Diane Ripberger v. Corizon, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2070
DIANE M. RIPBERGER,
Plaintiff-Appellant,
v.
CORIZON, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana.
No. 1:11 CV 01394— Tanya Walton Pratt, Judge.
ARGUED FEBRUARY 24, 2014 — DECIDED DECEMBER 10, 2014
Before FLAUM and ROVNER, Circuit Judges and KENDALL,
District Judge.*
ROVNER, Circuit Judge. Diane Ripberger lost her job as a
substance abuse counselor for the Indiana Department of
Corrections (“IDOC”) when Corizon, Incorporated (“Corizon”)
*
The Honorable Virginia M. Kendall of the Northern District of Illinois,
sitting by designation.
2 No. 13-2070
contracted with IDOC to provide counseling for Indiana
prisoners. Ripberger sued Corizon, claiming sex discrimination
and retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and age discrimination and retaliation
under the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq. The district court granted
Corizon’s motion for summary judgment, and Ripberger
appeals. For the reasons stated below, we affirm.
I.
Because we are reviewing the district court’s grant of
summary judgment against Ripberger, we recount the facts in
the light most favorable to her, noting any discrepancies in the
parties’ evidence where relevant. See Zepperi-Lomanto v. Am.
Postal Workers Union, 751 F.3d 482, 483 (7th Cir. 2014).
Ripberger, who was born in 1951, began working for IDOC as
a substance abuse counselor in 1991. As relevant here, she
returned to work as a counselor in March 2008 (after having
retired in 2007) at IDOC’s Pendleton Correctional Facility near
her home in Anderson, Indiana. In addition to being a licensed
social worker for the State of Indiana, Ripberger has a bache-
lor’s degree in sociology and over 60 hours towards a master’s
degree in pastoral counseling. During the relevant time period,
Ripberger worked as a Substance Abuse Counselor IV,
counseling primarily Level 4 offenders in the Indiana Reforma-
tory at Pendleton. Level 4 offenders are those who are serving
very lengthy sentences and have committed serious or violent
crimes.
No. 13-2070 3
A. Ripberger’s Support of Connie Orton-Bell
Ripberger lost her job in 2010, when IDOC contracted out
its substance abuse counseling program to Corizon. Ripberger
alleges that Corizon’s decision not to hire her stemmed in part
from previous events involving her supervisor in 2009, Connie
Orton-Bell. Mick Schoenradt, who was the Acting Substance
Abuse Director for IDOC, supervised Orton-Bell. Sometime in
2009 and early 2010 both Orton-Bell and Ripberger complained
that their desks were being used after hours. According to
Ripberger, they were told it was “just” staff members, not
inmates, using their desks for sex, and that if they found that
troubling they could simply wash down their desks daily.
Shortly thereafter, however, it came to light that Orton-Bell
herself was having an affair with the Major in charge of
custody, a sexual liaison that was apparently deemed unac-
ceptable, despite IDOC’s tolerance of the aforementioned
sexual after-hours conduct. Ultimately, both Orton-Bell and the
Major were terminated because of the affair, but unlike Orton-
Bell, the Major was able to quickly receive unemployment
benefits, keep all of his benefits (including his pension), and
begin working again at the prison on a contract basis shortly
thereafter. Orton-Bell filed a suit under Title VII alleging claims
of sex discrimination, retaliation, and hostile work environ-
ment. The full details of Orton-Bell’s complaints and her
charge of discrimination can be found in Orton-Bell v. Ind.,
759 F.3d 768 (7th Cir. 2014). Ripberger supported Orton-Bell’s
sex discrimination complaint by explaining to Orton-Bell how
to file a grievance and sitting in on her hearings as a silent
employee witness.
4 No. 13-2070
B. IDOC’s Substance Abuse Recovery Program at Pendleton
IDOC organized its substance abuse counseling services
around offenders categorized from Level 1 through 4. As
stated above, Ripberger worked during the relevant time
period with Level 4 inmates in an area of the Pendleton
complex known as the Reformatory. There was also a “thera-
peutic community” for Level 2 and 3 inmates in a separate
facility called the Community Industrial Facility. Level 1
inmates received therapy at still another location known as the
Outside Dorm. Unlike the Reformatory, the Community
Facility and the Outside Dorm were located outside of the
fenced area on the Pendleton complex. At the time of the
privatization, seven IDOC employees worked as substance
abuse counselors in the three counseling areas at Pendleton.
