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# United States Court of Appeals For the Seventh Circuit

No. 13-3375

T I NA G O S E Y

, Plaintiff-Appellant,

v.

A UR OR A M E D I C AL C E NT E R

, Defen dant-Appellee.

Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the

Eastern Distri ct o f Wi sconsi n. No. 11 -C- 80 5 — Rudolph T. Ran da , Judg e.

S UB MI TT E D M ARC H 26, 2014

— D E C I D E DA P RI L 11, 2014 *

B e for e W O OD, Chief

Judge, and S YKE S and H AMI L T O N , Circ uit Judges.

P E R C URI AM

. Tina Gosey work ed as a chef’s assi stant at Auror a Medic al Center in Kenosha, Wi scons in. Beli eving that

Aft e r exa mini ng the b ri efs and the reco rd, we hav e concl uded tha t or al * argumen t i s unnecessa ry. Thus, the appeal i s sub mitted on the b ri efs and the reco rd. See F ED

. R. A PP

. P. 3 4( a)(2) (C)

.2 No. 13-3375
management harassed, refused to promo te, and event ually fi red her becau se she i s Afric an-Ame r i can, and that her di sch arg e was also ret ali ator y, s he sued Auror a for violati ons of Ti tle VII of the Ci vil Ri ghts Act of 1964

. See 42 U.S.C. §§ 2000e-2(a)( 1), 2000e-3(a). The di stric t court gr anted

sum mary judgment for A ur o r a across the board. We affi rm wi th respect to the clai ms of harassmen t and failure to promo te, but we conclu de that further p r o ce edings are
necess ary on Gosey’s clai ms that Auror a fi red her becau se of her race and i n ret ali ation for her complaints of di scri minati on. I
Auror a hi red Gosey in 2008. In Sept ember 2009 she appli ed for an open p osi tion as food-services manager at the h ospi tal. The job posting stated a prefere nce for someone wi th “fi ve t o
seven year s of prog ressi vely responsible exper i ence in managing a food service oper ation,” inclu d ing exper i ence in managing “staff, budg e t s and multi ple human resources func tions .” Gosey was not alone in her intere st: t he postin g attr acted more than 150 appli cants. Aurora in te rv i e w e d Gosey, but i t ultim ately hired a whi te woman. Sev eral months later Gosey fi led a charge of di scri minati on wi th the Equal E m p loyment Oppor tuni ty Commi ssi on and the W i scons in D e p a rtm e n t of W or kfor c e D e ve l op m e n t. She a l l e ge d that Auror a had deni ed her the promo tion and was assi gni ng ext ra duti es and i mposing di sci plin e for sham infracti ons becau se of her race. In addi tion, she accu sed Auro r a ’s managers of tr yin g to manuf acture an excuse to fi re her by alter i ng her atte ndance recor ds so that i t would appear that sheNo. 13-3375 3

was tar dy. Her fears of losing her jo b were realized when, two months later, Aur or a fi red her . Thi s law sui t followed.
In the di stric t court, Gosey was repr esented by couns el, but she nonetheless fai led to respond fu l l y t o the statement of propo sed material facts that Auror a furni shed wi th i ts motion for sum mary judgment. Thi s had the effect o f leaving undi sputed many of the company’s prop o se d findings. See E.D. W I S

. C I V

. L.R. 56(b) (4). The di stric t court was entitled to enforce i ts local rules, Patt erson v. Ind. Newspapers, Inc. , 589 F.3d 357, 360 (7th Ci r. 2009); Fed. Trade Comm’n v. Bay Area Bus. Counc il, Inc. , 423 F.3d 627, 633 (7th Ci r. 2005), and thus to accept Auror a’ s v e r si on of the facts to the ext ent i t was supp or ted by admi ssi

ble evidenc e. We wi ll do the same. Keeton v. Morningstar, Inc. , 667 F.3d 877, 880, 884 (7th Cir. 2012).
II
A
Reviewing the di stric t court’s j ud g ment de novo, we too conclu de that Gosey i s not entitled to go to tr i al on her clai m of raci al di scri minati on in the promo ti on d e c i s i on

