In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-4092

CHERRY HAYWOOD,

Plaintiff-Appellant,

v.

LUCENT TECHNOLOGIES, INCORPORATED,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 4445—James H. Alesia, Judge.

____________

ARGUED SEPTEMBER 6, 2002—DECIDED MARCH 20, 2003

____________

Before POSNER, EASTERBROOK, and DIANE P. WOOD,

Circuit Judges.

DIANE P. WOOD, Circuit Judge. Cherry Haywood, an

African American woman who worked for some time

at Lucent Technologies as an engineer, had consistently

unfavorable performance reviews. After a tense encounter with a supervisor, Lucent fired her. Convinced that

it had done so for racially discriminatory reasons and

in retaliation for an earlier complaint, Haywood sued

Lucent under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq. To these federal claims, she added

a supplemental state law claim for defamation. The district court granted summary judgment in favor of Lucent

on all counts. We affirm.
2 No. 01-4092

I

Haywood began working for Lucent in 1996. In December

1997, after various assignments, she transferred to the

company’s Switching and Access Systems (SAS) organization. In July 1998, Haywood received her mid-year performance review, which was generally unfavorable. Haywood, who felt that the problem was really management

and not her performance, responded by filing an internal

complaint of race discrimination with Lucent’s Equal Opportunity/Affirmative Action (EO/AA) organization. Yolanda

Escalante, an employee of the EO/AA organization, investigated Haywood’s complaint and found no evidence of

race discrimination. Nevertheless, Escalante suggested

that management had not adequately defined Haywood’s

objectives, nor had it sufficiently documented its concerns about Haywood’s performance. At her recommendation, management gave Haywood a satisfactory year-end

performance rating for 1998 and agreed to help Haywood

transfer to another department.

Thereafter, Haywood contacted Spencer Foote, an

African-American senior manager in Lucent’s Wireless organization, hoping to pursue opportunities in his organization. When Foote interviewed Haywood in December 1998,

she told him about her earlier EO/AA complaint. Foote continued the hiring process, and in January 1999 he offered

her a position as a project engineer. Haywood accepted.

Once again, however, in May 1999, she received a generally unfavorable performance review, this time from

Darlene Scott, her manager in the Wireless group. Scott

appraised Haywood’s performance based on a list of 19

job objectives Haywood had received at the beginning of

the year. Although the evaluation attempted to be kind,

praising Haywood for her contributions to Lucent’s recruiting efforts, it was generally critical. Scott’s evaluation

reported a number of problems, including that Haywood

(1) did not take personal responsibility for results and
No. 01-4092 3

usually deflected failure toward others; (2) did not assume accountability and responsibility; (3) received feedback on her behaviors and interaction with team members

in a way that caused concern; (4) was not “proactive” in

providing information on her project; (5) inconsistently

met obligations, sometimes missing deadlines; and (6)

did not regularly submit time reports. Scott also prepared a detailed, five-page, single-spaced memorandum

listing specific examples of these problems. In a meeting

with Scott, Foote, and the department’s human resource

manager, Melinda Jackson Douglas, Haywood was not

receptive to management’s feedback. Instead, she attacked Scott’s evaluation of her performance, calling it

subjective and defamatory. Haywood promised to prepare

a rebuttal to Scott’s evaluation, but she never provided

any such document to her managers.

Around the beginning of July 1999, for reasons unrelated to this litigation, Lucent decided to disband Scott’s

group and allow project engineers to find work in other

groups within Foote’s organization. After some controversy over an alleged delay, Haywood was transferred to

Robert Shuman’s group in early August.

In November 1999, the pattern of unfavorable reviews

continued. Shuman prepared Haywood’s end-of-year performance review based on his own assessment of her work

and feedback from Haywood’s prior managers and peers

that year. His evaluation was negative: on a scale of one

to six (with six indicating the likelihood of termination),

Shuman gave Haywood a rating of “five.” A “five” meant

that Haywood would not be terminated, but placed on a

performance improvement plan. Haywood thought that

Shuman’s assessment was wrong.

