Nora Chaib v. Geo Group, Incorporated , 819 F.3d 337 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1614
NORA CHAIB,
Plaintiff-Appellant,
v.
THE GEO GROUP, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 13-cv-318 — Tanya Walton Pratt, Judge.
____________________
ARGUED JANUARY 12, 2016 — DECIDED APRIL 6, 2016
____________________
Before BAUER and HAMILTON, Circuit Judges, and
PETERSON, District Judge. ∗
PETERSON, District Judge. Nora Chaib worked for The GEO
Group, Inc., a private company that managed a correctional
facility for the State of Indiana. She was fired for “unbecoming
conduct” because she improperly extended her medical leave
∗ Of the Western District of Wisconsin, sitting by designation.
2 No. 15-1614
following a workplace injury. Chaib sued GEO Group under
Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, alleg-
ing discrimination on the basis of sex, race, and national
origin, and retaliation for her reports of workplace discrimi-
nation. Chaib also alleged, under Indiana law, that GEO
Group had retaliated against her for filing a workers’ compen-
sation claim.
The district court granted summary judgment in favor of
GEO Group, concluding that Chaib had failed to present evi-
dence of discrimination or retaliation sufficient to support a
reasonable jury verdict. We affirm.
BACKGROUND
GEO Group provides private correctional and detention
management services to government agencies. GEO Group
operated the Short Term Offender Program facility in Plain-
field, Indiana, where Chaib began working in August 2011,
first as a correctional officer and later as an Assistant Safety
Manager. Between October 2011 and February 2012, Chaib
filed multiple complaints of racism and harassment in the
workplace with GEO Group’s human resources department
and with her supervisor, Superintendent David Burch. Chaib
accused various co-workers of making racist comments and
insulting and mistreating her.
Chaib was injured at work on March 6, 2012, when a re-
motely operated metal gate struck her in the forehead. Chaib
complained of a headache, blurred vision, nausea, and dizzi-
ness with vomiting. Later that day, Chaib saw a doctor at GEO
Group’s workers’ compensation provider and then got a CAT
scan at a local hospital. She had suffered a concussion. She
was placed off work for the next day. Over the next few weeks,
No. 15-1614 3
Chaib visited the doctor at least four more times, complaining
of various symptoms and reporting that she felt no improve-
ment. The doctor assessed her each time, and each time he ex-
tended her physical restrictions and her time off work.
During those few weeks of doctor visits and extensions of
Chaib’s leave, GEO Group’s Director of Claims Management,
Cathy Chiarello, became suspicious that Chaib was malinger-
ing. She directed GEO Group’s workers’ compensation ad-
ministrator to surveil Chaib. Investigators videotaped Chaib
driving her car and running errands around town. GEO
Group sent the videos to a neurologist whom Chaib was
scheduled to visit, ahead of the appointment and without
Chaib’s knowledge. After the appointment, based on the vid-
eos and based on her examination of Chaib, the neurologist
opined to GEO Group that Chaib was not impaired and was
likely malingering. Chiarello sent the videos to employees in
GEO Group’s human resources department, who forwarded
them to Superintendent Burch.
Chaib returned to work after six weeks, on April 17, 2012.
The next day, Superintendent Burch confronted Chaib about
her activities, placed her on administrative leave, and recom-
mended that Chaib be fired for falsifying records related to
her workers’ compensation claim. GEO Group rejected that
recommendation. Burch revised the termination recommen-
dation to a more general charge of “unbecoming conduct”
based on the same underlying events. GEO Group accepted
the revised recommendation and, on June 14, 2012, fired
Chaib.
4 No. 15-1614
ANALYSIS
We review the district court’s grant of summary judgment
in favor of GEO Group de novo and construe the facts in the
light most favorable to Chaib as the non-moving party. Rahn
v. Bd. of Trs. of N. Ill. Univ., 803 F.3d 285, 287 (7th Cir. 2015).
Summary judgment is appropriate if there is no genuine dis-
pute of material fact and GEO Group is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a).
