In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3669
NORMA PEREZ,
Plaintiff‐Appellant,
v.
THORNTONS, INCORPORATED,
Defendant‐Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CV 01787 — Blanche M. Manning, Judge.
ARGUED APRIL 23, 2013 — DECIDED SEPTEMBER 30, 2013
Before RIPPLE and HAMILTON, Circuit Judges, and
STADTMUELLER, District Judge.*
HAMILTON, Circuit Judge. All employees, not only perfect
employees, are protected by Title VII. Plaintiff Norma Perez
was in all likelihood far from a perfect employee. From 2005
until 2009 she worked for defendant Thorntons, Inc., a gasoline
*
The Honorable J.P. Stadtmueller of the Eastern District of Wisconsin,
sitting by designation.
2 No. 12‐3669
and convenience store chain. She was working as a retail store
manager in November, 2009 when she deeply discounted
about $127 worth of candy bars that she sold to herself for only
$12. She was fired for failure to “control cash and/or
inventory.” But only a few months earlier, Perez’s non‐
Hispanic male supervisor had committed a similar act and was
merely warned, not fired.
Perez brought suit under Title VII of the Civil Rights Act of
1964 for gender and national origin discrimination. The district
court granted summary judgment in Thorntons’ favor. If Perez
discounted the candy she “bought” without permission, her
behavior was wrongful, and a jury might well find that her
firing was not tainted by unlawful bias. In reviewing a grant of
summary judgment, however, we must give Perez the benefit
of conflicts in the evidence and any reasonable inferences in
her favor. In that light, a jury could find that Perez’s
wrongdoing for which she was fired was comparable to the
wrongdoing of her non‐Hispanic male supervisor, and that the
supervisor’s animus against women and Hispanics tainted the
decision to fire her. Based on this record, a jury must sort out
the conflicting evidence and decide why Thorntons chose to
treat arguably similar wrongdoing so differently. Accordingly,
we reverse the district court’s judgment and remand for
further proceedings.
Facts for Summary Judgment
We assume that the following facts are true for purposes of
summary judgment. Perez was hired by Thorntons in January,
2005 as a customer service representative in its store in Cicero,
Illinois. Her job included stocking the shelves and operating
No. 12‐3669 3
the cash register. She was promoted a year later to retail store
manager. Her duties then included supervising the customer
service representatives at the store. In November 2008, she was
transferred to a different store located in Summit, Illinois. Bill
Darlington was Perez’s regional manager. He made the
original decision to hire her and then promoted her and
transferred her. The Summit store was a “high volume” store,
and Darlington believed that a transfer to the Summit store
would broaden Perez’s management experience.
At the Summit store, Perez’s immediate supervisor was
store general manager Donald Koziol. When Perez and Koziol
met, Koziol told her that “he [didn’t] want [her] in the store;
that he [didn’t] want to work with [a] woman.” Perez informed
Darlington about Koziol’s comments, and informed him of her
preference to remain at the Cicero location. Darlington refused
to return Perez to the Cicero store, telling her that she either
had to work where he had assigned her or would lose her job
with Thorntons. Perez testified that later, in the summer of
2009, Koziol said to Perez, “this is the reason why I don’t like
to work with women, always have something to do with the
kids or they have a period.” He also told her that he “did not
like” Hispanics. However, Perez did not disclose these later
remarks to Darlington or anyone else at Thorntons.
Every month, each Thorntons store received a “Sales
Planner” from the store support center that identified
upcoming store promotions and items that would be
specifically promoted for sale with discounted prices. Stores
were required to follow these directives strictly. Every month
each store conducted a “change over,” changing the manner in
4 No. 12‐3669
which particular products were priced as dictated by the Sales
Planner.
During a store visit in October 2009, Darlington noticed that
the candy inventory was low. When Darlington talked to
Koziol and Perez about the store’s candy bar sales, Darlington
learned that the store’s cashiers had deviated from the Sales
Planner’s directive. Cashiers had been allowing customers to
pay sale prices for full‐priced candy bars, using a sale‐priced
bar to scan the purchase of the full‐priced bar into the register.
Darlington warned both Koziol and Perez that they could not
swap full‐priced candy for discounted candy.
The November 2009 Sales Planner ordered that pre‐priced
versions of Nestle brand candy bars were to be sold at a price
of two for $2.22. The Summit store was scheduled for change
over on November 4, 2009. On the date of the change over,
Perez rang up approximately 80 of these candy bars and sold
them to herself. Her transactions were captured on store video
and were recorded in the cash register’s memory. Perez
initially rang up the candy bars at the approved price—two for
$2.22—but then performed a manual price override, ultimately
charging herself only 15 cents for each candy bar.
A few days later, Darlington conducted a routine review of
the store’s video surveillance and saw Perez buy a large
number of candy bars at the approved price, void the
transactions, manually override the price, and walk out of the
store carrying the discounted candy bars she had purchased.
Darlington reported what he had seen to Lori Roberts, the
human resources manager for Thorntons’ Northern Division.
Darlington then went to the store to investigate. He met with
No. 12‐3669 5
Koziol and showed him the video footage of Perez buying the
candy. He asked Koziol if he was aware that Perez had
purchased the candy after performing the price overrides.
Koziol denied having any knowledge of the incident or giving
Perez permission to make the purchase. Darlington then called
Perez at home. Darlington told her to report to the store
immediately for a meeting. When she arrived, Darlington
initiated a conference call with Roberts. Darlington, Roberts,
and Perez were the only people on the call. Darlington showed
Perez the video footage and asked her to explain the price
overrides.
Perez’s account diverges from Darlington’s and Roberts’ at
this point, but of course, on summary judgment, we must
accept Perez’s version as true.1 Perez testified that she told
Darlington and Roberts that she had Koziol’s permission to
conduct the price overrides. Darlington suspended Perez until
further notice. Perez departed and Darlington consulted with
Roberts. Darlington told Roberts that he wanted to fire Perez.
Roberts concurred with that decision, and Darlington and
Roberts then notified their respective superiors of Perez’s
termination. Darlington notified the regional vice president,
Sam Picone. Roberts notified the executive vice president of
human resources, Brenda Stackhouse. Neither Picone nor
Stackhouse objected to Darlington’s decision.
1
In Thorntons’ version of this meeting, Perez told Darlington that she
could not explain the price overrides and that she did not have anyone’s
permission. Her only “defense” at that time was that Koziol had also
bought candy bars at a marked‐down price. Darlington then reviewed
surveillance footage from earlier that day, which revealed that Koziol had
not purchased any products at a reduced price.
6 No. 12‐3669
On November 10, 2009, Roberts called Perez at home and
told her she was being fired. The personnel action form noted
failure “to control cash and/or inventory” as the reason for her
termination. Thorntons later clarified that Perez was fired for
her failure to adhere to prices stated in the November Sales
Planner and for violating Thorntons’ “Write‐Off Policy.” The
Write‐Off Policy prohibited managers from writing off more
than $25 of merchandise without an auditor as a witness.
Although the Write‐Off Policy was in effect during Perez’s
employment, Thorntons has not pointed to evidence in the
record showing that she knew of its existence, or that she knew
the Write‐Off Policy would trump permission from her
immediate supervisor.
If that were the entire record, Perez would not have a viable
claim for discrimination. But a few months before Darlington
terminated Perez, store manager Koziol used his personal
credit card to “buy” a large quantity of beer and wine from the
store at full price. The store support center noticed the
transaction and reported it to regional vice president Picone.
