In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1989
JEANETTE PETTS,
Plaintiff-Appellant,
v.
ROCKLEDGE FURNITURE LLC, a Division of
Ashley Furniture Industries, Inc.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 C 553—John C. Shabaz, Judge.
____________
ARGUED FEBRUARY 14, 2008—DECIDED JULY 21, 2008
____________
Before RIPPLE, SYKES, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Jeanette Petts sued her former
employer, Rockledge Furniture LLC, a Division of Ashley
Furniture Industries, Inc., alleging that it terminated her
employment as assistant store manager because of her
sex in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. The district court granted
Rockledge’s motion for summary judgment, con-
cluding that Ms. Petts produced insufficient evidence of
sex discrimination in the summary judgment process
2 No. 07-1989
under either the direct or indirect methods of proving
discrimination to justify a trial. Ms. Petts appeals, as-
serting that a trial should have resulted under either
method of analyzing her claim.
It is not uncommon in employment discrimination cases
that most, if not all, of the facts are not in dispute. But
rather, the contest revolves around whether the reason-
able inferences that can be drawn from those facts are
sufficient to support a claim of discrimination. This case
fits that pattern. For the reasons which follow a descrip-
tion of the relevant facts regarding Ms. Petts’s tenure at
Rockledge, we conclude that she has insufficient evid-
ence of sex discrimination under both the direct and
indirect methods and therefore affirm the district court’s
judgment.
I. Background
Rockledge, a high volume retailer, owned and operated
three Ashley Furniture HomeStores in Franklin, Madison,
and Pewaukee, Wisconsin. The Madison store was the
smallest in size and sales volume; the Franklin store
was the largest. In early 2003, Rockledge hired Brett
Johnson, a male, to be store manager of the Madison
store. That store was to have a store manager and two
assistant managers, along with two other positions with
managerial responsibilities, namely, a visual manager
and an office manager. Rockledge hired Mary Tortorice,
a female, and Terry Kean, a male, as assistant managers
and two females for the other positions with managerial
responsibilities at the Madison store. Ms. Petts attended
an Ashley job fair in September 2003 and Mr. Johnson
hired her on the spot for a sales position.
No. 07-1989 3
In July 2004, Mr. Johnson was promoted to general
manager of Rockledge, with full responsibility for opera-
tions and hiring and firing authority over all Rockledge
personnel. In late 2004, following Ms. Tortorice’s transfer
to the Pewaukee store as assistant manager, Mr. Johnson
approved Ms. Petts’s promotion to assistant manager of
operations at the Madison store. At the time Scott Rorek,
a male, was the assistant manager for sales at the store
since Mr. Kean had been promoted to store manager.
In early 2005, Rockledge’s upper management recog-
nized the need to reduce operating costs and improve
profitability. The Madison store was not profitable in
2004. By mid-March, Mr. Johnson had proposed a multi-
faceted plan to reduce costs. The plan included reducing
management staff at the Madison store by eliminating
an assistant manager position and utilizing non-manage-
ment sales leads or key carriers, that is, employees
who could simply open and close a store without pos-
sessing true managerial responsibilities. Under the plan,
Rockledge would test the new management model in
Madison and, depending on the results, implement the
model in other lower sales volume stores. As a result of
this plan, either Ms. Petts or Mr. Rorek would lose her
or his position.
Mr. Johnson testified that he decided to eliminate
Ms. Petts’s position because Mr. Rorek had marginally
greater seniority in a management position at Rockledge
and had over ten years of relative management experi-
ence with “big box” retailers such as American and
Best Buy, while Ms. Petts’s only prior retail manage-
ment experience was in a sandwich shop franchise. Mr.
Johnson stated that tenure was a factor in his decision, but
relative experience was the principal factor. He sought
4 No. 07-1989
input from the Madison Store Manager Kean who sug-
gested that Ms. Petts be terminated because she was one
of the newest team members and perhaps the easiest to
replace by having a customer service lead or other em-
ployee assume some of her responsibilities. Mr. Johnson
also consulted with Rob VanCraenenbroeck, Rockledge’s
Director of Human Resources, in making his decision to
terminate Ms. Petts’s position.