Before turning to the heart of Chaib’s argument, we ad-
dress her contention that the district court erred by not requir-
ing GEO Group, as the moving party, to present the facts in
the light most favorable to Chaib. Chaib has confused the ob-
ligation of the moving party with that of the court. The court,
of course, must view the record in the light most favorable to
the non-moving party and give the benefit of reasonable in-
ferences to the non-moving party. See, e.g., O’Leary v. Accretive
Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). Counsel prepar-
ing an effective motion for summary judgment will bear this
principle in mind, of course. Misrepresenting the record or ig-
noring evidence favorable to the opponent to claim a fact is
undisputed can quickly undermine the persuasive force of a
motion. See Malin v. Hospira, Inc., 762 F.3d 552, 564–65 (7th Cir.
2014). But the idea that a district court would deny an other-
wise well-founded motion for summary judgment because
the moving party did not present the facts in a manner favor-
able to the opposition would be unworkable and waste a great
deal of time and money. Neither the local rules of the South-
ern District of Indiana nor our precedents require the district
court to take such action.
Chaib also appeals the order overruling her objections to
the protective order, which accorded “confidential” status to
No. 15-1614 5
the GEO Group staffing plans for the Plainfield facility. The
district court overruled Chaib’s objections to the protective or-
der as moot when it granted GEO Group’s motion for sum-
mary judgment and dismissed Chaib’s case. Chaib’s argu-
ments on appeal are conclusory and underdeveloped, and she
fails to show any error by the district court. In light of our de-
termination that Chaib was terminated for non-discrimina-
tory reasons related to her own conduct, the staffing levels at
Plainfield are immaterial and any dispute about those levels
was indeed moot.
We turn now to the main issue on appeal: Chaib’s discrim-
ination claim. Chaib alleged discrimination based on her sex,
race, and national origin. In the district court, the parties dis-
puted whether Chaib was entitled to bring a claim of race dis-
crimination. But we need not reach that issue on appeal be-
cause we conclude that Chaib has failed to adduce evidence
of discrimination on any basis. Chaib has abandoned her re-
taliation claims on appeal, 1 so the question before us is
whether Chaib has adduced evidence sufficient to prove that
GEO Group discriminated against her.
To prevail, Chaib must show that a reasonable jury could
find that GEO Group unlawfully discriminated against her.
Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 790 (7th
Cir. 2015). The direct method and the indirect method offer
two common approaches. Tank v. T-Mobile USA, Inc., 758 F.3d
1 Chaib does not address her retaliation claims in her briefing. We will
consider them waived. United States v. Holm, 326 F.3d 872, 877 (7th Cir.
2003) (“[P]erfunctory and undeveloped arguments, and arguments that
are unsupported by pertinent authority, are waived.” (citation and inter-
nal quotation marks omitted)). Had Chaib articulated her retaliation
claims, our analysis and the result of this case would be the same.
6 No. 15-1614
800, 805 (7th Cir. 2014). Under the direct method, Chaib may
present either direct or circumstantial evidence of discrimina-
tion. Id. Under the indirect method, Chaib would use the bur-
den-shifting framework articulated in McDonnell Douglas Cor-
poration v. Green, 411 U.S. 792, 802 (1973).
Chaib attempted to use both methods: she argues that she
presented sufficient circumstantial evidence under the direct
method, and she invoked the burden-shifting framework. But
because Chaib cannot show that her termination was moti-
vated by discriminatory animus under either approach, GEO
Group is entitled to judgment as a matter of law. Id. at 789
(“Summary judgment may be appropriate if the plaintiff fails
to produce evidence of a motive or intent that would support
[her] position.” (citation and internal quotation marks omit-
ted)).
A. Chaib’s showing under the direct method
Chaib does not offer any direct evidence that GEO Group
admitted to discriminating against her. For circumstantial ev-
idence of discrimination, Chaib relies exclusively on the inci-
dents that took place between October 2011 and February
2012, in which she accused co-workers of making racist com-
ments to her and harassing her. For Chaib to prevail, these
incidents must paint a “convincing mosaic of circumstantial
evidence” sufficient to permit a jury to infer that discrimina-
tion motivated her termination. Anderson v. Donahoe, 699 F.3d
989, 996 (7th Cir. 2012). Chaib focuses particularly on the con-
duct of Lieutenant Davis (whom Chaib accuses of numerous
threatening, harassing, and racist actions) and the posting of
a racially offensive comment on her workplace computer
(which Chaib contends GEO Group did not adequately inves-
tigate).
