The Honorable G. Patrick Murphy of the Southern District of 

Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2977

AMY SILVERMAN,

Plaintiff-Appellant,

v.

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 C 2220—Blanche M. Manning, Judge.

ARGUED JANUARY 18, 2011—DECIDED MARCH 21, 2011

Before TINDER and HAMILTON, Circuit Judges, and

MURPHY, District Judge.



HAMILTON, Circuit Judge. Amy Silverman sued the

Board of Education of the City of Chicago alleging that

the Board first discriminated against her on the basis of
2 No. 10-2977

her pregnancy and then retaliated against her for filing

a charge with the Equal Employment Opportunity Commission, both in violation of Title VII of the Civil Rights

Act of 1964 as amended by the Pregnancy Discrimination Act.

From July 2004 until May 2005, Silverman worked at

Lincoln Park High School as one of seven probationary

special education teachers whose employment contracts were subject to annual renewal. When the Board

decided to eliminate one special education teaching

position at Lincoln Park in the spring of 2005, school

principal Bessie Karvelas chose Silverman, who was

pregnant at the time. Silverman filed a complaint with

the EEOC charging that the Board violated Title VII by

not renewing her contract because she was pregnant.

Two months later, the Board offered Silverman a new

position teaching autistic students at the same school.

Silverman accepted this new position, but the Board

decided not to renew her contract at Lincoln Park a

second time in the summer of 2006.

After the EEOC found reasonable cause to believe

that the Board discriminated against her, Silverman

brought suit in the Northern District of Illinois. Her

first claim echoed her original discrimination complaint

to the EEOC, alleging that the Board decided not to

renew her contract in May 2005 because she was pregnant. Silverman also claimed that the Board retaliated

against her for having filed a charge with the EEOC by

offering her a more difficult position for the 2005-2006

school year and by not renewing her contract after that

school year.
No. 10-2977 3

The district court granted summary judgment to the

Board on both counts, and this appeal followed. We

review the district court’s decision de novo, construing

all facts in the light reasonably most favorable to Silverman as the non-moving party. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). Even in this light, we conclude that Silverman has not presented sufficient evidence to defeat the Board’s motion on either of her claims.

I. The EEOC Determination

Before digging into the merits of the parties’ arguments,

we address first the district court’s treatment of the

EEOC’s administrative determination. After investigating Silverman’s charges, the EEOC found reasonable

cause to believe that the Board discriminated against

Silverman because of her pregnancy and retaliated

against her for filing a discrimination charge. Silverman

argues that the EEOC determination alone ought to

show that the district court erred by granting summary

judgment to the Board. The district court chose not to

consider the EEOC determination in deciding the

Board’s motion for summary judgment. We conclude

that the district court acted well within its discretion, and

pursuant to its obligation to make a de novo decision

on the plaintiff’s claims.

We held in Tulloss v. Near North Montessori School, Inc.,

776 F.2d 150, 152-54 (7th Cir. 1985), that the district

judge, as fact-finder, has “great discretion” in the treatment of an EEOC reasonable cause determination. We

explained that Congress rejected a proposal to provide
4 No. 10-2977

Strictly speaking, an EEOC determination is hearsay if it is

1

offered to prove the truth of the finding. The Supreme Court

has indicated that a determination can fall within the exception in Federal Rule of Evidence 803(8)(C) for “factual findings

resulting from an investigation made pursuant to authority

granted by law, unless the sources of information or other

circumstances indicate lack of trustworthiness.” See Chandler

v. Roudebush, 425 U.S. 840, 863 n.39 (1976). Admissibility

under Rule 803(8)(C) does not answer questions of prejudice,

confusion, and waste of time under Rule 403.

only deferential judicial review to EEOC findings, and

chose instead to give the parties a right to de novo

review by district courts of the merits of charging parties’ discrimination claims, so that “the fact-finder is

a district judge rather than an administrative agency

hearing officer.” Id. at 152, citing H.R. Rep. No. 92-238,

at 58-63. We also observed that the need for discretion

was “even more important” in the context of claims

tried to a jury in light of the greater risks of prejudice,

misinterpretation, and delay. Id. at 153 n.2. (In 1991, after

Tulloss was decided, Congress amended Title VII to

provide for jury trials in cases like Silverman’s. See 42

U.S.C. § 1981a(c), enacted as section 102 of the Civil

Rights Act of 1991, Pub. L. No. 102-166.)1

Whether an EEOC determination is in favor of a

charging party or a respondent, a district judge or jury

cannot evaluate the weight it deserves, if any, without

understanding what evidence was presented to the

EEOC and whether that evidence is properly admissible

in court. See, e.g., Tulloss, 776 F.2d at 154-55 (describing
No. 10-2977 5

prejudicial and inadmissible contents of EEOC investigative file). That sort of effort will rarely add much to the

probative value of the admissible evidence that is

actually submitted to the court or jury for a de novo

decision on the merits. See Lewis v. City of Chicago

Police Department, 590 F.3d 427, 442 (7th Cir. 2009) (concluding district court did not abuse its discretion by

excluding EEOC reasonable cause determination); Young

v. James Green Management, Inc., 327 F.3d 616, 623-25 (7th

Cir. 2003) (affirming decision to exclude EEOC findings

of discrimination from evidence in jury trial).

