In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2977
A MY S ILVERMAN,
Plaintiff-Appellant,
v.
B OARD OF E DUCATION OF THE C ITY OF C HICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 2220—Blanche M. Manning, Judge.
A RGUED JANUARY 18, 2011—D ECIDED M ARCH 21, 2011
Before T INDER and H AMILTON, Circuit Judges, and
M URPHY, District Judge.
H AMILTON, Circuit Judge. Amy Silverman sued the
Board of Education of the City of Chicago alleging that
the Board first discriminated against her on the basis of
The Honorable G. Patrick Murphy of the Southern District of
Illinois, sitting by designation.
2 No. 10-2977
her pregnancy and then retaliated against her for filing
a charge with the Equal Employment Opportunity Com-
mission, both in violation of Title VII of the Civil Rights
Act of 1964 as amended by the Pregnancy Discrimina-
tion Act.
From July 2004 until May 2005, Silverman worked at
Lincoln Park High School as one of seven probationary
special education teachers whose employment con-
tracts were subject to annual renewal. When the Board
decided to eliminate one special education teaching
position at Lincoln Park in the spring of 2005, school
principal Bessie Karvelas chose Silverman, who was
pregnant at the time. Silverman filed a complaint with
the EEOC charging that the Board violated Title VII by
not renewing her contract because she was pregnant.
Two months later, the Board offered Silverman a new
position teaching autistic students at the same school.
Silverman accepted this new position, but the Board
decided not to renew her contract at Lincoln Park a
second time in the summer of 2006.
After the EEOC found reasonable cause to believe
that the Board discriminated against her, Silverman
brought suit in the Northern District of Illinois. Her
first claim echoed her original discrimination complaint
to the EEOC, alleging that the Board decided not to
renew her contract in May 2005 because she was preg-
nant. Silverman also claimed that the Board retaliated
against her for having filed a charge with the EEOC by
offering her a more difficult position for the 2005-2006
school year and by not renewing her contract after that
school year.
No. 10-2977 3
The district court granted summary judgment to the
Board on both counts, and this appeal followed. We
review the district court’s decision de novo, construing
all facts in the light reasonably most favorable to Silver-
man as the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). Even in this light, we con-
clude that Silverman has not presented sufficient evi-
dence to defeat the Board’s motion on either of her claims.
I. The EEOC Determination
Before digging into the merits of the parties’ arguments,
we address first the district court’s treatment of the
EEOC’s administrative determination. After investi-
gating Silverman’s charges, the EEOC found reasonable
cause to believe that the Board discriminated against
Silverman because of her pregnancy and retaliated
against her for filing a discrimination charge. Silverman
argues that the EEOC determination alone ought to
show that the district court erred by granting summary
judgment to the Board. The district court chose not to
consider the EEOC determination in deciding the
Board’s motion for summary judgment. We conclude
that the district court acted well within its discretion, and
pursuant to its obligation to make a de novo decision
on the plaintiff’s claims.
We held in Tulloss v. Near North Montessori School, Inc.,
776 F.2d 150, 152-54 (7th Cir. 1985), that the district
judge, as fact-finder, has “great discretion” in the treat-
ment of an EEOC reasonable cause determination. We
explained that Congress rejected a proposal to provide
4 No. 10-2977
only deferential judicial review to EEOC findings, and
chose instead to give the parties a right to de novo
review by district courts of the merits of charging par-
ties’ discrimination claims, so that “the fact-finder is
a district judge rather than an administrative agency
hearing officer.” Id. at 152, citing H.R. Rep. No. 92-238,
at 58-63. We also observed that the need for discretion
was “even more important” in the context of claims
tried to a jury in light of the greater risks of prejudice,
misinterpretation, and delay. Id. at 153 n.2. (In 1991, after
Tulloss was decided, Congress amended Title VII to
provide for jury trials in cases like Silverman’s. See 42
U.S.C. § 1981a(c), enacted as section 102 of the Civil
Rights Act of 1991, Pub. L. No. 102-166.)1
Whether an EEOC determination is in favor of a
charging party or a respondent, a district judge or jury
cannot evaluate the weight it deserves, if any, without
understanding what evidence was presented to the
EEOC and whether that evidence is properly admissible
in court. See, e.g., Tulloss, 776 F.2d at 154-55 (describing
1
Strictly speaking, an EEOC determination is hearsay if it is
offered to prove the truth of the finding. The Supreme Court
has indicated that a determination can fall within the excep-
tion in Federal Rule of Evidence 803(8)(C) for “factual findings
resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.” See Chandler
v. Roudebush, 425 U.S. 840, 863 n.39 (1976). Admissibility
under Rule 803(8)(C) does not answer questions of prejudice,
confusion, and waste of time under Rule 403.
No. 10-2977 5
prejudicial and inadmissible contents of EEOC investiga-
tive file). That sort of effort will rarely add much to the
probative value of the admissible evidence that is
actually submitted to the court or jury for a de novo
decision on the merits. See Lewis v. City of Chicago
Police Department, 590 F.3d 427, 442 (7th Cir. 2009) (con-
cluding district court did not abuse its discretion by
excluding EEOC reasonable cause determination); Young
v. James Green Management, Inc., 327 F.3d 616, 623-25 (7th
Cir. 2003) (affirming decision to exclude EEOC findings
of discrimination from evidence in jury trial).