Picone and Darlington confronted Koziol about his transaction.
Koziol explained to both supervisors that he had discovered
that beer and wine were missing from the Summit store. Koziol
suspected that it had been stolen, but he did not know by
whom. He attempted to cover up the missing inventory by
making a dummy purchase on his own credit card so that the
shortage would not be discovered during an upcoming
corporate audit. He claimed that he wanted time and
opportunity to identify the culprits on his own. His idea, he
told his supervisors, was that if the theft went undetected, the
thieves might return to try to steal more alcohol, giving Koziol
No. 12‐3669 7
the chance to catch them in the act. Koziol did not have
Thorntons’ permission to run his sting operation in the Summit
store. In spite of the fact that, at best, Koziol had engaged in a
cover‐up and was risking additional theft, Picone issued a
written reprimand and a warning to Koziol, but Koziol kept his
job. Darlington testified that he was involved in Picone’s
“coaching” of Koziol.
Analysis
Perez brought suit under Title VII of the Civil Rights Act of
1964 for national origin and gender discrimination. See
42 U.S.C. § 2000e–2. She contends that Thorntons fired her
because she is Hispanic and a woman. Thorntons moved for
summary judgment on her claims. The district court granted
summary judgment in Thorntons’ favor, and Perez has
appealed. Summary judgment is proper if the “movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We review de novo a ruling granting summary
judgment. Arizanovska v. Wal‐Mart Stores, Inc., 682 F.3d 698, 702
(7th Cir. 2012). Examining the evidence in the light most
favorable to Perez, and construing all inferences in her favor,
we will affirm summary judgment only if there are no genuine
issues of material fact and Thorntons is entitled to judgment as
a matter of law. Naficy v. Illinois Dep’t of Human Servs., 697 F.3d
504, 509 (7th Cir. 2012).
Under current law, there are two ways Perez may prove her
claims: the “direct” and “indirect” methods of proof. Collins v.
Amer. Red Cross, 715 F.3d 994, 999 (7th Cir. 2013). “Under the
direct method, a plaintiff must provide either direct or
8 No. 12‐3669
circumstantial evidence that the employer had a discriminatory
motivation. And under the indirect method, a plaintiff must
satisfy the familiar requirements of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” Id. (internal citations omitted). But
we recognize and join the majority of active judges in this
circuit who have opined that the time has come to jettison the
“ossified direct/indirect paradigm” in favor of a simple
analysis of whether a reasonable jury could infer prohibited
discrimination. See Hitchcock v. Angel Corps., Inc., 718 F.3d 733,
737 (7th Cir. 2013), citing Coleman v. Donahoe, 667 F.3d 835, 863
(7th Cir. 2012) (Wood, J., concurring) (“By now, … the various
tests that we insist lawyers use have lost their utility … . In
order to defeat summary judgment, the plaintiff one way or the
other must present evidence that she is in a class protected by
the statute, that she suffered the requisite adverse action
(depending on her theory), and that a rational jury could
conclude that the employer took that adverse action on account
of her protected class, not for any noninvidious reason. Put
differently, it seems to me that the time has come to collapse all
these tests into one.”); Naficy, 697 F.3d at 514 (citing Coleman
concurrence with approval); Good v. Univ. of Chi. Med. Ctr., 673
F.3d 670, 680 (7th Cir. 2012) (“the direct and indirect methods
for proving and analyzing employment discrimination cases …
have become too complex, too rigid, and too far removed from
the statutory question of discriminatory causation”); and
Harper v. C.R. England, Inc., 687 F.3d 297, 313–14 (7th Cir. 2012)
(discussing Coleman concurrence and applying a more
streamlined, collapsed version of the direct/indirect tests).
Perez contends that her claim survives under either the
indirect or the direct methods. We conduct our analysis under
No. 12‐3669 9
those traditional tests, and we find, as explained below, that
under each method Perez has raised issues of material fact that
merit resolution by a jury. The similarity of the analysis helps
show, however, that the differences between the methods are
narrowing.
I. Indirect Method
Under the indirect method, a plaintiff must first establish a
prima facie case by providing evidence “that (1) she is a
member of the protected class; (2) she met her employer’s
legitimate job expectations; (3) she suffered an adverse
employment action; and (4) similarly situated employees
outside of the protected class were treated more favorably.”
Naficy, 697 F.3d at 511. In disparate punishment cases, like this
one, the second and fourth prongs merge and are satisfied by
a showing that a similarly situated employee outside the
plaintiff’s protected class committed a similar act but was
subjected to less severe discipline. Elkhatib v. Dunkin Donuts,
Inc., 493 F.3d 827, 831 (7th Cir. 2007). If the plaintiff makes this
showing, the burden shifts to the employer “to introduce a
legitimate, nondiscriminatory reason for the employment
action.” Naficy, 697 F.3d at 511. Then, if the employer meets
that burden of production, the burden shifts back to the
plaintiff to provide evidence that the employer’s stated reason
was pretextual. Id. at 511–12.
A. Similarly Situated Co‐worker
The district court found that Perez failed to establish her
prima facie case because she failed to demonstrate that a
similarly situated employee outside of her protected class
engaged in conduct similar to hers but was subjected to less
10 No. 12‐3669
severe discipline. “All things being equal, if an employer takes
an action against one employee in a protected class but not
another outside that class, one can infer discrimination . … The
‘similarly situated’ prong establishes whether all things are in
fact equal.” Filar v. Board of Educ. of City of Chicago, 526 F.3d
1054, 1061 (7th Cir. 2008) (internal citation omitted).
To satisfy this requirement, a plaintiff must identify at least
one employee who is directly comparable to her in all material
respects. See Coleman, 667 F.3d at 846. The purpose of the
inquiry is to “eliminate other possible explanatory variables,
‘such as differing roles, performance histories, or decision‐
making personnel, which helps isolate the critical independent
variable’—discriminatory animus.” Id., quoting Humphries v.
CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff’d,
553 U.S. 442 (2008). The proposed comparator need not be
identical in every conceivable way, however, and courts must
conduct a “common‐sense examination.” Coleman, 667 F.3d at
846 (quotation omitted).
To satisfy this requirement, Perez argues that Koziol, her
non‐Hispanic male supervisor, committed an infraction
comparable to hers but was not disciplined as severely as she
was. Perez openly purchased candy bars at a marked down
price with (we must assume) Koziol’s permission. She was
fired. Koziol covered up theft from the store and, without the
consent of his supervisors, concocted a one‐man sting
operation that invited additional theft—yet he was merely
warned. Thorntons argues that Koziol’s conduct is not
comparable to Perez’s conduct because Thorntons suffered no
actual economic harm as a result of Koziol’s act. A jury might
buy that explanation, but we cannot resolve that issue on
No. 12‐3669 11
summary judgment. Koziol’s act covered up a much larger
actual economic loss and put Thorntons at a high risk of future
actual economic loss. Also, Koziol acted in secret, without the
knowledge or permission of his supervisor. Perez, though,
purchased the discounted candy bars openly and with, we
must assume, Koziol’s consent. At the end of the day, both of
these infractions involved inventory control, and yet the
employees were treated very differently by Thorntons’ higher
management. We believe it should be left to a jury to decide
whether they were similar enough to support an inference of
discrimination.
