Case Information
*1 Before F LAUM , R IPPLE , and S YKES , Circuit Judges . R IPPLE , Circuit Judge
. Ratna Bagwe, who was born in India and is of Indian descent, brought this action in the United States District Court for the Northern District of Illinois against Sedgwick Claims Management Services, Inc. (“Sedg- wick”) and her former supervisors, Tammy LeClaire [1] and An- gela Papaioannou. Alleging claims under the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/1, she stated that Sedgwick had paid her a comparatively low salary because of her race and na- tional origin. She also alleged that she was terminated for re- taliatory and racially discriminatory reasons. The district court granted summary judgment to the defendants on all counts. Ms. Bagwe now seeks reversal of that judgment. For the reasons set forth in this opinion, we affirm.
I BACKGROUND A. Facts
Because the district court entered summary judgment for
the defendants, we must view the facts in the light most fa-
vorable to Ms. Bagwe, the nonmoving party.
See, e.g., Gerhartz
v. Richert
,
Sedgwick is a claims management services company headquartered in Memphis, Tennessee. Ms. Bagwe began working in Sedgwick’s Chicago office in March 2001. She was promoted to Assistant Manager II in 2005, and received a cor- responding pay raise. She was then asked to serve as Interim Operations Manager in 2007. In late 2007, Ms. Bagwe was pro- moted to Operations Manager III. Ms. LeClaire, a Managing Director at Sedgwick, made the decision to promote Ms. Bagwe. Delaine Simmons, Ms. Bagwe’s direct supervisor at the time, counseled Ms. LeClaire against promoting Ms. Bagwe. In Ms. Simmons’s view, Ms. Bagwe had demon- strated poor leadership skills and had not provided sufficient direction to her subordinates.
As Operations Manager III, Ms. Bagwe oversaw short term disability claims for Sedgwick’s AT&T account. Ms. Pa- paioannou, the Area Manager for the AT&T account, was her direct supervisor. At the time of her promotion, Ms. Bagwe received a promotional pay raise of $10,000. She received an- other pay raise of $3,000, sometime in 2008. [4]
Ms. Bagwe did have some managerial problems as Oper- ations Manager III. In early 2008, one of Ms. Bagwe’s subor- dinates, Tonya Warner, requested that Ms. Papaioannou reas- sign her to a different supervisor. Ms. Warner claimed that Ms. Bagwe had failed to provide her with important infor- mation and was overly confrontational. Ms. Papaioannou and Ms. LeClaire considered the complaints and decided to reas- sign Ms. Warner so that she reported to Ms. Papaioannou in- stead of Ms. Bagwe.
Ms. Bagwe was also dissatisfied with her compensation. During an April 2008 conference call with Ms. Papaioannou and Carla Street, a Colleague Resources Manager, Ms. Bagwe expressed general concerns about her pay increases over the three previous years. Ms. Bagwe concedes that she did not mention race, national origin, or discrimination in the course of that conversation. Ms. Papaioannou allegedly warned Ms. Bagwe “that we have to be careful because we don’t want to be perceived as a whiner.” Ms. Papaioannou later dis- cussed Ms. Bagwe’s complaints with Ms. Simmons in a series of text messages:
Ms. Papaioannou: tried to tell [Ms. Bagwe] yesterday 5 to be careful on the whole max 3% thing Ms. Papaioannou: apparently didn't not hear me Ms. Simmons: yes i know, she told me you did. i tried to talk her down as well. she really has an overinflated sense of her importance Ms. Papaioannou: I am meeting with her again on Friday so I’m probably going to be direct with her again but if she continues, I’m not going to be able to stop [Ms. LeClaire] [6] Ms. Bagwe submitted a memorandum to Ms. Street a few days later, expressing similar concerns about her compensa- tion. The memorandum was then forwarded to Ms. LeClaire. Like the earlier conference call, the memorandum did not mention race, national origin, or discrimination. Instead, Ms. Bagwe claimed that Ms. LeClaire had pressured Ms. Sim- mons, her direct supervisor before the promotion, to deny her a promotional increase in 2005. Ms. Bagwe also claimed that, sometime shortly after she sent this memorandum, Ms. Le- Claire raised her voice to Ms. Bagwe and told her that “[you] think [you’re] good but [you’re] no good.”
Ms. LeClaire determined that Ms. Bagwe had received ap- propriate raises since 2005. In her affidavit, Ms. LeClaire stated that Ms. Simmons had recommended above-budget pay increases for Ms. Bagwe in 2003 and 2004. As a result, Ms. Bagwe’s salary already was above the median salary of an Assistant Manager II. In addition, Ms. LeClaire determined that her subsequent pay raises were average for her peer group. Based on these observations, Ms. LeClaire concluded that Sedgwick need not take any further action regarding Ms. Bagwe’s salary at that time.
Ms. Bagwe first raised the issue of racial discrimination in a May 2008 conversation with Stephanie Simpson, Regional Colleague Resources Manager. The record does not indicate whether Ms. Simpson actually reported this complaint to Ms. LeClaire or to Ms. Papaioannou, as required by Sedg- wick’s policies.
In June 2008, Ms. Bagwe took a business trip to Atlanta with Ms. LeClaire and another Sedgwick employee, Anne Coyle. One evening, at the bar of the hotel where they were staying, Ms. LeClaire began discussing her pending di- vorce with Ms. Bagwe and Ms. Coyle. During this conversa- tion, Ms. LeClaire allegedly told Ms. Bagwe that she should get rid of her “old Indian husband” and get a “white man be- cause white men are more fun.” Ms. Coyle made similar re- marks.
