In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1934
ELIZABETH CASTRO, et al.,
Plaintiffs‐Appellants,
v.
DEVRY UNIVERSITY, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 5869 — Sheila Finnegan, Magistrate Judge.
____________________
ARGUED OCTOBER 2, 2014 — DECIDED MAY 13, 2015
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiffs Elizabeth Castro,
LaTonya Brooks, and Michael Florez sued their former em‐
ployer, defendant DeVry University, Inc., under Title VII of
the Civil Rights Act of 1964. Plaintiffs allege that DeVry re‐
taliated against them by terminating their employment for
complaining about their supervisor’s racially and ethnically
2 No. 13‐1934
derogatory remarks. DeVry transferred the supervisor about
three months after plaintiffs complained. After that time, he
neither supervised plaintiffs nor participated in any of the
termination decisions. Plaintiffs were discharged at different
times, from ten to thirty months after their complaint, and
the evidence concerning their individual circumstances and
job performance varies. The district court granted summary
judgment to DeVry on all three retaliation claims.
We affirm the district court’s decision on the claims by
Castro and Brooks, but we reverse its decision on the claim
by Florez. Castro was terminated thirty months after the
complaint because of poor performance over a sustained pe‐
riod. Brooks was terminated fifteen months after the com‐
plaint because of multiple instances of dishonesty and in‐
consistent performance. Neither Castro nor Brooks has
raised a genuine issue of material fact on whether these rea‐
sons were pretexts for retaliation.
Florez, however, has raised a genuine issue of material
fact about retaliatory motive. He was terminated ten months
after the complaint for two stated reasons: inconsistent per‐
formance and his “volatile behavior.” On appeal, DeVry has
conceded that Florez’s performance did not justify his termi‐
nation. Florez has also offered evidence that DeVry’s “vola‐
tile behavior” explanation was a pretext for retaliation. First,
he has presented evidence that his managers did not honest‐
ly believe he had behaved unprofessionally. Second, he has
offered evidence that DeVry falsely told the Equal Employ‐
ment Opportunity Commission that his manager—who
made the key recommendation for his firing—did not know
about the complaint when in fact she did know. Third, an
email recommending his termination referred specifically to
No. 13‐1934 3
his complaint about the supervisor’s remarks. Although a
reasonable jury would not be compelled to find retaliation
on this record, such a finding would be permissible. DeVry
was not entitled to summary judgment on Florez’s claim.
I. Procedural Background
Plaintiffs filed suit under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., asserting two claims: (1)
they were subjected to a racially and ethnically hostile work
environment, and (2) DeVry terminated their employment in
retaliation for complaining about their supervisor’s racially
and ethnically derogatory remarks. The parties consented to
the jurisdiction of the magistrate judge under 28 U.S.C.
§ 636(c).
After more than a year of discovery, DeVry moved for
summary judgment on all claims. Plaintiffs conceded that
their hostile work environment claims should be dismissed
but argued that they had raised genuine issues of material
fact on their respective retaliation claims. The district court
disagreed, granting summary judgment to DeVry on all
three retaliation claims. Castro v. DeVry University, Inc., 941 F.
Supp. 2d 965 (N.D. Ill. 2013).
We review de novo the grant of summary judgment, ex‐
amining the record in the light most favorable to the non‐
moving parties and drawing all reasonable inferences in
their favor. E.g., Carter v. Chicago State University, 778 F.3d
651, 657 (7th Cir. 2015). Summary judgment is appropriate
only where there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
4 No. 13‐1934
II. The Law of Retaliation & Summary Judgment
Title VII prohibits employers from retaliating against
employees who engage in activity protected by the statute.
42 U.S.C. § 2000e‐3(a). We have often said there are two ways
plaintiffs may prove their claims, which we have labeled the
“direct” and “indirect” methods of proof. E.g., Silverman v.
Board of Education of City of Chicago, 637 F.3d 729, 740 (7th Cir.
2011). But over the past several years, we have questioned
the utility of the distinctions between them, recognizing that
both methods of proof converge on the same fundamental
question: could a reasonable trier of fact infer retaliation or
discrimination, as the case may be? See, e.g., Bass v. Joliet
Public School District No. 86, 746 F.3d 835, 840 (7th Cir. 2014);
Perez v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir. 2013);
Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013);
Naficy v. Illinois Dep’t of Human Services, 697 F.3d 504, 514 (7th
Cir. 2012); Harper v. C.R. England, Inc., 687 F.3d 297, 313–14
(7th Cir. 2012); Coleman v. Donahoe, 667 F.3d 835, 862–63 (7th
Cir. 2012) (Wood, J., concurring).
Plaintiffs proceed under only the direct method of proof.
Under this method, plaintiffs must offer evidence of three
elements: (1) they engaged in protected activity, (2) they suf‐
fered adverse employment actions, and (3) there was a caus‐
al connection between the protected activity and the adverse
employment actions. E.g., Greengrass v. Int’l Monetary Sys‐
tems Ltd., 776 F.3d 481, 485 (7th Cir. 2015). Whether we apply
this method formally or just cut to the chase and ask the
fundamental question directly—could a reasonable trier of
fact infer retaliation?—makes no difference.
The first two elements are satisfied. Plaintiffs complained
to Human Resources manager Alana Hurt on April 16, 2007
No. 13‐1934 5
that their supervisor, Phil Giambone, often used racially and
ethnically derogatory language in the workplace. Whether
Giambone’s comments went so far as to violate Title VII does
not matter. Plaintiffs sincerely and reasonably believed they
were complaining about conduct prohibited by Title VII,
which is all that is required to establish protected activity.
E.g., Magyar v. St. Joseph Regional Medical Center, 544 F.3d 766,
771 (7th Cir. 2008). The plaintiffs were all terminated at vari‐
ous times after the complaint. A termination is of course a
materially adverse employment action. E.g., Nichols v. South‐
ern Illinois University–Edwardsville, 510 F.3d 772, 780 (7th Cir.
2007).
The question is whether plaintiffs have offered sufficient
evidence to create a genuine issue of material fact on wheth‐
er their complaint caused their terminations. To establish
this causal link, plaintiffs can rely on direct or circumstantial
evidence. E.g., Harper, 687 F.3d at 307. Plaintiffs do not claim
they have any direct evidence of DeVry’s retaliation—i.e.,
there is no admission from a DeVry agent that it discharged
the plaintiffs because they complained. Plaintiffs rely on cir‐
cumstantial evidence.
Circumstantial evidence suffices if “a convincing mosaic
of circumstantial evidence” would permit a reasonable trier
of fact to infer retaliation by the employer. Rhodes v. Illinois
Dep’t of Transportation, 359 F.3d 498, 504 (7th Cir. 2004) (in‐
ternal quotation marks omitted). In retaliation cases, we
have recognized three categories of circumstantial evidence
available to a plaintiff using the “convincing mosaic ap‐
proach.” Coleman, 667 F.3d at 862. These categories include
(1) evidence of suspicious timing, (2) evidence that similarly
situated employees were treated differently, and (3) evidence
6 No. 13‐1934
that the employer’s proffered reason for the adverse em‐
ployment action was pretextual. Id. at 860, citing Silverman,
637 F.3d at 734 (suspicious timing); Volovsek v. Wisconsin
Dep’t of Agriculture, Trade & Consumer Protection, 344 F.3d 680,
689 (7th Cir. 2003) (disparate treatment); Dickerson v. Board of
Trustees of Community College District No. 522, 657 F.3d 595,
601 (7th Cir. 2011) (pretext). Each category of circumstantial
evidence can suffice by itself to preclude summary judg‐
ment, depending on its strength in relation to the other evi‐
dence, but plaintiffs may also use them together. Coleman,
667 F.3d at 862; Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736
(7th Cir. 1994). Here, plaintiffs rely on both suspicious tim‐
ing and pretext.
