Denise Coleman v. Patrick R. Donaho

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3694

D ENISE C OLEMAN,

Plaintiff-Appellant,

v.

P ATRICK R. D ONAHOE, Postmaster General,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09-cv-03824—David H. Coar, Judge.

A RGUED S EPTEMBER 14, 2011—D ECIDED JANUARY 6, 2012

Before W OOD , T INDER, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. In 2006, the United States

Postal Service terminated plaintiff Denise Coleman’s

32 years of employment as a mail processing clerk. The

Postal Service contends that it fired Coleman because

she told her psychiatrist she was having thoughts of

killing her supervisor, and it believed she posed a

danger to her fellow employees. Coleman alleges

that her termination was discriminatory (she is African-

2 No. 10-3694

American and a woman) and retaliatory (she had previ-

ously complained, both formally and informally, of

discriminatory treatment). In support of her disparate

treatment claims under Title VII of the Civil Rights Act

of 1964, Coleman presented evidence that two white

male employees at the same facility had recently threat-

ened another employee at knife-point, yet received

only one-week suspensions from the same manager

who fired her.

The district court found that these comparator em-

ployees were not similarly situated to Coleman because

they had different direct supervisors and held different

positions. Coleman therefore failed, in the district

court’s view, to establish a prima facie case of discrim-

ination under the “indirect method” of proof derived

from McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). The district court also held that Coleman had not

provided any evidence that the Postal Service’s stated

reason for firing her — that she violated its rule pro-

hibiting workplace violence and threats — was pre-

textual. The district court therefore granted the Postal

Service’s motion for summary judgment on all claims.

Coleman appeals.

We reverse summary judgment on Coleman’s discrim-

ination claims and her retaliation claims. This appeal

raises two recurring questions concerning comparator

evidence in employment discrimination cases using the

indirect method of proof: First, just how alike must com-

parators be to the plaintiff to be considered similarly

situated? Second, can evidence that a similarly situated

No. 10-3694 3

employee received better treatment serve not only as

an element of the plaintiff’s prima facie case, but also

satisfy the plaintiff’s burden to show that the employer’s

legitimate nondiscriminatory reason for its action

was pretextual?

For the first question, we reiterate here that the similarly-

situated inquiry is flexible, common-sense, and factual.

It asks “essentially, are there enough common features

between the individuals to allow a meaningful compari-

son?” Humphries v. CBOCS West, Inc., 474 F.3d 387, 405

(7th Cir. 2007), aff’d, 553 U.S. 442 (2008). There must be

“sufficient commonalities on the key variables between

the plaintiff and the would-be comparator to allow the

type of comparison that, taken together with the other

prima facie evidence, would allow a jury to reach an

inference of discrimination.” Id. In other words, the

proposed comparator must be similar enough to permit

a reasonable juror to infer, in light of all the circum-

stances, that an impermissible animus motivated

the employer’s decision. Here, Coleman’s two white,

male co-workers were disciplined by the same decision-

maker, subject to the same code of conduct, and dis-

ciplined more leniently for violating the same rule as

she. Their case is close enough to Coleman’s to provide

a “meaningful comparison” and to permit a reasonable

jury to infer discrimination. Id.

The answer to the second question is yes. In McDonnell

Douglas itself, the Supreme Court noted that comparator

evidence would be “[e]specially relevant” at the pretext

stage. 411 U.S. at 804. Under our circuit precedents, too,

4 No. 10-3694

an employment discrimination plaintiff may demon-

strate pretext by providing evidence that a similarly

situated employee outside her protected class received

more favorable treatment. Coleman has done so. The

evidence of selective application of the rule against vio-

lence and threats to Coleman — whose confidential ex-

pressions of anger during inpatient psychotherapy were

not direct threats at all, and who was discharged as

stable before the Postal Service even heard about those

thoughts — undercuts the Postal Service’s assertion that

it was just neutrally enforcing its “no tolerance” policy.

Together with other evidence calling into ques-

tion the honesty of the Postal Service’s rationale,

Coleman’s comparator evidence presents a jury ques-

tion as to pretext.

I. Factual and Procedural Background

In assessing whether the Postal Service is entitled to

summary judgment, we examine the record in the

light most favorable to Coleman, the non-moving party,

resolving all evidentiary conflicts in her favor and ac-

cording her the benefit of all reasonable inferences

that may be drawn from the record. O’Leary v. Accretive

Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). Our

account of the facts therefore is not necessarily true in

an objective sense, but reflects the standard that applies

to motions for summary judgment.

Coleman began working for the Postal Service in 1974.

She had a good employment record until January 2005,

when her longtime supervisor retired. William Berry was

No. 10-3694 5

selected as the replacement by William Sove, the plant’s

maintenance manager. Sove is white; Berry is black.

Coleman believed Sove had passed over her for the

promotion because she was female. She also felt Berry

was treating her poorly in his new supervisory role.

She related these complaints in an April 2005 email to

Gregory Johnson, the head of the facility where she

worked. The following month, Coleman emailed Sove,

accusing him and Berry of discrimination and

threatening to file a charge with the Equal Employment

Opportunity Commission (EEOC).

On June 5, 2005, Coleman learned that she would soon

undergo surgery. Two days later, she submitted a

request to Johnson and Sove to advance her two weeks

of future paid sick leave for her convalescence. The

same day, Berry directed Coleman to clean an especially

dingy area behind a storeroom and to move some

heavy boxes — tasks, she says, that were not among

her regular duties. Coleman refused, telling Berry that

she was unable to lift the boxes because of her up-

coming surgery and that the storeroom’s chemicals

and dust would exacerbate her chronic asthma. Berry

issued Coleman a “Letter of Warning” for failing to

follow instructions. On June 9, 2005, Johnson denied

her request for advanced sick leave.

As scheduled, Coleman had surgery on June 10, 2005.

She returned to work on June 23, 2005, subject to the

medical restriction that she avoid climbing stairs for

two weeks. Because Coleman’s usual work station was

up one flight of stairs, Berry informed her that she

6 No. 10-3694

could work in the ground-floor storeroom, but because

of her asthma this was not an attractive alternative to

Coleman. When she rejected it, Berry sent her home.

She returned to the mail facility a week later with

revised medical restrictions permitting her to climb

stairs once or twice per day. But Berry then told

Coleman that all employees had to clock in using a par-

ticular time-clock — a change that would require her

taking more than the maximum stairs she was advised

to ascend. She again left work. The following week,

Berry issued Coleman an absent-without-leave notice

because she had not worked or announced her absence

in five days. As this conflict unfolded, Coleman filed

an EEO request for pre-complaint counseling on June 21,

2005, identifying Berry and Sove as the discriminating

officials. She supplemented her request with additional

information on July 1, 2005.

On July 12, 2005, Coleman checked herself into the

psychiatric unit of a hospital complaining of depression,

anxiety, and insomnia. In her admission interview,

Coleman experienced “severe crying spells, helpless-

ness, [and] hopelessness with suicidal ideation.” The

treating psychiatrist, Dr. Ofelia Ionescu, observed

Coleman’s “extremely paranoid/obsessional thinking

about being harassed by her supervisor, Mr. Berry,” and

she described Coleman as “endorsing . . . homicidal

ideation ‘every time I’m talking about him [Berry].’ ”

Coleman remained at the hospital for three weeks while

she received talk therapy and various medication. The

course of treatment did her good. When she was dis-

charged on August 3, 2005, Coleman displayed “a

No. 10-3694 7

marked reduction in depression and in particular the

paranoid symptoms” and “a reasonable control for her

anger and aggression.” In her final report, Dr. Ionescu

described Coleman as a “model patient” in “stable”

condition: “Alert, awake, . . . oriented . . . cooperative,

[and] pleasant . . . . No formal thought disorder. Affect

was reactive, smiling. Mood was ‘good.’ There were no

reports of delusions[,] . . . hallucinations[,] . . . [or] suicidal

or homicidal ideation.”

But on the day of Coleman’s discharge, Dr. Ionescu

returned a phone call from Berry, who had called to

ask about Coleman’s treatment. In her final report,

Dr. Ionescu wrote: “I did inform Mr. Berry that I am not

discussing with him about [sic] my patient; but it was

considered to be my responsibility [sic] as the

patient’s physician to warn him that my patient had

been expressing threats to his life in my presence.” The

content and form of these “threats” remain something of

a mystery: the record contains no elaboration from

Dr. Ionescu beyond the vague “homicidal ideation”

language in the discharge report. Coleman claims she

never formed any plan to harm Berry and that a “language

barrier” caused Dr. Ionescu, whom she described as

“a foreigner,” to “take me literally.” Coleman Dep. 82.

Berry immediately relayed the phone conversation

with Dr. Ionescu to Sove and another upper-level

manager, Charles Von Rhein. That same day, the day

that Coleman was released, the three managers then

decided to place her in “emergency off-duty status”

without pay. Two weeks later, Berry notified the police.

8 No. 10-3694

According to the police report, Berry explained that the

Postal Service was “in the process of terminating

Coleman,” and Berry wanted to “document the threat.”

In October 2005, the Postal Service did an internal in-

vestigation. Berry told a postal inspector that “he

hoped that Coleman would get better and maybe return

to work one day.” Although Berry would later claim

that he was “frightened, afraid and scared” by what he

took to be “a very credible threat,” he did not express

such fears to either the police or the Postal Service in-

vestigators. He also failed even to mention Coleman’s

supposed threat in an email about his conflict with her,

though he sent it just days after his phone call with

Dr. Ionescu.