About six months later, in January 2009, Ms. Bagwe and Ms. Coyle got into a heated exchange at work. Charles French, the AT&T Workers’ Compensation Account Executive, over- heard the conversation. He sent an email to Ms. Papaioannou on January 22, 2009, expressing his concerns about Ms. Bagwe’s leadership and some other staffing issues on Ms. Bagwe’s team. He then met with Ms. Bagwe and Ms. Street on February 10, 2009, to discuss the incident in- volving Ms. Coyle. At the meeting, Ms. Bagwe relayed Ms. 7 LeClaire’s and Ms. Coyle’s comments about finding a “white husband.” Ms. Bagwe also mentioned that Ms. Coyle previ- ously had made a hand gesture to make fun of a co-worker’s sexual orientation. Following this meeting, Ms. Bagwe re- peated the information to Ms. Papaioannou.
Mr. French later sent a memorandum to Ms. Street and Ms. Papaioannou, expressing his concerns about Ms. Bagwe’s leadership. The memorandum mentioned the altercation be- tween Ms. Bagwe and Ms. Coyle, a series of emails from Ms. Bagwe in which she questioned a final decision that she had previously approved during an earlier meeting, and a failure by Ms. Bagwe’s team to share reports with others in the company. [9]
In March 2009, Sedgwick placed Ms. Bagwe on a Perfor- mance Improvement Plan (“PIP”). The PIP cited several criti- cisms of Ms. Bagwe’s behavior over the prior year, notably that she had not brought any solutions to the February meet- ing with Mr. French, that she had been unresponsive to emails, and that she refused to listen to criticism. The PIP also mentioned Ms. Bagwe’s complaints about Ms. Coyle’s com- ments, noting “that if you overheard comments being made by another colleague about someone else, it was your role and responsibility to address the issue at that time and not a year later.” Ms. LeClaire and Ms. Papaioannou presented the PIP to Ms. Bagwe in a meeting on March 12, 2009. During this meeting, Ms. LeClaire allegedly pointed her finger at Ms. Bagwe and warned her that she “better be careful.” [11]
In April 2009, Ms. Bagwe complained about the PIP to Ms. Papaioannou, Ms. LeClaire, Ms. Street, and Ms. Simpson. She also sent a complaint to Ms. Simpson in which she described “discrimination, harassment, bullying, and hostile work envi- ronment.” [12] The latter complaint mentioned “disparities in salaries for some of [the] other colleagues,” and Ms. Le- Claire’s “retaliation” for Ms. Bagwe’s previous complaints. [13] Ms. Simpson forwarded this complaint to Ms. Browne and Rachel Jackson, the Senior Vice President of Colleague Re- sources.
Ms. Simpson then investigated the complaint and issued a report on June 15, 2009. The report discussed Ms. Bagwe’s complaints about her work environment and set forth her coworkers’ perspective of the situation. According to the re- port, Ms. Warner noted “a perception [that Ms. Bagwe] is re- taliatory.” [14] Mr. French felt “like [Ms. Bagwe] is the one at- tacking him.” [15] One coworker said that Ms. Bagwe “would talk over her and it was her natural instinct to raise her 9 voice.” [16] Another co-worker observed that “it was very diffi- cult to get the benefit of the doubt from [Ms. Bagwe] or change her perception to be favorable.” [17] The report also concluded that Ms. Bagwe was compensated fairly, considering her level of experience. [18]
On June 22, 2009, Ms. Bagwe sent Ms. Simpson another e- mail about her concerns, stating that “[i]f discrimination is not the reason, please help me understand why my repeated re- quests to have the compensation addressed based solely on the merits of the situation have not been considered[.]” [19] Ms. Simpson sent Ms. Bagwe a letter on July 28, 2009, stating that “[w]e were unable to obtain tangible evidence or addi- tional witness[es] to confirm that harassment and/or discrim- ination occurred,” and that “we analyzed your pay and deter- mined that your compensation is fair.” [20]
At some point around early July, after a lunch outside the office, Ms. Bagwe asked Ms. LeClaire how her sister-in-law was doing. According to Ms. Bagwe, Ms. LeClaire responded, “which one, the Indian?” [21] Ms. LeClaire then said that she did not like her sister-in-law. [22]
In July of 2009, Ms. Warner canceled a meeting and ig- nored Ms. Bagwe when confronted about the cancellation. Ms. Bagwe then sent Ms. Warner a series of heated emails, which left Ms. Warner in tears. Ms. Warner forwarded these emails to Ms. LeClaire. Ms. LeClaire expressed concern about the confrontational tone of the emails, and subsequently met with Ms. Papaioannou to discuss the matter. Ms. Papaioan- nou stated in her deposition that she felt that Ms. Bagwe “han- dled the situation appropriately.” [23] However, Ms. Papaioan- nou said she also received complaints from other coworkers about “email war debates” started by Ms. Bagwe. [24]
At some point in late July or early August 2009, Sedgwick decided to terminate Ms. Bagwe. Ms. LeClaire, Ms. Papaioan- nou, Ms. Browne, and Brad Johnson, Executive Vice President of Sedgwick, were involved in the decision. Sedgwick’s poli- cies required that Ms. Browne or Ms. Jackson approve any ter- mination. [25] The decisionmakers all stated that Ms. Browne ap- proved Ms. Bagwe’s termination. However, each gave differ- ing accounts of how the company reached the decision to ter- minate. Ms. Papaioannou said that the decision was reached during a conference call between her, Ms. LeClaire, Ms. Browne, and Mr. Johnson. [26] Ms. LeClaire said that she and Ms. Papaioannou reached the decision, and she then 11 spoke directly to Ms. Browne. [27] Ms. Browne said that she re- ceived a recommendation to terminate from Mr. Johnson, and never spoke to Ms. LeClaire. [28] Mr. Johnson testified that he spoke to Ms. LeClaire, and then communicated Ms. LeClaire’s recommendation to Ms. Browne. [29]
On August 13, 2009, Ms. Bagwe stopped by Ms. Papaioan- nou’s office to say hello. Ms. Bagwe claims that, as she was leaving, she heard Ms. Papaioannou call her an “Indian bitch.” [30] Ms. Papaioannou disputes that she ever made this comment, but we must accept Ms. Bagwe’s testimony as true on review of a grant of summary judgment.