Silverman contends without explanation that some
evidentiary material available to the EEOC was not
available to the district court. As the district court ob-
served, however, the parties had every opportunity to
present their full case, including evidence offered in
the EEOC proceedings, in the district court. The district
court did not abuse its discretion in deciding that the
EEOC determination was not probative in its analysis.
For the same reason, neither is it probative in ours.
We proceed to the merits of Silverman’s claims.
II. The Claim of Pregnancy Discrimination
Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer to discharge or otherwise discriminate
against an employee because of that person’s sex. See
42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination
Act of 1978, Pub. L. No. 95-555, added a definition to
42 U.S.C. § 2000e(k) to make clear that “discrimination
6 No. 10-2977
based on a woman’s pregnancy is, on its face, discrimina-
tion because of her sex.” Newport News Shipbuilding &
Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983). As with
other Title VII claims, a plaintiff may prove pregnancy
discrimination either directly or indirectly. See Griffin v.
Sisters of St. Francis, Inc., 489 F.3d 838, 844 (7th Cir. 2007).
To avoid summary judgment under the direct approach,
the plaintiff must produce sufficient evidence, either
direct or circumstantial, to create a triable question of
intentional discrimination in the employer’s decision.
Miller v. American Family Mutual Insurance Co., 203 F.3d
997, 1005 (7th Cir. 2000); Geier v. Medtronic, Inc., 99 F.3d
238, 241 (7th Cir. 1996). A plaintiff also may proceed
under the indirect, burden-shifting method adapted
from McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). Like the district court, we conclude that
Silverman did not present sufficient evidence under
either approach to defeat the Board’s motion.
A. The Direct Method
To succeed under the direct method, Silverman must
offer either direct evidence that would prove the fact in
question—the discriminatory intent—without reliance
on inference or presumption, Venturelli v. ARC Community
Services, Inc., 350 F.3d 592, 599 (7th Cir. 2003), or “a con-
vincing mosaic” of circumstantial evidence that would
allow a jury to infer intentional discrimination by the
decisionmaker. See Coffman v. Indianapolis Fire Department,
578 F.3d 559, 563 (7th Cir. 2009), quoting Phelan v. Cook
County, 463 F.3d 773, 779 (7th Cir. 2006); Davis v. Con-Way
No. 10-2977 7
Transportation Central Express, Inc., 368 F.3d 776, 783-84
(7th Cir. 2004). Silverman has no direct evidence of
intent to discriminate against her on the basis of preg-
nancy, so she relies on the latter approach.
A plaintiff using the “convincing mosaic” approach to
prove a discrimination claim under the direct method
may present any of three broad types of circumstantial
evidence. The first type includes “suspicious timing,
ambiguous statements oral or written, behavior toward
or comments directed at other employees in the pro-
tected group, and other bits and pieces from which an
inference of discriminatory intent might be drawn.”
Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th
Cir. 1994). Silverman relies principally on this type of
evidence, and it will be the focus of our attention. The
second type is evidence showing that the employer
“systematically treated other, similarly situated, non-
pregnant employees better.” Venturelli, 350 F.3d at
601. Silverman offered no potentially probative evi-
dence of this type.2 Finally, the third type of circumstantial
2
Silverman asserts without any citation or elaboration that “[i]t
is clear that [principal] Karvelas treated all the other non-
pregnant [probationary teachers] better than Silverman, all of
whom she renewed.” This bare assertion is plainly insufficient
to defeat the Board’s motion. Silverman presents no evidence
“whether or not rigorously statistical, that employees simi-
larly situated to [her] . . . received systematically better treat-
ment.” Troupe, 20 F.3d at 736. Though the other special educa-
tion probationary teachers’ contracts were renewed for the
(continued...)
8 No. 10-2977
evidence is evidence that the plaintiff suffered an ad-
verse employment action and that the employer’s justifica-
tion is pretextual. See id. Cf. Troupe, 20 F.3d at 736 (de-
scribing the third type of evidence as evidence that the
plaintiff was passed over or replaced by another, and
that the employer’s justification was pretextual). This type
of evidence is substantially the same as the evidence
required to prove discrimination under the indirect
method, so we address Silverman’s attempt to show
pretext in that context below. See Huff v. UARCO, Inc.,
122 F.3d 374, 380 (7th Cir. 1997).3
2
(...continued)
following school year, Silverman has not offered evidence
that the Board or Karvelas regularly and repeatedly treated non-
pregnant probationary teachers better than pregnant proba-
tionary teachers.
3
Silverman insists that the Board stipulated before the
district court that she had proven a prima facie case under the
direct method. She cites the Board’s memorandum and
reply attached to its summary judgment motion in which it
stipulated for the purposes of summary judgment that
Silverman had demonstrated a prima facie case of discrimina-
tion. We are not persuaded. Although the Board did not
specify that its stipulation was a response only to Silverman’s
argument regarding the indirect method, this stipulation
makes sense only with respect to the indirect method of proof
discussed below. Because the direct method of proof involves
no burden shifting, such a concession would wipe out the
Board’s summary judgment motion with respect to Silver-
man’s discrimination claim.
