In the

United States Court of Appeals

For the Seventh Circuit

No. 13-3375

TINA GOSEY,

Plaintiff-Appellant,

v.

AURORA MEDICAL CENTER,

Defendant-Appellee.

Appeal from the United States District Court for the 

Eastern District of Wisconsin.

No. 11-C-805 — Rudolph T. Randa, Judge.

SUBMITTED MARCH 26, 2014 — DECIDED APRIL 11, 2014 *

Before WOOD,Chief Judge,andSYKES andHAMILTON, Circuit

Judges.

PER CURIAM. Tina Gosey worked as a chef’s assistant at

Aurora Medical Center in Kenosha, Wisconsin. Believing that

After examining the briefs and the record, we have concluded that oral *

argument is unnecessary. Thus, the appeal is submitted on the briefs and

the record. See FED. R. APP. P. 34(a)(2)(C).
2 No. 13-3375

management harassed, refused to promote, and eventually

fired her because she is African-American, and that her

discharge was also retaliatory, she sued Aurora for violations

of Title VII of the Civil Rights Act of 1964. See 42 U.S.C.

§§ 2000e-2(a)(1), 2000e-3(a). The district court granted

summary judgment for Aurora across the board. We affirm

with respect to the claims of harassment and failure to

promote, but we conclude that further proceedings are

necessary on Gosey’s claims that Aurora fired her because of

her race and in retaliation for her complaints of discrimination.

I

Aurora hired Gosey in 2008. In September 2009 she applied

for an open position as food-services manager at the hospital.

The job posting stated a preference for someone with “five to

seven years of progressively responsible experience in

managing a food service operation,” including experience in

managing “staff, budgets and multiple human resources

functions.” Gosey was not alone in her interest: the posting

attracted more than 150 applicants. Aurora interviewed Gosey,

but it ultimately hired a white woman.

Several months later Gosey filed a charge of discrimination

with the Equal Employment Opportunity Commission and the

WisconsinDepartment ofWorkforceDevelopment.She alleged

that Aurora had denied her the promotion and was assigning

extra duties and imposing discipline for sham infractions

because of her race. In addition, she accused Aurora’s

managers of trying to manufacture an excuse to fire her by

altering her attendance records so that it would appear that she
No. 13-3375 3

was tardy. Her fears of losing her job were realized when, two

months later, Aurora fired her. This lawsuit followed.

In the district court, Gosey was represented by counsel, but

she nonetheless failed to respond fully to the statement of

proposed material facts that Aurora furnished with its motion

for summary judgment. This had the effect of leaving

undisputed many of the company’s proposed findings.

See E.D. WIS. CIV. L.R. 56(b)(4). The district court was entitled

to enforce its local rules, Patterson v. Ind. Newspapers, Inc., 589

F.3d 357, 360 (7th Cir. 2009); Fed. Trade Comm’n v. Bay Area Bus.

Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005), and thus to

accept Aurora’s version of the facts to the extent it was

supported by admissible evidence. We will do the same. Keeton

v. Morningstar, Inc., 667 F.3d 877, 880, 884 (7th Cir. 2012). 

II

A

Reviewing the district court’s judgment de novo, we too

conclude that Gosey is not entitled to go to trial on her claim of

racial discrimination in the promotiondecision. She introduced

no direct evidence that race played a part in the promotion

decision, and her claim falls short under the indirect method of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because

the evidence that Aurora hired someone more qualified is

undisputed. Gosey had seven years of experience—as a chef’s

assistant, chef, and owner of a catering business—but the

successful applicant had over 15 years of experience as a foodservice director, manager, and supervisor. See Hobbs v. City of

Chi., 573 F.3d 454, 460 (7th Cir. 2009) (explaining that, under

indirect method, plaintiff alleging failure to promote must
4 No. 13-3375

present evidence showing that position was given to someone

similarly or less qualified); Grayson v. City of Chi., 317 F.3d 745,

749 (7th Cir. 2003) (same).

B

We also agree with the district court that Aurora was

entitled to summary judgment on Gosey’s harassment claim.

We can assume for the sake of argument that the alleged

harassment was of sufficient severity or pervasiveness to

establish an actionable claim of racial hostility. See Zayas v.

Rockford Mem’l Hosp., 740 F.3d 1154, 1160 (7th Cir. 2014); Hardin

v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999).