Our dissenting colleague disagrees, noting as we often have
that “we do not sit as a super‐personnel department to
determine which employment infractions deserve greater
punishment. It is enough that the misconduct that led to the
adverse job action in question is sufficiently distinct to render
the proposed comparators not similarly situated.” Post at [32]
(emphasis added), quoting Harris v. Warrick County Sheriff’s
Dep’t, 666 F.3d 444, 449 (7th Cir. 2012). On this basis, the
dissent accepts Thorntons’ stated explanation for firing Perez
but not Koziol—that Perez’s conduct caused “actual loss to the
company” while Koziol’s “had no such effect.” Post at 32.
At first glance that is true, but the picture for purposes of
summary judgment is more complex. Koziol’s conduct was
deceptive, done secretly and without the consent of a
supervisor. Perez, by contrast, acted openly and with the
consent of her supervisor. In addition, Koziol’s act caused no
actual loss to the company only because he was improperly
covering up a real theft. Moreover, he concocted an
“investigation” that would have risked additional loss if he
12 No. 12‐3669
had not been caught. Ultimately, the crux of the issue is
whether Perez’s and Koziol’s misdeeds were “sufficiently
distinct” to distinguish meaningfully between them at
summary judgment, or whether a jury could reasonably find
they were comparable. We believe that the arguable differences
between causing modest actual economic loss with the consent
of a supervisor and covering up a significant theft and risking
additional economic loss without the consent of a supervisor
are too fine to make as a matter of law on summary judgment.
Whether Perez’s and Koziol’s misconduct was comparable is
a genuinely disputed issue of material fact.
Thorntons argues further, however, that whether or not
Perez had Koziol’s consent is immaterial because even with his
consent, Perez’s purchase still violated Thorntons’ Write‐Off
Policy. That policy prohibits any write‐offs of more than $25 by
any employee except with the express permission of a
corporate auditor. Thorntons presented evidence that the
Write‐Off Policy was in place while Perez was employed with
Thorntons, but it has not pointed us to evidence that Perez
knew of its existence or that she would have had any other
reason to believe that Koziol’s permission was insufficient to
bless her action. Also, at the time of Perez’s firing, Thorntons’
stated reason for its decision was her failure to “control cash
and/or inventory,” and Koziol’s infraction would also certainly
qualify for that description.
Thorntons also argues that Koziol is not comparable to
Perez because they were disciplined by different decision
makers—Koziol by Picone and Perez by Darlington. This
argument is belied outright by Darlington’s deposition
testimony that was the basis of Thorntons’ motion for
No. 12‐3669 13
summary judgment. Darlington testified that he was present
when Picone confronted Koziol and was involved in the
decision to warn but not terminate Koziol. He also testified that
he advised Picone of Perez’s infraction, and that Picone
assented to Darlington’s decision to fire Perez. Darlington and
Picone were both sufficiently involved in both Koziol’s and
Perez’s discipline to undermine Thorntons’ argument, at least
as a matter of law.
Our dissenting colleague believes that we should not
consider the evidence of Darlington’s involvement in Koziol’s
discipline because Perez “admitted” in response to Thorntons’
Local Rule 56.1 statements that Picone played no role in
Darlington’s decision to discharge Perez and “Darlington
played no role in Picone’s discipline decision regarding
Koziol’s June and July 2009 beer purchase.” Post at 28, citing
Dkt. 59, ¶¶ 41, 45 (Thorntons’ Local Rule 56.1 Statement of
Undisputed Facts) and Dkt. 62, ¶¶ 41, 45 (Perez’s Response).
The point is an important one because of the procedures that
district courts use to clarify and sharpen the issues to be
decided on a summary judgment motion. And Perez did not
respond in the district court as clearly as she should have.
The problem, though, is that Thorntons’ same paragraphs
of supposedly undisputed facts and its evidence offered to
support its Local Rule 56.1 Statement contradict its assertions
that Darlington played no role in Picone’s decision to discipline
but not fire Koziol and that Picone played no role in the
decision to fire Perez. Where the moving party has
undermined its own Local Rule 56.1 assertion through the
presentation of contradictory assertions and evidence, a non‐
movant’s “admission” of the movant’s assertion is not decisive.
14 No. 12‐3669
To find otherwise would serve only to reward parties who
successfully obfuscate the record and engage in “gotcha”
litigation tactics.
Thorntons’ paragraphs about Koziol’s wrongdoing and
Picone’s decision merely to warn him show on their face that
Darlington was involved in the investigation, the disciplinary
decision, and the warning. In fact, the paragraphs do not even
cite any testimony from Picone himself. They rely instead on
Darlington as the source of evidence about Koziol’s
wrongdoing, its discovery, the investigation, and the
disciplinary decision. Dkt. 59, ¶¶ 43–45. That fact alone should
raise doubts about the assertion that Darlington “played no
role” in the decision.
The evidence cited by Thorntons also directly controverts
its assertion. At pages 89 to 95 of Darlington’s deposition, he
described his own investigation of Koziol’s conduct, with only
brief mention of Picone’s involvement:
Q: And supposedly Mr. Koziol was making this
private purchase to make up for that shortage,
correct?
A: Correct.
… .
Q: What did he tell you it was for?
A: He told me he wanted to pay the shortage so it
wouldn’t appear on his weekly counts that he
had a beer shortage. He wanted the store and the
team members at the store to think that there
was no issue. He thought by doing that, the
No. 12‐3669 15
person who was stealing from him would just
keep doing it and he would catch them. That was
Don’s [Koziol’s] words to me.
Id. at 89–90, cited by Dkt. 59, ¶ 44 (emphasis added).
And this exchange, at page 92 of Darlington’s deposition,
was also presented to the district court as evidence underlying
Thorntons’ 56.1 Statement:
Q: Did Mr. Koziol tell you who he suspected, if
anyone, of theft?
A: No.
Q: Did you ask?
A: Yes.
Q: Did he refuse to answer?
A: No, he said he didn’t know.
Id. at 92, cited by Dkt. 59, ¶44 (emphasis added).
Darlington’s own testimony described his role in the
decision‐making process for Koziol:
Q: To your knowledge, was there any discussion
about termination of Don Koziol because of this?
A: It was taken into consideration.
Q: Was your opinion sought with regard to
whether or not Don Koziol should be terminated
for this situation?
A: There’s only one reason why Don did not get
terminated.
16 No. 12‐3669
Q: And why is that?
A: Because he put, personally, on his credit card
and not created a shortage for Thorntons. We
checked … . He took his own money, his own
credit card and paid that credit card statement.
So we took that as a write‐up; and if it happens
again, you will be terminated. But since it did
not cause us any shortage, was the difference.
Q: But it was a violation of company policy?
A: Sure was.
Q: Including he falsified documents, did he not?
A: Sure did.
Q: Was this a performance opportunity for coaching?
A: It was more than coaching.
Q: That was by you and others?
A: By me and Sam Picone.
Id. at 93–95, cited in Dkt. 59, ¶44 (emphasis added).
Thus, Thorntons’ assertion in its Local Rule 56.1 Statement
that “Darlington played no role in Picone’s discipline decision
regarding Koziol’s beer purchase other than presenting Koziol
with the written reprimand in August 2009” cannot be
reconciled with the rest of the paragraph and with Thorntons’
own evidence. There is ample evidence from Thorntons itself
that Darlington was at the center of the investigation of Koziol
and was present and involved in the decision not to fire him
No. 12‐3669 17
just a few months before he decided to fire Perez for arguably
comparable wrongdoing.