Three counselors, Diane Diggins, Kathryn Choate, and Randy
Smith, worked with the Level 1 offenders in the Outside Dorm.
Three other counselors, Avery Thomas, Joanne Massey-
Neskov, and Anna Sasin, worked in the Community Industrial
Facility with the Level 2 and 3 inmates. Ripberger was the only
counselor working with Level 4 offenders in the Reformatory.
She maintains that her primary caseload was not the Reforma-
tory and that she provided therapy to all levels of offenders.
Indeed, before 2010, Ripberger had worked several hours a day
in the Outside Dorm, but in early 2010 when it became a
therapeutic community providing continuous treatment in an
inpatient setting, she no longer had a caseload there. It thus is
undisputed that between March and August 2010 she did not
counsel any inmates outside of the Reformatory and that she
was also the only counselor assigned to the Reformatory. The
No. 13-2070 5
Reformatory position was eliminated when IDOC outsourced
the provision of counseling to Corizon.
C. IDOC’s Decision to Privatize Counseling Services
In the summer of 2010, IDOC employed 93 substance abuse
counselors at prisons throughout Indiana. At that time, IDOC
determined it would outsource its substance abuse counseling
positions to Corizon. Although Corizon planned to retain as
many IDOC substance abuse counselors as possible, the
contract between IDOC and Corizon provided that Corizon
would hire only 88 substance abuse counselors. As Acting
Substance Abuse Director for IDOC, Schoenradt was slated to
continue supervising the substance abuse program for Corizon
when the transition was completed in September 2010. To that
end, Corizon delegated the hiring and placement decisions to
Schoenradt.
Schoenradt created a staffing plan and a do-not-hire list
based on the need to reduce employees and the needs at the
various prisons. Ripberger did not appear on the do-not-hire
list, which named a very few employees whose performance
did not warrant continued employment. Schoenradt instead
placed Ripberger’s name next to Randy Smith on his staffing
plan to indicate that one of the two of them would be hired for
an open position at Pendleton. On a color-coded spreadsheet
classifying IDOC employees based on their experience,
Ripberger’s name appeared in gray, which meant she was
“good to go” for continued employment.
Ripberger and other IDOC employees learned about the
decision to privatize substance abuse counseling services at a
meeting on August 13, 2010. Employees were told that they
6 No. 13-2070
would no longer be employed by IDOC but that they could
apply for positions with Corizon. The hiring process was
expected to be quickly completed over the next week so that
Corizon could completely take over the substance abuse
counseling services effective September 1, 2010.
Schoenradt was present at the meeting along with Alan
Finnan, the Superintendent of Pendleton. At that meeting,
Ripberger was standing by Superintendent Finnan and
Schoenradt when she said to Finnan, “I’m kind of feeling on
the short end of the stick here.” Ripberger says she was
referring to her support of Orton-Bell and her discrimination
claim. She testified that Finnan replied, “There might be a
reason for that.” In her deposition, Ripberger acknowledged
that she knew at the time that there would no longer be a
substance abuse counselor inside the Reformatory, and so she
asked Schoenradt where he was planning to send her. She
remembers Schoenradt telling her that he thought he had
“something else” in mind for her. Ripberger recalls that after
this exchange, Finnan asked to speak with Schoenradt pri-
vately and they left together. Schoenradt, for his part, recalls
speaking with many Pendleton employees that day but does
not recall talking to Ripberger specifically.
D. Corizon’s Hiring Process
After the privatization announcement, interested IDOC
employees were instructed to apply and interview for a
position with Corizon. All seven substance abuse counselors
working at Pendleton applied for the six positions then
available in light of the decision to eliminate counseling
services in the Reformatory. Because Corizon wanted to retain
No. 13-2070 7
IDOC employees whenever possible, it conducted cursory
interviews to determine which IDOC employees wanted to
begin working for Corizon. Representatives from Corizon
visited IDOC facilities to conduct interviews between August
16 and 18. Corizon employees Royace Gibson and Mary
Mansfield1 interviewed Ripberger and asked only why she
wanted to be a substance abuse counselor. Ripberger believes
that other applicants received more thorough interviews and
that her interview was a pretense.
Schoenradt explained that to maintain continuity of care,
Corizon hired the six substance abuse counselors who had
been working in the Outside Dorm and the Community
Facility for the six positions it needed to fill in those areas.
