Marcus Morgan v. SVT, LLC , 724 F.3d 990 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3589
MARCUS MORGAN,
Plaintiff-Appellant,
v.
SVT, LLC and STRACK & VAN TIL
SUPER MARKET, INC.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 0474 — Geraldine Soat Brown, Magistrate Judge.
ARGUED APRIL 10, 2013 — DECIDED AUGUST 1, 2013
Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Marcus Morgan, who is
African-American, claims that he was fired from his security
job at a grocery store operated by defendants SVT, LLC and
Strack & Van Til Super Market, Inc. (collectively, SVT) because
he dared to report the misconduct of one of the store’s white
managers. He sued, alleging that he lost his job on account of
2 No. 12-3589
his race, in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981. The district
court granted summary judgment to SVT on both claims. We
affirm.
I
A
SVT hired Morgan to work as a “loss prevention officer”
(that is, a security guard) at the Elston Avenue location of its
chain of “Ultra Foods” grocery stores. Morgan had previously
worked security for Cub Foods, a grocery store that occupied
the Elston location before Ultra Foods, but he left that job to
take a higher-paying security position at a nearby Home
Depot. Morgan was still working a full-time shift at Home
Depot when he took the job at Ultra Foods in June 2007. He
was a hard worker: he testified that he typically worked eight
hours a day at Home Depot, and then worked up to six more
hours at Ultra Foods. At the time the events in this case took
place, Morgan was working roughly 40 hours a week at Home
Depot and between 20 and 30 hours a week at Ultra Foods.
Morgan’s direct supervisor at Ultra Foods was Raymond
Gutierrez, whom Morgan knew from previous security jobs.
As a “loss prevention manager,” Gutierrez was responsible for
overseeing security at four SVT-owned grocery stores in the
Chicago area. Because Morgan was the only security officer
assigned exclusively to the Elston store, Gutierrez sometimes
personally worked security at the store as well. Gutierrez’s
supervisor was John Mowery, SVT’s Director of Loss Preven-
tion.
No. 12-3589 3
Morgan’s primary duty as a loss prevention officer was to
detain shoplifters. When a customer takes an item, conceals it,
and walks past the last point of purchase without paying for
the item, the loss prevention officer should apprehend the
customer, bring the customer to an enclosed area, and identify
and document the item that was taken. The customer is then
generally allowed to leave, depending on the value of the item.
This procedure is known as a “theft stop.” Although SVT does
not have a formal policy requiring a specific number of theft
stops, Morgan was aware—based on his prior experience as a
security guard and guidance from SVT—that his performance
would be measured in part by the number of theft stops he
made. Upon hiring Morgan, Gutierrez emphasized that SVT
enforced its theft-stop policy more stringently than Cub Foods
had, and that maintaining a reasonable number of theft stops
was important to the company. Gutierrez also informed
Morgan that other loss prevention officers had been fired for
insufficient theft stops.
For the first two months Morgan worked at Ultra Foods, his
theft-stop numbers were good. He made six stops in July and
five in August. In September, however, Morgan made only one
stop, and he made no stops in the first week of October.
Gutierrez—who preferred to have informal discussions with
his loss prevention managers when there was a problem with
their performance, rather than issuing written warnings—had
three or four conversations with Morgan in which he warned
him that he needed to get his numbers up. Morgan did not
perceive these conversations as disciplinary warnings, but he
acknowledges that they took place. Gutierrez also testified that
he proposed that Morgan transfer to a store in Forest Park,
4 No. 12-3589
where it might be easier for him to make stops, but that
Morgan rejected this option because the store was too far
away. Morgan disputes this. In his telling, he suggested the
move to Gutierrez, but Gutierrez did not respond. For pur-
poses of summary judgment, we accept Morgan’s version; the
important point is that it is undisputed that the two discussed
Morgan’s poor record of theft stops before he lost his job.
On October 7, 2007, Morgan found himself chatting with
the Elston store’s dairy manager, Frank Kajdawowski.
Kajdawowski, who is white, told Morgan that his wife was
taking him to see the musical “Jersey Boys.” As they were
speaking, Kajdawowski picked up a copy of the Chicago
Tribune, removed the “Showcase” section (which featured an
article about Jersey Boys) from the paper, and placed it in his
pocket. Morgan knew that store policy prohibited shoplifting
by employees as well as customers, but he was hesitant to stop
Kajdawowski because he was a manager. SVT’s security policy
provided for stopping a rank-and-file employee who at-
tempted to leave the store with unpurchased merchandise, but
there was no corresponding policy concerning managers.
