Janice LaRiviere v. Board Trustees of Southern Ill

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3188
JANICE LARIVIERE,
Plaintiff‐Appellant,
v.
BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 16‐1138‐DRH — David R. Herndon, Judge.
____________________
ARGUED MARCH 27, 2019 — DECIDED JUNE 5, 2019
____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
KANNE, Circuit Judge. Janice LaRiviere is an African‐
American woman who worked at Southern Illinois
University–Edwardsville (“SIUE”) for fifteen years. After
several conflicts with coworkers, LaRiviere was notified that
she would not be reappointed to her position. Immediately
afterwards, she was transferred to a new office with less than
satisfactory conditions. She sued SIUE and her supervisors.
2 No. 18‐3188
The district court granted summary judgment for defendants
on all claims. Because LaRiviere has not identified evidence
that her ethnicity was the reason for her termination or of a
causal connection between protected activity and her
termination, we affirm.
I. BACKGROUND
The following facts are undisputed. In 2002, Southern
Illinois University–Edwardsville hired Janice LaRiviere on a
continuing appointment as an Assistant Director of Building
Maintenance. Her time with the Maintenance Department
was uneventful until March of 2011, when LaRiviere learned
that her supervisor was retiring. She spoke with Kenneth
Neher—SIUE’s Vice Chancellor for Administration—about
becoming the new Director of Facilities Management. She
asked if SIUE would waive two requirements: that the
position be publicly posted and filled by someone with an
engineering degree (which LaRiviere does not have). Neher
declined to disregard those requirements and hire LaRiviere.
Instead, Neher hired Paul Fuligni to be the Director of Fa‐
cilities Management. Fuligni was a (nearly) thirty‐year Navy
veteran—having served as a civil engineer with supervisory
authority over hundreds of employees. Despite his manifest
qualifications, LaRiviere believed she had been unfairly
passed over. She filed two state court discrimination lawsuits
challenging SIUE’s hiring decisions. Both were dismissed.
The state court dismissed the second lawsuit on August 14,
2014; the appeal ended in July 2015.
Meanwhile, Fuligni hired Donna Meyer to fill a newly cre‐
ated position—Associate Director of the Facilities Depart‐
ment. LaRiviere reported directly to Meyer, who reported to
No. 18‐3188 3
Fuligni. She resented the management styles adopted by her
new supervisors.
Over the next several years, LaRiviere had several conflicts
with coworkers. On multiple instances, she refused to sign a
Position Description Questionnaire, a document prepared by
her supervisor which defined her duties and responsibilities.
In April 2013, LaRiviere refused to sign an updated PDQ—
prepared by Meyer—because she objected to the new duties
and responsibilities outlined within. In early 2016, Meyer
gave LaRiviere an updated PDQ which, LaRiviere believed,
did not accurately reflect her true duties. Ultimately, she
signed the document but also wrote that she was “signing un‐
der duress.”
The record contains other contentious workplace interac‐
tions. During one meeting, LaRiviere referred to a group of
architects as “paper pushers” and stated that she should re‐
ceive a bonus for meeting with all of “these people.” In March
2016, LaRiviere submitted sick leave and vacation requests for
a two‐week period. She wasn’t ill and tentatively planned to
work each of those days. But LaRiviere didn’t want to comply
with a recently implemented 48‐hour notice requirement for
leave in the event her plans changed.
Notwithstanding these incidents, Lariviere received posi‐
tive performance reviews. During her time at SIUE, she re‐
ceived no written reprimands and only one oral reprimand
(for refusing to discipline a subordinate employee).
On May 5, 2016, SIUE notified LaRiviere that she would
not be reappointed to her position. Pursuant to the applicable
personnel policies, that meant her employment would end in
a year. The district court found—and LaRiviere doesn’t
4 No. 18‐3188
deny—that employees who have not been reappointed are of‐
ten transferred to a different office to serve out their term.
That’s exactly what happened here. After making the decision
to not reappoint LaRiviere, Fuligni transferred her to a build‐
ing located at 420 University Park Drive.
The recently‐built University Park building contained
both offices and laboratories. Upon relocating, LaRiviere
identified a number of deficiencies—including discolored
drinking water, high humidity, and a refrigerator with appar‐
ently hazardous material (labeled “Student Sheep Brains”).
Maintenance addressed all of LaRiviere’s concerns, except for
the high humidity, within ten days. After LaRiviere’s termi‐
nation, SIUE replaced her with a Caucasian man without a
college degree.
LaRiviere brought suit against SIUE, Neher, Fuligni, and
Meyer. Her Fourth Amended Complaint advanced claims for
discrimination, retaliation, infliction of emotional distress,
and breach of contract. At summary judgment, the district
court granted judgment for the defendants on all counts.
LaRiviere appealed the judgment with respect only to her Ti‐
tle VII discrimination and retaliation claims.