The issue of Picone’s involvement in the decision to fire
Perez presents similar problems for Thorntons. The Local 56.1
Statement of supposedly undisputed facts shows on its face
that Darlington consulted his boss, Picone, before firing Perez.
Dkt. 59, ¶ 41. A jury could certainly infer that Darlington was
seeking his boss’s consent and that Perez would not have been
fired if Picone had disagreed.
In response to Thorntons’ motion for summary judgment,
Perez pointed out that Thorntons’ filings contradicted
themselves. That assertion was too general, but as noted, the
contradictions were evident from the face of Thorntons’ own
statement of supposedly undisputed facts. They became stark
upon the lightest scrutiny of the cited evidence. It was not
necessary for Perez to present contradictory evidence to show
a genuine issue of fact; Thorntons itself had already done so.
Even if the record were less clear, however, Thorntons’
argument that Darlington and Picone acted so independently
that Koziol and Perez cannot meaningfully be compared
misses the mark. The point of determining whether different
decision makers were responsible is to determine whether two
employees were held to different standards by virtue of the
different perspectives and expectations of different and
independent decision makers. The inference of discrimination
is weaker when there are independent decision makers since
they “may rely on different factors when deciding whether,
and how severely, to discipline an employee.” Ellis v. United
Parcel Service, Inc., 523 F.3d 823, 826 (7th Cir. 2008). But in this
18 No. 12‐3669
familiar supervisory structure, where a supervisor and his
supervisor were both involved in the decision‐making process
for both employees, and the employees under review were
subject to the same standards, an employer cannot defeat the
inference of impermissible disparate treatment by designating
one supervisor as the nominal decision maker for one decision
and the other supervisor as the nominal decision maker for the
other. See, e.g., Coleman, 667 F.3d at 848 (employees were
similarly situated although immediate supervisors not
identical; higher‐level decision maker was “responsible” for
employees’ discipline). Even without Darlington’s testimony,
Thorntons’ statement of undisputed fact shows that Darlington
and Picone were acting in concert in both decisions, each fully
aware of what the other was doing and why. Darlington
sought Picone’s approval for firing Perez; Darlington was
present and involved when Picone disciplined Koziol. The bare
statements that Picone was the nominal decision maker for
Koziol and Darlington for Perez do not distinguish Koziol from
Perez, at least as a matter of law.
In sum, Perez and Koziol answered to the same decision
makers, were measured by the same standards, and committed
similar but not identical infractions, yet Perez, a Hispanic
female, was fired and Koziol, a non‐Hispanic male, was not. In
reviewing a grant of summary judgment, we must view the
facts and record in a light most favorable to Perez, and on this
record, the two were arguably similar enough to support a
prima facie case. Perez satisfied her prima facie burden under
the indirect method of proof.
No. 12‐3669 19
B. Pretext
Perez must next offer evidence supporting an inference
that Thorntons’ stated non‐discriminatory reason for her
termination—failure to “control cash and/or inventory”—was
a pretext for illegal discrimination. Perez “must present
evidence suggesting that the employer is dissembling.”
O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.
2011). “The question is not whether the employer’s stated
reason was inaccurate or unfair, but whether the employer
honestly believed the reasons it has offered to explain the
discharge.” Id. “It is not the court’s concern that an employer
may be wrong about its employee’s performance, or may be
too hard on its employee. Rather, the only question is whether
the employer’s proffered reason was pretextual, meaning that
it was a lie.” Naik v. Boehringer Ingelheim Pharmaceuticals, Inc.,
627 F.3d 596, 601 (7th Cir. 2010), quoting Ineichen v. Ameritech,
410 F.3d 956, 961 (7th Cir. 2005).
There is no dispute that Perez discounted the candy and
completed the purchase, and no suggestion that Thorntons
fabricated the incident or its belief that the incident happened.
However, “[i]f the stated reason, even if actually present to the
mind of the employer, wasn’t what induced him to take the
challenged employment action, it was a pretext.” Forrester v.
Rauland‐Borg Corp., 453 F.3d 416, 418 (7th Cir. 2006). There is
sufficient evidence in this record to infer that the discounted
purchase was not Thorntons’ true reason for Perez’s
termination.
For purposes of Thorntons’ motion for summary judgment,
we assume that Koziol, who had previously made sexist
20 No. 12‐3669
remarks, granted Perez permission to mark down the candy.
We also assume that Darlington knew of Koziol’s prior
expression of bias, but when he learned of Perez’s discounted
purchase, chose to believe Koziol over Perez when Perez told
him that she had Koziol’s permission and Koziol said she did
not.2 Darlington also knew when decided to fire Perez that
Koziol had committed a similar infraction a few months earlier
but had not been fired. A jury could reasonably infer from
these facts that Thorntons’ decision to fire Perez was
discriminatory and that its stated reason for its decision was a
pretext. See Coleman, 667 F.3d at 857–59 (different treatment of
2
Perez does not explicitly rely on a “cat’s paw” theory. See
Cook v. IPC Int’l Corp., 673 F.3d 625, 628 (7th Cir. 2012) (“the ‘cat’s
paw’ metaphor refers to a situation in which an employee is fired
or subjected to some other adverse employment action by a
supervisor who himself has no discriminatory motive, but who
has been manipulated by a subordinate who does have such a
motive and intended to bring about the adverse employment
action”); accord, Staub v. Proctor Hosp., ––– U.S. ––––, 131 S. Ct.
1186, 1192–94 (2011). She contends instead that Darlington was “a
knowing participant” in her wrongful termination. Indeed, we
assume that Darlington relied on Koziol’s version of events in
spite of his knowledge that Koziol had earlier made biased
remarks. Although Perez has not embraced a “cat’s paw” theory,
it would certainly seem to apply here. In fact, the inference is even
stronger than in the usual “cat’s paw” situation. If Perez’s
testimony is believed, Darlington was not Koziol’s unknowing
pawn but chose to credit Koziol in spite of his knowledge of
Koziol’s bias.
No. 12‐3669 21
comparable employees can support inference of pretext), citing
McDonnell Douglas v. Green, 411 U.S. at 804, and other cases.
Thorntons argues that any inference of discrimination is
negated because Darlington both hired and promoted Perez
before he fired her. The “common actor” or “same actor”
inference is a reasonable inference that may be argued to the
jury, but it is not a conclusive presumption that applies as a
matter of law. Blasdel v. Northwestern Univ., 687 F.3d 813, 820
(7th Cir. 2012), citing Herrnreiter v. Chicago Housing Auth.,
315 F.3d 742, 747 (7th Cir. 2002). The argument is that if the
decision maker was unbiased when he hired or promoted the
plaintiff, it’s reasonable to infer that he was unbiased when he
later fired the plaintiff. That inference is “something for the
trier of fact to consider.” Herrnreiter, 315 F.3d at 747.
Our dissenting colleague asserts that Koziol’s sexist
comments were “stray remarks” that do not support a finding
of pretext. Post at 34, citing Merillat v. Metal Spinners, Inc.,
470 F.3d 685, 694 (7th Cir. 2006). Standing alone, biased
comments do not establish discriminatory motive unless they
were by the decision maker and can be connected to the
decision. See, e.g., Overly v. KeyBank Nat. Ass’n, 662 F.3d 856,
865 (7th Cir. 2011); Davis v. Time Warner Cable of Southeastern
Wis., L.P., 651 F.3d 664, 672–73 (7th Cir. 2011); Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007) (“Isolated
comments that are no more than stray remarks in the
workplace are insufficient to establish that a particular decision
was motivated by discriminatory animus.”) (quotation
omitted).
