James Patterson v. Indiana Newspapers, Incorporat ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2050
JAMES P ATTERSON and L ISA M. C OFFEY,
Plaintiffs-Appellants,
v.
INDIANA N EWSPAPERS, INCORPORATED ,
an Indiana corporation, publisher of
The Indianapolis Star, owned by
Gannett Co., Inc., a foreign corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 05 CV 881—Larry J. McKinney, Judge.
A RGUED D ECEMBER 2, 2008—D ECIDED D ECEMBER 8, 2009
Before C UDAHY, F LAUM, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Lisa Coffey and James Patterson
are former editorial writers at The Indianapolis Star who
left the newspaper in 2003 and 2005, respectively. They
departed under very different circumstances, but both
2 No. 08-2050
claim they were victims of employment discrimination on
the basis of their religion—more specifically, discrimina-
tion because they are Christians who believe that homo-
sexual conduct is sinful. Patterson also claims the Star
discriminated against him because of his race (African-
American) and age (he was 51 when he was fired), and
retaliated against him for filing a complaint with the
Equal Employment Opportunity Commission (“EEOC”).
Finally, both plaintiffs assert a state-law claim for
negligent infliction of emotional distress. The district
court entered summary judgment for the Star on all
claims, and Coffey and Patterson appealed. We affirm.
I. Background
We begin with two of the district court’s procedural
rulings, both of which affect the proper scope of this
appeal. The district judge determined that Coffey and
Patterson had failed to comply with Local Rule 56.1(b),
which requires a party opposing a motion for summary
judgment to identify the material facts in dispute and cite
to admissible evidence controverting the moving party’s
evidence. The judge also noted that much of their
factual submission was argumentative. Because of this
noncompliance with the local rules, the judge enforced
Local Rule 56.1(e) and for the most part accepted
the Star’s factual assertions as undisputed. We have
repeatedly held that the district court is within its dis-
cretion to strictly enforce compliance with its local rules
regarding summary-judgment motions, Fed. Trade Comm’n
v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir.
2005), so we likewise accept the Star’s version of the
No. 08-2050 3
facts. The district court also disregarded affidavits sub-
mitted by Coffey and Patterson because they “directly
contradict[ed]” their deposition testimony. This, too,
was appropriate. See Beckel v. Wal-Mart Assocs., Inc., 301
F.3d 621, 623-24 (7th Cir. 2002). Accordingly, we take
the following facts from the Star’s summary-judgment
submission.
A. The Indianapolis Star
The Indianapolis Star is Indiana’s largest newspaper and
was acquired in 2000 by media giant Gannett. Barbara
Henry serves as the Star’s president and publisher, which
puts her in charge of directing the newspaper’s overall
operation. In 2003 the Star named Dennis Ryerson as
editor and vice president. In that capacity he is
responsible for newsroom staffing and the content of
news articles and editorials. Andrea Neal served as the
Star’s editorial-page editor until the summer of 2003,
when she left the newspaper to become a teacher; she
was replaced by Tim Swarens. The editorial-page
editor reports to the editor and directs the content of the
newspaper’s editorials and the columns on its opinion
pages. Generally speaking, opinion columns represent
the viewpoint of the author; editorials are unsigned
and represent the editorial position of the newspaper.
B. Lisa Coffey’s Tenure at the Star
Coffey joined the Star in 1999. In the beginning she spent
three days a week working as a copy editor and two
4 No. 08-2050
days a week performing administrative duties for
a journalism-intern program. Although she “enjoyed
working on the metro desk,” she made no secret that
she wanted to move to the editorial department. Her
efforts paid off in 2002 when the Star exchanged her copy-
editor responsibilities for an editorial-writer position.
As an editorial writer, Coffey reported to the editorial-
page editor and was responsible for writing editorials
and columns for the Star’s opinion page. She still spent
two days a week administering the Star’s intern program,
however.
Coffey describes herself as a “traditional Christian”
who believes homosexual conduct is sinful. In July 2003,
in response to the Supreme Court’s decision in Lawrence
v. Texas, 539 U.S. 558 (2003), Coffey wrote an opinion
column describing the HIV risks associated with sodomy.