Later that day, Ms. Bagwe learned from Ms. Street and Ms. Jackson that she was terminated. Ms. Jackson explained that there was a “continuing lack of trust” that had “become a distraction to the business.” [31] Ms. Jackson and Ms. Street also made clear that the termination had “nothing to do with performance.” [32] Following her termination, Ms. Bagwe was escorted directly out of the building.
Sedgwick had used a “Termination Checklist and Ques- tionnaire” on previous occasions. The form included a num- ber of yes or no questions and ended with an instruction to “[a]llow the colleague to say goodbye to co-workers and to gather belongings; then escort quietly from the premises.” [33] The checklist was not filled out during Ms. Bagwe’s termina- tion. Ms. Street described the checklist as a “routine thing.” [34] However, Ms. Jackson stated that “[a]ny time I go [to the ter- mination meeting], for the most part, a termination checklist is not involved, because those termination checklists come to me to review.” [35] At least two other employees were termi- nated without the use of this checklist.
In February 2010, Sedgwick hired a replacement for the Operations Manager III position. Ms. Bagwe’s replacement was white and American. He did not have experience with disability claims, but he did have management experience that Ms. Bagwe lacked. He also started at a higher salary than Ms. Bagwe. Ms. Papaioannou could not remember why Sedg- wick started him at a higher salary, but Ms. LeClaire ex- plained that it was based on “his level of experience and years of management.” [36] Ms. Bagwe’s replacement failed to learn the aspects of claim management, and settled a workers’ com- pensation claim without proper authority. [37] After being coun- seled by Ms. Papaioannou for about one year, he was termi- nated on September 21, 2012.
A few months after her termination from Sedgwick, Ms. Bagwe applied for a position with Matrix Absence Man- agement. Ms. Bagwe was denied the position. Ms. Bagwe has submitted the affidavit of a former employee at Matrix, who states that:
Prior to the time I could schedule Ms. Bagwe’s trip with the recruiter, I received an e-mail from [the CEO of Matrix]. The e-mail indicated [that the CEO] had just spoken with someone he knew from working at Sedgwick and that, based on that, I should not hire Ms. Bagwe. It said [that the CEO] learned that Ms. Bagwe was a good performer before she was promoted, but that then she became a “problem.” The e-mail did not provide any specifics about Ms. Bagwe’s performance after her promotion, only that she was a “problem.” The e-mail specifically said “Do not hire her.”
The Matrix employee further related that, upon receiving this email, she terminated the hiring process.
B. Earlier Proceedings
Ms. Bagwe filed timely charges of discrimination, hostile work environment, harassment, and retaliation with the Equal Employment Opportunity Commission (“EEOC”) on December 12, 2009. She later filed this action in district court against Sedgwick, Ms. LeClaire, and Ms. Papaioannou on April 12, 2011. The complaint included discrimination, retali- ation, and defamation claims under 42 U.S.C. § 1981, 42 U.S.C. § 2000e, the IHRA, and state common law.
On May 1, 2014, the defendants filed a motion for sum- mary judgment on all counts. The defendants argued that Ms. Bagwe’s claims of pay discrimination were barred by the applicable statutes of limitations and that all of the claims fell short on the merits. Ms. Bagwe did not respond to the defend- ants’ argument that certain pay discrimination claims were time-barred. Ms. Bagwe did contest, however, the defend- ants’ merits arguments about the discrimination and retalia- tion claims. She withdrew her defamation claim.
On September 5, 2014, the district court granted summary judgment in favor of Sedgwick, Ms. LeClaire, and Ms. Papai- oannou on all of Ms. Bagwe’s claims. It concluded that Ms. Bagwe’s claims of pay discrimination were untimely, and therefore it did not consider these claims on the merits. The district court further concluded that Ms. Bagwe’s remaining claims of discrimination and retaliation failed on the merits.
II
DISCUSSION
We review de novo a district court’s grant of summary
judgment.
Pyles v. Fahim
, 771 F.3d 403, 408 (7th Cir. 2014).
Summary judgment is appropriate when, after construing the
record in the light most favorable to the nonmoving party, we
conclude that no reasonable jury could rule in favor of the
nonmoving party.
Miller v. Gonzalez
,
A. Discrimination Claim Based on Termination
Ms. Bagwe first contends that Sedgwick terminated her on the basis of race and national origin. Title VII makes it unlaw- ful for an employer “to discriminate against any individual with respect to [her] compensation, terms, conditions, or priv- ileges of employment because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Sec- tion 1981 makes it unlawful for an employer to discriminate on the basis of race or national origin when “mak[ing] and enforc[ing] contracts.” 42 U.S.C. § 1981. The IHRA makes it unlawful “[f]or any employer…to act with respect to…privi- leges or conditions of employment on the basis of unlawful discrimination or citizenship status.” 775 ILCS 5/2-102(A).