On April 5, 2005, Mr. Johnson visited the Madison
store and along with Mr. Kean met with Ms. Petts. They
advised her that her assistant manager position was being
eliminated based on the business trend at the store. They
offered her three alternative positions at the Pewaukee
store, including a sales position, and indicated she
would be eligible to re-apply for a management position.
Ms. Petts was given time to consider the offer. On April 9,
she declined the offer, advising Mr. Johnson that the
positions were not financially suitable and would require
a longer commute. She asked Mr. Johnson to contact her
if any assistant manager positions became available. He
told her that he would consider her for such a position
and would notify her if any became available.
Mr. Johnson also terminated Ms. Tortorice from her
position as assistant manager at the Pewaukee store on
April 5, albeit for what he asserted were performance
reasons. He detailed the performance issues in a written
notice, which included Ms. Tortorice’s admitted loss of
a $1,083.11 customer check, inconsistent and missing
funding reports, lack of staff development and training,
and other customer service complaints about her. Al-
though these occurrences were not contested by
Ms. Petts in the summary judgment process, she did point
out that Mr. Johnson erred in describing the reports.
No. 07-1989 5
Mr. Johnson explained in his deposition that he mis-
takenly referred to the funding reports for which
Ms. Tortorice had no responsibility and that he meant to
refer to the daily sales and cash reports, which had not
been completed on several occasions in March 2005.
Ms. Tortorice accepted responsibility for the deficiencies
in these reports. Her assistant manager position was
eliminated in connection with her termination. Mr. Johnson
offered to provide Ms. Tortorice with a reference be-
cause he liked her and thought she would do well in a
slower-paced, lower-volume retail environment. He
claims that he consulted with Mr. VanCraenenbroeck the
day he terminated Ms. Tortorice but was contradicted on
that point. Mr. VanCraenenbroeck testified that he
was not aware of Ms. Tortorice’s termination until after
she had been fired.
From the time of Ms. Petts’s termination until Mr.
Johnson’s departure from Rockledge in October 2005,
the Madison store operated with a two manager/one
sales lead structure. Ms. Petts’s position was not filled.
Instead, Wendy Bohner, a customer service employee,
and Cindy Gomez-Trujillo, a customer service lead, both
females, took over Ms. Petts’s former duties. Rockledge
did not fill Ms. Tortorice’s assistant manager position
in the Pewaukee store either. No assistant manager posi-
tion was eliminated in the Franklin store which Rock-
ledge contends was justified by the store’s higher volume.
Shortly after the terminations of Ms. Petts and Ms.
Tortorice, the two remaining members of the manage-
ment team in the Pewaukee store unexpectedly left
Rockledge’s employ. Mr. Johnson shuffled existing man-
agement staff, all male, to fill the gap. According to
Mr. Johnson, time did not permit him to interview
6 No. 07-1989
external candidates for these positions and he did not
think to offer them to Ms. Petts. A few months later,
Mr. Johnson promoted Heidi Benites, a female, over
male applicants to an assistant manager position in the
Franklin store. Still later in 2005, Rockledge advertised
externally for the assistant manager position in the Madi-
son store, and Mr. Johnson hired Mark Mader, a male,
for the position. Ms. Petts never contacted Mr. Johnson
or Rockledge to inquire about any management openings,
however.
Not surprisingly, Ms. Petts never heard anyone at
Rockledge say that she was terminated because of her
sex, and she is unaware of any document that says that
she was terminated because of her sex. She alleges, how-
ever, that various sex-based comments were made by
Mr. Johnson and Mr. Rorek, though none were directly
related to her termination. Ms. Petts first claims that
Mr. Johnson made negative comments about women in
staff meetings, but when pressed about the frequency
of such comments, she testified that she could only re-
member one meeting in particular. She was not certain
if there were more. Ms. Petts believed that this single
comment was made at a staff meeting that took place
shortly after the Madison store opened in late 2003. When
asked what was said, Ms. Petts answered that Mr. Johnson
made a “comment about women this or women that. If
a female salesperson would bring up a point or ask a
question, he would say something to the effect of,
jeez, women, you know, [and] kind of roll his eyes back.”
