Tina Gosey v. Aurora Medical Center , 749 F.3d 603 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3375
TINA GOSEY,
Plaintiff-Appellant,
v.
AURORA MEDICAL CENTER,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11-C-805 — Rudolph T. Randa, Judge.
SUBMITTED MARCH 26, 2014* — DECIDED APRIL 11, 2014
Before WOOD, Chief Judge, and SYKES and HAMILTON, Circuit
Judges.
PER CURIAM. Tina Gosey worked as a chef’s assistant at
Aurora Medical Center in Kenosha, Wisconsin. Believing that
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and
the record. See FED. R. APP. P. 34(a)(2)(C).
2 No. 13-3375
management harassed, refused to promote, and eventually
fired her because she is African-American, and that her
discharge was also retaliatory, she sued Aurora for violations
of Title VII of the Civil Rights Act of 1964. See 42 U.S.C.
§§ 2000e-2(a)(1), 2000e-3(a). The district court granted
summary judgment for Aurora across the board. We affirm
with respect to the claims of harassment and failure to
promote, but we conclude that further proceedings are
necessary on Gosey’s claims that Aurora fired her because of
her race and in retaliation for her complaints of discrimination.
I
Aurora hired Gosey in 2008. In September 2009 she applied
for an open position as food-services manager at the hospital.
The job posting stated a preference for someone with “five to
seven years of progressively responsible experience in
managing a food service operation,” including experience in
managing “staff, budgets and multiple human resources
functions.” Gosey was not alone in her interest: the posting
attracted more than 150 applicants. Aurora interviewed Gosey,
but it ultimately hired a white woman.
Several months later Gosey filed a charge of discrimination
with the Equal Employment Opportunity Commission and the
Wisconsin Department of Workforce Development. She alleged
that Aurora had denied her the promotion and was assigning
extra duties and imposing discipline for sham infractions
because of her race. In addition, she accused Aurora’s
managers of trying to manufacture an excuse to fire her by
altering her attendance records so that it would appear that she
No. 13-3375 3
was tardy. Her fears of losing her job were realized when, two
months later, Aurora fired her. This lawsuit followed.
In the district court, Gosey was represented by counsel, but
she nonetheless failed to respond fully to the statement of
proposed material facts that Aurora furnished with its motion
for summary judgment. This had the effect of leaving
undisputed many of the company’s proposed findings.
See E.D. WIS. CIV. L.R. 56(b)(4). The district court was entitled
to enforce its local rules, Patterson v. Ind. Newspapers, Inc., 589
F.3d 357, 360 (7th Cir. 2009); Fed. Trade Comm’n v. Bay Area Bus.
Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005), and thus to
accept Aurora’s version of the facts to the extent it was
supported by admissible evidence. We will do the same. Keeton
v. Morningstar, Inc., 667 F.3d 877, 880, 884 (7th Cir. 2012).
II
A
Reviewing the district court’s judgment de novo, we too
conclude that Gosey is not entitled to go to trial on her claim of
racial discrimination in the promotion decision. She introduced
no direct evidence that race played a part in the promotion
decision, and her claim falls short under the indirect method of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because
the evidence that Aurora hired someone more qualified is
undisputed. Gosey had seven years of experience—as a chef’s
assistant, chef, and owner of a catering business—but the
successful applicant had over 15 years of experience as a food-
service director, manager, and supervisor. See Hobbs v. City of
Chi., 573 F.3d 454, 460 (7th Cir. 2009) (explaining that, under
indirect method, plaintiff alleging failure to promote must
4 No. 13-3375
present evidence showing that position was given to someone
similarly or less qualified); Grayson v. City of Chi., 317 F.3d 745,
749 (7th Cir. 2003) (same).
B
We also agree with the district court that Aurora was
entitled to summary judgment on Gosey’s harassment claim.
We can assume for the sake of argument that the alleged
harassment was of sufficient severity or pervasiveness to
establish an actionable claim of racial hostility. See Zayas v.
Rockford Mem’l Hosp., 740 F.3d 1154, 1160 (7th Cir. 2014); Hardin
v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999).
Even so, Gosey’s inability to point to evidence suggesting that
the harassment was based on her race is fatal to her claim. This
is so even if we accept her assertion that she was given tasks
outside her job description, required to “work off the clock,”
and disparaged by a supervisor, because she presented no
evidence showing that these actions were racially motivated.