Silverman contends without explanation that some

evidentiary material available to the EEOC was not

available to the district court. As the district court observed, however, the parties had every opportunity to

present their full case, including evidence offered in

the EEOC proceedings, in the district court. The district

court did not abuse its discretion in deciding that the

EEOC determination was not probative in its analysis.

For the same reason, neither is it probative in ours.

We proceed to the merits of Silverman’s claims.

II. The Claim of Pregnancy Discrimination

Title VII of the Civil Rights Act of 1964 makes it unlawful

for an employer to discharge or otherwise discriminate

against an employee because of that person’s sex. See

42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination

Act of 1978, Pub. L. No. 95-555, added a definition to

42 U.S.C. § 2000e(k) to make clear that “discrimination
6 No. 10-2977

based on a woman’s pregnancy is, on its face, discrimination because of her sex.” Newport News Shipbuilding &

Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983). As with

other Title VII claims, a plaintiff may prove pregnancy

discrimination either directly or indirectly. See Griffin v.

Sisters of St. Francis, Inc., 489 F.3d 838, 844 (7th Cir. 2007).

To avoid summary judgment under the direct approach,

the plaintiff must produce sufficient evidence, either

direct or circumstantial, to create a triable question of

intentional discrimination in the employer’s decision.

Miller v. American Family Mutual Insurance Co., 203 F.3d

997, 1005 (7th Cir. 2000); Geier v. Medtronic, Inc., 99 F.3d

238, 241 (7th Cir. 1996). A plaintiff also may proceed

under the indirect, burden-shifting method adapted

from McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). Like the district court, we conclude that

Silverman did not present sufficient evidence under

either approach to defeat the Board’s motion.

A. The Direct Method

To succeed under the direct method, Silverman must

offer either direct evidence that would prove the fact in

question—the discriminatory intent—without reliance

on inference or presumption, Venturelli v. ARC Community

Services, Inc., 350 F.3d 592, 599 (7th Cir. 2003), or “a convincing mosaic” of circumstantial evidence that would

allow a jury to infer intentional discrimination by the

decisionmaker. See Coffman v. Indianapolis Fire Department,

578 F.3d 559, 563 (7th Cir. 2009), quoting Phelan v. Cook

County, 463 F.3d 773, 779 (7th Cir. 2006); Davis v. Con-Way
No. 10-2977 7

Silverman asserts without any citation or elaboration that “[i]t 2

is clear that [principal] Karvelas treated all the other nonpregnant [probationary teachers] better than Silverman, all of

whom she renewed.” This bare assertion is plainly insufficient

to defeat the Board’s motion. Silverman presents no evidence

“whether or not rigorously statistical, that employees similarly situated to [her] . . . received systematically better treatment.” Troupe, 20 F.3d at 736. Though the other special education probationary teachers’ contracts were renewed for the

(continued...)

Transportation Central Express, Inc., 368 F.3d 776, 783-84

(7th Cir. 2004). Silverman has no direct evidence of

intent to discriminate against her on the basis of pregnancy, so she relies on the latter approach.

A plaintiff using the “convincing mosaic” approach to

prove a discrimination claim under the direct method

may present any of three broad types of circumstantial

evidence. The first type includes “suspicious timing,

ambiguous statements oral or written, behavior toward

or comments directed at other employees in the protected group, and other bits and pieces from which an

inference of discriminatory intent might be drawn.”

Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th

Cir. 1994). Silverman relies principally on this type of

evidence, and it will be the focus of our attention. The

second type is evidence showing that the employer

“systematically treated other, similarly situated, nonpregnant employees better.” Venturelli, 350 F.3d at

601. Silverman offered no potentially probative evidence of this type. Finally, the third type of circumstantial 2
8 No. 10-2977

(...continued) 2

following school year, Silverman has not offered evidence

that the Board or Karvelas regularly and repeatedly treated nonpregnant probationary teachers better than pregnant probationary teachers.