(continued...)
No. 10-2977 9
As to her “bits and pieces” evidence, Silverman relies
on a statement made by principal Karvelas, along with
conflicting testimony regarding when Karvelas found
out Silverman was pregnant, and suspicious timing of the
non-renewal of Silverman’s contract. Even under the
summary judgment standard, we are not persuaded.
3
(...continued)
We have noted that the focus of the direct method is
whether the evidence “points directly to a discriminatory reason
for the employer’s action.” Atanus v. Perry, 520 F.3d 662, 671 (7th
Cir. 2008) (quotation marks omitted). Once a plaintiff produces
such evidence, the defendant’s summary judgment motion
necessarily must fail, in contrast to the burden-shifting
approach of the indirect, McDonnell Douglas method. Thus, it
is relatively unusual to employ the term “prima facie case” in
the context of the direct method, see generally Georg Nils
Herlitz, The Meaning of the Term “Prima Facie”, 55 Louisiana L.
Rev. 391, 395-97 (1994) (describing the historic use of the term
and its longstanding meaning), though we have used the
phrase occasionally, see Darchak v. City of Chicago Board of
Education, 580 F.3d 622, 632 (7th Cir. 2009) (determining that
the plaintiff had established a prima facie case of retaliation
under the direct method); Sylvester v. SOS Children’s Villages
Illinois, Inc., 453 F.3d 900, 905 (7th Cir. 2006) (same).
Here, the Board clearly contested Silverman’s arguments
under both the direct and indirect methods. It offered its
stipulation in reference only to the prima facie elements of the
indirect method. To apply the stipulation to Silverman’s
summary judgment argument on the direct method of proof
would make no sense at all.
10 No. 10-2977
Silverman points first to her testimony about a com-
ment made by Karvelas in the spring of 2005 when
Silverman inquired about maternity leave after notifying
the school of her pregnancy. Karvelas replied, “I only
took one week for maternity leave. But you, honey,
should take as long as you want to.” Contrary to Silver-
man’s assertions, Karvelas’s comment does not come
close to implying that Karvelas in any way disapproved
of Silverman’s pregnancy or her request for maternity
leave, and it is even farther from substantiating her claim
that her contract was not renewed because of her preg-
nancy.
Karvelas’s comment is not analogous to any of the
statements made by employers in the cases Silverman
cites. In Darchak v. City of Chicago Board of Education,
580 F.3d 622, 627 (7th Cir. 2009), a principal called the
plaintiff-teacher a “stupid Polack.” The Darchak principal’s
explicit epithet was direct evidence of discrimination.
In the absence of sarcasm, of which there is no evi-
dence, Karvelas’s statement does not even approach a
disparagement of Silverman or her pregnancy. In Dun-
can v. Fleetwood Motor Homes of Indiana, Inc., 518 F.3d 486,
490 (7th Cir. 2008), an employer allegedly commented that
the older workers “no longer could do many things,” even
though the plaintiff, age fifty-one, was performing
the essential functions of his job. That employer’s general
statement unequivocally belittled older workers. Karvelas’s
statement, by contrast, encouraged Silverman to take
as much time off as she needed after giving birth.
Where an ambiguous comment is made with a tone of
sarcasm or enmity, a court may attribute greater weight
No. 10-2977 11
to an alleged discriminatory inference. See, e.g., Hasham v.
California State Board of Equalization, 200 F.3d 1035, 1044,
1050 (7th Cir. 2000) (concluding that a comment made
with a demeaning tone raised questions regarding credi-
bility). But where, as here, Silverman has not alleged
any sarcastic, demeaning, or derisive tone, we take the
comment at its face value. This one does not reflect
any discriminatory animus.
Silverman also maintains that a jury could infer dis-
criminatory intent based on Karvelas’s conflicting testi-
mony about exactly when she learned that Silverman
was pregnant. The Board admitted in the EEOC pro-
ceedings (and maintained before the district court) that
Silverman informed Karvelas of her pregnancy in or
around March 2005. In her deposition nearly four
years after the incident, however, Karvelas testified
that she “had no idea the girl was pregnant” at the time
she chose not to renew her employment, on March 29,
2005. Yet Silverman herself could not recall the dates and
context of her notification. She first testified that she
notified Karvelas she was pregnant on March 16, 2005.
Later, Silverman stated that she first told Karvelas on
March 8. These factual issues are not material to
Silverman’s claim. A data printout from the Board’s
employment management system indicated that, regard-
less of which date is correct, even after Silverman told
her of the pregnancy, Karvelas decided to renew Silver-
man’s contract. The electronic records show that Karvelas
marked Silverman’s file for renewal on both March 17
and March 28. Only later, on March 29, did Karvelas
choose not to renew Silverman’s contract when
12 No. 10-2977
prompted by the Board to eliminate one special education
position.