See Zayas, 740 F.3d at 1159 (even under indirect method,
evidence of “harassment must be sufficiently connected to race
before it may reasonably be construed as being motivated by
the defendant’s hostility to the plaintiff’s race” (citation
omitted)); Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 731–32
(7th Cir. 2009) (same); Beamon v. Marshall & Ilsley Trust Co., 411
F.3d 854, 863–64 (7th Cir. 2005) (same).
C
Finally, we turn to Gosey’s contention that the district court
erred in granting summary judgment on her claims arising
from the termination of her employment. (Although Gosey’s
opening brief says little about retaliation, Aurora understands
No. 13-3375 5
her to be challenging the adverse decision on her retaliation
claim as well; Gosey’s reply brief confirms that this is correct.)
In this court, Aurora makes much of the fact that it also
disciplined Gosey for insubordination, but in the district court
Aurora insisted that its sole reason for firing her was that she
accumulated too many tardies. Its decision must therefore
stand or fall on the basis of that explanation.
Among the materials that Aurora submitted in support of
its motion for summary judgment were a printout of the entry
made in Gosey’s electronic personnel file when she was fired
and a copy of a provision from the employee handbook stating
that employees who are late four more times after being
formally warned about tardiness may be fired. The entry in
Gosey’s personnel file indicates that, after a warning, she was
tardy on July 5, July 20, August 17, and October 11, 2010.
Aurora produced written warnings given to Gosey for arriving
late after the first three of those dates, and the entry
documenting the termination of her employment cites the
fourth. In the district court the company added that, even if it
was wrong about those four days, Gosey had been tardy many
more times during the period from April through October
2010, as evidenced by a printout of her computerized “Punch
Detail History” for that period.
Gosey did not dispute that she was tardy on July 5, and she
stipulated that she had “swiped in” 11 minutes after her
scheduled start time on August 17 and one minute after her
scheduled start time on October 11. She disputed, however,
Aurora’s contention that she had arrived 27 minutes late on
July 20. Aurora’s only evidence of Gosey’s tardiness (on that
date or any other) is the Punch Detail History. Our
6 No. 13-3375
examination of that document reveals that the entry for July 20
shows that Gosey was scheduled to begin work at 5:30 a.m.
and that she clocked in at 5:27 a.m.; in other words, she
actually was three minutes early that day. Likewise, the entry
for August 17 shows that she was scheduled to arrive at 5:15
a.m. and was on duty at 5:11 a.m., and so again Aurora’s own
evidence shows that she was early. The district court noted that
Gosey had stipulated that she was late that day, but it
apparently recognized that the stipulation was incorrect and
disregarded it. Aurora, however, has not let go; it maintains on
appeal (in the face of this evidence) that Gosey was tardy on
both July 20 and August 17.
Gosey also pointed out that on eight of the other days she
supposedly was tardy, her Punch Detail History shows two
arrival times, one at or before her scheduled start time and the
other after. Aurora did not produce evidence that Gosey was
responsible for the second, later entry, and Gosey submitted an
affidavit attesting that it was impossible for her to “swipe in”
to the attendance system a second time. Moreover, Gosey
swore that she met Aurora’s attendance requirements even on
the days when she arrived a few minutes after her scheduled
start time. As proof she relied on the deposition testimony of
Debra Franckowiak, the hospital’s former chief officer of
clinical services, who testified that employees in the food-
services department were allowed a seven-minute informal
grace period at the beginning of a shift. That would mean that
on every day when Gosey purportedly was tardy except for
July 5, she actually was on time. (It is unclear why Gosey did
not dispute being tardy on July 5, since on that day she arrived
five minutes after her scheduled start time, well within the
No. 13-3375 7
grace period.) Aurora did not contradict Franckowiak’s
testimony; instead, it fell back on the employee handbook,
which defines “tardiness” to mean logging in to “the
attendance system after the employee’s scheduled start time.”
Aurora also attempted to support its motion for summary
judgment with evidence that Margaret Muske, the woman
hired for the job that Gosey wanted and who became her
supervisor, had not been told about Gosey’s administrative
charge of discrimination before Gosey was fired. Other
evidence showed, however, that Franckowiak and
Kellie Nelson, Aurora’s director of human resources, were both
involved in the termination decision and did know that Gosey
had submitted a charge of discrimination. All they were able
to say was that the administrative complaint did not influence
their decision.