Suspicious timing can sometimes raise an inference of a
causal connection, but temporal proximity alone is “rarely
sufficient” to establish causation. O’Leary v. Accretive Health,
Inc., 657 F.3d 625, 635 (7th Cir. 2011). We have rejected any
bright‐line rule about how close the events must be to estab‐
lish causation, but in cases where there is “corroborating ev‐
idence of retaliatory motive,” an “interval of a few weeks or
even months may provide probative evidence of the re‐
quired causal nexus.” Coleman, 667 F.3d at 861. We have also
noted, though, that the mere passage of time “does not con‐
clusively bar an inference of retaliation.” Malin v. Hospira,
Inc., 762 F.3d 552, 560 (7th Cir. 2014) (reversing summary
judgment for employer where evidence showed patient re‐
taliation over period of several years).
To show pretext, an employee “must present evidence
suggesting that the employer is dissembling.” O’Leary, 657
F.3d at 635; see also Naik v. Boehringer Ingelheim Pharmaceuti‐
cals, Inc., 627 F.3d 596, 601 (7th Cir. 2010). “The question is
No. 13‐1934 7
not whether the employer’s stated reason was inaccurate or
unfair, but whether the employer honestly believed the rea‐
son it has offered to explain the discharge.” O’Leary, 657 F.3d
at 635. To meet this burden, the employee “must ‘identify
such weaknesses, implausibilities, inconsistencies, or contra‐
dictions’” in the employer’s proffered reason “‘that a reason‐
able person could find [it] unworthy of credence.’” Coleman,
667 F.3d at 852 (alteration in original), quoting Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007).
To survive summary judgment, plaintiffs’ mosaic of cir‐
cumstantial evidence must be strong enough to permit a rea‐
sonable trier of fact to find that DeVry terminated each plain‐
tiff because he or she complained about Giambone’s re‐
marks. See University of Texas Southwestern Medical Center v.
Nassar, 570 U.S. —, 133 S. Ct. 2517, 2533 (2013).
Each plaintiff relies on a different assortment of evidence
to establish a causal link between the protected activity and
his or her firing. We begin by setting out the facts common
to all plaintiffs. Next we analyze the evidence of suspicious
timing upon which all three plaintiffs rely. We conclude that
this evidence does not by itself create a genuine issue of ma‐
terial fact on causation for any of the plaintiffs. We then ana‐
lyze the remaining evidence offered by each plaintiff to
show that DeVry’s stated reasons for each termination were
pretextual.
III. Facts Common to All Plaintiffs
Defendant DeVry University, Inc. is a for‐profit school
with several campuses in the Chicago area. Plaintiffs Eliza‐
beth Castro, LaTonya Brooks, and Michael Florez are former
admissions officers of DeVry. Castro and Florez are Mexican‐
8 No. 13‐1934
American; Brooks is African‐American. In early 2007 Castro
was an assistant director of admissions for DeVry. Her im‐
mediate supervisor was Phil Giambone, then the director of
admissions for the Chicago campus. Florez and Brooks were
academic advisors who reported to Castro.
DeVry’s enrollment model is based on recruiting prospec‐
tive students for classes that begin every other month—in
January, March, May, July, September, and November. Ad‐
missions officers at DeVry are responsible for following up
on “leads” (potentially interested students), interviewing
applicants, and otherwise assisting prospective students
with the enrollment process. The goal for admissions officers
is to enroll new students.
On April 14, 2007, Florez approached Giambone and re‐
quested time off on May 5. Giambone responded by asking
if Florez was going to “get drunk with your people” on Cin‐
co de Mayo. Florez reported the remark to Castro. Castro,
along with Florez and Brooks, then decided to approach
Human Resources about Giambone’s behavior.1
1 Plaintiffs offer evidence that Giambone had a history of making of‐
fensive racial and ethnic remarks in the office. For example, he regularly
asked about the race or ethnicity of prospective students and connected
race or ethnicity to the ability to pay an application fee. On one occasion,
for instance, he commented that a Mexican‐American prospective stu‐
dent would be able to pay the fee because “Mexicans always have $100
in their mattresses because it’s communion money.” He also at times
remarked that an applicant who could not pay the fee was “probably
Puerto Rican or black” and that Puerto Rican and black people were
“always broke.” We accept this evidence as true for purposes of sum‐
mary judgment.
No. 13‐1934 9
A. Plaintiffs’ April 16, 2007 Complaint to Human Resources
Plaintiffs met with HR manager Alana Hurt on April 16,
2007. They discussed their concerns about Giambone’s racial‐
ly and ethnically derogatory remarks. Other academic advi‐
sors corroborated plaintiffs’ complaints about Giambone.
Shortly after the meeting, Hurt called HR director Deb Ma‐
her to tell her about the complaint. Maher relayed the com‐
plaint to Christine Hierl, the dean of enrollment manage‐
ment for the Chicago area.
B. Giambone’s Conduct After the April 16 Meeting
Ten minutes after Castro returned from the meeting with
HR, Giambone came to her office. He was “furious” and
asked Castro whether she had “anything to tell him.” He
then told Castro that she needed to do “phone work” with
him. Castro had not done this type of work since she had
been an academic advisor, eight years earlier.
Several days after the April 16 meeting, Giambone began
steering “leads” about prospective students away from Cas‐
tro’s team toward another team. Giambone also told Brooks
and Florez not to “hang out” or otherwise associate with
Castro. Then, in early June 2007, Giambone told Florez that
Castro was “stealing” his students, an accusation Castro de‐
nies.
C. The April 28, 2007 Sales Meeting
About two weeks after plaintiffs’ complaint to HR, DeVry
conducted a sales meeting in its Chicago office to address
concerns about low enrollment numbers for the July 2007
admissions class. At the meeting Castro complained about
10 No. 13‐1934
how the “leads” were being distributed in the Chicago of‐
fice. Christine Hierl jumped in and “verbally attacked” Cas‐
tro. Hierl later sent Castro a memo stating that her negativity
was hurting morale in the office.
Immediately after the meeting, plaintiffs assert, Castro
entered a stairwell and heard Hierl say to Giambone:
“There’s no way we’re going to let a bunch of wetbacks run
this office.” Giambone responded with laughter.
After hearing the “wetbacks” comment, Castro filled out
a transfer request for any opening for a director or assistant
director of admissions at DeVry. Giambone approved the re‐
quest. Hierl told Castro that she could be transferred any‐
where she wanted if she waited until school started for the
July 2007 admissions class.
D. The July 2007 Reorganization
In July 2007 DeVry transferred Giambone from his posi‐
tion and made him a high school manager, where he would
supervise admissions presentations to high school students.
From that point forward, Giambone did not supervise Cas‐
tro, Brooks, or Florez. There is no evidence that he partici‐
pated in any of the termination decisions.
Kathaleen Berry, who had been the director of admis‐
sions for DeVry’s Addison and Tinley Park campuses in the
Chicago area, took over Giambone’s position. At Berry’s re‐
quest, Julie Strauss, an assistant director of admissions for
the Tinley Park campus, began supervising some of the Chi‐
cago‐based admissions officers, including Brooks and Florez.
As part of the reorganization, DeVry also demoted Castro
to senior academic advisor and transferred her to the Addi‐
son campus. At the Addison campus, Castro reported to as‐
No. 13‐1934 11
sistant director of admissions Casey Tobin, who in turn re‐
ported to Berry in Chicago. Despite her demotion, Castro’s
compensation was not reduced.
When Berry replaced Giambone in the Chicago office,
she met with the admissions officers. She told them that if
they had a problem with another employee, they needed to
handle it “in‐house.” She warned her staff not to go “run‐
ning off to HR.” After the July 2007 meeting, Strauss rein‐
forced this message, telling Florez and Brooks: “Kathy Berry
is different. Don’t go to HR. If you go to HR, the people that
have went to HR no longer work here.” Sometime after the
meeting, Giambone told Florez: “You see what happens to
traitors like Liz [Castro]. … I told you if you want to be
someone in this company, you need to be loyal.”
Many months passed before any of the plaintiffs were
terminated. Florez was discharged on February 21, 2008, ten
months after the April 2007 complaint; Brooks on July 8,
2008, fifteen months after the complaint; and Castro on No‐
vember 3, 2009, thirty months after the complaint.
