Case Information
*1 Before W OOD , Chief Judge , F LAUM , Circuit Judge , K ENNELLY , District Judge . [*]
W OOD Chief Judge . Chontel began sam ple processing technician Laboratories Indian apolis August 2009. Judging reports daily productivity, performance left something desired. 14 2621 In April Miller was fired repeated failures meet an average daily quota samples processed per day. Yet whole story. who is African American, asserts during her at Polaris suffered from racial discrimination had effect her performance. She sued Polaris, contending violated Title VII as well as U.S.C. § in several ways. dis ‐ trict court granted summary judgment Polaris. There doubt a close case. But construing record favor, we must do, we conclude Miller has shown a genuine issue material both her discrimi ‐ nation retaliation claims. We therefore return case district court further proceedings.
I
Our account facts comes Miller presented summary judgment, taken light most fa vorable her. started job sample processor August 2009; was only African American area. Her task was review samples var ious fluids customers submitted record information them computer database. direct supervi sor Rhonda Ballard; Ballard’s supervisor Debbie New. expected process average samples day, difficulty meeting number. February wrote performance appraisal re port analyzing first day through end 2009. average logged per hour wrote, “much lower than like logging,” although acknowl edged “been given several challenging cus tomers has adequately logged those samples.” Her daily average Ballard wrote, far below required number. Ballard concluded appraisal giving Miller goal per day average end March 2010. Miller did not meet goal.
Not long after Miller began working at Polaris, Miller learned her fellow processor Amanda Saperstein that someone her department—Saperstein not sure who— had referred Miller “the colored girl.” (Miller testified that Saperstein told that Ballard called “the colored girl.”) That day, September Miller had argument another processor, Sharon Holmes, according re ‐ port that New filed few days later. The situation apparent ly escalated. complained person New’s supervi sor, Joe Culp, one been helping finish day, Holmes, Ballard, another processor named Gina Kemp racists, someone called “the colored girl.” Culp referred com plaint company’s department human resources, interviewed Saperstein, Ballard, other em ployees. investigation did resolve who made “colored girl” comment. From point forward re fused train even talk Miller. complained several times New Ballard.
While worked Polaris, at least employee aside heard other workers use racially derogato ry language when referring Miller. sample processor named Bobbie Jo Young testified Kemp discussing performance said, “It wouldn’t bother me if stupid nigger bitch did come back here.” Young said when made com ment, “laughed said, [‘]I’m same boat ‐ you.[’]” Young also witnessed Kemp “mix[ing] up a tray before she gave it to Chontel,” Ballard giving “Chontel trays that were more difficult that [ sic ] those she gave to other [ sic ] white employees.” In particular, Young discussed incident occurred after September incident between Miller Ballard. In instance, Young testified, Ballard told Young to take particular tray be cause Ballard intended telling Young, “[D]on’t you see what I’m trying to do here?” That tray, Young said, “was hardest tray” because samples from “28 dif ferent customers”; tray containing samples from multiple customers “really slows you down.” (Young testified she understood saying she was trying make harder.) another instance, Young wit nessed Kemp “unshuffling” samples tray intended Miller “taking them out order.” Once Kemp realized Miller could see her, Young testified, Kemp went back tray “fixed” it, announcing she knew “that bitch [Miller] going go complain.”
Miller testified she spotted changing composition samples process order make job more difficult. On occasion when she came back early lunch, said, she “caught [Ballard] moving my samples around my trays.” At other times she “would end up … just out ‐ blue samples [ sic ] there” before she went lunch. On couple oth er occasions, caught putting sam ples into tray missing labels. This too slowed down work, because research samples before could log them into systems. Otherwise, testified, given Po laris accounts took time because paperwork involved, because trays included samples multiple customers. Sometimes, said, she resort choosing easier samples on her own while Ballard was at lunch order try boost numbers.
