Pooja Khungar v. Access Community Health Networ

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-1958

POOJA KHUNGAR,

Plaintiff-Appellant,

v.

ACCESS COMMUNITY HEALTH NETWORK,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 18-cv-01454 — Andrea R. Wood, Judge.

____________________

ARGUED DECEMBER 10, 2020 — DECIDED JANUARY 19, 2021

____________________

Before SYKES, Chief Judge, and FLAUM and KANNE, Circuit

Judges.

KANNE, Circuit Judge. Dr. Pooja Khungar, a pediatrician at

Access Community Health Network, alleges that Access dis-

criminated against her on account of her national origin, race,

and religion, and retaliated against her for opposing that dis-

crimination. Access argues that it fired Khungar because she

was a bad employee and made a threatening statement.

2 No. 20-1958

The district court ruled in favor of Access and granted it

summary judgment on both claims. We agree with the district

court and therefore affirm its opinion and order.

I. BACKGROUND

Defendant Access Community Health Network operates

several Chicago-area health centers that provide affordable

medical care for underserved populations. Plaintiff Dr. Pooja

Khungar began working as a pediatrician at Kedzie Family

Health Center, one of Access’s clinics, in July 2014.

Khungar’s time at Access proved tumultuous. About a

year into her employment, in August 2015, she received a “fi-

nal warning” from Dr. Charles Barron—regional medical di-

rector and Khungar’s immediate supervisor—based on

Khungar’s accessing of a patient’s medical file to obtain a

coworker’s phone number, which Barron determined to be a

violation of the Health Insurance Portability and Accountabil-

ity Act (“HIPAA”). And in November of that year, Khungar

reported to Barron an earlier incident in which Alicia Maris-

cal, Kedzie’s health center manager, said to Khungar, “People

think you Indians are so nice, but you’re pretty pushy. Some

of you women can be real assertive sometimes.” Barron then

spoke with Khungar and Mariscal, who made no more

overtly inappropriate comments to Khungar thereafter.

But things at Kedzie really started deteriorating in May

2016, as complaints about Khungar began rolling in from Ac-

cess staff and the parents of her minor patients. These com-

plaints were typically routed through Dr. Tara De Jesus

(Kedzie’s only other pediatrician) or Mariscal—who logged

them in a software tool called “SafetyZone Portal”—to Barron

or Dr. Jairo Mejia, who became chief medical officer and

No. 20-1958 3

began supervising Access’s physicians, Khungar included, in

February 2016.

To summarize the complaints:

 In May, a patient’s mother complained that Khungar

had insulted her daughter and did not properly exam-

ine her. The same month, medical assistant Jasmine

Angel complained that Khungar insulted another

medical assistant, Gloria Rosales. Khungar later called

Angel a “back stabber” and lodged a complaint against

her based on a year-old Facebook post that Khungar

claimed was a HIPAA violation.

 In June, a patient’s mother complained that Khungar

told her son to stop taking his psychiatric medication

because she felt it would make him “impotent.” And

De Jesus complained that Khungar was sharing inap-

propriate personal information with patients and staff.

(Also in June, Access’s credentialing committee certi-

fied that Khungar was fully credentialed and “compe-

tent,” and Access then renewed her contract for two

more years.)

 In July, another parent complained that Khungar failed

to properly examine her daughter, who was later sent

to the emergency room for appendicitis. De Jesus also

reported that Khungar made an unauthorized adden-

dum to one of De Jesus’s treatment notes of a patient.

 In August, Mariscal documented a complaint about

Khungar refusing to treat patients who she believed ar-

rived late to their appointments; a mother complained

that Khungar had misdiagnosed her sons, who needed

surgery; and another parent complained that Khungar

4 No. 20-1958

failed to treat her child’s ear pain (De Jesus later found

the tip of a cotton swab lodged in the child’s ear).

These complaints were brought to the attention of Access’s

Human Resources department. For example, in June 2016,

Mejia wrote to Eleva Riley, Access’s Vice President of HR:

“You probably are aware of multiple situations with … Dr.

Khungar at Kedzie. As per her behavior, she is clearly not

mentally stable. We need to closely observe. … If you have

additional recommendations from an HR perspective, I’d be

happy to follow.”

