Good v. Univ. of Chicago Med. Ctr.

• Decision Date: 12 March 2012
• Docket Number: No. 11–2679.,11–2679.
• Citation: 114 Fair Empl.Prac.Cas. (BNA) 903,278 Ed. Law Rep. 59,95 Empl. Prac. Dec. P 44441,673 F.3d 670
• Parties: Barbara J. GOOD, Plaintiff–Appellant, v. UNIVERSITY OF CHICAGO MEDICAL CENTER, an Illinois not-for-profit corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

114 Fair Empl.Prac.Cas. (BNA) 903

278 Ed. Law Rep. 59

673 F.3d 670

95 Empl. Prac. Dec. P 44,441

Barbara J. GOOD, Plaintiff–Appellant,

v.UNIVERSITY OF CHICAGO MEDICAL CENTER, an Illinois not-for-profit corporation, Defendant–Appellee.

No. 11–2679.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 19, 2012.Decided March 12, 2012.

Joanie Rae Wimmer (argued), Attorney, Law Offices of Joanie Rae Wimmer, Downers Grove, IL, for Plaintiff–Appellant.

Robert S. Markin, Sandy Morris (argued), Attorneys, Chico & Nunes, P.C., Chicago, IL, for Defendant–Appellee.

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Plaintiff Barbara Good appeals from the district court's grant of summary judgment in favor of defendant University of Chicago Medical Center in Good's reverse race discrimination case. Good was employed in UCMC's Radiology Department as a lead technologist in the Computerized Tomography Department. She admits that there were issues with her job performance, but she contends that UCMC discriminated against her on account of her race (white) when it terminated her employment rather than demoting her as it had some employees of other races. Good sued UCMC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.

An employee alleging racial discrimination under these statutes may elect to proceed via either the indirect or the direct methods of proof, or a combination of the two. See Egonmwan v. Cook County Sheriff's Dep't, 602 F.3d 845, 849–50 & n. 7 (7th Cir.2010). Good invoked both methods. The district court found that she failed to present sufficient evidence to withstand UCMC's motion for summary judgment using either method. Good has appealed, and we affirm.

I. Standard of Review and Factual Background

We review the district court's grant of summary judgment de novo, construing all facts and drawing all reasonable inferences in favor of Good, the non-moving party. See Winsley v. Cook County, 563 F.3d 598, 602 (7th Cir.2009). Summary judgment is appropriate if the evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In keeping with these standards, the following facts are set forth in a light most favorable to Good, as the non-moving party. We do not vouch for their truth in any other sense.

The Radiology Department of UCMC is composed of the Computerized Tomography, or “CT” Department, where Good worked, as well as the Magnetic Resonance Imaging Department, the Ultrasound Department, and the Nuclear Medicine/Positron Emission Technology Department. Each department employed staff technologists to perform imaging scans and who worked on either the first, second, or third shift. Each shift of each department had a designated lead technologist. Staff technologists and lead technologists were biweekly employees. Each department also had a manager, who was a monthly employee.

Each year, the department managers evaluated their biweekly lead and staff technologists and generated annual performance reviews. Managers evaluated their employees' performance in several categories, each on a scale of 1 to 5, with 5 being the highest. If an employee's overall annual performance review was less than 3, UCMC would place the employee on a Performance Improvement Plan or PIP. The PIP would specify areas of improvement, measurable expectations, and consequences of an employee's failure to improve in the targeted areas within a designated timeframe of either 30, 60, or 90 days.

UCMC maintained a four-step corrective Progressive Action Policy that provided that an employee's failure to complete a PIP was grounds for termination. But according to UCMC's Policy and Procedure Manual, “it is the policy of the University of Chicago Hospitals to demote [an] individual [ ]” who “cannot perform ... her assigned job responsibilities” because “her skills are not matched to the requirements of the job” or she “lack[s] ... motivation to perform up to standards.”

UCMC Radiology Department managers were to be held to “a higher standard of performance, due to their added responsibilities.” Managerial employees could be terminated at any time, and the record adequately demonstrates that, like bi-weekly employees, UCMC subjected its managers to annual performance reviews and dealt with some managers' performance deficiencies by demoting them in lieu of harsher corrective treatment such as a PIP or a probationary period, or even termination.

