Jacinta Downing v. Abbott Laboratories

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-2746

JACINTA DOWNING,

Plaintiff-Appellant,

v.

ABBOTT LABORATORIES and ABBOTT MOLECULAR, INC.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:15-cv-05921 — John J. Tharp, Jr., Judge.

____________________

ARGUED JUNE 3, 2022 — DECIDED SEPTEMBER 12, 2022

____________________

Before SYKES, Chief Judge, and FLAUM and BRENNAN, Cir-

cuit Judges.

BRENNAN, Circuit Judge. Jacinta Downing worked for

many years as a sales manager and then a sales executive at

Abbott Molecular, Inc. Over time, that company faced finan-

cial difficulties. The company said that because of reductions

in its sales force and Downing’s work performance, it ended

her employment. Downing claims the company racially dis-

criminated and retaliated against her, so she sued.

2 No. 21-2746

Many of her claims survived summary judgment, but after

trial a jury found for Abbott Molecular. On appeal Downing

challenges several of the district court’s decisions, including

evidentiary rulings, the exclusion of her expert witness, the

jury instructions, and the testimony of her former manager,

on which she moved for a mistrial. Downing argues that these

errors, individually and cumulatively, denied her a fair trial.

She also appeals the grant of summary judgment to the com-

pany on her disparate-impact claim, for which she contends

she had sufficient evidence. We conclude that as to each deci-

sion, the district court ruled correctly or did not abuse its dis-

cretion, so we affirm.

I. Background

Our description of the relevant facts comes from the jury

trial transcript and other district court records.

A. Factual

Jacinta (or Jay) Downing, an African-American woman,

had many years of sales experience when she was hired in

2002 by Abbott Molecular, Inc., a subsidiary of Abbott Labor-

atories. Downing’s first job was Area Sales Manager. Her su-

pervisor was Chris Jowett, a white man, who in 2009 arranged

for her to be promoted to be one of four Regional Sales Man-

agers. Each supervised a team of sales representatives who

sold millions of dollars of healthcare products to hospitals,

commercial laboratories, and clinics, and who negotiated ser-

vice contracts.

According to Downing, she “really liked working for” Jo-

wett, who was “very inspirational” and mentored her. She

considered him a man of great integrity and honesty. In

March 2011 Jowett reviewed Downing and gave her an

No. 21-2746 3

overall performance rating of “achieved expectations.” Ac-

cording to that review, one of her main challenges was fore-

casting future business. Downing also fell somewhat short in

developing relationships with decisionmakers at key ac-

counts, and she was not comfortable with some of Abbott Mo-

lecular’s product categories.

In 2012, Jowett gave Downing a performance rating of “ex-

ceeded expectations,” the highest rating available. He wrote,

“Jay is a strong leader for the Abbott Molecular sales organi-

zation and can be counted on to deliver results in spite of chal-

lenges. I look forward to Jay’s continued success at Abbott

Molecular.” Jowett was pleased with Downing’s improve-

ment over the previous year, and by giving her the “exceeded

expectations” rating Jowett said he was encouraging Down-

ing. Shortly after completing that performance review, Jowett

accepted a new role at Abbott.

Abbott Molecular came under financial pressure in early

2012. Medicare cut its reimbursement rates for a key Abbott

product, which significantly impacted the company’s mar-

gins. Multiple competitors also entered the market with up-

dated versions of products Abbott sold. In response, Abbott

changed personnel in the Abbott Molecular division and re-

duced its work force. Mark Bridgman, a white man, was

transferred from another Abbott division to fill Jowett’s for-

mer role in Abbott Molecular.

Abbott also created the position of National Sales Director

for the U.S. to “coach and guide the sales managers and reps

on a day-to-day basis a bit more beyond what [Bridgman] was

able to do.” In October 2012, Peter Farmakis, a white man, was

hired to fill the role. Farmakis oversaw one man, Mike Kohler

4 No. 21-2746

(who is white), and three women: Jean Gray (who is white),

Charlotte Jones (who is African-American), and Downing.

Almost immediately, Farmakis had issues with Downing,

as well as with some of the other managers who reported to

him. Downing had a conflict with a customer, in which she

withheld a software key that could have possibly disrupted

patient care, in October 2012. Farmakis was displeased, and

he instructed Downing not to disrupt patient care going for-

ward. Two months later, Farmakis was upset after he learned

Downing had unilaterally informed another customer that

Abbott would forgive a termination fee of $177,000. By Janu-

ary 2013, Farmakis had a list of concerns about Downing’s

performance, including oversights in end-of-year sales fore-

casting, which impacted other parts of Abbott’s business.

Farmakis discussed his concerns about Downing’s perfor-

mance with Sarah Longoria, Abbott Molecular’s human re-

sources director in February 2013. The next month, Farmakis

gave Downing her performance review. Although Downing’s

overall rating was “achieved expectations,” Farmakis in-

cluded some detailed criticisms of her performance and iden-

tified areas for improvement.

In July 2013, Farmakis had a conference call with his four

direct reports: Kohler, Gray, Jones, and Downing. According

to Downing, Farmakis was “shouting and screaming” at the

three women, whom he accused of “throwing in the towel.”

Downing reported the incident to Abbott’s Employee Rela-

tions Department. She relayed her belief that Farmakis was

discriminating against her because of her race and gender.

About the same time, Gray also complained to Employee Re-

lations about Farmakis’s behavior. Gray, Jones, and Downing

No. 21-2746 5

discussed their opposition to Farmakis’s management in

emails with each other.

Abbott investigated these complaints against Farmakis.

An Employee Relations specialist sent a climate survey to the

four managers who reported to him. In August 2013, Gray,

Jones, and Downing gave very negative responses, which fo-

cused primarily on Farmakis’s management style. Gray wrote

that “[Farmakis is] especially hard on Jay. He embarrasses her

and calls her out in calls or emails, part of the unfairness. Her

numbers are good so don’t understand why he calls her out,

makes her feel stupid, don’t know why he’s doing that to

her.”

The Employee Relations specialist removed the identify-

ing information from the survey responses, deleted some of

the comments, and sent them to Longoria. The anonymized

feedback was shared with Farmakis, who Bridgman then

coached to improve his management style.

Throughout 2013, Abbott Molecular’s business continued

to falter, resulting in layoffs. In January 2014, Abbott

realigned its sales teams. Sales representatives who had pre-

viously reported to Downing were assigned to new teams.

During the same month, Abbott also placed Downing on a

performance improvement plan, the last step before termina-

tion. Downing then retained legal counsel and gave notice

that she intended to file discrimination claims against the

company. Abbott later cut Downing’s stock award in March

2014, which left her unhappy.

That fall Downing filed a discrimination charge with the

EEOC, which she later amended. Throughout 2014 Abbott’s

business had not improved, so the company instituted

6 No. 21-2746

another reduction in force in January 2015. All four Regional

Sales Managers, including Downing, lost their jobs when that

position was eliminated. Farmakis, the National Sales Direc-

tor, was also terminated.

