In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1460

KITSY J. AMRHEIN,

Plaintiff-Appellant,

v.

HEALTH CARE SERVICE CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 05 C 3015—Jeanne E. Scott, Judge.

ARGUED NOVEMBER 26, 2007—DECIDED OCTOBER 20, 2008

Before BAUER, ROVNER AND WOOD, Circuit Judges.

BAUER, Circuit Judge. After being disciplined and ultimately terminated, Kitsy Amrhein sued her former employer, Health Care Service Corporation (“HCSC”),

alleging that she had been discriminated against on

the basis of her gender and that she was the victim of

unlawful retaliation. The district court granted summary

judgment for the defendant. Amrhein appeals, and for

the reasons stated below, we affirm.
2 No. 07-1460

I. BACKGROUND

Amrhein worked for HCSC from May 28, 1985 until her

termination on March 1, 2004. In 1997, she was promoted

to the position of group specialist in HCSC’s Springfield

Full Service Unit; she held this position until she was

discharged. Group specialists at HCSC provide services

to employer groups that have insurance through Blue

Cross/Blue Shield. At the time that Amrhein was terminated, there were eight group specialists in her unit,

including herself, six other women, and Scott Redpath.

Redpath and Amrhein were promoted to group specialist

at the same time. Amrhein was the primary contact for

United Airlines and the secondary contact for Georgia

Pacific; Redpath was the primary contact for Georgia

Pacific and the secondary contact for United Airlines.

Theresa Benner worked as the supervisor for Amrhein’s

unit; Benner reported to Jane Marquedant, who in turn

reported to Karen Woods.

Beginning at the end of 2002, Amrhein formed an

opinion that she and Redpath were not treated equally at

HCSC. She felt that Redpath was assigned significantly

less work than she was and that Redpath did not pull

his weight with either the United Airlines or Georgia

Pacific accounts. Amrhein let this opinion be known to

several HCSC employees, including Benner.

In a performance review drafted by Benner and dated

February 10, 2003, Amrhein received favorable marks

for all competency areas, but only met the “targeted

standard” with respect to contributions to team and

technical quality. She received a 2% salary increase.
No. 07-1460 3

Amrhein did not think this review or the salary increase

reflected the quality of her work, and she felt that she

was being penalized for complaining about Redpath.

Over the following year, Amrhein was disciplined by

HCSC on two separate occasions. Employees of HCSC

were required to follow the HCSC Code of Conduct and

Business Ethics Code. The Code forbade the misuse of

corporate assets, which had been interpreted to include

the overuse of company telephones for personal purposes. The Code also prohibited the disclosure of proprietary business information. HCSC monitored the quality

of the group specialist’s work with quality coordinators.

The coordinators would randomly tape-record telephone

conversations of group specialists and listen for violations of the Code.

During a taped phone conversation with a representative from a competing company in January 2003, Amrhein

disclosed information that Karen Woods believed to be

“proprietary business information.” Amrhein divulged

the amount of the fee HCSC charged its customers for a

certain service, and further suggested that HCSC had not

trained its employees on compliance with the Health

Insurance Portability and Accountability Act. Amrhein

was suspended without pay for five days and placed on

probation. Amrhein claimed that there was nothing

improper about the conversation, and that the real reason

HCSC suspended her was that she had complained

about her 2003 performance review.

A warning issued by Benner to Amrhein on December 2,

2003, indicated that her use of the telephone for personal
4 No. 07-1460

use was excessive; Amrhein did not believe her personal

telephone use was particularly excessive and argued to

Benner that Redpath’s use exceeded her own, and that

Redpath, who did not receive a warning, should have.

On December 8, 2003, Marquedant, Benner, and Amrhein

met to discuss the telephone use and Amrhein’s frustration regarding the warning. During that meeting,

Amrhein stated that she felt she was being treated significantly less fairly than Redpath by Benner and HCSC.

She also suggested that she might seek an EEOC mediator,

or “file a complaint” in order to obtain one.

On December 12, 2003, Amrhein sent an e-mail

to Marquedant regarding her treatment at HCSC. In the

e-mail she discussed how her behavior and work

product far exceeded that of Redpath, but that Redpath

received preferential treatment. She stated that she felt

that this amounted to “sexual discrimination.” Also in

the e-mail, Amrhein detailed a series of personal tragedies

that she had experienced between June 2003 and December 2003. Her father passed away on June 9, 2003; her

brother-in-law died unexpectedly on September 12, 2003,

and her niece was hospitalized in November after expressing suicidal tendencies. Marquedant notified Woods

and human resources representative Yvonna Cosey

of Amrhein’s concerns. Cosey investigated Amrhein’s

various complaints.