Even so, Gosey’s inability to point to evidence suggesting that

the harassment was based on her race is fatal to her claim. This

is so even if we accept her assertion that she was given tasks

outside her job description, required to “work off the clock,”

and disparaged by a supervisor, because she presented no

evidence showing that these actions were racially motivated.

See Zayas, 740 F.3d at 1159 (even under indirect method,

evidence of “harassment must be sufficiently connected to race

before it may reasonably be construed as being motivated by

the defendant’s hostility to the plaintiff’s race” (citation

omitted)); Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 731–32

(7th Cir. 2009) (same); Beamon v. Marshall & Ilsley Trust Co., 411

F.3d 854, 863–64 (7th Cir. 2005) (same).

C

Finally, we turn to Gosey’s contention that the district court

erred in granting summary judgment on her claims arising

from the termination of her employment. (Although Gosey’s

opening brief says little about retaliation, Aurora understands
No. 13-3375 5

her to be challenging the adverse decision on her retaliation

claim as well; Gosey’s reply brief confirms that this is correct.)

In this court, Aurora makes much of the fact that it also

disciplined Gosey for insubordination, but in the district court

Aurora insisted that its sole reason for firing her was that she

accumulated too many tardies. Its decision must therefore

stand or fall on the basis of that explanation.

Among the materials that Aurora submitted in support of

its motion for summary judgment were a printout of the entry

made in Gosey’s electronic personnel file when she was fired

and a copy of a provision from the employee handbook stating

that employees who are late four more times after being

formally warned about tardiness may be fired. The entry in

Gosey’s personnel file indicates that, after a warning, she was

tardy on July 5, July 20, August 17, and October 11, 2010.

Aurora produced written warningsgivento Gosey for arriving

late after the first three of those dates, and the entry

documenting the termination of her employment cites the

fourth. In the district court the company added that, even if it

was wrong about those four days, Gosey had been tardy many

more times during the period from April through October

2010, as evidenced by a printout of her computerized “Punch

Detail History” for that period.

Gosey did not dispute that she was tardy on July 5, and she

stipulated that she had “swiped in” 11 minutes after her

scheduled start time on August 17 and one minute after her

scheduled start time on October 11. She disputed, however,

Aurora’s contention that she had arrived 27 minutes late on

July 20. Aurora’s only evidence of Gosey’s tardiness (on that

date or any other) is the Punch Detail History. Our
6 No. 13-3375

examination of that document reveals that the entry for July 20

shows that Gosey was scheduled to begin 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. Likewise, the entry

for August 17 shows that she was scheduled to arrive at 5:15

a.m. and was on duty at 5:11 a.m., and so again Aurora’s own

evidence shows that she was early. The district court noted that

Gosey had stipulated that she was late that day, but it

apparently recognized that the stipulation was incorrect and

disregarded it. Aurora, however, has not let go; it maintains on

appeal (in the face of this evidence) that Gosey was tardy on

both July 20 and August 17.

Gosey also pointed out that on eight of the other days she

supposedly was tardy, her Punch Detail History shows two

arrival times, one at or before her scheduled start time and the

other after. Aurora did not produce evidence that Gosey was

responsible for the second, later entry, and Gosey submitted an

affidavit attesting that it was impossible for her to “swipe in”

to the attendance system a second time. Moreover, Gosey

swore that she met Aurora’s attendance requirements even on

the days when she arrived a few minutes after her scheduled

start time. As proof she relied on the deposition testimony of

Debra Franckowiak, the hospital’s former chief officer of

clinical services, who testified that employees in the foodservices department were allowed a seven-minute informal

grace period at the beginning of a shift. That would mean that

on every day when Gosey purportedly was tardy except for

July 5, she actually was on time. (It is unclear why Gosey did

not dispute being tardy on July 5, since on that day she arrived

five minutes after her scheduled start time, well within the
No. 13-3375 7

grace period.) Aurora did not contradict Franckowiak’s

testimony; instead, it fell back on the employee handbook,

which defines “tardiness” to mean logging in to “the

attendance system after the employee’s scheduled start time.”

Aurora also attempted to support its motion for summary

judgment with evidence that Margaret Muske, the woman

hired for the job that Gosey wanted and who became her

supervisor, had not been told about Gosey’s administrative

charge of discrimination before Gosey was fired. Other

evidence showed, however, that Franckowiak and

Kellie Nelson,Aurora’sdirector ofhuman resources, were both

involved in the termination decision and did know that Gosey

had submitted a charge of discrimination. All they were able

to say was that the administrative complaint did not influence

their decision.