IV. Plaintiffs’ Evidence of Suspicious Timing
Plaintiffs acknowledge that delays of these lengths can‐
not themselves establish causation. Cf. Clark County School
District v. Breeden, 532 U.S. 268, 273–74 (2001) (per curiam)
(gap of twenty months between protected activity and ad‐
verse employment action “suggests, by itself, no causality at
all”); Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 481
(7th Cir. 2010) (one‐year delay too long to establish causation
in the absence of other evidence); Haywood v. Lucent Technol‐
ogies, Inc., 323 F.3d 524, 532 (7th Cir. 2003) (same); accord,
Oest v. Illinois Dep’t of Corrections, 240 F.3d 605, 616 (7th Cir.
12 No. 13‐1934
2001) (“The inference of causation weakens as the time be‐
tween the protected expression and the adverse action in‐
creases … .”). Plaintiffs argue that although the periods be‐
tween their protected activity and their terminations were
relatively long, a reasonable trier of fact could still infer cau‐
sation based on suspicious timing because retaliatory acts
started almost immediately after the April 2007 complaint.
According to plaintiffs, the summary judgment record
would permit a reasonable finding that DeVry began retali‐
ating against plaintiffs within weeks of their protected activi‐
ty and that each termination was merely the culmination of a
long campaign to punish them for complaining about Giam‐
bone.2
Plaintiffs identify four types of retaliatory acts to support
this theory: (1) Giambone came to Castro’s office ten minutes
after the meeting with HR and assigned her phone work; (2)
Giambone began steering “leads” about prospective stu‐
dents away from Castro’s team toward another team; (3)
Giambone told Brooks and Florez not to associate with Cas‐
2 Cf. Hasan v. Foley & Lardner LLP, 552 F.3d 520 (7th Cir. 2008) (re‐
versing summary judgment for employer; circumstantial evidence sug‐
gested discrimination in spite of year‐long period between discriminato‐
ry comment and termination); Lang v. Illinois Dep’t of Children & Family
Services, 361 F.3d 416 (7th Cir. 2004) (reversing summary judgment for
employer; convincing mosaic of circumstantial evidence of retaliation
where employee began receiving reprimands shortly after filing griev‐
ance, culminating in his termination approximately one year later); Ve‐
prinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 n.6 (7th Cir. 1996) (recogniz‐
ing principle that summary judgment is inappropriate when record
would permit reasonable trier of fact to find that employer “waited in
the weeds” for years looking for an opportunity to fire employee).
No. 13‐1934 13
tro and told Florez that Castro was “stealing” students from
him; and (4) Hierl’s offensive “wetbacks” comment to Giam‐
bone.
None of this evidence establishes a genuine issue of ma‐
terial fact on the issue of causation. DeVry transferred Giam‐
bone from his position in July 2007. There is no evidence that
he had any authority over plaintiffs after that time or that he
had any input in the decisions to terminate them. Even if
Giambone wanted to retaliate against plaintiffs, a reasonable
trier of fact could not find that he influenced the termination
decisions.
Hierl, on the other hand, did have input in the decision to
terminate Brooks, but her offensive comment was no more
than an isolated “stray remark.” See, e.g., Overly v. KeyBank
Nat’l Ass’n, 662 F.3d 856, 865 (7th Cir. 2011). Hierl’s offensive
“wetbacks” epithet did not refer to Brooks (she is African‐
American, while the other plaintiffs are Mexican‐American),
was made approximately fourteenth months before Brooks
was terminated, and did not refer to either the protected ac‐
tivity or the termination decision. A reasonable trier of fact
could not find based on this single offensive comment that
Hierl intended to terminate Brooks because she had com‐
plained to HR about Giambone. See Sun v. Board of Trustees of
University of Illinois, 473 F.3d 799, 813 (7th Cir. 2007) (“stray
remarks that are neither proximate nor related to the em‐
ployment decision are insufficient to defeat summary judg‐
ment”); cf. Perez v. Thorntons, Inc., 731 F.3d 699, 709–10 (7th
Cir. 2013) (contrasting tension between “stray remarks” cas‐
es and “common actor” cases involving racial, ethnic, or
gender bias).
14 No. 13‐1934
Plaintiffs counter that Giambone’s retaliatory intent
should be imputed to Berry (the director of admissions),
who did have input in the termination decisions, based on
Berry’s comment that her staff should not go “running off to
HR” and Strauss’s comment that Florez and Brooks should
not go to HR because the people who “went to HR no longer
work here.” Plaintiffs argue that a reasonable trier of fact
could find based on these comments that Berry and Strauss
had picked up the mantle and intended to retaliate against
plaintiffs out of loyalty to Giambone. We disagree.
Construing the comments in the light most favorable to
plaintiffs, the statements suggest that Berry valued loyalty
among her subordinates and would have perceived a future
complaint to HR as an act of disloyalty, potentially worthy of
punishment. This type of comment could under some cir‐
cumstances give rise to an inference of retaliation. Employ‐
ers cannot retaliate against employees who complain about
violations of Title VII under the ruse that the employee was
being “disloyal” or “insubordinate” by opposing the unlaw‐
ful activity. But there are two problems with plaintiffs’ posi‐
tion on this record.
First, neither comment referred either explicitly or im‐
plicitly to the protected activity at issue: plaintiffs’ complaint
in April 2007 about Giambone. The statements looked for‐
ward, not backward. They warned about making hypothet‐
ical complaints in the future, not plaintiffs’ past complaint
about Giambone. After all, Brooks and Florez had gone to
HR and were still working in the same office when the
comments were made. Absent more context tying the com‐
ments to the protected activity, these generic, forward‐
looking remarks about loyalty would not permit a reason‐
No. 13‐1934 15
able trier of fact to infer a causal connection between the
April 2007 complaint and the terminations.3
Second, both comments were made long before any of
the plaintiffs’ terminations. The shortest gap was approxi‐
mately seven months. (Florez was fired in February 2008.)
Ambiguous comments so far removed from the adverse em‐
ployment action are insufficient, without more, to defeat
summary judgment. See, e.g., Dass v. Chicago Board of Educa‐
tion, 675 F.3d 1060, 1072 (7th Cir. 2012) (ambiguous comment
made ten months before discharge was insufficient, without
more, to defeat summary judgment).
Accordingly, a reasonable trier of fact could not find
based on these ambiguous comments made at least seven
months before the earliest termination that Berry retaliated
against plaintiffs because of their complaint about Giam‐
bone. Thus, plaintiffs’ evidence of suspicious timing does
not, by itself, raise a genuine issue of material fact on causa‐
tion for any of plaintiffs’ claims. The timing does not conclu‐
sively bar inferences of retaliation, however, so we proceed
to the remaining evidence for each of the plaintiffs.
V. Florez’s Evidence of Retaliatory Intent
We begin with Florez, who was fired first, in February
2008. At that time DeVry offered two reasons for its decision:
3 We recognize that Strauss’s comment was backward‐looking in one
respect: a reasonable trier of fact could infer that Strauss was referring to
Castro, who had been transferred from the Chicago office to Addison
shortly before the comment was made. Because this interpretation of the
comment applies only to Castro, we address it below when analyzing
Castro’s remaining evidence of retaliation.
16 No. 13‐1934
(1) inconsistent performance and (2) “volatile behavior.” On
appeal, however, DeVry concedes that Florez’s performance
was “adequate” and that his performance alone did not justi‐
fy his termination. We focus on the second explanation.
DeVry identifies two incidents of Florez’s “volatile behav‐
ior”: (1) a conversation he had with Strauss in October 2007
and (2) a conversation he had with Berry in January 2008.
Florez disputes the factual basis of both managers’ descrip‐
tions of these events.
The first incident occurred sometime in October 2007.
Florez acknowledged during his deposition that there was a
“blow‐up” between Strauss and him, but he testified that it
was Strauss who caused it. Strauss came by to observe
Florez’s “phone work,” but he was not in his office. When
Florez returned to his office, Strauss again tried to conduct
the observation, but there were technical difficulties with the
phone. According to Strauss, Florez grew impatient and
complained about being observed; he then yelled, slammed
doors, and eventually left his office.
