thompson’s reasons for promoting Carey (i.e.,
that he believed Carey would be a better candidate due to
his managerial skills and his lack of a derogatory discipline
record), was pretextual. As to her claim that she had been
discriminatorily disciplined, demoted and subsequently
terminated, the court found that Jordan had failed to
identify a similarly situated male employee in the depart-
ment under the age of 40 who was treated less favorably.
See Grayson v. City of Chicago, 317 F.3d 745, 817-18 (7th
8 No. 03-3772
Cir. 2003) (Title VII); Franzoni v. Hartmarx Corp., 300 F.3d
767, 771-72 (7th Cir. 2002) (ADEA). In addition to failing to
produce a similarly situated employee, the judge found that
Jordan had brought forward “no credible evidence” suggest-
ing either her discipline or demotion was based on her age
or sex and therefore this claim, as well as her constructive
discharge claim, must fail as a matter of law.6 On appeal
Jordan argues that the district court erred in granting
summary judgment to the defendants on her Title VII and
ADEA claims.
II. Analysis
“We review a district court’s grant of summary judgment
de novo, construing all facts and inferences in the light
most favorable to the nonmoving party.” Williams v. Waste
Mgt. of Ill., 361 F.3d 1021, 1028 (7th Cir. 2004). In addition,
summary judgment is only appropriate where “the plead-
ings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c).
Under Title VII it is unlawful for any employer to “fail or
refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual's race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2. In addition, the
6
In addition, Jordan claimed that the defendants had sexually
harassed her, violated her First Amendment rights to free speech
and defamed her. The district court granted summary judgment
as to these claims finding that they lacked any merit. Because
Jordan does not challenge the district court’s decision to grant
summary judgment, and they are not properly before us on
appeal, we see no need to discuss them here.
No. 03-3772 9
ADEA provides that it is unlawful for any employer to “fail
or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual's age.” 29 U.S.C. § 623(a)(1).
In resisting summary judgment under Title VII, a plaintiff
has two available methods of proving retaliation: the “di-
rect” and “indirect method.” Rogers v. City of Chicago, 320
F.3d 748, 753 (7th Cir. 2003).
A. Jordan’s Claims Under the Direct Method
To prove discrimination via direct evidence “essentially
requires an admission by the decision-maker that his ac-
tions were based on the prohibited amicus.” Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). It
should not be surprising that in today’s politically correct
workplace environment such admissions are rarely, if ever,
made or encountered. See id. Therefore, a plaintiff may also
“prevail under the direct method of proof by constructing a
‘convincing mosaic’ of circumstantial evidence that ‘allows
a jury to infer intentional discrimination by the decision-
maker.’ ” Rhodes v. Ill. Dept. of Transp., 359 F.3d 498, 504
(7th Cir. 2004); Troupe v. May Dept. Stores Co., 20 F.3d 734,
737 (7th Cir. 1994). Nonetheless, under the direct method,
circumstantial evidence “must point directly to a discrimi-
natory reason for the employer’s action.” Id. (quoting Adams
v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)).
Jordan argues that circumstantial evidence concerning
Thompson’s disparate treatment of two other older women—
Geraldine Steele, 62, and Pearlena Hammond, 65—at the
Gary Health Department evinces his discriminatory state
of mind and would allow us to infer his intent to discrimi-
nate against her. Jordan alleges that Thompson intention-
ally required Steele and Hammond to work together despite
his knowledge that there was latent animosity between the
two. Also, Jordan claims that, in order to make things tougher
10 No. 03-3772
on these women, Thompson rearranged their lab without
informing them prior to doing so, denied them budgeted sal-
ary increases, treated them rudely and eventually trans-
ferred one of them, Steele, to a “trivial job” without cause.
While we feel inclined to acknowledge that the circumstances
described by Jordan are indeed suspect, and under other
conditions may induce a finding of discriminatory intent on
Thompson’s part, they did not occur in a vacuum; rather,
they took place at a time when the Department was
undergoing managerial, as well as structural, changes
which undoubtedly frustrated and confused a number of
employees.
During the time period in which Jordan claims that she
(as well as the other women) were discriminated against,
conditions in the HSS and the Health Clinic were in a state
of flux. As mentioned above, Thompson was in the process
of instituting a number of changes to improve the function-
ality and professionalism in the division. Although it is true
that Steele, Hammond and Jordan were required to undergo
changes in their routines that may have been distasteful to
them, other employees were also required to make ad-
justments. For example, Jodie Pryor, a 37-year-old female
was terminated and three other females, Kimberly Peterson,
35, Tracey Roberts, 39, and Joanna Grimes, 52, all left the
HSS during this period. This is not to mention the fact that
Aleisa James, who was replaced by Ida Parker and Roland
Carey, was not given her former position back after she
returned from her leave of absence. The circumstances
Jordan cites certainly describe a working situation which
was anything but stable. In addition, the record certainly sug-
gests that Thompson was not making many friends through
his management style and the reorganization policies that
he was instituting. Nevertheless, we are unpersuaded that
the circumstantial evidence which Jordan points to under
the direct method, especially when one considers the fact that
the Health Clinic was in a period of transition, would allow
a reasonable jury to infer intentional discrimination on
No. 03-3772 11
Thompson’s part. See Sartor v. Spherion Corp., 388 F.3d
275, 278 (7th Cir. 2004).