In the end, however, another incident intervened that

led to Haywood’s termination. On December 2, 1999, she

was called to Shuman’s office to discuss the status of one
4 No. 01-4092

of her projects. Although the facts surrounding this incident are in dispute, and we would normally accept the

facts most favorable to Haywood, in this instance it is

important to recount both versions, because both versions reached the ultimate decisionmaker—Foote. According to Haywood, Shuman told Haywood that he felt she

did not put in the aggressive work he expected. When

Haywood responded that she did not understand, Shuman

became agitated and said, “Cherry, I think you don’t understand how much stress and pressure I am under here.”

Haywood responded, “Well, Bob, you know, I really feel

sorry for a person who allows their moral values and

ethics to be compromised if that is how you feel.” Shuman

ordered Haywood to “get the hell out of his office” and

told Haywood he never wanted to see her again without

a third person present. Shuman then rose from his chair,

came over to where Haywood was standing, took her by

the elbow, and pushed her out of the doorway.

Shuman’s account is quite different. He recalled that

Haywood was upset that he had questioned her progress

on a project. She attacked him personally, telling him

that he was a bad supervisor, that she did not respect

him, and that he thought he was God. After this outburst,

Shuman ended the discussion and told Haywood that

he wanted to have a third party present at any further

discussions because of his concern that Haywood would

misrepresent him. He asked Haywood to leave the office,

at which point she “stood her ground and proceeded to

stick her finger in [his] face, escalating her tone.” Shuman

raised his voice, stood up, opened the door, and asked her

to leave.

Both Shuman and Haywood e-mailed Foote, documenting

their versions of the incident. In Haywood’s e-mail, Haywood acknowledged that she had raised her voice in response to Shuman’s statements “attacking [her] credibility.”

Foote apparently chose to believe Shuman’s version of
No. 01-4092 5

the facts. After meeting with legal counsel, he terminated

Haywood on December 7, 1999, for (1) her inability to

accept and act upon constructive feedback; (2) her inability to “establish a viable working relationship with management”; and (3) her “pattern of insubordinate behavior.”

On January 10, 2000, Haywood filed a complaint with

the Equal Employment Opportunity Commission (EEOC),

which issued Haywood a right-to-sue letter. This lawsuit followed on July 21, 2000.

II

We review the district court’s grant of summary judgment de novo, examining the facts in a light most favorable to Haywood as the nonmoving party, and drawing

all reasonable inferences in her favor. Greer v. Board of

Educ. of City of Chicago, 267 F.3d 723, 726 (7th Cir. 2001).

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with affidavits, if any, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

A. Race Discrimination Claim

A claim of race discrimination may be established in one

of two ways—under the direct method or the indirect

burden-shifting method set forth in McDonnell Douglas

v. Green, 411 U.S. 792 (1973). See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997). Under the

direct method, the plaintiff may show either through direct or circumstantial evidence that the employer’s decision to take the adverse job action was motivated by an

impermissible purpose, such as her race or national origin.
6 No. 01-4092

See id.; Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736

(7th Cir. 1994).

Relying on Troupe, Haywood argues that there is direct evidence of discriminatory intent, which she claims

can be proved by circumstantial evidence. She points

first to various comments that Foote allegedly made to

herself and others at Lucent in the summer of 1999—

namely that Foote said he was tired of helping or putting

his neck out for African-American women because all

they did was complain. Haywood also claims that Foote

had told one African-American co-worker to be careful

about the company she kept: “As a black woman it’s already more difficult of a challenge to help you, but if

you are keeping bad company that will certainly not help

you.” Second, she claims that Lucent treated her less

favorably than it did two white male employees who

also received performance ratings of five on their year-end

review. Lucent put the two white male employees on

performance improvement plans; only Haywood was terminated.

Lucent begins by arguing that there should be a presumption of non-discrimination because Foote, who discharged Haywood, is also African-American. It is wrong;

no such presumption exists, nor should one be created.

