Johnson v. Advocate Health & Hosps. Corp., 16-3848

• Decision Date: 08 June 2018
• Docket Number: No. 16-3848,16-3848
• Citation: 892 F.3d 887
• Parties: Warren JOHNSON, et al., Plaintiffs-Appellants, v. ADVOCATE HEALTH AND HOSPITALS CORPORATION, doing business as Advocate Christ Medical Center, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

892 F.3d 887

Warren JOHNSON, et al., Plaintiffs-Appellants,

v.ADVOCATE HEALTH AND HOSPITALS CORPORATION, doing business as Advocate Christ Medical Center, Defendant-Appellee.

No. 16-3848

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2017

Decided June 8, 2018

Rehearing and Rehearing En Banc Denied July 10, 2018^*

Jeffrey M. Friedman, Attorney, Arijana Keserovic, Attorney, Law Offices of Jeffrey Friedman, P.C., Chicago, IL, for Plaintiffs-Appellants.

David Mitchell Poell, Attorney, Sheppard, Mullin, Richter & Hampton LLP, Chicago, IL, Jill Vorobiev, Attorney, Reed Smith LLP, Chicago, IL, for Defendant-Appellee.

Before Manion, Rovner, and Hamilton, Circuit Judges.

Rovner, Circuit Judge.

Employees of Advocate Health and Hospitals Corporation (Advocate) claim that they were treated unfairly based on their race. The district court granted Advocate’s motion for summary judgment, finding that the plaintiffs failed to offer evidence necessary to support an element of their claim. We agree with the district court on all issues but the question of the hostile work environment, and remand to the district court for a determination of that claim.

I.

Plaintiffs Warren Johnson, Robert Pannell, Kimberly Scott-Murray, Annette Smith, and Sherry Young all claim that they faced race discrimination at the hands of supervisors when they worked as Environmental Service Technicians (EVS techs) at Advocate. EVS techs perform work that would traditionally be called janitorial work. They clean and disinfect hospital rooms and common areas, make beds, and the like. The EVS techs claim that they were treated unfairly because of their race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. and 42 U.S.C. § 1981.¹

In 2012, Advocate contracted with Aramark Healthcare Support Services and reorganized the supervision and operation of the EVS department. Under the Service Agreement between Advocate and Aramark, Aramark was responsible for managing the EVS department while abiding by the policies of Advocate, including, among other policies, Advocate’s non-discrimination policy. See, e.g., R. 62-6 at 6, 16, Page ID 1941, 1951. Shortly thereafter, the plaintiffs claim that Aramark-employed supervisors Susan Castillo, Christopher Skalnik, and Mariusz Michalkowski engaged in discriminatory acts against the plaintiffs. The claims of discrimination include: (1) Johnson and Smith were paid less than white EVS techs; (2) Pannell and Scott-Murray were denied promotions and raises; (3) Plaintiffs were managed and disciplined more scrupulously than their non-African-American co-workers, and terminated in a discriminatory fashion; (4) African-American plaintiffs were given less desirable and more strenuous assignments; (5) Aramark supervisors subjected the plaintiffs to offensive and derogatory racial comments, creating a hostile work environment.

The district court granted Advocate’s motion for summary judgment on all counts, concluding that the plaintiffs did not experience severe or pervasive race-based harassment, that there was no basis for employer liability, and that the plaintiffs failed to demonstrate that racial animus motivated the decisions to terminate Johnson, Scott-Murray and Smith. Johnson v. Advocate Health & Hosps. Corp. , No. 14 CV 8141, 2016 WL 5871489 (N.D. Ill. Oct. 7, 2016). As for the hostile work environment claim, the lower court held that the comments, although concerning, were too isolated, indirect, and sporadic, and not so serious as to have affected the plaintiffs’ working conditions. Id. at *8. The district court also concluded that there was no basis for employer liability. Id.

II.