Ms. Petts also claims that in early 2004, Mr. Johnson made
a remark to one of her coworkers, Jennifer Kane, who
had been working on a particularly difficult problem. He
said something like, “[a]s long as you keep acting like a
No. 07-1989 7
man, you will get places,” which was a reflection of his
satisfaction with Ms. Kane’s work. (Mr. Johnson denies
making this statement.) Third, at the Pewaukee store
opening in January 2005, Mr. Johnson introduced the
store management team, including Ms. Tortorice, to the
new staff, referring to her as the “mother of the store.”
Ms. Petts also claims that Mr. Rorek made discriminatory
comments and that Mr. Johnson was aware of them but
did nothing to stop him. Specifically, she testified that
Mr. Rorek “made many comments about how men are
better than women, just general loose comments on a
regular basis in the workplace. He was very good at
saying, oh, that’s because she was a woman, or that’s
because he’s a man, making the difference. He was also
very chummy with the male salespeople and very cold
to the women.” Ms. Petts said that Mr. Johnson “was
around a couple of times when [Rorek] made comments,
and they were just laughed off [by Mr. Johnson].” When
asked to identify specific occasions when this occurred,
Ms. Petts could be specific about only one: Once when
Mr. Johnson was in close proximity to Mr. Rorek, the
latter commented to a female customer service person,
“it sounds like, just like a woman or some side step com-
ment like that.” Ms. Petts could not specify when this
comment was made or to whom.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo. Brown v. Ill. Dep’t of Natural Res., 499
F.3d 675, 680 (7th Cir. 2007). Summary judgment is
appropriate only when there is no genuine issue of mate-
rial fact and the moving party is entitled to judgment as
8 No. 07-1989
a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). We construe all facts and
draw all reasonable inferences in favor of the non-moving
party. Brown, 499 F.3d at 680. But inferences supported
only by speculation or conjecture do not suffice to create
a triable issue. McDonald v. Vill. of Winnetka, 371 F.3d
992, 1001 (7th Cir. 2004).
A plaintiff alleging sex discrimination in employment
under Title VII can proceed under either the direct
method or the indirect, burden-shifting method of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Sartor
v. Spherion Corp., 388 F.3d 275, 278 (7th Cir. 2004). Ms. Petts
proceeded under both.
A. Direct Method
Ms. Petts argues that under the direct method she has
enough circumstantial evidence of discrimination to
defeat summary judgment. A plaintiff can prevail under
the direct method “by constructing a ‘convincing mosaic’
of circumstantial evidence that ‘allows a jury to infer
intentional discrimination by the decisionmaker.’ ” Rhodes
v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004)
(quoting Troupe v. May Dep’t Stores Co., 20 F.3d 734, 737
(7th Cir. 1994)). However, the circumstantial evidence
“ ‘must point directly to a discriminatory reason for the
employer’s action.’ ” Id. (quoting Adams v. Wal-Mart Stores,
Inc., 324 F.3d 935, 939 (7th Cir. 2003)). We have recog-
nized three different types of circumstantial evidence of
intentional discrimination. Hossack v. Floor Covering Assocs.
of Joliet, Inc., 492 F.3d 853, 862 (7th Cir. 2007). The first and
most common “consists of suspicious timing, ambiguous
statements oral or written, behavior toward or com-
No. 07-1989 9
ments directed at other employees in the protected
group, and other bits and pieces from which an infer-
ence of discriminatory intent might be drawn . . . .” Id.
at 862 (quoting Troupe, 20 F.3d at 736). The second type
is evidence that similarly situated employees outside
the protected class received systematically better treat-
ment. Id.; Troupe, 20 F.3d at 736. The third is evidence
that the plaintiff was qualified for the job in question but
passed over in favor of a person outside the protected
class and that the employer’s stated reason is a pretext
for discrimination. Hossack, 492 F.3d at 862; Troupe, 20
F.3d at 736. Ms. Petts’s circumstantial evidence consists
of the following: (1) comments about women made by
Mr. Johnson and Mr. Rorek that she contends were dis-
criminatory; (2) the termination of all of the female assis-
tant managers, and only the female assistant managers;
(3) Mr. Johnson’s decision to eliminate Ms. Petts’s posi-
tion rather than that of Mr. Rorek who was similarly
situated but higher paid; (4) what she contends is a lie
about the circumstances surrounding Ms. Tortorice’s
termination; and (5) that Mr. Johnson broke his promise
to notify Ms. Petts when future management positions
became available.