Therefore, instead of apprehending Kajdawowski, Morgan
used the store’s surveillance system to videotape Kajdawowski
walking around the store with the newspaper in his pocket and
eventually leaving the store without paying for the paper.
Morgan then reported the incident to Gutierrez and the Elston
store manager, Mike Gugliano. Gutierrez and Morgan re-
viewed the video of the incident the next day, and Morgan
wrote a statement describing what had occurred.
After reviewing the incident, Gutierrez concluded that
Morgan acted too leniently and instead ought to have appre-
No. 12-3589 5
hended Kajdawowski. His supervisor, Mowery, by contrast,
thought Morgan handled the incident appropriately. Morgan
was not disciplined or reprimanded in relation to his handling
of the “Kajdawowski incident.” Kajdawowski received a
one-day suspension without pay.
Immediately after the Kajdawowski incident, Morgan
began receiving formal written disciplinary warnings, known
as “Employee Corrective Action Notices.” On October 9,
Gutierrez issued two Corrective Action Notices. One stated
that Morgan’s quality of work was low, citing his lack of theft
stops in the previous five to six weeks. It further stated that
SVT expected Morgan to make between two and three theft
stops a week and warned that if Morgan’s performance did not
improve by the end of the month, he risked being fired. The
second notice reported that Morgan had been 90 minutes late
on October 8, 2007, and that he had failed to follow the proper
protocol for notifying SVT that he was running late. Morgan
believes that these disciplinary notices were punishment for
reporting Kajdawowski. He asserts that SVT had overlooked
issues with his tardiness and low number of theft stops in the
past and argues that SVT’s sudden interest in disciplining him
arose only after it realized that he was “the type of Afri-
can-American who would turn in a white supervisor.” (Mor-
gan had, in fact, received two Corrective Action Notices for
tardiness prior to the Kajdawowski incident; the notices
indicated that they were for the fourth and sixth occasions on
which he was late. Both were ultimately waived.)
Sometime after issuing the October 9 Corrective Action
Notices, Gutierrez decided to dismiss Morgan. According to
Gutierrez, this decision was reached after comparing Morgan’s
6 No. 12-3589
theft-stop numbers to those of other loss prevention officers
and after noting that Morgan had not made any theft stops
since receiving the warning on October 9. Mowery approved
Gutierrez’s decision. In Mowery’s opinion, Morgan was
exhausted from working 70-80 hours a week, and this pre-
vented him from adequately performing his job.
Morgan was fired on October 24, 2007. The Corrective
Action Notice accompanying this action stated that Morgan
was being fired for “lack of Production/Theft Stops.” Morgan
was replaced with a man who was fired after only a month for
lack of theft stops. The next person hired remains in the job.
B
On August 12, 2008, Morgan filed a charge of discrimina-
tion with the Equal Employment Opportunity Commission
(EEOC), alleging race discrimination and retaliation for
reporting Kajdawowski’s shoplifting. The EEOC issued a right-
to-sue letter on October 23, 2009. Morgan then filed this lawsuit
in the district court, alleging race discrimination theories under
both Title VII, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981.
He did not renew his claim for retaliation. The parties con-
sented to the jurisdiction of a magistrate judge pursuant to 28
U.S.C. § 636(c) and Northern District of Illinois Local Rule 73.1.
SVT moved for summary judgment. The court granted the
motion after concluding that Morgan had put nothing in the
record that could support a finding of racial discrimination. It
emphasized that Morgan had not identified any other SVT
employee outside his protected class who was treated more
favorably under similar circumstances, nor had he presented
evidence that SVT had a pattern of treating workers within his
No. 12-3589 7
protected class unfavorably. Indeed, Morgan acknowledged
that up until his termination, he never felt that Gutierrez
treated him or any other employee differently on account of his
race. Neither did the circumstances surrounding Morgan’s
firing, in themselves, raise a plausible inference of race discrim-
ination. Although Morgan argued that the timing of his firing
(so soon after the Kajdawowski incident) was “suspicious,”
given Morgan’s documented failure to perform theft stops,
Gutierrez’s prior warnings about the lack of theft stops, and
SVT’s stringent enforcement of its anti-shoplifting policies, the
court concluded that suspicious timing alone was insufficient
to create a genuine dispute over whether Morgan was fired for
failing to meet SVT’s legitimate job expectations or for insidi-
ous racial reasons. This appeal followed.