Miller’s at Polaris lasted about eight months; time did meet productivity goals, although there some improvement. She completed general probationary period February 2010, April 2010, again placed on probation for perfor mance. The April notice, listed Miller’s “appraiser,” pegged Miller’s average number logged 189. “Chontel must speed up logging” end April, wrote. Miller’s monthly averages each full month on job 91, 135, 150, 149, 158, 161, 184; overall daily average 147. ex ceeded required number only once: second last day job, when logged samples. Two days later, April before April probation tech nically ended, New along chief operating officer Mark Minges human resources director Chad Ziegler terminated employment. They cited inadequate production numbers reason. July filed complaint Southern District Indiana, alleging race discrimination retaliation complaining dis crimination. district court initially granted only partial summary
judgment Polaris. It denied summary judgment discrimination claim because believed Mil ler presented sufficient under cat’s paw theo ry causal connection between racial bias decision management fire *6 6 14 ‐ 2621 Miller. It granted summary judgment for Polaris on retaliation claim, concluding no evidence dicating treated poorly because of com plaints discrimination, nor stated reason firing—her performance—was pretextual. moved reconsideration court’s decision discrimination claim, arguing evidence showing manipulation product and “could systematically reduce” output over eight months employment. district court per suaded ruled favor all counts; appeal followed.
II
We turn first discrimination claim, which brings under both 42 U.S.C. §§ 2000e ‐ 2 2000e ‐ 5 42 U.S.C. §§ 1981 1981a. discrimination claim under Title VII or Section 1981 re
quires plaintiff proceeding under direct method proof raise inference through direct circumstantial discrimination motivated adverse employ ment action.
Langenbach v. Wal Mart Stores, Inc.
, 761 F.3d (7th Cir. 2014); see
Mintz v. Caterpillar Inc.
, F.3d (7th Cir. 2015) (same standards apply Title VII Section claims). has offered any actual decisionmakers who decided terminate employment—Culp, New, Minges—
harbored discriminatory feelings toward her. She relies stead so called cat’s paw theory liability, name derived fable recounted before. See,
e.g. Smith v. Bray
, F.3d n.3 (7th Cir. 2012). Liability discriminatory action under theory prem
*7
7 14 2621 ised the ability of the culpable actor use an innocent decisionmaker an “unknowing tool” the former’s ani ‐
mus.
Hutchens v. Chicago Bd. Educ.
,
The present case reason firing employee straightforward first glance. sup posed log average per day; she consist ently came up short; so she fired. End case, Pola ris says: its decision fire “was direct conse quence” performance. does fight numbers; says instead set up fail, ra cially discriminatory reasons. Kemp, con tends, acting upon their racial animus, intended cause (and did cause) termination through tampering work, among other tactics. nominal decisionmakers accepted numbers unquestioningly, unaware ability meet quota been sabotaged.
Miller cannot prevail this theory unless she can show dispute fact the question whether Ballard and Kemp’s actions were motivated racial animus. Construing the facts Miller’s favor, conclude that has passed that hurdle. There is the record both Miller and coworker Young that Ballard and Kemp displayed discriminatory feelings toward Miller. Kemp’s “stupid nig ger bitch” comment obviously qualifies, considering Young’s testimony could only been intended the sole African American processor the workplace and person whose performance Miller and Ballard dis cussing at time. According to Young, Ballard explicitly concurred with this statement, laughing saying was “in same boat” Kemp. sole response allegation at oral argument contend Miller aware comment time. That may so, has nothing do whether Ballard Kemp ac tually harbored discriminatory animus. There “colored girl” comment, attributes Ballard. Although Saperstein, coworker who told comment, testified did know who said it, herself testified Saperstein reported Ballard as speaker. This sufficient show dispute as whether Kemp displayed (and thus pos sessed) racial animus toward Miller. difficult question whether
took actions proximately caused termination. insists inability hit mark during result Ballard’s sabotage well Ballard’s refusal help train her. responds even if sabotaged certain occasions failed train her, alone cannot possibly explain consistently low numbers. In other words, argues, Miller cannot possibly show that sabotage was “systematic.” But Miller does have to prove systematic tampering point; need only produce that raises an inference that such tampering oc curred to such extent that it torpedoed her output. order meet that burden, provides from her coworker Young and from her own sworn state ments that way which Kemp sabotaged Miller’s work was deliberately creating trays that were harder complete took more time. There incident which Young attempted take tray ap peared have more time consuming samples on it, Bal lard told asking Young, “Don’t you see what I’m trying do here?” A trier could draw inference exchange Ballard, from whom Young overheard racist comments, acting animus make difficult. And Young tes tified about another incident which Kemp tampered tray intended only reverse tampering once aware seen her. testified other occasions which return lunch or break catch Kemp