Finally, Silverman contends that it was suspicious for
Karvelas to decide not to renew her contract two or
three weeks after she had notified her of her pregnancy
and that this timing supports an inference that the
Board’s motive was discriminatory. This argument suf-
fers from two principal flaws. First, suspicious timing
alone is rarely sufficient to defeat a motion for sum-
mary judgment. See Cole v. Illinois, 562 F.3d 812, 816 (7th
Cir. 2009). As we emphasized in Cole, “mere temporal
proximity is not enough to establish a genuine issue of
material fact,” id., quoting Andonissamy v. Hewlett-Packard
Co., 547 F.3d 841, 851 (7th Cir. 2008), and here, plaintiff
has nothing more than weak proximity at best. Second,
as we have noted, Silverman’s claim is further con-
tradicted by the computer records from the Board’s
employment system showing beyond reasonable
dispute that Karvelas chose to renew Silverman’s em-
ployment after learning she was pregnant.
Taken separately or taken together, Karvelas’s com-
ment, the conflicting dates regarding when Karvelas
found out Silverman was pregnant, and the timing of
her non-renewal do not reach the threshold necessary
for Silverman to defeat the Board’s motion.
B. The Indirect Method
Silverman argues that she also has sufficient evidence
to show pregnancy discrimination using the indirect
No. 10-2977 13
method, which requires her first to offer evidence of a
prima facie case that: (1) she was pregnant and the
Board knew she was pregnant; (2) she was performing her
duties satisfactorily; (3) she suffered an adverse employ-
ment action; and (4) similarly situated non-pregnant
employees were treated more favorably. Clay v. Holy Cross
Hospital, 253 F.3d 1000, 1005 (7th Cir. 2001). The Board
agreed for purposes of summary judgment that Silver-
man could meet that burden. The burden then shifted
to the Board to articulate a legitimate, non-discriminatory
reason for firing her. After the Board provided a reason,
Silverman could survive summary judgment only by
offering evidence that the Board’s reason was a pretext,
which permits an inference of unlawful discrimination.
Id. Silverman makes two pretext arguments, neither of
which is convincing.
1. Evaluations in the Spring of 2005
The Board argues that Silverman was selected for non-
renewal in 2005 because she was the least effective of the
probationary special education teachers at the school.
To support this assertion, the Board offers Karvelas’s
testimony and her contemporaneous written notes re-
garding Silverman’s teaching. In February 2005, Karvelas
stopped by the classrooms of each of the probationary
teachers working with special education students to
observe their teaching. Karvelas testified that during a
visit to Silverman’s classroom she noticed a student
wearing headphones and listening to a Walkman
during the lesson. Her observation notes indicated that
14 No. 10-2977
Silverman was simply “standing” rather than engaging
with the student while this occurred. Silverman disputes
this description, stating in her affidavit that she never
saw a student wearing headphones or using a Walkman
during a lesson.
Karvelas also testified that during her periodic walks
through the halls of the school, she noticed that another
of Silverman’s classes, co-taught with another teacher,
was “always rowdy.” Karvelas stated that, according to
her notes, on one occasion she had to stop to reprimand
the class because the students were very loud and exhib-
ited “uncontrollable behavior.” Silverman denied that
any of her classes engaged in “uncontrollable behavior,”
though she admitted that Karvelas stopped to reprimand
her class.
The district court concluded, and we agree, that
Silverman’s disagreement with Karvelas’s evaluation
does not present a genuine issue of material fact about
the reasons for the Board’s decision not to renew her
contract. Though the Board admits Silverman performed
well enough to meet the expectations of her job, the
situation changed when Karvelas was told she had to
choose one of the probationary special education
teachers for non-renewal. That situation makes this case
different from Duncan v. Fleetwood Motor Homes of Indiana,
the case on which Silverman relies. In Duncan, the em-
ployer argued both that the employee was performing
up to its expectations, and also that he was unable to
meet the physical demands of the job. We held that
those contradictory positions could not withstand
No. 10-2977 15
scrutiny and concluded the employer’s stated reason
could be deemed pretextual. 518 F.3d at 491. Here, by
contrast, the Board has not advanced a contradictory
rationale for its decision not to renew Silverman’s em-
ployment. In light of the difficult financial situation,
Karvelas was required to select one special education
teacher for non-renewal. The Board’s position that all
the teachers, including Silverman, were meeting the
Board’s expectations, but that Silverman was the least
effective among them, is not internally inconsistent.
Silverman’s argument that the Board’s position
“evolved” between the EEOC proceedings and the pro-
ceedings in the district court likewise does not get her
very far. Silverman takes the position that the EEOC’s
reasonable cause determination must be afforded con-
sideration because it makes discrepancies in the Board’s
argument more salient and her argument more credible.
The EEOC’s determination itself, stating only that the
agency found reasonable cause of discrimination and
retaliation, in no way shows any evolution in the
Board’s position or its arguments. Insofar as Silverman
intends to argue that the Board’s position changed
between the proceedings before the EEOC and those
before the district court and that such a change con-
stitutes evidence of pretext, she presented evidence to
that effect in the district court by offering the Board’s
EEOC position statements. Although in some cases one
can “reasonably infer pretext from an employer’s shifting
or inconsistent explanations for the challenged employ-
ment decision,” Appelbaum v. Milwaukee Metropolitan
Sewerage District, 340 F.3d 573, 579 (7th Cir. 2003), the
16 No. 10-2977
district court did not find any change in the Board’s
position here to be inconsistent, and neither do we. More-
over, as the Board points out, both parties’ arguments
evolved over the course of their dispute, as frequently
occurs in litigation.