Neal approved the article, but Ryerson decided it was
unsuitable for publication because it provided a too-
graphic description of anal intercourse. He told Neal,
however, that he was open to publishing a less-graphic
column on the risks of unprotected sex.
The day after Ryerson rejected Coffey’s column, a
member of the Christian Student Foundation emailed
Ryerson expressing his opinion against same-sex mar-
riage. Ryerson sent a responsive email asking if the
Star could consider the student’s letter for publication;
Ryerson copied Coffey on this reply. The electronic cor-
respondence between Ryerson and the student—by
all accounts unrelated to Ryerson’s refusal to publish
Coffey’s column—triggered an email exchange between
No. 08-2050 5
Coffey and Ryerson about the relationship between
objective truth and opinion. Coffey emailed Ryerson
stating that she knew both were “seeking truth” even
though they held “certain beliefs that are 180 degrees
apart.” She apologized for being angry with Ryerson
(presumably over the rejected column) and invited him
to lunch. Ryerson wrote back thanking Coffey, offering
to discuss the issue over lunch, and explaining that he
did not necessarily believe there is “one truth” and that
editorials express “opinion” and not “truth.” About an
hour later, Coffey replied with a lengthy email describing
her religious views. She explained that she had been
“knocked out by the Holy Spirit” and said that if
Ryerson’s perspective was correct, he should “call the
nut farm now to haul [her] away.” Ryerson perceived
Coffey’s email as an attempt at workplace proselytization
in violation of company policy. Concerned that Coffey
might have sent similar emails to other employees of
the newspaper, Ryerson wrote back telling Coffey that
it was inappropriate to proselytize at work.
Before and after these events, management at the Star
became aware that Coffey had developed a habit of
violating the newspaper’s overtime policy. The Star
required employees to seek preapproval before working
any overtime, but Coffey would regularly submit requests
for payment for overtime work that had not been
preapproved. The issue came to a head in August 2003
when Coffey asked to meet with Ali Zoibi, the Star’s vice
president of human resources. Coffey requested the
meeting to discuss the overtime issue and her pension.
Regarding the latter, Coffey claimed that her Star pension
6 No. 08-2050
account did not reflect extra compensation she had been
paid by the sponsor of the internship program Coffey
helped manage. The Star ended up paying Coffey’s
pension account an additional $5,500 to reflect the
outside compensation. Zoibi took the opportunity, how-
ever, to remind Coffey about the importance of
following the company’s overtime policy.
Coffey disregarded this warning and continued to
work overtime without seeking prior approval. Her
supervisors considered the extra work to be both exces-
sive and unnecessary. For example, she submitted a
request for 50 hours of unapproved overtime work she
had performed preparing binders on candidates for
election. Coffey had produced far more information than
Swarens thought was necessary, and he never would
have authorized the request had it been submitted for
preapproval because it came close to consuming the
entire annual overtime budget for the editorial depart-
ment. Zoibi and Henry met and agreed that Coffey
needed to be supervised more closely to ensure she
did not work unauthorized overtime.
In the meantime, in September 2003 Ryerson decided to
adjust Coffey’s role at the Star. Because the aspiring
journalists in the newspaper’s internship program
had more regular contact with newsroom reporting
staff than with editorial writers, Ryerson believed the
administrative oversight for the program should be
shifted from the editorial department to the newsroom.
This reorganization left Coffey with only three days of
work per week as an editorial writer. Ryerson offered
No. 08-2050 7
Coffey a full-time job back on the copy desk. In addition
to providing her with a full-time position, the copy-desk
job would permit the newspaper to more closely
supervise Coffey’s work to ensure she did not violate the
company’s overtime policy. Coffey preferred editorial
writing and asked if she could divide her week by
working three days as an editorial writer and two days
as a copy editor. Ryerson rejected this request as a matter
of policy; he believed the news and editorial operations
at the newspaper needed to remain separate.