II. ANALYSIS
We review the district court’s summary judgment decision
de novo and draw all reasonable inferences in LaRiviere’s fa‐
vor. Burritt v. Ditlefsen, 807 F.3d 239, 248 (7th Cir. 2015). The
movant bears the burden of demonstrating the absence of
genuine issues of material fact. Spierer v. Rossman, 798 F.3d
502, 507 (7th Cir. 2015). If that occurs, the non‐moving party
must “come forward with specific facts showing that there is
a genuine issue for trial.” Id. Because LaRiviere has raised
No. 18‐3188 5
only Title VII racial discrimination and retaliation claims on
appeal, we limit our analysis to those claims.
The district court analyzed LaRiviere’s Title VII claims by
inquiring whether she had identified any “direct” or “indi‐
rect” evidence. This court has roundly rejected using “dispar‐
ate methods” to analyze evidence of discrimination. Ortiz v.
Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). Arbi‐
trarily categorizing evidence as “direct” or “indirect” is un‐
helpful and unnecessarily formalistic. In racial discrimination
suits, the question we seek to answer is “[w]hether a reasona‐
ble juror could conclude that [the defendant] would have kept
h[er] job if [s]he had a different ethnicity, and everything else
had remained the same.” Id. at 764.
Unmistakable evidence of racial animus—racial epithets
or explicitly race‐motivated treatment—makes for simple
analysis. The more complicated cases arise when there is no
smoking gun showing intentional discrimination. Then,
courts may draw upon the familiar McDonnell Douglas
burden‐shifting framework to determine if triable issues exist.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
that framework, LaRiviere has the initial burden of
establishing a prime facie case of discrimination or retaliation,
which involves showing 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.” McKinney v. Office of Sheriff
of Whitley Cty., 866 F.3d 803, 807 (7th Cir. 2017) (citation
omitted).
6 No. 18‐3188
We begin with discrimination. LaRiviere primarily argues
that she suffered an adverse employment action when SIUE
reassigned her to a new building. But that part of the prima
facie case isn’t in dispute. Everyone agrees that her termina‐
tion was adverse, and LaRiviere’s transfer to a new office with
subpar working conditions seems to be as well. Vance v. Ball
State Univ., 646 F.3d 461, 473 (7th Cir. 2011) (“[I]f the chal‐
lenged action would discourage other employees from com‐
plaining about employer conduct that violates Title VII, it
constitutes an adverse employment action.”). An employee
can’t sue under Title VII for employment‐related mistreat‐
ment, however, unless the mistreatment was related to mem‐
bership in a protected class. And the record provides no sup‐
port for such a finding.
LaRiviere makes no attempt to argue that coworkers ever
made racially derogatory comments to her or others. She
doesn’t identify appreciable circumstantial evidence of racial
animus either. In his deposition, Neher testified that employ‐
ees who have not been reappointed are commonly transferred
to another building to serve out their term. LaRiviere never
identified contradictory evidence, nor does she challenge that
assertion on appeal. Rather, she merely argues that “[s]imi‐
larly situated white employees were not treated as shabbily as
Plaintiff” because “[n]one of the other white managers in Fa‐
cilities Management were ostracized and forced to join”
LaRiviere in the other building. (Appellant’s Br. at 18.) That’s
not enough to create a triable issue. SIU didn’t fire any other
Facilities managers around this time, and LaRiviere can’t cre‐
ate a genuine issue by arguing that “there is no evidence in
this case anyone else was terminated at this time but [me].”
Kampmier v. Emeritus Corp., 472 F.3d 930, 939 (7th Cir. 2007).
Despite the district court’s reliance on the obsolete
No. 18‐3188 7
direct/indirect terminology, the court properly concluded
that there were no triable issues of fact.
Her retaliation claim fares no better. LaRiviere argues that
SIUE terminated her in retaliation for her prior state court
lawsuits against SIUE. But her appeal in the second state court
suit ended in July 2015. SIUE didn’t make the decision to not
reappoint LaRiviere until May 5, 2016, approximately ten
months later. In her brief, she admits that “suspicious timing
alone” may not support a reasonable inference of retaliation
but argues that suspicious timing “together with other facts”
may. Appellant’s Br. at 16 (citations omitted). She never
indicates what those other facts might be. Like with her
discrimination claim, the record contains no evidence of SIUE
decision‐making premised on those state court lawsuits, and
there aren’t any similarly‐situated employees. We’ve
repeatedly held that similar intervals between the protected
activity and adverse action are too long to suggest a causal
nexus without additional evidence. See, e.g., Leonard v. E.
Illinois Univ., 606 F.3d 428, 432 (7th Cir. 2010); Paluck v.
Gooding Rubber Co., 221 F.3d 1003, 1010 (7th Cir. 2000). The fact
that SIUE decided to terminate LaRiviere ten months after her
lawsuit ended does not, by itself, create a triable issue of fact.
The district court properly granted judgment for the
defendants on the Title VII retaliation claim.
III. CONCLUSION
LaRiviere did not identify evidence showing that SIUE ter‐
minated her because she was a member of a protected class.
And there’s also insufficient evidence to support her claim
that SIUE terminated her employment because she previously
filed discrimination lawsuits. For these reasons, we AFFIRM.