Ms. Petts first contends that the district court erred in
concluding that Mr. Johnson’s “acting like a man” com-
ment to Ms. Kane did not raise an inference of discrim-
inatory intent. While Ms. Petts is right that a plaintiff
need not offer evidence of multiple discriminatory state-
ments by a decisionmaker, “isolated comments that are
no more than ‘stray remarks’ in the workplace are insuf-
ficient to establish that a particular decision was moti-
vated by discriminatory animus.” Merillat v. Metal Spinners,
Inc., 470 F.3d 685, 694 (7th Cir. 2006), cert. denied, 127 S. Ct.
10 No. 07-1989
2973 (2007). A remark can raise an inference of discrim-
ination when it “was (1) made by the decision maker,
(2) around the time of the decision, and (3) in reference
to the adverse employment action.” Hemsworth v.
Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th Cir. 2007);
see also Steinhauer v. DeGolier, 359 F.3d 481, 487-88 (7th
Cir. 2004) (concluding that decisonmaker’s comment not
made to plaintiff, made in passing, and unrelated to any
employment decision was not sufficient evidence of
discriminatory intent). Mr. Johnson’s “acting like a
man” comment to Ms. Kane was made in 2004—more
than one year before Ms. Petts’s termination and unre-
lated to her termination. We previously have concluded
that a decisionmaker’s comment made more than a
year before the adverse action fails to constitute evid-
ence of discrimination under the direct method. Hemsworth,
476 F.3d at 491 (concluding that president’s comment
that the employee who had suffered a stroke looked
tired and old was not sufficient evidence of discrim-
ination because comment was made more than a year
before employee’s termination). The “acting like a man”
comment is therefore insufficient to point directly to a
discriminatory reason for Ms. Petts’s termination.
According to Ms. Petts, the district court erred in not
considering whether Mr. Johnson’s reference to
Ms. Tortorice as the “mother of the store” along with his
“acting like a man” comment to Ms. Kane raised an
inference of discriminatory intent. However, her conten-
tion about the “mother” comment starts with a pro-
cedural snag. Each of the district judges in the U.S. Dis-
trict Court, Western District of Wisconsin has adopted
special procedures to be followed on motions for sum-
mary judgment. Judge Shabaz’s summary judgment
No. 07-1989 11
procedures require that if the party opposing summary
judgment believes that there are material facts not stated
by the movant, then the opposing party is to present
those factual propositions in a stipulation of facts or a
statement of proposed findings. The procedures indicate
that the court is not required to consider a piece of evi-
dence unless it is set forth in the manner described and
is under no obligation to search the record for factual
matters that might support the denial of a summary
judgment motion.1 We have held that district courts may
refuse to consider evidence that is noncompliant with
their local procedural rules much like Judge Shabaz’s
special procedures for summary judgment at issue here.
Hedrich v. Bd. of Regents of Univ. of Wis. Sys., 274 F.3d 1174,
1178 (7th Cir. 2001); Tatalovich v. City of Superior,
904 F.2d 1135, 1139-40 (7th Cir. 1990). Unfortunately,
Ms. Petts did not identify the “mother” comment as a
factual proposition in either her response to defendant’s
proposed findings of fact or in her own proposed
findings of fact. And Judge Shabaz did not mention the
“mother” comment in his memorandum and order. We
therefore reasonably can infer that he chose to disregard
this evidence. By failing to include the “mother” comment
as a proposed finding of fact, Ms. Petts forfeited any
right to rely on it as a factual proposition.
But even if the “mother” comment had been ade-
quately identified for the district court, it does not sup-
1
This procedure presumably is based on the oft quoted
“Judges are not like pigs, hunting for truffles buried in” the
record. See, e.g., United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991); Gates v. Caterpillar, Inc., 513 F.3d 680, 688 n.5 (7th Cir.
2008).
12 No. 07-1989
port Ms. Petts’s direct theory of discrimination. Of course,
the word “mother” can connote gender traits. But it
also can mean a woman in a position of authority.
http://www.merriam-webster.com/dictionary/mother
(last visited June 19, 2008). There is nothing inherently
discriminatory about referring to a woman as a “mother.”
At worst it is an ambiguous remark. Moreover, the
“mother” comment was made in January 2005, approxi-
mately three months before Ms. Petts’s termination.
