O'LEARY v. Accretive Health, Inc., 2011 U.S. App. LEXIS 19321

Background

O'Leary was terminated from Accretive Health, Inc. after reporting sexually charged remarks by site director Rhonda Miller to senior management.
O'Leary alleged retaliation under Title VII and §1981 for opposing perceived sex and race discrimination.
District court granted summary judgment, holding no protected activity or pretext for discharge.
Miller’s dinner remarks were investigated and not found to violate company policy; Miller was reprimanded.
O'Leary claimed his concerns about race discrimination regarding Nichols’ treatment were raised internally and constituted protected activity.
Key personnel: Tolan (CEO) and Deffarges (EVP) cited leadership and performance concerns as bases for termination, including account-management failures at multiple hospitals.
Extensive internal records showed performance criticisms, with disputes over the extent of communications of those criticisms to O'Leary.
The Seventh Circuit affirmed the district court’s grant of summary judgment for Accretive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether O'Leary engaged in protected activity.	O'Leary reported Miller’s conduct and race concerns, which he believed reflected discrimination.	Miller’s conduct was not actionable harassment; O'Leary’s complaints were not protected.	O'Leary engaged in protected, good-faith concerns about race discrimination.
Whether Miller's dinner remarks constituted protected sexual-harassment opposition.	O'Leary believed Miller’s remarks could amount to sexual harassment and reported them.	The conduct was a single, non-actionable instance; not protected opposition.	Not protected as sexual-harassment opposition under Title VII; not a basis for retaliation.
Whether O'Leary's race-discrimination concern was protected opposition.	Concern about Miller mistreating Nichols based on race; raised to Tolan.	Complaint based on one observed incident; not enough to show race discrimination.	There is a factual dispute that O'Leary raised a cognizable race-discrimination concern.
Whether Accretive's reasons for discharge were pretextual.	Declarations from hospitals allegedly disputing criticisms show pretext.	Disagreements over performance do not prove pretext; employer believed the criticisms.	O'Leary failed to show pretext; factual record does not permit a reasonable inference of dishonesty.
Direct vs. indirect proof viability in proving retaliation.	Direct evidence or convincing mosaic supports retaliation.	Timing and performance records fail to establish a causal link or pretext.	Direct proof lacking; indirect proof insufficient to overcome legitimate nondiscriminatory reasons.

Key Cases Cited

Tate v. Exec. Mgmt. Servs., Inc., 546 F.3d 528 (7th Cir. 2008) (protected activity requires reasonable belief of unlawfulness; good faith standard)
Whittaker v. N. Ill. Univ., 424 F.3d 640 (7th Cir. 2005) (causal link; temporal proximity alone is rarely enough)
Pickett v. Sheridan Health Care Ctr., 610 F.3d 434 (7th Cir. 2010) (protected activity requires good faith belief in illegality)
Fine v. Ryan Intl Airlines, 305 F.3d 746 (7th Cir. 2002) (opposition must be based on reasonable belief of wrongdoing)
Berry v. Chicago Transit Auth., 618 F.3d 688 (7th Cir. 2010) (harassment/hostile environment concepts; objective/subjective standard)
Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498 (7th Cir. 2004) (direct/indirect evidence framework for retaliation)
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (U.S. 2001) (brief, non-actionable remarks not actionable harassment; protected opposition)
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (U.S. 1998) (distinguishing harassment versus tangible employment actions; constructive knowledge)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (establishing prima facie case framework for retaliation)
Naik v. Boehringer Ingelheim Pharm., Inc., 627 F.3d 596 (7th Cir. 2010) (pretext inquiry requires showing employer’s deception)
Montgomery v. Am. Airlines, Inc., 626 F.3d 382 (7th Cir. 2010) (pretext assessment in retaliation)