Because the position in the Reformatory was eliminated,
Ripberger was not offered a position at Pendleton. A Corizon
recruiter called her on August 19, 2010, and informed her that
although the counseling position in the Reformatory at
Pendleton was being eliminated, there were positions available
at the Miami or Putnamville Correctional Facilities. Although
Ripberger denies “slamming” down the phone, she acknowl-
edges that she informed the recruiter that she had no interest
in traveling, warned her never to call again, and hung up the
phone. Earlier that same day, Ripberger had appeared with
Orton-Bell at the final hearing on her discrimination complaint.
Finnan was present and testified at the hearing, and although
Ripberger did not interact with him, she maintains that he
seemed “surprised” and “irritated” to see her there. Shortly
1
The district court erroneously identified Mansfield as an IDOC employee.
8 No. 13-2070
thereafter, Ripberger received the call from Corizon informing
her that she would not be hired at Pendleton.
Ripberger instituted this suit alleging sex discrimination,
retaliation, and age discrimination claims under Title VII and
the ADEA. The district court granted Corizon’s motion for
summary judgment. The court acknowledged that Ripberger
was a “qualified and capable” substance abuse counselor but
concluded that the evidence showed only that she lost her job
because she was the “unfortunate victim” of a reduced work
force in the wake of IDOC’s privatization of its substance abuse
counseling program. Ripberger appeals.
II.
We review the district court’s grant of summary judgment
de novo, construing all facts and reasonable inferences in the
light most favorable to Ripberger. See, e.g., Hutt v. AbbVie Prods.
LLC, 757 F.3d 687, 691 (7th Cir. 2014). We first consider
Ripberger’s argument that the district court erred in granting
summary judgment on her claims of sex and age discrimina-
tion. Employment discrimination under Title VII or the ADEA
may be proven using either the so-called “direct” or “indirect
method.” Andrews v. CBOCS W., Inc., 743 F.3d 230, 234 (7th Cir.
2014). Ripberger takes issue with the district court’s decision to
analyze her evidence separately under both the direct method
and the indirect McDonnell Douglas burden-shifting approach,
see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
claims that the court should have instead considered what she
characterizes as the “totality” of the evidence. It is true that we
have noted that “it is debatable whether the two methods are
sharply distinguishable,” Hutt, 757 F.3d at 691 because “when
No. 13-2070 9
all is said and done, the fundamental question at the summary
judgment stage is simply whether a reasonable jury could find
prohibited discrimination.” Bass v. Joliet Pub. Sch. Dist. No. 86,
746 F.3d 835, 840 (7th Cir. 2014); see also Coleman v. Donahoe, 667
F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring) (“By now …
the various tests that we insist lawyers use have lost their
utility… . 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.”). But contrary to Ripberger’s assertion,
none of the cases she cites explicitly disavows the use of the
direct and indirect McDonnell-Douglas burden-shifting method
as an appropriate framework for answering the ultimate
question of whether a plaintiff has marshaled sufficient
evidence to create a triable issue of fact. Moreover, as will be
discussed in detail, there is no reason to believe that
Ripberger’s claims would succeed regardless of how the
evidence is viewed. So it ultimately makes no difference
whether or not the district court collapsed the direct and
indirect methods for proving discrimination.
A. Sex Discrimination
We begin with her sex discrimination claim. Title VII
forbids an employer from refusing to hire or otherwise
discriminating against an individual “with respect to his
compensation, terms, conditions, or privileges of employment”
on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Without specifi-
cally referencing the direct or indirect method, Ripberger
10 No. 13-2070
simply argues that she presented evidence of sex discrimina-
tion. Under the direct method, Ripberger may rely on direct or
circumstantial evidence of discrimination sufficient to permit
a trier of fact to conclude that unlawful discrimination moti-
vated Corizon not to hire her. See Bass, 746 F.3d at 841.
Ripberger may create an inference of discriminatory intent
using direct evidence (that is, evidence of discriminatory intent
without resort to inference) or circumstantial evidence such as
suspicious timing or ambiguous statements, evidence that
others outside the protected class were systematically treated
better, or evidence that the employer gave a pretextual reason
for the adverse employment action. Hutt, 757 F.3d at 691; Good
v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012)
(listing circumstantial evidence that may create an inference of
discrimination); Naficy v. Ill. Dep’t of Human Serv., 697 F.3d 504,
513 (7th Cir. 2012). Whether explicitly considered under the
“direct method” or not, Ripberger’s evidence of sex discrimina-
tion is too thin to permit a reasonable factfinder to conclude
she was not offered a position by Corizon because of her sex.
