Brown v. Advocate South Suburban Hospital

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1135

JOSALYNN M. B ROWN AND C AROLYN W ILSON,

Plaintiffs-Appellants,

v.

A DVOCATE S OUTH S UBURBAN H OSPITAL AND

A DVOCATE H EALTH & H OSPITALS C ORPORATION,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 cv 5386—Robert W. Gettleman, Judge.

A RGUED S EPTEMBER 21, 2012—D ECIDED N OVEMBER 21, 2012

Before P OSNER, K ANNE, and SYKES, Circuit Judges.

K ANNE, Circuit Judge. Over a span of several years,

two hospital nurses, Josalynn M. Brown and Carolyn

Wilson, raised a series of complaints about their

working conditions, including complaints of racial dis-

crimination. They later sued their employers, defendants

Advocate South Suburban Hospital and Advocate Health

2 No. 12-1135

and Hospitals Corporation (collectively referred to as

“Advocate”). Brown and Wilson argued that Advocate

had discriminated against them and subsequently re-

taliated against them for complaining about the discrim-

ination. The district court concluded that there was

not enough evidence to support the nurses’ claims and

granted summary judgment for Advocate. Having inde-

pendently reviewed the record, we agree with the

district court and affirm.

I. B ACKGROUND

Josalynn M. Brown and Carolyn Wilson began

working as nurses at Advocate Christ Medical Center

(which we will refer to as “Advocate Christ” and which is

not a party to this action) in 2005. Both plaintiffs are

African-American. On May 10, 2008, the plaintiffs and

ten other nurses delivered a Petition for Change in Labor

Practices to their human resources department. The

petition alleged that Advocate Christ treated its Filipino

nurses better than its African-American nurses by

giving them easier assignments, more training, and more

leadership opportunities. Several human resources em-

ployees at Advocate Christ investigated the claims in

the petition and ultimately concluded that the claims

could not be corroborated.

Both plaintiffs resigned their positions at Advocate

Christ in mid-September 2008. In October 2008,

they began working at Advocate South Suburban

Hospital and quickly became concerned with the way

things were being run. Brown complained that other

No. 12-1135 3

nurses were sleeping while on duty, that her unit’s cul-

ture was unprofessional, and that her work assignments

were unequal and unfair. Wilson similarly complained

about patient care and safety issues. When their super-

visors failed to make the changes that the plaintiffs rec-

ommended, the plaintiffs began to suspect that they

were being ignored because of their race and started

lodging complaints about that as well. In March 2009,

both plaintiffs started applying for positions at other

Advocate facilities. Brown and Wilson both received

an interview for one position, but neither was ultimately

hired. Wilson claims that she eventually applied to over

one hundred different positions within Advocate’s net-

work and never received any of them, although she

also admits that she was unqualified for many of these

positions, that forty-three of them were cancelled without

being filled, and that, since January 2010, a medical

condition has prevented her from providing direct

patient care.

Both plaintiffs filed charges of discrimination with

the Equal Employment Opportunity Commission in

May 2009. They subsequently filed this lawsuit on

August 31, 2009, against Advocate South Suburban Hos-

pital and its parent corporation, Advocate Health and

Hospitals Corp. On December 20, 2011, the district

court entered summary judgment in favor of Advocate,

and the plaintiffs filed a timely notice of appeal on

January 18, 2012.

4 No. 12-1135

II. A NALYSIS

Summary judgment is proper where “there is no

genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). We review the district court’s entry of summary

judgment de novo, viewing all of the evidence in the

light most favorable to the nonmoving party. Arizanovska

v. Wal-Mart Stores, Inc., 682 F.3d 698, 702 (7th Cir.

2012). “However, our favor toward the nonmoving

party does not extend to drawing inferences that are

supported by only speculation or conjecture.” Harper v.

C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012)

(internal quotation marks and brackets omitted). Rather,

a genuine issue of material fact exists only if there is

enough evidence that a reasonable jury could return a

verdict in favor of the nonmoving party. Id.

The plaintiffs raise two claims under Title VII—a dis-

crimination claim and a retaliation claim.1 The district

court granted summary judgment to the defendants

on both claims. The plaintiffs’ briefs in this court also

raise a hostile work environment claim under Title VII

and a claim under the Family and Medical Leave Act.