We have concluded that comments made three and
even two months before the challenged employment
action fail to create a reasonable inference of discrimina-
tion. Markel v. Bd. of Regents of Univ. of Wis. Sys., 276
F.3d 906, 910-11 (7th Cir. 2002) (finding supervisors’
statements made “nearly two months” before employee’s
termination were not contemporaneous to the termina-
tion and thus were not evidence of discrimination);
Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1140 n.7 (7th
Cir. 1997) (concluding vice president’s comment made
“as much as three months” before termination was not
direct evidence of discrimination). Ms. Petts has not
shown any other connection between the “mother” com-
ment and her termination. Thus, the “mother” comment
is insufficient to raise an inference of discrimination.
Ms. Petts contends that the district court also erred in
considering only specific comments and ignoring am-
biguous comments by Mr. Johnson and Mr. Rorek that
she asserts raise an inference of discriminatory intent.
But Ms. Petts seems to confuse ambiguity with
nonspecificity. The district court correctly declined to
consider her conclusory, nonspecific allegations about
comments allegedly made by Mr. Johnson and Mr. Rorek.
Where the nonmoving party bears the burden of proof
No. 07-1989 13
at trial, as Ms. Petts would, she must present specific
facts showing a genuine issue to survive summary judg-
ment. Celotex, 477 U.S. at 323-24; see, e.g., Sublett v. John
Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir. 2006) (“[I]t
is . . . axiomatic that a plaintiff’s conclusory statements
do not create an issue of fact. . . .”); Lucas v. Chi. Trans.
Auth., 367 F.3d 714, 726 (7th Cir. 2004) (refusing to con-
sider plaintiff’s conclusory assertions that African-Ameri-
cans were treated “more harshly” in that they were
given tougher assignments and written up for reasons
non-African-Americans were not where plaintiff offered
no specific instances of support for his assertions); Hall
v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) (“It is
well-settled that conclusory allegations . . . do not create
a triable issue of fact.”). While ambiguous statements
may provide circumstantial evidence of discriminatory
intent, to defeat summary judgment, Ms. Petts must offer
specific examples of ambiguous statements. Other than,
perhaps, Mr. Johnson’s “mother” comment, she has not.
Moreover, without any evidence to show that the al-
legedly ambiguous comments were temporally or other-
wise related to her termination, such comments do not
raise a reasonable inference of discriminatory intent
with respect to her termination.
Only three other comments are specifically identified
by Ms. Petts. She testified that in late 2003 Mr. Johnson
made a comment about “women this or women that,” and
if a female salesperson brought up a point or asked a
question, he said “something to the effect of, jeez,
women, you know, [and] kind of roll his eyes back.”
This comment, made approximately one and one-half
years before Ms. Petts’s termination, was distant in time
from her termination and was not shown to have any
14 No. 07-1989
connection to the termination decision. Ms. Petts states
that Mr. Rorek made many comments about how men are
better than women and says that he was very chummy
with the men and very cold to the women. But it is undis-
puted that Mr. Rorek had no supervisory authority over
Ms. Petts and he provided Mr. Johnson with no input
on the management restructuring. Nor was it shown
that these comments were made around the time of the
termination decision. Ms. Petts adds that Mr. Johnson
was around a couple of times when Mr. Rorek made
negative comments about women and Mr. Johnson just
laughed them off, but she could specifically identify
only one: Mr. Rorek made a remark to a female customer
service person to the effect that “it sounds like, just like
a woman or some side step comment like that.” Ms. Petts
could not offer any specifics as to when this comment
was made, and thus, cannot show the necessary connec-
tion to the decision to terminate her employment.