. She in tr oduced

no di rect evidenc e that race played a part in the promo tion deci si on, and her clai m falls short under the indi rect method of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), becau se the evidenc e that Auror a hi red so me o ne more quali fi ed i s undi sputed. Gosey had seven year s of exper i ence—as a chef’s assi stant, chef, and owner o f a catering bus iness —but the

suc cess ful appli cant had ov er 15 year s of exper i ence as a foodservice di recto r, manager, and supervis or

. See Hobbs v. City of Chi. , 573 F.3d 454, 460 (7th Ci r. 2009) (exp laining that, under i ndi rect method, plainti ff allegin g fai lure to promo te mus t4 No. 13-3375
present evidenc e showing that posi tion was given to someone si mi larly or less quali fi ed); Grayson v. City of Chi. , 317 F.3d 745, 749 (7th Ci r. 2003) (same)

. B
We also agr ee wi th the di stric t court that Au r o r a was entitled to sum mary judgment on Gosey’s harassmen t clai m. We can assu me for the sake of arg ume nt that the alleged harassmen t was of suffi ci ent severity or p erv asi veness to establi sh an acti onable clai m of raci al host i li ty. See Zayas v. Rockford Mem’l Hosp. , 740 F.3d 1154, 1160 (7th Ci r. 2014); Hardin

v

. S .C. Johnson & Son, Inc. , 167 F.3d 340, 345 (7th Ci r. 19 9 9 ). Even so, Gosey’s i nabi li ty to poin t to evidenc e suggesti ng that the harassment was based on her race i s fatal to her clai m. Thi s i s so even i f we accept her a ss e r t i on that she was given tasks outsi de her jo b descri ption, required t o “work off the clock,”

a nd di sparaged by a supervis or , becau se she presented no evidenc e showing that these acti ons wer e raci ally motivated. See Zayas , 740 F.3d at 1159 (even under indi r e ct met hod, evidenc e of “harassmen t mus t be suffi ci ently connected to race before i t may reasonably be constr ued as being mo tivated by the defendant’s hosti li ty to th e plainti ff’s race” (ci tation omi tte d)); Luc ero v. Nettle Creek Sch. Corp. , 566 F.3d 720, 731–32 (7th Ci r. 2009) (sam e); Beamon v. Marsha ll & Ilsley Trust Co. , 411 F.3d 854, 863–64 (7th Cir. 2005) ( same)

. C
Fin ally, we turn to Gosey’s contention that the di stric t court
err ed i n gr anti ng sum mary judgment on her clai ms aris ing from the ter minati on of her employment. (Although Gosey’s openi ng bri ef says li ttle about ret ali ation, Auror a understandsNo. 13-3375 5

her to be challen gin g the ad ver se deci si on on her ret ali ation clai m as well; Gosey’s reply bri ef confi rms that thi s i s corr ect.) In thi s cour t, A ur or a makes much of the fact that i t also di sci plined Gosey for insubordinati on, but in the di stric t court Auror a i nsi sted that its s ole r eason for fi ring her was that she

accu mulated too ma ny tar di es. Its deci si on mus t there fore stand or fall on the basi s of that explanation. Among t he materials that Aur or a sub mi tte d in su pportof i ts motion for sum mary judgment were a prin tout of the entry made in Go sey’s electro ni c per sonnel fil e when she was fi red and a copy of a prov i si on from the employee handbook statin g that employees who are late four more tim es after being formally warned a bo ut t a rdin ess may be fi red. The entry in Gosey’s personnel fi le indi cates that, after a warning, she was tar dy on July 5, July 20, August 17, and October 11, 2 010. Auror a produced wri tte n warnings give n to Gosey for arr i ving late after the fi rst three of t ho se dates, and the entry documenting the ter minati on of her employment ci tes the fourth. In the di stric t c ourt the c ompany ad ded that, even i f i t
was wrong about those four days, Gosey had been tar dy many
more tim es duri ng the period from April thro ug h October 2010, as evi denced b y a printout of her computerized “Punch Detai l Hi stor y” for that per i od. Gosey di d not di spute that she was tar dy on July 5, and she sti pulated that she had “swi ped in” 11 minutes after her sch eduled st a r t t i me on August 17 and one minute after her sch eduled start tim e on Octob e r 1 1