At the same time Abbott terminated Downing’s employ-

ment as part of the reduction in force, the company invited

her to apply for the position of Regional Commercial Director.

Downing understood this position to be essentially identical

to her previous job. Keith Chaitoff, who replaced Bridgman in

Abbott Molecular’s leadership, testified his expectations for

directors were “[d]ramatically” different. To him, the director

role “needed people that understood business more holisti-

cally and understood the financial drivers because we had to

focus more on profit.”

Abbott selected ten candidates, including Downing, to in-

terview for the director position. A process was used to rate

the candidates and to extend offers. Under that process, two

African-American candidates (Downing and Jones), received

the lowest ratings of the candidates for the position. Abbott

did not select Downing, Jones, Kohler, or Farmakis, and

ultimately extended offers for the position to four white can-

didates. One of those candidates declined, and an African-

American man, Eron Butler, was hired.

B. Procedural

In June 2015 Downing filed suit claiming discrimination

under Title VII and 42 U.S.C. § 1981. She later amended her

complaint to allege: (1) racial discrimination under § 1981; (2)

retaliation under § 1981; (3) racial discrimination under Title

VII; (4) sexual discrimination under Title VII; and (5) retalia-

tion under Title VII. The parties proceeded through

No. 21-2746 7

discovery, at the close of which Abbott moved for summary

judgment.

Abbott’s summary judgment motion was “largely denied”

because, the district court concluded, “the record in this case

is replete with material factual disputes.” For example, the

facts did not establish whether Downing had a history of sig-

nificant performance problems. To the court, Downing had

“adduced enough evidence to support a jury verdict in her

favor on her claim that Farmakis retaliated against her for

complaining about discrimination by giving her negative per-

formance evaluations and placing her on performance man-

agement plans.” Likewise, the court considered “evidence of

more subtle differential treatment” and an allegedly racially

charged remark made by Farmakis. There was also statistical

evidence that “Farmakis’s tenure coincided with a dramatic

decrease in black representation at Abbott Molecular.” The

court reasoned, therefore, that a jury could find racial consid-

erations motivated the coaching plan and performance im-

provement plan. Further, a reasonable jury could find

“Farmakis’s animus was the proximate cause of Downing’s

termination.” So, the district court decided that the discrimi-

nation and retaliation claims predicated on Abbott’s failure to

hire Downing as a director should proceed to trial.

The district court did grant Abbott’s motion for summary

judgment in two respects. First, the court ruled that “Down-

ing’s performance management claim can be based only on

race discrimination, not gender discrimination, as only race

based discrimination was mentioned in the initial EEOC

charge.” Second, Downing could not proceed on her claim of

disparate impact in the hiring process for the director

8 No. 21-2746

position, as “a sample size of 10 individuals is simply too

small to be statistically meaningful.” 1

At the same time, the district court granted Abbott’s mo-

tion to exclude the proposed expert testimony of Dr. Destiny

Peery, a legal academic with a background in social psychol-

ogy. Dr. Peery intended “to opine that there is evidence in the

record that is consistent with how stereotyping and biases

(either implicit or explicit) manifest and affect people in em-

ployment settings.” But the court concluded that Dr. Peery’s

testimony would not help the jury because she disavowed

any conclusion about what role, if any, stereotypes and biases

played in Abbott’s treatment of Downing. The court also de-

cided that Dr. Peery employed an unreliable methodology.

Before and during trial, the district court granted Abbott’s

motions to exclude certain evidence Downing proffered. The

court excluded:

• Proposed testimony from two of Downing’s

former subordinates, who would have testi-

fied they held high opinions of her manage-

ment ability and character (“pretext evi-

dence”);

• Evidence of internal complaints made about

two other Abbott employees (“comparator

evidence”);

• Portions of the climate survey responses that

Jones and Gray submitted; and

1 Downing does not appeal the district court’s grant of summary judg-

ment to Abbott on her hostile work environment or sex discrimination

claims.

No. 21-2746 9

• Statistical evidence of a decline in the num-

ber of African-American employees at Ab-

bott Molecular between 2012 and 2015.

A two-week jury trial took place in August 2021. From the

beginning the trial was hard fought. Downing’s counsel

raised numerous objections, including “a general concern to

the entire way that the opening statement is being presented.”

At the close of Abbott’s opening statement, its counsel told

the jury: “[T]here are real people with real families being ac-

cused of race discrimination in this case … I’m going to ask

you to deliver a verdict for Abbott and, in the process, vindi-

cate these people and restore their reputations.”

During trial Downing presented evidence that she had

been a high performer at Abbott, and that Farmakis had an-

tipathy towards her and others. Abbott, on the other hand,

offered evidence about Downing’s performance problems,

the business downturn that led to the reductions in force and

Downing’s termination, and the considerations that drove its

hiring decisions for the director position.

Toward the end of trial, Abbott called Jowett as a witness.

He discussed Downing’s performance in detail, including

some of her issues. Jowett also testified Downing was “not

really open to feedback.” He explained that while he had re-

cruited other former Abbott employees to join another com-

pany he worked at between 2018 and 2021, he did not recruit

Downing because he did not believe she could “take on the

complexity of the sales position.” According to Jowett, he was

“flabbergasted” upon learning that Downing had identified

him in an interrogatory response as someone who discrimi-

nated against African-Americans. Downing’s counsel then

moved for a mistrial, contending that Abbott’s counsel had

10 No. 21-2746

unduly influenced Jowett by telling him Downing had called

him a racist. The court denied the motion, explaining that

Downing’s interrogatory response could fairly be read to im-

ply Jowett was a racist.

The disputes at trial extended to the jury-instruction con-

ference. Downing’s counsel proposed a series of instructions

beyond those in the Seventh Circuit’s pattern instructions, but

the district court rejected most of them, including:

• A description of and quotations from the

civil-rights statutes under which Downing

sued;

• A list of the various types of circumstantial

evidence that a plaintiff in a workplace dis-

crimination case may use;

• A statement that making an adverse em-

ployment decision because of racial stereo-

types is a form of race discrimination; and

• An instruction on spoliation for Abbott’s

failure to preserve a survey that Farmakis

had referenced in his testimony.

The district court largely used the Seventh Circuit’s pattern

jury instructions.

During deliberations the jury posed written questions,

two of which are relevant on appeal. The first question was:

“Can we award punitives without finding ‘yes’ on any of the

claims?” The parties’ counsel agreed to respond “no,” and the

district court gave that response. The second question read:

“To be considered a ‘protected activity,’ does it need both op-

posing and reporting, or are one out of two sufficient.” To the

No. 21-2746 11

court, this second question asked whether one action or both

was required. After discussion with the parties’ lawyers, the

court responded by submitting to the jury the written defini-

tion of an unlawful employment practice at 42 U.S.C. § 2000e–

3.