22 No. 12‐3669
If Koziol’s biased remarks stood alone here, we might
agree. But they do not. For purposes of summary judgment, we
must assume also that Darlington, who later decided to
terminate Perez, was informed of Koziol’s bias, chose to place
Perez at his store anyway, and later, when Darlington
investigated Perez’s decision to sell the discounted candy to
herself, was told by Perez that Koziol had given permission for
her purchase. Koziol denied that he had done so. Darlington
chose to credit Koziol in spite of his knowledge that Koziol
harbored a sexist bias. Also, Darlington knew at the time that
he decided to terminate Perez that Koziol himself had
committed a similar infraction a few months earlier but had
not been fired. A jury could reasonably infer from this record
that Thorntons’ stated reason for its decision to fire Perez was
a pretext.
This case actually highlights an interesting linkage, or
perhaps a disconnect, between the cases using the “common
actor” inference and cases dealing with “stray remarks.” The
common actor inference says it is reasonable to assume that if
a person was unbiased at Time A (when he decided to hire the
plaintiff), he was also unbiased at Time B (when he fired the
plaintiff). Again, that is not a conclusive presumption, but we
treat it as a reasonable inference. E.g., Herrnreiter, 315 F.3d at
747. Some “stray remarks” cases, though, seem to conclude
that if a person was racist or sexist at Time A (time of the
remark), it is not reasonable to infer that the person was still
racist or sexist at Time B (when he made or influenced the
decision to fire the plaintiff). See, e.g., Bahl v. Royal Indemnity
Co., 115 F.3d 1283, 1293 (7th Cir. 1997). Cf. Hunt v. City of
Markham, 219 F.3d 649, 652–53 (7th Cir. 2000) (courts must take
No. 12‐3669 23
care not to over‐read “stray remarks” cases; remarks may be
probative of discriminatory intent if made by decision makers
or those with input into the decision, and if made around of
the time of and in reference to adverse employment action).
It is not clear why one inference should be reasonable and
the other not. The question, however, need not be answered in
the abstract. In this case, plaintiff Perez has offered evidence:
(a) that her supervisor expressed his bias against her for being
a woman and Hispanic, (b) that he gave her permission to
make the discounted purchase that led to her firing and then
lied about doing so when asked by his supervisor, and (c) that
his supervisor who decided to fire Perez was aware at least of
the bias against women and had been involved in the decision
merely to warn her supervisor for comparable wrongdoing.
We do not presume lack of bias when the same person has
both hired and fired the plaintiff, but we allow the jury to hear
such evidence and weigh it for what it is worth. We do so even
though the hiring may be distant in time from the firing
decision. Similar reasoning applies to Koziol’s remarks, which
were made about a year before Perez’s termination. The time
difference might lessen their evidentiary punch, but the
passage of time does not make them inadmissible. Just as the
jury should be permitted to consider the fact that Darlington
hired and promoted but then fired Perez, it should also be able
to consider that Koziol expressed bias against women and
Hispanics in the workplace a year before he became a witness
in the investigation into Perez’s conduct and provided
information to Darlington that led to her firing. We do not hold
that Koziol’s remarks standing alone would be sufficient to
satisfy Perez’s entire evidentiary burden at summary
24 No. 12‐3669
judgment. But Koziol’s remarks are part of the evidence of
pretext that the jury should have the opportunity to weigh at
trial.
Accordingly, Perez has satisfied the indirect method of
proof sufficient to avoid summary judgment.
II. Direct Method
Under the direct method of proof, a plaintiff must provide
either direct or circumstantial evidence that the employer had
a discriminatory motive. Naficy, 697 F.3d at 509. Direct
evidence of discrimination would require something akin to an
admission by Thorntons that it fired Perez because of her
national origin or gender. See Raymond v. Ameritech Corp.,
442 F.3d 600, 610 (7th Cir. 2006). Perez does not present such
evidence. Instead, she proceeds under the direct method using
circumstantial evidence. To prevail, Perez must “construct a
convincing mosaic” that “allows a jury to infer intentional
discrimination by the decisionmaker.” Brown v. Advocate South
Suburban Hosp., 700 F.3d 1101, 1105 (7th Cir. 2012) (internal
quotation marks omitted). Generally, but not exclusively, the
pieces of that “mosaic” will fall into three categories. The first
includes “suspicious timing, ambiguous statements oral or
written, and other bits and pieces from which an inference of
retaliatory intent might be drawn.” Cloe v. City of Indianapolis,
712 F.3d 1171, 1180 (7th Cir. 2013) (quotation omitted). The
second is “evidence, but not necessarily rigorous statistical
evidence, that similarly situated employees were treated
differently.” Id. And the third is “evidence that the employer
offered a pretextual reason for an adverse employment action.”
Id.
No. 12‐3669 25
Perhaps illustrating the eroding boundary between direct
and indirect proof, our discussion of the indirect method
shows how Perez has offered a direct case. Perez has presented
circumstantial evidence here from which a jury could
reasonably infer that her firing was the product of illegal
discrimination. Darlington knew that a few months earlier,
Koziol had been warned but not fired when he concealed the
fact that a large quantity of alcohol had been stolen from the
store and then concocted a secret and risky scheme to catch the
thief by inviting additional theft. His conduct did not cause the
store to suffer actual economic loss, but he covered up actual
economic loss and risked future economic loss. We must
assume that Darlington also knew that Koziol had expressed
his bias against women in the past. And, we must assume that
he knew that Koziol had given Perez permission to mark down
the candy bars and sell them to herself. Yet, in spite of this
knowledge, Darlington decided to fire Perez, while Koziol had
not been fired for arguably comparable conduct. This is
sufficient circumstantial evidence to construct the “convincing
mosaic” that would allow a jury to infer that the decision to
terminate Perez was impermissibly biased.
Thorntons contends, and the dissent agrees, that Koziol’s
biased remarks cannot establish discriminatory motive because
they were isolated, stray remarks. Post at 38‐39. We do not find
that Koziol’s remarks would be sufficient standing alone. But
his remarks do not stand alone. They are coupled with the
other evidence in the record, including especially the fact that
Koziol, a non‐Hispanic male, received merely a warning while
Perez, a Hispanic female, was fired, for arguably comparable
“inventory control” infractions, and that Perez’s firing was
26 No. 12‐3669
founded on Darlington’s decision to credit Koziol—in spite of
his known bias—over Perez. Whether Darlington actually
embraced Koziol’s bias or whether Koziol’s bias merely
infected Darlington’s investigation and ensuing decision to fire
Perez, we cannot, at least as a matter of law, disregard Koziol’s
comments as “stray remarks” that say nothing about Perez’s
firing.
Whether Perez will be able to convince a jury that she was
fired because of her gender or national origin remains to be
seen, but she is entitled to have a jury answer those questions.
On this summary judgment record, Perez prevails under both
the indirect and direct methods of proof. The judgment of the
district court is REVERSED and the case is REMANDED for further
proceedings consistent with this opinion.
No. 12‐3669 27
RIPPLE, Circuit Judge, dissenting. The majority reaches the
conclusion that Ms. Perez’s claim of discriminatory discharge
should reach the jury by abandoning the procedural constructs
and the substantive standards that have long governed our
review of discrimination cases. I believe that, when properly
applied, these cornerstones of our jurisprudence lead to the
conclusion that, as a matter of law, Ms. Perez cannot establish
a claim for intentional discrimination. I therefore respectfully
dissent.
