In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2021

JERILYN A. LUCAS,

Plaintiff-Appellant,

v.

PYRAMAX BANK, FSB,

Defendant-Appellee.

____________

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 05-C-888—Rudolph T. Randa, Chief Judge.

____________

ARGUED FEBRUARY 12, 2008—DECIDED AUGUST 22, 2008

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Jerilyn Lucas claims that her

former employer, PyraMax Bank, demoted and ultimately

fired her because of her gender in violation of Title VII of

the Civil Rights Act of 1964, see 42 U.S.C. § 2000e to 2000e17. Lucas also contends that PyraMax retaliated against her

in violation of Title VII, see id. § 2000e-3(a), and that it
2 No. 07-2021

took adverse employment actions against her because she

exercised her rights under the Family and Medical Leave

Act of 1993 (FMLA), see 29 U.S.C. § 2601 et seq., and the

Employment Retirement Income Security Act of 1974

(ERISA), see 29 U.S.C. § 1001 et seq. The district court

granted summary judgment in favor of PyraMax, and

for the reasons that follow, we affirm.

I. Background

In February 2003, Lucas applied for the position of

branch executive officer (“BEO”) at PyraMax’s Greenfield

office. Lucas had at least fourteen years’ experience in

marketing and sales, consumer lending, collections, risk

management, and human resources at the time she applied,

but she had no prior experience as a BEO of a bank and

had not previously been responsible for the operational

functions of a lending institution. Lucas was interviewed

by Monica Baker, Senior Vice-President of Human Resources, who then forwarded her application to Karen

Murphy, Senior Vice-President of Retail Banking. Murphy

eventually offered the position to Lucas, and she started

working as Greenfield’s BEO in March 2003.

Soon after Lucas started, Murphy warned her about the

“personnel issues” at the branch. Murphy described the

staff as immature and informed Lucas that she would have

her “hands full” reinstating order. Murphy also told Lucas

about PyraMax’s flex-time policy, which gave employees

some flexibility in their work schedules, provided that at

least one member of management was on duty at all times.

Lucas had no performance problems when she started; in
No. 07-2021 3

fact, early on Murphy told Lucas that she was a “great

addition to the PyraMax Bank team.” But at the same

time, Murphy felt that Lucas needed a greater amount

of supervision than other BEOs.

Lucas suffered from serious medical conditions throughout her employment at PyraMax. During her first month on

the job, she had a kidney stone, and then the next month

she suffered from an unspecified “chronic and at times

debilitating illness” that required repeated treatment.

Despite her absences from work, at that time Lucas’s

performance did not suffer. In her first 90-day performance

evaluation dated June 10, 2003, Lucas was rated as either

“outstanding” or “effective” in all categories, although

she was told to increase her knowledge of operations

within the next two months.

In August 2003, Murphy began receiving complaints

about Lucas. Members of Greenfield’s staff told Murphy

that Lucas did not understand the operational aspects of

banking, such as balancing the bank totals and determining where errors occurred in various transactions,

and that she was often not available to answer questions.

And according to Denise Walkowiak, a BEO at another

branch, Lucas would frequently call her with questions

about basic operational issues. Lucas also told Walkowiak

that she regularly came to work late and left early, and

Lucas admitted that, on average, she worked about

20 fewer hours per week than did Walkowiak. In October 2003 a branch receptionist told Murphy that Lucas’s

frequent absences and her inability to answer work-related

questions had become the subject of conversation among
4 No. 07-2021

members of the Greenfield staff. The receptionist informed

Murphy that members of the staff saw Lucas as unfamiliar

with operational duties and generally unapproachable.

Murphy noted some of these concerns in Lucas’s semiannual review, in which she gave Lucas ratings of “2” out

of “5” in the areas of staff performance management,

branch client services, and internal client services. But

Lucas excelled in sales, and during her tenure, Greenfield

enjoyed the highest sales of any PyraMax branch.

Unfortunately, Lucas’s medical problems continued. In

late October 2003, while at work, Lucas experienced strokelike symptoms, and Murphy had to take her to the emergency room. Lucas underwent a brain scan, which revealed some abnormalities that required further testing.