A plaintiff may prove discrimination under Title VII, Sec-
tion 1981, and the IHRA either directly or indirectly. A plain-
tiff proceeds under the direct method of proof by showing
“either direct or circumstantial evidence of intentional racial
discrimination.”
Tank v. T-Mobile, USA, Inc.
,
(1) a mosaic of evidence which, taken together, would permit a jury to infer discriminatory in- tent; (2) comparative evidence showing that em- ployees similarly situated to the plaintiff other than in the protected characteristic received sys- tematically better treatment; and (3) pretext ev- idence, where the plaintiff is qualified for and fails to receive the desired treatment, and the employer’s stated reason for the difference is unworthy of belief.
Piraino v. Int’l Orientation Res., Inc.
,
Under the indirect method of proof, a plaintiff employs the test articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). A plaintiff has the initial burden to show that: (1) she is a member of a protected class; (2) she was meeting her employer’s legitimate expectations; (3) she was subject to an adverse employment action; and (4) similarly situated em- ployees who were not members of the protected class were treated more favorably. Andrews v. CBOCS W., Inc. , 743 F.3d 230, 234 (7th Cir. 2014). If a plaintiff establishes a prima facie case, the burden shifts to the defendants to “articulate a legit- imate, 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.” Id.
Ms. Bagwe has not specified whether she is proceeding
under the direct or indirect method of proof, but instead crit-
icizes the entire framework as too rigid. We previously recog-
nized that “serious questions” have been raised about this
framework, but “[a]s long as the Supreme Court’s precedents
in this area are still good law, we’re not authorized to aban-
don the established framework.”
Smith v. Chicago Transit
Auth.
,
When “a plaintiff eschews burden-shifting and presents
direct and circumstantial evidence in opposition to an em-
ployer’s motion for summary judgment,” we typically use the
direct method as the “default rule.”
Morgan
,
1. Direct Method
Ms. Bagwe submits that there is sufficient circumstantial
evidence to permit a jury to conclude reasonably that she was
terminated on the basis of race and national origin. In her
view, the record contains “pretext” evidence, comparative ev-
idence, and evidence of remarks that suggest a discriminatory
motive. We will consider each of these types of evidence in
turn, and then determine whether the record, taken as a
whole, “point[s] directly to a discriminatory reason for the
employer’s action.”
Adams
,
a.
Ms. Bagwe first contends there is evidence which suggests
that Sedgwick’s alleged rationale for termination—that
Ms. Bagwe demonstrated poor leadership skills—is “unwor-
thy of belief.”
Piraino
, 84 F.3d at 274. To meet this burden,
Ms. Bagwe must “identify such weaknesses, implausibilities,
inconsistencies, or contradictions” in Sedgwick’s rationale
“that a reasonable person could find [it] unworthy of cre-
dence.”
Coleman v. Donahoe
,
Ms. Bagwe has not met that burden here. By the time Ms. Bagwe was terminated, Sedgwick had received multiple 19 complaints about her inability to work with others. Indeed, the company earlier had placed Ms. Bagwe on a PIP because of such concerns. Later, at Ms. Bagwe’s termination, Ms. Jack- son explained that there was a “continuing lack of trust” and noted particularly the “continuing excessive emails.” [40] Ms. LeClaire observed that “morale was low in the office” as a result of Ms. Bagwe’s leadership. [41] Ms. Papaioannou noted the “[e]mail communication” and that “[p]ersonal relation- ships with office colleagues are lacking.” [42]
Ms. Bagwe nevertheless argues that Sedgwick has given
“shifting” explanations for her termination, which calls this
rationale into question. Where decisionmakers’ stated ration-
ales are “sufficiently inconsistent or otherwise suspect,” a
summary judgment cannot stand.
Hitchcock v. Angel Corps,
Inc.
,
Ms. Bagwe also highlights the conflicting accounts from
Sedgwick’s decisionmakers over how and when the termina-
tion decision was reached. However, we have held that where
“there is no conflict in the evidence regarding the reasons for”
an adverse employment action, “differing recollections” of
the events surrounding that action “do not raise a reasonable
inference of discrimination.”
Petts v. Rockledge Furniture LLC
,
Next, Ms. Bagwe points to a list of complaints a coworker provided to Ms. Papaioannou a few days after the decision to terminate was made. Ms. Papaioannou received this list in early August, a few days before Ms. Bagwe was actually ter- minated. She then emailed the list to Ms. Jackson. Ms. Bagwe contends that the list suggests that Ms. Papaioannou was try- ing to “dig up” reasons for her termination. When “evidence indicates an attempt to justify a discharge after the fact,” it can suggest a discriminatory motive. Futrell v. J.I. Case , 38 F.3d 342, 349 (7th Cir. 1994) (finding potential discrimination where a decisionmaker created a list of deficiencies after a ter- mination and then made “it seem as if he kept the notes con- temporaneously”). However, there is no evidence in the rec- ord showing that Ms. Papaioannou solicited this list. More importantly, Ms. Papaioannou never has intimated that she relied on the list when recommending Ms. Bagwe’s termina- tion. This list, therefore, does not raise any inference of dis- crimination.
Ms. Bagwe also suggests that Sedgwick deviated from its
internal procedures when it terminated her. An employer’s
departure from its own policies may be circumstantial evi-
dence of discrimination.
Rudin v. Lincoln Land Cmty. Coll.