B. Jordan’s Claims Under the Indirect Method
A plaintiff that has failed to establish discriminatory
intent under the direct method may nonetheless ultimately
prevail under the indirect, burden-shifting framework artic-
ulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). In order to survive a motion for summary
judgment under the indirect method, Jordan must initially
establish, by a preponderance of the evidence, a prima facie
case of discrimination. Thereafter, it is incumbent upon the
defendants-appellees (the “City”) to counter with a legiti-
mate, nondisciminatory and nonpretextual reason for the
employment action. This method of analysis is applicable
whether the discrimination alleged is on the basis of sex,
when proceeding pursuant to Title VII, or on the basis of age,
under the ADEA. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142-43 (2001).
1. Jordan’s Failure to Promote Claim
Jordan alleges that the decision not to promote her to both
the manager position (to which Parker was appointed) and
the supervisor position (Carey) in the Health Department
was discriminatory in nature. In addition, she contends that
she has established a prima facie case of discrimination7
and that she has also successfully demonstrated that the
justification for not promoting her offered by the City is
7
In the district court’s Memorandum of Decision and Order,
Judge Springmann makes clear that, for the sake of brevity, the
court “assumed, without deciding,” that Jordan had made out a
prima facie case and moved right to Jordan’s pretext arguments.
12 No. 03-3772
pretextual, contrary to the findings of the trial judge. We
disagree.
In order to establish a prima facie case of sex or race
discrimination for failure to promote Jordan would have to
establish, by a preponderance of the evidence, that: (1) she
is a member of a protected class; (2) she is qualified for the
position; (3) she was rejected for the position sought; and (4)
the position was granted to a person outside the protected
class who is similarly or less qualified than Jordan. See
Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir.
2003), accord McDonnell Douglas, 411 U.S. at 802-03.
The first prong of Jordan’s argument is that she should
have been promoted to the position of Health Clinic man-
ager rather than Parker. In order to establish a prima facie
case of discrimination for failure to promote under the
McDonell Douglas framework, Jordan is required to identify
a person outside the protected class of which she is a mem-
ber that was given the job instead of her. See id. However,
it is undisputed that Parker is an African-American female
over the age of 40. Therefore, because Parker is a member
of the same protected class as Jordan, Jordan is precluded
from successfully arguing that she was unfairly discrimi-
nated against when Thompson chose to assign Parker as
the head of the Health Clinic instead of her. Stated differ-
ently, Jordan had failed to establish a prima facie case of
discrimination under the McDonnell Douglas framework as
to this prong of her failure to promote claim. See, e.g., Ritter
v. Hill ‘N Dale Farm, Inc., 231 F.3d 1039, 1044 (7th Cir.
2000).
In the second prong of her failure to promote claim
Jordan also argues that she should have been awarded the
Health Clinic supervisor position instead of Carey. While
Carey, unlike Parker, is outside of Jordan’s protected class,
our analysis does not end there. In addition to identifying
a person outside the protected class, Jordan must also
No. 03-3772 13
establish that the person promoted in her place was simi-
larly situated at the time of the alleged discrimination
against her. Grayson, 317 F.3d at 748. In order for Jordan
to establish that a fellow employee, like Carey, is a similarly
situated person Jordan must demonstrate that Carey
occupied the same job level and engaged in similar past
misconduct, but as a result of his misconduct he (unlike
Jordan) was treated differently (i.e., more favorably) for no
legitimate reason. Adams v. Wal-Mart Stores, Inc., 324 F.3d
935, 939-40 (7th Cir. 2003). The record establishes that
Jordan had an extensive track record of repeated and
ongoing disciplinary problems prior to Thompson’s decision
to appoint Carey as supervisor, while Carey did not. Indeed,
Jordan has introduced no evidence into the record that
would suggest that Carey had ever committed a work rules
violation or even a breach of protocol while employed at the
GHD. Therefore, Carey cannot be considered a “similarly
situated person” within the meaning of McDonnell Douglas
and Jordan has failed to establish a prima facie case of
discrimination under this prong of her failure to promote
argument as well. See id.However, even if we were to assume, as did the trial court,
that Jordan has made out a prima facie case under this
prong of her argument, she has failed to establish that the
legitimate business justification proffered by the defendants-
appellees is pretextual. In order to meet her burden of
proving that the City’s justification for promoting Carey in
place of Jordan is pretexutal, she is required to establish
that the City’s “explanation [was] designed to obscure the
unlawful discriminatory employment action.” Emmel v. Coca-
Cola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir. 1996).