Lucas shared these results with Murphy, and Murphy

told her that “news like this is the kiss of death in most

employers’ eyes.” The following month, Lucas was asked

to complete a medical questionnaire and return it to

human resources. Lucas had filled out a medical questionnaire eight months earlier, but, according to PyraMax, the

bank was transitioning to a self-funded health insurance

program and needed to supplement its records. PyraMax

also required Lucas to sign an authorization for release

of her medical records to the bank because, her doctor

later told her, the bank was seeking a “stop loss” insurance

policy to protect itself in case the cost of an individual

employee’s health care exceeded a certain amount.

In December 2003 Lucas hired Jessica Overmyer as an

assistant BEO. Overmyer had started out at a different

branch within the bank and had performed well at that
No. 07-2021 5

The incident involved Consumer Lending Manager Eric 1

Halling, who, together with Murphy, played an April Fool’s Joke

on the staff by imposing an unreasonable demand (no details

are given as to the nature of this “demand”) in a fictional new

sales contest. We credit Lucas’s version of the event, in which

she criticized Halling in front of others, but did so because

she was defending her staff before they learned about the joke.

branch. That same month, Murphy hired Robert Cooper,

who had 15 years’ experience as a BEO, as a management

trainee. Lucas took bereavement and personal time off

between December 19, 2003, and January 19, 2004, and

Cooper served as BEO during this and other of Lucas’s

absences. According to Murphy, members of Greenfield’s

staff responded well to Cooper and his positive attitude

helped improve employee morale. Cooper also was said

to have an “excellent attendance record, 17 years with

never having called in sick.”

In May 2004, a little over a year after her start with

PyraMax, Murphy informed Lucas of the current problems

with Lucas’s job performance. Murphy told Lucas that

she had a poor work attitude and that members of the

staff had “picked up on” her negativity. Lucas had engaged in at least one public confrontation with a senior

staff member, and Murphy informed her that her behav1

ior (both in that instance and generally) was unprofessional. Additionally, despite Murphy’s earlier admonishments, Lucas still did not possess the required operations

and personnel-management skills. According to Murphy,

Lucas needed more supervision and advice about her

responsibilities than all other BEOs combined. Murphy
6 No. 07-2021

also voiced concern over Lucas’s frequent, unexcused

absences.

In June 2004, after at least three employees had sought to

transfer out of Greenfield, Murphy met with Overmyer to

discuss the direction of the branch. Murphy noted that

Overmyer’s performance and attitude had drastically

worsened since her arrival at Greenfield, and Overmyer

explained that she was overwhelmed by the amount of

work that was now required. According to Overmyer,

because Lucas was frequently out of the office and, even

when she was there, was not able to answer operational

questions, Overmyer essentially had to do both her own

job and Lucas’s. Murphy then met with three other staff

members, two of whom confirmed that it was difficult

to get Lucas to answer questions and that she lacked

operations knowledge. Those same two employees also

stated, however, that Overmyer was too harsh with them.

From these meetings, Murphy concluded that Lucas’s

behavior was causing “an impending mass exodus of

employees from the Greenfield branch.” Murphy discussed the situation with Baker, and the two agreed that

Lucas should be removed from her position as BEO. But,

because Lucas was skilled in sales, they determined that

rather than fire her, they would demote her to a “floating

BEO trainee” position, where she was to undergo training

to improve her operational skills. Cooper replaced her

as BEO.

Lucas accepted the new position and began training on

June 21, 2004. But she had to go on leave the next day

because her demotion had exacerbated an existing
No. 07-2021 7

anxiety and panic disorder. Lucas did not return to work

until almost two months later. But in July 2004, while she

was on leave, Lucas filed a complaint with the Equal

Rights Division of Wisconsin’s Department of Workforce

Development, alleging gender discrimination and retaliation. Lucas’s training resumed once she returned to work,

but in early October, Lucas was diagnosed with a genetic

sensory conflict condition, which left her unable to complete most of the training. Despite her condition, Lucas

withdrew from PyraMax’s health insurance plan, effective

December 1, 2004, because, Lucas asserts, she thought

her job was in jeopardy and she decided to secure other

coverage. Lucas was transferred to a different branch

and by December 2004, staff members at that branch

began to complain about her performance. On December 10, Murphy terminated Lucas.