And in July, after meeting with Barron to discuss Khun-

gar’s performance, Mejia emailed Stephanie Lilly at HR and

told her that Khungar’s situation is “[v]ery complicated.” He

intimated that he was considering recommending Khungar’s

termination but was concerned about the lack of other pedia-

tricians to cover her patients. Mejia told Lilly that he was

“keeping the situation on hold to observe how she behaves

and [would] make a decision accordingly.” Lilly responded,

“Yes, Dr. Khungar is a very complicated situation … . [S]he

causes conflict amongst staff and has little to no emotional in-

telligence. I think it’s inevitable that she’ll have to be let go

some time soon.”

The last complaint in August was the straw that broke the

camel’s back, prompting Mejia to officially recommend Khun-

gar’s termination to Riley. Mejia testified that he made this

decision in light of the nature and volume of the complaints,

that he made it alone, and that he was unaware of Khungar’s

race, religion, and national origin at the time.

Mejia went to Kedzie on September 28, 2016, and met with

Mariscal, De Jesus, and a regional manager to explain that he

No. 20-1958 5

would be recommending to HR that Khungar be issued the

ninety-day notice required under her employment agree-

ment. Mejia informed De Jesus that she would be responsible

for treating Khungar’s patients moving forward and that the

overflow would be referred to another clinic.

Later that day, Mejia emailed Riley and Lilly at HR:

I receive poor reports about Dr. Khungar almost

every week, and although I’ve been trying to enter-

tain this situation, her bad performance is putting

our patients and the organization at high risk. She

has several issues regarding patient care, bedside

manners, and the way she interacts with the staff at

the clinic. In some cases, patients have been at risk

because of her decisions. Cases are well docu-

mented. Last year, she was given a final notice, un-

der the direction of Dr. Barron. However, no change

has been noticed in her behavior. We have an enor-

mous amount of documentation including com-

plains [sic] from patients, employees and occurrence

reports on the safety zone. I’m recommending im-

mediate termination of this provider … . Please let

me know how to proceed.

Lilly responded that she would “begin gathering the in-

formation to substantiate our decision to terminate and then

meet with [Riley]. We will get back to you[] shortly.”

Riley then reviewed the SafetyZone Portal reports and

other complaints and approved Mejia’s recommendation. Ri-

ley testified that she was unaware of Khungar’s race, religion,

and national origin at the time.

A couple days later, another Access employee asked

Mariscal a question about the status of a prior complaint.

6 No. 20-1958

Mariscal responded, “I know we are compiling information

on Dr. Khungar, but a provider must speak to her about all

the complaints she is getting on treatment//care of patients. …

I don’t think these incidents have been addressed.” Mariscal

testified that she had been documenting complaints at Mejia’s

request and as part of her job duties. Mejia testified that they

were assembling the documentation for HR.

Mejia, Lilly, and Barron’s replacement1 met with Khungar

on November 21, 2016, and informed her that Access was trig-

gering the ninety-day notice per her agreement. Later that

day, Khungar emailed Mejia and Riley to assert that her past

complaints of “cultural insensitivity” had never been ad-

dressed. Khungar referred to an email she had sent to Maris-

cal in June 2016 about a conversation Khungar had with

Rosales, the medical assistant. Rosales had asked Khungar if

she believes in God and if she would ever date a Hispanic

man, and Khungar had asked Mariscal to talk to Rosales

about appropriate workplace conversations. Mariscal testi-

fied that she had spoken with Rosales, who became “sad and

stunned” at the accusations and said it was Khungar who

brought up God. Mariscal also testified that she later in-

formed Khungar of her conversation with Rosales.

Mejia quickly responded to Khungar’s November 21

email, affirming that Access takes such allegations seriously

but stating that “[n]one of these allegations were brought to

my attention prior to our termination meeting with you this

1 Barron left Access in August 2016, and Dr. Andres Mafla had by now

taken over as acting regional medical director. Mafla did not arrive until

after most of the pertinent events took place and was not involved in the

decision to terminate Khungar.

No. 20-1958 7

morning.” He also forwarded her email to Riley, who repeat-

edly attempted to schedule a meeting with Khungar, but

Khungar twice canceled the meeting because she was sick.

Khungar ultimately departed before the meeting took place.