While off-duty, Coleman filed two formal EEOC com-

plaints. The first, lodged on August 13, 2005, alleged

that Berry, Sove, and Von Rhein had discriminated

against her on the basis of race and sex by refusing

to accommodate her post-surgery medical restrictions

and by denying her request for advanced sick leave.

The second charge, filed on December 8, 2005, claimed

that Berry and Von Rhein placed Coleman on off-duty

status because of disability- and sex-discrimination and

to retaliate against her for her first EEOC complaint.

Meanwhile, the Postal Service’s own investiga-

tion proceeded. According to the postal inspector’s in-

vestigative memorandum of October 11, 2005, Coleman

admitted she had told her psychiatrist that she felt

suicidal and homicidal, but said she had never hurt

anyone or formed any sort of plan to harm Berry. As part

No. 10-3694 9

of the internal investigation, Coleman also participated

in a telephone interview with Von Rhein on December 13,

2005. She confirmed having had “homicidal thoughts”

about Berry, but indicated that she was continuing in

outpatient therapy and was ready to return to work.

Von Rhein told Coleman that she had failed to provide

documentation of her improved conditions. On Decem-

ber 20, 2005, a psychiatric resident then treating Coleman

faxed Sove to confirm that she was “stable” and “able

to return to her work duties,” provided it was not

“under the supervision of . . . Berry.”

On January 13, 2006, Coleman was fired. Von Rhein and

Sove both signed the “Notice of Removal,” which stated

that the termination was based on “unacceptable

conduct, as evidenced by your expressed homicidal

ideations toward a postal manager.” The notice stated

that by having voiced her threats toward Berry, Coleman

had violated the Postal Service’s ban on “Violent

and/or Threatening Behavior.” The rule provides: “it is

the unequivocal policy of the Postal Service that there

must be no tolerance of violence or threats of violence

by anyone at any level of the Postal Service.”

The notice also informed Coleman of her right to file

a grievance challenging her removal, and she did so.

The matter proceeded to arbitration a year later. In

the hearing, her union challenged the Postal Service’s

characterization of Coleman’s statements as “a true

threat” and contended that the more appropriate

action would have been to refer her for a fitness-for-

duty examination. The arbitrator agreed, finding that

10 No. 10-3694

the Postal Service had lacked “just cause” to terminate

Coleman because it could not prove that she “actually

had an intent to harm Mr. Berry.” Considering that

“psychological illness” was the cause of Coleman’s

“aberrant behavior,” and given her “length of satisfactory

employment,” the arbitrator concluded that a fitness-for-

duty examination “would have been a more reasonable

course for the Service to follow.” The arbitrator ordered

Coleman reinstated, pending successful completion of

a fitness-for-duty exam. The arbitrator declined to award

back pay, however, because he could not determine

when Coleman first became qualified to return to work.

Coleman passed her fitness-for-duty exam and resumed

her duties at the Postal Service facility on September 1,

2007, roughly two years after she was suspended. During

this period, Coleman pursued her two EEOC charges

against the Postal Service. An administrative law

judge denied both complaints, and the EEOC rejected

Coleman’s consolidated appeals on April 28, 2009.

Coleman then filed this suit alleging that the Postal

Service had discriminated against her on the basis of

race, sex, and disability by placing her on off-duty

status and terminating her, and had retaliated against

her for reporting discrimination. Coleman also alleged

that the Postal Service violated the Rehabilitation Act

by failing to accommodate her disability.

Following discovery, the district court granted the

Postal Service’s motion for summary judgment in its

entirety. Its judgment on Coleman’s discrimination and

retaliation claims rested on three grounds: First, the

No. 10-3694 11

court held that Coleman had failed to establish a prima

facie case under the McDonnell Douglas “indirect” method

of proof because she had not identified any similarly

situated employees outside of her protected classes

who were treated more favorably. Second, the district

court determined that Coleman had offered no evidence

of pretext. Third, the district court held that Coleman

had not presented sufficient direct or circumstantial

evidence of discriminatory or retaliatory animus

under Title VII’s “direct” method of proof.

Coleman appeals from summary judgment on her Title

VII claims of race and sex discrimination and retaliation.

She does not seek review of summary judgment on

her disability claims. We consider first the race and sex

discrimination claims, and then the retaliation claims.

II. Discrimination Claims

Title VII makes it unlawful for an employer to dis-

charge or discipline an employee because of that person’s

race or sex, among other grounds. 42 U.S.C. § 2000e. In a

disparate treatment case such as this one, a plaintiff may

prove discrimination either directly or indirectly.

See Silverman v. Board of Educ. of the City of Chicago, 637

F.3d 729, 733 (7th Cir. 2011). Under the “direct method,”

the plaintiff may avoid summary judgment by pre-

senting sufficient evidence, either direct or circum-

stantial, that the employer’s discriminatory animus

motivated an adverse employment action. Of course,

“smoking gun” evidence of discriminatory intent is hard

to come by. See United States Postal Service Board of Gover-

12 No. 10-3694

nors v. Aikens, 460 U.S. 711, 716 (1983) (“There will seldom

be ‘eyewitness’ testimony as to the employer’s mental

processes.”). So in a line of cases beginning with

McDonnell Douglas, the Supreme Court developed a

burden-shifting framework known as the “indirect meth-

od” of proof, designed to “sharpen the inquiry into the

elusive factual question of intentional discrimination.”

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,

255, n.8 (1981). Coleman has attempted to establish dis-

crimination through both the direct and indirect

methods of proof. Because she presented sufficient evi-

dence to survive summary judgment under the

indirect method, there is no need to evaluate her dis-

crimination claims under the direct method.

A. The McDonnell Douglas Framework

Under the indirect method, the plaintiff carries “the

initial burden under the statute of establishing a prima

facie case of . . . discrimination.” McDonnell Douglas,

411 U.S. at 802. To establish a prima facie case of discrimi-

nation a plaintiff must offer evidence 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.” Burks v. Wisconsin Dep’t of Transportation, 464

F.3d 744, 750-51 (2006). Once a prima facie case is estab-

lished, a presumption of discrimination is triggered.

“The burden then must shift to the employer to articulate

No. 10-3694 13

some legitimate, nondiscriminatory reason” for its action.

McDonnell Douglas, 411 U.S. at 802; see Burks, 464 F.3d

at 751. When the employer does so, the burden shifts

back to the plaintiff, who must present evidence that the

stated reason is a “pretext,” which in turn permits an

inference of unlawful discrimination. McDonnell Douglas,

411 U.S. at 804; see Burks, 464 F.3d at 751.

The Postal Service concedes for purposes of summary

judgment that Coleman has satisfied the first three ele-

ments of her prima facie case: (1) she is a member of

two protected classes (race and sex); (2) her job perfor-

mance was satisfactory; and (3) the Postal Service sub-

jected her to two adverse employment actions (place-

ment on emergency off-duty status and then termination).

The Postal Service disputes the fourth element, arguing

that the white, male co-workers Coleman identified

as receiving more favorable treatment were not similarly

situated as a matter of law. The Postal Service has also

offered a non-discriminatory reason for terminat-

ing Coleman — it claims she violated its code of

conduct — but Coleman contends that this reason is

pretextual.

B. Similarly Situated Co-workers

The similarly-situated analysis calls for a “flexible,

common-sense” examination of all relevant factors.

Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007). “All

things being equal, if an employer takes an action

against one employee in a protected class but not

another outside that class, one can infer discrimination.

14 No. 10-3694

The ‘similarly situated’ prong establishes whether all

things are in fact equal.” Filar v. Board of Educ. of City

of Chicago, 526 F.3d 1054, 1061 (7th Cir. 2008) (internal

citation omitted). Its purpose is to eliminate other pos-

sible explanatory variables, “such as differing roles,

performance histories, or decision-making personnel,

which helps isolate the critical independent variable” —

discriminatory animus. Humphries, 474 F.3d at 405.

Similarly situated employees “must be ‘directly compara-

ble’ to the plaintiff ‘in all material respects,’ ” but they

need not be identical in every conceivable way. Patterson

v. Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir.

2009), quoting Raymond v. Ameritech Corp., 442 F.3d 600,

610-11 (7th Cir. 2006). We are looking for comparators,

not “clone[s].” Chaney v. Plainfield Healthcare Center, 612

F.3d 908, 916 (7th Cir. 2010). So long as the distinctions

between the plaintiff and the proposed comparators

are not “so significant that they render the comparison

effectively useless,” the similarly-situated requirement

is satisfied. Humphries, 474 F.3d at 405; see also Crawford

v. Indiana Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th

Cir. 2006) (the question is whether “members of the

comparison group are sufficiently comparable to [the

plaintiff] to suggest that [the plaintiff] was singled out

for worse treatment”).

This flexible standard reflects the Supreme Court’s

approach to Title VII in McDonnell Douglas and its prog-

eny. To offer a prima facie case of discrimination under

the indirect method, the plaintiff’s burden is “not oner-

ous.” Burdine, 450 U.S. at 253. The Supreme Court “never

intended” the requirements “to be rigid, mechanized, or

No. 10-3694 15

ritualistic . . . [but] merely a sensible, orderly way to

evaluate the evidence in light of common experience as it

bears on the critical question of discrimination.” Furnco

Construction Corp. v. Waters, 438 U.S. 567, 577 (1978). The

Court has cautioned that “precise equivalence . . . between

employees is not the ultimate question.” McDonald v. Santa

Fe Trail Transportation Co., 427 U.S. 273, 283 n.11 (1976). The

touchstone of the similarly-situated inquiry is simply

whether the employees are “comparable.” Id., quoting

McDonnell Douglas, 411 U.S. at 804.