Silverman also contends that the parties’ conflicting
factual accounts show a genuine issue of material fact.
She asserts that Karvelas inappropriately based her
judgment on one or two incidents she observed during
which she noted that Silverman was not engaged with
the students or not in control of the classroom. Ac-
cording to Silverman, her classroom manner was appro-
priate. Based on this dispute, Silverman argues that the
Board’s motion should have been denied. We again
disagree. Taking Silverman’s account as true—that
Karvelas’s account is wrong and that her notes were not
substantiated by the events at the time—Silverman has
still failed to offer evidence that the reason given by
the Board was dishonest. To defeat the Board’s motion,
she must point to evidence suggesting that the Board
itself did not give an honest explanation of its reason.
Silverman’s argument is like many that arise in em-
ployment discrimination cases where the employee
disagrees with an employer’s negative assessment of
the employee’s performance. See, e.g., Ptasznik v. St. Joseph
Hospital, 464 F.3d 691, 697-98 (7th Cir. 2006) (accepting
employer’s non-discriminatory justification of inex-
cusable performance and concluding that a court should
not “interfere in employment decisions simply where
[it] believe[s] an employer has made a poor choice”). If
No. 10-2977 17
such disagreements were enough to avoid summary
judgment and go to trial on an indirect proof case, sum-
mary judgment would become extinct and employer’s
evaluations of employees would be supplanted by
federal juries’ evaluations. We have said in substance
more times than we can count that when an employer
articulates a plausible, legal reason for discharging the
plaintiff, “it is not our province to decide whether that
reason was wise, fair, or even correct, ultimately, so long
as it truly was the reason for the plaintiff’s termination.”
Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d
406, 411 (7th Cir. 1997); accord, e.g., Stockwell v. City of
Harvey, 597 F.3d 895, 902 (7th Cir. 2010) (noting that
subjective evaluations of job candidates are consistent
with Title VII); Stephens v. Erickson, 569 F.3d 779, 788
(7th Cir. 2009) (recognizing that the role of the court is
not to second-guess employers’ business judgments);
Ptasznik, 464 F.3d at 697 (“We do not sit as a super-per-
sonnel department with authority to review an em-
ployer’s business decision”), quoting Ballance v. City of
Springfield, 424 F.3d 614, 621 (7th Cir. 2005).
Nevertheless, an employer’s negative evaluation of
the plaintiff’s performance is not always the last word. If
the plaintiff can raise a genuine issue about the honesty,
not merely the accuracy, of the employer’s stated evalua-
tion, the case may need to be tried. An employee “may
demonstrate that the employer’s reasons are unworthy
of credence through evidence showing (1) that the prof-
fered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate his discharge, or (3) that
they were insufficient to motivate discharge.” Mechnig
18 No. 10-2977
v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)
(emphasis in original, quotation marks omitted). See also
Cliff v. Board of School Commissioners of the City of Indianapo-
lis, 42 F.3d 403, 412 (7th Cir. 1994) (recognizing Mechnig
framework in context of plaintiff-teacher’s claim that
defendant-Board’s non-discriminatory basis for not re-
newing her contract—negative performance reviews—
was pretextual).
Silverman rests her case on the first type of evidence
described in Mechnig, asserting that the Board’s stated
reason had no basis in fact. Such arguments require
strong evidence that could leave a disinterested observer
doubting the honesty of the stated reason. See, e.g.,
Hague v. Thompson Distribution Co., 436 F.3d 816, 823
(7th Cir. 2006) (concluding that it is insufficient for a
plaintiff to show that an employer’s decision was
mistaken or ill-considered where it is undisputed that an
employer honestly believes a non-discriminatory rationale
for termination); McCoy v. WGN Continental Broadcasting
Co., 957 F.2d 368, 373 (7th Cir. 1992) (noting that the
issue of pretext in age discrimination context addresses
whether the employee honestly believes in the reasons
it offers for its employment decision).
Silverman simply has not provided any evidence
beyond her mere disagreement with Karvelas’s evalua-
tion to indicate that the Board did not in fact base its
decision on Karvelas’s recommendation and assessment
of her performance as it has argued. We explained this
requirement with respect to age discrimination in Futrell
v. J.I. Case, 38 F.3d 342, 346 (7th Cir. 1994): “If the evi-
No. 10-2977 19
dence does not amply support a plaintiff’s claim that the
defendant’s explanation is unworthy of credence, judg-
ment as a matter of law is entirely appropriate.” The
same conclusion follows in a Title VII analysis.
Thus, even looking directly at Karvelas’s evaluations
and their factual bases, it is irrelevant to a summary
judgment analysis whether Karvelas mischaracterized
Silverman’s classroom management skills. We simply
do not weigh the prudence of employment decisions
made by firms charged with employment discrimination.
See id. “An employer can fire an employee for any reason,
fair or unfair, so long as the decision to terminate is not
based on age or some other protected category.” Kier v.
Commercial Union Insurance Cos., 808 F.2d 1254, 1259
(7th Cir. 1987).