On November 30, 2016, Khungar filed an EEOC charge

against Access, alleging discrimination on the basis of race,

sex, religion, and national origin. Khungar told Mariscal of

the EEOC charge the week after she filed it, but Riley testified

that she did not receive notice of it until December 23.

Things took another turn on December 10, when Khungar

received an important document concerning a patient’s vac-

cination as she sat near a group of medical assistants. Because

Khungar had already been given her ninety-day notice, she

said something to the effect of, “If anything happens to this

piece of paper, if there’s a fire, if there’s a flood, if somebody

rips this piece of paper, I can’t come back and sign it. We’re

going to lose a $20,000 vaccine.” But there is some disagree-

ment about what exactly was said; a medical assistant testified

that Khungar said, “What will happen if this place got on

fire?” According to Khungar, the medical assistant replied,

“Don’t do it!” But the medical assistant recalls saying, “Just

don’t do it when I’m here, I have kids.”

A physician later overheard the medical assistant discuss-

ing Khungar’s statement with a coworker and reported it to

HR because she perceived it to be threatening in nature. Riley

went to Kedzie to investigate the incident on December 14

and met with the physician and medical assistant involved.

Then she met with Khungar (for the first time) and told her,

“We heard that you threatened to burn down the workplace.”

Khungar says she asked if Riley was referring to jokes made

by Kedzie staff about her not being a good cook or her Indian

8 No. 20-1958

descent and said that she was offended that Riley would ac-

cuse her of being a threat. According to Riley, though, Khun-

gar responded, “That’s not what I said. What I said was, ‘what

happens if the place blows up when I leave.’”

Khungar denies saying this, but Riley testified that it

caused her to fire Khungar on the spot (and place a security

guard at the clinic’s door for several weeks). Riley memorial-

ized the conversation in a letter to Khungar a few days later:

[M]ost concerning to us, is that it was alleged that

you had threatened to burn down the Kedzie

[clinic]. When confronted with this allegation, you

admitted to a conversation in which a similar state-

ment was made, but indicated that you were only

kidding and that your actual statement was “What

will happen if the place blows up when I leave.”

Dr. Khungar, let me be clear. Such language is not

humorous … . Indeed, you threatening and/or im-

plying harm and destruction to ACCESS’ property

and potentially its staff and patients is something

that ACCESS takes very seriously and is simply un-

acceptable and will not be tolerated.

Khungar then amended her EEOC charge to add her De-

cember 14 termination and a retaliation claim. The EEOC is-

sued a right to sue notice, and Khungar filed her complaint in

the district court on February 26, 2018, alleging discrimination

and retaliation under Title VII of the Civil Rights Act of 1964.

In addition to the above allegations about Rosales’s discrimi-

natory remarks, Khungar asserts that Rosales placed Chris-

tian pamphlets in Khungar’s patient rooms and that De Jesus

mocked her Indian accent and said that she was the “anti-

christ,” “not a good Christian doctor,” “not of our back-

ground,” and doesn’t speak “good English”—but Khungar

No. 20-1958 9

admits that she never reported any of these incidents to Ac-

cess. She also asserts that Mariscal purposely excluded her

from certain meetings throughout her time at Access.

On May 7, 2020, the district court granted Access’s motion

for summary judgment on both claims. The court concluded

that Khungar’s discrimination claim failed because she “can-

not make out a prima facie case of discrimination” and the ev-

idence showed nondiscriminatory and nonpretextual reasons

for Khungar’s termination. As for her retaliation claim, Khun-

gar “failed to establish a genuine issue of material fact as to

whether [her] protected activity caused her termination.”

Khungar timely appealed.

II. ANALYSIS

We review the district court’s grant of summary judgment

de novo, construing facts in the light most favorable to Khun-

gar and drawing all reasonable inferences in her favor. Ma-

kowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir. 2011)

(citing Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010)).

“Summary judgment is appropriate where the admissible ev-

idence shows that ‘there is no genuine dispute as to any ma-

terial fact and the movant is entitled to judgment as a matter

of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A genuine issue of

material fact exists if ‘the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.’” Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). “[S]peculation is not sufficient to survive summary

judgment,” Piotrowski v. Menard, Inc., 842 F.3d 1035, 1039 (7th

Cir. 2016); “there must be evidence,” Anderson, 477 U.S. at 252.