, 420
F.3d 712, 727 (7th Cir. 2005). However, there must be evidence
of a specific policy that is regularly enforced and followed in
similar situations.
Tank
, 758 F.3d at 806 (holding that there
was not circumstantial evidence where plaintiff did not offer
any corporate policy);
Long v. Teachers’ Ret. Sys. of Illinois
, 585
F.3d 344, 353 (7th Cir. 2009) (holding there was not circum-
stantial evidence where the “policy permits the employer to
exercise discretion”). In this case, Ms. Bagwe fails to present
any regularly enforced company policy that Sedgwick failed
to follow. Ms. Bagwe contends that Ms. Browne was obligated
to speak with all of Ms. Bagwe’s supervisors and review all
documentation and that Ms. Papaioannou was obligated to
attend her termination meeting. However, she does not point
to any evidence of a company policy that imposed these obli-
gations. Ms. Bagwe also contends that Sedgwick failed to
complete the “Termination Checklist and Questionnaire” on
the day of her termination and failed to follow the checklist’s
recommendation to allow an employee to return to her office
after being fired. However, the record indicates that when
Ms. Jackson, the Senior Vice President of Human Resources,
attends a termination meeting, the checklist is not employed.
Hanners v. Trent
,
Ms. Bagwe also argues that the decisionmakers knew that
she got along with others and that this shows that their ra-
tionale was pretextual. First, she points to Ms. Street’s testi-
mony that she had attended meetings run by Ms. Bagwe and
never had witnessed any communication issues. However,
Ms. Street was not a decisionmaker, and nothing in the record
23 suggests that she conveyed that opinion to a decisionmaker.
[48]
Second, Ms. Bagwe claims that Ms. LeClaire was aware that
she had handled appropriately her dispute with Ms. Warner.
However, she does not provide any evidentiary support for
that proposition.
[49]
Third, she points to Ms. Papaioannou’s
comments that, in June, Ms. Bagwe’s relationships seemed to
be improving and that she was satisfied with the way
Ms. Bagwe handled the dispute with Ms. Warner. However,
Ms. Papaioannou explained that her decision to terminate
was based on the accusations of “email war debates” she
learned about in July.
[50]
Finally, Ms. Bagwe contends that
Ms. Simpson and Ms. LeClaire had “objective” evidence that
she was a team player based on colleague survey results.
[51]
The survey results, however, only assessed management
teams
, not individual employees.
[52]
Sedgwick concluded, after
receiving several emails and having numerous meetings with
Ms. Bagwe, that her interpersonal issues were a problem for
the company. The record does not suggest that Sedgwick’s ra-
tionale was insincere or pretextual, and we do not sit as a “su-
perpersonnel department[]” that judges the wisdom of Sedg-
wick’s decisions.
Stockwell v. City of Harvey
,
Lastly, Ms. Bagwe contends that Sedgwick called a poten-
tial employer, Matrix Absence Management, and told them
that she was “a problem.”
[53]
Ms. Bagwe believes that this ex-
change proves that Sedgwick had an improper motive. How-
ever, she relies on the affidavit of a former Matrix employee,
who heard the comment secondhand. “Where a plaintiff at-
tempts to introduce the testimony of an individual who did
not personally witness the alleged … statement but was later
told by another that the statement was made, such testimony
is rejected as hearsay” on summary judgment.
Schindler v.
Seiler
,
b.
Ms. Bagwe also contends that she has “comparative evi-
dence showing that employees similarly situated to [her]
other than in the protected characteristic received systemati-
fit the “present sense impression” exception to the hearsay rule.
Schindler
v. Seiler
,
unclear from the affidavit whether the Matrix supervisor made the call to the “Sedgwick employee” or whether the “Sedgwick employee” called the Matrix supervisor. See R.163-59. The affidavit does not specify, and it is difficult to see how someone from Sedgwick would have known to call Matrix about Ms. Bagwe sua sponte. Second, the Matrix supervisor alleg- edly said that he had “spoken with someone he knew from working at Sedgwick.” Id. at 3. It is unclear whether that meant a current Sedgwick employee, a former Sedgwick employee, or someone who worked closely with Sedgwick employees. Third, this discussion assumes that the Matrix supervisor’s statement is true, but that statement is hearsay. Ms. Bagwe has not presented an affidavit or deposition from the supervisor, or demonstrated that she is otherwise prepared to submit non-hearsay evi- dence.
cally better treatment.”
Piraino
,
Ms. Bagwe first compares herself to her replacement, who was a white American that also had leadership problems dur- ing his employment at Sedgwick. Ms. Bagwe’s replacement also was terminated, which suggests he was not treated more favorably. However, Ms. Bagwe contends that he was fired for costing Sedgwick money. She believes that Sedgwick would have otherwise retained him, despite his leadership is- sues. Her belief is based entirely on speculation and does not constitute evidence of discrimination. Winsley v. Cook Cty. , 563 F.3d 598, 605 (7th Cir. 2009) (holding that an employee was not a valid comparator when she quit before any adverse ac- tion could be taken, and it was therefore “far from clear that [she] was treated more favorably”).
Ms. Bagwe also contends that she was paid less than her
colleagues who were white and American, which suggests
that Sedgwick acted with a discriminatory motive. Her argu-
ment is primarily based on a chart comparing her salary to
27 other Operations Managers III. However, Ms. Bagwe has pro-
vided no further information about these employees. She has
not explained whether these employees were subject to the
same standards, subordinate to the same supervisors, or had
comparable experience and qualifications. Ms. Bagwe cannot
simply rely on the fact that these employees held the same
title.
