In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2679
ARLENE SIMPSON,
Plaintiff‐Appellant,
v.
FRANCISCAN ALLIANCE, INC., d/b/a
FRANCISCAN ST. JAMES HEALTH,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 5857 — Manish S. Shah, Judge.
____________________
ARGUED APRIL 27, 2016 — DECIDED JUNE 28, 2016
____________________
Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Arlene Simpson, a registered
nurse, claimed that she was fired from her job in a surgical
unit at Franciscan St. James Health principally because she is
over age 40 and African American. The district court granted
St. James’s motion for summary judgment, reasoning that
2 No. 15‐2679
Simpson had established a prima facie case of discrimination
under the indirect method of McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973), but lacked evidence that the de‐
fendant’s explanation for firing her was pretextual. We con‐
clude, however, that Simpson did not even establish a prima
facie case of discrimination, let alone that the proffered expla‐
nation was pretextual. We thus affirm the district court’s
judgment.
I. Background
Simpson began working at St. James in 2008. She wasn’t
reprimanded for violating any hospital rules until after 2009
when Maureen Kelly, a Caucasian woman, became the pa‐
tient‐care manager for Simpson’s department. As manager
Kelly directly supervised Simpson, and from October 2010
through September 2011 she disciplined Simpson four times
using a form called an “Employee Corrective Action Report.”
The discipline was progressive, and the fourth incident re‐
sulted in the termination of Simpson’s employment.
Simpson lodged a charge of age, race, gender, and disabil‐
ity discrimination with the Illinois Department of Human
Rights and the Equal Employment Opportunity Commission.
After the EEOC issued a right‐to‐sue letter, Simpson filed suit
in August 2013, claiming age discrimination in violation of
the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–
634, and race discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17.
(Simpson’s complaint also included claims of gender discrim‐
ination under Title VII and disability discrimination in viola‐
tion of the Americans with Disabilities Act, but those claims
have been abandoned.) Simpson alleged that, despite satisfac‐
torily performing her job duties, she had been reprimanded
No. 15‐2679 3
by Kelly, and ultimately fired, based on false allegations of
misconduct.
At summary judgment St. James argued that Simpson
could not establish a prima facie case of discrimination, as‐
serting that she had not been performing up to expectations
and could not identify a similarly situated coworker who was
treated more favorably. St. James pointed to the four Em‐
ployee Corrective Action Reports and also to unsatisfactory
performance evaluations, deposition testimony (including
Kelly’s testimony that she had addressed a fifth incident of
misconduct informally instead of using an Employee Correc‐
tive Action Report to reprimand Simpson), and the defend‐
ant’s manual of policies and procedures. Moreover, St. James
added, Simpson was not disputing the existence of the com‐
plaints from patients and their families which underlie two of
the formal reprimands. The reprimands, St. James argued,
provided a nondiscriminatory basis for discharging Simpson,
whether or not other evidence established a prima facie case
of discrimination.
The first reprimand, from October 2010, asserts that Simp‐
son had disregarded a doctor’s orders to change a patient’s
surgical dressing and stop the patient’s controlled pain med‐
ication. Three months later, in January 2011, Simpson re‐
ceived the second reprimand, this time accusing her of im‐
properly directing a patient‐care technician to take her place
for two procedures that required a nurse. That reprimand fur‐
ther accused Simpson of making it appear in one of the pa‐
tient’s files that she had been present for the procedure. Both
written reprimands include a warning: “Further omissions in
order compliance will result in corrective action up to and in‐
cluding termination.” Simpson refused to sign the second
4 No. 15‐2679
reprimand and, at that time, submitted a response disputing
its allegations.