Following deliberations the jury returned a verdict for the

defense. The jury found that Downing did not prove she was

subject to any adverse employment action because of her race.

It also found that Downing did not prove any of her retalia-

tion claims.

After the district court entered judgment, Downing ap-

pealed, raising a litany of issues. She challenges many of the

court’s evidentiary rulings; the exclusion of her expert wit-

ness; the instructions to the jury; and the testimony of Jowett,

as well as the court’s denial of the attendant mistrial motion.

Our appellate review of these decisions is deferential, so

Downing faces a demanding task. She also objects to the dis-

trict court’s grant of summary judgment to Abbott on her dis-

parate-impact claim, which we review de novo.

II. Evidentiary Rulings

Downing first contends that the district court excluded ev-

idence at trial about her discrimination and retaliation claims

on which the court had previously relied to deny Abbott sum-

mary judgment. That court ultimately granted 10 of Abbott’s

14 motions in limine, which to Downing resulted in a “funda-

mentally unfair trial.”

Because “decisions regarding the admission and exclusion

of evidence are peculiarly within the competence of the dis-

trict court,” Pittman ex rel. Hamilton v. County of Madison, 970

F.3d 823, 829 (7th Cir. 2020), they are reviewed for abuse of

12 No. 21-2746

discretion. Under that standard, “the district court’s decision

is to be overturned only if no reasonable person would agree

with the trial court’s ruling.” Aldridge v. Forest River, Inc., 635

F.3d 870, 875 (7th Cir. 2011); accord Antrim Pharms. LLC v. Bio-

Pharm, Inc., 950 F.3d 423, 430 (7th Cir. 2020) (same). In addi-

tion, for reversal to be warranted, the error must have “likely

affected the outcome of the trial.” Wilson v. Wexford Health

Sources, Inc., 932 F.3d 513, 522 (7th Cir. 2019) (citation omit-

ted).

Title VII of the Civil Rights Act prohibits an employer

from taking an adverse employment action against an indi-

vidual “because of such individual’s race, color, religion, sex,

or national origin.” 42 U.S.C. § 2000e-2(a). A plaintiff may use

circumstantial evidence to prove discrimination through a

chain of inferences. Diaz v. Kraft Foods Glob., Inc., 653 F.3d 582,

587 (7th Cir. 2011). Our court has recognized three categories

of circumstantial evidence in Title VII cases: “(1) ambiguous

statements or behavior towards other employees in the

protected group; (2) evidence, statistical or otherwise, that

similarly situated employees outside of the protected group

systematically receive better treatment; and (3) evidence that

the employer offered a pretextual reason for an adverse em-

ployment action.” Id.

Downing contends that the district court improperly ex-

cluded evidence about pretext, comparators, the climate sur-

vey responses, and demographic statistics.

A. Pretext Evidence

Testimony was excluded which Downing argues would

have shown that Abbott acted adversely to her based on pre-

text. She submits that two of her subordinates, Michael

No. 21-2746 13

Cerney and Anecia Thedford, would have testified—contrary

to Abbott’s assertions—that Downing was an exemplary

manager. According to Downing, Cerney and Thedford

found her to be inspirational and highly knowledgeable about

products and pricing. Abbott responds that Downing was al-

lowed to present those witnesses’ assessments of her manage-

ment, although they were properly limited to those opinions

conveyed to decisionmakers.

To prevail on a Title VII racial-discrimination claim, a

plaintiff must provide evidence that the decisionmaker acted

because of her race. Schandelmeier-Bartels v. Chicago Park Dist.,

634 F.3d 372, 378–79 (7th Cir. 2011). Pretext does not exist “if

the decisionmaker honestly believed the nondiscriminatory

reason” given by an employer for an adverse employment ac-

tion. Stockwell v. City of Harvey, 597 F.3d 895, 902 (7th Cir. 2010)

(citation omitted). So, in evaluating pretext, the focus is on

what the decisionmakers knew, and their perceptions are

“controlling.” Id. at 903.

Downing asserts this principle does not apply here. To

Downing, pretext exists in two ways: Abbott’s assertion that

Farmakis believed she was not knowledgeable about the com-

pany’s products or skilled in front of customers, and in

Farmakis’s statements that members of Downing’s team re-

layed that message to him. Even assuming her proposed ex-

ception exists to the rule limiting the inquiry to what was

shared with decisionmakers, this argument does not succeed.

Contrary to Downing’s portrayal, neither Farmakis nor Ab-

bott maintained or suggested that Cerney or Thedford leveled

these criticisms against Downing. Rather, per Farmakis and

Abbott, other employees under Downing’s supervision made

the statements in question, which were consistent with

14 No. 21-2746

Farmakis’s firsthand observations. Because several employ-

ees other than Cerney and Thedford reported to Downing,

those two individuals could not have rebutted the testimony

that certain subordinates shared the criticisms with Farmakis.

Cerney was permitted to offer substantial testimony about

Downing as a “motivational,” supportive, and kind manager.

More to the point, the district court ruled narrowly that

Downing’s counsel could elicit testimony from Downing’s

subordinates that Farmakis did not seek out their opinions

about her management style. But counsel could not ask what

the subordinates would have told Farmakis about Downing’s

character or expertise. The district court emphasized that the

relevant opinions were those held by Farmakis or another de-

cisionmaker.

The district court properly concentrated this inquiry by

limiting the testimony of Downing’s subordinates to what

they had communicated to Farmakis. Whether Cerney and

Thedford agreed with Farmarkis’s poor opinion of Down-

ing’s capabilities is not relevant to her Title VII claims, and

such testimony would have prejudiced Abbott. To evaluate

pretext, the evidence is what the decisionmakers knew and

believed. Stockwell, 597 F.3d at 903. Downing’s contention

about what these two subordinates thought of her therefore

does not engage with the district court’s reasoning or the rel-

evant case law. The court was within its discretion to exclude

Downing’s additional evidence purporting to show pretext.

B. Comparator Evidence

Downing argues next that the district court abused its dis-

cretion by not admitting evidence relating to two purported

comparators: her co-manager Mike Kohler, and Kirk Mason,

No. 21-2746 15

an employee in another department. To Downing, the “com-

plaints about, investigation of, and suit against Kohler were

paradigmatic comparator evidence.” She asserts Kohler had

the same job as she did, they were subject to the same stand-

ards, and he engaged in similar but more serious conduct

than she did. Abbott responds that Kohler’s situation in-

volved different decisionmakers, job responsibilities, allega-

tions, and time periods.

To prevail by showing a similarly situated employee was

treated differently, a plaintiff must show the purported com-

parator was “directly comparable to her in all material

respects” so as to “eliminate other possible explanatory vari-

ables.” Williams v. Off. of Chief Judge of Cook Cnty., 839 F.3d 617,

626 (7th Cir. 2016) (citation omitted); see also Barbera v. Pearson

Educ., Inc., 906 F.3d 621, 629 (7th Cir. 2018). The two employ-

ees who are purportedly similarly situated must deal with the

same supervisor, be subject to the same standards, and “have

engaged in similar conduct without such differentiating or

mitigating circumstances as would distinguish their em-

ployer’s treatment of them.” Barbera, 906 F.3d at 629 (citations

omitted).