At the outset, we note that there is nothing in Corizon’s
hiring process on its face that suggests it is guilty of sex
discrimination. By the beginning of September 2010, Corizon
had hired 59 former IDOC substance abuse counselors at
facilities throughout Indiana. Thirty-five of those counselors,
or 59%, were female. At Pendleton itself four of the six counsel-
ors hired were female—67%. There is thus no evidence that
Corizon gave males preferential treatment in its hiring deci-
sions. See Good, 673 F.3d at 675. (evidence that employees
outside the protected class received systematically better
treatment may create an inference of discrimination).
No. 13-2070 11
Her primary evidence of sex discrimination is the fact that
Randy Smith was hired by Corizon despite the fact that he was
less qualified than Ripberger. Because it is undisputed that
Ripberger was qualified for a substance abuse position, the
question under either the direct or indirect method is whether
Corizon has advanced a legitimate reason for hiring Smith
instead of Ripberger. See Hitchcock v. Angel Corps., Inc., 718 F.3d
733, 737-38 (7th Cir. 2013) (when prima facie case and pretext
analysis overlap it makes sense to inquire directly into legiti-
macy of employer’s stated nondiscriminatory reason for its
action). Corizon presented evidence that when it took over
counseling services for IDOC, its primary goal was to hire as
many existing IDOC substance abuse counselors as possible
(with the exception of those appearing on the no-hire list) and
maintain continuity of care. Unfortunately, the Reformatory
position where Ripberger had most recently been working was
eliminated. Thus, Corizon staffed the six remaining available
positions with those substance abuse counselors who were at
that time working in the Outside Dorm or the Community
Industrial Facility. At the time of the transition, Randy Smith
had a caseload in the Outside Dorm. Schoenradt testified that
when he made his staffing plan he did not know whether
Smith would seek employment with Corizon because of his
military duties. He thus placed Ripberger’s name and Smith’s
name on the same line for the position Smith had held in the
Outside Dorm to indicate that if Smith did not apply the slot
would be given to Ripberger. Because it was Smith’s caseload,
when he did apply for the position, it was given to him.
Seen in this light, the undisputed fact that Ripberger was
more qualified than Smith does not raise an inference of sex
12 No. 13-2070
discrimination. Instead, it shows that Corizon valued continu-
ity of care over experience. Ripberger lists many reasons why
she believes this is a poor approach to substance abuse counsel-
ing and why she would have been a superior choice for the
position. But none of her reasons cast doubt on the legitimacy
of Corizon’s assertion that it hired Smith to fill the open
position in the Outside Dorm because he had previously been
working for IDOC in that position. See Cung Hnin v. TOA
(USA), LLC, 751 F.3d 499, 506 (7th Cir. 2014) (plaintiff may
establish pretext with evidence that employer’s proffered
reason is phony or a lie for the real reason). As we have stated
repeatedly, it is not our province to sit as a super-personnel
department evaluating the wisdom of an employer’s staffing
decisions. E.g., Widmar v. Sun Chem. Corp., — F.3d. — 2014 WL
6467287 at *6 (7th Cir. Nov. 19, 2014); Silverman v. Bd. of Educ.,
637 F.3d 729, 738 (7th Cir. 2011) (ultimately irrelevant whether
employer’s reason was “wise, fair, or even correct” so long as
it was real reason for adverse employment action) (citation and
internal quotations omitted).
Ripberger repeatedly emphasizes that at the time Smith
was hired he had less experience and also did not possess the
requisite certification for the position. Moreover, he never did
become certified. Corizon gave the substance abuse counselors
thirty days to pass the test for certification and licensing, but
Smith never met his obligation to do so.2 After several warn
2
The parties briefs do not illuminate the precise nature of the required
certification, but a memo in the record discusses Smith’s failure to “become
certified through CADAC.” Presumably this refers to the licensing and
(continued...)
No. 13-2070 13
ings, Smith was ultimately terminated the following year
(August 2011) on account of his failure to ever obtain the
required certification. Ripberger points to Smith’s later
termination as evidence of sex discrimination. But the fact that
in hindsight Ripberger may have been a better choice than
Smith does nothing to establish that he was hired over
Ripberger because she is a female. If anything, it may demon-
strate Corizon’s short-sightedness in prioritizing continuity of
care over experience and certification, but as discussed above,
it is not our province to assess the wisdom of Corizon’s
personnel decisions.