But the plaintiffs did not raise these claims anywhere

1

Technically, the plaintiffs brought their discrimination and

retaliation claims under 42 U.S.C. § 1981 as well as Title VII,

but the elements and methods of proof for § 1981 claims are

“essentially identical” to those under Title VII, Montgomery

v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010), so

we need not analyze them separately.

No. 12-1135 5

in their complaint; accordingly, these two additional

claims are forfeited, and we will confine our discussion

to the two Title VII claims that the plaintiffs properly

preserved for appeal. See Econ. Folding Box Corp. v.

Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir.

2008) (“it is axiomatic that an issue not first presented to

the district court may not be raised before the appellate

court as a ground for reversal”) (internal brackets omitted).

A. Discrimination

Title VII makes it illegal “for an employer to fail or

refuse to hire or to discharge any individual, or other-

wise to discriminate against any individual with

respect to his compensation, terms, conditions, or privi-

leges of employment” on the basis of race. 42 U.S.C.

§ 2000e-2(a). To prove that discrimination occurred, a

plaintiff may proceed under either the direct method or

the indirect method of proof. Dandy v. United Parcel

Serv., Inc., 388 F.3d 263, 272 (7th Cir. 2004). Under the direct

method, the plaintiff must produce either direct or cir-

cumstantial evidence of discriminatory intent. Id.

And under the indirect method, the plaintiff must

satisfy the familiar burden-shifting analysis of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dandy,

388 F.3d at 273. The plaintiffs proceed under both

methods here.

The district court found that the plaintiffs had not

established a triable issue of fact under either method,

and we think that the district court was correct. The

6 No. 12-1135

indirect method is easily addressed. To establish dis-

crimination under the indirect method, the plaintiffs

must, among other things, provide evidence that their

employer treated them differently than “similarly situ-

ated” employees outside of their protected class. Maclin

v. SBC Ameritech, 520 F.3d 781, 787 (7th Cir. 2008). To

meet this burden, they must show that there is someone

who is directly comparable to them in all material

respects except for membership in the protected class.

Winsley v. Cook Cnty., 563 F.3d 598, 605 (7th Cir. 2009).

But the plaintiffs have not identified any such person.

Instead, they offer only a bare assertion that “nurses

with far less experience who were not African-Ameri-

can” received transfers and more desirable shifts. (Ap-

pellants’ Br. at 18.) But, of the documents that the

plaintiffs cite for this proposition, the only one that

actually supports it is their complaint. Mere allegations

in a complaint, however, are not “evidence” and do not

establish a triable issue of fact. Tibbs v. City of Chicago,

469 F.3d 661, 663 n.2 (7th Cir. 2006). Accordingly, we

agree with the district court that the plaintiffs cannot

survive summary judgment under the indirect method.

Nor do the plaintiffs fare any better using the direct

method. Under this method, they must provide “either

direct evidence or circumstantial evidence that shows

that the employer acted based on prohibited animus.”

Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1122 (7th

Cir. 2009). Because Advocate has not openly admitted

to discriminating against them, the plaintiffs must con-

struct “a convincing mosaic of circumstantial evidence

that allows a jury to infer intentional discrimination by

No. 12-1135 7

the decisionmaker.” Phelan v. Cook Cnty., 463 F.3d 773,

779 (7th Cir. 2006). The pieces of this mosaic generally

take one of three forms. First, the plaintiffs may show

evidence of suspicious timing, ambiguous behavior,

statements or comments directed at employees in the

protected group, and “other bits and pieces from which

an inference of discriminatory intent might be drawn.”

Id. at 781. Second, they may provide evidence that a

“similarly situated employee received more favorable

treatment.” Id. And third, they may provide evidence

that the plaintiff “was qualified for the job in question

but passed over in favor of (or replaced by) a person not

having the forbidden characteristic, and that the em-

ployer’s stated reason for the difference in treatment is

unworthy of belief.” Id.

The plaintiffs offer two tiles to fill out their mosaic

here. First, they contend that other, less-qualified, non-

African-American nurses were given transfers and better

shifts. But, as discussed, the plaintiffs provided no

actual evidence to support this contention. Second, the

plaintiffs argue that the defendants did not adequately

respond to their complaints about discrimination,

safety violations, and workplace conditions. But we do

not think that a reasonable jury could infer bias from

these circumstances.