Whether a comparator is similarly situated is “usually

a question for the fact-finder,” and summary judgment

is appropriate only when “no reasonable fact-finder

could find that plaintiffs have met their burden on the

issue.” Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir.

2009). There must be “enough common factors . . . to

allow for a meaningful comparison in order to divine

whether intentional discrimination was at play.” Barricks

v. Eli Lilly and Co., 481 F.3d 556, 560 (7th Cir. 2007).

The “number [of relevant factors] depends on the

context of the case.” Radue v. Kimberly-Clark Corp., 219

F.3d 612, 617 (7th Cir. 2000). In the usual case a plain-

tiff must at least show that the comparators (1) “dealt

with the same supervisor,” (2) “were subject to the

same standards,” and (3) “engaged in similar conduct

without such differentiating or mitigating circumstances

as would distinguish their conduct or the employer’s

treatment of them.” Gates v. Caterpillar, Inc., 513 F.3d

680, 690 (7th Cir. 2008), quoting Snipes v. Illinois Dep’t of

Corrections, 291 F.3d 460, 463 (7th Cir. 2002). This is not

16 No. 10-3694

a “magic formula,” however, and the similarly-

situated inquiry should not devolve into a mechanical,

“one-to-one mapping between employees.” Humphries,

474 F.3d at 405.

With this legal standard in mind, we turn to Coleman’s

proposed comparators. According to Coleman’s evi-

dence, two white male employees, Frank Arient and

Robert Pelletier, “held a knife to the throat of a black male

co-worker” “while holding down his legs.” 1 Arient’s and

Pelletier’s direct supervisor, Brian Turkovich, learned

of the incident a few days later and conducted an in-

vestigation. Von Rhein, who supervised all three men,

participated in the investigation, personally interviewing

the two attackers and several witnesses. Von Rhein

and Turkovich concluded that the incident was just

“horseplay,” and Von Rhein suspended Arient and

Pelletier without pay for fourteen days. Von Rhein and

Turkovich later reduced these suspensions to seven days

after objections by the union. According to Von Rhein,

Sove approved their suspensions. Von Rhein Dep. 175.

In his own deposition, Sove described Arient’s and

Pelletier’s actions as “some stupid prank that they were

playing with each other.” Sove Dep. 121.

1

The Postal Service calls Coleman’s version an “embellished”

“misstatement of the facts” because they only “pulled” a knife

and did not hold it to the victim’s throat. We doubt that the

difference between holding a knife to a man’s throat and

merely displaying it while holding him down is material

for purposes of summary judgment.

No. 10-3694 17

The district court concluded that Arient and Pelletier

could not serve as comparators because they “reported

to a different supervisor” and “held a substantially dif-

ferent job than Coleman.” Although the court acknowl-

edged there was “at least some similarity in terms of

the seriousness of the incident,” it was “not enough” to

overcome the other dissimilarities. We think that this

analysis focused too much on minor differences and was

too demanding for purposes of summary judgment.

1. Same Supervisor

The similarly-situated requirement “normally entails”

the existence of a common supervisor. Radue, 219 F.3d

at 617. When the same supervisor treats an otherwise

equivalent employee better, one can often reasonably

infer that an unlawful animus was at play. The inference

of discrimination is weaker when there are different

decision-makers, since they “may rely on different

factors when deciding whether, and how severely, to

discipline an employee.” Ellis v. United Postal Service,

523 F.3d 823, 826 (7th Cir. 2008); see also Little v. Illinois

Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004) (disci-

pline from a different supervisor “sheds no light” on

the disciplinary decision). For this reason, this court

generally requires a plaintiff to demonstrate at a mini-

mum that a comparator was treated more favorably by

the same decision-maker who fired the plaintiff. See

Ellis, 523 F.3d at 826.

In this case, there was a common decision-maker for

Coleman, Arient, and Pelletier: the facility’s maintenance

18 No. 10-3694

operations manager, Charles Von Rhein. Von Rhein

approved Coleman’s termination and the men’s suspen-

sions. The district court relied on the fact that Arient’s

and Pelletier’s direct supervisor (Turkovich) was not

the same as Coleman’s (Berry). But this misses the point

of the common supervisor factor. While we have some-

times phrased the question ambiguously as whether

the comparators “dealt with the same supervisor,” e.g., Gates,

513 F.3d at 690 (emphasis added), the real question is

whether they were “treated more favorably by the same

decisionmaker.” Ellis, 523 F.3d at 826 (emphasis added); see

Little, 369 F.3d at 1012 (“A similarly-situated employee

must have been disciplined, or not, by the same

decisionmaker who imposed an adverse employment

action on the plaintiff.”). This point follows logically

from the cause of action itself, which requires proof

“that the decisionmaker has acted for a prohibited

reason.” Schandelmeier-Bartels v. Chicago Park Dist., 634

F.3d 372, 379 (7th Cir. 2011), quoting Rogers v. City of

Chicago, 320 F.3d 748, 754 (7th Cir. 2003) (emphasis in

original). Under Title VII, a “decisionmaker is the

person ‘responsible for the contested decision.’ ” Id.,

quoting Rogers, 320 F.3d at 754.

For both Coleman’s termination and Arient’s and

Pelletier’s suspensions, that person was Von Rhein. He

signed the letters placing Coleman on off-duty status

and terminating her, and he conducted the internal in-

vestigation of her in the interim period. Von Rhein also

personally investigated Arient’s and Pelletier’s actions

and testified that he made the decision to suspend them.

The district court downplayed Von Rhein’s supervisory

No. 10-3694 19

role in the response to the knife incident, asserting he

merely “sign[ed] off on Turkovich’s decision” to suspend

them. But, again, the issue is not only who proposed

the suspension but who was “responsible” for the deci-

sion. Schandelmeier-Bartels, 634 F.3d at 379, quoting Rogers,

320 F.3d at 754. Only Von Rhein, and not Turkovich, had

the authority to discipline Arient and Pelletier. For pur-

poses of Title VII, he was the decision-maker.

2. Same Standards of Conduct

The Postal Service contends that because Arient and

Pelletier had different job titles and duties, they cannot

be considered situated similarly to Coleman. That is

not correct. In the context of this case of differential

discipline, it is irrelevant to the comparison that Arient

and Pelletier are maintenance mechanics and Coleman

is a maintenance support clerk. We have repeatedly

made clear that a “difference in job title alone is not

dispositive.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d

781, 791 (7th Cir. 2007); see Rodgers v. White, 657 F.3d 511,

518 (7th Cir. 2011) (“Formal job titles and rank are not

dispositive . . . .”).

The question is not whether the employer classified

the comparators in the same way, “but whether the

employer subjected them to different employment poli-

cies.” Lathem v. Dep’t of Children & Youth Services, 172

F.3d 786, 793 (11th Cir. 1999). Comparators need only be

similar enough to enable “a meaningful comparison.”

Humphries, 474 F.3d at 405. Arient and Pelletier worked

at the same job site as Coleman, were subject to the

20 No. 10-3694

same standards of conduct, violated the same rule, and

were disciplined by the same supervisor. Their different

titles and duties do not defeat, as a matter of law, the

probative value of their different disciplinary treatment.

The application of this “same standards” factor also

depends on the specific facts of the case. In cases

involving the quality of job performance, for example, a

would-be comparator’s professional role may be so dif-

ferent from the plaintiff’s as to “render the comparison

effectively useless.” Humphries, 474 F.3d at 405; accord, e.g.,

Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009)

(salesmen with “lower-ranking sales positions” were not

similarly situated to the plaintiff, who was fired for

performance reasons); Burks, 464 F.3d at 751 (a recep-

tionist and a supervisor were not similarly situated to

the plaintiff, a program manager who was fired for per-

formance reasons); Keri v. Board of Trustees of Purdue

University, 458 F.3d 620, 626 (7th Cir. 2006) (tenured

university professors were not similarly situated to

untenured plaintiff professor who was not reappointed

after “widespread complaints from both students and

supervisors”). Where the issue is the quality of a

plaintiff’s work, a difference between the plaintiff’s and

comparators’ positions can be important because this

difference will often by itself account for the less

favorable treatment of the plaintiff. Cf. Senske, 588 F.3d

at 510 (“the comparators must be similar enough that

differences in their treatment cannot be explained by

other variables, such as distinctions in their roles or

performance histories”).

No. 10-3694 21

In contrast, Arient’s and Pelletier’s different positions

provide no such self-evident explanation for their more

lenient punishment. The reason is obvious. Coleman

and her comparators were disciplined not for bad per-

formance but for violating a general workplace rule

that applied to employees in all departments and of all

ranks. In such misconduct cases (as opposed to perfor-

mance cases), comparisons between employees with

different positions are more likely to be useful. See,

e.g., Rodgers, 657 F.3d at 513 (where plaintiff was

punished more harshly than his supervisor for the

same misconduct, the “general rule” that “employees of

differing ranks usually make poor comparators . . . does

not apply”). “[W]hen uneven discipline is the basis for

a claim of discrimination, the most-relevant similarities

are those between the employees’ alleged misconduct,

performance standards, and disciplining supervisor,”

rather than job description and duties. Id. at 518.