On January 14, 2004, Amrhein met with Cosey and

Marquedant. Cosey informed Amrhein that she found

no evidence of gender discrimination. Amrhein then

expressed her intent to file a complaint with the EEOC; the
No. 07-1460 5

following day, Marquedant notified Benner and Woods

of Amrhein’s intent to file an EEOC claim.

On February 4, 2004, Woods sent an e-mail to her supervisor asking for help in addressing their “options” with

Amrhein. Woods noted that Amrhein was a “huge challenge” and was “disruptive to the unit” and “costing us

a huge amount of time and resources.”

On February 18, 2004, Marquedant met with several

group specialists, including Amrhein, to discuss new

policies regarding the scheduling of personal time off or

“PTO.” During the meeting, Amrhein complained about

the scheduling of her PTO, to which Marquedant responded that “if you wanted to schedule all of your days,

you should not have made the complaint,” and referenced

Amrhein’s “opening up a can of worms.” The argument

escalated quickly; witnesses characterized Amrhein’s

behavior in the meeting as argumentative.

Also in 2004, Marquedant, while monitoring Amrhein’s

calls for personal use, overheard Amrhein make what

she judged to be an inappropriate disclosure. The call,

which took place on January 14, 2004, was between

Amrhein and Cathy Perricone, an employee of United

Airlines. Amrhein suggested in that conversation that

staff reallocation at HCSC had been due to the need for

HCSC to meet “performance guarantees,” which were

contractual performance expectations that HCSC had to

meet to avoid financial penalties. Marquedant notified

Benner and Woods of her opinion that this disclosure

violated the Code’s confidentiality policy. After discussing various options, Cosey, Woods and Marquedant
6 No. 07-1460

made the decision to terminate Amrhein. Amrhein was

notified on March 1, 2004 that she was terminated for

(1) the Perricone conversation; and (2) insubordination

at the February 18, 2004 meeting.

On January 25, 2005, Amrhein filed a two-count complaint against HCSC, alleging that HCSC had discriminated against her based on her gender in violation of

42 U.S.C. § 2000e-2(a) and had terminated her in retaliation for her efforts to oppose gender discrimination in

violation of 42 U.S.C. § 2000e-3. On February 9, 2007, the

district court granted HCSC’s motion for summary judgment. This timely appeal followed.

II. ANALYSIS

On appeal, Amrhein argues that the district court erred

in finding that she failed to establish a prima facie case

of retaliation. She did not appeal the grant of summary

judgment on the gender discrimination claim. We

review a district court’s grant of summary judgment

de novo. Darst v. Interstate Brands Corp., 512 F.3d 903, 907

(7th Cir. 2008). Summary judgment is appropriate when

there is no genuine issue as to any material fact and the

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

Fed. R. Civ. P. 56(c). We view the record in the light

most favorable to the non-moving party and draw all

reasonable inferences in that party’s favor. Darst, 512

F.3d at 907.

Under Title VII, “[i]t shall be an unlawful employment

practice for an employer to discriminate against any of his
No. 07-1460 7

employees . . . because [the employee] has opposed any

practice made an unlawful employment practice by this

subchapter, or . . . has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding,

or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).

Amrhein could elect to prove her retaliation claim by

using either the direct method or the indirect, burden-shifting method. Gates v. Caterpillar, Inc., 513 F.3d 680,

686 (7th Cir. 2008).

Under the direct method, she must present evidence

of (1) a statutorily protected activity; (2) a materially

adverse action taken by the employer; and (3) a causal

connection between the two. Id.; Humphries v. CBOCS

West, Inc., 474 F.3d 387, 404 (7th Cir. 2007). Amrhein can

rely on two types of evidence to show that her protected

activity motivated HCSC’s action: “direct evidence” or

“circumstantial evidence.” Lewis v. School Dist. # 70, 523

F.3d 730, 742 (7th Cir. 2008). Direct evidence is evidence

“which (if believed by the trier of fact) will prove

the fact in question without reliance upon inference or

presumption,” which typically involves an admission by

the decision maker regarding the retaliatory intent. Id.

(citation omitted). Because direct evidence of discriminatory intent is rare, a plaintiff can also offer circumstantial evidence, which “allows the trier of fact to infer

intentional discrimination by the decisionmaker,” typically

through a longer chain of inferences. Id. (citation omitted

and emphasis in original).