Florez disputes Strauss’s version of the conversation in
ways that call into doubt the honesty of Strauss’s account. He
testified during his deposition—and we accept as true for
purposes of summary judgment—that he did not yell or
slam doors and that he behaved professionally throughout
the conversation.
Moreover, Mara Leal (another academic advisor) corrob‐
orated Florez’s account of his conversation with Strauss. Leal
testified during her deposition that it was Strauss, not
Florez, who slammed a door and yelled. Leal also testified
that after the incident between Strauss and Florez, she called
No. 13‐1934 17
Berry to ask if she could move offices. Berry responded that
Leal needed to do her a “favor.” Berry asked Leal if she had
heard or seen the incident between Florez and Strauss. Leal
said yes. Then Berry told Leal that if HR manager Hurt
called her to ask whether she had observed the incident, Leal
needed to say that she did not see anything. Leal agreed, and
Berry told her that she could move offices later that night.
The second incident occurred on January 31, 2008, when
Berry herself tried to observe Florez’s phone work. Florez
complained to Berry about a poor performance evaluation
he had received from Strauss in October 2007, shortly after
the reported “blow‐up” with her. Berry found Florez’s be‐
havior inappropriate; she believed that if he had concerns
about his evaluation, he should have addressed them three
months earlier, not during the scheduled observation.
Following the phone session, Berry sent a memo to Hurt
in HR with a copy to Hierl (the dean of enrollment manage‐
ment). Berry’s memo said that Florez had been “strident and
yelling” and had made threats about lawyers and complaints
to the EEOC. She also criticized Florez for “continually re‐
hashing” the October incident with Strauss and noted that
HR had already investigated that earlier incident. She de‐
scribed the conversation as a “45 minute diatribe” and said:
“There were strong undertones of racism and lawsuits, and
he even asked if I would like to talk to his lawyer and that he
was recording all conversations in his office.”4
4 DeVry does not explain why it might have been justified in disci‐
plining Florez because he “made threats about lawyers and the EEOC.”
In fact, such a “threat” might well qualify as protected activity. E.g., Da‐
18 No. 13‐1934
Florez disputes Berry’s version of the January 2008 con‐
frontation, again in ways that call into question the honesty
of her account. He admits that he complained about Strauss’s
evaluation from October 2007. But he testified during his
deposition—and again, we accept as true for purposes of
summary judgment—that he never yelled at Berry and never
made any threats about lawyers or the EEOC. He also testi‐
fied in a declaration opposing summary judgment that his
conversation with Berry lasted only five to ten minutes, that
he did not “continually rehash” the October 2007 incident,
and that he never claimed to be recording conversations in
his office.
DeVry argues we must disregard this evidence because
Florez’s declaration was dated only March 2012, with the
blank for the specific day left blank, and because it contra‐
dicted his deposition testimony. DeVry does not cite any au‐
thority for the proposition that a court must exclude a sworn
declaration because it does not specify the day it was sworn.
While including a specific date is the better practice, we are
not convinced that having left the specific date blank re‐
quired exclusion.
DeVry’s assertion that Florez’s declaration contradicted
his deposition testimony is the sort of assertion often made
vis v. Time Warner Cable of Southeastern Wisconsin, L.P., 651 F.3d 664, 674
(7th Cir. 2011) (informal complaints can constitute protected activity for
purposes of Title VII retaliation claim); accord, 42 U.S.C. § 2000e‐3(a)
(making it unlawful to retaliate against anyone “because he has opposed
any practice” prohibited by Title VII). Florez denies having made any
statement about lawyers or the EEOC, however, so we do not examine
this issue further.
No. 13‐1934 19
in summary judgment practice. In this case, the assertion is
not supported by the record. At his deposition, Florez was
shown Berry’s written description of the January 2008 inci‐
dent and was asked whether it was “an accurate account of
the interaction.” He answered that the written statement was
“inaccurate,” and he highlighted several specific statements
with which he disagreed. The questioning moved on to other
subjects.
The first problem for DeVry’s argument is that Florez was
not asked whether he had described all the inaccuracies with
the written statement. Without that question having been
asked and answered to ensure that his deposition testimony
exhausted his memory of the subject, his later declaration
identifying other inaccuracies simply did not contradict any
specific testimony in his deposition. Cf. Flannery v. Recording
Industry Ass’n of America, 354 F.3d 632, 638 (7th Cir. 2004)
(explaining that a “contradiction” exists only when the
statements are “inherently inconsistent,” not when the later
statement “merely clarifies an earlier statement which is am‐
biguous or confusing”).
At a more fundamental level, DeVry’s argument reads
too broadly the cases it invokes. DeVry cites Beckel v. Wal‐
Mart Associates, Inc., where we said that affidavits “when of‐
fered to contradict the affiant’s deposition are so lacking in
credibility as to be entitled to zero weight in summary
judgment proceedings unless the affiant gives a plausible
explanation for the discrepancy.” 301 F.3d 621, 623 (7th Cir.
2002). Beckel and cases like it involved contradictions so clear
that the only reasonable inference was that the affidavit was
a sham designed to thwart the purposes of summary judg‐
ment. See Bank of Illinois v. Allied Signal Safety Restraint Sys‐
20 No. 13‐1934
tems, 75 F.3d 1162, 1168–69 (7th Cir. 1996) (“If such contradic‐
tions were permitted … ‘the very purpose of the summary
judgment motion—to weed out unfounded claims, specious
denials, and sham defenses—would be severely under‐
cut.’”), quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 861
(7th Cir. 1985).
This principle must be applied with great care, though,
because summary judgment is not a tool for deciding ques‐
tions of credibility. See Bank of Illinois, 75 F.3d at 1169–70 (col‐
lecting cases). Few honest witnesses testify at any length
without at least occasional lapses of memory or needs for
correction or clarification. Disregarding as a sham every cor‐
rection of a memory failure or variation in a witness’s testi‐
mony requires “far too much from lay witnesses” and would
usurp the trier of fact’s role in determining which portion of
the testimony was most accurate and reliable. Tippens v. Ce‐
lotex Corp., 805 F.2d 949, 953–54 (11th Cir. 1986). That’s why
we have said an affidavit can be excluded as a sham only
where the witness has given “clear answers to unambiguous
questions which negate the existence of any genuine issue of
material fact.” Bank of Illinois, 75 F.3d at 1170, quoting Van T.
Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656,
657 (11th Cir. 1984). The differences between Florez’s deposi‐
tion testimony and his declaration fall far short of this stand‐
ard.
The district court concluded that a reasonable trier of fact
could not find that DeVry’s “volatile behavior” explanation
was pretextual because Florez only “quarrels with … the de‐
tails concerning the clashes” without undermining the hon‐
esty of DeVry’s stated belief. Castro, 941 F. Supp. 2d at 984.
We respectfully disagree.
No. 13‐1934 21
The differences between Florez’s testimony and Strauss’s
and Berry’s accounts of the October 2007 and January 2008
conversations are so basic that they are not obviously the
stuff of honest disagreement. And this is not a case where a
supervisor had to decide which of two conflicting stories to
believe; Berry herself made the decisive recommendation to
fire Florez, on advice from Strauss. They relied on their own
accounts—not reports from co‐workers or third‐parties—to
justify Florez’s termination. Cf. Johnson v. Nordstrom, Inc., 260
F.3d 727, 732 (7th Cir. 2001); Flores v. Preferred Technical Group,
182 F.3d 512, 515 (7th Cir. 1999).
If, as Florez contends, Strauss and Berry are lying about
these events, then a reasonable trier of fact could find that
Strauss and Berry fabricated their reports to create a false
reason for terminating him. Under these circumstances,
summary judgment is not appropriate. See Testerman v. EDS
Technical Products Corp., 98 F.3d 297, 303 (7th Cir. 1996) (“‘If
the only reason an employer offers for firing an employee is
a lie, the inference that the real reason was a forbidden one
… may rationally be drawn.’”), quoting Shager v. Upjohn Co.,
913 F.2d 398, 401 (7th Cir. 1990).
Even if this evidence of pretext were not enough for
Florez, the inference of retaliation is strengthened further by
testimony from Leal that Berry bribed her to say she did not
see the October 2007 confrontation between Florez and
Strauss by offering her a new office. Evidence that Berry
asked Leal to lie about the incident goes directly to the hon‐
esty of Berry’s belief that Florez behaved unprofessionally.
