Robert Smith, et al v. CTA

Filing

Filed opinion of the court by Judge Sykes. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6709920-1] [6709920] [14-2622]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2622
ROBERT E. SMITH and
JOSEPH A. BALDI, Trustee,
Plaintiffs-Appellants,
v.
CHICAGO TRANSIT AUTHORITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10-cv-1585 — Sharon Johnson Coleman, Judge.

____________________
ARGUED DECEMBER 10, 2014 — DECIDED NOVEMBER 23, 2015
____________________
Before EASTERBROOK, SYKES, and HAMILTON, Circuit
Judges.
SYKES, Circuit Judge. Robert Smith alleges that the
Chicago Transit Authority (“the CTA”) fired him because of
his race in violation of Title VII of the Civil Rights Act of
1964 and 42 U.S.C. § 1981. The CTA says it fired Smith because he violated its policy against sexual harassment. The
district court granted summary judgment for the CTA, con-

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cluding that Smith’s case failed under the direct and indirect
methods of proof. We affirm.
I. Background
Smith, who is black, began working at the CTA in 1986.
In the fall of 2006, he held the position of Transportation
Manager and was assigned to the Bus Services Management
unit, which was responsible for the movement of buses and
monitoring bus service in the field.
The CTA has a policy prohibiting sexual harassment, including “[u]nwelcomed sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature” when the “conduct has the … effect of … creating an
intimidating, hostile or offensive work environment.” The
CTA’s EEO Unit is tasked with investigating sexualharassment complaints brought to its attention. Operations
managers who learn of sexual-harassment allegations are
required to pass them on to the EEO Unit. Managers are instructed to collect written statements from the employees
involved in the complaint and submit them to the EEO staff
for investigation. An EEO staff member then investigates the
complaint and prepares a report. Based on a review of the
investigator’s file and report, the general manager of the
EEO Unit determines whether the accused employee violated the sexual-harassment policy. All disciplinary decisions,
however, are made by department managers; the EEO Unit
has no disciplinary authority.
On November 6, 2006, bus operator Marcella McCall reported that on October 28 Smith asked her to perform a
striptease for his wife and to join him and his wife in a sexual relationship. He repeated the proposition the next day. At

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the time Smith was McCall’s supervisor, so she reported
these incidents to another manager who forwarded the complaint to the EEO Unit. Pamela Beavers was the general
manager of the unit, and she had three staff members:
Thelma Crigler, Alenda Young, and Salvador Ramirez.
(Beavers, Crigler, and Young are black; Ramirez is Hispanic.)
Young was assigned to investigate McCall’s report.
Young began by interviewing McCall and Robert
McCullough, a bus supervisor who was working with
McCall on the dates in question. Young also interviewed
Smith, and she quickly recognized him from a prior unwelcome encounter. According to Young, on this earlier occasion
Smith approached her for no apparent work-related reason,
told her she “looked lonely,” and asked her to lunch. This
made her uncomfortable, but she completed the interview
anyway and then handed the matter off to Ramirez, who
took over as lead investigator.
During Young’s interview with Smith, he told her that on
October 28 he had allowed McCall to sit in his truck when
she was cold, but he said there hadn’t been any sexual talk
between them on either of the dates in question. Smith told
Young that he thought McCall made up the sexualharassment story to cover for leaving work early on
October 29.
Ramirez completed the investigation and prepared a report concluding that Smith had violated the CTA’s sexualharassment policy. The report included summaries of various employee interviews, including one with a second female employee who also accused Smith of inappropriate
sexual remarks. Ramirez explained that his conclusion was

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based
on
the
following
information:
McCullough stated that he saw both Smith and
McCall in the truck together for approximately
20 minutes; McCall made a contemporaneous
complaint regarding Smith’s unwelcome conduct; Smith’s incongruous account of the incident with McCall is contradicted by his behavior subsequent to his observance of her as a
manager with suspicion of her misconduct. Also, Smith’s forward and aggressive approach of
an identified EEO Officer [Young] gives example of his proclivity for inappropriate workplace behavior toward female coworkers.