To the contrary, the Supreme Court has explicitly rejected exactly this idea: “Because of the many facets of

human motivation, it would be unwise to presume as a

matter of law that human beings of one definable group

will not discriminate against other members of their

group.” Castaneda v. Partida, 430 U.S. 482, 499 (1976); see

also Oncale v. Sundowner, 523 U.S. 75, 78 (1998).

In the end, however, Lucent does not need any such

presumption. As the district court found, Haywood’s

circumstantial evidence is far too remote and insubstantial

to permit a rational trier of fact to find direct discrimina-
No. 01-4092 7

tion. Even if one believed, consistently with Haywood’s

account, that Foote made the alleged comments in the

summer of 1999, those comments were not made contemporaneously with or in reference to Haywood’s termination in December 1999. Gorence v. Eagle Food Ctrs.,

242 F.3d 759, 762 (7th Cir. 2001) (“[B]igotry, per se, is not

actionable. It is actionable only if it results in injury to

a plaintiff; there must be a real link between the bigotry

and an adverse employment action.”); see also Pafford

v. Herman, 148 F.3d 658, 666 (7th Cir. 1998). They are

too remote to provide the link Haywood needs for a “direct evidence” case.

The only other evidence to which Haywood points is

Lucent’s allegedly more favorable treatment of the two

white employees who received similar performance ratings. If Foote had cited Haywood’s performance ratings

as the reason for the termination, this might require

further exploration. But he did not. He said that he

was terminating Haywood because of her inability to

accept and act on feedback, her problematic relationship

with management, and her pattern of insubordination.

Haywood has not pointed to evidence showing that the

other two employees had a comparable set of failings, and

thus no inference can be drawn from the fact that they

were given another chance and she was not. See, e.g.,

Jones v. Union Pacific R.R. Co., 302 F.3d 735, 745 (7th

Cir. 2002) (rejecting a similar “unusable comparison”).

Haywood’s discrimination claim fares no better under

the McDonnell Douglas paradigm. As the plaintiff, she

had the burden of establishing a prima facie case of race

discrimination. To do so, she had to show that: (1) she

was a member of a protected class; (2) she was meeting

her employer’s legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly

situated employees not in the protected class were treated
8 No. 01-4092

more favorably. 411 U.S. at 802; Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002).

The district court found that Haywood failed to show

that she was meeting her employer’s legitimate job expectations (element 2). We agree. Haywood consistently

received unfavorable performance reviews throughout her

time at Lucent. The fact that she believes these evaluations were unwarranted is not enough to carry the day

for her. In fact, she has pointed to nothing that tends to

negate these assessments and show that her work was

acceptable. At most, Haywood claims that a performance

rating of “five” did not mandate termination. Perhaps not.

But, as we just noted, this was not the only reason why

she was terminated. Haywood has not met her burden of

showing that she was meeting Lucent’s legitimate job

expectations at the time of her termination, Brummett

v. Lee Enters., Inc., 284 F.3d 742, 745 (7th Cir. 2001), and

that dooms her claim. She did not establish a prima

facie case of race discrimination, and thus it is unnecessary for us to reach the issue of pretext.

B. Retaliation

Haywood also claims that she was a victim of unlawful

retaliation, claiming that she suffered adverse employment action as a result of filing an internal complaint

of race discrimination. In assessing this part of her case,

we follow the standards for retaliation claims announced

in Stone v. City of Indianapolis Public Utilities Division,

281 F.3d 640 (7th Cir. 2002).

The plaintiff may establish a prima facie case of retaliation in one of two ways. First, she may present direct

evidence of a statutorily protected activity, an adverse

employment action, and a causal connection between the

two. Id. at 644. If her evidence is contradicted, the case
No. 01-4092 9

must be tried unless the defendant presents unrebutted

evidence that it would have taken the adverse employment action against the plaintiff anyway, “in which

event the defendant’s retaliatory motive, even if unchallenged, was not a but-for cause of the plaintiff’s harm.” Id.

at 642; see also Price Waterhouse v. Hopkins, 490 U.S. 228,

244-45 (1989).

