In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4219
ROSEMARY SYLVESTER,
Plaintiff-Appellant,
v.
SOS CHILDREN’S VILLAGES ILLINOIS, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2946—Ronald A. Guzmán, Judge.
____________
ARGUED JUNE 13, 2006—DECIDED JULY 12, 2006
____________
Before POSNER, COFFEY, and RIPPLE, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, Rosemary Sylvester,
appeals from the grant of summary judgment to her former
employer in this suit for sex discrimination and retaliation
under Title VII. The claim of sex discrimination has no
possible merit, and we affirm its dismissal. The claim of
retaliation presents a more difficult issue.
The plaintiff’s claim that she was retaliated against, in
violation of 42 U.S.C. § 2000e-3(a); see Fine v. Ryan Int’l
Airlines, 305 F.3d 746, 752-53 (7th Cir. 2002); Abramson v.
William Paterson College, 260 F.3d 265, 287-88 (3d Cir. 2001);
2 No. 05-4219
Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d
Cir. 1990), for opposing sex discrimination in the form of
sexual harassment depends entirely on circumstantial
evidence; and we must first consider whether and in
what sense such evidence can be used to prove retaliation
(or other forms of discrimination, but we confine our
discussion to retaliation). The usual way in which a plaintiff
tries to establish a prima facie case (that is, a case strong
enough to withstand summary judgment for the defendant)
of retaliation is by an adaptation of the McDonnell Douglas
test. As explained in Stone v. City of Indianapolis Public
Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002), this
“requires the plaintiff to show that after filing the charge [or
otherwise opposing the employer’s allegedly discriminatory
practice] only he, and not any similarly situated employee
who did not file a charge, was subjected to an adverse
employment action even though he was performing his job
in a satisfactory manner.” This method of establishing a
prima facie case requires proof both of similarly situated
employees and of the plaintiff’s performing his job satisfac-
torily.
This method is called “indirect”; the alternative—the
“direct”—method of establishing a prima facie case of
retaliation requires the plaintiff “to present direct evidence
(evidence that establishes without resort to inferences from
circumstantial evidence) that he engaged in protected
activity (filing a charge of discrimination) and as a result
suffered the adverse employment action of which he
complains.” Id. at 644 (emphasis added). This method is
ordinarily more onerous because of the phrase that we have
italicized, but it is the plaintiff’s only recourse if he (in this
case she) cannot prove that a similarly situated employee
who did oppose the employer’s practice was not fired or
otherwise treated as badly as the plaintiff was.
No. 05-4219 3
Read literally, the passage just quoted from Stone would
defeat Sylvester’s use of the “direct” method because the
passage says that the method requires “direct evidence,”
defined in the passage as “evidence that establishes [a
proposition] without resort to inferences from circumstan-
tial evidence.” This is a misleading dictum. What is true
is that the direct method does not utilitize the specific
circumstantial evidence that the plaintiff presents when
he uses the indirect method of establishing discrimination.
But if he can prove by means of circumstantial evidence
“that he engaged in protected activity (filing a charge of
discrimination) and as a result suffered the adverse employ-
ment action of which he complains,” that is fine, as most of
our cases, sensibly disregarding the dictum in Stone,
properly assume. Culver v. Gorman & Co., 416 F.3d 540, 545-
56 (7th Cir. 2005); Lang v. Illinois Dep’t of Children & Family
Services, 361 F.3d 416, 419 (7th Cir. 2004); Volovsek v. Wiscon-
sin Dept. of Agriculture, Trade & Consumer Protection, 344 F.3d
680, 689 (7th Cir. 2003); Sitar v. Indiana Dept. of Transporta-
tion, 344 F.3d 720, 728-29 (7th Cir. 2003); Rogers v. City of
Chicago, 320 F.3d 748, 753 (7th Cir. 2003); but see Hudson v.
Chicago Transit Authority, 375 F.3d 552, 559-60 (7th Cir.
2004). And likewise the cases in other circuits. Gronowski v.
Spencer, 424 F.3d 285, 293 (2d Cir. 2005); Pope v. ESA Services,
Inc., 406 F.3d 1001, 1010 (8th Cir. 2005); Poole v. County of
Otero, 271 F.3d 955, 961 (10th Cir. 2001); DiCarlo v. Potter,
358 F.3d 408, 421 (6th Cir. 2004). See also Wright v. Southland
Corp., 187 F.3d 1287, 1294-1303 (11th Cir. 1999), equating the
direct method to direct evidence but defining direct evi-
dence to include circumstantial evidence.