Tank
,
c.
Finally, Ms. Bagwe contends that there is “evidence of dis- criminatory intent” that would lead a reasonable jury to find in her favor. Specifically, she points to Ms. LeClaire’s remark about her sister-in-law, Ms. LeClaire’s suggestion to get rid of Ms. Bagwe’s “old Indian husband,” and Ms. Papaioannou’s comment referring to Ms. Bagwe as an “Indian bitch.”
Remarks can raise an inference of discrimination when
they are “(1) made by the decision-maker, (2) around the
time of the decision, and (3) in reference to the adverse em-
ployment action.”
Egonmwan v. Cook Cty. Sheriff’s Dep’t
, 602
F.3d 845, 850 (7th Cir. 2010). When considering whether a re-
mark is discriminatory, we also consider the context in which
the remark was made.
Oest v. Illinois Dep’t of Corrs.
, 240 F.3d
605, 611 (7th Cir. 2001) (explaining that comments made out-
side of work, in social settings, are less likely to constitute ev-
idence of workplace discrimination);
see also Geier v. Med-
tronic, Inc.
,
Here, both of Ms. LeClaire’s comments were unrelated to
work and made in settings outside of the workplace. Her al-
leged comment about her sister-in-law was made after a lunch
outside of the office. Ms. LeClaire identified the ethnicity of
her sister-in-law, but the comment is far too ambiguous to
raise an inference of racial or ethnic discrimination. Her “old
Indian husband” remark was made in a casual conversation
in the bar of a hotel, during a business trip to Atlanta.
Oest
,
Ms. Papaioannou’s alleged comment about Ms. Bagwe,
however, is a closer call. Ms. Papaioannou did not reference
the termination, but she did make a disparaging comment
which referenced Ms. Bagwe’s ethnicity, and she made it on
the day of Ms. Bagwe’s termination. A single “bit” or “piece”
of evidence, however, is not enough to support a claim of dis-
crimination under the direct method of proof.
Hobgood
, 731
F.3d at 644. We addressed a similar situation in
Dass v. Chicago
Board of Education
, 675 F.3d 1060 (7th Cir. 2012). In
Dass
, a
teacher who brought a claim of racial discrimination alleged
that a principal told her that she should look for a job “on the
North Side where most of the Indian kids go.”
Id.
at 1063. We
held that, “even if the remark had been closer in time” to the
adverse action, it could not support a claim of discrimination
because “[t]he undisputed facts show[ed] that [the plaintiff]
was non-renewed because she could not control her class.”
Id.
at 1072. Here, the undisputed facts show that Sedgwick ter-
minated Ms. Bagwe because of interpersonal concerns.
Ms. Papaioannou’s comment did not reference the termina-
tion and was made after the decision already had been made.
See Egonmwan
,
2. Indirect Method
Under the indirect method, we reach the same result. To
meet her initial burden, Ms. Bagwe must show that “similarly
situated employees” who were not members of the protected
class were treated more favorably.
Andrews
,
B. Ms. Bagwe’s Pay Discrimination Claims
Ms. Bagwe also raises claims under § 1981, Title VII, and the IHRA that Sedgwick paid her a low salary relative to her peers on the basis of her race and national origin.
Before we assess the merits of this claim, we must address two procedural obstacles. First, Sedgwick contends that all of Ms. Bagwe’s claims regarding compensation are time-barred and that we need not reach the merits on any claims of pay discrimination. That is not the case. Under § 1981, a complaint must be filed within four years of the alleged unlawful em- ployment practice. 28 U.S.C. § 1658(a). Ms. Bagwe filed her complaint on April 12, 2011; therefore, in order to be timely, her § 1981 claims must have arisen on or after April 12, 2007. At the very least, Ms. Bagwe’s claim that she received a com- paratively small merit increase in 2008 is not time-barred. Therefore, at least one of Ms. Bagwe’s pay discrimination claims must be considered on the merits.
Second, Ms. Bagwe contends that Sedgwick only chal-
lenged the timeliness, but not the substance, of her pay claims.
Therefore, she believes that summary judgment on her pay
discrimination claims is inappropriate.
See Sublett v. John
Wiley & Sons, Inc.
,
Under the paycheck accrual rule, a new limitations period is triggered
each time that a plaintiff is paid less than his or her colleagues.
Groesch v.
City of Springfield, Ill.
,
Turning to the merits, we observe that our conclusions on Ms. Bagwe’s discrimination claims based on termination nec- essarily prove fatal to any claim she has made based on une- qual pay. As previously discussed, Ms. Bagwe has not pre- sented any similarly situated employee who received a higher salary. Therefore, she cannot prevail under the indirect method of proof. She also has failed to present circumstantial evidence that would suggest that her employers had a dis- criminatory motive, and therefore she cannot prevail under the direct method of proof.
C. Ms. Bagwe’s Retaliation Claims
Ms. Bagwe finally contends that the defendants engaged
in a campaign of “escalating retaliation” against her for com-
plaining about workplace discrimination, which ultimately
resulted in her termination. Title VII makes it unlawful “for
an employer to discriminate against any of his employees …
because [s]he has opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C. § 2000e-
3(a). Retaliation also is a cognizable claim under § 1981 and
the IHRA.
Humphries v. CBOCS W., Inc.
,
Retaliation, like discrimination, can be established under
the direct or indirect method of proof.
Coleman
, 667 F.3d at
859. Ms. Bagwe cannot establish a retaliation claim under the
indirect method because she fails to present any similarly sit-
uated employees who were treated more favorably.