What’s more, in order to establish pretext, Jordan must es-
tablish that her credentials were “so superior to the creden-
tials of the person selected for the job that no reasonable
person, in the exercise of impartial judgment, could have
chosen the candidate selected over the plaintiff for the job in
14 No. 03-3772
question,” which she has failed to do. Millbrook v. IBP, Inc.,
280 F.3d 1169, 1181 (7th Cir. 2002) (internal quotations
omitted).
The record establishes that Carey’s qualifications for the
supervisor (and later Health Clinic Manager) roles in the
Health Clinic were objectively comparable, if not superior,
to those of Jordan. Carey was at the same job classification
level, DIS II, as Jordan at the time he was named supervi-
sor. In addition, there is a wealth of un-refuted testimony
in the record that suggests that Carey was a more desirable
employee than Jordan despite his lack of relative job
experience. For example, in support of his decision to name
Carey acting supervisor, Thompson stated that his choice
was “based . . . on his previous working relationship with
Aleisa James and his case management skills.” In addition,
James stated that when she was preparing to go on medical
leave she was going to appoint Carey acting supervisor for
three weeks due to his organizational skills; the very same
reason Thompson gave for promoting him. Also, the Deputy
Director of Health (and James’ superior) stated that she
“approved the appointment of Roland Carey, II, as the ap-
propriate candidate to assist with the ongoing case manage-
ment,” and that the choice “was based solely on his case
management skills.” Parker Aff. ¶¶ 9, 10. This evidence,
when viewed in conjunction with Jordan’s lengthy and re-
petitive record of insubordination and violation of work rules,
demonstrates that it was entirely reasonable for Thompson
to conclude that Carey was the only qualified candidate for
the position of acting supervisor and later Director of the
Health Clinic. Indeed, Jordan has failed to establish that
she was even as qualified as Carey for the position, much
less “so superior” a candidate that the only reason for the
denial of the promotion was discriminatory in nature. See
Millbrook, 280 F.3d at 1181.
Thus, because the evidence in the record clearly establishes
the fact that Parker is a member of the same protected
No. 03-3772 15
class, and that Carey was not a similarly situated person to
Jordan within the meaning of Title VII or the ADEA, and
because Jordan has failed to establish that the City’s justi-
fication for discharging her was pretextual, the district
court’s grant of summary judgment in favor of the City on
Jordan’s failure to promote claim falls far short of con-
stituting a reversible error.
2. Discriminatory Discipline
Jordan also argues she was being unlawfully discrimi-
nated against when she was disciplined on three separate
occasions, outlined in detail above, for: (a) wearing a head
covering after being warned not to on May 12, 2000; (b) be-
ing absent from work without leave on or about May 25,
2000; and (c) allegedly disclosing confidential information
to the mother of a client sometime prior to May 26, 2000. The
district court found that because Jordan failed to identify a
similarly situated employee outside her class who was
treated more favorably, the City’s motion for summary
judgment was warranted as to this element of her claim as
well. We agree.
In order for Jordan to successfully claim that she was
disciplined for a prohibited discriminatory reason she must
establish that: (1) she is a member of a protected class; (2)
she was meeting her employer’s legitimate work expecta-
tions; (3) she suffered an adverse employment action; and
(4) that other, similarly situated, substantially younger,
male employees were treated more favorably. See Grayson,
317 F.3d at 817-18; Franzoni v. Hartmarx Corp., 300 F.3d
767, 771-72 (7th Cir. 2002) (ADEA). In her brief, Jordan
briefly addresses why she believes she has satisfied most of
the elements of a prima facie case for discrimination, but
she has overlooked one very important factor: she has failed
to supply us with an example of a similarly situated
16 No. 03-3772
employee outside of her protected class who was treated
differently.8
The only person that Jordan identifies who might be con-
sidered a similarly situated employee is Carey. However, on
a number of occasions this court has made it clear that in
order to be considered similarly situated an employee must
be “directly comparable in all material respects.” Hudson v.
Chicago Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004),
accord Patterson v. Avery Dennision Corp., 281 F.3d 676,
680 (7th Cir. 2002). “This court does not sit as a super-
personnel department that re-examines an entities business
decisions.” Dale v. Chicago Tribune Co., 797 F.2d 458, 464
(7th Cir. 1986). Carey was promoted to acting supervisor of
the Health Clinic on or about March of 2000, prior to any of
the alleged incidents of discrimination described by Jordan
(which begin with her being disciplined a number of times
two months later in May of 2000). Therefore, because Carey
was her superior at all times relevant to this facet of Jordan’s
claim, and because we have held that Carey’s promotion was
not itself an act of discrimination, Carey cannot be consid-
ered to be “similarly situated” and Jordan’s claim must fail.