A.
Beginning, as did the majority, with the indirect method,
Ms. Perez bears the initial burden of establishing a prima facie
case of discrimination by showing that a similarly situated
employee outside her protected class committed a similar
infraction and was treated less harshly. Lucas v. Chicago Transit
Auth., 367 F.3d 714, 728 (7th Cir. 2004). The similarly situated
employee does not have to be identical, but, to meet her
burden, Ms. Perez must point to an employee who is similar to
her in all material respects. “A meaningful comparison is one
which serves ‘to eliminate confounding variables, such as
differing roles, performance histories, or decision‐making
personnel, which helps isolate the critical independent vari‐
able: complaints about discrimination.’” Argyropoulos v. City of
Alton, 539 F.3d 724, 735 (7th Cir. 2008) (quoting Humphries v.
CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007)); see also Good
v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675‐76 (7th Cir. 2012).
“In disciplinary situations, we have further interpreted this
part of the test as requiring a showing that the two employees
28 No. 12‐3669
dealt with the same supervisor, were subject to the same
workplace rules, and engaged in similar conduct, but nonethe‐
less received disparate treatment for no apparent legitimate
reason.” Adams v. Wal‐Mart Stores, Inc., 324 F.3d 935, 939‐40
(7th Cir. 2003).
Ms. Perez, a Thorntons retail store manager, proposes to
meet this burden by comparing herself to her supervisor and
store general manager, Don Koziol. She contends, contrary to
the facts she admitted in her Local Rule 56.1 statement and
discussed in her opposition to summary judgment, that she
and Koziol were disciplined by the same decisionmaker. She
also maintains that her action of purchasing candy bars for
herself at a steep discount and causing a loss to Thorntons is
essentially the same conduct as Koziol’s action of making up
a loss by using personal funds to pay full price for missing
alcohol. Faithful adherence to the principles in our established
case law precludes our acceptance of these arguments.
1.
First, Ms. Perez cannot now allege that she and Koziol were
disciplined by the same decisionmaker because she is bound
by the admissions that she made in her Local Rule 56.1
statement. In its Local Rule 56.1(a) statement of undisputed
facts, Thorntons stated that Darlington made the decision to
fire Ms. Perez and that “Darlington played no role in Picone’s
discipline decision regarding Koziol’s June and July 2009 beer
purchase.” R.59 ¶¶ 41, 45 (Defendant’s Statement of
Undisputed Facts). Ms. Perez’s Local Rule 56.1(b) statement in
response did not dispute these facts, see R.62 ¶¶ 41, 45, thus
No. 12‐3669 29
they are deemed admitted, N.D. Ill. L. R. 56.1(b)(3)(C) (“All
material facts set forth in the statement required of the moving
party will be deemed admitted unless controverted by the
statement of the opposing party.”); see also Adams, 324 F.3d at
937 (“accepting as true the material facts submitted by
Wal‐Mart that Adams did not properly contest”). The district
court correctly relied on the Local Rule 56.1 statements in
ruling on the summary judgment motion, see Koszola v. Bd. of
Educ., 385 F.3d 1104, 1109 (7th Cir. 2004) (“[A] district court is
entitled to decide the motion based on the factual record
outlined in the [Local Rule 56.1] statements.” (internal quota‐
tion marks omitted)), and, in relying on those statements,
correctly determined that the difference in decisionmaker was
one of the confounding variables that prevented an adequate
comparison between Koziol and Ms. Perez, see Ellis v. United
Parcel Serv., Inc., 523 F.3d 823, 826 (7th Cir. 2008) (“So, to be
similarly situated, a manager must have been treated more
favorably by the same decisionmaker … .”). At this stage, we
are not at liberty to look beyond Ms. Perez’s admissions in her
statement. See Koszola, 385 F.3d at 1109 (“[O]ur de novo review
of [the district court’s] grant of summary judgment will
likewise rest only on the [defendant’s] Local Rule 56.1(a)
statement and [the plaintiff’s] Local Rule 56.1(b) response.”).3
3
The majority spends several pages explaining why, despite Ms. Perez’s
failure to “respond … as clearly as she should have” to Thorntons’ Rule 56.1
statement, the court nevertheless should look beyond that failure in
determining whether the district court erred in granting summary
judgment. Maj. Op. at 13.
With respect, I disagree with my colleagues on one matter of record:
(continued...)
30 No. 12‐3669
3
(...continued)
Ms. Perez did not simply fail “to respond … as clearly as she should have”
to Thorntons’ statements regarding who made the decisions to terminate
her employment (Darlington) and to discipline Koziol (Picone). Ms. Koziol
did not dispute these facts at all in her responsive statement. Moreover, in
her brief in opposition to Thorntons’ motion for summary judgment, she
affirmatively identified Darlington as the decisionmaker who made the
decision to terminate her employment. See R.61 at 5 (“Here, we have
Darlington, the decision‐maker … .”); id. (“Mr. Darlington fired her … .”).
I also cannot agree with my colleagues that the record evidence
contradicts Thorntons’ “assertions that Darlington played no role in
Picone’s decision to discipline but not fire Koziol and that Picone played no
role in the decision to fire Perez.” Maj. Op. at 13 (emphasis added). The
exchange that the majority recounts on pages 14‐16 of its opinion begins, as
identified in Thorntons’ Rule 56.1 statement ¶ 43, on page 88 of Darlington’s
deposition, with the following set of questions:
Q Did you, yourself, investigate the circumstances of
[Koziol’s] situation?
A I was involved in the investigation.
Q Okay. What part did you play?
A I accompanied Sam Picone when he went to the
store to get Don’s statement.
Q When you say “get Don’s statement,” do you
mean a written statement?
A No, just orally.
Q That happened in the office?
A At Store 301, yes.
Q With just the three of you?
A Yes.
(continued...)
No. 12‐3669 31
Second, although Ms. Perez and Koziol both violated store
policies and each’s conduct was categorized generally as a
problem with “inventory control,” the underlying facts of each
situation were vastly different. Koziol noticed missing
inventory and used his personal funds to make up for any loss
3
(...continued)
R.60‐4 at 17 (Darlington Dep. 88). Darlington could speak with authority as
to what transpired during the investigation of Koziol because he was
present when it occurred and, perhaps, although it is not entirely clear,
participated in the questioning of Koziol. None of the testimony that
follows, which details Koziol’s statement and the actions that ensued,
contradicts Thorntons’ assertion in its Rule 56.1 statement that “Darlington
played no role in Picone’s discipline decision regarding Koziol’s June and July
2009 beer purchase … .” R.59 ¶ 45 (emphasis added). Indeed, that may have
been the reason that Ms. Perez did not contest the fact in the district court.
In the end, the majority’s effort to tease out of the record a genuine
issue of triable fact not asserted in the Rule 56.1 statements proves too
much. Indeed, its effort demonstrates the value of Rule 56.1 in “clarify[ing]
and sharpen[ing]” the issues for the court’s consideration. Maj. Op. at 13.
[Local Rule] 56.1 and similar rules assist the district court
by “organizing the evidence, identifying undisputed facts,
and demonstrating precisely how each side proposed to
prove a disputed fact with admissible evidence.” Bordello
v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir.
2000) (citation omitted). It is not the duty of the district
court to scour the record in search of material factual
disputes, nor is it ours.