II. Analysis

On appeal Lucas first contends that the district court

improperly granted summary judgment on her claim

that she was demoted and later fired because of her

gender. We review the district court’s grant of summary

judgment de novo, and we construe all reasonable inferences in Lucas’s favor. See Maclin v. SBC Ameritech, 520

F.3d 781, 786 (7th Cir. 2008); Metzger v. Ill. State Police, 519

F.3d 677, 680 (7th Cir. 2008). Lucas relies on the indirect

method of proof articulated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973), under which she had to

show that: (1) she is a member of a protected class, (2) she

met her employer’s legitimate job expectations, (3) she
8 No. 07-2021

suffered an adverse employment action, and (4) similarly

situated employees outside of the protected class received

more favorable treatment. See Peirick v. Ind. Univ.-Purdue

Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 687 (7th

Cir. 2007); Thanongsinh v. Bd. of Educ., 462 F.3d 762, 772 (7th

Cir. 2006).

In this case, Lucas has not presented sufficient evidence

to show that she was meeting PyraMax’s legitimate job

expectations. Although she was strong in sales and wellreceived when she first started, Lucas later became unapproachable, was unable to answer the job-related questions from her staff, and, compared to other BEOs, was

unproductive. Consequently, as Murphy repeatedly

warned her, Lucas eventually fell far short of PyraMax’s

expectations. See Peele v. Country Mut. Ins. Co., 288 F.3d 319,

328-29 (7th Cir. 2002) (concluding that employee whose

job performance was repeatedly criticized was not

meeting employer’s legitimate job expectations, despite

evidence that, at one point, employee had received positive

performance reviews); see also Hong v. Children’s Mem’l

Hosp., 993 F.2d 1257, 1262 (7th Cir. 1993) (noting that

central issue is whether employee was performing well

in her job at time of her firing). In addition, Murphy

believed that Lucas was responsible for “an impending

mass exodus” of workers from the branch. Although

Lucas has presented some evidence that Overmyer

may also have been part of the problem at the Greenfield

branch, at the most she has established that it may have

been bad business judgment for Murphy to attribute the

problems entirely to her. None of her evidence calls

into question Murphy’s genuine belief that Lucas was
No. 07-2021 9

the cause of the “exodus” from the branch. And although

Murphy told her on several occasions that her operational

skills were lacking, Lucas never became proficient in

operations, and those skills—not just sales—were a significant part of her job. Cf. Herron v. DaimlerChrysler Corp.,

388 F.3d 293, 300 (7th Cir. 2004).

Lucas also cannot show that a similarly situated male

employee received better treatment than she did. We have

noted that a coworker must possess a “comparable set

of failings” to be similarly situated to the fired employee.

Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 751 (7th Cir.

2006) (internal quotation marks and citation omitted).

Lucas compares herself to Cooper, but he is not similarly

situated because he had a functioning working relationship with members of the staff and also had better developed operational skills than she did.

Next, Lucas contends that PyraMax retaliated against her

for filing a complaint with Wisconsin’s Equal Rights

Division. Lucas proceeds under the direct method of

proof; therefore, she had to show that (1) she engaged in

statutorily protected activity, (2) she suffered an adverse

action taken by the employer, and (3) there was a causal

connection between the two. See Fischer v. Avanade, Inc., 519

F.3d 393, 408 (7th Cir. 2008); Dorsey v. Morgan Stanley, 507

F.3d 624, 627 (7th Cir. 2007). In this case, Lucas was

demoted before she complained of gender discrimination,

and thus, this action could not have been retaliatory. With

regard to her firing, there is also no evidence that her

gender-discrimination complaint caused the discharge.

At the time that she complained, Lucas had already
10 No. 07-2021

received several warnings that her job performance was

unsatisfactory. Although PyraMax demoted her to give

her a chance to improve her operational (and other) skills,

her performance record establishes that she had not done

so by the time she was fired. As such, nothing in the record

supports Lucas’s contention that PyraMax fired her

because she complained of gender discrimination.