The other bits and pieces of the circumstantial evidence
together fall short of the mark of pointing directly to a
discriminatory reason for Ms. Petts’s termination. Ms. Petts
asserts that Rockledge terminated all the female assistant
managers and only female assistant managers as part of
its downsizing. Although Ms. Petts was terminated as
part of the management restructuring, the unrefuted
evidence produced by Rockledge is that Ms. Tortorice
was not discharged because of the restructuring but
because of her performance. And even if both Ms. Petts
and Ms. Tortorice were terminated as part of the restruc-
turing, this by itself does not suffice as direct evidence
that Ms. Petts was terminated because of her sex. See
Sartor, 388 F.3d at 278 (“In the context of a business under-
going a substantial reorganization, the fact that the sole
No. 07-1989 15
black employee at a particular management level was not
retained does not itself signal that the company was
motivated to fire her because of her race.”). Ms. Petts
also relies on the fact that both she and Ms. Tortorice
were terminated on the same day. But this coincidence
in timing alone does not suffice. As stated, Ms. Petts
ignores the undisputed fact that Ms. Tortorice lost her
job not because of the downsizing, but because of her
performance.2
Additionally, Ms. Petts questions whether the down-
sizing really was a cost-saving measure because she
was let go and Mr. Rorek, who earned more than she,
was retained. Yet it is undisputed that the elimination of
one assistant manager position would and did, in fact,
save costs. In deciding which employee to let go,
Mr. Johnson could weigh the monetary savings of elim-
inating one salary with the considerations of whom the
store needed more and who could be replaced more
easily. See Ptasznik v. St. Joseph Hosp., 464 F.3d 691,
697 (7th Cir. 2006) (“explaining that we do not sit as a
super-personnel department with authority” to correct an
employer’s decision that is unwise or unfair); Gordon v.
United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001)
(“[W]e do not sit as a superpersonnel department that
will second guess an employer’s business decision.”). It
is undisputed that Mr. Johnson considered and weighed
tenure at Rockledge and relative experience between
2
Ms. Petts showed that Ms. Tortorice was not responsible
for any problems with the funding reports, but Mr. Johnson’s
other performance-related reasons for terminating her have
not been challenged. His misdescription of the daily sales
and cash reports was innocuous.
16 No. 07-1989
Ms. Petts and Mr. Rorek. He also consulted the Madison
Store Manager Kean, who suggested legitimate, nondis-
criminatory reasons for terminating Ms. Petts rather
than Mr. Rorek. Admittedly, Mr. Johnson and Mr.
VanCraenenbroeck disagree about having any conver-
sations immediately before Ms. Tortorice’s termination.
But there is no conflict in the evidence regarding the
reasons for discharging Ms. Tortorice. Thus, their dif-
fering recollections do not raise a reasonable inference
of discrimination, even if one disbelieves Mr. Johnson.
Finally, Mr. Johnson did not contact Ms. Petts about
immediate management openings, but he explained that
he had to “scramble” to keep the Pewaukee store afloat
and Ms. Petts had just turned down the offer of three
other jobs in the Pewaukee store because of, among
other things, the commute. We have considered all of the
circumstantial evidence offered by Ms. Petts, but it fails
to raise a reasonable inference of sex discrimination.
Therefore, the district court correctly held that she
could not prevail under the direct method of proof.
Here, it is appropriate to address Ms. Petts’s argument
that the district court improperly relied on the same-
actor inference (also referred to as an “inference of nondis-
crimination”) to defeat an inference of discrimination
created by her circumstantial evidence. First, we do not
understand the district court actually to have found
that Ms. Petts’s evidence raised a reasonable inference
of sex discrimination. Instead, it seems the court
assumed that if her evidence created an inference of
sex discrimination, then the inference was rebutted by
the fact that Mr. Johnson both hired and promoted
Ms. Petts despite her sex. Reliance on the same-actor
inference to carry a moving party over the summary
No. 07-1989 17
judgment hurdle seems to go too far. We reiterate the
concerns about using the inference of nondiscrimination
in favor of a moving party that were recently expressed
in Filar v. Board of Education of City of Chicago, 526 F.3d
1054, 1065 n.4 (7th Cir. 2008) (“ ‘[T]he drawing of legiti-
mate inferences from the facts are jury functions,’ and
the court ‘must disregard all evidence favorable to the
moving party that the jury is not required to believe.’ ”)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150-51 (2000)). Nonetheless, Ms. Petts’s circum-
stantial evidence fails to point directly to a discrim-
inatory reason for the termination of her employment.
No reliance on the fact that the same person hired, pro-
moted, and fired Ms. Petts is necessary to reach this
conclusion.
B. Indirect Method
Under the indirect method, Ms. Petts must first demon-
strate a prima facie case of discrimination. If she estab-
lishes a prima facie case, then the burden shifts to
Rockledge to articulate a legitimate, nondiscriminatory
reason for her termination “which if believed by the trier
of fact, would support a finding that unlawful discrim-
ination was not the cause of the employment action.”