Ramirez recommended that “corrective action” be taken by
the appropriate operations unit. The report also noted that
“Smith will be counseled by the EEO[] Unit on what actions
would be in his best interest to prevent inappropriate actions, or claims of retaliation, in the future.” Beavers approved the report on December 18.
Responsibility for any disciplinary action fell to William
Mooney, the vice president of bus operations at the CTA,
who oversaw about 164 managers, including Smith. After
receiving the report from the EEO Unit, Mooney asked
Walter Thomas, the general manager of Bus Service Management, to investigate further. Thomas interviewed Smith
and asked the CTA’s lawyers for advice on whether the EEO
Unit investigation had been properly completed. (He apparently didn’t have direct access to many of the EEO Unit’s
materials or staff.) This additional investigation didn’t turn
up anything to refute the EEO Unit’s findings, so Thomas
and Mooney concluded that Smith had indeed violated the

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sexual-harassment policy. On January 24, 2007, Mooney fired
Smith, citing (among other reasons) the violation of the
CTA’s sexual-harassment policy.
Smith filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging that he was fired because of his race. The EEOC investigated and issued a Right
to Sue letter on December 10, 2009. Smith then filed a pro se
complaint against the CTA in federal court. Smith had filed
for bankruptcy earlier in 2009, so Joseph A. Baldi, the bankruptcy trustee, intervened in the action.
Smith eventually obtained counsel, who twice amended
the complaint. The latest version alleges that the CTA fired
Smith because of his race in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C.
§ 1981, and that the CTA defamed him by speaking about the
circumstances of his discharge to the Chicago Tribune.
Following discovery, the CTA moved for summary
judgment. The CTA argued that the defamation claim was
time-barred. Smith didn’t contest that argument, and he says
nothing more about this claim here, so we don’t need to address it further. Regarding the two discrimination claims,
Smith argued that he had enough evidence to get to a jury.
The district court disagreed, concluding that Smith’s evidence was insufficient to create a triable issue under either
the direct or indirect methods of proving unlawful discrimination. Accordingly, the court granted the CTA’s motion.
This appeal followed.
II. Discussion
We review the district court’s order granting summary
judgment de novo, construing the evidence and drawing all

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reasonable inferences in Smith’s favor. See Arizanovska v. WalMart Stores, Inc., 682 F.3d 698, 702 (7th Cir. 2012). The legal
analysis for discrimination claims under Title VII and § 1981
is identical, so we merge our discussion of the two claims.
See Johnson v. Gen. Bd. of Pension & Health Benefits of United
Methodist Church, 733 F.3d 722, 728 (7th Cir. 2013).
At the summary-judgment stage, claims of employment
discrimination are evaluated under the “direct” method of
proof or the “indirect” method of proof announced in
McDonnell Douglas v. Green, 411 U.S. 792 (1973), depending
on the kind of evidence the plaintiff presents in opposition
to the motion. The “direct” method is a bit of a misnomer: it
simply refers to anything other than the McDonnell Douglas
indirect approach. Under the direct method of proof, the
plaintiff can defeat summary judgment by presenting sufficient direct evidence of the employer’s discriminatory intent
or “a convincing mosaic of circumstantial evidence … that
point[s] directly to a discriminatory reason for the employer’s action.” Davis v. Con-Way Transp. Cent. Express, Inc.,
368 F.3d 776, 783 (7th Cir. 2004) (internal quotation marks
omitted). Examples of relevant circumstantial evidence include “suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other
employees in the protected group.” Good v. Univ. of Chi. Med.
Ctr., 673 F.3d 670, 675 (7th Cir. 2012) (internal quotation
marks omitted).
The indirect method is a formal way of analyzing a discrimination case when a certain kind of circumstantial evidence—evidence that similarly situated employees not in the
plaintiff’s protected class were treated better—would permit