Most detrimental to Silverman’s claim is the undis-
puted fact that Karvelas observed one of Silverman’s
classes in February 2005, well before she learned of the
pregnancy, so that negative evaluation could not possibly
have been affected by any supposed bias against preg-
nancy. Neither has Silverman provided any evidence
to call into question Karvelas’s written observations
regarding other teachers, all of which were positive. It is
not sufficient for Silverman to argue, as she has, that all
the teachers were good but because the one teacher
whose employment was not renewed was pregnant, her
pregnancy must have been the deciding factor for her
selection. We are left with no evidence from which a
reasonable jury could infer pretext and discriminatory
animus. In the absence of any whiff of disapproval by
the Board of her pregnancy, Silverman cannot avoid
20 No. 10-2977
summary judgment with an “unadorned claim” that a
jury might not believe the Board’s explanation. Gian-
nopoulos, 109 F.3d at 411.
2. Interviewing Others for the New Position
Silverman also tries to support her pretext argument
with evidence of the Board’s actions after her contract
was not renewed. On July 27, 2005, the Board’s Office
of Special Services notified principal Karvelas that
Lincoln Park would be the site of a new autism unit and
that a new autism teaching position would become avail-
able for the 2005-2006 school year. In a letter dated the
very next day, Karvelas offered Silverman this new posi-
tion, which she accepted on August 11. In spite of her
rehire, Silverman maintains that the circumstances sur-
rounding her rehire were evidence of pretext. Karvelas
interviewed two other teachers for the autism position.
Silverman claims that these interviews were attempts
by Karvelas and the Board to avoid rehiring her. She
argues that they support her pretext argument under
the indirect method by indicating that “Karvelas took a
dim view of pregnant teachers, had no intention of
offering Silverman the new position until told by the
Law Department that she had to, and remained intent
on getting rid of Silverman.”
This is speculation rather than a reasonable inference.
With the start of the school year fast approaching, the
Board needed to conduct interviews for either Silver-
man’s maternity-leave substitute or a permanent teacher
in case Silverman declined her offer. It was perfectly rea-
No. 10-2977 21
sonable for the Board to hold interviews and to be
unsure at that time whether it would be able to offer the
interviewee a short-term or permanent position. Most
important here is that the Board offered Silverman the
position and Silverman accepted. The fact that Karvelas
interviewed other teachers is not enough for a rational
trier of fact to infer pretext and find for Silverman on
her discrimination claim.
III. The Retaliation Claim
In her second count, Silverman alleges that the Board
retaliated against her for filing a charge of discrimina-
tion with the EEOC. She contends this retaliation took
the form of rehiring her for a more difficult position and
not renewing her contract to teach at Lincoln Park after
the 2005-2006 school year.4 Title VII prohibits an
employer from taking an adverse employment action
against an employee because she has filed an employ-
ment discrimination charge. See 42 U.S.C. § 2000e-3(a);
Burlington Northern & Santa Fe Railway Co. v. White, 548
U.S. 53, 62 (2006). As with her discrimination claim,
Silverman may defeat a motion for summary judgment
by providing sufficient evidence of retaliation through
either a direct or indirect method. See Weber v. Universities
4
As noted by the district court, Silverman obtained another
teaching position at a different Chicago school by August 2006
and thus suffered no loss of compensation or benefits. In
this action, she seeks only compensatory damages for mental
and emotional distress.
22 No. 10-2977
Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir. 2010).
Silverman proceeds under both methods. We find no
sufficient evidence of retaliation under either method.
A. The Direct Method
To avoid summary judgment under the direct method
of proof for proving retaliation, a plaintiff must show:
(1) that she engaged in a statutorily protected activity;
(2) that she suffered a materially adverse action by
her employer; and (3) there was a causal link between
the two. Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir.
2010). Silverman satisfied the first element. Filing a
charge with the EEOC about the alleged discrimination
is the most obvious form of statutorily protected activity.
See 42 U.S.C. § 2000e-3(a); Chapin v. Fort-Rohr Motors, Inc.,
621 F.3d 673, 677 (7th Cir. 2010). For the second ele-
ment of an adverse action, Silverman identifies three:
assigning her to a more difficult position with the
autism class in 2005; writing negative evaluations of her
teaching during the 2005-2006 school year; and deciding
not to renew her contract in 2006. The Board contends
the first and second actions do not qualify, but concedes
that the non-renewal of Silverman’s contract in 2006
qualifies as an adverse action.
In a retaliation case, an adverse action is “one that
a reasonable employee would find to be materially
adverse such that the employee would be dissuaded from
engaging in the protected activity.” Roney v. Illinois Dep’t
of Transportation, 474 F.3d 455, 461 (7th Cir. 2007). Al-
though Silverman characterizes one of her alleged adverse
No. 10-2977 23
actions at issue here as “an assignment” to a more
difficult position, she refers in fact to the Board’s offer to
her of a new position, not a revised assignment. Having
lost her position in the spring of 2005—and, as we have
explained, there was nothing unlawful about that
decision—she was offered the only position that became
available that summer for someone with her qualifica-
tions. That action cannot reasonably be characterized
as retaliatory. Even if we assume that Silverman’s new
teaching role was less desirable than her previous one,
the Board was under no obligation to rehire her for
any position at all. To characterize the Board’s offer as a
retaliatory change in assignment is to misconstrue the
series of events leading to Silverman’s acceptance of the
newly created position. The Board’s job offer to teach
autistic students at Lincoln Park was not an adverse action.