Ripberger also claims in a single sentence that there was a
pattern of sex discrimination, as evidenced by Orton-Bell’s
termination when she complained about sex discrimination
and the fact that Ripberger was not hired by Corizon after
supporting Orton-Bell. Not only is this argument waived
because it is perfunctory and undeveloped, Bass, 746 F.3d at
841 n.1 (7th Cir. 2014), there is no evidence in the record of a
“pattern” of sex discrimination, especially by Corizon. Corizon
had nothing to do with Orton-Bell’s termination by IDOC
based on the alleged affair with her male coworker. Although
the circumstances surrounding Orton-Bell’s termination may
be troubling, see Orton-Bell, 759 F.3d at 778 (remanding Orton-
Bell’s sex discrimination claim for further discovery into
IDOC’s more favorable treatment of her male coworker),
2
(...continued)
certification requirements for “certified alcohol and drug counselors
(CADCs).” http://education-portal.com/cadc_degree.html.
14 No. 13-2070
Ripberger provides no information to support her conclusion
that there was a “pattern” of sex discrimination or that anyone
discriminated against her on the basis of sex.
And although Ripberger fails to explicitly argue her case
using the indirect McDonnell-Douglas framework, we note that
her sex discrimination claim fails under this approach as well.
A plaintiff establishes a prima facie case of discrimination
under the indirect method with evidence that (1) she is a
member of the protected class; (2) she was qualified for the
position; (3) she suffered an adverse employment action; and
(4) similarly-situated employees outside of the protected class
received more favorable treatment. Martino v. W. & S. Fin. Grp.,
715 F.3d 195, 202 (7th Cir. 2013). The only disputed element
here is whether Ripberger suffered an adverse employment
action. Corizon argues that there was no adverse employment
action given that it offered her a potential position at either the
Miami or Putnamville institutions. Construing the facts in the
light most favorable to Ripberger, a jury could conclude that
she reasonably believed she was applying for a position at
Pendleton. In addition to being the location of her current job,
Pendleton was much closer to Ripberger’s home than either
Miami or Putnamville; thus, positions at either of those
facilities could reasonably be viewed as a material change in
the terms, conditions, or privileges of her employment. See
Brewer v. Bd. of Tr. of Univ. of Ill., 479 F.3d 908, 915 (7th Cir.
2007) (reciting standard for adverse employment action).
Once Ripberger establishes a prima facie case, the burden
shifts to Corizon to articulate a legitimate, nondiscriminatory
reason for its decision. As discussed above, Schoenradt
explained that after the Reformatory position was eliminated,
No. 13-2070 15
he decided to fill the six remaining positions with those
counselors already holding a caseload in the therapeutic
communities in which Corizon was hiring. Schoenradt stated
that although he believed Ripberger was a good employee, he
thought that continuity of care for both clients and counselors
tipped the scales in favor of hiring Smith. As the discussion
above makes clear, Ripberger has failed to cast suspicion on
this stated reason. The evidence in the record suggests that in
the rapid transition from IDOC to Corizon, Corizon sought to
minimize disruption wherever possible by retaining currently
qualified IDOC employees in the positions they already held.
Ripberger claims that staff at Pendleton were interchangeable
and that she could easily have moved between the Reforma-
tory, the Outside Dorm, and the Community Industrial
Facility, something she had done in the past. Thus, the argu-
ment goes, it only makes sense that she should have been hired
in lieu of Smith, who was less qualified and less experienced.
But as compelling as her claim may be, it does not undercut the
legitimacy of Corizon’s explanation that it filled openings
when possible with those employees already working in those
positions.
B. Age Discrimination
The ADEA makes it unlawful for an employer to refuse to
hire or otherwise discriminate against an individual “because
of such individual’s age.” 29 U.S.C. § 623(a)(1). Ripberger was
59 in August 2010 and thus qualifies for protection under the
ADEA, which is limited to individuals forty and over. 29 U.S.C.
§ 631(a). As with her Title VII claims, she may avoid summary
judgment by providing either direct or circumstantial evidence
that would allow a reasonable juror to infer that her employer
16 No. 13-2070
acted for discriminatory reasons. Fleishman v. Cont’l Cas. Co.,
698 F.3d 598, 603 (7th Cir. 2012). In the case of the ADEA,
Ripberger must produce evidence from which a jury could
infer that her age “was a but-for cause of [her] termination.” Id.
at 604; see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009) (holding that under ADEA’s language prohibiting
discrimination “because of” age plaintiff must prove at trial
that age was but-for cause of adverse employment action).