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a jury to infer discriminatory intent.1 The plaintiff must first
meet his burden of production on the familiar four-part test
for establishing a prima facie case: (1) he is a member of a
protected class; (2) he performed his job to his employer’s
expectations; (3) he suffered an adverse employment action;
and (4) one or more similarly situated individuals outside
his protected class received better treatment. Antonetti v. Abbott Labs., 563 F.3d 587, 591 (7th Cir. 2009). If the plaintiff
does so, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Id. The burden then shifts back
to the plaintiff to provide evidence establishing a genuine
dispute about whether the employer’s stated reason was a
pretext for prohibited discrimination. “Pretext means more
than a mistake on the part of the employer; pretext means a
lie, specifically a phony reason for some action.” Wolf v. Buss
(Am.) Inc., 77 F.3d 914, 919 (7th Cir. 1996) (internal quotation
marks omitted). Summary judgment for the defendant is
appropriate if the plaintiff fails to carry his burden to establish a prima facie case or is unable to show a genuine dispute
about whether the neutral reason advanced by the employer
was merely pretextual.
Taking a cue from some of our recent cases, Smith criticizes the direct and indirect approaches as too rigid and
formalistic. See, e.g., Hitchcock v. Angel Corps, Inc., 718 F.3d
1

This is purely a tool for summary-judgment analysis. “At the trial, as
we have explained before, the burden-shifting process came to an end,
and the only question was whether [the defendant] presented enough
evidence to allow a rational jury to find that she was the victim of discrimination.” Massey v. Blue Cross-Blue Shield of Ill., 226 F.3d 922, 925 (7th
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733, 737 (7th Cir. 2013) (“[W]e hasten to join in the growing
chorus of opinions in this circuit, signed onto by a majority
of active judges, that have expressed frustration with the
confusing ‘snarls and knots’ of this ossified direct/indirect
paradigm, and that have suggested a more straight-forward
analysis of whether a reasonable jury could infer prohibited
discrimination.”); Naficy v. Ill. Dep't of Human Servs., 697 F.3d
504, 514 (7th Cir. 2012) (similar); Good, 673 F.3d at 680 (“[T]he
direct and indirect methods … have become too complex,
too rigid, and too far removed from the statutory question of
discriminatory causation.”).
Even more recently, however, we’ve said that although
“serious questions” have been raised about the utility of the
established methods of proof, “litigants and courts still
properly discuss racial discrimination claims … using the
language of either the direct or indirect method[s] of proof.”
Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 789–90
(7th Cir. 2015). As long as the Supreme Court’s precedents in
this area are still good law, we’re not authorized to abandon
the established framework. Orton-Bell v. Indiana, 759 F.3d
768, 773 (7th Cir. 2014) (“While all relevant direct and circumstantial evidence is considered (in its ‘totality’) in both
methods, we do indeed consider the ‘direct’ and ‘indirect’
methods separately when reviewing summary judgment
because we are not authorized to abjure a framework that
the Supreme Court has established.”) (internal quotation
marks omitted). Indeed, the Supreme Court recently applied
a variation of the McDonnell Douglas analysis to a claim of
pregnancy discrimination—suggesting that the doctrine is
here to stay. See Young v. United Parcel Serv., Inc., 135 S. Ct.
1338, 1353 (2015).

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So we’ll evaluate Smith’s evidence under the direct and
indirect methods, as the district court did, recognizing of
course that “the continued focus [is] on whether the plaintiff
has introduced sufficient evidence to give rise to an inference of intentional discrimination.” Id. at 1355.
Generally speaking, an employer can only be liable under
Title VII when the relevant decision-maker—here,
Mooney—is shown to have acted with discriminatory intent.
See Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 378–
79 (7th Cir. 2011). But there’s no evidence that Mooney was
himself racially biased, and indeed he replaced Smith with
another black man. Smith’s case can succeed only under the
“cat’s paw” theory, which holds an employer liable if the
decision-maker was manipulated by another employee acting with discriminatory intent. See, e.g., Staub v. Proctor
Hosp., 562 U.S. 411, 422 (2011). The evidence suggests that
Mooney fired Smith largely because of the EEO Unit’s findings on McCall’s sexual-harassment complaint, although he
did conduct some additional investigation. Accordingly,
we’ll assume that Smith is right that he’s entitled to a trial if
his evidence shows that the EEO Unit tried to get him fired
because of his race.
A. Direct Method
We begin with the direct method. Smith asserts that the
CTA had an unwritten policy that the EEO Unit had exclusive authority to investigate sexual-harassment complaints
but routinely violated this policy by permitting the operations departments to conduct their own investigations when
white employees were accused of harassment. Smith posits
that investigations by the EEO staff were more rigorous than
those conducted by operations managers, so that by allow-