Silverman insists that the Board stipulated before the 3

district court that she had proven a prima facie case under the

direct method. She cites the Board’s memorandum and

reply attached to its summary judgment motion in which it

stipulated for the purposes of summary judgment that

Silverman had demonstrated a prima facie case of discrimination. We are not persuaded. Although the Board did not

specify that its stipulation was a response only to Silverman’s

argument regarding the indirect method, this stipulation

makes sense only with respect to the indirect method of proof

discussed below. Because the direct method of proof involves

no burden shifting, such a concession would wipe out the

Board’s summary judgment motion with respect to Silverman’s discrimination claim. 

(continued...)

evidence is evidence that the plaintiff suffered an adverse employment action and that the employer’s justification is pretextual. See id. Cf. Troupe, 20 F.3d at 736 (describing the third type of evidence as evidence that the

plaintiff was passed over or replaced by another, and

that the employer’s justification was pretextual). This type

of evidence is substantially the same as the evidence

required to prove discrimination under the indirect

method, so we address Silverman’s attempt to show

pretext in that context below. See Huff v. UARCO, Inc.,

122 F.3d 374, 380 (7th Cir. 1997).3
No. 10-2977 9

(...continued) 3

We have noted that the focus of the direct method is

whether the evidence “points directly to a discriminatory reason

for the employer’s action.” Atanus v. Perry, 520 F.3d 662, 671 (7th

Cir. 2008) (quotation marks omitted). Once a plaintiff produces

such evidence, the defendant’s summary judgment motion

necessarily must fail, in contrast to the burden-shifting

approach of the indirect, McDonnell Douglas method. Thus, it

is relatively unusual to employ the term “prima facie case” in

the context of the direct method, see generally Georg Nils

Herlitz, The Meaning of the Term “Prima Facie”, 55 Louisiana L.

Rev. 391, 395-97 (1994) (describing the historic use of the term

and its longstanding meaning), though we have used the

phrase occasionally, see Darchak v. City of Chicago Board of

Education, 580 F.3d 622, 632 (7th Cir. 2009) (determining that

the plaintiff had established a prima facie case of retaliation

under the direct method); Sylvester v. SOS Children’s Villages

Illinois, Inc., 453 F.3d 900, 905 (7th Cir. 2006) (same). 

Here, the Board clearly contested Silverman’s arguments

under both the direct and indirect methods. It offered its

stipulation in reference only to the prima facie elements of the

indirect method. To apply the stipulation to Silverman’s

summary judgment argument on the direct method of proof

would make no sense at all.

As to her “bits and pieces” evidence, Silverman relies

on a statement made by principal Karvelas, along with

conflicting testimony regarding when Karvelas found

out Silverman was pregnant, and suspicious timing of the

non-renewal of Silverman’s contract. Even under the

summary judgment standard, we are not persuaded.
10 No. 10-2977

Silverman points first to her testimony about a comment made by Karvelas in the spring of 2005 when

Silverman inquired about maternity leave after notifying

the school of her pregnancy. Karvelas replied, “I only

took one week for maternity leave. But you, honey,

should take as long as you want to.” Contrary to Silverman’s assertions, Karvelas’s comment does not come

close to implying that Karvelas in any way disapproved

of Silverman’s pregnancy or her request for maternity

leave, and it is even farther from substantiating her claim

that her contract was not renewed because of her pregnancy.

Karvelas’s comment is not analogous to any of the

statements made by employers in the cases Silverman

cites. In Darchak v. City of Chicago Board of Education,

580 F.3d 622, 627 (7th Cir. 2009), a principal called the

plaintiff-teacher a “stupid Polack.” The Darchak principal’s

explicit epithet was direct evidence of discrimination.

In the absence of sarcasm, of which there is no evidence, Karvelas’s statement does not even approach a

disparagement of Silverman or her pregnancy. In Duncan v. Fleetwood Motor Homes of Indiana, Inc., 518 F.3d 486,

490 (7th Cir. 2008), an employer allegedly commented that

the older workers “no longer could do many things,” even

though the plaintiff, age fifty-one, was performing

the essential functions of his job. That employer’s general

statement unequivocally belittled older workers. Karvelas’s

statement, by contrast, encouraged Silverman to take

as much time off as she needed after giving birth.

Where an ambiguous comment is made with a tone of

sarcasm or enmity, a court may attribute greater weight
No. 10-2977 11

to an alleged discriminatory inference. See, e.g., Hasham v.

California State Board of Equalization, 200 F.3d 1035, 1044,

1050 (7th Cir. 2000) (concluding that a comment made

with a demeaning tone raised questions regarding credibility). But where, as here, Silverman has not alleged

any sarcastic, demeaning, or derisive tone, we take the

comment at its face value. This one does not reflect

any discriminatory animus.