The distinction between direct and circumstantial evi-
dence is vague, 1 John H. Wigmore, Evidence § 25, at p. 953,
but more important it is irrelevant to assessing the strength
of a party’s case. In re High Fructose Corn Syrup Antitrust
4 No. 05-4219
Litigation, 295 F.3d 651, 661-62 (7th Cir. 2002). From the
relevant standpoint—that of probative value— “ ’direct’ and
‘circumstantial’ evidence are the same in principle.” Achor
v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997); see
Holland v. United States, 348 U.S. 121, 140 (1954).
The conventional distinction is that direct evidence is
testimony by a witness about a matter within his personal
knowledge and so does not require drawing an inference
from the evidence (his testimony) to the proposition that
it is offered to establish, whereas circumstantial evidence
does require drawing inferences. 1 Wigmore, supra, §§ 25-26,
at pp. 953-65; Lyman R. Patterson, “The Types of Evidence:
An Analysis,” 19 Vand. L. Rev. 1, 11-14 (1965). By that
standard, even a documentary admission is circumstantial
evidence, because the genuineness of the document must be
inferred before the admission can be credited. But actually
all evidence, even eyewitness testimony, requires drawing
inferences; the eyewitness is drawing an inference from his
raw perceptions. “All evidence is probabilistic, and there-
fore uncertain; eyewitness testimony and other forms of
‘direct’ evidence have no categorical epistemological claim
to precedence over circumstantial or even explicitly statisti-
cal evidence.” Milam v. State Farm Mutual Automobile Ins.
Co., 972 F.2d 166, 170 (7th Cir. 1992). Perhaps on average
circumstantial evidence requires a longer chain of infer-
ences, but if each link is solid, the evidence may be
compelling—may be more compelling than eyewitness
testimony, which depends for its accuracy on the accuracy
of the eyewitness’s recollection as well as on his honesty.
A residual suspicion of circumstantial evidence in dis-
crimination (including retaliation) cases is perhaps reflected
in the frequent references in decisions of this court to “a
convincing mosaic of circumstantial evidence” as an
No. 05-4219 5
alternative “direct” method to direct evidence of establish-
ing the prima facie case. E.g., East-Miller v. Lake County
Highway Dept., 421 F.3d 558, 564 (7th Cir. 2005); Isbell v.
Allstate Ins. Co., 418 F.3d 788, 794 (7th Cir. 2005); Grimm v.
Alro Steel Corp., 410 F.3d 383, 385 (7th Cir. 2005); Rhodes v.
Illinois Dept. of Transportation, 359 F.3d 498, 504 (7th Cir.
2004). The phrase first appeared in Troupe v. May Dept.
Stores Co., 20 F.3d 734, 737 (7th Cir. 1994), where it was
used, innocently enough, to describe the “kind of circum-
stantial evidence . . . that consists of ambiguous statements,
suspicious timing, discrimination against other employees,
and other pieces of evidence none conclusive in itself but
together composing a convincing mosaic of discrimination
against the plaintiff.” A mosaic is a work of visual art
composed of a large number of tiny tiles that fit smoothly
with each other, a little like a crossword puzzle. A case of
discrimination can likewise be made by assembling a
number of pieces of evidence none meaningful in itself,
consistent with the proposition of statistical theory that a
number of observations each of which supports a proposi-
tion only weakly can, when taken as a whole, provide
strong support if all point in the same direction: “a number
of weak proofs can add up to a strong proof.” Mataya v.
Kingston, 371 F.3d 353, 358 (7th Cir. 2004).
But it was not the intention in Troupe to promulgate a new
standard, whereby circumstantial evidence in a discrimina-
tion or retaliation case must, if it is to preclude summary
judgment for the defendant, have a mosaic-like character.
There is no rich mosaic of circumstantial evidence of
retaliation in this case, but there is enough (though maybe
barely enough) to preclude summary judgment.
The defendant operates homes for foster parents and
children. Sylvester, the plaintiff, was one of four employees,
6 No. 05-4219
all women, who signed a long letter of complaint dated May
5, 2003, to Joseph Skender, the chairman of the defendant’s
board. The letter accused Job West, the defendant’s chief
executive officer, of abusing the signatories and other
members of the defendant’s staff by calling them “bitches”
(a “narcissistic bitch,” in the case of Sylvester), of
“comment[ing] on the sexuality” of the defendant’s female
executive director, and of responding to an unwanted
touching of a female staff member by one of the adolescent
foster children by saying “I knew there would be problems
with hiring a cute, young blond. She should toughen up.”