The plaintiffs’ brief is awash in facts and controversies. They claim that these numerous disputes and presentations of conflicting evidence create genuine issues of material fact. It is true that cases with jumbles of ostensibly disputed facts often signal the need for a trial on the facts. See Payne v. Pauley , 337 F.3d 767, 770 (7th Cir. 2003). Not all disputed facts, however, are relevant and material. On summary judgment we must view the facts and make all reasonable inferences that favor them in the light most favorable to the party opposing summary judgment. Parker v. Four Seasons Hotels, Ltd. , 845 F.3d 807, 814 (7th Cir. 2017). The following common refrains in summary judgment cases are important to recall in a case with so many factual recitations:

On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder. Rather, the court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Summary judgment is not appropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. We must look therefore at the evidence as a jury might, construing the record in the light most favorable to the nonmovant and avoiding the temptation to decide which party’s version of the facts is more likely true. As we have said many times, summary judgment cannot be used to resolve swearing contests between litigants.

Payne , 337 F.3d at 770 (internal citations and quotations omitted). To defeat a motion for summary judgment, the party opposing it must make a "showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is a critical moment for a non-moving party. It must "respond to the moving party’s properly-supported motion by identifying specific, admissible evidence showing that there is a genuine dispute of material fact for trial." Grant v. Trs. of Ind. Univ. , 870 F.3d 562, 568 (7th Cir. 2017). Inferences supported only by speculation or conjecture will not suffice. Skiba v. Ill. Cent. R.R. Co. , 884 F.3d 708, 721–22 (7th Cir. 2018). Neither will the mere scintilla of evidence. Grant , 870 F.3d at 571.

Although these common refrains are familiar, the task is often easier to describe than to perform, and plenty of credibility-weighing traps lay before a court, particularly in such fact-intensive cases. See, e.g. Payne, 337 F.3d at 771. As our review is de novo, we affirm the district court only when no reasonable jury could have found for the plaintiffs. See, e.g., Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Roh v. Starbucks Corp. , 881 F.3d 969, 973 (7th Cir. 2018).

On top of the normal lattice of summary judgment demands, we must also apply the constructs of employment discrimination law. For years we have tangled with a "rat’s nest of surplus tests" in employment discrimination cases—struggling to pigeon hole evidence into the direct or indirect method with various overlaying requirements of "convincing mosaics" and circumstantial or direct evidence. Ortiz v. Werner Enters., Inc. , 834 F.3d 760, 764–66 (7th Cir. 2016). Our Circuit has now clarified the singular question that matters in a discrimination case: "[W]hether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action." Ortiz , 834 F.3d at 765. "Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself .... Relevant evidence must be considered and irrelevant evidence disregarded." Id.

Plaintiffs allege that the district court’s analysis failed to comport with this new standard in Ortiz , but we disagree. The district court did exactly as Ortiz demands and ignored the old "convincing mosaic" language and cut straight to the "bottom line and determine[d] whether there [was] evidence from which a reasonable trier of fact could infer discrimination from Advocate’s actions as to each particular plaintiff." Johnson , 2016 WL 5871489, at *5 (N.D. Ill. Oct. 7, 2016), (citing Liu v. Cook Cty. , 817 F.3d 307, 315 (7th Cir. 2016) ).

Despite doing away with the need for separate tests and "mosaics," the well-known and oft-used McDonnell Douglas framework for evaluating discrimination remains an efficient way to organize, present, and assess evidence in discrimination cases. David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508 , 846 F.3d 216, 224 (7th Cir. 2017) (noting that " Ortiz , however, did not alter [t]he burden-shifting framework created by McDonnell Douglas Corp v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)"). There is no magic to this test; it is merely one way of culling the relevant evidence needed to demonstrate whether a reasonable factfinder could conclude that an employer engaged in an adverse employment action based on the plaintiff’s race or other proscribed factor. But because the framework is helpful we use it to evaluate each of the plaintiffs’ claims by looking to see whether the plaintiffs (1) are members of a protected class; (2) performed reasonably on the job in accord with their employer[’s] legitimate expectations; (3) were subjected to an adverse employment action despite their reasonable performance; and (4) similarly situated employees outside of the protected class were treated more favorably by the employer. David , 846 F.3d at 225. All of the plaintiffs are African-American and thus fall within a protected class. Using this framework as an organizational guide, we address each of the plaintiffs’ claims individually, beginning with the plaintiffs’ claims that they received lower pay than non-African-American EVS workers.

A. Pay disparity

Plaintiffs Johnson and Smith claim that they were paid less than white associates because of their race. Plaintiff Pannell also asserts that he did not receive "charge pay"—extra pay for performing work...