See Ajayi v. Aramark Business Servs., Inc., 336 F.3d 520,
531-32 (7th Cir. 2003).9
8
Instead, Jordan extolls her virtues as an employee, points to
three other older women in the Health Clinic whom she believes
were discriminated against and eludes to Carey receiving the
promotion in her place as based on a prohibited amicus, while
downplaying her repeated insubordination and violation of work
rules. However, other examples of alleged discrimination are
superfluous to building a prima facie case and Carey cannot be
considered a similarly situated employee under Title VII and the
ADEA.
9
Furthermore, even if we were to assume that Jordan had made
out a prima facie case for discrimination, the City would still be
(continued...)
No. 03-3772 17
C. Constructive Discharge
In her third assignment of error Jordan claims that, in
addition to being unreasonably disciplined and passed over
for a promotion, she was constructively discharged due to
9
(...continued)
entitled to summary judgment because Jordan cannot demonstrate
that any of the reasons given for her discipline were pretextual.
In the first incident, where Jordan reported to work with an un-
authorized head covering a day following being ordered not to
wear such an article, Jordan claims that there was no rule against
wearing head coverings and that others had worn them regularly.
However, Jordan was disciplined for not following a legal order
from a superior and insubordination regardless of what the rules
and regulations were at the time. Next, Jordan claims that she
was suspended for filing a grievance with the city, but the record
establishes differently. The memorandum sent to Jordan appris-
ing her of her suspension for this incident demonstrated that she
was disciplined for “leaving the workplace without proper notifica-
tion to supervisor.” Jordan admitted that she committed this
infraction and that she did not notify a supervisor; therefore, the
reprimand was for a valid, nonpretextual reason. Finally, Jordan
claims that she was unfairly disciplined for an alleged incident of
breaching confidentiality where she allegedly informed a client’s
mother that he had syphilis. Indeed, she claims that because she
was on suspension when the unsubstantiated complaint was
received, there is no way she could have been the one that
committed the infraction. In addition, Jordan posits that because
she was not apprised of the anonymous complaint until weeks
later, it must have been a fabrication. However, this is antitheti-
cal due to the fact that complaints are often made days or weeks
after an incident occurs (in this case the mother may not have
even told the son about the incident until days later) and it would
be prudent for the department not to immediately act on such a
complaint without first investigating the veracity before confront-
ing Jordan.
18 No. 03-3772
the “significant harassment” she was subjected to in the
months leading up to her termination. The trial court con-
cluded that Jordan had failed to raise a genuine issue as to
any material fact regarding the alleged intolerable condi-
tions Jordan endured and further made findings that her
discipline, demotion and subsequent termination did consti-
tute a rational claim for constructive discharge. We agree.
Constructive discharge occurs when an employee is so mis-
treated at work that a “reasonable person in that employee’s
position would be forced to quit.” Williams v. Waste Mgt. of
Illinois, 361 F.3d 1021, 1032 (7th Cir. 2004) (citing EEOC v.
Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th Cir. 2002)). In
this regard Jordan’s claim on this count is incredible, for in
her own affidavit testimony Jordan acknowledges that she
was fired. As noted above, in addition to her previous
insubordination (i.e., being absent without leave and not
adhering to the Health Clinic’s working hours policy)
Jordan was terminated because she failed to return to work
as ordered after being suspended from her duties at the
Health Clinic for being absent without leave, a fact which
Jordan does not dispute.10 Indeed, Jordan unequivocally
states that “[o]n August 28, I was sent a letter saying that
I had been terminated for being absent and not notifying
my supervisor. My employment with the city [sic] of Gary
was terminated effective July 8, 2000.” Jordan Aff. ¶ 32.
We can make it no plainer than to reiterate that constructive
discharge “refers to a situation in which an employee is not
fired but quits.” McPherson v. City of Waukegan, 379 F.3d
430, 440 (7th Cir. 2004) (quoting Robinson v. Sappington, 351
10
The termination letter states that Jordan was “given notifica-
tion to return to work on July 5, 2000,” and that because she “did
not report to work nor did [she] communicate with the divisional
office . . . [her] employment as a disease intervention counselor
[would] be terminated.” July 19, 2000 Letter from Thompson to
Jordan.
No. 03-3772 19
F.3d 317, 336 (7th Cir. 2003)), accord Chambers v. American
Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir. 1993).
III. Conclusion
The decision of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-28-05