10 No. 20-1958

A. Discrimination Claim

Title VII makes it unlawful for an employer “to discrimi-

nate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2(a)(1). To survive summary judgment, a

plaintiff must present evidence that “would permit a reason-

able factfinder to conclude that the plaintiff’s race, ethnicity,

sex, religion, or other proscribed factor caused the discharge

or other adverse employment action. Evidence must be con-

sidered as a whole, rather than asking whether any particular

piece of evidence proves the case by itself … .” Ortiz v. Werner

Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).2

“Ortiz, however, did not alter ‘[t]he burden-shifting

framework created by’” McDonnell Douglas Corp v. Green, 411

U.S. 792 (1973). David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508,

846 F.3d 216, 224 (7th Cir. 2017) (quoting Ortiz, 834 F.3d at

766). That “well-known and oft-used” standard “remains an

efficient way to organize, present, and assess evidence in dis-

crimination cases.” Johnson v. Advocate Health & Hosps. Corp.,

892 F.3d 887, 894 (7th Cir. 2018) (citing David, 846 F.3d at 224).

Under the McDonnell Douglas framework, the plaintiff

must first make out a prima facie case of discrimination by

showing that “(1) she is a member of a protected class, (2) she

was meeting the defendant’s legitimate expectations, (3) she

2Khungar relies to some extent on the “direct” and “indirect” “meth-

ods” of proving discrimination. We reiterate that litigants “must stop sep-

arating ‘direct’ from ‘indirect’ evidence and proceeding as if they were

subject to different legal standards. … Instead, all evidence belongs in a

single pile and must be evaluated as a whole.” Ortiz, 834 F.3d at 765–66.

No. 20-1958 11

suffered an adverse employment action, and (4) similarly sit-

uated employees who were not members of her protected

class were treated more favorably.” Simpson v. Franciscan All.,

Inc., 827 F.3d 656, 661 (7th Cir. 2016) (citing Bagwe v. Sedgwick

Claims Mgmt. Servs., Inc., 811 F.3d 866, 880 (7th Cir. 2016)). If

the plaintiff makes a prima facie case, “the burden shift[s] to

the defendant to ‘articulate a legitimate, nondiscriminatory

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), overruled on

other grounds by Ortiz, 834 F.3d at 765). The district court ap-

plied that framework and concluded that Khungar lacks evi-

dence to satisfy the second and fourth elements of a prima facie

case (the other elements are not in dispute) and that the evi-

dence showed legitimate, nondiscriminatory, and nonpre-

textual reasons for her termination.

We have acknowledged, however, that the McDonnell

Douglas framework, while often useful, is not particularly

helpful in organizing the evidence where the main issue is the

plaintiff’s job performance. Rather, when “the issue of satis-

factory job performance … lies at the heart of th[e] dispute

[and] must be analyzed in detail at [multiple] stages of the

McDonnell Douglas test,” it is often “simpler to run through

that analysis only once.” Simmons v. Chicago Bd. of Educ., 289

F.3d 488, 492 (7th Cir. 2002); accord Everroad v. Scott Truck Sys.,

Inc., 604 F.3d 471, 477–78 (7th Cir. 2010); Duncan v. Fleetwood

Motor Homes of Ind., Inc., 518 F.3d 486, 491 (7th Cir. 2008).

That is, by and large, the case here. At the heart of this dis-

pute are the questions of whether Khungar performed poorly

and whether that poor performance caused her termination.

12 No. 20-1958

These questions go to her prima facie case, the nondiscrimina-

tory reasons for her termination, and whether those reasons

were pretextual. We therefore run through that analysis only

once, Simmons, 289 F.3d at 492, with our true goal top of mind:

determining whether the evidence, “as a whole,” “would per-

mit a reasonable factfinder to conclude that” Khungar’s na-

tional origin, race, or religion caused her termination, Ortiz,

834 F.3d at 765. For the reasons below, we don’t believe it

would.

1. Khungar’s Performance and Reasons for Her Termination

Khungar argues that she was a satisfactory employee who

was fired for discriminatory reasons. Access argues that she

was anything but. It points to Khungar’s HIPAA violation and

the swarm of complaints against her, which it says prompted

Mejia to recommend her termination. And that defeats Khun-

gar’s claim because it precludes her from satisfying the sec-

ond element of her prima facie case (that she met expectations)

and establishes nondiscriminatory and nonpretextual reasons

for her termination (she failed to meet expectations).