Berry was one of the decision‐makers in DeVry’s decision to
terminate Florez, and she used this very incident as a basis
to recommend his termination. If Florez did not behave the
22 No. 13‐1934
way Strauss and Berry have claimed, then a reasonable trier
of fact could find that DeVry’s “volatile behavior” explana‐
tion is unworthy of credence. See Coleman, 667 F.3d at 852.
The evidence of pretext is more than enough to require deni‐
al of summary judgment on Florez’s retaliation claim.
The district court held in the alternative that even if
Florez could prove that Berry and Strauss fabricated these
reports, a reasonable trier of fact would not be able to find
causation because Florez failed to produce evidence linking
DeVry’s decision to terminate him to his April 2007 com‐
plaint about Giambone. Castro, 941 F. Supp. 2d at 984. Again,
we respectfully disagree.
To establish this link, Florez supplemented his evidence
of pretext with an email from Hurt (the HR manager) to Ma‐
her (the HR director). Hurt sent the email on February 4,
2008, the week after the confrontation between Florez and
Berry. We quote the email in full because it is essential to our
analysis:
Mike Florez is an enrollment advisor. He’s been
here since October 2005. We are having a num‐
ber of problems with his performance.
1. His performance is not consistent (starts
goals vs. actual for the last three classes
were 9/11, 9/5, 3/5)
2. His behavior is volatile (I have several doc‐
umented incidences of ‘blow ups’ where he
has been, less than, cooperative with his
supervisors)
His last ‘blow up’ was with Kathy Berry last
week. To refresh your memory, he is the em‐
No. 13‐1934 23
ployee who was going to Daniel Hamburger
and Dave Pauldine, because he did not feel he
got resolution on the run‐in he had with Julie
Strauss a few months ago. He is also one of the
people who complained about a previous supervisor
(with Liz Castro).
He is constantly insubordinate and challenging
every decision his supervisor makes as racially
motivated. Supervisors/managers feel that
Mike’s negativity adversely impacts the team
and would like to separate him at this time. His
coming review will like[ly] be ‘Meets Standards’. I
agree with the supervisors. Let’s discuss when
you have a moment.
(Emphases added.)5
The February 4 email is striking for two reasons. First, it
specifically referred to the activity protected by Title VII as a
basis for recommending Florez’s termination. Second, the
email made clear that Hurt considered Florez’s performance
adequate (or at least probably adequate), which is in tension
with DeVry’s long defense of his firing based on poor per‐
formance.
5 The statement in the February 4 email that Florez “is constantly …
challenging every decision his supervisor makes as racially motivated”
sounds like a reference to other complaints that might have qualified as
protected activity under Title VII. Florez does not make this argument,
however. He relies exclusively on the April 16, 2007 complaint about
Giambone as the protected activity in this case.
24 No. 13‐1934
As it happens, Maher did not respond to Hurt’s February
4 email. Hurt waited until February 15, 2008 and then sent a
follow‐up email to Maher saying that she had reviewed
Florez’s semi‐annual performance evaluation. Although his
performance “met standards,” she wanted to move forward
with his termination. She explained in pertinent part:
The totality of his review is that his perfor‐
mance is inconsistent, his inability to effective‐
ly follow the direction of his supervisors is a
continuous problem and his refusal to accept
management decisions will continue to impede
his performance. While separating him is a
risk, I feel comfortable that it is the right deci‐
sion.
Maher still did not respond. Four days later Hurt emailed
Maher a third time: “Let’s discuss the email below when you
have a moment.” Florez was terminated the following week,
on February 21, 2008.
The district court concluded that the February 4 email
would not permit a reasonable trier of fact to find a causal
link between the protected activity and Florez’s termination
for two reasons. Neither reason justifies the conclusion, at
least for summary judgment.
First, the district court explained, Berry made the critical
recommendation to terminate Florez and because there is no
evidence that Berry knew about the protected activity, a rea‐
sonable trier of fact could not infer that Berry was motivated
by retaliation. Contrary to the district court’s assertion, how‐
ever, there is evidence in the record that Berry did in fact
know about the protected activity before Florez’s termina‐
No. 13‐1934 25
tion. Berry testified in her deposition that she learned of
plaintiffs’ complaint about Giambone “a couple months” af‐
ter it happened. Although Berry could not remember a spe‐
cific date, she said it “could have been as much as four or
five months” after she took over the Chicago office in July
2007. Berry Dep. at 28. Florez was terminated seven months
after Berry took over the Chicago office, so under any ver‐
sion of the timing, it is reasonable to infer that she knew of
plaintiffs’ protected activity before she recommended
Florez’s termination.
Even if this were not enough (and it is), there is evidence
not only that Berry knew of the protected activity but also
that DeVry lied to conceal this fact from the EEOC. In re‐
sponse to Florez’s EEOC charge, Hurt drafted a position
statement saying that Florez’s termination had been initiated
by Berry and that Berry “had no knowledge of” Florez’s
April 2007 complaint about Giambone. A reasonable trier of
fact could find that this statement to the EEOC was deliber‐
ately false and could infer further that DeVry was lying to
cover up a retaliatory motive. See, e.g., McInnis v. Alamo
Community College District, 207 F.3d 276, 283 (5th Cir. 2000)
(reversing summary judgment for employer where employ‐
ee produced evidence that employer made false statements
to EEOC in connection with termination). Neither DeVry in
its response brief nor the district court in its opinion ad‐
dressed this critical fact.6
6 Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996), is not to the contrary.
In Rabinovitz, we held that an employer’s false statement to the EEOC
that it did not know the employee was Jewish did not create a genuine
issue of material fact on the employee’s religious discrimination claim.
26 No. 13‐1934
The district court’s second reason was that the February 4
email did not suggest a retaliatory motive because Hurt tes‐
tified that she included the reference to the April 2007 com‐
plaint merely because it represented a risk of litigation if
DeVry went ahead with terminating Florez. DeVry argued in
the district court, as it does on appeal, that when read in con‐
text with Hurt’s later email from February 15, which men‐
tions that terminating Florez was a “risk,” the February 4
email does not suggest pretext. At most, DeVry contends, it
was just “practical advice” from the HR Department about
discharging Florez.
That’s one way to read the emails, but it’s also reasonable
to read them as signaling retaliatory intent. In accepting
DeVry’s argument, the district court drew an inference
against the non‐moving party, Florez, and in favor of the
moving party, which is of course not appropriate at the
summary judgment stage. See, e.g., Hutchens v. Chicago Board
of Education, 781 F.3d 366, 373–74 (7th Cir. 2015) (reversing
summary judgment for employer where reasonable trier of
fact could either accept employer’s stated reason as true or
find that it was pretext for discrimination); accord, e.g., Lewis
v. City of Chicago, 496 F.3d 645, 651 (7th Cir. 2007) (“The dis‐
trict court erred by improperly weighing the parties’ evi‐
Id. at 487–88. There, the employee had failed to offer any evidence link‐
ing the employer’s “(alleged) desire to lie to the EEOC investigator” with
the adverse employment decision. Id. at 488. Here, by contrast, Florez
has offered the February 4 email written by the same person who drafted
the false statement to the EEOC. That email, unlike the evidence in Rab‐
inovitz, explicitly linked the adverse employment action to the protected
activity.
No. 13‐1934 27
dence during summary judgment.”). Here, each side offers a
permissible interpretation of the February 4 email. Nothing
in the record makes Florez’s interpretation unreasonable.
In fact, the February 4 email did not mention “the risk of
litigation.” It did, however, list reasons to terminate Florez.