The differences between Kohler’s conduct and Downing’s

conduct overwhelm the similarities. Kohler was accused of

creating a hostile work environment by intimidating his di-

rect reports. Those allegations were unlike the performance

problems Abbott cited when Downing’s employment was ter-

minated. Further, Kohler was a National Molecular Physician

Specialist, a different position than Downing. Kohler also re-

ported to a different supervisor—Bridgman, not Farmakis.

So, as a matter of law, Kohler was not a comparator relative

to Downing. See id. The district court thus did not abuse its

16 No. 21-2746

discretion in excluding the evidence about Kohler’s alleged

workplace misconduct.

Downing also claims the district court abused its discre-

tion by not admitting evidence about Mason, even though

Abbott opened the door to such evidence by implying a com-

plaint Downing made against him was baseless. Abbott

responds that Downing effectively forfeited this argument be-

cause she failed to address the two reasons the district court

gave to not permit Downing to testify about Mason: She

lacked personal knowledge of the investigation into the alle-

gations against him, and such testimony would confuse the

jury.

Mason, a manager in the Contracts and Pricing Depart-

ment, was referenced in Abbott’s opening statement because

he did not authorize Downing to forgive the $177,000 debt to

a customer. Though Downing is correct that Abbott implied

she had fabricated charges of racism against Mason, the alle-

gations against Mason that Downing was precluded from

introducing at trial were largely unrelated. The Employee Re-

lations Department found Mason had engaged in yelling,

speaking in a condescending manner, using inappropriate

language, and referring to colleagues as his “work wife.”

None of that was relevant to Downing’s job performance or

her charge of racial discrimination. Setting aside Downing’s

lack of personal knowledge about the outcome of the investi-

gation into Mason’s wrongdoing, the district court was within

its discretion to conclude that such evidence would have con-

fused the jury and fallen short under Federal Rule of Evidence

403.

No. 21-2746 17

C. Climate Survey Responses

Downing asserts that because the climate survey re-

sponses showed that Farmakis treated other members of her

protected class poorly, the district court should not have ex-

cluded them. According to Downing, “Jones’s and Gray’s

contemporaneous, written complaints about Farmakis’s dis-

criminatory behavior, memorialized in their climate survey

responses, were extremely relevant” and were “inextricably

part of Downing’s circumstances and theory of the case.” Ab-

bott points out that the district court admitted into evidence,

over Abbott’s objections, the PowerPoint summary of the cli-

mate survey that Employee Relations received and reviewed.

To Abbott, the district court was correct not to “allow Down-

ing to submit portions of other people’s responses that had

nothing to do with race discrimination or her interactions

with Farmakis.”

Jones and Gray offered responses in the climate survey

that they believed Farmakis was hostile to them because they

were women. But those survey responses did not discuss race,

so they had limited relevance to the jury’s consideration of

Downing’s racial discrimination claim. The district court had

previously granted Abbott summary judgment on Downing’s

sex discrimination claim, and she fails to acknowledge that

was not an issue at trial. And, as the district court reasoned,

there was a substantial risk of prejudice inherent in “having a

bunch of complaints made by other people … offered for their

truth.”

The district court did permit Downing to introduce one

statement from Gray’s climate survey response: “[Farmakis

is] especially hard on Jay [Downing]. He embarrasses her and

calls her out in calls or emails, part of the unfairness. Her

18 No. 21-2746

numbers are good so don’t understand why he calls her out,

makes her feel stupid, don’t know why he’s doing that to

her.” This response was important to Downing’s case, and her

counsel referenced it during her closing argument. Consider-

ing the district court allowed Downing to introduce this state-

ment, despite its prejudice to Abbott, Downing fails to show

the court abused its discretion by excluding other, less proba-

tive excerpts of the survey responses. Even more, Downing

overlooks that the district court admitted and the jury heard

the most important survey-response evidence. Longoria—the

decisionmaker in Employee Relations—testified she saw the

PowerPoint presentation that summarized the climate survey

responses.

We cannot say that “no reasonable person would agree

with the trial court’s ruling.” Aldridge, 635 F.3d at 875. The ex-

clusion of the individual survey responses thus was not an

abuse of discretion. And any error on this topic likely did not

affect the trial’s outcome, as would be necessary for a reversal

on this ground. Cf. Wilson, 932 F.3d at 522.

D. Statistical Evidence

Between 2012 and 2015, the number of African-American

employees at Abbott Molecular decreased from 32 (4.7% of

the company’s work force) to 16 (3%). After consideration, the

district court excluded these statistics because they did not ac-

count for employees who, rather than being forced out or ter-

minated, left for other reasons, retired, or transferred to other

positions in Abbott.

Downing argues these statistics are probative of racial dis-

crimination and that their exclusion was an abuse of discre-

tion. To Downing, Longoria was a decisionmaker responsible

No. 21-2746 19

for the disproportionate attrition of African-American

employees at Abbott Molecular. Downing also contends the

statistical evidence should have been permitted to rebut as-

sertions by Abbott’s witnesses that they sought to increase di-

versity at the company.

Abbott responds that these data were not probative. Not

only do they not identify which employees left for reasons

other than termination, but they do not reveal which depar-

tures, if any, were connected to the decisionmakers in this

case—Farmakis and Longoria. For Abbott, that means the sta-

tistics are insufficiently probative and unfairly prejudicial,

and the district court properly excluded them.

Statistical evidence may help an individual employee with

a Title VII claim show that racial discrimination was an em-

ployer’s standard operating procedure, but those statistical

comparisons must involve a proper group. Matthews v.

Waukesha Cnty., 759 F.3d 821, 829–30 (7th Cir. 2014). To sup-

port her position, Downing relies primarily on two cases:

Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012), and Vega v.

Chicago Park Dist., 954 F.3d 996 (7th Cir. 2020). But each dis-

cusses statistical evidence in a Title VII setting only briefly.

In Coleman, this court noted that a Title VII plaintiff may

use “evidence, but not necessarily rigorous statistical

evidence, that similarly situated employees were treated dif-

ferently.” 667 F.3d at 860 (citation omitted). Nothing in that

statement suggests statistical evidence must be admitted

when it does not show whether employees were, in fact,

treated differently. Similarly, in Vega we concluded that a

jury’s verdict for a plaintiff had evidentiary support because

the plaintiff showed that “no Caucasian park supervisors

were fired [during the relevant period], while 17.6% of the

20 No. 21-2746

Park District’s Hispanic park supervisors were fired during

that same period.” 954 F.3d at 1005. So, statistical comparisons

must involve a proper group.