Silverman also maintains that a jury could infer discriminatory intent based on Karvelas’s conflicting testimony about exactly when she learned that Silverman

was pregnant. The Board admitted in the EEOC proceedings (and maintained before the district court) that

Silverman informed Karvelas of her pregnancy in or

around March 2005. In her deposition nearly four

years after the incident, however, Karvelas testified

that she “had no idea the girl was pregnant” at the time

she chose not to renew her employment, on March 29,

2005. Yet Silverman herself could not recall the dates and

context of her notification. She first testified that she

notified Karvelas she was pregnant on March 16, 2005.

Later, Silverman stated that she first told Karvelas on

March 8. These factual issues are not material to

Silverman’s claim. A data printout from the Board’s

employment management system indicated that, regardless of which date is correct, even after Silverman told

her of the pregnancy, Karvelas decided to renew Silverman’s contract. The electronic records show that Karvelas

marked Silverman’s file for renewal on both March 17

and March 28. Only later, on March 29, did Karvelas

choose not to renew Silverman’s contract when
12 No. 10-2977

prompted by the Board to eliminate one special education

position.

Finally, Silverman contends that it was suspicious for

Karvelas to decide not to renew her contract two or

three weeks after she had notified her of her pregnancy

and that this timing supports an inference that the

Board’s motive was discriminatory. This argument suffers from two principal flaws. First, suspicious timing

alone is rarely sufficient to defeat a motion for summary judgment. See Cole v. Illinois, 562 F.3d 812, 816 (7th

Cir. 2009). As we emphasized in Cole, “mere temporal

proximity is not enough to establish a genuine issue of

material fact,” id., quoting Andonissamy v. Hewlett-Packard

Co., 547 F.3d 841, 851 (7th Cir. 2008), and here, plaintiff

has nothing more than weak proximity at best. Second,

as we have noted, Silverman’s claim is further contradicted by the computer records from the Board’s

employment system showing beyond reasonable

dispute that Karvelas chose to renew Silverman’s employment after learning she was pregnant.

Taken separately or taken together, Karvelas’s comment, the conflicting dates regarding when Karvelas

found out Silverman was pregnant, and the timing of

her non-renewal do not reach the threshold necessary

for Silverman to defeat the Board’s motion.

B. The Indirect Method

Silverman argues that she also has sufficient evidence

to show pregnancy discrimination using the indirect
No. 10-2977 13

method, which requires her first to offer evidence of a

prima facie case that: (1) she was pregnant and the

Board knew she was pregnant; (2) she was performing her

duties satisfactorily; (3) she suffered an adverse employment action; and (4) similarly situated non-pregnant

employees were treated more favorably. Clay v. Holy Cross

Hospital, 253 F.3d 1000, 1005 (7th Cir. 2001). The Board

agreed for purposes of summary judgment that Silverman could meet that burden. The burden then shifted

to the Board to articulate a legitimate, non-discriminatory

reason for firing her. After the Board provided a reason,

Silverman could survive summary judgment only by

offering evidence that the Board’s reason was a pretext,

which permits an inference of unlawful discrimination.

Id. Silverman makes two pretext arguments, neither of

which is convincing.

1. Evaluations in the Spring of 2005

The Board argues that Silverman was selected for nonrenewal in 2005 because she was the least effective of the

probationary special education teachers at the school.

To support this assertion, the Board offers Karvelas’s

testimony and her contemporaneous written notes regarding Silverman’s teaching. In February 2005, Karvelas

stopped by the classrooms of each of the probationary

teachers working with special education students to

observe their teaching. Karvelas testified that during a

visit to Silverman’s classroom she noticed a student

wearing headphones and listening to a Walkman

during the lesson. Her observation notes indicated that
14 No. 10-2977

Silverman was simply “standing” rather than engaging

with the student while this occurred. Silverman disputes

this description, stating in her affidavit that she never

saw a student wearing headphones or using a Walkman

during a lesson.

Karvelas also testified that during her periodic walks

through the halls of the school, she noticed that another

of Silverman’s classes, co-taught with another teacher,

was “always rowdy.” Karvelas stated that, according to

her notes, on one occasion she had to stop to reprimand

the class because the students were very loud and exhibited “uncontrollable behavior.” Silverman denied that

any of her classes engaged in “uncontrollable behavior,”

though she admitted that Karvelas stopped to reprimand

her class.

The district court concluded, and we agree, that

Silverman’s disagreement with Karvelas’s evaluation

does not present a genuine issue of material fact about

the reasons for the Board’s decision not to renew her

contract. Though the Board admits Silverman performed

well enough to meet the expectations of her job, the

situation changed when Karvelas was told she had to

choose one of the probationary special education

teachers for non-renewal. That situation makes this case

different from Duncan v. Fleetwood Motor Homes of Indiana,

the case on which Silverman relies. In Duncan, the employer argued both that the employee was performing

up to its expectations, and also that he was unable to

meet the physical demands of the job. We held that

those contradictory positions could not withstand
No. 10-2977 15

scrutiny and concluded the employer’s stated reason

could be deemed pretextual. 518 F.3d at 491. Here, by

contrast, the Board has not advanced a contradictory

rationale for its decision not to renew Silverman’s employment. In light of the difficult financial situation,

Karvelas was required to select one special education

teacher for non-renewal. The Board’s position that all

the teachers, including Silverman, were meeting the

Board’s expectations, but that Silverman was the least

effective among them, is not internally inconsistent.