Rather than take the full-time copy-desk job, Coffey
resigned. On her last day at the Star in October 2003,
Coffey sent an email to Henry thanking her for “the
privilege of working here at T HE S TAR. I have enjoyed
and appreciated it more than I can say.”
C. James Patterson’s Tenure at the Star
Patterson joined the Star as an editorial writer in 1995.
He is African-American and like Coffey describes
himself as a “traditional Christian” who considers homo-
sexual conduct to be sinful. Before Ryerson became the
Star’s editor in 2003, Patterson had a mixed employment
history at the newspaper. Although he received various
awards and had generally acceptable performance
reviews, there were recurring problems with his writing.
Patterson required more editing than any other editorial
writer on the Star’s staff, and his work also suffered
from research and organizational problems. The news-
paper hired a writing consultant to review Patterson’s
8 No. 08-2050
editorials and columns; the consultant confirmed the
deficiencies in Patterson’s work.
In 2003, after the start of the Iraq war, Patterson sub-
mitted an editorial asking the newspaper’s readers to
pray for American troops. Neal revised the editorial
slightly and added a prayer at the end, and the editorial
ran in the newspaper on March 20, 2003. After its pub-
lication, however, Ryerson—who had just joined the
Star—told Neal that he was uncomfortable with an edito-
rial telling readers to engage in religious practices.
Patterson claims that after this point if he submitted any
religious-based opinion pieces that differed from
Ryerson’s viewpoint, the articles would not be published,
although he does not say how often this occurred.
Swarens replaced Neal as editorial-page editor in
August 2003, becoming Patterson’s immediate super-
visor. He immediately noted the frequent and substantial
problems with Patterson’s writing. First, Patterson’s pieces
required more editing than any other editorial writer’s.
Swarens also noticed regular errors in Patterson’s work
ranging from misspellings to more serious reporting
mistakes. For example, Patterson wrote an editorial
endorsing City-County Council candidate “Vernon Smith,”
but the candidate’s name was Vernon Brown. He wrote
an editorial recalling President John F. Kennedy’s assassi-
nation 30 years earlier, but the assassination was 40 years
earlier. He wrote an editorial in February 2004 stating
that Governor O’Bannon had accepted the resignation
of the state commissioner of motor vehicles; in fact,
Governor O’Bannon had died five months earlier and
the commissioner in question had not resigned.
No. 08-2050 9
While many of Patterson’s mistakes were caught in the
editing process, some made it into the newspaper and the
Star had to print corrections. For example, on May 21, 2004,
the Star published an editorial Patterson had written
criticizing the sufficiency of the Indianapolis Humane
Society’s financial disclosures. In fact, the Humane Soci-
ety’s annual report contained extensive and detailed
information about the Society’s financial status, and the
Star had to print a retraction. When confronted about the
problems with his work, Patterson generally refused to
take responsibility for his mistakes. He minimized their
significance or claimed that the errors were caused by
the pressures of additional work Swarens had assigned
to him.
Although the parties disagreed about the severity of
and reasons for Patterson’s writing and reporting errors,
by July 2004 Swarens had concluded that the recurring
nature of the problem warranted placing Patterson on a
Performance Improvement Plan. Under a Performance
Improvement Plan, an employee is given a plan for im-
provement and placed on a warning system. An early
failure to improve will receive a written warning. If
improvement is shown, the employee will be kept at this
first level of the performance plan; if improvement is not
shown, however, a final written warning will be issued. If
the employee’s performance does not meet the expecta-
tions of the plan after this final written warning, the
employee is terminated. Patterson believed the Star’s
decision to place him on a Performance Improve-
ment Plan was motivated by an illegal discriminatory
10 No. 08-2050
purpose; in August 2004 he filed an EEOC charge that
the EEOC dismissed in March 2005.
The Star gave Patterson approximately ten months to
meet the goals of the improvement plan. Patterson
did not, however, reduce his writing errors and reporting
mistakes to the Star’s satisfaction. Between July and
November 2004, Swarens kept Patterson at the written-
warning level of the improvement plan. But in
November and December 2004, Patterson’s performance
deteriorated dramatically. Two of his editorials were
laden with serious errors and required printed retrac-
tions. One piece incorrectly reported that a proposed bond
issue would cause a property-tax increase. The other
erroneous article was an even greater cause for concern.