The parties further dispute whether the negative evalua-
tions Silverman received during the 2005-2006 school
year were adverse actions. In February and March 2006,
Karvelas observed Silverman’s autism class. Her observa-
tion notes indicated that, by her assessment, Silverman
was not performing well in the classroom. As a result,
Silverman received at least one written notice from
Karvelas stating that her classroom instruction was
weak. Silverman contends that these criticisms of her
teaching, the veracity of which she disputes, constitute
adverse employment actions. As the Supreme Court
has taught, Title VII does not set forth a general civility
code for the workplace. See Burlington Northern, 548 U.S.
at 68. The statute does, however, prohibit employer
actions that are likely to deter victims of discrimination
24 No. 10-2977
from complaining to the EEOC. Id. In Burlington Northern,
the Court made clear that context matters to the deter-
mination of what constitutes a materially adverse ac-
tion. Id. at 69. In this context, we agree with Silverman
that a negative performance evaluation could constitute
an adverse action within the meaning of the direct
method of proving retaliation (as distinct from a claim
of discrimination based on a prohibited classification).
Nevertheless, under the direct method, Silverman still
bears the burden of providing evidence tending to show
a causal connection between those evaluations and her
complaint with the EEOC months earlier, before she
was rehired for the 2005-2006 year. The fact that the
evaluations occurred later does not suffice to show a
causal connection. Silverman has not offered evidence
that the evaluations were causally linked to her EEOC
charge, so we need not consider them further.
The Board concedes that its decision not to renew
Silverman’s contract in the summer of 2006 constituted
an adverse employment action. Silverman must then
offer “evidence that reasonably suggests” that her pro-
tected activity was related to the Board’s decision. See
Lewis v. City of Chicago, 496 F.3d 645, 655, quoting Burks v.
Wisconsin Dep’t of Transportation, 464 F.3d 744, 758-59 (7th
Cir. 2006). In Lewis, we held that the plaintiff properly
supplied additional evidence beyond suspicious timing
to survive summary judgment on a retaliation claim.
There, the plaintiff’s supervisors treated her less well
after she filed a discrimination charge. See id. at 655-56.
Here, however, Silverman has not presented any evi-
dence to back up her claim. She refers to the interviews
No. 10-2977 25
that took place around the time that she received her
autism job offer and states that “a jury could conclude
that Karvelas had no intention of rehiring Silverman”
based on that evidence. The fact that the interviews
took place has nothing to do with establishing a
causal connection between Silverman’s EEOC charge
and the non-renewal of her contract the following spring,
nor does Silverman suggest any way that it might sub-
stantiate her assertion.
In the absence of any persuasive evidence of retalia-
tion through the direct method, we turn to Silverman’s
attempt to prove by the indirect method that the Board
intended to retaliate against her.
B. The Indirect Method
To establish a prima facie case of retaliation under the
indirect method, Silverman must demonstrate two of
the same elements required by the direct method: first,
that she engaged in a statutorily protected activity and,
second, that she suffered an adverse employment action.
Nichols v. Southern Illinois University-Edwardsville, 510
F.3d 772, 785 (7th Cir. 2007). As noted, the Board
concedes that Silverman has established these two ele-
ments as to its decision to not renew her contract in
2006. The indirect method also requires Silverman to
show that she met the Board’s legitimate expectations
and that she was treated less favorably than similarly
situated employees who did not engage in the stat-
utorily protected activity. See Leonard v. Eastern Illinois
University, 606 F.3d 428, 431 (7th Cir. 2010). If she estab-
26 No. 10-2977
lishes these elements, the burden shifts to the Board to
produce a legitimate, non-retaliatory reason for not
renewing Silverman’s contract. Nichols, 510 F.3d at 785. If
it succeeds in doing so, then Silverman must come
forward with evidence that the Board’s proffered reasons
were only a pretext for retaliating against her. Id. Neither
party doubts that Silverman met the Board’s legitimate
expectations. The parties dispute, however, whether
the Board treated a similarly situated employee more
favorably. We agree with the district court that
Silverman failed to offer sufficient evidence that she
was treated less favorably than a similarly situated em-
ployee. She cannot prove retaliation through the
indirect method.
If an employer takes an action against one employee in
a protected class but not another outside that class, and
all else is equal between the comparators, we can
infer discrimination, at least provisionally at the prima
facie stage of the analysis. See Humphries v. CBOCS
West, Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff’d, 553 U.S.
442 (2008). The purpose of the “similarly situated” com-
parator element is to ensure that all other variables are
discounted so that an inference of unlawful intent would
be reasonable. Thus, although the “similarly situated”
inquiry is a “flexible, common-sense one,” Henry v. Jones,
507 F.3d 558, 564 (7th Cir. 2009), the comparators must
be similar enough that any differences in their treat-
ment cannot be attributed to other variables. See Senske
v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009) (noting that
a difference in performance history would dilute the
persuasive power of a similarly situated comparison in
No. 10-2977 27
age discrimination case); see also Patterson v. Indiana
Newspapers, Inc., 589 F.3d 357, 366 (7th Cir. 2009) (similarly
situated employee(s) must be “directly comparable to
the plaintiff in all material aspects”). Those variables
include distinctions in positions, performance, or super-
visors. See Senske, 588 F.3d at 510.