Silverman’s argument that the Board’s position

“evolved” between the EEOC proceedings and the proceedings in the district court likewise does not get her

very far. Silverman takes the position that the EEOC’s

reasonable cause determination must be afforded consideration because it makes discrepancies in the Board’s

argument more salient and her argument more credible.

The EEOC’s determination itself, stating only that the

agency found reasonable cause of discrimination and

retaliation, in no way shows any evolution in the

Board’s position or its arguments. Insofar as Silverman

intends to argue that the Board’s position changed

between the proceedings before the EEOC and those

before the district court and that such a change constitutes evidence of pretext, she presented evidence to

that effect in the district court by offering the Board’s

EEOC position statements. Although in some cases one

can “reasonably infer pretext from an employer’s shifting

or inconsistent explanations for the challenged employment decision,” Appelbaum v. Milwaukee Metropolitan

Sewerage District, 340 F.3d 573, 579 (7th Cir. 2003), the
16 No. 10-2977

district court did not find any change in the Board’s

position here to be inconsistent, and neither do we. Moreover, as the Board points out, both parties’ arguments

evolved over the course of their dispute, as frequently

occurs in litigation.

Silverman also contends that the parties’ conflicting

factual accounts show a genuine issue of material fact.

She asserts that Karvelas inappropriately based her

judgment on one or two incidents she observed during

which she noted that Silverman was not engaged with

the students or not in control of the classroom. According to Silverman, her classroom manner was appropriate. Based on this dispute, Silverman argues that the

Board’s motion should have been denied. We again

disagree. Taking Silverman’s account as true—that

Karvelas’s account is wrong and that her notes were not

substantiated by the events at the time—Silverman has

still failed to offer evidence that the reason given by

the Board was dishonest. To defeat the Board’s motion,

she must point to evidence suggesting that the Board

itself did not give an honest explanation of its reason.

Silverman’s argument is like many that arise in employment discrimination cases where the employee

disagrees with an employer’s negative assessment of

the employee’s performance. See, e.g., Ptasznik v. St. Joseph

Hospital, 464 F.3d 691, 697-98 (7th Cir. 2006) (accepting

employer’s non-discriminatory justification of inexcusable performance and concluding that a court should

not “interfere in employment decisions simply where

[it] believe[s] an employer has made a poor choice”). If
No. 10-2977 17

such disagreements were enough to avoid summary

judgment and go to trial on an indirect proof case, summary judgment would become extinct and employer’s

evaluations of employees would be supplanted by

federal juries’ evaluations. We have said in substance

more times than we can count that when an employer

articulates a plausible, legal reason for discharging the

plaintiff, “it is not our province to decide whether that

reason was wise, fair, or even correct, ultimately, so long

as it truly was the reason for the plaintiff’s termination.”

Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d

406, 411 (7th Cir. 1997); accord, e.g., Stockwell v. City of

Harvey, 597 F.3d 895, 902 (7th Cir. 2010) (noting that

subjective evaluations of job candidates are consistent

with Title VII); Stephens v. Erickson, 569 F.3d 779, 788

(7th Cir. 2009) (recognizing that the role of the court is

not to second-guess employers’ business judgments);

Ptasznik, 464 F.3d at 697 (“We do not sit as a super-personnel department with authority to review an employer’s business decision”), quoting Ballance v. City of

Springfield, 424 F.3d 614, 621 (7th Cir. 2005).

Nevertheless, an employer’s negative evaluation of

the plaintiff’s performance is not always the last word. If

the plaintiff can raise a genuine issue about the honesty,

not merely the accuracy, of the employer’s stated evaluation, the case may need to be tried. An employee “may

demonstrate that the employer’s reasons are unworthy

of credence through evidence showing (1) that the proffered reasons had no basis in fact, (2) that the proffered

reasons did not actually motivate his discharge, or (3) that

they were insufficient to motivate discharge.” Mechnig
18 No. 10-2977

v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)

(emphasis in original, quotation marks omitted). See also

Cliff v. Board of School Commissioners of the City of Indianapolis, 42 F.3d 403, 412 (7th Cir. 1994) (recognizing Mechnig

framework in context of plaintiff-teacher’s claim that

defendant-Board’s non-discriminatory basis for not renewing her contract—negative performance reviews—

was pretextual).

