Marica Johnson v. Koppers, Inc. , 726 F.3d 910 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2561
MARICA R. JOHNSON,
Plaintiff-Appellant,
v.
KOPPERS, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10-cv-03404 — Joan Humphrey Lefkow, Judge.
ARGUED FEBRUARY 13, 2013 — DECIDED AUGUST 8, 2013
Before BAUER, SYKES, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Marica R. Johnson filed suit against
her former employer, Koppers Inc., alleging race and gender
discrimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e–2 et seq., and 42 U.S.C. § 1981.
Following discovery, the parties filed cross-motions for
summary judgment. The district court granted Koppers’
2 No. 12-2561
motion for summary judgement and denied Johnson’s. For the
following reasons, we affirm.
I. BACKGROUND
Koppers is a chemical company that manufactures carbon
compounds and commercial wood treatment products.
Johnson is an African-American woman who was employed at
Koppers’ plant in Stickney, Illinois, from 1995 until her
termination on May 12, 2008. At the time of her termination,
Johnson was employed as a laboratory technician, a position
she held since 2000.
Prior to the date of her dismissal, Johnson was disciplined
five times. In July 1999, Johnson was suspended without pay
for ten workdays after the plant manager found her asleep at
her desk in the laboratory. In August 2000, Johnson received a
written warning because she was observed smoking in the
lunch room. In December 2005, Johnson received another
written warning for not punching out on the time clock after
her work was finished.
More seriously, Johnson was disciplined in November 2006
for fighting with a security guard. Johnson had gone to the
guard shack to pick up food that she had ordered, but when
the guard told Johnson that she could not take the food, she
walked behind the guard’s counter, without authorization, and
grabbed it. The guard touched Johnson’s arm, and she pushed
him, telling him that he “better keep his hands off of her.”
Johnson also threatened the guard and said that she was going
to “bust his head.” Johnson testified that the guard subse-
quently picked up the telephone and said “[w]e’re going to get
to busting.” Johnson then threw the stapler she was holding
No. 12-2561 3
down towards the floor. The entire incident was recorded on
video.
The plant manager at the time investigated the incident and
interviewed Johnson. She was ultimately suspended for ten
days without pay and was warned that any future occurrences
would result in the termination of her employment. Johnson
admits that the discipline was justified.
More recently, in July 2007, Johnson was disciplined
following an altercation with co-worker Michael O’Connell, a
white male. This altercation took place while Johnson was
working in the laboratory with her radio playing. O’Connell
came into the lab, turned down the volume, and turned on the
air conditioner. Johnson testified that she then asked O’Connell
why he was “messing with her stuff when it wasn’t even his
shift yet.” According to Johnson, there was no further interac-
tion. O’Connell, however, later told the plant manager that
Johnson had threatened him and called him a colorful array of
racial and gender-based slurs.
Without interviewing Johnson, the plant manager deter-
mined that both O’Connell and Johnson were at fault and
decided that Johnson should be punished more severely
because of her prior disciplinary history and O’Connell’s
allegations of racial harassment. The plant manager issued a
written letter to Johnson, which stated in part:
In the past few weeks you have exhibited disruptive
behavior that has caused other employees to feel
uncomfortable and intimidated. Your actions con-
cern Koppers management especially since you have
exhibited a propensity towards physical
4 No. 12-2561
violence … Plant management has been notified by
union employees that you exhibited offensive and
intimidating language and behavior on a number of
recent occasions … This behavior will not be al-
lowed in the future and will result in discharge from
Koppers.
O’Connell received a less severe warning letter, which stated
in part,
Personality conflicts between lab techs has [sic]
resulted in a non-productive atmosphere in the lab.
Horse play, false accusation of others, verbal harass-
ment, and any other type of disruptive behavior
needs to stop immediately. This disruptive action
between you and other employees needs to stop
before it escalates into physical violence.
The United Steelworkers Union filed a grievance on
Johnson’s behalf because the plant manager did not interview
her before he issued Johnson a warning letter. Pursuant to the
agreement between the union and Koppers’ management,
Johnson’s warning was reduced to a memo that summarized
her work obligations and employment status.
The tension between Johnson and O’Connell came to a head
on April 28, 2008. The exact details of the altercation are
disputed by the parties. However, it is undisputed that
Johnson and O’Connell got into another heated argument that
morning. Later that afternoon, the shift supervisor called
Johnson into his office. As Johnson was entering the supervi-
sor’s office, O’Connell was exiting. According to Johnson, their
shoulders brushed, and O’Connell said excuse me. According
No. 12-2561 5
to O’Connell, who later filed a police report, Johnson pushed
him into a wall outside of the supervisor’s office.
The plant manager investigated O’Connell’s allegations. He
interviewed Johnson twice as well as O’Connell, the shift
supervisor, a janitor, and several other co-workers. The only
eye witness to the altercation was the janitor, who was em-
ployed by a third-party cleaning company. The janitor told the
plant manager that he saw Johnson deliberately push
O’Connell. The shift supervisor also stated that Johnson had
been “totally insubordinate” and was “out of control” on
April 28, and she should be terminated.