Strictly speaking, a plaintiff’s own assertion that she met

her employer’s expectations might be sufficient to establish the

second element of her prima facie case. Oates v. Discovery Zone,

116 F.3d 1161, 1171 (7th Cir. 1997). But see Dickerson v. Bd. of

Trs. Of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 603 (7th Cir.

2011) (An employee’s “own evaluation of his work cannot be

imputed to [the employer] and is insufficient to permit his

case to survive past summary judgment.”). But even if Khun-

gar could satisfy that part of her prima facie case, the evidence

“as a whole” puts beyond genuine dispute the issues of

whether Khungar actually met Access’s expectations or was

fired for failing to do so. Ortiz, 834 F.3d at 765.

No. 20-1958 13

In considering whether Khungar met Access’s expecta-

tions, “[t]he proper inquiry mandates looking at [Khungar’s]

job performance through the eyes of her supervisors at the

time.” Gates v. Caterpillar, Inc., 513 F.3d 680, 689 (7th Cir. 2008)

(citing Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir.

2002)). “The question is not whether the [employer’s perfor-

mance] ratings were right but whether the employer’s descrip-

tion of its reasons is honest.” Gustovich v. AT & T Commc’ns,

Inc., 972 F.2d 845, 848 (7th Cir. 1992); see Dickerson, 657 F.3d at

603 (“[A]lthough [plaintiff] disagreed with his [employer’s]

negative evaluations, that does not mean that the evaluations

were the result of unlawful discrimination.”).

Khungar’s supervisors were Barron (until he departed in

August 2016) and Mejia (after February 2016). And both Bar-

ron and Mejia had ample reason to believe that Khungar was

not meeting expectations. Both were familiar with Khungar’s

record, marred as it was with complaints from patients’ par-

ents and Access personnel. Mejia testified that these com-

plaints formed the basis of his termination recommendation,

and that testimony is supported by documentary evidence—

in particular, Mejia’s termination recommendation itself,

which expressed concern that Khungar’s “bad performance is

putting our patients and the organization at high risk.”

On top of the parent and staff complaints, Khungar also

received a “final warning” from Barron about a HIPAA viola-

tion in August 2015. Khungar asserts that this “stale” warning

did not have “anything to do with her termination,” but

Mejia’s email disproves that contention: “[Khungar] was

given a final notice, under the direction of Dr. Barron. How-

ever, no change has been noticed in her behavior.”

14 No. 20-1958

Khungar says her recredentialing in mid-2016 shows that

she met Access’s expectations. But her recredentialing came

before many of the complaints. See Hong v. Children’s Mem’l

Hosp., 993 F.2d 1257, 1262 (7th Cir. 1993) (“The critical issue is

whether she was performing well in her job at the time of her

termination.” (emphasis added)). What’s more, Access’s direc-

tor of practice management—who oversees the recredential-

ing process—averred that that process is simply not a perfor-

mance evaluation. It thus does little to show anything other

than that Khungar had her professional credentials in order.

(Her actual performance evaluation from 2016 notes that Bar-

ron “[d]iscussed behavioral concerns” with her, but Khungar

disputes this.)

Aside from that, Khungar mostly attempts to undermine

the complaints against her. None of these efforts succeed.

She first asserts that the complaints simply aren’t real. Her

theory is that De Jesus and Mariscal “mischaracterized,” “ex-

aggerated,” “made up,” “solicited,” or outright “fabricated”

these complaints to get back at Khungar for telling Barron

about Mariscal’s racist comments in November 2015. In sup-

port, Khungar points out that the complaints weren’t brought

to her attention, and she highlights Mariscal’s statement that

she was “compiling information on Dr. Khungar.” But to infer

from this that the complaints were illegitimate is not “justifi-

able.” Anderson, 477 U.S. at 255. That Khungar wasn’t in-

formed of each complaint tells us only that; it does not mean

they were fictitious. And Khungar ignores the rest of Maris-

cal’s statement—that “a provider must speak to her about all

the complaints she is getting on treatment//care of patients”—

which would make little sense if the complaints were fig-

ments of Mariscal’s own imagination. Likewise, Khungar

No. 20-1958 15

ignores Mejia’s and Mariscal’s testimony that they were

merely putting together information for Human Resources in

anticipation of invoking the ninety-day notice.3

Second, Khungar argues that the complaints are inadmis-

sible hearsay. Hearsay is an out-of-court statement offered to

prove the truth of the matter asserted. Fed. R. Evid. 801(c). The

complaints here are not hearsay because they are not offered

to show that Khungar in fact engaged in the conduct com-

plained of, but to show Mejia’s “state of mind when he made

his recommendation.” Stewart v. Henderson, 207 F.3d 374, 377

(7th Cir. 2000); see Luckie v. Ameritech Corp., 389 F.3d 708, 716

(7th Cir. 2004).