manipulating trays. argues “mathematical certainty” underlies its assertion Kemp could meddled output extent caused re sults. But argument based assumption Bal lard manipulated only three times—times they actually seen others— there reason make assumption. trier fact might draw that conclusion, equally might find that the observed incidents were part of a larger pattern. At summary judgment, we must draw the latter inference, es pecially in light of Kemp’s racial epithets (which this stage we must assume they uttered, although we appreciate they have denied saying any such things). Polaris is welcome argue a jury sabotage Miller’s output would be so ex tensive be practically impossible; jury may weigh point against Miller’s evidence. But are ones charged resolving this matter; is trier fact. Polaris otherwise appears think only way cat’s paw liability take effect in this case would prove “hacked” own data system re duce Miller’s productivity numbers falsely. No is argu ing that. jury reasonably could believe based in record expressed animus subtly, by manipulating inputs way dictated low output. contends misrepresenting how among its sample processors assigned. Primarily re
lying affidavit another its employees, Terry Shotts, contends there such thing “harder” among sample processors. Shotts “opener” department during there; swore affidavit sample processor’s workday began processor making “a few trays their own accounts so they could begin logging.” Then, Shotts said, open boxes samples arrange them custom ers assigned particular sample processors; after that, all remaining placed trays put front table (Shotts does say whom). After occurred, “[s]ometimes Sample Processors just grabbed whatever tray they desired,” Shotts said, “and other times I would pass them out.” Each processor four of same ac ‐ counts, she would not know what accounts other proces sors “logged given day,” nor would know “es timated difficulty of samples.” Shotts left last statement that; did not back it up any explanation. Her af fidavit thus did not exclude possibility tried saddle trays requiring paperwork. Shotts admitted difficulty paperwork can ascertained by removing carton samples. Shotts also conceded sometimes assist composing trays samples.
In all, Shotts’s account (and Saperstein’s, which al so cites) is just side balance. It does foreclose Miller’s Young’s contentions Ballard’s Kemp’s manipulation work. It is as if, example, Shotts total control over samples. any event, whether Shotts is correct is question factfinder. We also note asserts other actions also contributed low output, such Ballard’s failing answer questions, forcing Mil ler waste time leaving workspace pose ques tions New. A factfinder entitled hear Shotts’s state ments how performed compare Young’s accounts tampering. trial time present statistics such those reply brief, (the trier may conclude) support possibility indeed assigned harder than some other processors.
It may be difficult marshal coworkers and lower level supervisors harbored discriminatory animus against a plaintiff and thwarted ability perform effectively, it may even harder show what lies behind a decisionmaker’s adverse job action. Taking the summary judgment record in the light most fa vorable however, must, we conclude has made over line. Although has some evi dence could not have been manipulated extent claims, ironclad. We cannot simply eyeball numbers, urges, decide could made up difference in productivity absent sabotage Kemp. has demon strated a dispute material fact discrimination claim.
III
We briefly address retaliation claim, district court granted summary judgment Pola ris’s favor. pursuing such a claim under Title VII using direct method proof, “plaintiffs must offer three elements: (1) they engaged protected activity, (2) they suffered adverse employment actions, (3) there causal connection between protected activity adverse actions.” Castro v. DeVry Univ., Inc. , F.3d (7th Cir. 2015). We may either proceed through these factors one, else “ask fundamen tal question directly—could reasonable trier infer retaliation?” Id. cat’s paw theory liability may apply retaliation claim. See Smith F.3d 897–98. can establish engaged protected activ
ity complaining New then Culp September after (or someone department) *13 13 called “the colored girl.” She has of racially charged language Kemp and Ballard. Her accusation prompted an investigation of the relevant parties. In the course of inquiry, both Kemp and were inter viewed. Both and Young testified Ballard’s and Kemp’s subsequent manipulation of occurred after September incident. Admittedly, neither nor Young placed precise dates treatment they allege. But given of discriminatory statements Kemp Ballard, timing and content of treat ment sufficient raise inference Kemp responding report New Culp. It beyond any dispute of material fact whether ac tions these workers kept productivity scores arti ficially low. sense this case differs Jajeh v. County Cook F.3d (7th Cir. 2012), there far mathematical factual certainty whether employee received sufficient performance score absent discriminatory meddling. Finally, undis puted suffered adverse action—the loss job—because low numbers.
Given this evidence, has adequately advanced dispute material whether retali ated against September incident. This claim, too, should resolved finder fact.
IV
We R EVERSE judgment district court R EMAND case proceedings consistent opin ion.
Notes
[*] Of Northern District Illinois, sitting designation.