We need not belabor the various avenues for proving
discrimination under the direct and indirect method, because
Ripberger fails to point to any evidence that Corizon failed to
hire her on account of her age. She argues cursorily that the
evidence supporting her sex discrimination claim also estab-
lishes that Corizon’s stated reason for refusing to hire her was
a pretext for age discrimination. Specifically, she points out
that Corizon hired younger less-qualified employees who
failed to pass the test for certification and license within the
required 30-day time frame given by Corizon. But as discussed
above, this evidence does not establish that Corizon sought to
avoid hiring older employees or that it passed over Ripberger
because of her age. Instead, it simply reaffirms that it chose
employees with active caseloads in the Correctional Industrial
Facility and the Outside Dorm because those were the posi-
tions it needed to fill. And although Ripberger again points out
that she was more qualified than those hired and could have
easily worked in either of those settings as she had done in the
past, there is no evidence that her caseload at the time included
inmates from either area, whereas all of the other substance
abuse counselors hired did counsel inmates in the Correctional
Industrial Facility and the Outside Dorm.
No. 13-2070 17
Ripberger points to no other evidence in the record that
Schoenradt or any other decisionmaker harbored any discrimi-
natory animus based on age. Indeed, the notion that
Schoenradt desired to eliminate Ripberger because of her age
is unlikely given that he had hired Ripberger to return to work
at Pendleton just two years before when she was 57 years old.3
See Rand v. CF Indus., Inc., 42 F.3d 1139, 1147 (7th Cir. 1994) (“It
seems rather suspect to claim that the company that hired him
at age 47 ‘had suddenly developed an aversion to older people’
two years later.”) (quoting Lowe v. J.B. Hunt Transport, Inc., 963
F.2d 173, 174-75 (8th Cir. 1992)). Any inference of age discrimi-
nation is further undercut by the fact that of the six employees
Corizon hired at Pendleton, three were relatively close to
Ripberger’s age: Anna Sasin was 51, Diane Diggins was 57, and
Avery Thomas was over 60. Cf. O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312-13 (1996) (no inference of age
discrimination can be drawn from the replacement of one
worker with another worker insignificantly younger). Simply
put, Ripberger has presented no evidence that her age moti-
vated Corizon’s decision not to hire her.
C. Retaliation
That leaves Ripberger’s Title VII retaliation claim, which
requires her to demonstrate that “the desire to retaliate was the
but-for cause of the challenged employment action.” Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013);
3
When Ripberger returned to work in 2008, she was interviewed by
Schoenradt and Kathy Griffin. She testified that although she was uncertain
who decided to hire her, it “was probably the two of them together,” with
the superintendent giving the final approval.
18 No. 13-2070
42 U.S.C. § 2000e-3(a). She maintains that she has presented
sufficient evidence of retaliation under both the direct and
indirect method as well as under the totality of the evidence.
Under the direct method, Ripberger must demonstrate (1) that
she engaged in statutorily protected activity; (2) that her
employer took an adverse employment action against her; and
(3) that the protected activity and the adverse employment
action are causally connected. Moultrie v. Penn Aluminum Int’l.,
LLC, 766 F.3d 747, 754 (7th Cir. 2014). As with sex and age
discrimination, retaliatory motive may be established through
circumstantial evidence such as suspicious timing, ambiguous
statements, evidence that the stated reason for the employment
decision is pretextual and “other bits and pieces from which an
inference of discriminatory intent might be drawn.” See Harper
v. C.R. England, Inc., 687 F.3d 297, 307 (7th Cir. 2012) (citation
and internal quotations omitted); see also Langenbach v. Wal-
Mart Stores, Inc., 761 F.3d 792, 800 (7th Cir. 2014).
It is undisputed that Ripberger engaged in statutorily
protected activity by assisting Orton-Bell with her discrimina-
tion complaint. See 42 U.S.C. § 2000e-3(a) (prohibiting em-
ployer retaliation because an employee has opposed an
unlawful employment practice or has “testified, assisted, or
participated in any manner” in a Title VII “investigation,
proceeding, or hearing”). And as discussed above, she has also
demonstrated that she suffered an adverse employment action
when Corizon did not offer her a position at Pendleton. The
only remaining question then is whether Ripberger has shown
a causal connection between her support of Orton-Bell and
Corizon’s decision.