Third, Khungar argues that her termination was

“unusual”—and thus pretextual—because Access did not

“conduct an investigation” into her conduct or “follow its

normal policy.” She lacks both legal and evidentiary support

for this argument. For one, Mariscal’s statement about

“compiling information on Dr. Khungar” shows that there

was some level of investigation into Khungar’s conduct. But

more importantly, Mejia testified that there is no Access

“policy” or “procedure” for responding to patient complaints.

Perhaps Access should standardize its process, but “[w]e do

3 Khungar also makes a related argument that Access is liable under

a “cat’s paw” theory because De Jesus and Mariscal fed false complaints

to, and had a “secret meeting” with, Mejia. This argument fails without

evidence that the complaints were fabricated, see Simpson v. Beaver Dam

Cmty. Hosps., Inc., 780 F.3d 784, 798 (7th Cir. 2015), and Mejia testified that

he decided to recommend Khungar’s termination before he met with De

Jesus and Mariscal to keep them apprised of staffing issues—so that meet-

ing could not have caused his recommendation, see Johnson v. Koppers, Inc.,

726 F.3d 910, 914 (7th Cir. 2013).

16 No. 20-1958

not ‘tell employers how to discipline employees; rather, [we]

ensure that the process is not discriminatory.’” Daugherty v.

Wabash Ctr., Inc., 577 F.3d 747, 752 (7th Cir. 2009) (quoting

Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 805 (7th Cir.

2001)).

And finally, Khungar shifts to her immediate termination

on December 14, 2016, arguing that the reason given for that

termination—her alleged statement about “blowing up” or

“burning down” the Kedzie clinic—was pretextual. Her argu-

ment is that she never in fact made a threatening statement.

In support, she points to Illinois Department of Employment

Security (“IDES”) decisions stemming from her state unem-

ployment compensation proceedings. Those decisions con-

cluded that Khungar never made a statement about burning

down the Kedzie clinic “or any other threatening statement.”

The district court here concluded that the IDES decisions “are

unlikely to be admissible at trial,” but “even considering those

decisions,” Access “still has provided ample evidence in the

form of patient complaints and a purported [HIPAA] viola-

tion that Khungar was not meeting her employer’s legitimate

expectations and that [Access] had a non-discriminatory rea-

son for terminating her.”

Several district courts have “found that the findings of Il-

linois unemployment compensation proceedings are not ad-

missible in federal civil actions.” Wittenberg v. Wheels, Inc., 963

F. Supp. 654, 660 (N.D. Ill. 1997) (citing Rekhi v. Wildwood In-

dus., Inc., 816 F. Supp. 1312 (C.D. Ill. 1993), aff’d, 61 F.3d 1313

(7th Cir. 1995)). Not only are the IDES decisions hearsay—

Khungar wishes to use them to prove that she did not make a

threatening statement, which is what those decisions assert—

but under Illinois law, they “have no preclusive effect in other

No. 20-1958 17

proceedings, and we give state judgments the same preclu-

sive effect that they would receive under state law.” Matthews

v. Wal-Mart Stores, Inc., 417 F. App’x 552, 555 (7th Cir. 2011)

(nonprecedential) (citation omitted) (first citing 820 Ill. Comp.

Stat. 405/1900(B); and then citing 28 U.S.C. § 1738; Hukic v. Au-

rora Loan Servs., 588 F.3d 420, 430 (7th Cir. 2009)). Therefore,

Khungar “may not rely on th[ose] decision[s] to create a gen-

uine issue of material fact as to the motivations for her dis-

charge.” Wittenberg, 963 F. Supp. at 661; see Lewis v. CITGO Pe-

troleum Corp., 561 F.3d 698, 704 (7th Cir. 2009) (“To defeat a

summary judgment motion … a party may rely only on ad-

missible evidence.”) (citing, among other cases, Schindler v.

Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007)).

At any rate, even if we assume that Khungar never made

a “threatening statement,” even Khungar does not dispute

that she made a statement on December 10 that another phy-

sician interpreted as a threat and reported to Riley, who then

came to Kedzie to investigate. Nor does she dispute that Riley

confronted her about the statement, sent her a letter reiterat-

ing the “alleg[ation] that [she] had threatened to burn down

the Kedzie [clinic],” and placed security at the entrance to the

clinic. Again, what matters is what Riley believed at the time

she made the decision to terminate Riley. Gustovich, 972 F.2d

at 848. The undisputed evidence shows that Riley had cause

to believe that Khungar made a threatening statement, re-

gardless of whether we consider the IDES decisions.

In sum, the evidence as a whole shows that Khungar’s per-

formance was woefully deficient and that Access had nondis-

criminatory and nonpretextual reasons to terminate her. We

therefore conclude that Khungar lacks evidence creating a

genuine question as to the reasons for her termination.

18 No. 20-1958

2. Similarly Situated Individual

The district court also held that, under McDonnell Douglas,

Khungar’s prima facie case fails because she lacks evidence

showing that a similarly situated individual at Access not be-

longing to her class received better treatment. Below, Khun-

gar argued that two individuals were treated better than she

was, but the district court rejected that argument because

those two were not appropriate comparators. But Khungar

abandons that argument on appeal and now advances a new

argument: that she doesn’t even need to show that similarly

situated employees were treated differently because she’s al-

leged only one instance of discrimination, her termination.

She cites Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 512

(7th Cir. 1986), which appears to have taken that position.

Khungar “has tossed [this argument] into the case for the

first time on appeal,” and it is therefore forfeited. HyperQuest,

Inc. v. N’Site Sols., Inc., 632 F.3d 377, 382 (7th Cir. 2011). We

also note that Yarbrough is of dubious endurance, for we have

held many times since 1986 that employees who allege dis-

criminatory termination must satisfy this prima facie element.4

But even if Yarbrough lives—and stands for what Khungar

says it does—that only means that Khungar must prove as

part of her prima facie case that Access “sought a replacement

for [her]” rather than that a similarly situated individual was

4 E.g., Harris v. Warrick Cnty. Sheriff’s Dep’t, 666 F.3d 444, 449 (7th Cir.

2012) (Plaintiff who alleged discriminatory termination failed to show that

similarly situated white officers received better treatment.); Jones v. A.W.

Holdings LLC, 484 F. App’x 44, 48 (7th Cir. 2012) (nonprecedential); Little

v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004); Adams v. Wal-

Mart Stores, Inc., 324 F.3d 935, 940 (7th Cir. 2003); Patterson v. Avery Den-

nison Corp., 281 F.3d 676, 680–81 (7th Cir. 2002).

No. 20-1958 19

treated differently. Rush v. McDonald’s Corp., 966 F.2d 1104,

1114 (7th Cir. 1992) (quoting Yarbrough, 789 F.2d at 511); see

Flores v. Preferred Tech. Grp., 182 F.3d 512, 515 (7th Cir. 1999)

(“In discriminatory discharge cases, … a plaintiff generally

meets the prima facie burden if she establishes that … her em-

ployer sought a replacement for her.” (citing Hong, 993 F.2d

at 1257)). Khungar never makes that argument and points to

no evidence on that point, so that argument, too, is forfeited.

Cf. Yarbrough, 789 F.2d at 511 n.5 (“There is … no need for us

to consider the issue whether Yarbrough established that

Tower either sought or found a replacement for him, because

Tower failed to raise this issue on appeal.”).

We agree with the district court that Khungar lacks evi-

dence creating a triable issue of material fact as to her discrim-

ination claim. Summary judgment was therefore appropriate.

B. Retaliation Claim

Finally, we turn to Khungar’s retaliation claim. Title VII

“makes it unlawful ‘for an employer to discriminate against

any of his employees or applicants for employment’ who have

… availed themselves of Title VII’s protections.” Robinson v.

Shell Oil Co., 519 U.S. 337, 339 (1997) (quoting 42 U.S.C.

