### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 2555

M ARGARITA Z AYAS

, Plaintiff

‐ Appellant

,

v.

R OCKFORD M EMORIAL H OSPITAL

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 11

‐ C

‐ 50290

— Philip G. Reinhard

, Judge

.

____________________

A RGUED N OVEMBER 14, 2013

— D ECIDED J ANUARY 30, 2014

____________________

Before W OOD

, Chief Judge

, and C UDAHY and R OVNER

, Cir

‐

cuit Judges

.

C UDAHY

, Circuit Judge

. This matter concerns allegations of

employment discrimination under Title VII and the Age Dis

‐

crimination in Employment Act. Margarita Zayas worked for

Rockford Memorial Hospital (the Hospital) as an ultrasound

technician from November 1999 until her discharge in April

2011. Larry Griesman, Zayas’ direct supervisor, was respon

‐

sible for hiring and terminating Zayas. Zayas is Puerto Rican2 No. 13

‐ 2555

and was fifty

‐ five years old at the time of her termination,

the oldest ultrasound tech at the Hospital. She brought both

a national origin discrimination claim and a hostile work en

‐

vironment claim under Title VII, 42 U.S.C. § 2000e et seq., as

well as an age discrimination claim under the Age Discrimi

‐

nation in Employment Act, 29 U.S.C. § 621 et seq.

Zayas was discharged for sending Griesman a series of

disrespectful emails, despite her supervisor’s warnings. In

April of 2010, Griesman and a human resources employee

held two meetings in which they warned Zayas about send

‐ ing Griesman inappropriate emails. Thereafter, Zayas con

‐

tinued to write emails of the same nature, which caused

Griesman to issue Zayas a formal written warning on July

28, 2010. Disregarding informal and formal warnings, Zayas

sent three more equally unprofessional emails to Griesman.

Consequently, on April 22, 2011, Griesman discharged Zayas

for sending emails that “were perceived as negative, unpro

‐

fessional and disrespectful towards her managers and

peers.”

Despite the insubordinate emails, Zayas contends that

the Hospital terminated her because of her age and national

origin. Zayas’ age discrimination claim is hardly supported,

since it is based solely on the fact that she was the oldest

technician in the department, and was replaced by a younger

employee. Zayas provided no other evidence to support this

claim. As for the national origin claims, Zayas offers a series

of incidents in an attempt to establish discrimination and a

hostile work environment:

(1) Griesman singled Zayas out in a meeting and said

“you think everyone is out to get you;” (2) a co

‐

worker “almost got physical with her” and told ZayasNo. 13

‐ 2555 3

she should quit; (3) another co

‐ worker posted a poem

about “firing trouble” above Zayas’ locker; (4) on one

occasion, Zayas walked into an office and all the other

technicians got up and left; (5) several technicians

called her “Maria” even though she asked them not

to; (6) Zayas asked a co

‐ worker if a patient received a

Spanish translator and the co

‐ worker responded by

saying “if they are in this country, they need to learn

to speak English;” (7) Zayas attempted to move an ul

‐

trasound machine, but a co

‐ worker obstructed her

ability to move it; and (8) a co

‐ worker exited a room

without closing the door to which Zayas responded:

“Why aren’t you closing the door? Is it because I am

Puerto Rican?”

Zayas also cites satisfactory job performance appraisal scores

for 2008 and 2009 as evidence of meeting her employer’s le

‐ gitimate job expectations, contending that the emails were

simply a pretext for discrimination.

The district court granted the Hospital’s motion for

summary judgment on all three claims. We review the grant

of summary judgment de novo

, construing all facts and rea

‐

sonable inferences in Zayas’ favor. Smiley v. Columbia Coll.

Chi.

, 714 F.3d 998, 1001 (7th Cir. 2013).

I.

We turn first to the discrimination claims. Zayas alleges

discrimination on the basis of both her age and national

origin. Plaintiffs may support these claims through a direct

or indirect method of proof. See Martino v. W. & S. Fin. Grp.

,

715 F.3d 195, 201 (7th Cir. 2013).4 No. 13

‐ 2555

The direct method requires courts to inquire whether a

rational juror could infer discriminatory intent from the di

‐

rect and the circumstantial evidence in the record. Id. at 201–

02. Zayas cannot rely on the direct method, since the record

contains neither explicit declarations of a discriminatory mo

‐

tive nor sufficient circumstantial evidence for a rational jury

to infer discrimination. With respect to her age, the only rel

‐

evant circumstances are the fact that her replacement is a

younger woman (as were all of Zayas’ co

‐ workers), which is

not sufficient on its own to establish an age discrimination

claim. With respect to her ethnicity, Zayas’ evidence is simi

‐ larly limited: she relies on a single derogatory comment

about Spanish speakers made by Zayas’ co

‐ worker (rather

than her supervisor) and on the fact that her replacement is

white. On either ground, Zayas is a long way from being

able to prove a discriminatory motive directly. See e.g.