Lucas also claims that PyraMax demoted and then

discharged her for exercising her rights under the FMLA.

The FMLA makes it “unlawful for any employer to discharge or in any other manner discriminate against any

individual for opposing any practice made unlawful” by

the Act. See 29 U.S.C. § 2615(a)(2); Kauffman v. Fed. Express

Corp., 426 F.3d 880, 884 (7th Cir. 2005). To survive a motion

for summary judgment on her claim of retaliation under

the FMLA, Lucas had to submit evidence showing that

PyraMax demoted or fired her because she took valid

leave. See Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37,

260 F.3d 602, 616 (7th Cir. 2001). But, as we have noted,

“employers may fire employees for poor performance

if they would have fired them for their performance

regardless of their having taken leave.” Ogborn v. United

Food and Commercial Workers Union, Local No. 881, 305 F.3d

763, 768 (7th Cir. 2002); see also Phelan v. City of Chicago, 347

F.3d 679, 682-83 (7th Cir. 2006). Here the evidence

shows that Lucas was not adequately performing her job

and that her behavior was undermining the branch. We

recognize that Lucas highlights some rather unfortunate

remarks made by PyraMax, such as Murphy’s comment

that news about her poor health was the “kiss of death” for

most employees. But none of these comments were made
No. 07-2021 11

contemporaneously or in connection with either the

demotion or discharge. Therefore, they fall in the category

of “stray remarks.” See, e.g, Nichols v. Southern Illinois

Univ.-Edwardsville, 510 F.3d 772, 781-82 (7th Cir. 2007);

Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 666-67

(7th Cir. 2007). And, as we have already observed, her

inability to perform operational duties and to interact

appropriately with members of the staff provided a

legitimate reason for PyraMax to fire her.

Finally, Lucas argues that PyraMax fired her in violation of § 510 of ERISA to avoid paying medical benefits.

Under that section, an employer cannot discharge “ ‘a

participant or beneficiary for exercising any right to

which he is entitled under the provision of an employee

benefit plan.’ ” Dewitt v. Proctor Hosp., 517 F.3d 944, 949 (7th

Cir. 2008) (quoting 29 U.S.C. § 1140). To create a triable

issue under § 510 using the indirect method of proof, Lucas

had to show sufficient evidence that she (1) belonged to

the protected class of participant or beneficiary, (2) was

qualified for her position, and (3) was fired under circumstances that support her contention that PyraMax

intended to deprive her of benefits. See Kampmier v. Emeritus Corp., 472 F.3d 930, 943 (7th Cir. 2007); Isbell v. Allstate

Ins. Co., 418 F.3d 788, 796 (7th Cir. 2005). Because Lucas

voluntarily withdrew from PyraMax’s health insurance

plan before she was fired, the parties dispute whether

she qualifies as a participant of its health insurance

plan. The statute defines participant as “any employee or

former employee of an employer . . . who is or may become

eligible to receive a benefit of any type from an employee

benefit plan which covers employees of such employer or
12 No. 07-2021

members of such organization.” 29 U.S.C. § 1002(7).

Because Lucas could have re-enrolled had she not been

fired, the district court determined that she was a participant in PyraMax’s health care plan.

We need not resolve this dispute, however, because

Lucas cannot satisfy the second or third prongs of the test.

As we discussed above, the evidence does not support

Lucas’s argument that she was qualified for her job when

PyraMax fired her. Additionally, we have held that “an

ERISA retaliation plaintiff must demonstrate that the

employer had the specific intent to violate the statute and to

interfere with an employee’s ERISA rights.” Bilow v. Much

Shelist Freed Denenberg Ament & Rubenstein, P.C., 277 F.3d

882, 892 (7th Cir. 2001) (emphasis in original). Here,

PyraMax believed that Lucas was not a member of its

plan when it terminated her, at which time PyraMax also

had received several months’ worth of complaints about

Lucas’s poor job performance. Therefore, she cannot show

that PyraMax had the specific intent to deprive her of

benefits by firing her.

III. Conclusion

For these reasons, the judgment of the district court is

AFFIRMED.

8-22-08