No. 13-2070 19
Ripberger provides a laundry list of evidence that she
believes demonstrates the required causal connection. First is
her exchange with Finnan where she told him she was feeling
on the “short end of the stick” and he replied that there “might
be a reason for that.” Although she claims that she was
referring to her support for Orton-Bell, there is no evidence
that Finnan knew what Ripberger meant by her remark. (It is
certainly possible that Finnan assumed Ripberger was referring
to the fact that her position in the Reformatory was being
eliminated, although that would be a question for the jury to
decide.) And although Finnan’s statement may be ambiguous,
it does little to support an inference of retaliation. Circumstan-
tial evidence “must point directly to a discriminatory reason
for the employer’s action,” Mullin v. Temco Mach., Inc., 732 F.3d
772, 777 (7th Cir. 2013) (citation and internal quotation marks
omitted), and this unexplained conversation falls short of that
standard.
More importantly, Ripberger has not established that
Finnan had any say in Corizon’s hiring decisions. It is clear
from the evidence that Schoenradt made the hiring decisions
for Corizon, and Ripberger has provided nothing beyond her
own speculation that Finnan had some “say so” in the decision-
making. See Dorsey v. Morgan Stanley, 507 F.3d 624, 628 (7th Cir.
2007) (plaintiff’s evidence that allegedly biased complex
manager played role in adverse decision made by regional
manager was “simply too speculative” to establish involve-
ment).
Given Ripberger’s failure to prove Finnan was involved in
the decision, it is irrelevant that he may have disapproved of
her involvement in Orton-Bell’s claim. Likewise, the fact that
20 No. 13-2070
Finnan spoke with Schoenradt in private on the day the
privatization was announced does not create an inference that
he instructed Schoenradt not to hire Ripberger or otherwise
became involved in the hiring process. And the fact that he was
surprised and irritated to see her at Orton-Bell’s final hearing
on August 19 does not support an inference of retaliation, even
when taken together with the fact that she later received a call
from the Corizon recruiter informing her that she would not be
hired back into a position at Pendleton. Whatever probative
value these facts may have as to Finnan’s thoughts about
Ripberger supporting Orton-Bell, they tell us nothing about
whether he was a decisionmaker in Corizon’s hiring process.
And without that critical link, there is no inference of retalia-
tion to be drawn from Ripberger’s evidence regarding Finnan.
In his affidavit, Schoenradt stated that at “no time while
making the hiring and placement decisions did I consider
Ripberger’s participation in a grievance filed by her former
IDOC supervisor, Connie Orton-Bell, against IDOC.” None of
Ripberger’s evidence about Finnan calls Schoenradt’s affirma-
tion into question, and without evidence of Finnan’s input into
the decision Ripberger cannot show causation. See Willis v.
Marion Cnty. Auditor’s Office, 118 F.3d 542, 547 (7th Cir. 1997)
(affirming judgment as a matter of law where plaintiff pre-
sented no evidence that biased employees influenced em-
ployer’s decision to discharge plaintiff); see also Schandelmeier-
Bartels v. Chi. Park Dist., 634 F.3d 372, 379-81 (7th Cir. 2011)
(collecting cases and discussing what level of involvement in
the decision by a biased non-decisionmaker is necessary to
impute liability to employer for that employee’s bias).
No. 13-2070 21
Ripberger also claims an inference of retaliation can be
drawn from a conversation she had with Corizon employee
Mary Mansfield. On Ripberger’s last day (August 31, 2010),
Mansfield took her to lunch. During lunch, Mansfield asked
Ripberger whether she thought Corizon had not hired her
because she had helped Orton-Bell with her complaint against
IDOC. Ripberger said that yes, she did think that was the
reason, and Ripberger testified that Mansfield replied, “I do
too.” Mansfield’s speculation as to why Ripberger was not
hired is exactly that—speculation. Not only does this fall short
of creating an inference of unlawful retaliation, it too is
irrelevant without evidence that Mansfield played some role in
the hiring decision or had some other inside information that
would lend credibility to her opinion as to why Ripberger was
not hired. Cf. Metzger v. Ill. State Police, 519 F.3d 677, 682 (7th
Cir. 2008). Ripberger has no such evidence, and Mansfield
herself testified that she had no role in deciding which IDOC
employees were offered employment by Corizon and did not
know how that decision was made.