Amrheim did not produce direct evidence of retaliation,

relying instead on circumstantial evidence. The primary
8 No. 07-1460

circumstantial evidence presented was the proximity

between her stated intention to file an EEOC claim and her

termination. Suspicious timing may be enough to meet

the minimal burden of establishing a prima facie case,

but suspicious timing alone is generally insufficient to

establish a genuine issue of material fact for trial. Buie v.

Quad/Graphics, Inc., 366 F.3d 496, 506-07 (7th Cir. 2004);

Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th

Cir. 2004). Amrhein argues that the relevant time period

is the six weeks between the January 14, 2004 meeting

with Cosey and Marquedant and her termination on

March 1, 2004. At that meeting, Amrhein stated that she

intended to file a complaint with the EEOC, but Amrhein

had voiced a similar intention at the December 3, 2003

meeting, almost three months before her termination.

That period of time between the threat and the firing is

not enough, on its own, to create a jury issue on the

inference of retaliation. See Sauzek v. Exxon Coal USA, Inc.,

202 F.3d 913, 919 (7th Cir. 2000).

Amrhein argues that she presented more than just the

suspicious timing, including (1) a “pattern” that developed

among her supervisors of “act[ing] out against her when

she complained about favorable treatment extended to

Redpath”; (2) that her supervisors were “upset” about her

intention to go to the EEOC, as evidenced by, inter alia, the

e-mail from Woods; (3) that the Perricone conversation

was an “excuse” to fire her; (4) that Marquedant exaggerated the extent of Amrhein’s insubordination during the

encounter on February 18, 2004; and (5) that HCSC did not

follow its standard disciplinary processes in firing her.

Amrhein did not raise this last point before the district
No. 07-1460 9

court in opposition to summary judgment, so we will not

consider it. Domka v. Portage County, Wis., 523 F.3d 776, 783

(7th Cir. 2008) (citing Liberles v. County of Cook, 709 F.2d

1122, 1126 (7th Cir. 1983)). The remaining evidence

falls short of establishing a prima facie case. The evidence

that HCSC employees were “upset” at Amrhein for

raising the EEOC claim is scant, and Amrhein fails to

indicate how any other actions by HCSC employees

reflected an intent to retaliate against her because she

raised the EEOC complaint. In the course of the three

months, Amrhein had several issues with her employer

beyond the complaint, including the Perricone call and

the insubordination. The evidence supporting the inference that these actions, along with the other violation

of the HCSC Code and the discipline for excessive telephone use, led to Amrhein’s termination far outweighs

any inference that Amrhein’s stated intention to file an

EEOC claim did.

Taken as a whole, the circumstantial evidence is far

too speculative to amount to a triable issue.

Under the indirect method, an employee must establish

a prima facie case by proving that she (1) engaged in a

statutorily protected activity; (2) met her employer’s

legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than

similarly situated employees who did not engage in

statutorily protected activity. Nichols v. Southern Illinois

University-Edwardsville, 510 F.3d 772, 784-85 (7th Cir. 2007).

Once the prima facie case is established, the burden

shifts to the employer to produce a non-discriminatory
10 No. 07-1460

reason for its action; if the employer meets this burden,

the burden shifts back to the employee to demonstrate

that the proffered reason is pretextual. Id. at 785.

Like the district court, we focus our attention on the

“similarly situated” prong. A similarly situated employee

need not be “identical,” but the plaintiff must show that

the other employee “dealt with the same supervisor, [was]

subject to the same standards, and had engaged

in similar conduct without such differentiating or mitigating circumstances as would distinguish [his] conduct

or the employer’s treatment of [him].” Gates v. Caterpillar,

Inc., 513 F.3d 680, 690 (7th Cir. 2008); Crawford v. Ind.

Harbor Belt RR. Co., 461 F.3d 844, 846 (7th Cir. 2006) (holding that a similarly situated employee is one who is

“comparable to plaintiff in all material respects”).

The district court found that Amrhein did not establish

a prima facie case because she did not identify any similarly situated employees that were not terminated. We

agree. Amrhein presents Woods, Hall, and Redpath, but

all of these employees differ from Amrhein in

material respects, particularly in the disparity in

their disciplinary history.

Amrhein argues that Woods disclosed confidential

information to Perricone in a manner similar to Amrheim’s

disclosure and did not face similar punishment. Woods,

a senior manager at HCSC, was three levels of management above Amrhein; Amrhein and Woods did not

report to the same supervisor. Moreover, the offending

conduct alleged by Amrhein, even if true, indicates that
No. 07-1460 11

Woods engaged in a single violative act, rather than the

multiple incidents in Amrhein’s employment history.