II
A
Title VII prohibits employers from discriminating based on
“race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a). Section 1981 focuses on the right to be free of
racial discrimination in the making and enforcing of contracts.
As we have noted before, “the methods of proof and elements
of [a Section 1981] case are essentially identical” to those in a
Title VII case. McGowan v. Deere & Co., 581 F.3d 575, 579 (7th
Cir. 2009); see also Ellis v. CCA of Tenn. LLC, 650 F.3d 640, 649
(7th Cir. 2011). We thus do not separately discuss Morgan’s
Section 1981 theory. In order to succeed in a Title VII lawsuit,
a plaintiff must show that he is a member of a class protected
by the statute, that he has been the subject of some form of
adverse employment action (or that he has been subjected to a
8 No. 12-3589
hostile work environment), and that the employer took this
adverse action on account of the plaintiff’s membership in the
protected class. See Coleman v. Donahoe, 667 F.3d 835, 863 (7th
Cir. 2012) (Wood, J., concurring). Stated this way, we can see
that the elements of a Title VII claim are straightforward.
Demonstrating that a plaintiff has enough evidence to survive
summary judgment, however, has become a complex exercise.
Id.; see also Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th
Cir. 2013) (citing spate of recent cases from this court express-
ing frustration with the “ossified direct/indirect paradigm”).
When a plaintiff is responding to an employer’s motion for
summary judgment, he (in this case) must initially identify
whether he is litigating his case under a “direct” or an “indi-
rect” method of proof (or both). The real distinction between
these two methods, however, is not whether one relies solely
on “direct” evidence (in the sense of a smoking gun) and the
other relies on circumstantial evidence. The labels have become
terms of art.
“Direct” proof includes both evidence explicitly linking an
adverse employment action to an employer’s discriminatory
animus, see, e.g., Smith v. Wilson, 705 F.3d 674, 677 (7th Cir.
2013); Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir.
2011), and circumstantial evidence that would permit the trier
of fact to infer that discrimination motivated the adverse
action, see Diaz, 653 F.3d at 587. In order to illustrate the idea
that the circumstantial evidence, taken as a whole, must permit
that inference, we have used the metaphor of a mosaic whose
individual tiles add up to a complete picture. See Coleman, 667
F.3d at 863 (Wood, J., concurring); Wright v. Southland Corp.,
No. 12-3589 9
187 F.3d 1287, 1290-92 (11th Cir. 1999); Troupe v. May Dep’t
Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). Contrary to what
many have thought, this does not mean that there is some kind
of esoteric “mosaic test” or theory. All these cases mean is that
the circumstantial evidence must be strong enough, taken as a
whole, to allow the trier of fact to draw the necessary inference.
Typical kinds of evidence used for this purpose include “(1)
ambiguous statements or behavior towards other employees
in the protected group; (2) evidence, statistical or otherwise,
that similarly situated employees outside of the protected
group systematically receive better treatment; and (3) evidence
that the employer offered a pretextual reason for an adverse
employment action.” Diaz, 653 F.3d at 587. If the plaintiff can
assemble from various scraps of circumstantial evidence
enough to allow the trier of fact to conclude that it is more
likely than not that discrimination lay behind the adverse
action, then summary judgment for the defendant is not
appropriate, and the plaintiff may prevail at trial even without
producing any “direct” proof.
The term “indirect method” refers to a particular way of
using circumstantial evidence at the summary judgment stage.
It was pioneered by the Supreme Court 40 years ago in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). It
employs a burden-shifting approach under which the plaintiff
must initially show that: “(1) []he is a member of a protected
class, (2) he met h[is] employer’s legitimate job expectations, (3)
[]he suffered an adverse employment action, and (4) similarly
situated employees outside of the protected class received
more favorable treatment.” Keeton v. Morningstar, Inc., 667 F.3d
877, 884 (7th Cir. 2012). If the plaintiff has evidence that can
10 No. 12-3589
meet those four criteria, the burden shifts to the employer to
offer a non-discriminatory reason for the adverse employment
action. Id. If the employer does so, the burden shifts back to the
plaintiff to present evidence that, if believed by the trier of fact,
would show that the real explanation for the action is discrimi-
nation. Id.At times, litigants and courts alike can get lost in the
technical nuances of the “direct” and “indirect” methods. As
this case illustrates, an overly rigid distinction between the two
can cause a plaintiff who presents evidence that bears on both
the “direct method-circumstantial branch” and the “indirect
method”—such as evidence of an employer’s preferential
treatment of similarly situated employees outside of the
plaintiff’s protected class—to risk forfeiting an argument under
either method if he fails to specify which method he is using.