The second is the indirect method, our “adaptation

of McDonnell Douglas to the retaliation context.” Stone,

281 F.3d at 644. At the first stage, the plaintiff must show

that (1) she engaged in statutorily protected activity; (2)

she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse employment action; and

(4) she was treated less favorably than similarly situated

employees who did not engage in statutorily protected

activity. Id. at 644; Hilt-Dyson v. City of Chicago, 282 F.3d

456, 466 (7th Cir. 2002). Under this method, the “plaintiff

so proceeding need not show even an attenuated causal

link,” Stone, 281 F.3d at 644. If the plaintiff establishes

these elements, the burden shifts to the defendant to

come forward with a legitimate, non-invidious reason for

the adverse employment action. Id. Although the burden

of production shifts to the defendant under this method,

“the burden of persuasion rests at all times on the plaintiff.” Klein v. Trustees of Indiana Univ., 766 F.2d 275,

280 (7th Cir. 1985). Once the defendant presents a legitimate, non-invidious reason for the adverse employment

action, the burden shifts back to the plaintiff to show that

the defendant’s reason is pretextual. Id.

Haywood claims that in retaliation for filing her EO/AA

complaint of race discrimination, she was subjected to a

number of adverse employment actions, including (1)

negative performance reviews in May and November

1999, (2) an alleged transfer delay in July 1999, and (3)

termination in December 1999.
10 No. 01-4092

While Haywood’s termination certainly qualifies as an

adverse employment action, see Crady v. Liberty Nat’l

Bank & Trust Co., 993 F.2d 132, 135 (7th Cir. 1993),

Lucent’s other employment actions do not. We consider

first the delay in her transfer. As we have said before,

mere unhappiness and inconvenience are not actionable

under Title VII. See Smart v. Ball State Univ., 89 F.3d 437,

441 (7th Cir. 1996). At minimum, the employee must be

able to show a quantitative or qualitative change in the

terms or conditions of employment. See Patt v. Family

Health Sys., Inc., 280 F.3d 749, 753 (7th Cir. 2002). The

alleged one-month delay in Haywood’s transfer was neither sort of change. Her duties, responsibilities, compensation, and benefits remained the same during this period,

and Haywood does not allege that the delay affected

her opportunities at Lucent or otherwise injured her

career. See, e.g., Herrnreiter v. Chicago Hous. Auth., 315

F.3d 742, 744 (7th Cir. 2002). The uncertainty she experienced while waiting for her transfer may have been

unpleasant, but it was not severe enough to constitute

an adverse employment action.

As for the negative performance evaluations, it is well

established that these alone do not constitute an adverse

employment action. Hilt-Dyson, 282 F.3d at 466; Grube

v. Lau Indus., 257 F.3d 723, 729 (7th Cir. 2001); Sweeney

v. West, 149 F.3d 550, 556 (7th Cir. 1998). They may be

presented as evidence of discrimination, Smart, 89 F.3d

at 442, or as evidence at the pretext stage to suggest

that defendant’s legitimate reasons for the plaintiff’s

termination are unworthy of belief or somehow tainted,

Giacoletto v. Amax Zinc Co., Inc., 954 F.2d 424, 427 (7th

Cir. 1992). Haywood has nothing, however, to suggest that

they are anything but genuine evaluations. In the end, it

does not matter, because her termination suffices to satisfy

her burden of demonstrating an adverse employment

action. See Crady, 993 F.2d at 35.
No. 01-4092 11

That is of little avail to Haywood, however, because

we agree with the district court that she has not established a causal link between her termination and her

internal complaint of race discrimination. After Haywood

informed Foote about her complaint against her former

SAS organization, Foote offered Haywood the opportunity

for a fresh start in his organization. Other than “pure

speculation” that Foote was actually lying in wait for the

opportunity to punish Haywood for having filed a complaint of race discrimination against a completely different