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ing white employees to escape the EEO Unit’s scrutiny, the
CTA intentionally discriminated against black employees.
Smith argues that this is direct evidence of discriminatory
intent because the EEO Unit investigated McCall’s complaint
against him.
The record contains some evidence of a general policy
that the EEO Unit had exclusive authority to investigate and
resolve sexual-harassment complaints. Ramirez testified that
the EEO Unit is the “exclusive body … doing the investigations” of sexual-harassment complaints. Beavers said that
although operations managers were encouraged to do their
own interviews, the EEO Unit wouldn’t rely on those interviews and would always conduct its own investigation.
But no evidence supports Smith’s theory that the CTA
regularly channeled investigations of white employees to the
operations departments while keeping investigations of
nonwhite employees under the auspices of the EEO Unit. It’s
undisputed that the EEO Unit was understaffed in 2006–
2007, and some sexual-harassment investigations were conducted by managers in the operations department. Of the
eight identified cases in which this occurred, however, four
involved black employees and two involved Hispanics. A
jury could not reasonably infer discriminatory intent from
this evidence.
Nor is there any evidence to support Smith’s theory that
the operations departments went easy on employees when
they investigated in the EEO Unit’s place. And no evidence
suggests that anyone in the EEO Unit was biased against
Smith because of his race. Smith argues that Ramirez was
trying to protect Cesar Lovera, McCall’s boyfriend, who
worked as a timekeeper at the CTA. Smith thinks McCall

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made up the sexual-harassment story as a cover for leaving
work early on October 29 and that Lovera helped her commit time-card fraud when she recorded her work hours that
day. This conspiracy theory lacks evidentiary support. More
to the point, the only apparent link between Ramirez and
Lovera is that they’re both Hispanic; Smith has no evidence
suggesting that they harbored racial animus.
Finally, Smith points to what he thinks are failures in the
investigative process. He claims, for example, that Young
should have recused herself immediately rather than after
taking his statement. He also argues that the EEO Unit
should have interviewed a witness he identified and that its
final report didn’t adequately account for certain (minor)
inconsistencies in McCall’s story. It’s true that “[s]ignificant,
unexplained or systematic deviations from established policies or practices” can sometimes be probative of unlawful
discriminatory intent. Hobgood v. Ill. Gaming Bd., 731 F.3d
635, 645 (7th Cir. 2013) (internal quotation marks omitted).
Here, however, Smith hasn’t explained why these supposed
infirmities in the investigative process support an inference
of discriminatory intent. Smith’s case fails under the direct
method of proof.
B. Indirect Method
Smith’s case also fails under the indirect method of proof.
The parties haggle over whether Smith was meeting the
CTA’s legitimate expectations: The CTA says that Smith
wasn’t meeting expectations because he committed sexual
harassment, while Smith says the sexual-harassment finding
was just a pretext for discrimination. The debate doesn’t
matter. Smith hasn’t identified a similarly situated employee
who was accused of similar misconduct but was treated

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more leniently. He points to only one managerial-level employee as a comparator: David Schaefer, a white manager
who was assigned to the same terminal and was also accused of sexually harassing other employees on several occasions. But the record contains no further information about
Schaefer. Smith doesn’t tell us, for example, who Schaefer’s
supervisor was or what Schafer was accused of doing. We
don’t know the results of any sexual-harassment investigation, whether he was disciplined, and if so, what discipline
was meted out. With such significant gaps in the evidentiary
record, Smith plainly hasn’t carried his burden of establishing a prima facie case of discrimination under the indirect
method of proof.
AFFIRMED.