. She di sputed, however , A uror a’s contention that she had arr i ved 27 minutes late o n July 20. Auror a’s only evidenc e of Go se y ’ s tar diness (on that date or a ny other ) i s the Pun ch Detai l Hi stor y. Our6 No. 13-3375

exami nati on of that document rev eals that the entry for July 20 shows that Gosey was sch eduled to begi n work at 5:30 a.m. and that she clocked in at 5:27 a.m.; in other words, she actually was three minutes early that day. Li kewi se, the entry for Aug us t 1 7 shows that she was sch eduled to arr i ve at 5:15

a.m. and was on duty at 5:11 a.m., and so again Auror a’s own
e vi dence shows that she was early

. The di stric t court noted that Gosey had sti p ul a t e d that she was late that day, but i t appa rently recog ni zed that the sti pulati on was incorre ct and di sregar ded i t. Auror a, however , has not let go; i t maintai ns on appeal (in the face of this e v ide nce) that Gosey was tar dy on both July 20 and August 17. Gosey also poin ted out that on ei ght o f the other days she supp osedly was tar d y , her Pun ch Detai l Hi stor y shows two
arr i val tim es, one at or before her sch eduled start tim e and the other after. A uror a di d not produce evidenc e that Gosey was responsible for the second, later entry , and Gosey sub mi tt ed an affi davit attesting that it wasi mpossi ble for her t o “swi pe in” to the atte ndanc e system a second tim e. Mor eov er, Gosey

swore that she met Auror a’s atte ndanc e requirements even on the days when she ar rived a few mi nutes after her sch eduled st a rt tim e. As pr oof she r eli ed on the deposi tion t esti mony o f Debra F r anckowi ak, the hospi tal’s former chi ef offi cer of clini cal services, who t e st i fi ed that employees in the foodservices department were allowed a sev e n-mi nute informal gr ace period at the begi nning of a shi ft. That would mean that

on ever y day when Gosey p ur p o r t edly was tar dy except for July 5, she actually was on tim e. (It i s unclear why Go sey di d not di spute being tar dy on July 5, since on that day she arr i ved fi ve minutes after her sch eduled start tim e, wel l wit hin theNo. 13-3375 7

gr ace p e r i od.) Auror a di d not contradic t Fr anckowi ak’s t e st imo ny; i nstead, i t fell back on the employee handbook, whi ch defines “tar diness ” to mean logg ing in to “the atte ndanc e system after the employee’s sch eduled start tim e.”
Auror a also atte mpted to supp or t i ts motion for su mmary judgment wi th evidenc e that Mar g a r e t Muske, the woman hired for the jo b that Gosey wanted and who became he r supervis or , had not been told about Gosey’s a d mini strat i ve charge of di scri minati on before Gosey was fi red

. Other

e v i d e n c e s h o w e d , h o w e v e r , t h a t F r a n c k o w i a k a n d Kellie Nels on

, Au ro ra ’s d i re c to r of human resources, were both i nvolv ed i n the ter minati on deci si on and di d know that Gosey had sub mi tte d a charge of di scri minati on. All the y we r e able to say was that the admini strat i ve complaint di d not influ ence their deci si on. The di stric t court conclu ded that Gosey had shown a material di spute about whether she arr i ved late on July 20 and August 17, 2010, two of the four days that Auror a ci ted in fi ring Gosey

. B ut that di spute di d not matter , the court reasoned, becau se it thought that the unc ontested evidenc e
rev ealed that Gosey had arr i ved late on four days: July 25, July 2 7, O ctober 11, and October 15, 2010. Of those four dat e s, A ur o r a had ci ted only October 11 in the electro ni c entry th e company made when i t fi red Gosey. (The di stric t court’s or der does not say why July 5, th e date Gosey di d not di spute, was not being counted again st her as a tar dy.) The court conclu ded t h a t G o s e y h a d n o t r e b u t t e d A u r o r a ’ s p r o f f e r e d , nondi scriminator y reason for di sch arg ing her: chroni c tar diness

. It also agr eed wi th Auror a that the evidenc e fa iled to supp or t a finding that Muske knew a bout Gosey’s8 No. 13-3375

admini strat i ve complaint before deci ding to let her go, a nd thus that Gosey could not rely on the di rect method of proo f to establi sh her clai m of retaliati on. To avo i d su mmary judgment, Gosey had to present evidenc e showing that her di sch arg e was motivated by her

race or was i n ret ali ation for her admini strat i ve complaint. See Hester v. Ind. State Dep’t of Health , 726 F.3d 942, 946–47 (7th Ci r. 2013), cert. denied, 2014 WL 801121 (2 0 1 4 ); Coleman v. Donahoe, 667 F.3d 835, 863 (7th Ci r. 2012) (Wood, J., concu rr ing) (“[T ]he plainti ff one way or the other mus t present evidenc e showing that