Silverman rests her case on the first type of evidence

described in Mechnig, asserting that the Board’s stated

reason had no basis in fact. Such arguments require

strong evidence that could leave a disinterested observer

doubting the honesty of the stated reason. See, e.g.,

Hague v. Thompson Distribution Co., 436 F.3d 816, 823

(7th Cir. 2006) (concluding that it is insufficient for a

plaintiff to show that an employer’s decision was

mistaken or ill-considered where it is undisputed that an

employer honestly believes a non-discriminatory rationale

for termination); McCoy v. WGN Continental Broadcasting

Co., 957 F.2d 368, 373 (7th Cir. 1992) (noting that the

issue of pretext in age discrimination context addresses

whether the employee honestly believes in the reasons

it offers for its employment decision).

Silverman simply has not provided any evidence

beyond her mere disagreement with Karvelas’s evaluation to indicate that the Board did not in fact base its

decision on Karvelas’s recommendation and assessment

of her performance as it has argued. We explained this

requirement with respect to age discrimination in Futrell

v. J.I. Case, 38 F.3d 342, 346 (7th Cir. 1994): “If the evi-
No. 10-2977 19

dence does not amply support a plaintiff’s claim that the

defendant’s explanation is unworthy of credence, judgment as a matter of law is entirely appropriate.” The

same conclusion follows in a Title VII analysis.

Thus, even looking directly at Karvelas’s evaluations

and their factual bases, it is irrelevant to a summary

judgment analysis whether Karvelas mischaracterized

Silverman’s classroom management skills. We simply

do not weigh the prudence of employment decisions

made by firms charged with employment discrimination.

See id. “An employer can fire an employee for any reason,

fair or unfair, so long as the decision to terminate is not

based on age or some other protected category.” Kier v.

Commercial Union Insurance Cos., 808 F.2d 1254, 1259

(7th Cir. 1987).

Most detrimental to Silverman’s claim is the undisputed fact that Karvelas observed one of Silverman’s

classes in February 2005, well before she learned of the

pregnancy, so that negative evaluation could not possibly

have been affected by any supposed bias against pregnancy. Neither has Silverman provided any evidence

to call into question Karvelas’s written observations

regarding other teachers, all of which were positive. It is

not sufficient for Silverman to argue, as she has, that all

the teachers were good but because the one teacher

whose employment was not renewed was pregnant, her

pregnancy must have been the deciding factor for her

selection. We are left with no evidence from which a

reasonable jury could infer pretext and discriminatory

animus. In the absence of any whiff of disapproval by

the Board of her pregnancy, Silverman cannot avoid
20 No. 10-2977

summary judgment with an “unadorned claim” that a

jury might not believe the Board’s explanation. Giannopoulos, 109 F.3d at 411.

2. Interviewing Others for the New Position

Silverman also tries to support her pretext argument

with evidence of the Board’s actions after her contract

was not renewed. On July 27, 2005, the Board’s Office

of Special Services notified principal Karvelas that

Lincoln Park would be the site of a new autism unit and

that a new autism teaching position would become available for the 2005-2006 school year. In a letter dated the

very next day, Karvelas offered Silverman this new position, which she accepted on August 11. In spite of her

rehire, Silverman maintains that the circumstances surrounding her rehire were evidence of pretext. Karvelas

interviewed two other teachers for the autism position.

Silverman claims that these interviews were attempts

by Karvelas and the Board to avoid rehiring her. She

argues that they support her pretext argument under

the indirect method by indicating that “Karvelas took a

dim view of pregnant teachers, had no intention of

offering Silverman the new position until told by the

Law Department that she had to, and remained intent

on getting rid of Silverman.”

This is speculation rather than a reasonable inference.

With the start of the school year fast approaching, the

Board needed to conduct interviews for either Silverman’s maternity-leave substitute or a permanent teacher

in case Silverman declined her offer. It was perfectly rea-
No. 10-2977 21

As noted by the district court, Silverman obtained another 4

teaching position at a different Chicago school by August 2006

and thus suffered no loss of compensation or benefits. In

this action, she seeks only compensatory damages for mental

and emotional distress.

sonable for the Board to hold interviews and to be

unsure at that time whether it would be able to offer the

interviewee a short-term or permanent position. Most

important here is that the Board offered Silverman the

position and Silverman accepted. The fact that Karvelas

interviewed other teachers is not enough for a rational

trier of fact to infer pretext and find for Silverman on

her discrimination claim.