Brown, 499 F.3d at 681 (quotation omitted). If Rockledge
meets this burden, then the burden returns to Ms. Petts
to prove that the proffered reason is a pretext for
sex discrimination. Id. at 682.
But what is the appropriate prima facie case? The district
court applied the prima facie case for a mini-reduction-in-
force (“mini-RIF”); Ms. Petts argues that the traditional
prima facie case should be applied. But we should back
18 No. 07-1989
up one moment. Regardless of which variation is appro-
priate, Ms. Petts has sufficient evidence to establish
the first three prongs of her prima facie case: she was a
member of a protected class, she was meeting Rock-
ledge’s legitimate business expectations, and she suf-
fered an adverse employment action. Thus, we concern
ourselves with only the fourth prong.
In a mini-RIF case, where the dismissed employee’s
duties are absorbed by another employee or employees
rather than eliminated, the court applies a modified
version of the fourth prong of the prima facie case. Filar,
526 F.3d at 1060. This variation requires proof that the
plaintiff’s duties were absorbed by employees not in the
protected class. Id.; Merillat, 470 F.3d at 690 n.1 (citing
Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1011 n.5 (7th
Cir. 2000)). Citing Michas v. Health Cost Controls of Illinois,
Inc., 209 F.3d 687 (7th Cir. 2000), Ms. Petts argues that
the mini-RIF variation is appropriate only when one
employee is discharged. Michas does contain a sentence
that says: “In a mini-RIF, a single employee is dis-
charged and his position is not filled.” Id. at 693. But
neither Michas nor any of the other cases cited by
Ms. Petts says that the mini-RIF variation should never
be applied if more than one employee is discharged. We
have explained that the determinative factor in deciding
whether the mini-RIF variation applies is whether the
discharged employee’s duties were absorbed by an ex-
isting employee or eliminated, not the number of em-
ployees let go. See Merillat, 470 F.3d at 690 n.1; Paluck,
221 F.3d at 1011 n.5. Ms. Petts next argues that a court
need not apply the mini-RIF variation if doing so makes
it more difficult for a plaintiff to prove her prima facie
case. However, we have said that where the plaintiff’s
No. 07-1989 19
duties “were reabsorbed by [another employee] after [the
plaintiff’s] termination . . . we must apply the indirect
burden shifting method for a mini-reduction-in-force
situation.” Hemsworth, 476 F.3d at 492 (emphasis added).
Ms. Petts’s duties were absorbed by other employees
after her position was eliminated; so the mini-RIF varia-
tion of the prima facie case was properly utilized.
And the district court correctly found that Ms. Petts
cannot establish the fourth prong of the mini-RIF prima
facie case. Even if some of her duties were absorbed by
male employees, as she claims, some of them were ab-
sorbed by women. If we were to adopt Ms. Petts’s view
and apply the traditional prima facie test because it eases
her burden, her claim does not get far. Under that
fourth prong she would have to show that Rockledge
treated similarly situated employees outside of the class
more favorably. Kampmier v. Emeritus Corp., 472 F.3d 930,
939 (7th Cir. 2007). Arguably she can—the other assistant
manager of the Madison store, Mr. Rorek, a male, kept
his job. Thus, the ability to prove a traditional prima
facie case advances Ms. Petts’s claim, but not for long.
The reason: Rockledge has offered legitimate, nondis-
criminatory reasons for Ms. Petts’s discharge. An assistant
manager position at the Madison store was to be elimi-
nated as a cost-saving measure for the under-performing
and relatively smaller Ashley Furniture Wisconsin
store. Mr. Johnson chose to eliminate Ms. Petts’s posi-
tion over Mr. Rorek’s because of Rorek’s marginally
greater seniority in a management position at Rockledge
and his extensive management experience with “big
box” retailers. So the ball returns to Ms. Petts’s court to
show pretext. “A pretext . . . is a deliberate false-hood.”
Kodl v. Bd. of Educ. Sch. Dist. 45, Villa Park, 490 F.3d 558,
20 No. 07-1989
562 (7th Cir. 2007) (internal quotation omitted). “[T]o
show pretext, [plaintiff] must show more than [defen-
dant’s] decision was mistaken, ill considered or foolish,
[and] as long as [the employer] honestly believes those
reasons, pretext has not been shown.” Id. (quoting Hague
v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.