The real issue is whether Arient and Pelletier were

subject to the same standards of conduct as Coleman, and

of course they were. The Postal Service rules against

workplace violence and threats apply equally to

mechanics and clerks. The employee handbook frames

the prohibition in all-encompassing terms: “it is the

unequivocal policy of the Postal Service that there must

be no tolerance of violence or threats of violence by

anyone at any level of the Postal Service. Similarly,

there must be no tolerance of harassment, intimidation,

threats, or bullying by anyone at any level.” (Emphases

added.) Since the purpose of the rule is to ensure a

“safe and humane working environment,” there is no

22 No. 10-3694

objective reason for it to apply with greater or lesser

force to employees of certain positions.

Even if there might have been some theoretical basis

for enforcing the rule differently based on job position,

there is no evidence that the Postal Service actually

took Arient’s, Pelletier’s, or Coleman’s roles into account

when it disciplined them. A proposed comparator’s

position or rank may be important, but only “provided

that the employer took these factors into account when

making the personnel decision in question.” Eaton v.

Indiana Dep’t of Corrections, 657 F.3d 551, 559 (7th Cir.

2011) (emphasis in original), quoting Patterson v. Avery

Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002); see also

Peirick v. Indiana University-Purdue University Indianapolis,

510 F.3d 681, 689 (7th Cir. 2007) (“we doubt that the

[employer] took heed of employee classifications

when doling out sanctions”). “A characteristic that dis-

tinguishes two employees, regardless of its significance

when objectively considered, does not render the em-

ployees non-comparable if the employer never con-

sidered that characteristic . . . [because it] cannot provide

any insight as to whether the employer’s decision as

motivated by discriminatory intent.” Eaton, 657 F.3d at

559. Here, the record provides no indication that the

Postal Service considered job titles at all significant when

deciding on discipline for Arient, Pelletier, and Coleman.

There are a number of potential explanations for

why Arient and Pelletier got off with such lighter punish-

ments than Coleman. Perhaps it was because managers

honestly perceived them as less culpable or dangerous.

No. 10-3694 23

Perhaps it was because they were white or male. But it

was surely not because they were mechanics.

3. Conduct of Comparable Seriousness

In a disparate discipline case, the similarly-situated

inquiry often hinges on whether co-workers “engaged

in comparable rule or policy violations” and received

more lenient discipline. Naik v. Boehringer Ingelheim

Pharms., Inc., 627 F.3d 596, 600 (7th Cir. 2010), quoting

Patterson, 589 F.3d at 365-66. The Supreme Court has

made clear that “precise equivalence in culpability

between employees is not the ultimate question: as we

indicated in McDonnell Douglas, an allegation that

other ‘employees involved in acts against [the em-

ployer] of comparable seriousness’ ” received more favorable

treatment “is adequate to plead an inferential case” of dis-

crimination. McDonald, 427 U.S. at 283 n.11, quoting

McDonnell Douglas, 411 U.S. at 804. Following this lan-

guage, our circuit, like many others, has adopted this

“comparable seriousness” standard. E.g., Peirick, 510

F.3d at 689; Davis v. Wisconsin Dep’t of Corrections,

445 F.3d 971, 978 (7th Cir. 2006); Johnson v. Artim Transpor-

tation System, Inc., 826 F.2d 538, 543 (7th Cir. 1987).2

2

For cases from other circuits, see, for example, Russell v. City

of Kansas City, 414 F.3d 863, 868 (8th Cir. 2005) (employing

“comparable seriousness” standard); Graham v. Long Island R.R.,

230 F.3d 34, 40 (2d Cir. 2000) (same); Kendrick v. Penske Transpor-

tation Services, Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (same);

(continued...)

24 No. 10-3694

Comparators must have “engaged in similar — not

identical — conduct to qualify as similarly situated.”

Peirick, 510 F.3d at 691, 689 (reversing summary judg-

ment in relevant part; university tennis coach “accused

of using abusive language, unsafe driving, leaving

students behind during a road trip, and pitting the stu-

dents against the administration” was similarly situated

to coaches who “did not engage in the exact same mis-

conduct” but who “violated the very same rules”), quoting

Ezell v. Potter, 400 F.3d 1041, 1050 (7th Cir. 2005)

(reversing summary judgment in relevant part; mail

carrier accused of taking too long a lunch was similarly

situated to another carrier who had lost a piece of certified

mail). To determine “whether two employees have en-

gaged in similar misconduct, the critical question is

whether they have engaged in conduct of comparable

seriousness.” Peirick, 510 F.3d at 689.

Again, the analysis is straightforward here. Arient

and Pelletier violated the Postal Service rule that

prohibits “Violent and/or Threatening Behavior” — the

same rule Coleman was accused of breaking. That they

did not break the rule in precisely the same manner

does not mean that summary judgment was appropri-

ate. By directly threatening another employee with a

2

(...continued)

Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (same); Taylor

v. Virginia Union University, 193 F.3d 219, 234 (4th Cir. 1999)

(en banc) (same), abrogated in part on other grounds by Desert

Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003).

No. 10-3694 25

knife in the workplace, Arient and Pelletier engaged in

conduct that appears, at least for purposes of summary

judgment, at least as serious as Coleman’s indirect

“threat” against Berry — and arguably even more so.3

Where a proposed comparator violated the same rule as

the plaintiff in an equivalent or more serious manner,

courts should not demand strict factual parallels. See

Lynn v. Deaconess Medical Center-West Campus, 160 F.3d 484,

488 (8th Cir. 1998) (“To require that employees always

have to engage in the exact same offense as a

prerequisite for finding them similarly situated would

result in a scenario where evidence of favorable treat-

ment of an employee who has committed a different

but more serious, perhaps even criminal offense, could

never be relevant to prove discrimination.”), abrogated

on other grounds, Torgerson v. City of Rochester, 643 F.3d

1031 (8th Cir. 2011) (en banc).

The Postal Service argues that Arient and Pelletier

are not appropriate comparators because the Postal

Service viewed their behavior “as an ‘isolated instance’

3

Perhaps if the situation were reversed, if Coleman had

threatened another employee with a weapon while Arient and

Pelletier had only made alarming statements to a third-party,

their conduct would be less serious. For example, the Tenth

Circuit once found that a proposed comparator who had

threatened a co-worker with assault and then arguably threat-

ened his supervisor with physical violence “did not violate

work rules of comparable seriousness” as the plaintiff, who

had physically assaulted his supervisor by pushing him to

the ground. See Kendrick, 220 F.3d at 1232.

26 No. 10-3694

where ‘no particular threats were involved,’ ” while

Coleman had made a “credible threat.” The Postal

Service may make that argument at trial, but it is not a

winner on summary judgment. When two grown men

hold a person down while brandishing a knife (whether

at his throat or not), not only is a “particular threat[ ] . . .

involved” — a jury could reasonably conclude that it

was a far more immediate one than an employee

confiding in her psychiatrist in a private therapy

session that she was having thoughts about killing her

boss. To be sure, the Postal Service is right to take

seriously all threats made by, and against, its employees.

But at the summary judgment stage, the employer cannot

defeat a plaintiff’s prima facie case of discrimination on

the theory that it applied its “no tolerance” policy on

threats to some workers while dismissing dangerous

acts of others as mere “horseplay.” See Gordon v. United

Airlines, Inc., 246 F.3d 878, 891 (7th Cir. 2001) (“It is not

the province of this court to question an employer’s

decision to punish some conduct more harshly than

other conduct. Nevertheless, we are not bound by the

labels that an employer uses and must scrutinize the

conduct behind those labels to determine if they are

applied to similar conduct.”). Such fact issues are the

province of the jury.4

4

The Postal Service may mean simply that the Arient and

Pelletier suspensions are not comparable to Coleman’s ter-

mination because the plant leadership did not honestly regard

them, but did regard Coleman, as presenting a serious

(continued...)

No. 10-3694 27

We have noted with some concern the tendency of

judges in employment discrimination cases “to require

closer and closer comparability between the plaintiff and

the members of the comparison group.” Crawford,

461 F.3d at 846.5 The purpose of the similarly-situated

4

(...continued)

ongoing threat. An employer’s honest belief about its motives

for disciplining a Title VII disparate treatment plaintiff is

relevant, but at the pretext stage, not for the plaintiff’s prima

facie case. The similarly-situated inquiry is about whether

employees are objectively comparable, while the pretext

inquiry hinges on the employer’s subjective motivations. As

discussed below, however, there are reasons to doubt even

that the Postal Service subjectively believed Coleman was

dangerous. The Postal Service also cites Bodenstab v. County

of Cook, 569 F.3d 651, 657 n.2 (7th Cir. 2009), for the proposi-

tion that fighting with other employees and bringing a gun

to the workplace are not comparable to threatening to kill a

supervisor. But Bodenstab’s passing discussion of the similarly-

situated prong in footnote 2 is dicta; the court chose to

“skip over” the prima facie analysis, and its central holding

was that the plaintiff had failed to establish pretext. Id. at 657.

5

For scholarly criticism of this phenomenon, see Suzanne B.

Goldberg, Discrimination by Comparison, 120 Yale. L.J. 728, 734

(2011) (“The judicial demand for comparators continues

largely unabated . . . , sharply narrowing both the possibility of

success for individual litigants and, more generally, the very

meaning of discrimination.”); Charles A. Sullivan, The Phoenix

from the Ash: Proving Discrimination by Comparators, 60 Ala. L.

Rev. 191, 216 (2009) (criticizing the tendency of courts “to

(continued...)

28 No. 10-3694

requirement is to “provide plaintiffs the ‘boost’ that the

McDonnell Douglas framework intended.” Humphries,

474 F.3d at 406, citing Stone v. City of Indianapolis Public

Utilities Div., 281 F.3d 640, 643 (7th Cir. 2002).

Demanding nearly identical comparators can transform

this evidentiary “boost” into an insurmountable hurdle.