At issue here is how many of the African-American em-

ployees who left Abbott Molecular between 2012 and 2015 did

so involuntarily. Downing failed to show how many of the

employees were fired or otherwise forced out of Abbott. And

the record established that at least some of them left to pursue

careers elsewhere. On appeal, Downing admits she cannot

identify how many African-American employees left the

company to pursue other positions, including positions

within Abbott. This concession persuades us that the district

court did not abuse its discretion in excluding the statistical

evidence.

E. Harmless Error

To Downing, these various alleged evidentiary errors had

the individual and collective effect of denying her a fair trial.

In support, Downing cites the jury’s first question: “Can we

award punitive [damages] without finding ‘yes’ on any of the

claims?” But the inference Downing advances—that the jury

wanted to find for her but could not because of the eviden-

tiary rulings—is conjecture. Speculation as to the evidence the

jury did or did not rely on in reaching its verdict is just that,

considering the jury never saw or heard the excluded evi-

dence. By rule, with exceptions not relevant here, inquiry into

a jury’s mental processes concerning a verdict is precluded.

See FED. R. EVID. 606(b).

Indeed, Downing prevailed in the discussion among the

district court and counsel on how to respond to this first ques-

tion. After the court read it to the parties’ counsel, Downing’s

No. 21-2746 21

attorney spoke first, and her proposed answer—“No”—was

adopted and relayed to the deliberating jury.

The excluded evidence that Downing contends should

have been admitted is also cumulative of other evidence the

jury heard. “[E]rrors in admitting evidence that is merely cu-

mulative of properly admitted evidence are harmless.” Jordan

v. Binns, 712 F.3d 1123, 1138 (7th Cir. 2013) (citations omitted);

see also Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1047–

48 (7th Cir. 2000) (same). The excluded pretext evidence was

cumulative of Cerney’s extensive testimony, and the excluded

portions of the climate survey responses were cumulative of

the more probative portions that were admitted at trial. The

proposed comparator evidence was weak, as neither Kohler

nor Mason was even plausibly a comparator, so no harmless-

error analysis is necessary on that point. And the statistical

evidence had limited probative value because it did not ac-

count for the circumstances of any individual employee’s de-

parture from Abbott Molecular. Even if we were to determine

that the statistical evidence should have been admitted, there

is no reason to believe any error likely affected the outcome

of the trial, so reversal is not warranted. See Wilson, 932 F.3d

at 522.

III. Expert Testimony

We consider next whether the district court erred by ex-

cluding the proposed opinion testimony of Dr. Destiny Peery

about stereotyping and racial bias.

Expert testimony is admissible when: (1) “the expert’s sci-

entific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact

in issue; (2) “the testimony is based on sufficient facts or

22 No. 21-2746

data”; (3) “the testimony is the product of reliable principles

and methods”; and (4) “the expert has reliably applied the

principles and methods to the facts of the case.” FED. R. EVID.

702. Under Rule 702 and Daubert v. Merrell Dow Pharmaceuti-

cals, Inc., 509 U.S. 579 (1993), the district court acts as the gate-

keeper for expert evidence, C.W. ex rel. Wood v. Textron, Inc.,

807 F.3d 827, 834 (7th Cir. 2015), evaluating the proffered ex-

pert’s qualifications, the reliability of the expert’s methodol-

ogy, and the relevance of the expert’s testimony. Kirk v. Clark

Equip. Co., 991 F.3d 865, 872 (7th Cir. 2021).

The party seeking to introduce expert witness testimony

has the burden to show, by a preponderance of the evidence,

that the testimony meets the Daubert standard. Gopalratnam v.

Hewlett-Packard Co., 877 F.3d 771, 782 (7th Cir. 2017). We re-

view de novo whether the district court properly applied the

Daubert framework. The district court here did so: In ruling

on Abbott’s motion to exclude Dr. Peery’s opinions, it ex-

pressly relied on Rule 702 and Daubert. It then considered

whether Dr. Peery’s proposed testimony was consistent with

those authorities.

The ultimate decision “to exclude or admit the expert wit-

ness testimony” is reviewed “for an abuse of discretion only.”

Id. (citation omitted); see also Textron, 807 F.3d at 835. A district

court abuses its discretion when no reasonable person can

agree with its decision. Antrim Pharms. LLC, 950 F.3d at 430.

The district court considered two aspects of Dr. Peery’s testi-

mony—the reliability of her methodology, and its helpfulness

to the jury.

Reliability. Downing has not offered an argument on ap-

peal as to reliability. Even if she has not waived this point, the

No. 21-2746 23

district court correctly determined that Dr. Peery’s methodol-

ogy was not reliable.

In assessing reliability, a district court may consider sev-

eral factors, including the known or potential rate of error and

the “existence and maintenance of standards controlling the

technique’s operation.” Kirk, 991 F.3d at 873 (citation omitted).

A court has “considerable leeway in deciding in a particular

case how to go about determining whether particular expert

testimony is reliable.” Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d

796, 806 (7th Cir. 2013) (citation omitted). As this court has

noted, a proposed expert must “bridge the analytical gap” by

showing a “rational connection” between the data and the ex-

pert’s contested conclusion. Gopalratnam, 877 F.3d at 786 (cit-

ing Manpower, 732 F.3d at 809).

Dr. Peery’s report begins by reviewing literature concern-

ing stereotyping and discrimination. It then pivots, opining

that negative assessments of Downing’s performance at Ab-

bott are consistent with the possibility of stereotyping or bias.

Dr. Peery does not substantively discuss the methodology she

used. The connection between the data in the report and Dr.

Peery’s opinions exists “only by the ipse dixit” of her as the

witness. Id. at 781. The district court reasonably concluded

that Dr. Peery’s methodology was unreliable, so her opinions

were properly excluded. See id. at 786–87 (affirming the exclu-

sion of expert opinion evidence on reliability grounds); Kirk,

991 F.3d at 877 (same); Textron, 807 F.3d at 837–38 (same).

Helpfulness to the Jury. Dr. Peery’s proposed testimony was

also excluded because it would not help the jury determine

any fact at issue. Downing suggests this was not only errone-

ous but an abuse of discretion that warrants reversal. Abbott

responds that the district court correctly excluded Dr. Peery’s

24 No. 21-2746

opinions because she could not assess the probability of bias

in any way.

In a Daubert inquiry, the district court must evaluate the

relevance of the expert’s testimony to a particular case. Kirk,

991 F.3d at 872; Gopalratnam, 877 F.3d at 779. For expert testi-

mony to be admissible, the expert must have something “use-

ful to say” about the particular circumstances at issue. Kunz v.

DeFelice, 538 F.3d 667, 676 (7th Cir. 2008).

To the district court, Dr. Peery opined “only that stereo-

types ‘may,’ ‘might,’ or ‘could have’ played a role in Abbott’s

decision making.” She did not offer a definite opinion as to

whether Abbott discriminated against Downing. The court’s

conclusion precisely tracks Dr. Peery’s putative testimony.