The district court concluded that Gosey had shown a

material dispute about whether she arrived late on July 20 and

August 17, 2010, two of the four days that Aurora cited in

firing Gosey. But that dispute did not matter, the court

reasoned, because it thought that the uncontested evidence

revealed that Gosey had arrived late on four days: July 25, July

27, October 11, and October 15, 2010. Of those four dates,

Aurora had cited only October 11 in the electronic entry the

company made when it fired Gosey. (The district court’s order

does not say why July 5, the date Gosey did not dispute, was

not being counted against her as a tardy.) The court concluded

that Gosey had not rebutted Aurora’s proffered,

nondiscriminatory reason for discharging her: chronic

tardiness. It also agreed with Aurora that the evidence failed

to support a finding that Muske knew about Gosey’s
8 No. 13-3375

administrative complaint before deciding to let her go, and

thus that Gosey could not rely on the direct method of proof to

establish her claim of retaliation. 

To avoid summary judgment, Gosey had to present

evidence showing that her discharge was motivated by her

race or was in retaliation for her administrative complaint.

See Hester v. Ind. State Dep’t of Health, 726 F.3d 942, 946–47 (7th

Cir. 2013), cert. denied, 2014 WL 801121 (2014); Coleman v.

Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring)

(“[T]he plaintiff one way or the other must present evidence

showing that ... a rational jury could conclude that the

employer took that adverse action on account of her protected

class, not for any non-invidious reason.”). Taking the facts in

the light most favorable to Gosey, we conclude that she met

that burden. By introducing evidence that, if believed by the

trier of fact, would show that she was complying with

Aurora’s attendance requirements, Gosey also satisfied her

burden to present evidence that she was meeting Aurora’s

legitimate employment expectations, that she was similarly

situated to all other employees who arrived on time but were

not fired, and that Aurora’s supposed reason for firing her is

pretextual. See Burnell v. Gates Rubber Co., 647 F.3d 704, 708–09

(7th Cir. 2011); Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772,

784–85 (7th Cir. 2007). As Aurora appears to recognize,Gosey’s

claims of discriminatory and retaliatory discharge stand orfall

together under the indirect method.

Even if we assume that Gosey was late on July 5, Aurora’s

own evidence confirms that Gosey was early on July 20 and

August 17 and that on October 11 she arrived within the grace

period that a former management employee said that the
No. 13-3375 9

company recognized. On that assumption, a jury could

conclude that Gosey was on time three of the four days that

Aurora cited as its only basis for ending her employment. On

every day that the company says that Gosey was

tardy—including July 25, July 27, and October 15—the Punch

Detail History shows that she was on the job within the grace

period. We cannot, on review of a ruling on summary

judgment, assumeunfavorably to Gosey that Franckowiak was

incorrect about the existence of an informal grace period. As

the record stands, Franckowiak’s testimony is undisputed by

the company, and even if there had been a dispute, the

resolution of the disagreement would be for the trier of fact.

We must also resolve in Gosey’s favor, for present purposes,

the dispute over the source of the dual arrival times in the

Punch Detail History. Gosey says that she did not make the

second, later entry; Aurora made no effort to establish that she

did, which raises the inference that the company manipulated

the entries.

Given the genuine issues of material fact surrounding

Gosey’s time records and Aurora’s attendance policy, the

district court erred in concluding that the reason for Gosey’s

discharge is beyond dispute. See Piraino v. Int’l Orientation Res.,

Inc., 84 F.3d 270, 275 (7th Cir. 1996); Sarsha v. Sears, Roebuck &

Co., 3 F.3d 1035, 1040 (7th Cir. 1993) (“When the existence of a

uniform policy or practice is in doubt, it cannot serve as a

reason for discharging [an employee].”). Aurora’s own

evidence, when viewed in the light most favorable to Gosey,

shows that she was late at most one time. A trier of fact could

thus find that the company’s explanation for firing Gosey was

not simply mistaken, but false. See U.S. EEOC v. Target Corp.,
10 No. 13-3375

460 F.3d 946, 960 (7th Cir. 2006) (to survive summary

judgment, “the plaintiff must present evidence that supports

an inference that the employer was intentionally dishonest

when it gave its nondiscriminatory reason for rejecting the

applicant”); Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 726

(7th Cir. 2005).

Accordingly, the order granting summary judgment on

Gosey’s claims of discriminatory and retaliatory discharge is

VACATED, and the case is REMANDED for further proceeding on

those claims. In all other respects, the judgment is AFFIRMED.