Coleman’s proposed comparators (1) “dealt with the

same supervisor,” (2) “were subject to the same stan-

dards,” and (3) “engaged in similar conduct” of compara-

ble seriousness. Gates, 513 F.3d at 690. They are

similar enough to permit a reasonable inference of dis-

crimination, and that is all McDonnell Douglas requires.

C. Pretext

The Postal Service has offered a legitimate, nondiscrim-

inatory reason for terminating Coleman — it claims

she “posed a threat to kill her supervisor.” To show

this reason is pretextual, Coleman “must present

evidence suggesting that the employer is dissembling.”

O’Leary, 657 F.3d at 635. “The question is not whether

the employer’s stated reason was inaccurate or unfair,

but whether the employer honestly believed the

5

(...continued)

require the comparator to be the almost-twin of the plaintiff

before the comparison is sufficiently probative”); Ernest F.

Lidge III, The Courts’ Misuse of the Similarly Situated Concept

in Employment Discrimination Law, 67 Mo. L. Rev. 831, 832 (2002)

(noting that courts find “that potential comparators are not

similarly situated because of relatively minor, or irrelevant,

distinctions between the comparators and the plaintiff”).

No. 10-3694 29

reasons it has offered to explain the discharge.” Id. “It

is not the court’s concern that an employer may be

wrong about its employee’s performance, or may be

too hard on its employee. Rather, the only question

is whether the employer’s proffered reason was

pretextual, meaning that it was a lie.” Naik, 627 F.3d at

601, quoting Ineichen v. Ameritech, 410 F.3d 956, 961 (7th

Cir. 2005).

To meet this burden, Coleman must “identify such

weaknesses, implausibilities, inconsistencies, or con-

tradictions” in the Postal Service’s asserted reason “that

a reasonable person could find [it] unworthy of cre-

dence.” Boumehdi, 489 F.3d at 792. If the Postal Service

terminated Coleman because it “honestly believed” she

posed a threat to other employees — even if this reason

was “foolish, trivial, or baseless” — Coleman loses. Id. On

the other hand, “if the stated reason, even if actually

present to the mind of the employer, wasn’t what

induced him to take the challenged employment action,

it was a pretext.” Forrester v. Raulant-Borg Corp., 453

F.3d 416, 418 (7th Cir. 2006).

To show pretext, Coleman argues that the labor arbitra-

tor who ordered her reinstated found that the Postal

Service did not honestly believe she was a threat, and

that the district court should have given his decision

preclusive effect. We disagree on both points. On the

merits, however, we agree that Coleman has presented

enough evidence of pretext to avoid summary judg-

ment. First, like the arbitrator, we question whether

Coleman’s statements about Berry rose to the level of a

30 No. 10-3694

“true threat,” and thus whether Coleman can fairly be

said to have violated any workplace rule at all. Second,

a number of background facts cast doubt on the asser-

tion that Coleman was dangerous: her statements came

in a private therapy session, the Postal Service learned

of them the same day the psychiatrist discharged

Coleman as stable, and it had options short of termina-

tion available to gauge her propensity for violence.

Third, Coleman’s comparator evidence tends to show

that her Postal Service managers did not enforce this rule

evenhandedly. This evidence of similarly situated co-

workers is also relevant to the pretext inquiry. It

suggests that the Postal Service decision-makers here

did not take the rule against threats as seriously as they

claimed. As the Supreme Court, this court, and other

circuits have held, a discrimination plaintiff may em-

ploy such comparator evidence to discharge her burden

at the pretext stage as well as to satisfy the fourth

element of her prima facie case. Based on this evidence

here, a reasonable jury could conclude that the Postal

Service’s stated reason for firing Coleman was pretextual.

1. The Effect of the Arbitration

The arbitration does not support issue preclusion on

the issue of pretext for two independent reasons. First,

the arbitrator did not decide the same issue of pretext.

Second, Coleman’s case is subject to the general rule

under Title VII that arbitration decisions do not bind

either side regarding statutory discrimination claims.

No. 10-3694 31

We consider first just what the arbitrator decided.

Issue preclusion requires an identity of issues. Issue

preclusion, also known as collateral estoppel, “bars ‘suc-

cessive litigation of an issue of fact or law actually

litigated and resolved in a valid court determination

essential to the prior judgment,’ even if the issue recurs

in the context of a different claim.” Taylor v. Sturgell,

553 U.S. 880, 892 (2008), quoting New Hampshire v.

Maine, 532 U.S. 742, 748 (2001). In some cases, administra-

tive adjudications may have preclusive effect. See, e.g.,

University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986)

(“when a state agency acting in a judicial capacity

resolves disputed issues of fact properly before it which

the parties had an adequate opportunity to litigate,

federal courts must give the agency’s factfinding the

same preclusive effect to which it would be entitled in

the State’s courts”) (internal citation and quotation

marks omitted). Whatever the original forum, however,

the doctrine “applies only when (among other things) the

same issue is involved in the two proceedings and

the determination of that question is ‘essential’ to the

prior judgment.” King v. Burlington Northern & Santa Fe

Ry. Co., 538 F.3d 814, 818 (7th Cir. 2008).

Here the arbitrator did not examine whether the

Postal Service honestly believed Coleman was a danger,

but only whether Coleman really was a danger. Finding

that Coleman’s statements to her psychiatrist did not

constitute a “true threat,” the arbitrator ruled that the

Postal Service lacked just cause to terminate her. This

finding is not the same as a finding that the Postal

Service decision-makers were lying about their motives.

32 No. 10-3694

The most that Coleman can say is that the arbitrator

was skeptical that Berry genuinely feared Coleman,

suspecting he had “embellished” his story. Even if Berry

exaggerated his reaction to news of the threat, that

would not prove that Von Rhein and Sove, the super-

visors who decided to terminate Coleman, were also

disingenuous. The arbitrator acknowledged that

Coleman’s behavior raised “serious concerns about her

fitness for duty, and under what conditions she might

be able to work,” and he ordered Coleman to undergo

a psychiatric examination to ascertain whether she was

ready to return. He did not determine that the Postal

Service’s concerns about Coleman were lies, but only

that it had failed to meet its “burden of proving that [she]

engaged in conduct warranting her removal.” Issue

preclusion therefore could not apply.

Second, whatever the arbitrator’s findings, his decision

could not trigger collateral estoppel in this action. In

Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60 (1974),

the Supreme Court held that arbitration decisions

do not have preclusive effect in later litigation under

Title VII. The Court explained that “Congress

intended federal courts to exercise final responsibility

for enforcement of Title VII; deferral to arbitral decisions

would be inconsistent with that goal.” Id. at 56. The only

exception to this rule is where a clause in a collective

bargaining agreement has explicitly mandated that

“employment-related discrimination claims would be

resolved in arbitration.” 14 Penn Plaza v. Pyett, 129 S. Ct.

1456, 1464 (2009). In 14 Penn Plaza, the Supreme Court

held that such clauses are enforceable, distinguishing

No. 10-3694 33

Gardner-Denver on the grounds that, in that case, the

“employee’s collective-bargaining agreement did not

mandate arbitration of statutory antidiscrimination

claims.” Id. at 1467. Yet the Court recognized the con-

tinuing vitality of Gardner-Denver in cases like this

one, where the CBA did not “clearly and unmistakably

require[ ] union members to arbitrate claims arising

under” federal anti-discrimination laws: where the

“collective-bargaining agreement [gives] the arbitrator

‘authority to resolve only questions of contractual

rights,’ his decision could not prevent the employee

from bringing the Title VII claim in federal court ‘regard-

less of whether certain contractual rights are similar to,

or duplicative of, the substantive rights secured by

Title VII.’ ” Id. at 1461, 1467, quoting Gardner-Denver,

415 U.S. at 53-54. Here, the collective bargaining agree-

ment did not require submission of Title VII claims to

labor arbitration. Under Gardner-Denver, then, even if

the arbitrator had reached the pretext issue, his

findings would not have preclusive effect here.

2. Evidence of Pretext

Without giving preclusive effect to the arbitral decision,

however, we find that Coleman has offered evidence

of pretext in the form of context. “[A]n evaluation of

context is essential to determine whether an employer’s

explanation is fishy enough to support an inference

that the real reason must be discriminatory.” Loudermilk

v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011).

Much of Coleman’s context evidence is recounted in

34 No. 10-3694

the arbitrator’s findings. She is not barred from relying

on the these findings as evidence that the Postal Service’s

stated reason for terminating her was a pretext. As the

Gardner-Denver Court stated: “The arbitral decision may

be admitted as evidence and accorded such weight as

the court deems appropriate.” 415 U.S. at 60. In this case,

several of the arbitrator’s findings provide support for

Coleman’s argument that the Postal Service’s purported

reasons for terminating her were pretextual.

First, the arbitrator concluded that Coleman’s state-

ments to Dr. Ionescu did not constitute a “true threat.”

We think this is a reasonable inference that is tanta-

mount to a finding that Coleman did not actually violate

the Postal Service’s rule against threats of violence.