, Adams

v. Wal

‐ Mart Stores, Inc.

, 324 F.3d 935, 939 (7th Cir.

2003)(“circumstantial evidence

... must point directly to a

discriminatory reason for the employer’s action.”).

Therefore, Zayas only asserts discrimination under the

indirect method of proof standard. See McDonnell Douglas

Corp. v. Green

, 411 U.S. 792 (1973). Under the indirect meth

‐

od, Zayas must establish a prima facie case by showing: (1)

she is a member of a protected group; (2) she satisfied her

employer’s legitimate job expectations; (3) she suffered an

adverse employment action; and (4) similarly situated em

‐ ployees outside of the protected class were treated more fa

‐ vorably. Naficy v. Ill. Dep’t of Human Servs.

, 697 F.3d 504, 511

(7th Cir. 2012). If these elements are met, the burden shifts to

the defendant to introduce a legitimate, non

‐ discriminatory

reason for the employment action. Id. On rebuttal, the plain

‐No. 13

‐ 2555 5

tiff must provide evidence demonstrating that the defend

‐

ant’s stated reason is pretextual. Id. at 511–12.

It is undisputed that Zayas has satisfied the first and

third prongs under the indirect method of proof: she is a

member of a protected class, Puerto Rican and over the age

of 40, and suffered an adverse employment action, termina

‐

tion. As for the second and fourth prongs, Zayas still lacks

sufficient evidence to overcome summary judgment.

Zayas points to her 2008 and 2009 satisfactory perfor

‐

mance evaluations as proof that she met the Hospital’s legit

‐

imate job expectations. Zayas’ reliance on these evaluations

is misplaced. The question is not whether she ever satisfied

the Hospital’s expectations, but whether she met the Hospi

‐

tal’s expectations at the time she was fired

. See Peters v. Renais

‐

sance Hotel Operating Co.

, 307 F.3d 535, 545–46 (7th Cir. 2002).

Further, our analysis of an employer’s legitimate expecta

‐

tions does not merely consider whether a plaintiff’s actual

job performance was satisfactory—it is a much broader

analysis, which allows fact

‐ finders to consider factors such

as insubordination and workplace camaraderie. See Fane v.

Locke Reynolds, LLP

, 480 F.3d 534, 540 (7th Cir. 2007).

In any event, Zayas’ performance evaluations do not

overcome the more recent disciplinary actions imposed on

her. The record indicates that Griesman warned Zayas, twice

in the same month, about sending inappropriate emails.

Nevertheless, Zayas continued to write emails of the same

nature, which drove Griesman to issue a written warning.

Zayas ignored that written warning and wrote an additional

three equally unprofessional emails. Thus, the paper trail of

emails, disregarding Griesman’s written warning, indicates6 No. 13

‐ 2555

that Zayas was not meeting her employer’s expectations in

the year before her termination.

Finally, to satisfy the fourth prong of the McDonnell

Douglas test Zayas must identify a similarly situated em

‐ ployee, who is not Puerto Rican, who engaged in the same

behavior and was treated more favorably. The similarly situ

‐

ated employee must be “directly comparable to her in all

material respects

. ” See Patterson v. Avery Dennison Corp.

, 281

F.3d 676, 680 (7th Cir. 2002). Although “precise equivalence”

is not required, a plaintiff still needs to show that a compara

‐

tor employee was “treated more favorably by the same deci

‐

sionmaker,” even though they were both “subject to the

same standards of conduct” and engaged in similar, but not

necessarily identical, conduct. Coleman v. Donahoe, 667 F.3d

835, 846–48, 850 (7th Cir. 2012).

Zayas lacks evidence tending to show a similarly situated

employee, who is not Puerto Rican or under the age of 40,

that engaged in similarly unprofessional communications,

and was not disciplined for it. Instead, Zayas makes broad

assertions that she was treated differently because other ul

‐

trasound technicians were not “subject to similar harass

‐

ment,” “singled out,” and “subjected to unwarranted disci

‐ pline.” Such broad conclusions are insufficient to satisfy this

prong of the test. See, e.g.

, Oest v. Ill. Dept. of Corr.

, 240 F.3d

605, 615 (7th Cir. 2001)(“uncorroborated generalities are in

‐

sufficient to support a Title VII claim”). Based on the absence

of comparator evidence Zayas cannot establish a prima facie

case for either of her discrimination claims.

Zayas further alleges that her disrespectful emails were a

mere pretext for the Hospital’s discriminatory motives. She

contends that a jury should assess the appropriateness of herNo. 13

‐ 2555 7

emails and determine whether they were sufficiently inap

‐ propriate to justify her termination. Zayas misconstrues the

pretext inquiry. The pretext inquiry focuses on whether the

stated reason for the adverse employment action is in fact the

reason for it—not on whether the stated reason is accurate or

fair. See e.g.