Roger Whitmore’s Auto. Servs., Inc. v. Lake County, Ill., 424 F.3d 659, 664 n.2
(7th Cir. 2005). Ms. Perez failed to comply with the local rules, and, in an
effort to make her case for her, the majority, in derogation of Rule 56.1, has
scoured the record in a futile searcfor factual disputes.
32 No. 12‐3669
to the employer. Ms. Perez created loss for the employer by
selling inventory to herself at a steep discount. She does not
dispute that Darlington fired her for marking down and
purchasing the candy without approval, R.62 ¶ 42, or that
“Picone did not discharge Koziol because Koziol paid full retail
value for the alcohol,” id. ¶ 45. The majority takes the view that
a jury may perceive Koziol’s actions to be on par with those of
Ms. Perez, and that, therefore, we must send this case to the
jury. See Maj. Op. at 10‐12. Respectfully, our case law requires
another approach. “We have repeatedly said we do not sit as
a super‐personnel department to determine which employ‐
ment infractions deserve greater punishment. It is enough that
the misconduct that led to the adverse job action in question is
sufficiently distinct to render the proposed comparators not
similarly situated.” Harris v. Warrick Cnty. Sheriff’s Dep’t, 666
F.3d 444, 449 (7th Cir. 2012) (citation omitted). Darlington was
entitled to conclude that Ms. Perez’s conduct, which resulted
in an actual loss to the company, was materially different from
Koziol’s conduct, which had no such effect. The mere fact that
both might, in the most general sense, be given the generic
label of “inventory control” does not mean that Thorntons was
required to characterize them in that manner and to address
them in the same way. Thorntons was entitled to assess the
conduct of Koziol and that of Ms. Perez in terms very different
from the second‐guess of the majority. It was entitled to regard
Ms. Perez’s action as pilferage of company assets and Koziol’s
as involving no such loss but constituting poor managerial
judgment. An employer is free to respond to dissimilar
conduct in different ways, cf. Adams, 324 F.3d at 940
(concluding that a situation involving an employee who ate
No. 12‐3669 33
another employee’s pudding was “significantly different” from
a situation where an employee allegedly stole $12.65 from
another employee), and such an approach does not suggest an
invidious motive.4
2.
Even if Ms. Perez had met her burden by pointing to a
similarly situated employee, she fails to point to evidence
showing that Thorntons’ legitimate, non‐discriminatory
business reason for her termination—that Ms. Perez’s policy
violation caused a loss to the company—was pretextual. To
rebut an employer’s legitimate, non‐discriminatory reason for
an employment decision, the plaintiff must point to evidence
tending to show that the employer’s reason is a lie, not just that
the employer’s evaluation was incorrect. Naik v. Boehringer
Ingelheim Pharm., Inc., 627 F.3d 596, 601 (7th Cir. 2010); Kariotis
v. Navistar Intʹl Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997).
To show pretext, the plaintiff must do more than assert that “a
jury could disbelieve” the reason proffered by the employer.
4
I also note that Ms. Perez fails to point to any evidence suggesting that she
and her supervisor had the same roles, were subject to the same discipline
standards and were subject to the same workplace rules. The little record
evidence on this topic suggests that they had different roles and were
subject to at least some differing rules. See R.60‐5 at 12 (Perez Dep. 44)
(noting that Koziol set the work schedule for the store); id. at 14 (Perez Dep.
54‐55) (noting that Koziol had a more flexible work schedule); R.60‐4 at 33
(Darlington Dep. 52) (same). Thorntons, however, did not offer these
differences as a basis for the more severe discipline imposed upon
Ms. Perez.
34 No. 12‐3669
Johnson v. Hondo, Inc., 125 F.3d 408, 415 (7th Cir. 1997); cf. EEOC
v. G‐K‐G, Inc., 39 F.3d 740, 746‐47 (7th Cir. 1994) (noting that a
plaintiff “could not … have gotten to the jury if his only
‘evidence’ had been that the defendants’ witnesses were not
worthy of belief”). Rather, she “must point to evidence
suggesting that [the employer] itself did not honestly believe
that explanation.” Giannopoulous v. Brach & Brock Confections,
Inc., 109 F.3d 406, 411 (7th Cir. 1997); see also Adams, 324 F.3d at
939‐40 (“It was up to Adams to produce evidence showing that
Wal‐Mart did not genuinely believe that she had lifted the
$12.65.”). In making this showing, “stray remarks” usually are
insufficient to establish pretext unless “those remarks are made
by the decision‐maker or one having input in a decision, and
are made (1) around the time of, and (2) in reference to, the
adverse employment action complained of.” Merillat v. Metal
Spinners, Inc., 470 F.3d 685, 694 (7th Cir. 2006) (internal quota‐
tion marks omitted).
Here, the only evidence in support of Ms. Perez’s claim that
Darlington was lying about the reason behind his decision to
terminate her is that, in November 2008, approximately one
year before Ms. Perez was terminated, she told Darlington that
Koziol had told her that Koziol does not like to work with
women. This single comment, removed temporally from the
termination decision and by someone who did not participate
in the decision, is simply not sufficient to show that
Darlington’s testimony was a lie. Ms. Perez speculates that the
year‐old comment “tainted” Darlington’s decision, but she
points to no evidence suggesting that Koziol had the slightest
influence over Darlington or that Darlington harbored his own
No. 12‐3669 35
discriminatory views. The fact that a jury could disbelieve
Darlington is not sufficient. See Johnson, 125 F.3d at 415.
The majority suggests that, although the passage of time
“might lessen th[e] evidentiary punch” of these remarks, it
“does not make them inadmissible.” Maj. Op. at 23. However,
“remarks unrelated to the employment decision in question
may not overcome summary judgment if they stand alone as
evidence of the employer’s discriminatory intent.” Huff v.
UARCO, Inc., 122 F.3d 374, 385 (7th Cir. 1997). It is undisputed
that Koziol’s remarks allegedly were made and reported to
Darlington one year prior to Darlington’s decision to terminate
Ms. Perez’s employment. Koziol’s remarks, therefore, as a
matter of law, cannot suffice to establish pretext.
The majority posits, however, that these remarks do not
stand alone—that they must be evaluated in light of the
difference in punishment meted out against Koziol for his
inventory infraction and Ms. Perez for hers. However, nothing
about the disparity in punishment suggests that Thorntons’
proffered reason for terminating Ms. Perez’s
employment—that her actions resulted in actual economic loss
to the company—was a lie. The majority criticizes Thorntons’
approach because, in its view, Koziol’s scheme was more
detrimental to the company; according to the majority, Koziol’s
actions “risked future economic loss.” Maj. Op. at 25. Therein,
however, the majority validates the distinction Thorntons
drew. Koziol’s actions, at some point in the future, may have,
but as of yet had not, affected Thorntons’ bottom line. Ms.
Perez’s actions had. Indeed, Darlington testified to just this
distinction:
36 No. 12‐3669
[Darlington]: There’s only one reason why Don
[Koziol] did not get terminated.
Q[uestion]: And that is what?
[Darlington]: Because he put, personally, on his
credit card and not created a shortage for Thorntons.
R.60‐4 at 19 (Darlington Dep. 94).
B.
Ms. Perez’s effort to set forth a claim under the direct
method suffers from similar infirmities. A case under the
“direct” method may rely on circumstantial evidence, but
“[t]hat circumstantial evidence[] … must point directly to a
discriminatory reason for the employer’s action.” Adams, 324
F.3d at 939. It is not sufficient that a jury might guess or
speculate that gender or “race might have made a difference in
the decision,” because “guesswork and speculation are not
enough to avoid summary judgment.” Good, 673 F.3d at 675.