Patterson wrote an editorial endorsing AirTran’s bid for
ATA Airlines without bothering to contact Southwest
Airlines, the competing bidder. Swarens viewed this as a
serious violation of basic reporting standards as well as a
lapse in editorial judgment. The editorial resulted in
dozens of reader complaints and forced top Star officials
to meet with Southwest’s CEO to personally apologize
for Patterson’s reporting mistakes.
Based on these errors, in December 2004 the Star esca-
lated Patterson to final-written-warning status. Patterson’s
performance remained poor, however; he continued to
submit editorials with misspelled names and incorrect
dates. In light of these continuing errors and based on
Swarens’s recommendation, on May 3, 2005, the Star
fired Patterson. At the time of his termination, Patterson
was 51 years old.
No. 08-2050 11
D. Proceedings in the District Court
Coffey and Patterson sued Indiana Newspapers, Inc.,
the publisher of the Star, alleging various forms of dis-
crimination. Both brought claims alleging religious dis-
crimination in violation of Title VII of the Civil Rights
Act of 1964. See 42 U.S.C. § 2000e-2(a)(1). In addition,
Patterson alleged that the Star discriminated against
him on the basis of race in violation of Title VII and
claimed the newspaper retaliated against him after he
filed his discrimination complaint with the EEOC.
Patterson also brought an age-discrimination claim
under the Age Discrimination in Employment Act
(“ADEA”). See 29 U.S.C. § 623(a)(1). Finally, both plain-
tiffs asserted a state-law claim for negligent infliction of
emotional distress.
The Star moved for summary judgment on all claims.
As we have noted, the district court disregarded much
of the plaintiffs’ submission in response and accepted
the Star’s factual assertions as largely undisputed. The
court then concluded that neither plaintiff had estab-
lished a prima facie case of discrimination under any
theory and in the alternative held there was no evidence
that the Star’s employment actions against Coffey or
Patterson were pretext for discrimination. The court
also rejected Patterson’s retaliation claim. Finally, the
court held that there was no evidence to support the
plaintiffs’ claims for negligent infliction of emotional
distress. Accordingly, the court entered summary judg-
ment in favor of the Star. This appeal followed.
12 No. 08-2050
II. Discussion
We review a district court’s grant of summary judgment
de novo. Hall v. Nalco Co., 534 F.3d 644, 646 (7th Cir. 2008).
Summary judgment is appropriate when “the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment
as a matter of law.” FED. R. C IV. P. 56(c).
Although Coffey and Patterson left the Star nearly 18
months apart and under very different circumstances,
their religious-discrimination claims overlap. Both plain-
tiffs contend that the Star engaged in systematic discrimi-
nation against “traditional Christians” who hold the
religious belief that homosexual conduct is sinful. More
specifically, Coffey and Patterson maintain that the Star’s
top editors—in particular, Ryerson—opposed public or
workplace expressions of religion and discriminated
against those who were opposed to homosexual conduct
as a matter of their religion. The plaintiffs claim that
after Ryerson became editor, the Star published “hordes
of news articles” designed to portray homosexuality in a
positive light, “softened” its editorial opposition to same-
sex marriage, promoted employees who were homo-
sexuals or “homosexual sympathizers,” sought to purge
the news and editorial operations of the paper of “tradi-
tional Christians,” and otherwise exhibited animus
toward Christians who opposed homosexual conduct.
Unsurprisingly, the Star disagrees. The newspaper notes
that its top managers are Christians, and numerous Star
employees—including at least three members of the
No. 08-2050 13
editorial department where Coffey and Patterson
worked—share the plaintiffs’ religiously motivated
opposition to homosexual conduct. The Star points out
that it has consistently editorialized against same-sex
marriage and also has opposed the “ACLU’s attempt
to ban Christian prayers in state legislative sessions.”