See Hutt
v. AbbVie Prods. LLC
,
Ms. Bagwe satisfies the first element. The parties agree that Ms. Bagwe made several protected complaints in early 2009, including her accusations in February 2009 of Ms. Le- Claire’s discriminatory comments, a memorandum in April 2009 about her PIP and salary, and an email in July 2009 to Colleague Resources about her salary. However, the parties disagree about whether Ms. Bagwe engaged in earlier pro- tected activity, specifically on May 21, 2008, when she told Ms. Simpson that she was experiencing racial discrimination. Sedgwick contends that Ms. Simpson did not understand this complaint to concern race. However, Ms. Bagwe testified that she explicitly mentioned racial discrimination. We must ac- cept Ms. Bagwe’s testimony as true on review of summary judgment. Sedgwick also contends that Ms. Simpson did not report Ms. Bagwe’s complaint to any decisionmaker, and therefore no decisionmaker could have possibly retaliated based on a complaint he or she never heard. However, one can reasonably infer that such an accusation would be re- ported by Colleague Resources to supervisors within Sedg- wick. For the purposes of summary judgment, we must con- strue the facts in the light most favorable to Ms. Bagwe and conclude that this conversation also was a protected activity.
We now consider whether these protected statements are
causally connected to any adverse employment action.
Ms. Bagwe presents a series of events that she believes were
adverse actions and argues that Sedgwick engaged in re-
peated retaliatory responses to her complaints. We have held
that a “sequence of protected activity and punitive action
could
lend some support to a reasonable juror’s inference of
retaliation.”
Coleman
,
Ms. Bagwe first submits that the defendants demonstrated
a motive to retaliate before any protected activity took place.
In April 2008, Ms. Bagwe complained about her pay, without
mentioning race or discrimination. In response, Ms. Papaio-
annou told her to be careful, and noted to a co-worker that she
was “not going to be able to stop” Ms. LeClaire. Ms. LeClaire
allegedly yelled at Ms. Bagwe about a week later. Ms. Bagwe
concedes that these complaints were not protected activity.
See Kodl v. Bd. of Educ. Sch. Dist. 45, Villa Park
,
Next, Ms. Bagwe contends that Sedgwick took its first re-
taliatory action in March 2009, when she was placed on a PIP.
To rise to the level of an adverse action, a change “must be
one that a reasonable employee would find to be materially
adverse such that the employee would be dissuaded from en-
gaging in the protected activity.”
Lewis v. City of Chicago
, 496
F.3d 645, 655 (7th Cir. 2007) (quoting
Roney v. Illinois Dep’t of
Transp.
, 474 F.3d 455, 461 (7th Cir. 2006)). A PIP, without
more, does not rise to this level.
Davis
,
A PIP could still constitute relevant evidence of retaliation.
Oest
,
Ms. Bagwe also alleges that Sedgwick investigated her im-
mediately after she complained of pay discrimination in April
2009 instead of taking her accusations seriously. She believes
this investigation was improper and, therefore, constitutes ev-
idence of Sedgwick’s retaliatory motive. However, we have
held that a company’s investigation of a plaintiff immediately
after she makes a complaint is “not suspicious,” because the
company might well need “to determine whether there was a
larger problem.”
Tank
,
Finally, Ms. Bagwe claims that she was terminated for re- taliatory reasons. A termination is undoubtedly an adverse employment action. Oest , 240 F.3d at 613. However, Ms. Bagwe has not linked her termination to her complaints of discrimination, or established that the reasons given by Sedgwick are pretextual. Rather, Sedgwick’s rationale for ter- minating Ms. Bagwe has been consistent and finds support in the record. The PIP laid out in detail the company’s concerns with Ms. Bagwe’s leadership skills. The investigation showed that Sedgwick took Ms. Bagwe’s complaints of discrimination seriously and that its willingness to investigate her claims cannot be characterized as a punitive action. The termination came after numerous complaints from coworkers and Ms. Bagwe’s placement on a PIP. See Langenbach , 761 F.3d at 800 (affirming summary judgment where the timing and pre- text arguments relied on “unbridled speculation,” and the record presented a clear history of performance issues). Ms. Bagwe therefore has not met her burden with regard to her claims of retaliation.
Conclusion
For the foregoing reasons, we affirm the district court’s judgment.
AFFIRMED
Notes
[1] The defendants note that Tammy LeClaire is now known by the name Tammy Worthey. Both the filings and the record refer to Ms. LeClaire, so we will use this name for ease of reading.
[2] Pursuant to 28 U.S.C. § 636(c)(1), the parties consented to a federal mag- istrate judge’s conducting all proceedings including final judgment. Ac- cordingly, we refer to the magistrate judge as the district court throughout this opinion.
[3] At this stage, it will be helpful to summarize the organizational structure of Sedgwick in the years Ms. Bagwe served as Operations Manager III. Ratna Bagwe reported to Angela Papaioannou, Area Manager for the AT&T account. Ms. Papaioannou reported to Tammy LeClaire, Managing Director. Ms. LeClaire reported to Brad Johnson, the Executive Vice Pres- ident. Charles French, the AT&T Workers’ Compensation Account Execu- tive, was on the same grade level as Ms. Bagwe. Mr. French reported di- rectly to Ms. LeClaire. Within Colleague Resources, Carla Street worked as a Colleague Re- sources Manager in Sedgwick’s Chicago office. She reported to Stepha- nie Simpson, Regional Colleague Resources Manager. Ms. Simpson re- ported to Rachel Jackson, Senior Vice President of Colleague Resources. Terri Browne, Executive Vice President and Chief People Officer, oversaw Colleague Resources.