Title VII protects against discrimination, not “personal

animosity or juvenile behavior.” Shafer v. Kal Kan Foods,

Inc., 417 F.3d 663, 666 (7th Cir. 2005). The record demon-

strates that, between 2008 and 2010, the plaintiffs made

numerous complaints to management, some involving

racial issues and others involving general workplace

8 No. 12-1135

disputes. The defendants investigated many of the com-

plaints, took action on some of them, and declined to

take action on others. The plaintiffs also claim that

the defendants harassed them in response to these com-

plaints, but this “harassment” appears mainly to have

been criticism about the plaintiffs’ perceived lack of

teamwork. Specifically, a supervisor wrote a draft of a

“negative summary of associate review” and a “perfor-

mance deficiency notice” for Brown (but never actu-

ally finalized either document, nor placed them in

Brown’s personnel file, nor even told Brown about

them), and Wilson was called a “trouble maker,” a “cry

baby,” and a “spoiled child” during a meeting by a super-

visor, causing Wilson to leave the meeting in tears.

The plaintiffs contend that we can infer bias from

these facts because the defendants did not respond to

the plaintiffs’ complaints as the plaintiffs would have

liked. But the fact that someone disagrees with you (or

declines to take your advice) does not, without more,

suggest that they discriminated against you. Nor do any

of the criticisms that the plaintiffs experienced suggest

a discriminatory motive. All of the criticisms used non-

racial language, and nothing else about their context

suggests that they were racially motivated. Cf. Yancick

v. Hanna Steel Corp., 653 F.3d 532, 546 (7th Cir. 2011)

(“Johnson made some remarks with racial undertones,

but he did not hurl racially charged epithets at his

co-workers. He had a hostile attitude and was at times

aggressive, but other than speculation, Yancick cannot

connect Johnson’s behavior with racial animus.”). Perhaps

their supervisors’ criticisms were unfair—clearly the

No. 12-1135 9

plaintiffs feel that they were—but there is no evidence

that they were unfair because they were motivated by race,

as Title VII forbids. See Dickerson v. Bd. of Trs. of Cmty.

Coll. Dist. No. 522, 657 F.3d 595, 603 (7th Cir. 2011) (“al-

though [plaintiff] disagreed with his negative evalua-

tions, that does not mean that the evaluations were the

result of unlawful discrimination”); see also id. (quoting

Brill v. Lante Corp., 119 F.3d 1266, 1273 (7th Cir. 1997))

(“’The question is not whether the employer’s per-

formance ratings were right but whether the employer’s

description of its reasons is honest.’ ”) (internal brackets

omitted). Accordingly, the plaintiffs did not present a

triable issue of fact under the direct method or the

indirect method, and the district court correctly granted

summary judgment on the discrimination claim.

B. Retaliation

That brings us to the plaintiffs’ retaliation claim. In

addition to forbidding workplace discrimination, Title

VII also prohibits retaliating against an employee

“because he has opposed any practice made an

unlawful employment practice by [this subchapter,] or

because he has made a charge, testified, assisted, or

participated in any manner in an investigation, pro-

ceeding, or hearing under [this subchapter.]” 42 U.S.C.

§ 2000e-3(a). As before, the plaintiffs attempt to prove

this claim under both the direct and indirect methods.

Like a discrimination claim, proving a retaliation

claim under the indirect method requires evidence that a

10 No. 12-1135

similarly situated employee who did not engage in the

statutorily protected activity received better treatment.

Harper, 687 F.3d at 309-10. As discussed, the plaintiffs

have not pointed to any such person. Thus, we can

again make short work of the plaintiffs’ arguments

under the indirect method.

So we move on to the direct method. To establish re-

taliation under the direct method, the plaintiffs must

satisfy three elements. First, they must show that they

engaged in protected activity under Title VII. Coleman

v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012). Second,

they must show that they suffered an adverse employ-

ment action. Id. And third, they must show that there is

a causal link between their protected activity and the

adverse action. Id. Or, to put it another way, the plaintiffs

must produce evidence that a “retaliatory animus” moti-

vated the defendants’ adverse actions against them.

Smith v. Bray, 681 F.3d 888, 901 (7th Cir. 2012). “Not

everything that makes an employee unhappy is an action-

able adverse action.” Stephens v. Erickson, 569 F.3d 779,

790 (7th Cir. 2009) (internal brackets omitted). Because

an adverse employment action under Title VII’s retalia-

tion provision must be “materially” adverse, “it is impor-

tant to separate significant from trivial harms”; an action

is only adverse if it might dissuade a reasonable

worker from making or supporting a charge of discrim-

ination. Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006).