The Star draws our attention to its front-page name-
plate, which prominently features a Bible verse. Finally,
the Star says that its supposedly favorable portrayal of
homosexuality in its news columns amounts to nothing
more than coverage of topics that are of increasing
public interest.
There is no need to resolve these starkly conflicting
descriptions of the atmosphere at the Star. For reasons
we will explain, neither plaintiff has established a prima
facie case of employment discrimination on any
ground. Patterson’s retaliation claim is also woefully
insufficient. Finally, there is no evidence to support the
plaintiffs’ state-law tort claim for negligent infliction
of emotional distress.
A. Discrimination Claims
Coffey and Patterson each claim that the Star discrimi-
nated against them on the basis of religion in violation
of Title VII; Patterson also claims that the Star discrimi-
nated against him on the basis of his race and age in
violation of Title VII and the ADEA. See 42 U.S.C. § 2000e-
2(a)(1); 29 U.S.C. § 623(a)(1). They rely solely on the
indirect burden-shifting method of proof established in
14 No. 08-2050
McDonnell-Douglas v. Green, 411 U.S. 792, 802-04 (1973).
Under this framework Coffey and Patterson must make
a prima facie case of discrimination by showing that they
(1) belong to a protected class; (2) performed their job
according to the Star’s legitimate performance expecta-
tions; (3) suffered an adverse employment action; and
(4) were treated less favorably compared to similarly
situated employees outside of the protected class. See
Tyson v. Gannett Co., 538 F.3d 781, 783 (7th Cir. 2008). If the
plaintiffs establish a prima facie case, then the burden
shifts to the Star to set forth a legitimate, nondiscrimina-
tory reason for its employment decisions. Nichols v. S. Ill.
Univ.-Edwardsville, 510 F.3d 772, 784-85 (7th Cir. 2007). If
the Star makes that showing, the burden shifts back to
Coffey and Patterson to explain why the Star’s proffered
justification is pretext for discrimination. Amrhein v.
Health Care Serv. Corp., 546 F.3d 854, 859-60 (7th Cir. 2008).
1. Coffey’s Religious-discrimination Claim
As we have noted, Coffey characterizes herself as a
“traditional Christian” who believes homosexuality is
sinful. She claims it was this particular religious belief—
not her Christianity in general—that triggered the Star’s
disparate treatment of her. We have previously held that
a plaintiff may proceed on a claim that “her super-
visors, though also Christian, did not like her brand of
Christianity” because “[t]he issue is whether the plain-
tiff’s specific religious beliefs were a ground for” an
adverse employment action. Grossman v. S. Shore Pub. Sch.
No. 08-2050 15
Dist., 507 F.3d 1097, 1098 (7th Cir. 2007). Accordingly,
Coffey has established the first element of her prima
facie case.
She has also established the third element. We accept
that her transfer from editorial writing back to copy
editing qualifies as an adverse employment action. We
have said that a “ ‘dramatic downward shift in skill level
required to perform job responsibilities can rise to the
level of an adverse employment action.’ ” Smart v. Ball
State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (quoting Dahm
v. Flynn, 60 F.3d 253, 257 (7th Cir. 1994)). The Star
suggests that because the transfer would not have
reduced her salary or benefits, Coffey suffered no
adverse employment action. But editorial writing is
more important than copy editing in the hierarchy of a
newspaper, so Coffey’s transfer was plainly a demotion
even if the salary and benefits were the same.
Coffey runs into trouble, however, on the second and
fourth elements of her prima facie case. She cannot
show that she met the Star’s legitimate performance
expectations or that a similarly situated employee
who did not share her religious beliefs was treated more
favorably. The evidence is undisputed that Coffey repeat-
edly violated the newspaper’s overtime policy, and the
Star’s decision to transfer her from editorial writing to
copy editing was based in part on the newspaper’s
desire to monitor her more closely (the decision was
also prompted by the reallocation of the administrative
oversight of the intern program, leaving her with just
three days per week as an editorial writer). Coffey
16 No. 08-2050
argues at length that Ryerson transferred her because
he objected to her religious perspective on homo-
sexuality, not because she violated the company’s
overtime policy. This is essentially a pretext argument,
and most of it is premised upon factual assertions that we,
like the district court, have disregarded because of the
plaintiffs’ violation of the local rules and submission
of affidavits that contradict their deposition testimony.