III. The Retaliation Claim

In her second count, Silverman alleges that the Board

retaliated against her for filing a charge of discrimination with the EEOC. She contends this retaliation took

the form of rehiring her for a more difficult position and

not renewing her contract to teach at Lincoln Park after

the 2005-2006 school year. Title VII prohibits an 4

employer from taking an adverse employment action

against an employee because she has filed an employment discrimination charge. See 42 U.S.C. § 2000e-3(a);

Burlington Northern & Santa Fe Railway Co. v. White, 548

U.S. 53, 62 (2006). As with her discrimination claim,

Silverman may defeat a motion for summary judgment

by providing sufficient evidence of retaliation through

either a direct or indirect method. See Weber v. Universities
22 No. 10-2977

Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir. 2010).

Silverman proceeds under both methods. We find no

sufficient evidence of retaliation under either method.

A. The Direct Method

To avoid summary judgment under the direct method

of proof for proving retaliation, a plaintiff must show:

(1) that she engaged in a statutorily protected activity;

(2) that she suffered a materially adverse action by

her employer; and (3) there was a causal link between

the two. Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir.

2010). Silverman satisfied the first element. Filing a

charge with the EEOC about the alleged discrimination

is the most obvious form of statutorily protected activity.

See 42 U.S.C. § 2000e-3(a); Chapin v. Fort-Rohr Motors, Inc.,

621 F.3d 673, 677 (7th Cir. 2010). For the second element of an adverse action, Silverman identifies three:

assigning her to a more difficult position with the

autism class in 2005; writing negative evaluations of her

teaching during the 2005-2006 school year; and deciding

not to renew her contract in 2006. The Board contends

the first and second actions do not qualify, but concedes

that the non-renewal of Silverman’s contract in 2006

qualifies as an adverse action.

In a retaliation case, an adverse action is “one that

a reasonable employee would find to be materially

adverse such that the employee would be dissuaded from

engaging in the protected activity.” Roney v. Illinois Dep’t

of Transportation, 474 F.3d 455, 461 (7th Cir. 2007). Although Silverman characterizes one of her alleged adverse
No. 10-2977 23

actions at issue here as “an assignment” to a more

difficult position, she refers in fact to the Board’s offer to

her of a new position, not a revised assignment. Having

lost her position in the spring of 2005—and, as we have

explained, there was nothing unlawful about that

decision—she was offered the only position that became

available that summer for someone with her qualifications. That action cannot reasonably be characterized

as retaliatory. Even if we assume that Silverman’s new

teaching role was less desirable than her previous one,

the Board was under no obligation to rehire her for

any position at all. To characterize the Board’s offer as a

retaliatory change in assignment is to misconstrue the

series of events leading to Silverman’s acceptance of the

newly created position. The Board’s job offer to teach

autistic students at Lincoln Park was not an adverse action.

The parties further dispute whether the negative evaluations Silverman received during the 2005-2006 school

year were adverse actions. In February and March 2006,

Karvelas observed Silverman’s autism class. Her observation notes indicated that, by her assessment, Silverman

was not performing well in the classroom. As a result,

Silverman received at least one written notice from

Karvelas stating that her classroom instruction was

weak. Silverman contends that these criticisms of her

teaching, the veracity of which she disputes, constitute

adverse employment actions. As the Supreme Court

has taught, Title VII does not set forth a general civility

code for the workplace. See Burlington Northern, 548 U.S.

at 68. The statute does, however, prohibit employer

actions that are likely to deter victims of discrimination
24 No. 10-2977

from complaining to the EEOC. Id. In Burlington Northern,

the Court made clear that context matters to the determination of what constitutes a materially adverse action. Id. at 69. In this context, we agree with Silverman

that a negative performance evaluation could constitute

an adverse action within the meaning of the direct

method of proving retaliation (as distinct from a claim

of discrimination based on a prohibited classification).

Nevertheless, under the direct method, Silverman still

bears the burden of providing evidence tending to show

a causal connection between those evaluations and her

complaint with the EEOC months earlier, before she

was rehired for the 2005-2006 year. The fact that the

evaluations occurred later does not suffice to show a

causal connection. Silverman has not offered evidence

that the evaluations were causally linked to her EEOC

charge, so we need not consider them further.

The Board concedes that its decision not to renew

Silverman’s contract in the summer of 2006 constituted

an adverse employment action. Silverman must then

offer “evidence that reasonably suggests” that her protected activity was related to the Board’s decision. See

Lewis v. City of Chicago, 496 F.3d 645, 655, quoting Burks v.

Wisconsin Dep’t of Transportation, 464 F.3d 744, 758-59 (7th

Cir. 2006). In Lewis, we held that the plaintiff properly

supplied additional evidence beyond suspicious timing

to survive summary judgment on a retaliation claim.

There, the plaintiff’s supervisors treated her less well

after she filed a discrimination charge. See id. at 655-56.