The statement that Florez was “one of the people who com‐
plained about a previous supervisor” appears in the same
paragraph as the statement that he had a “blow‐up” with
Berry—the disputed factual basis for terminating him. A rea‐
sonable jury could interpret the February 4 email as listing
the reasons to terminate Florez, with the protected conduct
among them. In light of both DeVry’s concession on appeal
that Florez’s performance did not justify his termination and
the evidence casting doubt on the honesty of the “volatile
behavior” explanation, a reasonable trier of fact could find
DeVry’s stated reasons unworthy of belief and conclude that
unlawful retaliation is the more likely explanation for its de‐
cision. See Forrester v. Rauland‐Borg Corp., 453 F.3d 416, 418
(7th Cir. 2006) (“if 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”). In
sum, Florez has produced evidence from which a reasonable
trier of fact could find that DeVry fired him because he had
complained to HR about Giambone.
VI. Brooks’s Evidence of Pretext
Like Florez, Brooks attempts to prove retaliation by
showing that DeVry’s stated reasons for firing her fifteen
months after the HR complaint were pretexts. According to
DeVry, Brooks was terminated for two reasons: (1) multiple
acts of dishonesty and (2) inconsistent performance. DeVry
contends that Brooks lied about her activities during several
28 No. 13‐1934
work days and failed to meet important performance
benchmarks during 2008.
DeVry cites two events to support its dishonesty explana‐
tion. First, in October 2007 Brooks told Strauss that she
needed to leave the office at 7:00 p.m. to pick up an applica‐
tion fee from a student. Strauss later conducted a routine
quality assurance call with the student. She was told that
Brooks had actually picked up the deposit earlier in the af‐
ternoon. When Strauss confronted Brooks about the discrep‐
ancy, she denied that she had been dishonest with Strauss
and explained that there had been an honest miscommunica‐
tion involving the student’s grandmother. Strauss told
Brooks that “honesty is the best policy” but did not repri‐
mand her further.
The second event occurred the following summer. On
June 17, 2008, Brooks told Strauss that she would be stop‐
ping on her way to work to visit a prospective student.
When Brooks still had not shown up at work two hours later,
Strauss called the student to see if Brooks had stopped by.
He said no. That same day Brooks had also told Strauss that
she spent the morning calling several prospective students
while working from home. Berry conducted quality assur‐
ance calls with these prospective students. They told her
they had not spoken with Brooks that day.
Based on the two incidents, Strauss believed that Brooks
had been dishonest with her. She wrote a report saying that
“LaTonya [Brooks] has repeatedly lied and is not on task.
LaTonya’s production is slipping tremendously. … It is clear
LaTonya is not focused on her job and her responsibilities.”
Strauss also connected these incidents of dishonesty to
Brooks’s performance, noting that her enrollment numbers
No. 13‐1934 29
for the July 2008 admissions class were “decreasing … by the
hand fulls.”
Strauss addressed other concerns with Brooks in two
other write‐ups, both dated June 24, 2008. She described sev‐
eral acts that were, in Strauss’s view, examples of insubordi‐
nation, disrespect, and a failure to cooperate with manage‐
ment. The next day, Strauss sent her write‐ups to Hierl and
Berry. Hierl then sent an email to Hurt with Strauss’s write‐
ups attached. Hierl told Hurt that she wanted either to ter‐
minate Brooks immediately or to put her on month‐to‐
month probation resulting in her termination at the end of
the July 2008 enrollment period. Thirty minutes later, Hurt
emailed back: “Can you send me a copy of her last review
and the improvement plan mentioned?” There is no evi‐
dence that Hierl responded to this email.
On July 1, 2008 Hurt emailed Maher (the HR director)
about Brooks’s “inconsistent” performance, summarizing her
“starts” for the admissions classes in January, March, May,
and July of 2008. DeVry’s “start” targets are like sales quotas:
“starts” refer to the number of students recruited by an ad‐
missions officer who enroll in a given class. After listing sev‐
eral enrollment periods for which Brooks failed to achieve
her start targets, Hurt’s email concluded: “We really need a
more solid performer, especially for a Level II advisor.
Would like to separate from the organization. We could live
with a month‐to‐month probation, but we would be proba‐
bly prolonging the inevitable.”
When the July 2008 enrollment period ended, Brooks had
missed her starts target for the class. This was the same en‐
rollment period Strauss had emphasized in her write‐up
30 No. 13‐1934
about the June 17, 2008 incidents regarding Brooks’s dishon‐
esty. DeVry fired Brooks a few days later, on July 8, 2008.7
Brooks argues that both of DeVry’s justifications were
pretexts. She contests the dishonesty explanation in two
ways: (1) she denies that she was ever dishonest with
Strauss, and (2) she argues that because the July 1, 2008
email recommending her termination mentioned her per‐
formance but not her dishonesty, DeVry’s reasons for her
termination are “shifting” and “inconsistent.” The perfor‐
mance explanation was a pretext, she says, because Hurt
provided “false” numbers in the July 1 email to Maher when
describing her starts for two enrollment periods.
We begin with the dishonesty rationale. A reasonable
trier of fact could not find on this record that this explana‐
tion was pretextual. Brooks disputes that she was actually
dishonest with Strauss, suggesting that any discrepancies
discovered by Strauss should be chalked up to innocent mis‐
communications. Unlike Florez in his disputes with Strauss
and Berry, though, Brooks does not dispute that Strauss
honestly believed Brooks had been dishonest with her.
Brooks also does not dispute that Strauss reported these in‐
7 DeVry claims that Berry made the ultimate decision to terminate
Brooks. Appellee’s Br. 16–17. For this proposition, it cites Dkt. 49‐7 at
120:8–17 (Berry’s deposition); Dkt. 49‐13 at 135:9–136:4 & 136:24–137:5
(Hurt’s deposition); and Dkt. 49‐14 at 11:1–15 (Maher’s deposition). The
deposition excerpts do not support this proposition. In fact, the excerpt‐
ed transcript of Berry’s deposition that DeVry cites ends with page 113.
There is no page 120. Based on the summary judgment record, a reason‐
able trier of fact could find that Strauss, Berry, Hierl, and Hurt all partic‐
ipated in the decision to terminate Brooks.
No. 13‐1934 31
cidents to Berry and Hierl, who in turn relayed the reports to
Hurt and Maher. Brooks’s dispute about whether she was
actually dishonest with Strauss therefore does not bear on
the decisive question: Did Strauss, Berry, Hierl, Hurt, and
Maher honestly believe Brooks had been dishonest when
they made the decision to fire her? Cf. O’Leary, 657 F.3d at
635.
Brooks attempts to fill this gap in her theory by arguing
that DeVry has given “shifting” and “inconsistent” explana‐
tions for her termination because Hurt’s July 1 email did not
mention dishonesty. As a general rule, a reasonable trier of
fact can infer pretext from an employer’s shifting or incon‐
sistent explanations for the challenged employment deci‐
sion. See, e.g., Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 738
(7th Cir. 2013). The record here would not permit such an
inference, though. Hurt’s decision to emphasize the perfor‐
mance rationale in her email to Maher did not create an in‐
consistency. She did not disavow or contradict the dishones‐
ty justification; she simply failed to mention it.
In fact, Strauss’s initial write‐ups about Brooks raised
both performance issues and concerns about dishonesty.
Strauss’s write‐up about the June 17, 2008 incidents involv‐
ing both a student and Brooks’s claim that she had been
working from home that morning explicitly linked the dis‐
honesty rationale to the declining number of students she
had enrolled for the July 2008 admissions class and noted
her “slipping” production. It is undisputed that Berry, Hierl,
Hurt, and Maher relied on this write‐up to justify terminat‐
ing Brooks. Thus, the summary judgment record establishes
beyond reasonable dispute that DeVry relied on both expla‐
nations to terminate Brooks.
32 No. 13‐1934
Where an employer relies on multiple reasons for the
termination, its failure to address all of the reasons in each
communication about the employee is not enough to show
contradictions or shifts in rationales that suggest pretext. See
Johnson v. Nordstrom, Inc., 260 F.3d 727, 733–34 (7th Cir. 2001)
(employer’s supplementation of reasons for adverse em‐
ployment decision not evidence of pretext so long as reasons
do not conflict and employer does not retract a reason);
O’Connor v. DePaul University, 123 F.3d 665, 671 (7th Cir.