To the extent, however, that Coffey is claiming that
Ryerson would have permitted someone who did not
share her religious views to remain in the editorial depart-
ment notwithstanding repeated violations of company
rules, the argument is folded into the fourth element of
her prima facie case. Coffey’s claim founders there as
well. Even assuming that Coffey was meeting the Star’s
legitimate performance expectations, she has failed to
establish that the Star treated any similarly situated
employees more favorably. We have said in this
context that similarly situated employees must be
“directly comparable” to the plaintiff “in all material
respects,” Raymond v. Ameritech Corp., 442 F.3d 600, 610-11
(7th Cir. 2006), which includes showing that coworkers
engaged in comparable rule or policy violations, see, e.g.,
Jordan v. City of Gary, Ind., 396 F.3d 825, 834 (7th Cir.
2005). This means that Coffey must identify a
comparison employee who held the same job (editorial
writer), engaged in the same or comparable misconduct
(repeated violations of overtime policy), did not hold her
religious beliefs (that homosexual conduct is sinful), and
was treated more favorably.
No. 08-2050 17
Coffey identifies three employees—Swarens, Beth
Murphy, and Jane Lichtenberg—that she claims were
similarly situated but treated more favorably. We note
first that Swarens was Coffey’s supervisor and so cannot
be used for comparison purposes; we have previously
held that “ordinarily, it will not be the case that a plain-
tiff is similarly situated to another employee when the
plaintiff is subordinate to that employee,” Burks v. Wis.
Dep’t of Transp., 464 F.3d 744, 751 (7th Cir. 2006), and
Coffey has given us no reason to believe this is an extraor-
dinary case. Although Lichtenberg and Murphy, like
Coffey, worked under Swarens in the editorial depart-
ment, they were copy editors, which Coffey vigorously
argues (and we have accepted) is significantly different
from the position of editorial writer. But most
importantly, there is absolutely nothing in the record to
suggest that any of these employees violated the Star’s
overtime policy—at all, much less repeatedly. See, e.g., id.(holding that a coworker cannot be similarly situated if
they do not commit comparable policy violations). Ac-
cordingly, Coffey has failed to establish her prima facie
case.
We note for completeness that to the extent Coffey’s
Title VII claim is based on an allegation that she was
constructively discharged, it is exceedingly weak.
Constructive-discharge Title VII claims require proof
that the employer’s discriminatory conduct forced the
plaintiff “ ‘to resign because her working conditions, from
the standpoint of a reasonable employee, had become
unbearable.’ ” Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th
Cir. 2008) (quoting EEOC v. Univ. of Chi. Hosps., 276
18 No. 08-2050
F.3d 326, 331, (7th Cir. 2002)); see also Taylor v. W. & S. Life
Ins. Co., 966 F.2d 1188 (7th Cir. 1992) (recognizing that a
jury could find constructive discharge where plaintiffs’
boss constantly made racist comments, brandished a
pistol, and held it to one plaintiff’s head).
It is entirely implausible to suggest that a transfer from
editorial writing to copy editing was enough to make
Coffey’s working conditions “unbearable.” Moreover, the
evidence that Ryerson refused to publish her editorial
on the HIV risks of sodomy and then told her not to
proselytize at work hardly establishes that the Star sub-
jected her to an intolerably discriminatory workplace. We
also note that on her final day of work, Coffey emailed
Henry to “thank [her] sincerely” for “the privilege of
working” for the Star and added that she “enjoyed and
appreciate it more than I can say.” This is not the state-
ment of an employee who thinks her workplace is unbear-
able. The district court properly dismissed Coffey’s
religious-discrimination claim.