2006) (alterations in Kodl). Our only concern is with the
honesty of the employer’s beliefs. Id.
Ms. Petts contends that when all inferences are drawn
in her favor, she has sufficient evidence of pretext. She
attempts to refute the cost-saving explanation for elim-
inating an assistant manager position by challenging
the decision to retain Mr. Rorek who earned more than
she did. But Rockledge was entitled to consider more
than just the dollars saved by eliminating one of the
assistant manager’s salaries. See Holmes v. Potter, 384
F.3d 356, 361-62 (7th Cir. 2004) (“[W]e do not sit as a
superpersonnel department that reexamines an entity’s
business decision and reviews the propriety of that
decision.”). Ms. Petts also relies on her own assessment
of Mr. Rorek’s qualifications as against her own, but this
is insufficient to show pretext. See Burks v. Wis. Dep’t of
Transp., 464 F.3d 744, 754 n.8 (7th Cir. 2006) (noting
that plaintiff fails to raise a genuine issue of fact merely
by challenging the judgment of supervisors); Ost v.
W. Suburban Travelers Limousine, Inc., 88 F.3d 435, 441
(7th Cir. 1996) (“[A] plaintiff’s own opinions about her
work performance or qualifications do not sufficiently
cast doubt on the legitimacy of her employer’s proffered
reasons for its employment actions.”). Ms. Petts empha-
sizes the minimal difference in tenure between her and
Mr. Rorek. Yet Mr. Johnson relied not only on tenure
with Rockledge but also on relative experience, which
No. 07-1989 21
was the principal factor in his decision. Importantly,
Mr. Rorek’s relative experience far surpassed that of
Ms. Petts.
Pretext is shown, Ms. Petts next argues, by the alleged
shifting and inconsistent justifications Mr. Johnson gave
for firing Ms. Tortorice. However, she has not offered any
evidence of shifting or inconsistent justifications. She
instead focuses on Mr. Johnson’s claim that he con-
sulted with Human Resources before firing Ms.
Tortorice. The dispute between Mr. Johnson and Mr.
VanCraenenbroeck over whether the former consulted the
latter the day of Ms. Tortorice’s termination simply has no
bearing on any material fact. It is Ms. Petts’s termination,
not Ms. Tortorice’s, that is at issue. Even assuming that
Mr. Johnson lied about consulting Mr. VanCraenenbroeck,
no reasonable trier of fact could infer that he also lied
about his reasons for firing Ms. Tortorice. Therefore,
this conflict in the testimony does not suffice to raise a
triable issue. See Dugan v. Smerwick Sewerage Co., 142
F.3d 398, 406 (7th Cir. 1998) (“[T]he prospect of chal-
lenging a witness’ credibility is not alone enough to
avoid summary judgment.”). Mr. Johnson had the au-
thority to terminate Ms. Tortorice without consulting
Mr. VanCraenenbroeck just before doing so, and
Mr. Johnson’s reasons for firing Ms. Tortorice have re-
mained constant.
According to Ms. Petts, Mr. Johnson’s offer to be a
reference for Ms. Tortorice undercuts his explanation
that he fired her for performance reasons. Not so.
Mr. Johnson explained that he liked Ms. Tortorice and
thought she would do well in a slower-paced, lower-
volume retail environment—one unlike Rockledge’s. And
even if the circumstances of Ms. Tortorice’s firing
22 No. 07-1989
were suspicious (and they are not), they do not directly
refute the reasons given for eliminating Ms. Petts’s posi-
tion. See, e.g., Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343,
349 (7th Cir. 1997) (explaining that to show pretext,
the plaintiff must “squarely rebut” the specific reason
articulated by the defendant). Thus, the circumstances
of Ms. Tortorice’s discharge do not support a finding of
pretext.
Our review of the record leads us to conclude that Ms.
Petts has insufficient evidence under either the direct or
indirect method of proving intentional discrimination.
Therefore, summary judgment was properly entered in
favor of Rockledge.
III. Conclusion
For the foregoing reasons, we AFFIRM the district
court’s judgment.
USCA-02-C-0072—7-21-08