The district court concluded that Gosey had shown a
material dispute about whether she arrived late on July 20 and
August 17, 2010, two of the four days that Aurora cited in
firing Gosey. But that dispute did not matter, the court
reasoned, because it thought that the uncontested evidence
revealed that Gosey had arrived late on four days: July 25, July
27, October 11, and October 15, 2010. Of those four dates,
Aurora had cited only October 11 in the electronic entry the
company made when it fired Gosey. (The district court’s order
does not say why July 5, the date Gosey did not dispute, was
not being counted against her as a tardy.) The court concluded
that Gosey had not rebutted Aurora’s proffered,
nondiscriminatory reason for discharging her: chronic
tardiness. It also agreed with Aurora that the evidence failed
to support a finding that Muske knew about Gosey’s
8 No. 13-3375
administrative complaint before deciding to let her go, and
thus that Gosey could not rely on the direct method of proof to
establish her claim of retaliation.
To avoid summary judgment, Gosey had to present
evidence showing that her discharge was motivated by her
race or was in retaliation for her administrative complaint.
See Hester v. Ind. State Dep’t of Health, 726 F.3d 942, 946–47 (7th
Cir. 2013), cert. denied, 2014 WL 801121 (2014); Coleman v.
Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring)
(“[T]he plaintiff one way or the other must present evidence
showing that … a rational jury could conclude that the
employer took that adverse action on account of her protected
class, not for any non-invidious reason.”). Taking the facts in
the light most favorable to Gosey, we conclude that she met
that burden. By introducing evidence that, if believed by the
trier of fact, would show that she was complying with
Aurora’s attendance requirements, Gosey also satisfied her
burden to present evidence that she was meeting Aurora’s
legitimate employment expectations, that she was similarly
situated to all other employees who arrived on time but were
not fired, and that Aurora’s supposed reason for firing her is
pretextual. See Burnell v. Gates Rubber Co., 647 F.3d 704, 708–09
(7th Cir. 2011); Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772,
784–85 (7th Cir. 2007). As Aurora appears to recognize, Gosey’s
claims of discriminatory and retaliatory discharge stand or fall
together under the indirect method.
Even if we assume that Gosey was late on July 5, Aurora’s
own evidence confirms that Gosey was early on July 20 and
August 17 and that on October 11 she arrived within the grace
period that a former management employee said that the
No. 13-3375 9
company recognized. On that assumption, a jury could
conclude that Gosey was on time three of the four days that
Aurora cited as its only basis for ending her employment. On
every day that the company says that Gosey was
tardy—including July 25, July 27, and October 15—the Punch
Detail History shows that she was on the job within the grace
period. We cannot, on review of a ruling on summary
judgment, assume unfavorably to Gosey that Franckowiak was
incorrect about the existence of an informal grace period. As
the record stands, Franckowiak’s testimony is undisputed by
the company, and even if there had been a dispute, the
resolution of the disagreement would be for the trier of fact.
We must also resolve in Gosey’s favor, for present purposes,
the dispute over the source of the dual arrival times in the
Punch Detail History. Gosey says that she did not make the
second, later entry; Aurora made no effort to establish that she
did, which raises the inference that the company manipulated
the entries.
Given the genuine issues of material fact surrounding
Gosey’s time records and Aurora’s attendance policy, the
district court erred in concluding that the reason for Gosey’s
discharge is beyond dispute. See Piraino v. Int’l Orientation Res.,
Inc., 84 F.3d 270, 275 (7th Cir. 1996); Sarsha v. Sears, Roebuck &
Co., 3 F.3d 1035, 1040 (7th Cir. 1993) (“When the existence of a
uniform policy or practice is in doubt, it cannot serve as a
reason for discharging [an employee].”). Aurora’s own
evidence, when viewed in the light most favorable to Gosey,
shows that she was late at most one time. A trier of fact could
thus find that the company’s explanation for firing Gosey was
not simply mistaken, but false. See U.S. EEOC v. Target Corp.,
10 No. 13-3375
460 F.3d 946, 960 (7th Cir. 2006) (to survive summary
judgment, “the plaintiff must present evidence that supports
an inference that the employer was intentionally dishonest
when it gave its nondiscriminatory reason for rejecting the
applicant”); Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 726
(7th Cir. 2005).
Accordingly, the order granting summary judgment on
Gosey’s claims of discriminatory and retaliatory discharge is
VACATED, and the case is REMANDED for further proceeding on
those claims. In all other respects, the judgment is AFFIRMED.