At the end of the investigation, the plant manager con-
verted Johnson’s suspension into a termination. He formally
terminated Johnson’s employment by letter on May 12, 2008.
The letter states that Koppers’ management spoke with
Johnson, O’Connell, and several other individuals regarding
the incident and that “[i]t appears to the Company, based on
those discussions, that you were, in fact, behaving in an
aggressive, hostile, and threatening manner on the afternoon
of April 28 and you did push Mr. O’Connell into the wall of the
tar foreman’s office as alleged.” The letter further states that
Johnson was terminated because, “since November 2006, [she
had] been trained, counseled, warned, and suspended as a
result of violations of the standards of conduct that Koppers
rightfully has of its employees.”
Ultimately, Johnson filed suit against Koppers alleging
discrimination on the basis of her race and gender in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2
et seq., and 42 U.S.C. § 1981. The case proceeded through
6 No. 12-2561
discovery, when Johnson and Koppers filed cross-motions for
summary judgment. Koppers argued that Johnson failed to
show discrimination based on the direct and indirect methods
of proof. Johnson argued she proved discrimination under the
direct method, using the “cat’s paw theory” of liability. On
April 16, 2012, the district court granted Koppers’ motion and
denied Johnson’s motion.
II. DISCUSSION
On appeal, Johnson argues that the district court erred in
granting summary judgment in favor of Koppers because
genuine issues of material fact remained as to whether Johnson
suffered discrimination, under both the direct and indirect
methods of proof. We review the district court’s granting of
summary judgement de novo, Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 653 (7th Cir. 2010), examining the record in the
light most favorable to Johnson and resolving all evidentiary
conflicts and reasonable inferences in her favor, Coleman v.
Donahoe, 667 F.3d 835, 842 (7th Cir. 2012). We address each of
Johnson’s arguments in turn.
A. Direct Discrimination
An employee alleging discrimination under Title VII or
§ 1981 may proceed under the direct method of proof if the
employee can demonstrate “either an acknowledgment of
discriminatory intent or circumstantial evidence that provides
the basis for an inference of intentional discrimination.” Overly
v. KeyBnak Nat. Ass’n, 662 F.3d 856, 865 (7th Cir. 2011). Having
no such evidence of bias by the plant manager who actually
terminated Johnson’s employment, Johnson asserts a cat’s paw
theory of liability. The cat’s paw theory applies in the employ-
No. 12-2561 7
ment discrimination context when “a biased subordinate who
lacks decision-making power uses the formal decision maker
‘as a dupe in a deliberate scheme to trigger a discriminatory
employment action.’”Smith v. Bray, 681 F.3d 888, 897 (7th Cir.
2012) (quoting EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476,
484 (10th Cir. 2006)). Thus, the cat’s paw theory requires both
evidence that the biased subordinate actually harbored
discriminatory animus against the victim of the subject
employment action, and evidence that the biased subordinate’s
scheme was the proximate cause of the adverse employment
action.
Johnson argues that her claim should succeed under the
cat’s paw theory because her co-worker, O’Connell, harbored
discriminatory animus against her race and gender. As
O’Connell had no power to terminate Johnson himself,
Johnson argues that O’Connell falsely reported that she called
him racial and gender-based slurs on one occasion and pushed
him following a separate verbal altercation, in order to induce
the plant manager to terminate Johnson’s employment at
Koppers.
On appeal, Johnson argues that the district court erred in
granting summary judgment to Koppers under her cat’s paw
theory because an evidentiary conflict exists. Johnson points to
the dispute regarding whether she actually called O’Connell
the derogatory terms, or whether O’Connell completely made
up the slurs when he reported the conduct to the plant man-
ager as part of a plot to get Johnson fired. Johnson argues that
this disputed fact is vital because if O’Connell falsely reported
that Johnson called him racial and gender-based slurs,
O’Connell’s selection of these terms evidences the fact that
8 No. 12-2561
O’Connell himself actually harbored racial and gender-bias
towards Johnson. In her brief, Johnson calls this a “classic
case of projection” and deems it “sufficient evidence of
discriminatory animus.” We disagree.
Even assuming O’Connell’s report was false, Johnson’s
theory of “projection” fails because it requires a speculative
inference as to O’Connell’s state of mind, which is unsup-
ported by any other evidence pointing to the existence of
discriminatory animus on O’Connell’s part. A false report by
O’Connell, standing alone, is insufficient to establish discrimi-
natory animus. While it is clear from the record that O’Connell
and Johnson did not like each other, Johnson has provided no
evidence to indicate that O’Connell’s animosity was motivated
by discriminatory bias against her race or gender, and we are
not required to draw inferences that, “are supported by only
speculation and conjecture.” See Cloe v. City of Indianapolis, 712
F.3d 1171, 1176 (7th Cir. 2013).
In order to succeed under the cat’s paw theory, Johnson
needs to show that O’Connell, motivated by discriminatory
animus, concocted a false story about Johnson, and that
O’Connell’s story was the proximate cause of Johnson’s
termination. See Jajeh v. Cook County, 678 F.3d 560, 572 (7th Cir.