Granted, even if Coleman broke no rule, the Postal

Service may still have mistakenly believed she did — and

that’s what counts in the pretext analysis. See Forrester,

453 F.3d at 418. Nevertheless, the Postal Service can be

presumed to understand its own code of conduct. The

incongruity between Coleman’s non-violation and her

termination casts at least some doubt on the Postal Ser-

vice’s motives. See, e.g., Loudermilk, 636 F.3d at 315

(“The Civil Rights Act of 1964 does not require em-

ployers to have ‘just cause’ for sacking a worker, but

an employer who advances a fishy reason takes the

risk that disbelief of the reason will support an inference

that it is a pretext for discrimination.”). And there is

inherent “fishiness” in an employer’s proffered reason

when it rests on a policy that does not legitimately apply

to the employee who was terminated. See, e.g., Gordon,

246 F.3d at 889 (“Here, an employer applied a rarely

No. 10-3694 35

used label to sanction conduct that does not clearly fall

within the chosen category. . . . [W]hen considered

together with the inconsistency [in the employer’s defini-

tion of the rule], it is sufficient evidence of pretext and,

therefore, precludes summary judgment.”); Stalter v. Wal-

Mart Stores, Inc., 195 F.3d 285, 290 (7th Cir. 1999) (reversing

summary judgment for employer where plaintiff had

been fired supposedly for theft; eating a few corn chips

from an open bag in a break room did not “fit within

a reasonable understanding of the term ‘theft’ ” and a

“jury could certainly infer . . . that [the employer’s] claim

of theft was a pretext for [the plaintiff’s] termination”).

As the arbitrator also identified, there are real questions

as to whether the Postal Service could have honestly

considered Coleman dangerous. For one, he em-

phasized that Coleman made her statements in a

private, confidential therapy session:

[W]e have an employee who, after determining she

could not deal with the stress and frustration of

being unable to work following her surgery, volun-

tarily admits herself for psychiatric treatment. During

this treatment, her psychiatrist probes the depth

of [Coleman’s] anger and finds that she is ex-

periencing suicidal and homicidal ideations.

The special context in which Coleman expressed

her anger cannot possibly have been lost on the Postal

Service. The psychotherapeutic environment is one

in which such extreme feelings would understandably

arise — and indeed, the one in which they should be

most encouraged. As the Supreme Court has noted:

36 No. 10-3694

“Effective psychotherapy . . . depends upon an atmo-

sphere of confidence and trust in which the patient is

willing to make a frank and complete disclosure of facts,

emotions, memories, and fears.” Jaffee v. Redmond, 518

U.S. 1, 10 (1996); see also Tarasoff v. Regents of University

of California, 551 P.2d 334, 347 (Cal. 1976) (“We realize

that the open and confidential character of psycho-

therapeutic dialogue encourages patients to express

threats of violence, few of which are ever executed. Cer-

tainly a therapist should not be encouraged routinely to

reveal such threats; such disclosures could seriously

disrupt the patient’s relationship with his therapist and

with the persons threatened.”).

It would therefore be troubling to think that anyone

who confides to her psychiatrist that she has fantasized

about killing her boss could automatically be subject

to termination for cause. To be sure, the situation

changes when a patient expresses a genuine and ongoing

intent to harm another person. That was the allegation

in the canonical Tarasoff case. See 551 P.2d at 432

(“Poddar informed Moore, his therapist, that he was

going to kill an unnamed girl, readily identifiable as

Tatiana, when she returned home from spending the

summer in Brazil.”). In this case, however, the Postal

Service had little reason to believe that Coleman posed a

continuing threat — and even more to the point, it appears

to have made no effort to ascertain whether she did or not.

On the contrary, the Postal Service had good reason to

believe that whatever danger Coleman ever posed had

subsided by the time she sought to return to work,

No. 10-3694 37

well after she expressed this thought to her therapist.

Dr. Ionescu informed Berry of Coleman’s statements the

very same day she discharged Coleman in “stable” condi-

tion, describing her as a “cooperative, pleasant,” “reac-

tive,” “smiling,” “model patient.”6 As the arbitrator noted:

It is obvious that any homicidal ideation [Coleman]

may have had toward Mr. Berry was part and parcel

of her psychiatric condition for which she sought

treatment. At the time she expressed this ideation,

she was hospitalized and, therefore, incapable of

acting upon it. She was not released from the

hospital until it had abated.

6

In her report, Dr. Ionescu indicated that Coleman gave “verbal

agreement” to the conversation she had with Berry. Such

consent would negate what might otherwise raise a serious

issue of physician-patient confidentiality. See 735 ILCS § 5/8-802

(“No physician or surgeon shall be permitted to disclose

any information he or she may have acquired in attending

any patient in a professional character, necessary to enable

him or her professionally to serve the patient.”). The Illinois

Mental Health and Developmental Disabilities Confidentiality

Act requires that “[a]ll records and communications” made

in the course of therapy “shall be confidential and shall not be

disclosed,” with certain exceptions. 740 ILCS § 110/3(a). One

such exception applies “when . . . a therapist, in his or her sole

discretion, determines that disclosure is necessary to . . . protect

the recipient or other person against a clear, imminent risk

of serious physical or mental injury or disease or death.” 740

ILCS § 110/11. In light of the fact that Dr. Ionescu discharged

Coleman as “stable” the very day she spoke with Berry, it

seems highly unlikely that she considered Coleman a “clear

imminent risk” to his safety at the time of their conversation.

38 No. 10-3694

On summary judgment, Coleman is entitled to the rea-

sonable inferences (a) that Dr. Ionescu would not have

released her from treatment if she believed Coleman

posed a danger to herself or others, and (b) that supervi-

sors considering the matter should and would have

realized as much before firing her.

Finally, if the Postal Service’s real concern was

Coleman’s potential danger, why did it not simply order

her to undergo a psychological evaluation? As the ar-

bitrator noted, “Both Mr. Berry and Mr. Von Rhein . . .

acknowledged that they could have referred [Coleman]

for a fitness-for-duty examination.” He concluded that,

“[u]nder the unique circumstances attendant to this

case, that would have been a more reasonable course

for the Service to follow. With her length of satisfactory

employment with the Postal Service, she deserved

as much.” The Postal Service’s failure to take this seem-

ingly natural step is further evidence suggesting that

Coleman’s mental stability was not its real motiva-

tion for firing her.

In short, while the arbitral decision is not binding,

its factual predicates and analysis give some boost to

Coleman’s claim that the Postal Service’s asserted

reasons for terminating her were pretextual.

3. Comparator Evidence to Show Pretext

Coleman has also presented additional evidence of

pretext: her evidence that similarly situated employees

outside her protected classes received more favorable

No. 10-3694 39

treatment from the same decision-maker. As detailed

above, Arient and Pelletier broke the same rule that

Coleman allegedly did and did so, a jury could rea-

sonably conclude, in a much more egregious man-

ner. Such evidence of selective enforcement of a rule

“calls into question the veracity of the employer’s ex-

planation.” Olsen v. Marshall & Ilsley Corp., 267 F.3d

597, 601 (7th Cir. 2001); accord, e.g., Delli Santi v. CNA

Ins. Cos., 88 F.3d 192, 202 (3d Cir. 1996) (The plaintiff’s

“showing that the company did not enforce such a pol-

icy” is evidence from which the “jury . . . could

rationally conclude that the legitimate non-retaliatory

reason offered by [the employer] was a pretext for dis-

charging [the plaintiff].”); Williams v. City of Valdosta,

689 F.2d 964, 975 (11th Cir. 1982) (“It is undisputed,

however, that the City’s adherence to its formal promo-

tional policy was inconsistent and arbitrary at best. This

inconsistency supports the conclusion that resort to the

examination requirement was a pretext for singling

out Williams for unfavorable treatment.”). Combined

with the additional circumstances discussed above,

Coleman’s evidence is sufficient to defeat summary

judgment on the pretext issue.

The Supreme Court holds that comparator evidence

is relevant at the pretext stage. In McDonnell Douglas

itself, the Supreme Court taught that “evidence that

white employees involved in acts . . . of comparable

seriousness” received more favorable treatment would

be “[e]specially relevant” to a showing that the em-

ployer’s “stated reason for [the plaintiff’s] rejection was

in fact pretext.” 411 U.S. at 804. In Burdine, too, the Court

40 No. 10-3694

made clear that in the pretext inquiry, “it is the plaintiff’s

task to demonstrate that similarly situated employees were

not treated equally.” 450 U.S. at 258, citing McDonnell

Douglas, 411 U.S. at 804. And in a closely related context,

the Supreme Court has affirmed the value of qualifications

evidence (that is, evidence that the employer hired a

less qualified person outside the plaintiff’s protected

class) in the pretext inquiry. Ash v. Tyson Foods, Inc.,

546 U.S. 454, 457 (2006) (“qualifications evidence may

suffice, at least in some circumstances, to show pretext”);

Patterson v. McLean Credit Union, 491 U.S. 164, 187-88

(1989) (plaintiff “might seek to demonstrate that [the

employer]’s claim to have promoted a better qualified

applicant was pretextual by showing that she was in

fact better qualified than the person chosen for the posi-

tion”), superseded on other grounds by 42 U.S.C. § 1981(b).

Our precedents also teach that the similarly-situated

inquiry and the pretext inquiry are not hermetically

sealed off from one another. We have often noted that

“the prima facie case and pretext analyses often overlap.”

Scruggs v. Garst Seed Co., 587 F.3d 832, 838 (7th Cir. 2009);

accord, Adelman-Reyes v. St. Xavier University, 500 F.3d

662, 665, (7th Cir. 2007); Olsen, 267 F.3d at 600. Where

the plaintiff argues that an employer’s discipline is

meted out in an uneven manner, the similarly-situated

inquiry dovetails with the pretext question. Evidence

that the employer selectively enforced a company

policy against one gender but not the other would go to

both the fourth prong of the prima facie case and the

pretext analysis. Thus, the “same inquiry into similarly

No. 10-3694 41

situated employees has been made at the pretext stage.”

Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir.