The letter accused West of other unprofessional behavior as
well, but the accusations we have mentioned are the ones
that relate to sex. We need not decide whether if true the
accusations add up to a case of sexual harassment; the
defendant does not argue that even if Sylvester was fired in
retaliation for making them nevertheless she has no claim
because West’s alleged conduct is a frivolous basis for a
charge of sexual harassment. Clark County School District v.
Breeden, 532 U.S. 268 (2001) (per curiam); Mattson v. Caterpil-
lar, Inc., 359 F.3d 885 (7th Cir. 2004); Sitar v. Indiana Dept. of
Transportation, supra, 344 F.3d at 727-28.
The board of directors met nine days later to consider the
letter. Mark Roth, a board member who is a lawyer, de-
scribed the letter as an attempt by two of the signatories,
Sally Elstad and LeAnn Ryan, to stave off being fired for
poor performance. The board decided that both should be
fired, and they were. (They were coplaintiffs with Sylvester
in this litigation, but settled during the course of it.). On
May 19, the board’s chairman plus Roth met with West
and the three of them discussed the possibility of firing
Sylvester for poor performance, even though she had
received a positive performance evaluation shortly before.
Roth testified that the chairman decided that Sylvester
No. 05-4219 7
“would not necessarily be terminated but that would be a
decision for West to make when he met with her on the
following day, based in part on her reaction to the termina-
tions of Elstad and Ryan.”
The next day West convened a meeting of the staff
at which he announced Elstad’s and Ryan’s terminations.
Afterwards Sylvester asked to speak with West. They met
alone in his office for about five minutes. Accounts differ
but Sylvester acknowledges the following: She said, “What
guarantee do I have from you that you will stop talking
about me in a profane, derogatory and untrue manner?”
West denied having talked about her in such a manner and
shortly afterwards told her the meeting was over and
she should get out of his office. She replied, “I will, but
just tell me one more thing—when you mentioned . . . [the
meeting the night before] you failed to disclose that you had
legal counsel present. Is it true that Mark Roth, your legal
counsel, was also in attendance at that meeting?” West
replied “Yes,” and Sylvester said “Thank you” and left his
office. He immediately fired her for being insubordinate.
If that was why he fired her, there was no retaliation. The
question is whether a reasonable jury could find instead that
she was fired because the letter she had signed accused
West of sexual harassment, and toward her in particular
(remember that it was she whom the letter charged West
with having called a “narcissistic bitch”). There is no direct
evidence, which would, as normally understood in a
retaliation case, Wright v. Southland Corp., supra, 187 F.3d at
1294, consist of an admission by West or other company
officers that the motive for firing Sylvester was to retaliate
for the complaint of sexual harassment in the letter she
had signed. Raymond v. Ameritech Corp., 442 F.3d 600, 610
(7th Cir. 2006); Cardoso v. Robert Bosch Corp., 427 F.3d 429,
432-33 (7th Cir. 2005); Venturelli v. ARC Community Services,
8 No. 05-4219
Inc., 350 F.3d 592, 599 (7th Cir. 2003); Troupe v. May Dept.
Stores Co., supra, 20 F.3d at 736; Joyal v. Hasbro, Inc., 380 F.3d
14, 17 (1st Cir. 2004); Haddon v. Executive Residence at White
House, 313 F.3d 1352, 1358-59 (Fed. Cir. 2002); Portis v. First
National Bank, 34 F.3d 325, 329 (5th Cir. 1994). But there
was the following circumstantial evidence. First, the prompt
firing of two of the four signatories; it is undisputed that
they were poor performers, but, if so, why were they not
fired until shortly after they signed the letter accusing West
of sexual harassment, an accusation that could get the
company into trouble? Second, as there were no current
performance issues with Sylvester, why was her perfor-
mance brought up at the meeting at which the chairman of
the board and the lawyer member, Roth, decided to fire
Elstad and Ryan? And third, why was West authorized at
that meeting to fire her not for performing her job badly but
for reacting adversely to news of the firing of two of the
cosignatories of the letter? A reasonable jury might conclude
that she was being set up—that the defendant’s officers who
met the night before knew she was sure to be upset by the
firings, and that West was being invited to interpret that
predictable reaction as insubordination. Putting together
these items of circumstantial evidence, a reasonable jury
could conclude that the accusations of sexual harassment in
the letter signed by Sylvester were a cause of her being
fired. No more is necessary to show that she established a
prima facie case using the “direct” method of proof.
The judgment is therefore reversed so far as the dismissal
of the claim of retaliation is concerned, though affirmed
with respect to the claim of sex discrimination, and the
case is remanded for further proceedings consistent with
this opinion.
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
No. 05-4219 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-12-06