The plaintiffs acknowledge that they were never

formally disciplined, terminated, or denied pay or bene-

No. 12-1135 11

fits. Beyond that, they are hazy about precisely

how they believe the defendants retaliated against

them. They argue in passing that they were unfairly

denied favorable shifts and work assignments, but, as

we have already discussed several times, the plaintiffs

presented no evidence to support this argument. The

plaintiffs’ counsel also stated during oral argument that

the defendants “tried” to terminate them, but again,

they provide no evidence to back up that claim.

That leaves three basic ways in which the plaintiffs

contend they were retaliated against. First, they argue

that the defendants treated them unfairly and ignored

their complaints. As the plaintiffs’ counsel explained

during oral argument, his clients were “not being

listened to” and getting “a cold shoulder from man-

agement.” Instead of taking the plaintiffs’ suggestions,

managers “wrongly accused” them of being “cry bab[ies]”

and “trouble maker[s]” and “left the wrongdoers undisci-

plined in any way.” Similarly, the plaintiffs’ brief cites

to evidence that a supervisor called Wilson a “trouble

maker,” a “cry baby,” and a “spoiled child.”

We do not think that this sort of behavior constitutes

a materially adverse employment action. “ ‘[P]ersonality

conflicts at work that generate antipathy’ and ‘snubbing

by supervisors and co-workers’ are not actionable” under

Title VII, Burlington Northern, 548 U.S. at 68 (quoting 1 B.

Lindemann & P. Grossman, Employment Discrimination

Law 669 (3d ed. 1996)), and we think that getting

a “cold shoulder” from your boss easily falls within

this non-actionable category. As far as being called a

12 No. 12-1135

trouble maker, a cry baby, and a spoiled child, it is

unclear whether these statements referred to the plain-

tiffs’ discrimination complaints or simply to some other

workplace issue. See Hamm v. Weyauwega Milk Prods.,

Inc., 332 F.3d 1058, 1066 (7th Cir. 2003) (Title VII pro-

hibits retaliation for complaints about discrimination,

not retaliation for complaints about other workplace

issues). But assuming, as we must at this stage, that

the comments referred to the plaintiffs’ discrimination

complaints, we are confident that the comments were

not materially adverse. In Dunn v. Washington Cnty.

Hospital, for example, a nurse complained that a doctor

sexually harassed her. 429 F.3d 689, 690 (7th Cir. 2005). In

response, the doctor asked the nurse to withdraw her

complaint in a “nasty and uncivil tone” and told her that

“paybacks are hell” but took no other action against her.

Id. at 692-93. Because the doctor’s statements did not

cause the nurse any actual injury, we held that they

would not have dissuaded a reasonable person from

complaining and therefore were not materially adverse

employment actions. Id. Similarly, the relatively mild

epithets at issue here were not materially adverse. See

id.; see also Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009)

(performance improvement plan instructing employee

to “ ‘become more aware of her tone’ and to ‘work on

becoming a better listener’ . . . would not dissuade a

reasonable person from exercising her rights”) (internal

brackets omitted); Stephens, 569 F.3d at 790 (being “stared

and yelled at . . . is not an actionable harm”); Recio v.

Creighton Univ., 521 F.3d 934, 940-41 (8th Cir. 2008) (getting

“the silent treatment” from colleagues not materially

No. 12-1135 13

adverse); Somoza v. Univ. of Denver, 513 F.3d 1206, 1214-15

(10th Cir. 2008) (incivility of co-workers at a meeting,

including eye-rolling, laughing at plaintiff’s opinions, and

commenting behind his back, were not materially ad-

verse); cf. Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1030

(7th Cir. 2004) (“It is well established that unfulfilled

threats that result in no material harm cannot be con-

sidered an adverse employment action under Title VII.”).

Or, to put it another way, we do not think that being

called a trouble maker, a cry baby, or a spoiled child

would dissuade a reasonable person from complaining

of discrimination.

The plaintiffs also claim that they were retaliated

against when their requests for transfers to other

hospitals were denied. That might be an adverse em-

ployment action, provided the transfer would have re-

sulted in higher pay or benefits. See Johnson v. Cambridge

Indus., Inc., 325 F.3d 892, 900 (7th Cir. 2003) (“the denial

of an opportunity to move to [a higher paying]

position, unlike the mere denial of a lateral transfer,

constitutes a materially adverse employment action”); cf.