Morgan did not inform the court of the approach he was
taking, and so after examining the nature of his evidence, the
district court assumed that Morgan had waived use of the
“direct” method. Much of Morgan’s evidence, however, is
relevant under either method; the “suspicious timing” of
Morgan’s termination, for instance, could provide circumstan-
tial evidence linking the termination to discrimination under
the “direct” method, while it could also go to pretext under the
“indirect” method. And as it happens, Morgan’s case is
marginally stronger under the “direct” method, which can be
more flexible than the “indirect” method because it does not
contain so many pre-set elements. Morgan’s failure to provide
any evidence on step 4 of the “indirect” approach (i.e., that
similarly situated employees outside his protected group were
treated better than he) means that his case is all but doomed
No. 12-3589 11
under the “indirect” method. This could mean that Morgan
lost a (marginally) more promising argument by being insuffi-
ciently attentive to the demands of these two approaches. If so,
he would not be the first employment discrimination plaintiff
to have been ensnared in this trap. See, e.g., Burks v. Wis. Dep’t
of Transp., 464 F.3d 744, 750 n.3 (7th Cir. 2006).
The “direct” method, and in particular the metaphor of the
mosaic, has also bred confusion. When that idea was first
introduced in Troupe, it captured the commonsense notion that
individual pieces of circumstantial evidence that do not, in and
of themselves, conclusively point to discrimination might
nevertheless be sufficient to allow a trier of fact to find discrim-
ination when combined. 20 F.3d at 737; see also Sylvester v. SOS
Children’s Vills. Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006). Over
the years, however, the phrase has taken on a life of its own.
See, e.g., East-Miller v. Lake Cnty. Highway Dep’t, 421 F.3d 558,
564 (7th Cir. 2005); Isbell v. Allstate Ins. Co., 418 F.3d 788, 794
(7th Cir. 2005). This is unfortunate. Standing alone, the phrase
misleadingly suggests that circumstantial evidence must
combine to form a tidy, coherent picture of discrimination, in
the same way the tiles of a mosaic come together to form a
tidy, coherent image, in order for a plaintiff to survive sum-
mary judgment. This is not the standard. As we said in
Sylvester, 453 F.3d at 904, “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.” The plaintiff’s task in opposing a motion for
summary judgment is straightforward: he must produce
enough evidence, whether direct or circumstantial, to permit
12 No. 12-3589
the trier of fact to find that his employer took an adverse action
against him because of his race. The structured inquiry
introduced by McDonnell Douglas and the reference to a
“mosaic” of circumstantial evidence in Troupe were supposed
to facilitate that task, not to require plaintiffs to use only those
kinds of evidence or, in Troupe, to do more than characterize
the facts in that case.
We make these observations in an effort to bring some
needed flexibility and common sense back to the critical task of
deciding when summary judgment is appropriate in an
employment discrimination case. The central question at issue
is whether the employer acted on account of the plaintiff’s race
(or sex, disability, age, etc.). If a plaintiff has carefully followed
the burden-shifting approach of McDonnell Douglas, well and
good: the district court should have no trouble assessing the
summary judgment motion. Similarly, if a plaintiff eschews
burden-shifting and presents direct and circumstantial evi-
dence in opposition to an employer’s motion for summary
judgment, the court can look at that. The latter, it seems to us,
should be the default rule. This takes us back to the original
purpose of McDonnell Douglas, which was to outline a series of
steps that, if satisfied, would support a plaintiff’s right to reach
the trier of fact. By using the “direct” approach as the default
rule, we prevent no one from using the “indirect” approach,
but we can remove some of the rigidity from the system that
has developed over the years.
B
Morgan, as we said, did not make clear to the district court
which method of proof he was using. Our review from a grant
No. 12-3589 13
of summary judgment, however, is de novo. See Brown v.
Advocate S. Suburban Hosp., 700 F.3d 1101, 1104 (7th Cir. 2012).
The district court assumed that Morgan was relying on the
“indirect” method, but we are willing to look at his proof from
both perspectives. Unfortunately, that does him little good: no
matter how we label his evidence, it is not enough to create a
triable issue of fact on the question whether he lost his job
because of racial discrimination. In order to survive summary
judgment, the nonmoving party must “do more than simply
show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986), but metaphysical doubt is all that we can
muster here. Morgan has not identified a single SVT employee
who was treated differently under comparable circumstances.