The third reprimand, in July 2011, was issued after
St. James had received three complaints from patients in a sin‐
gle month. According to the Employee Corrective Action Re‐
port, Simpson confronted a patient after a family member
complained to the supervising nurse about Simpson’s strong
perfume. Then a few days later, the narrative continues,
Simpson and another nurse, Nancy Galderia, were rude to a
patient who complained about the room’s cleanliness. And,
finally, a week after that incident, Simpson ignored a doctor’s
order to connect the suction for a patient’s stomach tube,
prompting the patient’s family to complain that she had acted
as if caring for the patient was a bother. This time the written
reprimand warned Simpson that “[a]ny further concerns for
behavior, attitude, or work performance will result in termi‐
nation.” Simpson submitted a formal appeal from this third
reprimand disputing the accuracy of the allegations made by
the complaining patients or family members, but did not al‐
lege discrimination. The hospital’s CEO, along with the direc‐
tor of nursing, the chief nursing officer, and a panel of Simp‐
son’s coworkers reviewed her appeal but upheld the repri‐
mand.
The last straw, according to St. James, came two months
later in September 2011. According to the narrative of the
fourth Employee Corrective Action Report, Simpson con‐
fronted a patient and removed her morphine pump prema‐
turely after learning about the patient’s complaint that Simp‐
son never brought her ice as promised. By the patient’s telling,
Simpson said she did not “need any bad marks” against her
No. 15‐2679 5
and accused the patient of lying about asking for ice. The rep‐
rimand, also referencing the previous allegations against
Simpson, cites the hospital’s “Employee Code of Behavior,”
which authorizes discharge for “major violations” including
“[d]iscourteous, abusive or inconsiderate treatment of pa‐
tients, visitors, physicians or co‐workers.” Simpson appealed
from this reprimand as well—without alleging any discrimi‐
nation—and the CEO, director of clinical integration, chief
nursing officer, and a panel of Simpson’s coworkers all agreed
that she should be fired.
St. James also pointed to Simpson’s deposition, during
which she could not identify any potential comparator. Simp‐
son essentially conceded that she did not have evidence of
similarly situated coworkers being treated more favorably:
“Everything that’s written in the office is between you and the
manager … . I just know about myself.”
In opposing St. James’s motion for summary judgment,
Simpson argued that the defendant’s reliance on the Em‐
ployee Corrective Action Reports was pretextual. Simpson as‐
serted that she had been held to a higher standard than em‐
ployees who are not African American or were younger than
40. She submitted favorable reviews received from supervi‐
sors and patients before Kelly’s arrival and a negative review
that Kelly had written in 2010. Simpson disputed the truth of
the accusations from patients and family members recounted
in the reprimands but did not dispute that the accusations had
been made.
Simpson also submitted her own affidavit attesting to per‐
sonal knowledge of two white nurses, one of them under age
40, who had not been fired or even disciplined after St. James
had received complaints from patients. One of those nurses,
6 No. 15‐2679
Simpson asserted, had been accused by a patient of being
rude and unprofessional, and the other nurse had received
five or six patient complaints in a single day.
Felicia Carter, another nurse at St. James, echoed Simp‐
son’s affidavit, and likewise asserted personal knowledge of
two other nurses who were not disciplined, one after failing
to properly monitor a patient and the other despite chronic
tardiness. Carter stated that “performance deficiencies were
discussed openly” at St. James and that she regularly over‐
heard “managers and employees discussing performance de‐
ficiencies.”
Simpson did not present any direct evidence of discrimi‐
nation, so the district court analyzed her claims under the
McDonnell Douglas indirect method. The court reasoned that
the affidavits from Simpson and Carter concerning other
nurses were enough to raise an inference that St. James had
applied its rules disparately, thus establishing a prima facie
case of age and race discrimination. But the court nevertheless
concluded that Simpson had not presented evidence from
which a jury reasonably could find that the defendant’s prof‐
fered explanation for firing her—the accumulation of four
written reprimands—was pretextual.
II. Analysis
Simpson argues that the district court erred in granting
summary judgment because the veracity of St. James’s prof‐
fered explanation for firing her is a question for a jury. Simp‐
son also insists that the patients and family members who
complained about her were not telling the truth.