group of people at Lucent, Haywood provides nothing

to establish causation. Lalvani v. Cook County, 269 F.3d

785, 791 (7th Cir. 2001). Haywood was not terminated

until a year after she informed Foote that she filed the

complaint. This time period is far too long—at least on this

record—to allow a reasonable fact-finder to infer that

her termination was causally related to the filing of her

complaint. See Filipovic v. K & R Express Sys., Inc., 176

F.3d 390 (7th Cir. 1999) (four months negates causal

inference); Davidson v. Midelfort Clinic, 133 F.3d 499 (7th

Cir. 1998) (no causal inference where employee was terminated five months after filing EEOC complaint). While

“temporal proximity is only evidence of causation, not a

separate element of the prima facie case,” here Haywood

fails to bring forth any evidence that her termination was

related to her complaint. Lalvani, 269 F.3d at 791. Thus,

Haywood’s retaliation claim fails under the direct method.

Haywood’s indirect case was also correctly rejected. As

we noted earlier, Haywood has not alleged or shown that

she was performing her job in a satisfactory manner.

Stone, 281 F.3d at 644; Hilt-Dyson, 282 F.3d at 466. Summary judgment on the retaliation claim was proper.

C. Defamation

The facts surrounding Haywood’s slander claim are in

dispute, but none of the disputes is material in the final
12 No. 01-4092

analysis. Haywood alleges that Scott, Shuman, and Foote

told security that Haywood was unstable, and that if she

appeared on company premises, security was to call the

police. Haywood learned of these statements from Jacqueline McKinley, a security guard at Lucent, who learned

of these statements from her superiors. Scott, Shuman,

and Foote deny making any of these statements.

To prove defamation, Haywood must show (1) a false

statement by Lucent, (2) an unprivileged publication of

the defamatory statement, and (3) damages. Parker v.

House O’Lite Corp., 756 N.E.2d 286, 292 (Ill. App. Ct. 1999).

The problem with Haywood’s claim is that she has not

presented any admissible evidence of a defamatory statement. See Bombard v. Fort Wayne Newspapers, Inc., 92

F.3d 560, 562 (7th Cir. 1996) (“[E]vidence relied upon must

be competent evidence of a type otherwise admissible at

trial.”). The only evidence she offers is her own testimony

that another employee told her about information received from the employee’s superiors in corporate security.

This is inadmissible hearsay on multiple levels and is “not

enough to preclude summary judgment.” Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001). Although

statements by Haywood’s managers might constitute nonhearsay admissions on behalf of Lucent, Haywood’s own

version of the statements—based on another employee’s

version of the statements, which is based on the employees’

superiors’ version of the statements—is not admissible

and will not overcome a motion for summary judgment.

See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.

1997).

Moreover, an otherwise defamatory statement may not

be actionable if a qualified privilege exists. See Parker,

756 N.E.2d at 297. Illinois common law protects “honest

communications of misinformation in certain favored

circumstances in order to facilitate the availability of
No. 01-4092 13

correct information.” Kuwik v. Starmark Star Mktg. &

Admin., Inc., 619 N.E.2d 129, 133 (Ill. 1993). A court

must determine as a matter of law and general policy

whether the occasion created a “recognized duty or interest that makes the communication privileged.” Parker, 756

N.E.2d at 297. The inquiry is a general one, requiring the

court to “weigh the value of the type of interest to be

protected against the degree of damage to be expected

from release of the type of defamatory matter involved.” Id.

The district court held that Lucent had a compelling

interest to make sure terminated employees were no

longer allowed on company premises. Haywood presented

no evidence tending to show that the company had no

such interest, nor did she support a claim that Lucent

had abused this privilege. See Kuwik, 619 N.E.2d at 133.

We therefore affirm the district court’s holding that

the communications were covered by this qualified privilege.

III

 For the preceding reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-20-03