For her opinions to help the jury, she needed to speak to

whether Abbott’s decisionmakers racially discriminated

against Downing. That requirement was not satisfied, the

court correctly concluded, when Dr. Peery could not opine—

with even five percent certainty—that anyone at Abbott made

a decision about Downing’s employment on the basis of racial

bias. See id. (affirming exclusion of expert witness’s testimony

because his generalized testimony did not have anything use-

ful to say about the particular facts in dispute). Dr. Peery’s

testimony also would be unfairly prejudicial, as the court

ruled, because jurors might incorrectly conclude she was of-

fering an opinion on the ultimate liability question. For these

reasons, the district court did not abuse its discretion by ex-

cluding Dr. Peery’s opinion testimony.

IV. Jury Instructions

The district court also denied Downing’s requests for cer-

tain jury instructions. We review those decisions for abuse of

No. 21-2746 25

discretion. E.E.O.C. v. AutoZone, Inc., 809 F.3d 916, 921–22 (7th

Cir. 2016); Aldridge, 635 F.3d at 876. To the extent “the case

turns on a question of law,” our review is de novo. Kuberski v.

Rev Recreation Grp., Inc., 5 F.4th 775, 779 (7th Cir. 2021) (cita-

tion omitted). We will reverse “only if the instructions in their

entirety so thoroughly misled the jury that they caused preju-

dice.” Farnik v. City of Chicago, 1 F.4th 535, 544 (7th Cir. 2021)

(internal quotation marks and citations omitted); accord Auto-

Zone, 809 F.3d at 922.

Statutory Instruction. Downing claims the district court

abused its discretion by denying her proposed jury instruc-

tion 2, which quoted portions of Title VII and 42 U.S.C. § 1981.

This denial, according to Downing, resulted in the jury lack-

ing knowledge of “what the anti-discrimination laws pro-

hibit.” In declining to give this instruction, the district court

stated, “I am inclined to agree with the defense view that we

don’t need to include this statement of the purpose of the civil

rights laws.” What was relevant, in the court’s view, was “to

tell the jury what they need to find in order to render a verdict

on the claims that are submitted in this case.”

On this point, the jury was instructed:

Ms. Downing must prove by a preponderance

of the evidence that Abbott terminated her em-

ployment because of her race. To determine that

Abbott terminated her employment because of

her race, you must decide that Abbott would

not have terminated her employment had Ms.

26 No. 21-2746

Downing not been African American but every-

thing else had been the same.

We read this instruction to sufficiently convey what the anti-

discrimination laws prohibit and what the jury was required

to find to rule for Downing.

The verdict form also asked the jury to determine whether

Downing was (1) placed on performance-management

measures; (2) subjected to termination; or (3) not rehired into

a different role “because of her race.” Adverse employment

actions, taken because of an employee’s race, are exactly what

Title VII prohibits. See 42 U.S.C. § 2000e-2(a)(1); Barbera, 906

F.3d at 628. Even more, in response to the second jury ques-

tion, the district court adopted Downing’s counsel’s sugges-

tion to give the jury a copy of the statutory definition of an

unlawful employment practice. Rather than being misled, we

conclude that the jury was sufficiently informed about the ap-

plicable law. See AutoZone, 809 F.3d at 921–23; Aldridge, 635

F.3d at 876. In view of the instruction that was given, the

wording of the verdict form, and the response to the jury’s

second question, the refusal to give Downing’s proposed jury

instruction 2 was not an abuse of discretion.

Circumstantial evidence instruction. Next, Downing believes

the district court should have given her proposed jury instruc-

tion 12. That provided a plaintiff “may prove discrimination

or retaliation by offering different types of evidence,” includ-

ing ambiguous statements toward other African American

employees or evidence that Downing failed to receive desired

treatment for which she was qualified. In its denial the court

told Downing’s counsel: “You can tell [the jury], make your

arguments about the probative value of the evidence and how

it proves or does not prove discrimination or retaliation.

No. 21-2746 27

We’re not going to build that into the jury instructions.” Ab-

bott contends Downing failed to preserve this challenge and

that the court’s instruction as to how the jury should weigh

evidence was sufficient.

The district court did not abuse its discretion here because

it gave the circumstantial evidence instruction. After the close

of evidence and argument, the court instructed the jury:

You may have heard terms—the terms “direct

evidence” and “circumstantial evidence.” Di-

rect evidence is evidence that directly proves a

fact. Circumstantial evidence is evidence that

indirectly proves a fact, that is, evidence that re-

quires an inference … You are to consider both

direct and circumstantial evidence. The law

does not say that one is better than the other. It

is up to you to decide how much weigh to give

to any evidence, whether it is direct or circum-

stantial.

Downing does not acknowledge or account for this instruc-

tion, which the jury could have used to determine whether

discrimination or retaliation had occurred.

Stereotyping Instruction. Per Downing, the district court

also abused its discretion by refusing to give proposed jury

instruction 17: “Making an adverse employment decision be-

cause of racial stereotypes is a form of race discrimination.”

This prejudiced her, Downing submits, because the court

precluded her theory of stereotyping for lack of an adequate

evidentiary foundation, even though there was “ample evi-

dence.”

28 No. 21-2746

Abbott responds that Downing forfeited this challenge, as

on appeal she fails to contest the district court’s ruling that the

instruction was unnecessary. She was also permitted to argue

that Abbott’s actions were based on stereotyping, and Abbott

sees no record support for this instruction.

Downing is incorrect that the record is replete with evi-

dence of stereotyping. She claims that Abbott engaged in bla-

tant racial stereotyping because it termed her “defensive,”

“negligent,” and lacking in “executive presence.” At oral ar-

gument, her attorney made the puzzling suggestion that a

manager who does not communicate well in front of custom-

ers is a “horrible racial stereotype.” 2 Yet such descriptors are

legitimate criticisms of an employee’s job performance.

Downing provides no admissible evidence or authority that

these labels are prevalent racial stereotypes. For this point she

relies on Dr. Peery’s testimony, but that was appropriately ex-

cluded under the Daubert standard. Given that Downing did

not otherwise develop a factual record that would render

such an instruction relevant, the district court did not abuse

its discretion by denying it. See AutoZone, 809 F.3d at 922–23.

“[A] judge need not deliver instructions describing all

valid legal principles.” Id. at 923 (citation omitted). Instead, a

trial court should generally allow a litigant to argue that a jury

should draw a certain inference from the evidence. Id. The

district court appropriately permitted Downing’s counsel to

argue to the jury that Abbott based its adverse employment

actions on racial stereotypes. For these reasons, the denial of

Downing’s request for this jury instruction was not an abuse

of discretion.

2 Oral Arg. at 10:45.

No. 21-2746 29

Spoliation Instruction. Downing’s final challenge to the jury

instructions involves spoliation. Farmakis testified at trial that

he sent a survey to everyone in Abbott Molecular’s sales divi-

sion to figure out what was going on within the business.