We review the grant of summary judgment de novo, con‐
struing all admissible evidence and reasonable inferences in
No. 15‐2679 7
the light most favorable to Simpson. See Bordelon v. Bd. of Educ.
of Chi., 811 F.3d 984, 989 (7th Cir. 2016). We note that the
McDonnell Douglas burden‐shifting framework applies to
claims of both age and race discrimination. See Sweatt v. Union
Pac. R.R. Co., 796 F.3d 701, 709 (7th Cir. 2015). Under the indi‐
rect method, the plaintiff has the initial burden of producing
evidence showing that (1) she is a member of a protected class,
(2) she was meeting the defendant’s legitimate expectations,
(3) she suffered an adverse employment action, and (4) simi‐
larly situated employees who were not members of her pro‐
tected class were treated more favorably. Bagwe v. Sedgwick
Claims Mgmt. Servs., Inc., 811 F.3d 866, 880 (7th Cir. 2016).
Only when the plaintiff has established this prima facie case
does the burden shift to the defendant to “articulate a legiti‐
mate, nondiscriminatory reason for the adverse employment
action, at which point the burden shifts back to the plaintiff to
submit evidence that the employer’s explanation is pre‐
textual.” Andrews v. CBOCS W., Inc., 743 F.3d 230, 234 (7th Cir.
2014).
The district court’s analysis is internally inconsistent. The
disputed elements of Simpson’s prima facie case—whether
she was meeting St. James’s legitimate job expectations and
whether similarly situated employees outside of her pro‐
tected classes were treated more favorably—overlap with,
and cannot be separated from, the question of whether the de‐
fendant’s explanation for firing her is pretextual. See Widmar
v. Sun Chem. Corp., 772 F.3d 457, 463 (7th Cir. 2014); Collins v.
Am. Red Cross, 715 F.3d 994, 1000 (7th Cir. 2013); Duncan v.
Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486, 491 (7th Cir.
2008); Jones v. Union Pac. R.R. Co., 302 F.3d 735, 741–42
(7th Cir. 2002). Evidence that St. James selectively enforced its
rules against Simpson—if there is such evidence—would go
8 No. 15‐2679
to both the prima facie case and the question of pretext.
See Baker v. Macon Res., Inc., 750 F.3d 674, 677 (7th Cir. 2014);
Coleman v. Donahoe, 667 F.3d 835, 857–58 (7th Cir. 2012); Mor‐
row v. Wal‐Mart Stores, Inc., 152 F.3d 559, 561 & n.3 (7th Cir.
1998). If a jury could find that St. James applied its rules dis‐
parately, then the defendant would not be able to plausibly
assert that its application of those same rules was a nonpre‐
textual reason for firing Simpson. St. James continues to ar‐
gue, however, that Simpson did not submit evidence estab‐
lishing a prima facie case, so we can affirm the grant of sum‐
mary judgment on that ground if we find it persuasive.
See Dibble v. Quinn, 793 F.3d 803, 807 (7th Cir. 2015); Tully v.
Barada, 599 F.3d 591, 594 (7th Cir. 2010).
We agree with St. James that Simpson did not make out a
prima facie case for either age‐ or race‐based discrimination
because the record does not contain any admissible evidence
that a similarly situated employee outside of her protected
classes was treated more favorably. Although comparators do
not have to be identical in every conceivable way, they cannot
be “similarly situated” unless they are directly comparable in
all material aspects. See Sweatt, 796 F.3d at 709; Coleman, 667
F.3d at 846.
Simpson and Felicia Carter asserted personal knowledge
of other nurses who were not fired or even disciplined despite
engaging in workplace misconduct, including behavior that
prompted patient complaints. But at summary judgment
Simpson did not submit admissible evidence of other nurses
receiving favorable treatment—i.e., not being disciplined af‐
ter engaging in misconduct—nor did Simpson supply a foun‐
dation for the contention that she and Carter have personal
No. 15‐2679 9
knowledge of the alleged misconduct and the defendant’s re‐
action. See Luster v. Ill. Depʹt of Corr., 652 F.3d 726, 731 (7th Cir.
2011); Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th
Cir. 1998). Instead, Simpson presented only vague, conclu‐
sory assertions about incidents outside her personal
knowledge. See Adams v. Wal‐Mart Stores, Inc., 324 F.3d 935,
940 (7th Cir. 2003).