Ripberger has a lengthy list of other evidence that she
claims shows retaliation: that she was not told where her
interview with Corizon would be; that her interview was
shorter than that of other IDOC employees; that her name
appeared on Schoenradt’s “good to go” list; that she was not
listed as one of the few “do not hire” individuals; and that
there existed what she alleges was a “pattern of retaliation”
against herself and Orton-Bell. Whether considered together or
in isolation, none of these facts establish a causal link between
her support of Orton-Bell and Corizon’s decision not to hire
her.
22 No. 13-2070
First, she offers no evidence as to who should have in-
formed her about the interview, nor did she actually miss the
interview. The fact that she was unsure at some point where
the interview would be held is largely irrelevant. Similarly, the
interviews were cursory in nature because Corizon sought
simply to ascertain which IDOC employees were interested in
retaining their current positions. Ripberger offers no evidence
to undercut this claim, nor does she point to testimony from
any other employees stating that they received more thorough
or substantive interviews than she did. And the fact that she
was listed on Schoenradt’s list as “good to go” does nothing to
prove Corizon retaliated against her: it simply demonstrates
that he believed she was fully qualified to remain in her
position—a position that, regrettably, was eliminated when
Corizon took over. Indeed, presumably Schoenradt continued
to believe Ripberger was a valuable employee; otherwise it
seems unlikely that Corizon would offer her one of the two
available positions at neighboring facilities. Finally, Ripberger
points to no evidence to support the alleged “pattern of
retaliation” by Corizon, a pattern that would be particularly
difficult to prove in any event given that IDOC, and not
Corizon, terminated Orton-Bell.
That leaves Ripberger’s reliance on the temporal proximity
between her appearance at Orton-Bell’s final hearing and the
call she received later that day from the Corizon recruiter
informing her that she would not be offered a position at
Pendleton. But she has no evidence that the call did not fit
within the general timing of Corizon’s hiring process or was
otherwise suspicious. There is also no evidence that Finnan,
whom Ripberger saw at the hearing, communicated that day
No. 13-2070 23
with anyone involved in the hiring decision. Thus, Ripberger
has nothing to establish retaliation beyond the suspicious
timing itself. But it is well established that “mere temporal
proximity between [the statutorily protected activity] and the
action alleged to have been taken in retaliation for that [activ-
ity] will rarely be sufficient in and of itself to create a triable
issue.” Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640,
644 (7th Cir. 2002); see also Sauzek v. Exxon Coal USA, Inc.,
202 F.3d 913, 918 (7th Cir.2000) (“Speculation based on suspi-
cious timing alone, however, does not support a reasonable
inference of retaliation; instead, plaintiffs must produce facts
which somehow tie the adverse decision to the plaintiffs’
protected actions.”). Given the lack of evidence suggesting that
the timing of the phone call was anything but coincidental, this
is not the rare case where temporal proximity alone may
suffice to suggest illegitimate motive.
Ripberger’s claim fares no better under the indirect method.
Ripberger may establish a prima facie case of retaliation by
showing that she (1) engaged in statutorily protected activity;
(2) met her employer’s legitimate expectations; (3) suffered an
adverse employment action; and (4) was treated less favorably
than similarly situated employees who did not engage in
protected activity. Moultrie, 766 F.3d at 755. Ripberger engaged
in statutorily protected activity by helping Orton-Bell file her
discrimination complaint and attending her hearings as a silent
witness. The parties agree that Ripberger was meeting her
employer’s expectations and Ripberger has also shown that
other IDOC counselors who did not engage in statutorily
protected activity were hired back into their positions by
24 No. 13-2070
Corizon. Finally, we can assume that Corizon’s failure to offer
her a position at Pendleton constitutes an adverse job action.
As should be readily apparent by now, Corizon has offered
a legitimate non-retaliatory reason for its decision not to hire
Ripberger, and nothing in her evidence suggests that Corizon’s
stated reason—ensuring a seamless transition and maintaining
continuity of care with both the offenders and the counsel-
ors—is unworthy of belief. Thus, Corizon is entitled to sum-
mary judgment on Ripberger’s retaliation claim as well.
III.
As the district court noted, Ripberger was a qualified
substance abuse counselor who was the unfortunate victim of
a reduced workforce at the Pendleton facility when IDOC
privatized its substance abuse counseling program. Regardless
of how the evidence is viewed, it is simply insufficient to
demonstrate any unlawful motivation behind Corizon’s failure
to hire her. We thus affirm the judgment of the district court
granting summary judgment to Corizon.