1997) (employer’s “flux in terminology” not evidence of pre‐
text where three explanations “focused on different aspects
of [employee’s] behavior” but same underlying conduct).
Brooks next attacks DeVry’s performance rationale. Recall
that Hurt’s July 1 email to Maher summarized her starts tar‐
gets for the admissions classes in January, March, May, and
July of 2008. According to Hurt’s email, Brooks missed her
target for three of these classes: January (she enrolled one
student against a goal of three), May (zero students against a
goal of two), and July (sixteen students against a goal of
twenty).
Brooks concedes that she missed her starts target for the
July class. But she contends that she made her targets for the
January and May classes and that two of the numbers in
Hurt’s email are therefore false. She argues that this evidence
is sufficient to raise a genuine issue of material fact on
whether DeVry’s performance explanation was pretextual.
See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147 (2000) (“In appropriate circumstances, the trier of fact
can reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discriminatory
purpose.”).
No. 13‐1934 33
Brooks’s argument runs into an evidentiary problem. The
only evidence she offers to support this theory are two doc‐
uments produced by DeVry in discovery. One document
suggests that Brooks enrolled six students for the January
class; the other suggests that she enrolled four students for
the May class. If these documents accurately reflect final
starts numbers, then Brooks achieved her targets for the Jan‐
uary and May classes, contrary to Hurt’s claim in the July 1
email.
The district court excluded this evidence, however, be‐
cause the documents were not properly authenticated. Cas‐
tro, 941 F. Supp. 2d at 987 & n.10. Plaintiffs argue that the
district court should have admitted the documents as busi‐
ness records under Federal Rule of Evidence 803(6) for two
reasons: (1) the documents were properly authenticated by
Castro’s sworn declaration, and (2) DeVry’s production of the
documents in the litigation served as implicit authentication
under Thanongsinh v. Board of Education, 462 F.3d 762, 777–78
(7th Cir. 2006). We review only for abuse of discretion a dis‐
trict court’s ruling on the admissibility of evidence on sum‐
mary judgment. Bradley v. Work, 154 F.3d 704, 708–09 (7th
Cir. 1998); accord, e.g., Makowski v. SmithAmundsen LLC, 662
F.3d 818, 822 (7th Cir. 2011).
The district court did not abuse its discretion in exclud‐
ing this evidence. We agree with the district court that Cas‐
tro’s declaration did not lay a sufficient foundation to au‐
thenticate the documents. Rule 803(6) requires authentica‐
tion by a “custodian or another qualified witness.” Castro’s
declaration did not establish that she was a custodian or oth‐
erwise qualified witness. It merely stated: “Attached as Ex. F
is a document generated by DeVry in the normal course of
34 No. 13‐1934
business reflecting registered students by advisor for Janu‐
ary of 2008. Ex. F is a document produced by DeVry in this
litigation on a disc.” Castro’s declaration includes an identi‐
cal statement about the second document, which was offered
to show Brooks’s starts for the May 2008 class.
Brooks contends that Castro could properly authenticate
these documents because she had been a “supervisor” who
was qualified to opine about DeVry’s performance evalua‐
tions. But that’s not enough. To lay a proper foundation for
admitting this evidence under Rule 803(6), Castro needed to
be familiar with DeVry’s record‐keeping practices. See, e.g.,
Joseph P. Caulfield & Associates, Inc. v. Litho Productions, Inc.,
155 F.3d 883, 888 (7th Cir. 1998) (no abuse of discretion
where district court excluded evidence because foundational
witness did not testify as to the business’s “regular record‐
keeping practices”). Her declaration was silent on this issue.
The fact of production in the litigation says nothing about
Castro’s familiarity with DeVry’s record‐keeping practices.
Plaintiffs’ reliance on Thanongsinh is also unpersuasive. In
that case, we identified a narrow exception to the rule that
admission under Rule 803(6) at summary judgment requires
an affidavit from a custodian or other person familiar with
the type of record. The exception applies “when the party
challenging the document’s admissibility relied on that same
document ‘for its accuracy’ in earlier proceedings, or other‐
wise ‘conceded the accuracy of the documents that the [op‐
posing party] sought to introduce.’” Thanongsinh, 462 F.3d at
778 (alteration in original), quoting Woods v. City of Chicago,
234 F.3d 979, 988 (7th Cir. 2000). The exception does not ap‐
ply here. DeVry has not relied on these documents for their
accuracy. Nor has it conceded the accuracy of the starts
No. 13‐1934 35
numbers reflected in the documents. In Thanongsinh, by con‐
trast, the party opposing admission had “admitted in dis‐
covery that the [exhibit] is what the plaintiff purports it to
be.” Id.
No such admission exists here. The mere act of producing a
document in response to a discovery request based on the content
of the document does not amount to an admission of the docu‐
ment’s authenticity. A party’s duty to produce documents un‐
der Federal Rule of Civil Procedure 34(a) applies to respon‐
sive documents in its “possession, custody, or control.” They
must be produced regardless of their authenticity, accuracy,
or reliability, so the act of production does not say anything
about authenticity, accuracy, or reliability. Those are matters
for follow‐up requests for admissions or other discovery
tools.8
8 Woods v. City of Chicago, 234 F.3d 979 (7th Cir. 2000), provides a use‐
ful contrast. There, the plaintiff attached a police case report to his re‐
sponse to the defendants’ motion for summary judgment. The report
summarized the contents of an arrest record and a misdemeanor com‐
plaint. In opposing summary judgment, the plaintiff argued that the case
report accurately described those two underlying documents. Id. at 988.
The district court granted summary judgment to defendants, relying in
part on the underlying arrest record and misdemeanor complaint.
On appeal, the plaintiff argued that the district court abused its dis‐
cretion by considering this evidence because neither the arrest record nor
the misdemeanor complaint was admissible under Rule 803(6). We
agreed with the plaintiff that neither document had been properly au‐
thenticated, but we affirmed the district court’s decision anyway because
the plaintiff had conceded the accuracy of the underlying documents by
relying on the case report that summarized them. We explained that re‐
quiring authenticating affidavits under the specific circumstances of that
case “would be an empty formality” and concluded that the district
36 No. 13‐1934
Without those two unauthenticated documents, no evi‐
dence in the summary judgment record casts doubt on
DeVry’s performance rationale. This is especially true in light
of Brooks’s concession that she missed her starts target for
the July 2008 class—the enrollment period immediately pre‐
ceding her termination and the only class mentioned in
Strauss’s decisive write‐up. A reasonable trier of fact could
not find pretext as to Brooks. Accordingly, Brooks has failed
to produce evidence that would permit a reasonable trier of
fact to find that DeVry fired her because she had complained
to HR about Giambone.
VII. Castro’s Evidence of Pretext
Castro also attempts to demonstrate that DeVry’s stated
reason for terminating her was a pretext for retaliation for
the HR complaint thirty months earlier. According to DeVry,
Castro was terminated because of poor performance over a
sustained period.
It is undisputed that Castro failed to achieve several
monthly performance goals in 2008 and 2009. She was ulti‐
mately fired on November 3, 2009. For the September 2009
enrollment period, she achieved only three starts against an
original target of twenty, which had been reduced to ten for
Castro’s benefit because she had taken a leave of absence.
Castro conceded during her deposition that three starts for
the September 2009 class “was not a good number.”
court therefore did not abuse its discretion when it considered the doc‐
uments without such affidavits. Id. at 989.
No. 13‐1934 37
Nevertheless, Castro argues that DeVry’s stated reason
was pretextual. Citing her success in achieving several
monthly performance goals in 2008 and 2009, Castro argues
that her failure to meet other performance goals during this
span was caused by her leaves of absence and not having her
targets adequately prorated. She also argues that she was
terminated prematurely, before she had a meaningful oppor‐
tunity to satisfy her starts target for the November 2009
class.
Castro has failed to establish a genuine issue of material
fact regarding pretext. Her ability to satisfy some of her
monthly performance goals does not raise a genuine issue.