No. 15-1614 7
But even assuming that these disturbing incidents hap-
pened exactly as Chaib alleges, they were unrelated to the
events and investigation that led to GEO Group’s decision to
fire Chaib. Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762
(7th Cir. 2001) (“[E]vidence of inappropriate remarks not
shown to be directly related to the employment decision may
not support a direct-method-of-proof case.”). There is no evi-
dence that Lieutenant Davis participated in GEO Group’s de-
cision to fire Chaib. Without some connection between the of-
fensive conduct that Chaib described and the termination de-
cision, no reasonable jury could make the requisite inference
that she was fired for discriminatory reasons. Chaib’s direct-
method argument fails.
B. Chaib’s showing under the indirect method
To prove discrimination under the indirect method, Chaib
must make a prima facie case with evidence that: (1) she is a
member of a protected class; (2) she met GEO Group’s legiti-
mate job expectations; (3) she suffered an adverse employ-
ment action; and (4) similarly situated employees outside of
the protected class were treated more favorably. Perez v.
Thorntons, Inc., 731 F.3d 699, 704 (7th Cir. 2013). If Chaib can
establish a prima facie case, then the burden shifts to GEO
Group to give a legitimate, nondiscriminatory reason for fir-
ing her. Id. If GEO Group does so, then the burden shifts back
to Chaib to offer evidence that GEO Group’s reason is mere
pretext for unlawful discrimination. Id.
Chaib cannot make a prima facie case of discrimination.
Even if she were within a protected class, and assuming that
termination is an adverse employment action, Chaib fails to
satisfy the remaining two requirements. First, she cannot
8 No. 15-1614
show that she was meeting GEO Group’s legitimate job ex-
pectations because her undisputed conduct was inconsistent
with her statements about the extent of her post-injury im-
pairments, which GEO Group determined was “unbecoming
conduct” under its employee conduct standards. Second,
Chaib has tried, but failed to identify any other employees
who were fairly comparable and were treated more favorably
than she was. Therefore, she fails to make a prima facie case
of discrimination.
But even if Chaib could make out a prima facie case, she
cannot show that GEO Group’s stated reason for firing her—
unbecoming conduct—was a pretext for unlawful discrimina-
tion. Hudson v. Chi. Transit Auth., 375 F.3d 552, 561 (7th Cir.
2004) (“Pretext is more than a mistake on the part of the em-
ployer; it is a phony excuse.”). The information that GEO
Group collected supported its conclusion that Chaib was ex-
aggerating her impairment, conduct that GEO Group reason-
ably categorized as “unbecoming” and a sufficient basis for
termination. Chaib has adduced no evidence to suggest that
GEO Group did not sincerely believe that Chaib had exagger-
ated her impairment and had taken advantage of her workers'
compensation claim. Nor has she adduced evidence to sug-
gest that GEO Group did not fire her based on its sincerely
held belief.
Chaib does not dispute that she was driving and running
errands as captured on video, while claiming to be incapable
of “normal activity including minimal exertion.” She does not
dispute that the neurologist who examined her opined to
GEO Group that Chaib was malingering. She does not allege
that any of the people who made the decision to fire her har-
bored bias against her. Instead, she argues that the district
No. 15-1614 9
court overlooked the significance of her previous complaints
of racism in the workplace. But the employees involved in
those incidents were not the people who made the decision to
fire her, nor were they involved in GEO Group’s investigation
leading up to the termination decision.
Because Chaib has not presented sufficient evidence for a
reasonable jury to find that GEO Group terminated Chaib for
discriminatory reasons, GEO Group is entitled to judgment as
a matter of law. The district court correctly granted summary
judgment, and its decision is AFFIRMED.