Simpson’s affidavit does not explain how she possibly
could possess personal knowledge of the patients’ complaints
or the reaction to those complaints by hospital managers. In
fact, during her earlier deposition, Simpson had conceded
that she did not know of any similarly situated St. James em‐
ployee who was not disciplined after engaging in comparable
misconduct, and she also had conceded that personnel infor‐
mation is kept between the employee and the supervisor.
Simpson cannot contradict these admissions without explain‐
ing the basis of her personal knowledge in a later affidavit in
order to survive summary judgment. See Ineichen v. Ameritech,
410 F.3d 956, 963 (7th Cir. 2005); Adusumilli v. City of Chicago,
164 F.3d 353, 360 (7th Cir. 1998). And Carter’s affidavit, even
more obviously than Simpson’s, likewise rests on inadmissi‐
ble hearsay.
The record does include one e‐mail discussing a patient’s
complaint that Simpson and another nurse, Galderia, were
rude. But even accepting Simpson’s assertion that Galderia
was not disciplined (again, how would Simpson know?), this
one incident isn’t functionally equivalent to the conduct that
resulted in Simpson’s discharge. See Gates v. Caterpillar, Inc.,
513 F.3d 680, 690–91 (7th Cir. 2008). An employee who does
not have a similar disciplinary history and performance rec‐
ord as the plaintiff is not similarly situated. See Amrhein v.
10 No. 15‐2679
Health Care Serv. Corp., 546 F.3d 854, 860 (7th Cir. 2008). Simp‐
son’s reprimand for this episode came after she allegedly
went back and confronted the patient upon learning of the pa‐
tient’s complaint, and there is no evidence that Galderia com‐
pounded her initial rudeness in a similar way. Moreover,
Simpson had gotten two other complaints from patients or
family members that same month, and she received three
other reprimands before she was fired. Simpson did not ob‐
tain evidence concerning the defendant’s investigation of the
complaint against Galderia, and she does not suggest that
Galderia engaged in other misconduct beyond this single in‐
cident. Thus, putting aside the lack of admissible evidence
concerning the reaction of management to Galderia’s miscon‐
duct, she and Simpson are not at all comparable.
St. James provided a legitimate, nondiscriminatory expla‐
nation for discharging Simpson: Her arrogance had generated
multiple complaints culminating in the conclusion of man‐
agement (and even coworkers) that Simpson had engaged in
“[d]iscourteous, abusive or inconsiderate treatment of pa‐
tients, visitors, physicians or co‐workers.” Simpson does not
dispute that St. James received the four complaints from pa‐
tients and family members which underlie the third and
fourth Employee Corrective Action Reports. And at summary
judgment Simpson did not offer any evidence suggesting that
the doctor did not initiate the first reprimand, which states
that she failed to follow the physician’s order, nor did she at‐
tempt to contradict the reprimand by deposing the doctor.
Although Simpson disputes the accuracy of the accusations
leading to the reprimands, the relevant inquiry is whether the
stated reason for an adverse employment action is in fact the
reason for that action, not whether the action was free of mis‐
take or even fair. See Zayas v. Rockford Memʹl Hosp., 740 F.3d
No. 15‐2679 11
1154, 1158–59 (7th Cir. 2014); Perez v. Thorntons, Inc., 731 F.3d
699, 708 (7th Cir. 2013). Simpson offered no evidence to show
that Kelly lied in any of the reprimands or that the events doc‐
umented in the reprimands are not what caused Kelly to dis‐
charge Simpson. Instead, Simpson simply speculates that
Kelly’s reasons could be pretextual, and that speculation is in‐
sufficient. See Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504,
513 (7th Cir. 2012).
III. Conclusion
Simpson did not establish a prima facie case of discrimi‐
nation, nor did she introduce evidence from which a jury rea‐
sonably could conclude that St. James’s proffered explanation
for terminating her employment was pretextual. Accordingly,
the district court’s judgment is affirmed.