2012). That simply is not the case here. The proximate cause of
Johnson’s termination was actually the April 2008 physical
altercation between Johnson and O’Connell that was witnessed
by an independent third party. During the plant manager’s
investigation, the third-party witness confirmed that Johnson
shoved O’Connell, and Johnson was subsequently fired.
Johnson has failed to put forth any evidence that O’Connell’s
No. 12-2561 9
actions were the proximate cause of her termination; thus,
her claim cannot succeed under the direct method.
B. Indirect Method
Next, Johnson argues that the district court erroneously
determined that Johnson failed to put forth evidence of
discrimination under the indirect method. Under the indirect
method, a plaintiff must establish a prima facie case of discrim-
ination with evidence that (1) she is a member of a protected
class; (2) she met her employer’s legitimate job expectations; (3)
she suffered an adverse employment action; (4) similarly-
situated employees outside of the protected class were treated
more favorably. Smiley v. Columbia College Chicago, 714 F.3d
998, 1002 (7th Cir. 2013). If she satisfies a prima facie case, the
burden shifts to her employer to identify a legitimate, non-
discriminatory reason for the termination. Id. If the employer
can make such a showing, the burden shifts back to the
plaintiff to show that the reason offered was pretextual. Id.Normally, we first determine whether a plaintiff has
established a prima facie case before putting the employer
through the burden of demonstrating a non-discriminatory
reason for a termination and engaging in the pretext analysis.
Everroad v. Scott Trucks Sys. Inc., 604 F.3d 471, 478 (7th Cir.
2010). In some cases, though, the issue of satisfactory perfor-
mance and the question of pretext overlap. When the employer
asserts as the nondiscriminatory reason for termination that the
employee was not meeting legitimate job expectations, the
credibility of the employer's assertion is at issue for both the
second element of the plaintiff's prima facie case and the pretext
analysis. Id.10 No. 12-2561
Here, neither side disputes that Johnson is a member of a
protected class and that she suffered an adverse employment
action. However, Johnson’s claim fails because she cannot
prove that she met Koppers’ legitimate job expectations, or that
Koppers’ non-discriminatory reason for termination was
pretextual. While Johnson correctly points out that there is
no evidence to suggest that she had not been adequately
performing her duties as a lab technician, her termination
stemmed from a specific incident of insubordination, not a
failure to perform her daily tasks. Johnson’s insubordina-
tion—pushing a co-coworker—clearly does not meet Koppers’
legitimate job expectations, even if she was an otherwise
satisfactory lab technician.
Johnson’s supervisor believed her behavior violated
Koppers’ written Code of Conduct and terminated Johnson on
that basis. Johnson, however, claims that because she never
admitted to shoving O’Connell during the April 2008 alterca-
tion that led to her termination, Koppers cannot use the
disputed incident as proof that Johnson failed to meet its
expectations. In support of this contention, she cites Everroad v.
Scott Trucks Sys. Inc., 604 F.3d 471, 478 (7th Cir. 2010), where
we held that the plaintiff failed to meet her employer’s legiti-
mate expectations because she admitted that she was insubordi-
nate. The relevant inquiry here, however, does not require an
admission of insubordination. Rather, we look to whether
Johnson’s supervisor “genuinely believed” she was insubordi-
nate. Id. If so, the reason for termination is not pretextual. See
id. n.2. That a jury might disagree with the supervisor’s
decision or even find that he erred in his assessment does not
render the termination decision discriminatory. Id.
No. 12-2561 11
In an effort to show that Koppers’ non-discriminatory
reason for terminating Johnson was pretextual, Johnson seems
to argue that her termination was not based upon her insubor-
dination but rather on a larger conspiracy within Koppers that
stemmed from a discriminatory animus against her race and
gender. In support of this theory, Johnson points out that
although both she and O’Connell were involved in the prior
July 2007 verbal altercation, O’Connell (a white male) was
disciplined less severely than Johnson. She argues that discrim-
ination can be inferred from Koppers’ disparate treatment of
these two similarly-situated employees. See Coleman v. Donahoe,
667 F.3d 835, 846–47 (7th. Cir. 2012). But O’Connell, unlike
Johnson, had not previously violated Koppers’ policy against
threatening misconduct, so he is not an appropriate compara-
tor. See Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 860 (7th
Cir. 2008) (employees were not similarly-situated because,
unlike the plaintiff, they did not previously engage in miscon-
duct).
Further, following the April 2008 incident, Johnson’s
manager conducted an investigation where he interviewed
multiple employees, including Johnson’s shift supervisor who
characterized her behavior as “totally insubordinate” and “out
of control.” Johnson’s termination letter noted that “this is not
the first instance of threatening, intimidating, disruptive, or
abusive behavior” during her employment at Koppers; and
further pointed out that since 2006 Johnson had been “trained,
counseled, warned, and suspended as a result of violations of
the standards of conduct that Koppers rightfully has of its
employees … and regrettably, those discussions and warnings
have not resulted in the required change” in Johnson’s behav-
12 No. 12-2561
ior, and accordingly terminated her employment. Because
there is no support for Johnson’s claim that her termination
resulted from anything other than her own insubordination,
we affirm summary judgment for Koppers under the indirect
method as well.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.