§ 2000e-3(a)). To survive summary judgment, Khungar must

adduce evidence to establish “a causal link between [her] pro-

tected activity and the adverse action.” Lewis v. Wilkie, 909

F.3d 858, 866 (7th Cir. 2018). The question is: “Does the record

contain sufficient evidence to permit a reasonable fact finder

to conclude that retaliatory motive caused the discharge?”

Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir.

2016) (citing Ortiz, 834 F.3d at 765). The district court con-

cluded that Khungar lacks evidence to show that her pro-

tected activity caused her termination. We agree.

20 No. 20-1958

Khungar claims that her immediate termination by Riley

on December 14, 2016 was retaliation for (1) Khungar’s No-

vember 2015, June 2016, and November 2016 complaints of

discrimination and (2) her November 30, 2016 EEOC charge.

Aside from repackaging many of the same arguments rejected

above, Khungar relies primarily on “suspicious timing”; she

argues that a jury could find that her termination was caused

by these events because it occurred two weeks after the EEOC

charge and soon enough after her other complaints.

“Suspicious timing is rarely enough to create a triable is-

sue.” Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir.

2009). “As a threshold matter, the plaintiff must show that the

defendant was aware of the protected conduct. If [so], a causal

connection can then be demonstrated by suspicious timing

alone only when the employer’s action follows on the close

heels of protected expression.” Daza v. Indiana, 941 F.3d 303,

309 (7th Cir. 2019) (citation omitted) (first citing Hall v. Babb,

389 F.3d 758, 762 (7th Cir. 2004); and then citing Lalvani v. Cook

County, 269 F.3d 785, 790 (7th Cir. 2001)). “At minimum, there-

fore, [Khungar] must offer evidence that would support a rea-

sonable inference that [Riley] was aware of [Khungar’s] alle-

gations of discrimination.” Luckie, 389 F.3d at 715.

Here, the undisputed evidence shows that Riley did not

know about Khungar’s EEOC charge on December 14, 2016.

Riley testified that she first learned of the EEOC charge on De-

cember 23, 2016. An email to Riley on that day confirms this:

“We received a notice of charge of discrimination by the

EEOC, today in the morning.” Khungar responds that she

told Mariscal about the EEOC charge a week after she filed it.

But what Khungar told Mariscal is irrelevant because Maris-

cal did not make the decision to terminate Khungar. See

No. 20-1958 21

Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th Cir. 2000).

Plus, Mariscal and Riley both testified that they did not dis-

cuss Khungar’s termination or her December 10 statement,

and Riley testified that she did not make the decision to ter-

minate Khungar until speaking with her about that statement.

There is no evidence tying Riley’s decision to the EEOC

charge.

Khungar’s December 14 termination is likewise unteth-

ered to her other complaints of discrimination. “For an infer-

ence of causation to be drawn solely on the basis of a

suspicious-timing argument, we typically allow no more

than a few days to elapse between the protected activity

and the adverse action.” Kidwell v. Eisenhauer, 679 F.3d

957, 966 (7th Cir. 2012); cf. Rowlands v. United Parcel Serv.-

Fort Wayne, 901 F.3d 792, 802 (7th Cir. 2018) (holding that one

month was sufficient where plaintiff “also presented evidence

of pretext” (quoting Anderson v. Donahoe, 699 F.3d 989, 996

(7th Cir. 2012))). Khungar’s November 2015 and June 2016

complaints occurred more than a year and more than six

months before her termination, respectively, and there is no

evidence that Riley knew about either of them when she ter-

minated Khungar.

Khungar’s final complaint on November 2016 came after

Khungar was given ninety days’ notice, and there is no evi-

dence that it influenced Riley’s decision to terminate her im-

mediately the next month. If any reasonable inference can be

drawn, it’s that the November 2016 complaint prompted Ri-

ley to attempt to resolve the issues complained of before

Khungar departed, not to expedite her departure simply be-

cause she brought them to her attention.

22 No. 20-1958

We therefore conclude that Khungar lacks evidence tying

her December 14 termination to her protected activity, and

summary judgment on the retaliation claim was appropriate.

III. CONCLUSION

For the reasons above, we conclude that the district court

properly granted summary judgment in favor of Access on

both of Khungar’s claims. We AFFIRM the district court.