1998); accord, e.g., Buie v. Quad/Graphics, Inc., 366 F.3d

496, 508 (7th Cir. 2004) (“The disparate treatment of

similarly-situated employees who were involved in

misconduct of comparable seriousness, but did not have

a similar disability, could establish pretext.”); O’Regan

v. Arbitration Forums, Inc., 246 F.3d 975, 985 (7th Cir.

2001) (“to show pretext (as well as the fourth element of

a prima facie case) the inquiry remains the same: the

plaintiff must show that similarly situated employees

were treated more favorably than the plaintiff”), citing

Morrow, 152 F.3d at 561; Hiatt v. Rockwell Int’l Corp., 26

F.3d 761, 770 (7th Cir. 1994) (“In order to demonstrate

pretext under the McDonnell Douglas analysis, a plaintiff

may put forth evidence that (1) employees outside of

the protected class . . ., (2) who were involved in acts

of comparable seriousness, (3) were nevertheless re-

tained or rehired (while the plaintiff was not).”).

A good example is Gordon v. United Airlines, where

the airline fired an African-American male flight

attendant after he deviated from his flight schedule

without authorization. 246 F.3d at 880. The district court

granted summary judgment for United. We reversed:

“Our review of the record reveals inconsistencies in

definition and disparities in application [of the unautho-

rized deviation rule] that calls into question United’s

proffered justification . . . .” Id. at 889. As evidence of

pretext, the court pointed to Gordon’s showing that a

similarly situated employee had been disciplined less

harshly: “[T]he weakness of the proffered justification

42 No. 10-3694

for the termination is further emphasized by the fact

that the only other time that United has categorized an

action as an unauthorized deviation, the involved em-

ployee, a white female, was not terminated.” Id. at 892.

We explained: “A showing that similarly situated em-

ployees belonging to a different racial group received

more favorable treatment can also serve as evidence

that the employer’s proffered legitimate, nondiscrim-

inatory reason for the adverse job action was a pretext

for racial discrimination.” Id., quoting Graham v. Long

Island R.R., 230 F.3d 34, 43 (2d Cir. 2000). The reasoning

and result in Gordon confirm what we have stated in

many other cases: that comparator evidence can do

“double-duty” at both the prima facie and pretext stages.

Several other circuits agree. See, e.g., Hawn v. Executive

Jet Management, Inc., 615 F.3d 1151, 1158 (9th Cir. 2010)

(“The concept of ‘similarly situated’ employees may be

relevant to both the first and third steps of the McDonnell

Douglas framework.”); Graham v. Long Island R.R., 230

F.3d 34, 43 (2d Cir. 2000) (same); EEOC v. Horizon/CMS

Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th Cir. 2000)

(“while evidence that a defendant treated a plaintiff

differently than similarly-situated employees is certainly

sufficient to establish a prima facie case, it is ‘[e]specially

relevant’ to show pretext if the defendant proffers a

legitimate, nondiscriminatory reason for the adverse

employment action”); see also Rodgers v. U.S. Bank., N.A.,

417 F.3d 845, 852-53 (8th Cir. 2005) (finding comparator

evidence relevant to both the prima facie and pretext

phases, but imposing a more “rigorous” standard at the

pretext stage), abrogated on other grounds, Torgerson, 643

No. 10-3694 43

F.3d at 1058; Simpson v. Kay Jewelers, Div. of Sterling, Inc.,

142 F.3d 639, 646 (3d Cir. 1998) (same).7

In this case, Coleman has offered evidence sufficient

to support a finding that Arient and Pelletier were

situated similarly to her, are outside her protected

classes, and received more lenient punishment for a

comparably serious violation of the same rule.

Together with the evidence identified by the arbitrator

concerning the seriousness of the supposed threat and

7

Other circuit courts, hewing more closely to McDonnell

Douglas, channel comparator evidence into the pretext phase

of the sequence. See, e.g. Rioux v. City of Atlanta, 520 F.3d 1269,

1277 (11th Cir. 2008) (“We, too, address the sufficiency of any

comparator evidence in our examination of pretext, rather

than as an element of Rioux’s prima facie case . . . .”); Conward

v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999) (“the

time to consider comparative evidence in a disparate treat-

ment case is at the third step of the burden-shifting ritual,

when the need arises to test the pretextuality vel non of the

employer’s articulated reason for having acted adversely to

the plaintiff’s interests”). This approach makes sense be-

cause the probative value of a proposed comparator

depends largely on the specific non-discriminatory reason

the employer has put forward. As one commentator argues:

“It makes no sense . . . to require the plaintiff to choose com-

parison cases based on their relevance to the employer’s not-yet-

’articulated’ justification. It would make far more sense

for courts to consider the presence or absence of good compara-

tive data as part of a review of the evidence as a whole . . . .”

Deborah C. Malamud, The Last Minuet: Disparate Treatment

after Hicks, 93 Mich. L. Rev. 2229, 2293 (1995).

44 No. 10-3694

the Postal Service’s response to it, this evidence of selec-

tive enforcement was enough to create a genuine issue

of fact as to whether the Postal Service’s asserted reason

for terminating Coleman was pretextual. We must

reverse summary judgment for the Postal Service on

Coleman’s claims of sex and race discrimination.

III. Retaliation Claims

Coleman also appeals the district court’s grant of sum-

mary judgment to the Postal Service on her Title VII

retaliation claims. Like discrimination, retaliation may

be established by either the direct or indirect methods

of proof. See Weber v. Universities Research Ass’n, 621 F.3d

589, 592 (7th Cir. 2010). In the district court and in her

appellate briefs, Coleman relied on both methods. In

oral argument, however, Coleman’s counsel conceded

that she lacked sufficient evidence to show a prima

facie case of retaliation under the indirect method. We

therefore consider Coleman’s retaliation claims under

only the direct method of proof.

To establish retaliation under the direct method,

Coleman must show that: (1) she engaged in activity

protected by Title VII; (2) the Postal Service took an

adverse employment action against her; and (3) there

was a causal connection between her protected activity

and the adverse employment action. See Leitgen v. Francis-

can Skemp Healthcare, Inc., 630 F.3d 668, 673 (7th Cir.

2011). The first two elements are not disputed. Her

formal EEOC charges were “the most obvious form of

statutorily protected activity.” Silverman v. Board of Educ.

No. 10-3694 45

of City of Chicago, 637 F.3d 729, 740 (7th Cir. 2011); see

42 U.S.C. § 2000e-3(a). She also offered evidence that

she had complained of race and sex discrimination to

her supervisors as early as May 2005, and her requests

for pre-complaint counseling before filing EEO charges

also qualify as protected activity. Coleman’s placement

on unpaid off-duty status and termination were both

adverse employment actions. The parties dispute

only whether Coleman has evidence supporting an in-

ference that her protected activity caused the Postal Ser-

vice’s adverse actions. Coleman can show causation

by showing that her complaints and EEO filings were

a “substantial or motivating factor” in the Postal

Service’s decisions to place her in off-duty status and/or

to fire her. Gates, 513 F.3d at 686, quoting Culver v. Gorman

& Co., 416 F.3d 540, 545 (7th Cir. 2005). This may be

done via direct evidence, which would “entail something

akin to an admission by the employer (’I’m firing you

because you had the nerve to accuse me of sex

discrimination!’).” O’Leary, 657 F.3d at 630. It may

also be done by presenting a “ ’convincing mosaic’ of cir-

cumstantial evidence” that would permit the same infer-

ence without the employer’s admission. Rhodes v. Illinois

Dep’t of Transportation, 359 F.3d 498, 504 (7th Cir.

2004), quoting Troupe v. May Dep’t Stores Co., 20 F.3d

734, 737 (7th Cir. 1994). Coleman has presented no

direct evidence of retaliation, so she relies on a mosaic

of circumstantial evidence.

In both retaliation and discrimination cases, we have

recognized three categories of circumstantial evidence

available to a plaintiff using the “convincing mosaic”

46 No. 10-3694

approach. See, e.g., Volovsek v. Wisconsin Dep’t of Agri-

culture, Trade & Consumer Protection, 344 F.3d 680, 689

(7th Cir. 2003). One includes “suspicious timing, ambigu-

ous statements oral or written, . . . and other bits and

pieces from which an inference of [retaliatory] intent

might be drawn.” Silverman, 637 F.3d at 734, quoting

Troupe, 20 F.3d at 736. Another is “evidence, but not

necessarily rigorous statistical evidence, that similarly

situated employees were treated differently.” Volovsek,

344 F.3d at 689. Another type is “evidence that the em-

ployer offered a pretextual reason for an adverse em-

ployment action.” Dickerson v. Board of Trustees of Com-

munity College Dist. No. 522, 657 F.3d 595, 601 (7th Cir.

2011); Diaz v. Kraft Foods Global, Inc., 653 F. 3d 582, 586-

87 (7th Cir. 2011).8 “Each type of evidence is sufficient

by itself (depending of course on its strength in relation

to whatever other evidence is in the case) to support

a judgment for the plaintiff; or they can be used to-

gether.” Troupe, 20 F.3d at 736.

8

The latter two categories are similar to required

elements under the indirect method, so that “our analyses

overlap.” Egonmwan v. Cook County Sheriff’s Dep’t, 602 F.3d

845, 851 (7th Cir. 2010). The mosaic approach provides

parties and courts with a little more flexibility and room for

common sense than the indirect method sometimes allows.

See Hasan v. Foley & Lardner LLP, 552 F.3d 520, 529 (7th Cir.