DeVry has not claimed that Castro failed to satisfy all of her
performance targets. DeVry acknowledges that she achieved
some of her goals in 2008 and 2009, but it explains that Cas‐
tro’s performance was too inconsistent to justify keeping her
with the company. Inconsistent performance—though not
uniformly bad—is a legitimate, non‐retaliatory reason for
termination. See Roberts v. Separators, Inc., 172 F.3d 448, 451–
52 (7th Cir. 1999) (“poor performance” was legitimate, non‐
discriminatory reason where plaintiff’s “performance de‐
clined after an initial period of excellence”). And because
DeVry has not denied that Castro achieved some of her per‐
formance goals during the relevant span, a reasonable trier
of fact could not find based on this record that DeVry is dis‐
sembling.9
9
Castro cites evidence that Casey Tobin (her direct supervisor)
“whited out” two students’ names from her list of starts for the July 2009
enrollment period. Castro argues that this evidence would permit a rea‐
sonable trier of fact to find that DeVry falsified her performance num‐
38 No. 13‐1934
Castro fares no better with her argument that she failed
to achieve certain monthly performance goals because her
targets were not adequately prorated. It is undisputed that
DeVry reduced several of her targets for her benefit. In fact,
the goal she missed just before she was fired had been re‐
duced from twenty to ten, and Castro still missed it.10 Cas‐
tro’s subjective belief that her targets should have been pro‐
rated more than they were does not undermine the honesty
of DeVry’s stated explanation for terminating her and thus
could not support a finding of pretext. See Ineichen v.
Ameritech, 410 F.3d 956, 961 (7th Cir. 2005) (“it is not ‘the
court’s concern that an employer may be … too hard on its
employee’”), quoting Ransom v. CSC Consulting, Inc., 217 F.3d
467, 471 (7th Cir. 2000); accord, Silverman v. Board of Education
of City of Chicago, 637 F.3d 729, 738 (7th Cir. 2011) (collecting
cases).11
bers in an effort to terminate her. Even accepting this characterization of
the record as true, it does not establish a genuine issue on pretext be‐
cause DeVry did not justify her termination based on her performance in
July 2009. As Castro conceded in the district court, her mid‐year 2009
review said that she “made her starts goal” for that period. DeVry has
never claimed otherwise.
10
Castro asserts that “no one on Tobin’s team, except Tobin”
achieved their September 2009 starts goals. But these purported compar‐
ators all had at least seven starts for the period, and Castro does not at‐
tempt to demonstrate that they were situated similarly to her.
11 Castro could in theory establish pretext by producing evidence of
disparate treatment in the application of the company’s proration poli‐
cies. Suppose, for example, that Castro and a similarly situated employee
took leaves of absence of the same length and, upon returning to the of‐
fice, the comparator’s targets were reduced by 50 percent while Castro’s
No. 13‐1934 39
Castro also argues that DeVry’s stated reason for firing
her was a pretext because she did not have a meaningful op‐
portunity to achieve her starts goal for the November 2009
admissions class. DeVry concedes that Berry recommended
Castro’s termination on October 26, 2009, before the sign‐up
period for the November 2009 class officially ended. DeVry
maintains, however, that the decision was reasonable be‐
cause, in light of Castro’s pace at enrolling students during
October, she could not possibly enroll nineteen students in
less than a week. Even assuming, as Castro contends, that
DeVry jumped the gun in concluding that she would not be
able to hit her target by the end of the sign‐up period, this
evidence does not establish pretext. It does not undermine
the honesty of DeVry’s belief. Even if that belief had been
unreasonable or overly harsh, there is no evidence that it
was dishonest. See, e.g., Ineichen, 410 F.3d at 961; Hartley v.
Wisconsin Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997) (an em‐
ployer’s “foolish or trivial or even baseless” explanation suf‐
fices, so long as it is “honestly believed”).
targets were reduced by only 10 percent. See, e.g., Coleman, 667 F.3d at
858 (explaining that selective enforcement of company policy can estab‐
lish pretext); Gordon v. United Airlines, Inc., 246 F.3d 878, 892 (7th Cir.
2001) (same). But the record here does not fit this pattern. There is no
evidence that employees at DeVry were entitled to proration under the
company’s policies. And Castro has not produced evidence that a simi‐
larly situated employee was treated better in this respect. In fact, she tes‐
tified during her deposition that whether DeVry would prorate an em‐
ployee’s targets was a matter of “discretion” and that there was “no
magic number” for determining by how much an employee’s targets
should be reduced.
40 No. 13‐1934
Castro’s argument overlooks the fact that DeVry had al‐
ready placed her on probation because she had repeatedly
failed to hit performance targets over a sustained period. Af‐
ter Castro enrolled only three students for the September
2009 class against a prorated goal of ten, Berry placed her on
probation. In a memo dated August 27, 2009, Berry told Cas‐
tro: “During this probation period, failure to meet or make
substantial progress towards the target and weekly activity
levels outlined below may result in termination at any time
during this period.” The memo then outlined “weekly activi‐
ty minimums” of 6 appointments, 4 interviews, and 2.25 ap‐
plications. Castro does not dispute that she failed to achieve
these “weekly activity minimums.” Her focus on the total
starts goal for the entire enrollment period is therefore mis‐
placed.12 Ultimately then, Castro has failed to produce evi‐
dence from which a reasonable trier of fact could find that
DeVry’s reason for firing her was pretextual.
We return finally to the evidence that shortly after the Ju‐
ly 2007 meeting Strauss told Florez and Brooks that “the
people that have went to HR no longer work here.” A rea‐
sonable trier of fact could infer based on this record that
Strauss was referring to Castro. Castro had been demoted
and transferred from Chicago to the Addison office shortly
before the comment was made and within three months of
12 Castro points out that when she was terminated on November 3,
no other advisor had more than one start for the November 2009 class.
She makes no attempt, however, to demonstrate that the other advisors
were situated similarly to her. For example, she does not present evi‐
dence that any of these employees had a comparable history of past per‐
formance problems or were already on probation as she was at the time.
No. 13‐1934 41
the complaint to HR. A reasonable trier of fact could also in‐
terpret the comment as evidence of retaliatory intent—that it
was a signal to Florez and Brooks that Castro was demoted
and transferred because she complained to HR and that they
might suffer the same fate if they complained again.
This evidence takes Castro only so far. She has not based
her retaliation claim on her demotion and transfer. She has
complained only about her termination. The critical ques‐
tion, then, is whether Strauss’s comment to Florez and
Brooks would permit a reasonable finding that DeVry termi‐
nated Castro because of her complaint about Giambone.
Strauss’s comment would not permit such a finding. The
comment was made more than two years before Castro’s
termination. As we have explained, the record establishes
beyond reasonable dispute that Castro had a long history of
performance problems leading up to her termination. Absent
other evidence of retaliation, this comment does not create a
genuine issue for trial. See Geier v. Medtronic, Inc., 99 F.3d
238, 242 (7th Cir. 1996) (“To be probative of discrimination,
isolated comments must be contemporaneous with the dis‐
charge or causally related to the discharge decision making
process.”).
Finally, plaintiffs argue that if any one of them has raised
a genuine issue as to retaliation, then summary judgment
should be reversed as to all of them. They all engaged in the
same protected activity, and all suffered the same penalty of
termination imposed by the same key decision‐makers.
While Florez has raised a genuine issue of material fact
about the reasons for his termination, we do not believe that
finding carries over to Brooks or Castro. Florez has offered
evidence that would allow a reasonable jury to find that
42 No. 13‐1934
Strauss, Berry, and other DeVry managers retaliated against
him. That evidence allows a finding that those managers
were capable of retaliatory motive in response to the April
2007 HR complaint. But the three plaintiffs were treated in
different ways, at different times spanning nearly two years.
The undisputed evidence of performance problems for both
Brooks and Castro persuades us that a reasonable jury could
not find that the later and separate decisions to fire them
were motivated by retaliation for the 2007 HR complaint.
Accordingly, we AFFIRM the district court’s judgment in
favor of DeVry on all of plaintiffs’ claims except Florez’s
claim of retaliation. On that claim, we REVERSE and
REMAND for further proceedings consistent with this opin‐
ion.