Dandy, 388 F.3d at 275 (“because her request was for

a lateral transfer offering parallel pay, benefits, and

responsibilities, UPS’s refusal to grant that request does

not constitute an adverse employment action”). But the

plaintiffs must also provide evidence that a retaliatory

animus motivated the denials, see Smith, 681 F.3d at

901, and they have not done so.

The plaintiffs argue that the decision-makers must

have known about their discrimination complaints

14 No. 12-1135

because the complaints had been covered in local news

media and might have been a subject of workplace chat-

ter. But the plaintiffs must produce evidence that a re-

taliatory motive actually influenced the decision-maker,

not merely that it could have, see Nagle, 554 F.3d at 1122;

our favor toward the nonmoving party on summary

judgment “does not extend to drawing inferences that

are supported by only speculation or conjecture,” Harper,

687 F.3d at 306. As it stands, the plaintiffs’ argument

for retaliatory animus relies entirely on speculation.

No affirmative evidence suggests that the decision-

makers were even aware of the plaintiffs’ discrimination

complaints before they denied the transfers, much less

that they did so intending to retaliate against the plain-

tiffs. Nor have the plaintiffs presented any affirma-

tive evidence that anybody improperly influenced the

decision-makers under the so-called “cat’s paw” theory

of liability. See Cook v. IPC Int’l Corp., 673 F.3d 625,

628 (7th Cir. 2012) (“the ‘cat’s paw’ metaphor refers to a

situation in which an employee is fired or subjected to

some other adverse employment action by a supervisor

who himself has no discriminatory motive, but who

has been manipulated by a subordinate who does have

such a motive and intended to bring about the adverse

employment action”); accord Staub v. Proctor Hosp., 131

S. Ct. 1186, 1192-94 (2011). Accordingly, even if the

transfer denials were adverse employment actions, the

plaintiffs have not provided enough evidence to show

that they were motivated by a retaliatory animus.

Finally, Brown claims that a supervisor drafted a

“negative summary of associate review” and a “perfor-

No. 12-1135 15

mance deficiency notice” that unfairly criticized her

conduct and, in turn, constituted retaliatory adverse

employment actions.2 At the outset, it is not clear

whether a negative performance review, standing

alone, can ever constitute a materially adverse employ-

ment action in the retaliation context. Compare Silverman

v. Bd. of Educ. of Chicago, 637 F.3d 729, 741 (7th Cir. 2011)

(“a negative performance evaluation could constitute

an adverse action within the meaning of the direct

method of proving retaliation”), with Davis v. Time Warner

Cable of Se. Wisc., L.P., 651 F.3d 664, 677 (7th Cir. 2011)

(“Performance improvement plans, particularly mini-

mally onerous ones like that here, are not, without

more, adverse employment actions.”), and Volovsek v. Wis.

Dep’t of Agric. Trade and Consumer Prot., 344 F.3d 680, 688

(7th Cir. 2003) (“disputed performance reviews . . . do not,

2

The plaintiffs have not actually provided these documents; the

only evidence they cite to prove their existence is a series of

selective excerpts to the deposition testimony of the supervisor

who allegedly wrote them. But “[t]he meaning of quoted

phrases often depends critically on the unquoted context.”

Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 669 (7th Cir. 2003).

As a result, it will often violate “the ‘best evidence’ rule of Fed.

R. Evid. 1002 and the ‘completeness’ rule of Fed. R. Evid. 106 to

present trial excerpts from a key document without intro-

ducing the document itself.” Id. (internal parentheses omitted).

Accordingly, it is unclear whether the deposition testimony

would even be enough to prove the existence of the docu-

ments at trial. But, because we can resolve the issue on

other grounds, we need not decide this question now.

16 No. 12-1135

themselves, amount to the kind of adverse employment

action that constitutes discrimination or retaliation”).

But we can set that issue aside for the purposes of this

case. As Brown acknowledges, the drafts of the negative

reviews “were never given to Brown or posted in her

personnel file,” (Appellants’ Br. at 19), and resulted in

no actual consequences for her. Even if these documents

could be considered adverse, we do not think they can

fairly be described as “materially” adverse. As a

result, the district court correctly granted summary

judgment on all of the plaintiffs’ claims.

III. C ONCLUSION

We A FFIRM the district court’s entry of summary judg-

ment in favor of the defendants.

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