, Ransom v. CSC Consulting, Inc.

, 217 F.3d 467, 471

(7th Cir. 2000)(“it is not

... the court’s concern that an em

‐ ployer may be wrong about its employee’s performance, or

be too hard on its employee.”). Thus, it is irrelevant if Zayas’

emails were not egregious enough to justify her termination,

as long as Griesman believed they were. Zayas offered no

evidence to show that Griesman lied about his reaction to

the emails. Therefore, we have no trouble finding that Zayas’

emails were not a pretextual basis for her termination.

For the foregoing reasons, Zayas has not met her burden

under the indirect method of proof standard, and summary

judgment is affirmed as to both discrimination claims.

II.

Zayas also alleges that she was subjected to a hostile

work environment. To establish a prima facie case for a hos

‐

tile work environment claim, she must show: (1) that she

was subject to unwelcome harassment; (2) the harassment

was based on her national origin; (3) the harassment was se

‐

vere or pervasive so as to alter the conditions of her work

environment by creating a hostile or abusive situation; and

(4) there is a basis for employer liability. See Lucero v. Nettle

Creek Sch. Corp.

, 566 F.3d 720, 731 (7th Cir. 2009).

As the district court held, Zayas’ hostile work environ

‐

ment claim fails on the second prong of this test, even if we

assume that the other three are met. “[A]lleged harassment8 No. 13

‐ 2555

must be sufficiently connected to race before it may reasona

‐ bly be construed as being motivated by the defendant’s hos

‐ tility to the plaintiff’s race.” Beamon v. Marshall & Ilsley Trust

Co.

, 411 F.3d 854, 863–64 (7th Cir. 2005)(internal citations

omitted). Zayas has not shown a sufficient connection be

‐

tween her national origin and the incidents she complains of.

In fact, only two of the incidents that she offered into evi

‐

dence have any relation whatsoever to her national origin.

The first incident involved a co

‐ worker who, referring to

a patient who only spoke Spanish, commented to Zayas that

people in the United States need to learn English. Though

the remark may have been insensitive, the district court cor

‐ rectly found that this was an isolated incident that occurred

two years before Zayas’ termination and was derogatory to

non

‐ English speaking immigrants, rather than Puerto Ricans

specifically. Moreover, Griesman responded to the situation

by immediately addressing the matter with the employee

who made the comments. Ironically, in the only other inci

‐

dent related to her national origin, it was Zayas herself who

made her Puerto Rican heritage an issue, by asking a co

‐

worker: “Why aren’t you closing the door? Is it because I’m

Puerto Rican?”

The rest of Zayas’ allegations lack any clear connection to

her national origin. While such a connection does not have to

be explicit, there must be some connection, for “not every

perceived unfairness in the workplace may be ascribed to

discriminatory motivation merely because the complaining

employee belongs to a racial minority.” Id. at 863. In light of

the scant evidence in the record relating to this claim, we

have no trouble holding that any hostility directed at or felt

by Zayas was not connected with her ethnicity.No. 13

‐ 2555 9

Though the foregoing is sufficient to affirm the district

court with respect to the hostile work environment claim, we

also note that Zayas’ arguments fail the third prong of the

test. To satisfy this prong, Zayas must show that her work

‐ place was both objectively and subjectively hostile. Harris v.

Forklift Sys.

, 510 U.S. 17, 21 (1993). Unlike the subjective ele

‐

ment, it is difficult to show that the harassment was objective

‐ ly “severe or pervasive as to alter the conditions of the vic

‐

tim’s employment and to create an abusive working atmos

‐ phere.” Hardin v. S.C. Johnson & Son, Inc.

, 167 F.3d 340, 345

(7th Cir. 1999). Zayas offers only a short and exhaustive list

of allegedly hostile occurrences over her long employment at

the Hospital. This list falls short of showing the kind of sys

‐

tematic discriminatory behavior that hostile work environ

‐

ment claims require. See e.g.

, Filipovic v. K & R Express Sys.,

Inc., 176 F.3d 390, 398 (7th Cir. 1999).

Although Zayas cites a number of hostile incidents, none

of them were related to her national origin, nor were they

objectively severe enough to survive summary judgment.

The district court correctly noted that, although Zayas’ co

‐

workers did not like her, it was likely the result of “work

‐ place pettiness,” not her Puerto Rican origin. Thus, the dis

‐

trict court’s grant of summary judgment on the hostile work

environment claim is affirmed.

III.

Despite Zayas’ many claims, there is insufficient evidence

to find that her termination was based on anything but the

many disrespectful emails she sent to Griesman. As a result,

the district court properly granted summary judgment in

favor of the Hospital with respect to all three claims. Accord

‐ ingly, WE AFFIRM.