Next, Amrhein argues that Hall engaged in disruptive

conduct on par with Amrhein’s spat with Marquedant and

received only a reprimand. Hall, a group specialist like

Amrhein, dealt with the same supervisors and was

subject to the same standards. There was no evidence

showing that Hall had other conduct violations. Without

a similar disciplinary history, Hall cannot be considered

“similarly situated.”

Which leaves us with Redpath, another group specialist,

who had been previously disciplined for performance

issues. Specifically, he had received a written warning

and verbal counseling for excessive amounts of personal

telephone calls. Amrhein also notes that he was alleged

to have abused HCSC’s policies regarding credit cards

by failing to pay a bill on time. She argues that this second

incident should be treated as another Code violation,

which makes him comparable to her. That is not a

logical conclusion or analogy.

So, Amrhein’s prima facie case under the indirect

method must also fail. But even if we were to assume that

Amrhein presented a prima facie case of retaliation

under either method, Amrhein failed to rebut HCSC’s

legitimate proffered reason for the termination. See

McCoy v. Maytag Corp., 495 F.3d 515, 522 (7th Cir. 2007).

Amrheim stated that it fired Amrhein because she disclosed proprietary information in the Perricone conversation—a violation of the HCSC Code—and the insubordination with Marquedant. There is ample evidence in
12 No. 07-1460

the record that these events occurred, and they qualify

as legitimate, nondiscriminatory reasons to discharge

Amrhein. Amrhein fails to discredit these reasons as

pretext.

III. CONCLUSION

Accordingly, we AFFIRM the district court’s grant of

summary judgment.

ROVNER, Circuit Judge, dissenting. This is a very close

case but one key piece of evidence, taken in context,

demonstrates that a retaliatory motive may have played

a part in Amrhein’s termination. That evidence is

Marquedant’s statement to Amrhein that “if [she] wanted

to choose all of [her] days [off], then [she] should not

have complained in the first place,” and that Amrhein

had “open[ed] up a can of worms.” The timing of those

statements, uttered by a decision-maker in the termination, a few weeks after an internal investigation into

Amrhein’s charges of discrimination and her threats to

go to the EEOC, a few weeks after another decision-maker

complained that Amrhein was a “huge challenge” and

costing the company time and resources, and a scant

twelve days before the termination, imply a retaliatory
No. 07-1460 13

intent. Because of that evidence, I believe we should treat

this as a mixed motive case, shifting the burden to the

employer to demonstrate that it still would have terminated Amrhein for reasons other than retaliation.

Because there is a genuine factual dispute regarding

whether HCSC would have terminated Amrhein absent

any unlawful motive, summary judgment should be

vacated and the case should be remanded for trial.

Although timing helps Amrhein make her case, I agree

with the majority that timing alone might not be enough

to take the case to trial. It may be helpful to briefly

recap events at the end of 2003 and the beginning of 2004,

as Amrhein’s troubles at work were escalating. In early

December 2003, Benner issued Amrhein a warning about

her personal telephone use. Amrhein complained that

Redpath’s personal telephone usage exceeded her own

but he had not been similarly warned. Amrhein indicated

she was considering filing a complaint with the EEOC. On

December 12, 2003, Amrhein sent an e-mail to Marquedant

complaining that Redpath was receiving preferential

treatment even though he was far less productive than

she, a difference she attributed to sex discrimination.

Marquedant forwarded the e-mail to Cosey, a human

resources representative, and Cosey conducted an

internal investigation. On January 14, 2004, Cosey and

Marquedant met with Amrhein to inform her that Cosey

found no evidence of gender discrimination. They also

presented her with a revised warning about her phone

usage. Amrhein reiterated her intent to file a complaint

with the EEOC. Marquedant conveyed this threat to

Benner and Woods the next day. In late January, when
14 No. 07-1460

Amrhein learned she was not getting a pay raise, she

reminded Marquedant of her intent to pursue a sex

discrimination claim with the EEOC.

On February 4, 2004, Woods asked her supervisor for

help in addressing their “options” with Amrhein because

she was a “huge challenge” and was “costing [the company] a huge amount of time and resources.” Only two

weeks later, on February 18, 2004, Marquedant met with

Amrhein and other group specialists to discuss the new

policy for scheduling paid time off. When Amrhein

questioned the policy because it did not allow her to take

off all of the days she had accumulated, Marquedant, one

of the decision-makers in the termination, told Amrhein

that “if I wanted to choose all of my days, then I should

not have complained in the first place[.]” Amrhein Dep. at

256. Marquedant, in the same meeting, “then went on

to make reference to [Amrhein] ‘opening up a can of

worms.’ ” Amrhein Affidavit at ¶ 18. The record contains

conflicting accounts of the tenor of this discussion, and on

summary judgment, we must construe those accounts in

Amrhein’s favor. Amrhein (and others) denied that

Amrhein raised her voice or was argumentative or

engaged in insubordination.