2008) (“under the indirect method of proof, a plaintiff must

produce evidence of how the employer treats similarly situated

employees,” while “the direct method of proof imposes no

such constraints”).

No. 10-3694 47

Coleman has offered evidence of suspicious timing

and pretext, and that evidence is sufficient to present

a genuine issue of fact as to the Postal Service’s motives

in suspending and then firing her.

Timing: We have often invoked the general rule that

“temporal proximity between an employee’s protected

activity and an adverse employment action is rarely

sufficient to show that the former caused the latter.”

O’Leary, 657 F.3d at 635, citing Leitgen, 630 F.3d at 675.

When temporal proximity is one among several tiles in

an evidentiary mosaic depicting retaliatory motive, how-

ever, “[s]uspicious timing . . . can sometimes raise an

inference of a causal connection.” Magyar v. St. Joseph

Regional Medical Center, 544 F.3d 766, 772 (7th Cir. 2008);

see Scaife v. Cook County, 446 F.3d 735, 742 (7th Cir. 2006)

(“Close temporal proximity provides evidence of causa-

tion and may permit a plaintiff to survive summary judg-

ment provided that there is other evidence that supports

the inference of a causal link.”), quoting Lang v. Illinois

Dep’t of Children & Family Services, 361 F.3d 416, 419 (7th

Cir. 2004). Our cases reject any bright-line numeric rule,

but when there is corroborating evidence of retaliatory

motive, as there is here, an interval of a few weeks or

even months may provide probative evidence of the

required causal nexus. See Magyar, 544 F. 3d at 772 (“This

court has found a month short enough to reinforce

an inference of retaliation.”), citing Lang, 361 F.3d at

419. “Deciding when the inference is appropriate cannot

be resolved by a legal rule; the answer depends on

context . . . . A jury, not a judge, should decide whether the

inference is appropriate.” Loudermilk, 636 F.3d at 315.

48 No. 10-3694

Coleman’s protected activity began with informal

complaints of race and sex discrimination that reached

Sove, one of the relevant decision-makers, in May 2005.

In June, Coleman received a new and unpleasant work

assignment, which she refused, resulting in discipline.

Then, after her request for advance sick leave was

denied, she filed an EEO request for counseling, she

was asked to work in a storeroom, she checked herself

into the hospital, and she was suspended—all within

a span of about six weeks. The suspension came on

August 3, 2005. That was the day she was released from

the hospital and the day her psychiatrist told Berry

of Coleman’s homicidal thoughts. But the suspension

also occurred a few weeks after the friction between

Coleman and Berry, which followed her complaints

of discrimination, had built up to the point that she

checked herself into the hospital. Later in August 2005,

she filed her first formal EEOC charge. She filed her

second formal EEOC charge in December 2005. Five

weeks after that, she was fired.

Even if the sequence of events alone would not be

enough by itself, this sequence of protected activity

and punitive action could lend some support to a rea-

sonable juror’s inference of retaliation. See, e.g.,

Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104

F.3d 1004, 1014 (7th Cir. 1997) (“Interpreting the facts

in [the plaintiff’s] favor, she can show a pattern of

criticism and animosity by her supervisors following

her protected activities . . . [that] supports the existence

of a causal link.”).

No. 10-3694 49

Pretext: Coleman’s timing evidence does not stand

alone. She has also presented evidence that the em-

ployer’s stated reason for acting was pretextual, which

also tends to support an inference of retaliation. The

Postal Service’s explanation for both the suspension on

August 3, 2005 and the termination on January 13, 2006

is Coleman’s supposed violation of the rule against

threats and violence. If that explanation were beyond

reasonable dispute, we would agree with the district

court and affirm summary judgment on the retaliation

claims. As we explained above in detail, however,

Coleman has offered substantial evidence that the sup-

posed rule violation was only a pretext for unlawful

motives. A jury could reasonably conclude (though of

course it would not be required to conclude) that the

Postal Service acted for reasons other than its stated

reason. Without repeating that discussion in detail, we

conclude that when combined with the fairly close se-

quence of Coleman’s protected activity and the actions

taken against her, that evidence of pretext could support

a reasonable inference of retaliatory intent, thus pre-

cluding summary judgment.9

9

In making her argument for retaliation based on circum-

stantial evidence, Coleman also offers Arient and Pelletier,

the white men involved in the knife incident, as comparators

who were outside her protected class. Such comparator

evidence can be relevant in showing retaliation under the

“mosaic” approach. See Volovsek, 344 F.3d at 689. But this

record is simply silent as to whether either of these two

(continued...)

50 No. 10-3694

Under the convincing mosaic approach, a retaliation

case can “be made by assembling a number of pieces of

evidence none meaningful in itself, consistent with the

proposition of statistical theory that a number of observa-

tions each of which supports a proposition only weakly

can, when taken as a whole, provide strong support if

all point in the same direction.” Cole v. Illinois, 562 F.3d

812, 815 n.2 (7th Cir. 2009), quoting Sylvester v. SOS Chil-

dren’s Villages Illinois, 453 F.3d 900, 903 (7th Cir. 2009).

On their own, Coleman’s evidence of suspicious timing

and pretext might not be enough to show a causal con-

nection between her protected activities and her sus-

pension or termination. Together, however, they are

sufficient to withstand summary judgment and create

a question for the jury.

IV. Conclusion

In adjudicating claims under federal employment

discrimination statutes, a court does not sit as a “super-

personnel department,” second-guessing an employer’s

9

(...continued)

white men ever complained of unlawful discrimination. Even

without the use of those comparators, Coleman has enough

evidence to avoid summary judgment. We will not speculate

further on the matter, but note only that it should be

fairly easy for a plaintiff in such a case to serve an

interrogatory asking whether the relevant decision-makers

had any knowledge of protected activity on the part of the

proposed comparators.

No. 10-3694 51

“business decision as to whether someone should be

fired or disciplined because of a work-rule violation.”

Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006),

quoting Balance v. City of Springfield, 424 F.3d 614, 621

(7th Cir. 2005). But we must also resist the temptation

to act as jurors when considering summary judgment

motions. Plaintiff Coleman has offered enough evidence

of race and sex discrimination and retaliation to with-

stand summary judgment. The judgment of the district

court is therefore R EVERSED and the case is R EMANDED

for further proceedings consistent with this opinion.

W OOD , Circuit Judge, with whom T INDER and

H AMILTON, Circuit Judges, join, concurring. The lead

opinion carefully analyzes Denise Coleman’s claims that

the Post Office’s decision to fire her violated Title VII’s

prohibitions against discriminatory employment deci-

sions (here, on grounds of race and sex) and retaliatory

actions. See 42 U.S.C. §§ 2000e-2(a)(1) (discrimination),

2000e-3(a) (retaliation). For the discrimination claim, the

opinion meticulously applies the so-called indirect

method of proof, which originated with the Supreme

Court’s 1973 decision in McDonnell Douglas Corp. v. Green,

52 No. 10-3694

411 U.S. 792 (1973); for the retaliation claim the opinion

turns to the so-called direct method of proof, and more

particularly to the indirect (or “mosaic”) way of directly

proving retaliation. It concludes succinctly that Coleman

managed to put enough in the record to defeat the defen-

dant’s motion for summary judgment. A jury might find

in Coleman’s favor, given the inconsistencies in the

Post Office’s treatment of other workers who also

violated the violence rule, even though the odds may

be against Coleman here. Summary judgment, however,

is not about odds, once a threshold has been crossed.

I agree with my colleagues that Coleman has presented

enough on both theories to move forward with her case.

I write separately to call attention to the snarls and

knots that the current methodologies used in discrimina-

tion cases of all kinds have inflicted on courts and litigants

alike. The original McDonnell Douglas decision was de-

signed to clarify and to simplify the plaintiff’s task in

presenting such a case. Over the years, unfortunately, both

of those goals have gone by the wayside. We now have,

for both discrimination and retaliation cases, two

broad approaches—the “direct” and the “indirect.” But

the direct approach is not limited to cases in which the

employer announces “I have decided to fire you because

you are a woman [or a member of any other protected

class].” Instead, the direct method permits proof using

circumstantial evidence, as we acknowledged in Troupe v.

May Dep’t Stores Co., 20 F.3d 734 (7th Cir. 1994). Like a

group of Mesopotamian scholars, we work hard to see if

a “convincing mosaic” can be assembled that would

point to the equivalent of the blatantly discriminatory

No. 10-3694 53

statement. If we move on to the indirect method, we

engage in an allemande worthy of the 16th century,

carefully executing the first four steps of the dance for the

prima facie case, shifting over to the partner for the

“articulation” interlude, and then concluding with the

examination of evidence of pretext. But, as my colleagues

correctly point out, evidence relevant to one of the

initial four steps is often (and is here) equally helpful

for showing pretext.

Perhaps McDonnell Douglas was necessary nearly 40

years ago, when Title VII litigation was still relatively

new in the federal courts. By now, however, as this case

well illustrates, the various tests that we insist lawyers

use have lost their utility. Courts manage tort litigation

every day without the ins and outs of these methods

of proof, and I see no reason why employment discrim-

ination litigation (including cases alleging retaliation)

could not be handled in the same straightforward way.

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. Put

differently, it seems to me that the time has come to

collapse all these tests into one. We have already done

so, when it comes to the trial stage of a case. See, e.g.,

EEOC v. Bd. of Regents of Univ. of Wisc. Sys., 288 F.3d

296, 301 (7th Cir. 2002). It is time to finish the job and

restore needed flexibility to the pre-trial stage.

54 No. 10-3694

With those observations, I concur in my colleagues’

opinion.

1-6-12