[4] Ms. LeClaire explained that an employee’s direct supervisor would rec- ommend salary increases and that she then would review those recom- mendations. R.163-2 at 27 (47:10–19). After Ms. LeClaire gave her ap- proval, the recommendations went to Terri Browne, Executive Vice Presi- dent and Chief People Officer; Jim Wiertelak, Chief Operating Officer, later made a final review.
[5] R.163-24 at 4.
[6] R.163-23 at 2.
[7] R.163-1 at 6 (231:10–232:20).
[8] R.145-15 at 48–49 (265:23–266:2).
[9] R.145-9 at 45–48.
[10] R.145-18 at 30.
[11] R.163-1 at 36 (777:3–20). In her appellate brief, Ms. Bagwe claims that Ms. LeClaire also told her “that she better not tell anyone about a fabri- cated write-up.” Appellant’s Br. 7–8. However, Ms. Bagwe stated in her deposition that “the threatening was about you better be careful…and not like you better not tell anyone.” R.163-1 at 36 (777:9–14) (emphasis added).
[12] R.163-30 at 3.
[13] Id.
[14] R.145-11 at 32.
[15] Id. at 33.
[16] Id. at 34.
[17] Id.
[18] Id. at 37.
[19] Id. at 40.
[20] Id. at 48.
[21] R.145-15 at 56 (273:6–8).
[22] Id.
[23] R.145-8 at 18 (191:24–192:5).
[24] Id. at 17 (185:21–186:11).
[25] R.163-8 at 3 (50:18–21).
[26] R.163-3 at 2 (9:13–25).
[27] R.163-2 at 11 (203:13–204:13).
[28] R.163-5 at 8 (49:23–52:1).
[29] R.163-4 at 7 (67:1–68:25).
[30] R.163-1 at 22–23 (581:8–582:9).
[31] R.163-66 at 2.
[32] R.163-1 at 32 (713:10–24).
[33] R.163-19 at 4–6.
[34] R.163-8 at 4 (70:15–16).
[35] R.163-7 at 12 (85:7–9); see also R.163-5 at 7 (41:11–12) (Ms. Browne stating that the checklist is not used in every situation).
[36] R.170 at 2 (104:12–19).
[37] R.145-5 at 58 (119:13–120:23).
[38] R.163-59 at 3–4.
[39] The analytical framework for all three statutes is “essentially identical,”
and therefore we need not analyze them separately.
Brown v. Advocate S.
Suburban Hosp.
,
[40] R.163-66 at 2.
[41] R.145-5 at 39 (204:4–5).
[42] R.163-45 at 2.
[43] R.163-1 at 32 (713:10–24).
[44] R.163-11 at 3.
[45] R.145-5 at 33 (177:14–24).
[46] Id. at 39 (204:3–6).
[47] R.163-8 at 18–19 (107:17–108:12).
[48] Further, Ms. Street testified that she attended these meetings “[s]ome- times. Not—not all the time.” Id. at 18 (107:24).
[49] Ms. Bagwe relies on Ms. LeClaire’s deposition for this proposition. Ap- pellant’s Br. 41 (quoting R.166 at 33). However, the material she cites has nothing to do with Ms. Warner. See R.166 at 33 (quoting R.163-2 at 3 (26:24–27:6)).
[50] R.145-8 at 17 (185:21–186:11).
[51] The Chicago AT&T management team, for which Ms. Bagwe was par- tially responsible, scored better than Sedgwick’s Atlanta Disability Bell South team in categories such as “[m]y immediate supervisor listens to me,” and “[i]n my department, communications are open and honest.” See R.163-13 at 35–44. However, the Chicago team performed worse than the average Sedgwick management team in these same categories. Id.
[52] R.163-5 at 13 (84:17–21).
[53] R.163-59 at 3–4.
[54] Ms. Bagwe argues that the statement falls within the “present sense im-
pression” exception to the hearsay rule. Fed. R. Evid. 803(1). To fall within
this exception: “(1) the statement must describe an event or condition
without calculated narration; (2) the speaker must have personally per-
ceived the event or condition described; and (3) the statement must have
been made while the speaker was perceiving the event or condition, or
immediately thereafter.”
United States v. Ruiz
,
[56] R.170 at 2 (104:12–19).
[57] The parties agree that Ms. Papaioannou and Ms. LeClaire were deci- sionmakers.
[58] Ms. Bagwe’s other claims of pay discrimination have much shorter lim-
itations periods. Under Title VII, a charge of employment discrimination
must be filed with the EEOC within 300 days of the alleged unlawful em-
ployment practice. 42 U.S.C. § 2000e-5(e)(1);
see also Roney v. Illinois Dep’t
of Transp.
,
[60] R.143 at 17 (emphasis added); see also id. (“[O]nce all relevant factors were taken into account, such as experience, time in service, and the 3% budget for merit increases, [Ms. Bagwe’s] 2008 salary was equitable.” (em- phasis in original)).
[61] R.163-23 at 2.
[62] R.145-18 at 30.
[63] R.145-11 at 14 (71:22–23).
[64] Ms. Bagwe also argues that Sedgwick engaged in post-termination re- taliation by giving a negative recommendation to Matrix. However, as dis- cussed above, that argument is based entirely on inadmissible hearsay. Further, even were we to consider that call, there is nothing in the record suggesting that the call was made for retaliatory reasons.