2. Patterson’s Religious-, Racial-, and Age-discrimina-
tion Claims
Patterson claims his dismissal from the Star was moti-
vated by discrimination based on his religion, race, and
age. Like Coffey, Patterson has established the first and
third elements of his prima facie case. He is a member of
three protected classes for purposes of these claims: He
is African-American, he was 51-years old when fired, and
he describes himself as a “traditional Christian” who is
opposed to homosexual conduct as a matter of his
No. 08-2050 19
religious belief. And Patterson suffered an adverse em-
ployment action when the Star fired him.
The basic problem with all of Patterson’s discrimination
claims is that he cannot show he was meeting the Star’s
legitimate performance expectations. The undisputed
evidence establishes that Patterson had a long history of
performance problems ranging from reporting errors to
writing deficiencies. Patterson’s poor performance con-
tinued after the Star placed him on a Performance Im-
provement Plan. We need not belabor this point; it goes
without saying that factual accuracy, adequate reporting,
and clean writing are legitimate performance expectations
at a newspaper. Patterson claims that Swarens worked
him harder than the other editorial writers and that other
writers made more errors than he did, but there is no
evidentiary support for these contentions.
Patterson’s retaliation claim suffers from the same
fundamental deficiency. Title VII prohibits employers
from retaliating against employees for exercising their
rights under the antidiscrimination statutes. See 42 U.S.C.
§ 2000e-3(a). As with his discrimination claims, Patterson
proceeds on his retaliation claim under the indirect
method of proof, which requires a showing that he
(1) engaged in statutorily protected activity; (2) met the
Star’s legitimate performance expectations; (3) suffered
an adverse employment action; and (4) was treated less
favorably than similarly situated employees. Moser v. Ind.
Dep’t of Corr., 406 F.3d 895, 903 (7th Cir. 2005). Because
the undisputed evidence establishes that Patterson
was not meeting the Star’s legitimate performance ex-
20 No. 08-2050
pectations, he cannot establish a prima facie case of
retaliation. Patterson’s Title VII claims were properly
dismissed.
B. Negligent Infliction of Emotional Distress
Finally, the plaintiffs brought state-law claims for
negligent infliction of emotional distress. Under
Indiana law a party may pursue a claim for emotional
distress under either the “modified impact” rule or the
“bystander” rule. See Atl. Coast Airlines v. Cook, 857
N.E.2d 989, 998 (Ind. 2006). The plaintiffs do not come
within Indiana’s “bystander rule,” which provides a
cause of action for a person who witnesses the death or
severe injury of a loved one. See Groves v. Taylor, 729
N.E.2d 569, 573 (Ind. 2000). As for the “modified impact”
version of the tort, there is no evidence whatsoever
to support such a claim.
Until 1991, Indiana courts permitted recovery for the
negligent infliction of emotional distress only if the emo-
tional injuries were accompanied and caused by some
physical injury. See, e.g., Charlie Stuart Oldsmobile, Inc. v.
Smith, 357 N.E.2d 247, 253 (Ind. Ct. App. 1976). The
Indiana Supreme Court has since modified this rule by
permitting recovery for emotional distress even if the
plaintiff did not suffer a physical injury. See, e.g., Shuamber
v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991). But this
theory still requires the plaintiff to prove he has suffered
a “direct physical impact,” although that physical impact
need not have caused any physical injury. Atl. Coast
No. 08-2050 21
Airlines, 857 N.E.2d at 996; see also Shuamber, 579 N.E.2d
at 456 (holding that “[w]hen . . . a plaintiff sustains a
direct impact by the negligence of another and, by virtue
of that direct involvement sustains an emotional
trauma which is serious in nature and of a kind and
extent normally expected to occur in a reasonable
person, . . . such a plaintiff is entitled to maintain an
action to recover for that emotional trauma without
regard to whether the emotional trauma arises out of or
accompanies any physical injury to the plaintiff”). Getting
fired from a job does not qualify. See Powdertech, Inc. v.
Joganic, 776 N.E.2d 1251, 1263 (Ind. Ct. App. 2002) (a
plaintiff who is fired from a job does not sustain the
necessary physical impact to establish a claim for
negligent infliction of emotional distress). Accordingly,
the district court properly dismissed the plaintiffs’
claims for negligent infliction of emotional distress.
A FFIRMED.
12-8-09