Downing objected, arguing that the survey was not produced

in discovery. Abbott responded that although the company

could not locate the survey, Farmakis could still testify to his

personal knowledge that he had conducted it and reviewed

its results. So, the district court overruled the objection.

Near the end of the jury-instruction conference, Downing

requested “something along the lines of a spoliation instruc-

tion” that would have told the jury that it could draw a nega-

tive inference from Abbott’s failure to produce the document

Farmakis had referenced during his testimony. The district

court agreed with Abbott that there was an insufficient basis

for a spoliation instruction. Downing contends that was an

abuse of discretion.

To obtain an adverse inference related to spoliation, a

plaintiff must demonstrate that a defendant intentionally de-

stroyed documents in bad faith. Perez v. Staples Cont. & Com.

LLC, 31 F.4th 560, 569 (7th Cir. 2022); Norman-Nunnery v.

Madison Area Tech. Coll., 625 F.3d 422, 428 (7th Cir. 2010). “The

crucial element in a spoliation claim is not the fact that the

documents were destroyed but that they were destroyed for

the purpose of hiding adverse information.” Norman-Nun-

nery, 625 F.3d at 428. Downing has not shown that anyone at

Abbott destroyed the survey, which was taken in 2012—nine

years before the trial—much less that any such destruction

was for the purpose of hiding adverse information. Rather

than an abuse of discretion, the district court’s refusal to give

the jury a spoliation instruction was correct.

30 No. 21-2746

The district court properly relied on this circuit’s pattern

jury instructions for Downing’s claims, and it did not abuse

its discretion by rejecting the four jury instructions discussed

above.

V. Jowett Testimony and Mistrial Motion

Downing further argues that the district court should have

limited the trial testimony of her former supervisor Chris Jo-

wett, or declared a mistrial based on his testimony.

As noted above, we review a trial court’s decision to admit

or exclude evidence for an abuse of discretion. Henderson v.

Wilkie, 966 F.3d 530, 534 (7th Cir. 2020). A party “seeking to

overturn the district court’s evidentiary ruling bears a heavy

burden because a trial court’s balancing of probative value

and unfair prejudice is highly discretionary.” Id. (cleaned up).

An error in admitting evidence will not be a ground for a new

trial unless justice requires otherwise, meaning the error must

have prejudiced the aggrieved party’s substantial rights. Fed.

R. Civ. P. 61; Stegall v. Saul, 943 F.3d 1124, 1127–28 (7th Cir.

2019).

A district court’s denial of a mistrial is likewise reviewed

for an abuse of discretion. Farnik, 1 F.4th at 542. In this context,

we consider whether the district court committed an error of

law or made a clearly erroneous finding of fact. Id. (citing

Christmas v. City of Chicago, 682 F.3d 632, 638 (7th Cir. 2012)).

The ultimate question is whether the appellant was denied a

fair trial. Id.

According to Downing, Abbott elicited testimony from Jo-

wett as part of a strategy of “race baiting.” Downing sees a

recurring theme at trial of Abbott appealing “to the jury’s

emotions by asking it to vindicate the people Downing had

No. 21-2746 31

accused of racism.” Based on this claim, Downing sought to

preclude Jowett from testifying about his experiences with

her, except for what he shared with decisionmakers. The

district court stated it would not make a “blanket ruling” lim-

iting Jowett’s testimony, although it would “judge the rele-

vance in the context of the specific questions.”

Abbott points out that after Downing’s initial objection

and the court’s ruling, she did not renew her motion to ex-

clude this testimony. Nor did she object to Jowett’s testimony

about her skills and capabilities, his perception that her claims

of racial discrimination lacked merit, and his feelings about

her accusation that he perpetrated racial bias while at Abbott.

Abbott submits that Downing therefore waived or forfeited

the argument she now advances. Downing does not respond

to Abbott’s contention that she failed to preserve this chal-

lenge.

“If the district court admits the contested evidence, the op-

ponent must make a timely objection or motion to strike, stat-

ing the specific ground of objection, if the specific ground was

not apparent from the context.” Jimenez v. City of Chicago, 732

F.3d 710, 719 (7th Cir. 2013) (citations omitted); see also Griffin

v. Foley, 542 F.3d 209, 218–19 (7th Cir. 2008). Downing’s failure

to object to specific portions of Jowett’s testimony precludes

her challenge on appeal. Further, arguments for excluding

testimony, when made on appeal, are not preserved by mo-

tions in limine that reference different arguments. Jimenez, 732

F.3d at 720. Downing argued to the district court that Jowett

should be “limited to testify to what he shared with the deci-

sionmakers.” But on appeal, she claims Jowett should not

have been permitted to testify, despite his extensive personal

knowledge of Downing’s performance, because he was part

32 No. 21-2746

of Abbott’s strategy of “race baiting” the jury. This gap be-

tween Downing’s objection at trial and her argument on ap-

peal means this challenge has not been preserved. See Jimenez,

732 F.3d at 720.

Even if Downing had preserved the challenge to Jowett’s

testimony, it would not form a basis to grant a new trial. A

trial court’s decision to admit evidence as more probative

than prejudicial is highly discretionary. Henderson, 966 F.3d at

534. Downing relays how she perceives Jowett’s testimony fit

into the trial’s narrative. She also offers a conclusory state-

ment that “Abbott’s conduct in baiting the jury” deprived her

of a fair trial. But Downing cites no authority that a witness in

Jowett’s managerial position, with his knowledge of her per-

formance and capabilities, should not have been allowed to

testify.

As Abbott contends, Jowett’s testimony was properly ad-

mitted in response to Downing’s testimony that his 2012 “ex-

ceeded expectations” rating was evidence of her exemplary

performance. That is the primary reason the district court

gave for allowing Jowett to testify about his assessment of

Downing’s performance. Downing does not respond to the

basis for this ruling, so she has not shown it was an abuse of

discretion.

Instead, Downing claims “race baiting,” which she con-

tends required a mistrial. Downing asserts that Jowett, when

asked, testified that Abbott’s counsel told him that Downing

had accused him of racial bias in his former position at

Abbott. After Downing’s counsel moved for a mistrial on this

basis, Abbott’s counsel stated, “I literally read to him the in-

terrogatory response, full stop. That’s what I did.” In the in-

terrogatory at issue, Abbott asked Downing to “identify the

No. 21-2746 33

following Abbott executives who discriminated against Afri-

can Americans,” to which Downing responded with a list that

included Jowett. Downing’s counsel argued that Abbott had

tainted the jury by asking witnesses, including Jowett,

whether they were aware that she accused them of racism.

The district court denied the motion for a mistrial, although it

permitted Downing’s counsel to ask Jowett what Abbott’s at-

torney had said to him.