Silverman contends that Jon Goldstein, a male proba-
tionary special education teacher, was similarly situated
and was treated more favorably than she was. Goldstein
also taught special education students and reported to
Karvelas. Karvelas observed Goldstein’s teaching around
the same time that she observed Silverman. Her observa-
tion notes from Goldstein’s class indicate that he was
effective in managing his students. Karvelas gave
Goldstein a “superior” rating for his work, while Silver-
man received only a “satisfactory” rating. These differ-
ences in performance quality undermine the comparison
between Goldstein and Silverman for the purpose of a
“similarly situated” analysis. Absent adequate evidence
from which a reasonable jury could question the honesty
of Karvelas’s evaluations, we have no basis from which
to infer that the Board’s motive was actually retaliatory.
Even if we were to find that Silverman succeeded in
establishing a prima facie case through the indirect
method, we conclude, as the district court did, that
Silverman’s claim would still fail because she has not
offered sufficient evidence that the Board’s reason for not
renewing her contract was pretextual. The Board again
asserts substandard performance as its reason for not
renewing Silverman’s contract. The Board offers as evi-
28 No. 10-2977
dence of its position Karvelas’s written observation
notes, her testimony that Silverman failed to incorporate
standard-based instruction into her work among other
classroom management concerns, and testimony from
Dr. Sylvia Love, a school psychologist, and Wanda
Kramer, an assistant principal. In their declarations,
Love and Kramer both related concerns they had while
observing Silverman’s classroom management. But ac-
cording to Silverman, Love never entered her classroom
and Kramer conducted only a “brief, pop-in” visit
from which she was not qualified to make any deter-
minations about Silverman’s performance.
Federal Rule of Civil Procedure 56 requires the district
court to grant a motion for summary judgment after
discovery “against a party who fails to make a showing
sufficient to establish the existence of an element
essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Here, taking the facts in
the light most favorable to the plaintiff as the non-moving
party, Silverman nevertheless falls short in her attempt
to raise a genuine issue of material fact as to the honesty
of the Board’s justification for its decision. A successful
pretext argument would require Silverman to do more
than simply allege that the Board’s reason for not
renewing her contract is dishonest.
The strongest evidence Silverman offers to support her
theory is the conflicting accounts regarding the Board’s
corroborative evaluations of her performance. Despite
Love’s declaration regarding her observations of Silver-
No. 10-2977 29
man’s teaching, Silverman testified that Love simply
never observed her—that it just never happened.
With respect to Kramer, when Silverman testified in her
November 2008 deposition, she did not recall Kramer
coming into her classroom. In her April 2010 affidavit,
however, Silverman stated that Kramer did enter her
classroom for a quick visit during the spring of 2006.
The district court did not rely on either of these accounts
concerning Love or Kramer. Nevertheless, from these
allegedly fabricated and unsubstantiated observations,
Silverman maintains, a jury could infer retaliatory motive.
Although the parties dispute some of the facts sur-
rounding these incidents, their dispute still does not
create a genuine issue of material fact as to whether the
Board’s justification is worthy of belief. See Stalter v. Wal-
Mart Stores, Inc., 195 F.3d 285, 288-89 (7th Cir. 1999)
(“We look not at the wisdom of the employer’s deci-
sion, but rather at the genuineness of the employer’s
motives”); Giannopoulos, 109 F.3d at 411 (recognizing that
the court does not decide whether a justification for ter-
mination was fair, but whether it was the true reason).
The relevant task for our review, and the burden that
Silverman bears, is to show a genuine issue of material
fact regarding whether the Board’s reliance on Karvelas’s
assessments was legitimate or was intended merely
to conceal retaliatory intent. See id. Pretext is “more than
just faulty reasoning or mistaken judgment on the part
of the employer; it is [a] lie, specifically a phony reason
for some action.” Scruggs v. Garst Seed Co., 587 F.3d 832,
839 (7th Cir. 2009) (citation and quotation marks omitted).
See also Forrester v. Rauland-Borg Corp., 453 F.3d 416, 419
30 No. 10-2977
(7th Cir. 2006) (stating that pretext is “a deliberate false-
hood”). As we have noted with respect to pretext in
the discrimination context, if the Board honestly
believed the non-discriminatory reason it proffered, the
reason was not pretextual. See Scruggs, 587 F.3d at 839.
If the Board were supporting its decisions by relying
on Love’s observations, the factual dispute about whether
she actually made the observations would be material.
On this record, however, we do not believe that it is
material. Karvelas was the key decisionmaker, and her
observations in the 2004-2005 school year, some made
before she learned of Silverman’s pregnancy and all
before the EEOC charge, were consistent with her nega-
tive observations in the 2005-2006 school year. And
those observations were also consistent with Kramer’s
observations. Silverman points to nothing in the record
that reasonably calls into question the Board’s reliance
on Karvelas’s assessments. She has failed to raise a
genuine issue of material fact about the honesty of the
Board’s stated non-discriminatory reason for not
renewing her contract at the end of the 2005-2006
school year.
The judgment of the district court is therefore A FFIRMED.
3-21-11