Nonetheless, Amrhein was terminated approximately

twelve days later for insubordination and for other infractions that the majority details. Two of the three decisionmakers in the termination had recently made comments

that could be construed as circumstantial evidence of

retaliatory intent. See Tubergen v. St. Vincent Hosp. & Health

Care Ctr., Inc., 517 F.3d 470, 473-74 (7th Cir. 2008) (under
No. 07-1460 15

the direct proof method, direct or circumstantial evidence

that the employer’s decision to take the adverse employment action was motivated by an impermissible

purpose may suffice). Circumstantial evidence includes

suspicious timing or behavior. Tubergen, 517 F.3d at 473-74.

In my view, Marquedant’s statements at the February 18

meeting indicated that she was not happy about

Amrhein’s complaints about discrimination. Woods’

February 4th request for “options” to deal with Amrhein

and a charge that she was costing time and resources

came very soon after the company had expended time

and resources conducting an internal investigation into

Amrhein’s charge of sex discrimination. Construing these

circumstantial statements and events in Amrhein’s favor,

her employer appears to have been motivated at least

in part by retaliation for complaining about gender discrimination. Moreover, the conflicting accounts of

Amrhein’s behavior at the February 18th meeting

suggest that Amrhein was not insubordinate and that

the charge of insubordination was a pretextual reason

for the termination. Stalter v. Wal-Mart Stores, Inc., 195

F.3d 285, 289 (7th Cir. 1999) (a plaintiff may demonstrate

pretext with evidence tending to prove that the employer’s proffered reasons are factually baseless, were not

the actual motivation for the discharge in question, or were

insufficient to motivate the discharge). True, Amrhein

had also violated certain company policies, but it is

unclear whether HCSC would have terminated Amrhein

for those violations alone. An employer may well have a

mixed motive, that is, more than one reason for firing

an employee, but if the termination would not have
16 No. 07-1460

occurred but for the retaliatory intent of the employer,

then the termination is unlawful. Speedy v. Rexnord Corp.,

243 F.3d 397, 401-02 (7th Cir. 2001); McNutt v. Bd. of

Trustees of Univ. of Ill., 141 F.3d. 706, 707-09 (7th Cir. 1998).

In a mixed motive case, an employer accused of retaliating against an employee for exercising her rights under

Title VII may avoid liability by proving by a preponderance of the evidence that it would have made the same

employment decision even if it had not taken the plaintiff’s protected activity into account. Speedy, 243 F.3d at

401-02; Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 893-94

(7th Cir. 1996) (in the face of direct evidence of retaliation, the employer must ultimately establish, by a preponderance of the evidence, that it would have taken same

action even if a desire to retaliate in no way tainted its

decision making). Summary judgment will rarely be

granted in a mixed motive case once the plaintiff has

presented direct (including circumstantial) evidence

that a forbidden factor contributed to the employer’s

decision to take an adverse action against the employee.

Frobose v. Am. Sav. & Loan Ass’n of Danville, 152 F.3d 602,

615 n.12 (7th Cir. 1998). See also Venters v. City of Delphi, 123

F.3d 956, 973 (7th Cir. 1997) (employee can prevail

under Title VII so long as an illicit criterion played a

motivating role in her discharge, even if another,

legitimate criterion also played a role; once employee

has presented direct evidence that a forbidden factor

contributed to the termination, generally a trial will be

required to determine whether the employer would have
No. 07-1460 17

Moreover, Amrhein’s inability to point out a comparable 1

employee, one who had a similar disciplinary record and who

was managed by the same supervisor, is not determinative in a

direct evidence/mixed motive case. Although evidence of a

comparable employee is considered helpful, it is not required.

Speedy, 243 F.3d at 402-03.

10-20-08

taken the same action in the absence of that factor). Unless 1

the employer has presented undisputed evidence that it

would have taken the same action in the absence of any

retaliatory intent, summary judgment is inappropriate.

Because HCSC has not produced that evidence here,

because the claim of insubordination may be pretextual,

and because the true motive for the discharge is in

dispute, summary judgment should not have been

granted here. For these reasons, I respectfully dissent.