... a rat i onal jury could conclu de t ha t t he employer too k that adver se acti on on account of her prot ected clas s, not for any non-inv idious reason.”). Taki ng the facts in the li ght most fav or able to Gosey, we conclu de that she met th a t burden. By i ntro ducing evidenc e that, i f beli eved by the t r i er of fact, would show that she was complying wit h Auror a’s atte ndanc e requirements, Gosey also sati sfi ed her burden to present evidenc e that she was meetin g Auror a’s legiti mat e e mplo yment expectat i ons, that she was si mi larly si tuated to allother employees who arr i ved on tim e but were not fi red, and that Auror a’s supp osed reason for fir ing her i s pret ext ual. See Burne ll v. Gat es Rubber Co. , 647 F.3d 704, 708–09 (7th Ci r. 2011); Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 784–85 (7th Ci r. 2007). As Auror a appears to recogn i z e, G os e y’s clai ms of di scri minator y and ret ali ator y di sch arg e stand or fall tog ether under the in di rect metho d.
Even i f we assu me that Gosey was late on July 5, Auror a’s

own evidenc e confi rms that Gosey was early o n Ju l y 20 and August 17 and that on October 11 she arr i ved wi thi n the gr ace period that a former management employee sai d tha t theNo. 13-3375 9

co mpany recog ni zed. On that assu mpti on, a jury could conclu de tha t Go se y was on tim e three of the four days that Auror a ci ted as i ts only basi s for ending her employment. On

ever y day that the company says that Gosey was tar dy—in clud i ng J uly 25, July 27, and October 15—the P unch Detai l Hi stor y s hows that she was on the job wi thi n the grace period. We cannot, on rev i ew of a ruli ng on sum mary ju d gm e n t, a s s u m e unfavorably to Gosey that Fr anckow i a k w a s i nc o r rect about the exis tence of an informal gr ace period. As the recor d stands, Fr a nckowi ak’s testim ony i s undi sputed by the company, and even i f there had been a di spute, the resolution of the di sagreement wo ul d be for the tr i er of fact. We mus t also resolv e in Gosey’s favor , for present purposes, the di spute o v e r t he source of the dual arr i val tim es in the Punch De t ai l Hi stor y. Gosey says that she di d not make the second, later entry ; Auror a made no effort to establi sh that she di d, whi ch rais es the inference that the company mani pulated the entr i es. Gi ven the genui ne iss ues of material fact surroundi ng Gosey’s tim e recor ds and Auror a’s atte nd ance poli cy, the di stric t court err ed i n conclu ding that the reaso n for Gosey’s di sch arg e i s beyond di spute. See Piraino v. Int’l Orien tat ion Res., Inc. , 84 F.3d 270, 275 (7th Cir. 1996); Sarsha v. Sears, Roebuck & Co. , 3 F.3d 1035, 1040 (7th Ci r. 1993) (“When the exis tence of a uni form poli cy or practic e i s in doubt , i t cannot serve as a
reason fo r d i sch arg ing [an employee].”). Auror a’s own evidenc e, when view ed in the li ght most favor able t o Gosey, shows that sh e was late at most one ti me. A tri er o f fac t could thus find that the company’s explanation for fi ring Gosey was not si mply mi staken, but fals e. See U.S. EEOC v. Target Corp. ,10 No. 13-3375

460 F.3d 946, 960 (7th Ci r. 2006) (to survive sum mary judgment, “the plainti ff mus t present evidenc e that supp or ts
an i nference that the employer was intentionally di shonest when i t gav e i ts nondi scri minator y reason fo r r ejecting the appli cant”); Rudi n v. Lin coln Land Cmty. Coll. , 420 F.3d 712, 726 (7th Ci r. 2005).
Accordi ngly, the or der gr anti ng sum mar y judgment on Gosey’s clai ms of di scri minator y and ret a li ator y di sch arg e i s V A CAT E D, and the case i s R E MAND E D for further proceeding on t ho se clai ms. In all other respects, the judgment i s A F F I R M E D

.