Good was hired as a lead technologist in the CT Department in May 1994. She resigned in 1999 to take another position, but UCMC rehired her three months later as a staff technologist. In 2004, she was promoted back to lead technologist, and she was assigned to the second shift. In 2005, Cliff Sissel became CT Manager and Good's immediate supervisor. In April 2006, Monica Geyer became the Assistant Director of Specialty Imaging Services. Ed Smith was the Executive Director of Radiology. Like plaintiff Good, both Sissel and Geyer are white. Smith's race is not disclosed by the record.

In July 2007, Sissel reviewed Good's performance for the year ending June 30, 2007 and gave her an overall rating of 2.65. Good did not dispute Sissel's evaluation. Because her overall score was below 3, Sissel and Geyer developed a 90–day PIP designed to improve Good's performance. Pursuant to the PIP, Good needed to improve in three areas: (1) timely patient service; (2) improvement in staff efficiency; and (3) minimizing staff overtime in her department. When she received the PIP, Good told Sissel and Geyer that she “would be ... happy to step down to a staff tech position.” Geyer responded, “That's a possibility. We might think about that.”

Over the course of the next 90 days, Good failed to improve sufficiently. Sissel discussed these issues with Good in August and again in September 2007, but on October 12, 2007, Geyer gave Good a Final Written Warning, put her on a 30–day PIP, and transferred her to the third shift, which was less busy than the second shift. The warning stated that Good had not met “the majority of the goals [of the 90–day PIP] impacting patient care.” The warning also stated that “this is UCMC's final effort to work with [Good] to bring her performance to an acceptable level. If [Good] fails to meet these new goals on a less busy shift, further corrective action may be taken up to and including termination of employment.” Good again asked to be demoted to a staff technologist position, and Geyer told her, “we're thinking about it.”

Sissel and Geyer expected that Good would properly handle inpatient scan orders, properly handle the timing of emergency scans, and properly maintain the CT Department work area. Good did not contest the 30–day PIP or her need to improve in those areas. In spite of these corrective efforts, however, Good's performance did not improve.

In late October or early November 2007, Good again asked Sissel and Geyer to give her a demotion. Geyer told her that UCMC had “changed [its] policies” and had “decided not to do that anymore.” Contrary to Geyer's statement, UCMC had not amended the demotion policy and it was still in force. On November 2, 2007, Ed Smith (Director of Radiology and Geyer's immediate supervisor) sent Geyer an e-mail, instructing: “No more e-mails about [Good],” and “have her removed.” Geyer understood Smith to be instructing her and Sissel to terminate Good's employment. Accordingly, on November 16, 2007, Geyer sent an e-mail to Employee/Labor Relations at UCMC stating that Good had failed to successfully complete her 30–day PIP and recommending that UCMC terminate Good's employment. Sissel agreed with this decision. On November 27, 2007, UCMC terminated Good's employment. UCMC replaced Good with Kristin Runion, who is also white.

II. Direct Method of Proof

To withstand UCMC's motion for summary judgment under the direct method of proof, Good must present “direct or circumstantial evidence that creates a convincing mosaic of discrimination on the basis of race.” Winsley v. Cook County, 563 F.3d at 604 (quotation marks omitted). Good has no direct evidence that race played any role at all in UCMC's treatment of her. She relies on circumstantial evidence, which we have said typically falls into one of three categories:

(1) suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group; (2) evidence, whether or not rigorously statistical, that similarly situated employees outside the protected class received systematically better treatment; [or] (3) evidence that the employee was qualified for the job in question but was passed over in favor of a person outside the protected class and the employer's reason is a pretext for discrimination.

Darchak v. City of Chicago Board of Educ., 580 F.3d 622, 631 (7th Cir.2009). A plaintiff may survive a motion for summary judgment based only on circumstantial evidence under the direct method, but only if the circumstantial evidence presented points “directly to a discriminatory reason for the employer's action.” Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir.2003), quoting Adams v. Wal–Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.2003); see also Lim v. Trustees of Indiana Univ., 297 F.3d 575, 580 (7th Cir.2002) (requiring “direct evidence” to “prove the particular fact in question without reliance upon inference or presumption”) (internal quotation and emphasis omitted).

To satisfy this burden, Good points to three UCMC employees of different races or ethnicities from hers who were allowed to take demotions from their positions rather than receive corrective discipline for their deficient performance. She also argues that UCMC provided inconsistent reasons for departing from its demotion policy in her case. This, she argues, is sufficient circumstantial evidence...