“[T]here must be a real link between the bigotry and an
adverse employment action.” Gorence v. Eagle Food Ctrs., Inc.,
242 F.3d 759, 762 (7th Cir. 2001) (noting that a statement such
as, “Old women are hard to deal with,” without more, does not
show intentional discrimination). The court views the evidence
in the light most favorable to the plaintiff and makes reason‐
able inferences therefrom, but reasonable inferences do not
include every possible inference, only those supported by the
record. Overly v. KeyBank Nat’l Assʹn, 662 F.3d 856, 863 (7th Cir.
2011).
No. 12‐3669 37
As with the indirect method, stray remarks do not point
directly to discrimination unless the decisionmaker or one with
input in the decision made the comment around the time of, or
in reference to, the adverse employment action. Id. at 865.
“Further, the ‘statements of a person who lacks the final
decision‐making authority may be probative of intentional
discrimination,’ but only ‘if that individual exercised a signifi‐
cant degree of influence over the contested decision.’” Nichols
v. S. Ill. Univ.‐Edwardsville, 510 F.3d 772, 782 (7th Cir. 2007)
(quoting Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 813 (7th
Cir. 2007)).
Ms. Perez’s circumstantial evidence that Darlington was
motivated by gender or race animus consists of the following:
In 2008, Darlington transferred Ms. Perez to give her
experience at a higher level store. When Ms. Perez met Koziol,
Koziol told her that he did not like to work with women; in
response, Ms. Perez reported this statement to Darlington and
requested to be moved back to her former position. Darlington
told Ms. Perez that Koziol’s store was the only opening and
that she could work there or leave the company. One year
later, in November 2009, Darlington conducted an investiga‐
tion into Ms. Perez’s manual override of the price of a large
number of candy bars. Darlington, after consultation with
Roberts (from human resources), met with Koziol about the
override, who denied knowing about the override or giving
permission to conduct the override. Darlington, with Roberts
conferenced in by telephone, then met with Ms. Perez, who
claimed that Koziol gave her permission to perform the
override. After Ms. Perez departed, Darlington spoke with
38 No. 12‐3669
Roberts and expressed his desire to terminate Ms. Perez’s
employment; Roberts agreed with that decision.
Here, the employment action was taken by Darlington, in
consultation with Roberts. There is no evidence in this record
that Darlington or Roberts ever harbored an insidious motive.5
In order to prevail, Ms. Perez not only must tie Koziol’s sexist
statements to Darlington, but establish that Koziol’s alleged
sexism infected Darlington’s decision to terminate Ms. Perez’s
employment. Ms. Perez’s direct evidence case relies, therefore,
on the force and effect that Koziol’s discriminatory statement
had on Darlington’s decision nearly one year after it was made.
We have held that if discriminatory “remarks are not contem‐
poraneous with the discharge or causally related to the
discharge decision making process, they are insufficient to
create a triable issue of material fact regarding discrimination.”
Oest v. Illinois Dep’t of Corr., 240 F.3d 605, 611 (7th Cir. 2001)
(internal quotation marks omitted). Had Ms. Perez’s discharge
been based on a potentially false report by Koziol shortly after
he made a known, derogatory statement about women or
Hispanic employees, then there might be a triable issue of fact.
That is not the situation we have here. Here, taking the
evidence in the light most favorable to Ms. Perez, Darlington
5
The majority emphasizes that Darlington knew of Koziol’s bias against
women employees because of Koziol’s year‐old statement. From that
knowledge, without any evidence that Darlington shared that bias, the
majority holds it is entirely appropriate to assume that Darlington shared
Koziol’s bias and acted on it. It fails to address why it is not just as
likely—and perhaps more likely—that a senior manager, knowing of a
subordinate’s bias, would take that bias into account in assessing the
subordinate’s account of the transaction.
No. 12‐3669 39
had knowledge of only one discriminatory comment by Koziol,
and there was no temporal or causal connection between that
remark and her discharge. Under our case law, such a remark
does not raise the spectre of discrimination, and Darlington
was entitled to conclude similarly in making his termination
decision.
Ms. Perez’s case also cannot be saved under the “cat’s paw”
theory. “The cat’s paw theory applies in the employment
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.” Johnson v. Koppers, Inc., 2013 WL 4022294,
at *3 (7th Cir. Aug. 8, 2013) (internal quotation marks omitted).
The cat’s paw theory, however, cannot be employed to impute
a discriminatory motive to an unbiased decisionmaker when
the “decisionmaker conducts a meaningful and independent
investigation of the information being supplied by the biased
employee.” Schandelmeier‐Bartels v. Chi. Park Dist., 634 F.3d 372,
383 (7th Cir. 2011). Here, there is no question that Darlington
both viewed the video of Ms. Perez conducting the override
and interviewed Ms. Perez in person concerning her actions.
In sum, this record does not contain circumstantial evi‐
dence that “point[s] directly to a discriminatory reason for the
employer’s action.” Adams, 324 F.3d at 939. The district court,
therefore, did not err in concluding that Ms. Perez had failed
to establish a discriminatory discharge under the direct
method.
40 No. 12‐3669
C.
The approach employed by the majority does not simply
force Thorntons to defend a discrimination claim that has no
basis in fact. It creates serious ambiguity, and instability, into
settled law. It will encumber, substantially, the work of both
the bench and bar in this frequently litigated area.
This decision signals the end of Rule 56.1 statements as an
effective means of narrowing the factual issues before the
district courts. If appellate panels are free to look beyond these
statements to determine if parties have raised genuine issues
of material fact, then litigants will not take seriously their
obligations under Rule 56.1, and the district courts will lose an
important tool for “organizing the evidence and identifying
disputed facts,” FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627,
633 (7th Cir. 2005), and instead will be “obliged … to scour the
record looking for factual disputes,” Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 922 (7th Cir. 1994).
Stray remarks, even those of ancient vintage and not in any
way attributable to the decisionmaker, will now result in
employer accountability. Similarly, the “cat’s paw” theory of
employer liability has been cut loose from its logical and
experiential moorings to become a virtual engine of destruction
of good‐faith efforts to administer a fair employee disciplinary
system. After today’s decision, if it remains the law of the
circuit, an employer can no longer act with the confidence that
he has obeyed the law if he treats similarly situated individuals
similarly in disciplinary matters. His assessment of the
similarity of employee conduct in the real‐world circumstances
of the workplace will now be subject to appellate court re‐
No. 12‐3669 41
characterization at a meaningless level of abstraction. The
Supreme Court has stated that we must “ensure that Title VII
does not become a ‘general civility code.’” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998). When the remarks of an
employee, made approximately one year prior to a termination
decision, can be imputed to an employer and used as a basis
for Title VII liability, however, employers will have no choice
but to put into place and rigorously enforce just such a code.
This case, if decided under the established norms of this
court’s jurisprudence, would pose no extraordinary question
of law and would yield no novel principle or unique methodol‐
ogy to disturb the established expectations of the practicing
bench and bar. Unfortunately, today’s opinion takes a different
course. Its interpretation of established law and the methodol‐
ogy it sanctions will have, I fear, a jarring effect on the bench
and bar of the circuit. It will unduly confuse and complicate
the tasks of those who judge, litigate and counsel in this
important area of discrimination law. Accordingly, I respect‐
fully dissent.