The district court made no error of law or clearly errone-

ous finding of fact, so the denial of the motion for a mistrial

must stand. See Farnik, 1 F.4th at 542. It was not unduly prej-

udicial for Abbott to ask witnesses in a trial about racial dis-

crimination if they were aware that the plaintiff had accused

them of racial discrimination. In addition, the district court

accepted the representation that Abbott’s counsel had only

read the interrogatory response to Jowett. Downing offers no

reason why doing so was not within the court’s discretion. It

is not surprising that Jowett interpreted the interrogatory re-

sponse as Downing accusing him of racism, because that is

what it implies. Nothing about Jowett’s testimony or the cir-

cumstances leading up to it deprived Downing of a fair trial.

Relatedly, Downing contends the “race baiting” was com-

pounded by the district court’s refusal to give proposed jury

instruction 18. That instruction would have stated in part:

“You have heard reference in opening statements that your

role is to vindicate people and restore their reputations. You

must disregard that statement, which is not evidence, nor is it

an accurate statement of the law or your role or duty in this

case.”

The district court rejected this instruction for two reasons.

First, it mischaracterized what counsel for Abbott said during

34 No. 21-2746

his opening statement, which was that a verdict for Abbott

would vindicate the former Abbott employees who had been

accused of discriminating against Downing. Second, other

jury instructions, including those that told the jury not to con-

sider sympathy, were sufficient to cure any prejudice.

Both reasons are correct. Downing would not have been

unfairly prejudiced by a comment that a defense verdict

would vindicate Abbott employees whom Downing accused

of racial bias. Juries are permitted to rely on their collective

common sense. See Stragapede v. City of Evanston, Ill., 865 F.3d

861, 866 (7th Cir. 2017). This would include that a verdict for

the company would reflect well on its employees. The district

court also gave instructions that were sufficient to eliminate

any possible prejudice. The jury was told: “Do not let sympa-

thy, prejudice, fear, or public opinion influence you.” The

court also instructed, “[the jury’s] concern is only whether Ms.

Downing has proved that in taking the challenged employ-

ment action Abbott discriminated against Ms. Downing be-

cause of her race and/or retaliated against her for complaining

about discrimination.” So, contrary to Downing’s contentions

on appeal, the jury was instructed to disregard any effort to

convince it to decide the case based on the feelings of the for-

mer Abbott employees whom she accused of racial bias. For

these reasons, a new trial is not warranted.

Downing did not preserve her objections to Jowett’s testi-

mony, and in any event the district court was within its dis-

cretion not to exclude the testimony because it was relevant.

No. 21-2746 35

Any error on the admission of Jowett’s testimony did not war-

rant a mistrial.

VI. Disparate-Impact Claim

Last, Downing appeals the district court’s grant of sum-

mary judgment to Abbott on her disparate-impact claim.

We review the district court’s grant of summary judgment

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

ing and drawing all reasonable inferences in her favor. Khun-

gar v. Access Cmty. Health Network, 985 F.3d 565, 572 (7th Cir.

2021) (citations omitted). “An inference is not reasonable if it

is directly contradicted by direct evidence provided at the

summary judgment stage, nor is a ‘conceivable’ inference nec-

essarily reasonable at summary judgment.” MAO-MSO Re-

covery II, LLC v. State Farm Mut. Auto. Ins. Co., 994 F.3d 869,

876 (7th Cir. 2021) (citing Cont’l Cas. Co. v. Nw. Nat. Ins. Co.,

427 F.3d 1038, 1041 (7th Cir. 2005)). Summary judgment is

appropriate “if the movant shows that there is no genuine dis-

pute as to any material fact and the movant is entitled to judg-

ment as a matter of law.” FED. R. CIV. P. 56(a).

An employment practice may be unlawful under Title VII

based on its disparate impact. 42 U.S.C. § 2000e-2(k). “Under

a disparate impact theory, an employer is held liable when a

facially neutral employment practice disproportionately im-

pacts members of a legally protected group.” Farrell v. Butler

Univ., 421 F.3d 609, 616 (7th Cir. 2005). A plaintiff must first

show that the employment practice had an adverse impact on

employees with a protected characteristic, such as race. Ernst

v. City of Chicago, 837 F.3d 788, 796 (7th Cir. 2016). If the em-

ployee makes such a showing, then the burden shifts to the

employer to show its employment practice “is job-related for

36 No. 21-2746

the employee’s position and consistent with business neces-

sity.” Id. (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)).

The district court concluded that the sample size of 10 ap-

plicants for the director position was too small to be statisti-

cally meaningful, so it granted Abbott summary judgment on

Downing’s disparate-impact claim. Downing challenges the

process Abbott used to rate candidates and extend offers dur-

ing the rehiring process for the director position. Under that

process, two African-American candidates—Downing and

Jones—received the lowest ratings of ten candidates for the

position. Downing argues she presented ample evidence that

the subjective rating system Abbott used disparately

impacted African-Americans. This included those white can-

didates without managerial experience all received higher

ratings than Downing and Jones. Abbott defends the dispar-

ate-impact ruling because the sample size is so small that no

inference of discriminatory impact would be proper.

A plaintiff cannot make a prima facie case of adverse

impact where the affected group is “too small for any valid

statistical comparisons,” which “immunize[s] most single de-

cisions from disparate impact challenges.” Council 31, Am.

Fed’n of State, Cnty. & Mun. Emps., AFL-CIO v. Ward, 978 F.2d

373, 378 (7th Cir. 1992); see also Watson v. Fort Worth Bank &

Tr., 487 U.S. 977, 996–97 (1988) (noting that “small or incom-

plete data sets” prevent a plaintiff from making a prima facie

case of adverse impact). Accord Morgan v. Harris Tr. & Sav.

Bank of Chicago, 867 F.2d 1023, 1028 (7th Cir. 1989) (“Where the

sample size or alleged effect is so statistically insignificant that

no inference of discriminatory impact is proper, plaintiff fails

to present a prima facie case.”); Vitug v. Multistate Tax

Comm'n, 88 F.3d 506, 514 n.3 (7th Cir. 1996) (stating an

No. 21-2746 37

employer’s hiring for four positions presented a “sample

size” that was “too small for any meaningful statistical com-

parison”). Because only 10 individuals applied for the direc-

tor position, the district court reached that conclusion here.

Downing asserts the district court ruled, incorrectly, that dis-

parate-impact liability was per se unavailable because the

sample size was too small. But she cites no authority for her

assertion, and the case law holds otherwise.

In response to this ruling, Downing points to her dispar-

ate-treatment evidence. She highlights what she sees as dis-

crepancies between the interview results and the applicants’

performance records. But Downing did not offer this argu-

ment in the district court, and a contention that an employer

did not fairly assess an individual applicant for a position is

not an allegation of disparate impact. See Farrell, 421 F.3d at

617. The district court correctly granted summary judgment

to Abbott on Downing’s disparate-impact claim.

VII. Conclusion

On each point Downing raises, the district court either

ruled correctly or it did not abuse its discretion. Accordingly,

we AFFIRM the district court’s judgment in all respects.