Sylvester v. Sos Children's Villages Illinois

• Decision Date: 12 July 2006
• Docket Number: No. 05-4219.,05-4219.
• Parties: Rosemary SYLVESTER, Plaintiff-Appellant, v. SOS CHILDREN'S VILLAGES ILLINOIS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

453 F.3d 900

Rosemary SYLVESTER, Plaintiff-Appellant, v. SOS CHILDREN'S VILLAGES ILLINOIS, INC., Defendant-Appellee.

No. 05-4219.

United States Court of Appeals, Seventh Circuit.

Argued June 13, 2006.

Decided July 12, 2006.

Robert S. Michaels (argued), Robinson, Curley & Clayton, Chicago, IL, for Plaintiff-Appellant.

Cathryn E. Albrecht (argued), Jackson Lewis, Chicago, IL, for Defendant-Appellee.

Before POSNER, COFFEY, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, Rosemary Sylvester, appeals from the grant of summary judgment to her former employer in this suit for sex discrimination and retaliation under Title VII. The claim of sex discrimination has no possible merit, and we affirm its dismissal. The claim of retaliation presents a more difficult issue.

The plaintiff's claim that she was retaliated against, in violation of 42 U.S.C. § 2000e-3(a); see Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752-53 (7th Cir.2002); Abramson v. William Paterson College, 260 F.3d 265, 287-88 (3d Cir.2001); Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir.1990), for opposing sex discrimination in the form of sexual harassment depends entirely on circumstantial evidence; and we must first consider whether and in what sense such evidence can be used to prove retaliation (or other forms of discrimination, but we confine our discussion to retaliation). The usual way in which a plaintiff tries to establish a prima facie case (that is, a case strong enough to withstand summary judgment for the defendant) of retaliation is by an adaptation of the McDonnell Douglas test. As explained in Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir.2002), this "requires the plaintiff to show that after filing the charge [or otherwise opposing the employer's allegedly discriminatory practice] only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner." This method of establishing a prima facie case requires proof both of similarly situated employees and of the plaintiff's performing his job satisfactorily.

This method is called "indirect"; the alternative—the "direct"—method of establishing a prima facie case of retaliation requires the plaintiff "to present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which he complains." Id. at 644 (emphasis added). This method is ordinarily more onerous because of the phrase that we have italicized, but it is the plaintiff's only recourse if he (in this case she) cannot prove that a similarly situated employee who did oppose the employer's practice was not fired or otherwise treated as badly as the plaintiff was.

Read literally, the passage just quoted from Stone would defeat Sylvester's use of the "direct" method because the passage says that the method requires "direct evidence," defined in the passage as "evidence that establishes [a proposition] without resort to inferences from circumstantial evidence." This is a misleading dictum. What is true is that the direct method does not utilize the specific circumstantial evidence that the plaintiff presents when he uses the indirect method of establishing discrimination. But if he can prove by means of circumstantial evidence "that he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which he complains," that is fine, as most of our cases, sensibly disregarding the dictum in Stone, properly assume. Culver v. Gorman & Co., 416 F.3d 540, 545-46 (7th Cir.2005); Lang v. Illinois Dep't of Children & Family Services, 361 F.3d 416, 419 (7th Cir.2004); Volovsek v. Wisconsin Dept. of Agriculture, Trade & Consumer Protection, 344 F.3d 680, 689 (7th Cir. 2003); Sitar v. Indiana Dept. of Transportation, 344 F.3d 720, 728-29 (7th Cir.2003); Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir.2003); but see Hudson v. Chicago Transit Authority, 375 F.3d 552, 559-60 (7th Cir.2004). And likewise the cases in other circuits. Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir.2005); Pope v. ESA Services, Inc., 406 F.3d 1001, 1010 (8th Cir.2005); Poole v. County of Otero, 271 F.3d 955, 961 (10th Cir.2001); DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir.2004). See also Wright v. Southland Corp., 187 F.3d 1287, 1294-1303 (11th Cir. 1999), equating the direct method to direct evidence but defining direct evidence to include circumstantial evidence.

The distinction between direct and circumstantial evidence is vague, 1 John H. Wigmore, Evidence § 25, at p. 953, but more important it is irrelevant to assessing the strength of a party's case. In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 661-62 (7th Cir.2002). From the relevant standpoint—that of probative value— "`direct' and `circumstantial' evidence are the same in principle." Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir.1997); see Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

The conventional distinction is that direct evidence is testimony by a witness about a matter within his personal knowledge and so does not require drawing an inference from the evidence (his testimony) to the proposition that it is offered to establish, whereas circumstantial evidence does require drawing inferences. 1 Wigmore, supra, §§ 25-26, at pp. 953-65; Lyman R. Patterson, "The Types of Evidence: An Analysis," 19 Vand. L.Rev. 1, 11-14 (1965). By that standard, even a documentary admission is circumstantial evidence, because the genuineness of the document must be inferred before the admission can be credited. But actually all evidence, even eyewitness testimony, requires drawing inferences; the eyewitness is drawing an inference from his raw perceptions. "All evidence is probabilistic, and therefore uncertain; eyewitness testimony and other forms of `direct' evidence have no categorical epistemological claim to precedence over circumstantial or even explicitly statistical evidence." Milam v. State Farm Mutual Automobile Ins. Co., 972 F.2d 166, 170 (7th Cir.1992). Perhaps on average circumstantial evidence requires a longer chain of inferences, but if each link is solid, the evidence may be compelling—may be more compelling than eyewitness testimony, which depends for its accuracy on the accuracy of the eyewitness's recollection as well as on his honesty.

A residual suspicion of circumstantial evidence in discrimination (including retaliation) cases is perhaps reflected in the frequent references in decisions of this court to "a convincing mosaic of circumstantial evidence" as an alternative "direct" method to direct evidence of establishing the prima facie case. E.g., East-Miller v. Lake County Highway Dept., 421 F.3d 558, 564 (7th Cir.2005); Isbell v. Allstate Ins. Co., 418 F.3d 788, 794 (7th Cir. 2005); Grimm v. Alro Steel Corp., 410 F.3d 383, 385 (7th Cir.2005); Rhodes v. Illinois Dept. of Transportation, 359 F.3d 498, 504 (7th Cir.2004). The phrase first appeared in Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th Cir.1994), where it was used, innocently enough, to describe the "kind of circumstantial evidence . . . that consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff." A mosaic is a work of visual art composed of a large number of tiny tiles that fit smoothly with each other, a little like a crossword puzzle. A case of discrimination can likewise be made by assembling a number of pieces of evidence none meaningful in itself, consistent with the proposition of statistical theory that a number of observations each of which supports a proposition only weakly can, when taken as a whole, provide strong support if all point in the same direction: "a number of weak proofs can add up to a strong proof." Mataya v. Kingston, 371 F.3d 353, 358 (7th Cir.2004).

But it was not the intention in Troupe to promulgate a new standard, whereby circumstantial evidence in a discrimination or retaliation case must, if it is to preclude summary judgment for the defendant, have a mosaic-like character. There is no rich mosaic of circumstantial evidence of retaliation in this case, but there is enough (though maybe barely enough) to preclude summary judgment.

The defendant operates homes for foster parents and children. Sylvester, the plaintiff, was one of four employees, all women, who signed a long letter of complaint dated May 5, 2003, to Joseph Skender, the chairman of the defendant's board. The letter accused Job West, the defendant's chief executive officer, of abusing the signatories and other members of the defendant's staff by calling them "...