He points to Kajdawowski and argues that his one-day
suspension for taking a section of a newspaper shows that
white employees received greater leniency, but Morgan and
Kajdawowski were not at all similar to one another. Not only
was Kajdawowski a manager subject to a different chain of
supervision than Morgan, but Kajdawowski’s infraction was
trivial. By contrast, in failing to make theft stops, Morgan was
failing to perform one of his core job duties. No jury could
reasonably infer that SVT had no rational basis for responding
differently to Kajdawowski’s “shoplifting” from the way it did
to Morgan’s failure to make theft stops.
Morgan also suggests that he could not point to any
similarly situated but differentially treated SVT employees
outside his protected class, because he and Gutierrez were the
only security officers who worked at the Elston store. (There is
some dispute on this point, because the record suggests that a
14 No. 12-3589
person named Gregory Presley, who is also African-American,
occasionally worked at the Elston store as well. Morgan
appears to deny this, however, and for purposes of summary
judgment, we view the evidence in the light most favorable to
Morgan. Brown, 700 F.3d at 1104.) But there were numerous
security officers working at SVT’s other stores in the Chicago
area, and any of these employees could have served as a
plausible comparator to Morgan.
Morgan leans heavily on the “suspicious timing” of his
termination, pointing out that he began receiving disciplinary
notices two days after reporting Kajdawowski and was fired
several weeks later. But Morgan does not argue that the notices
were baseless. Morgan had not made any theft stops in the first
week of October, he made only one in September, and he failed
to make any additional stops in the weeks between receiving
the Corrective Action Notice on October 9 and his firing on
October 24. While suspicious timing is relevant evidence that
can raise a genuine issue of fact about discrimination, see, e.g.,
Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011);
McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 797 (7th Cir. 1997),
suspicious timing alone is rarely enough to survive summary
judgment, see, e.g., Lewis v. City of Chi., 496 F.3d 645, 655-56
(7th Cir. 2007). Where, as here, there are reasonable, non--
suspicious explanations for the timing of Morgan’s termina-
tion—namely, that he was still not making theft stops—we will
not deny summary judgment solely on the strength of this one
point.
Moreover, even if SVT did fire Morgan because of the
Kajdawowski incident, it does not follow that the termination
No. 12-3589 15
was based on race. There is no indication in the record that
either Gutierrez or Mowery was unhappy with Morgan’s
handling of the incident because the subject of his report was
a white man. Indeed, the only indication that either of them
was unhappy about the incident comes from Gutierrez’s
comment that he thought Morgan should have acted more
aggressively by stopping Kajdawowski before he left the
store—a comment that is flatly inconsistent with the inference
that Gutierrez was upset that Morgan was not deferring to his
white superiors. Hypothetically, one could imagine a discrimi-
nation claim based on an African-American employee’s being
punished for pointing out the misconduct of a white supervisor
if African-American employees were fired for reporting white
managers, but white employees were not, or if the employee’s
supervisors expressed extreme and irrational displeasure at the
employee’s decision to report a white superior. Under the facts
before us, however, it is far more likely that Gutierrez and
Mowery were at most annoyed over the fuss caused by such a
minor incident. That would be a different reason for firing
Morgan than the one stated, but it would not be impermissible,
because it is not based on race or any other prohibited ground.
Morgan’s final argument is that SVT’s Human Resources
Director, Jessica Hon, gave somewhat different explanations
for Morgan’s firing in a position statement to the EEOC and in
this case. In response to Morgan’s EEOC charge, Hon stated
that Morgan could have avoided firing if he had stopped
Kajdawowski, as opposed to just recording and reporting the
incident. In her deposition, however, Hon stated that after
speaking with Gutierrez and Mowery, she realized that
Morgan would have needed more than a single theft stop in
16 No. 12-3589
October in order to avoid losing his job. We need not resolve
this inconsistency. Hon was not involved in the decision to fire
Morgan. The undisputed evidence is that loss prevention
managers make hiring and firing recommendations subject to
Mowery’s approval, without input from Human Resources. A
single, minor discrepancy in the statements of someone so
peripherally involved in the contested action is too tenuous a
ground on which to send this case to a jury. The discrepancy
may undermine Hon’s credibility, but a party cannot defeat
summary judgment with resort to attacks on credibility alone.
See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).
Under any view of the evidence, Morgan has failed to raise a
genuine dispute of fact on the question whether he was the
victim of discrimination.
We therefore AFFIRM the judgment of the district court.