Here, however, Silverman has not presented any evidence to back up her claim. She refers to the interviews
No. 10-2977 25

that took place around the time that she received her

autism job offer and states that “a jury could conclude

that Karvelas had no intention of rehiring Silverman”

based on that evidence. The fact that the interviews

took place has nothing to do with establishing a

causal connection between Silverman’s EEOC charge

and the non-renewal of her contract the following spring,

nor does Silverman suggest any way that it might substantiate her assertion. 

In the absence of any persuasive evidence of retaliation through the direct method, we turn to Silverman’s

attempt to prove by the indirect method that the Board

intended to retaliate against her.

B. The Indirect Method

To establish a prima facie case of retaliation under the

indirect method, Silverman must demonstrate two of

the same elements required by the direct method: first,

that she engaged in a statutorily protected activity and,

second, that she suffered an adverse employment action.

Nichols v. Southern Illinois University-Edwardsville, 510

F.3d 772, 785 (7th Cir. 2007). As noted, the Board

concedes that Silverman has established these two elements as to its decision to not renew her contract in

2006. The indirect method also requires Silverman to

show that she met the Board’s legitimate expectations

and that she was treated less favorably than similarly

situated employees who did not engage in the statutorily protected activity. See Leonard v. Eastern Illinois

University, 606 F.3d 428, 431 (7th Cir. 2010). If she estab-
26 No. 10-2977

lishes these elements, the burden shifts to the Board to

produce a legitimate, non-retaliatory reason for not

renewing Silverman’s contract. Nichols, 510 F.3d at 785. If

it succeeds in doing so, then Silverman must come

forward with evidence that the Board’s proffered reasons

were only a pretext for retaliating against her. Id. Neither

party doubts that Silverman met the Board’s legitimate

expectations. The parties dispute, however, whether

the Board treated a similarly situated employee more

favorably. We agree with the district court that

Silverman failed to offer sufficient evidence that she

was treated less favorably than a similarly situated employee. She cannot prove retaliation through the

indirect method.

If an employer takes an action against one employee in

a protected class but not another outside that class, and

all else is equal between the comparators, we can

infer discrimination, at least provisionally at the prima

facie stage of the analysis. See Humphries v. CBOCS

West, Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff’d, 553 U.S.

442 (2008). The purpose of the “similarly situated” comparator element is to ensure that all other variables are

discounted so that an inference of unlawful intent would

be reasonable. Thus, although the “similarly situated”

inquiry is a “flexible, common-sense one,” Henry v. Jones,

507 F.3d 558, 564 (7th Cir. 2009), the comparators must

be similar enough that any differences in their treatment cannot be attributed to other variables. See Senske

v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009) (noting that

a difference in performance history would dilute the

persuasive power of a similarly situated comparison in
No. 10-2977 27

age discrimination case); see also Patterson v. Indiana

Newspapers, Inc., 589 F.3d 357, 366 (7th Cir. 2009) (similarly

situated employee(s) must be “directly comparable to

the plaintiff in all material aspects”). Those variables

include distinctions in positions, performance, or supervisors. See Senske, 588 F.3d at 510.

Silverman contends that Jon Goldstein, a male probationary special education teacher, was similarly situated

and was treated more favorably than she was. Goldstein

also taught special education students and reported to

Karvelas. Karvelas observed Goldstein’s teaching around

the same time that she observed Silverman. Her observation notes from Goldstein’s class indicate that he was

effective in managing his students. Karvelas gave

Goldstein a “superior” rating for his work, while Silverman received only a “satisfactory” rating. These differences in performance quality undermine the comparison

between Goldstein and Silverman for the purpose of a

“similarly situated” analysis. Absent adequate evidence

from which a reasonable jury could question the honesty

of Karvelas’s evaluations, we have no basis from which

to infer that the Board’s motive was actually retaliatory.

Even if we were to find that Silverman succeeded in

establishing a prima facie case through the indirect

method, we conclude, as the district court did, that

Silverman’s claim would still fail because she has not

offered sufficient evidence that the Board’s reason for not

renewing her contract was pretextual. The Board again

asserts substandard performance as its reason for not

renewing Silverman’s contract. The Board offers as evi-
28 No. 10-2977

dence of its position Karvelas’s written observation

notes, her testimony that Silverman failed to incorporate

standard-based instruction into her work among other

classroom management concerns, and testimony from

Dr. Sylvia Love, a school psychologist, and Wanda

Kramer, an assistant principal. In their declarations,

Love and Kramer both related concerns they had while

observing Silverman’s classroom management. But according to Silverman, Love never entered her classroom

and Kramer conducted only a “brief, pop-in” visit

from which she was not qualified to make any determinations about Silverman’s performance.

Federal Rule of Civil Procedure 56 requires the district

court to grant a motion for summary judgment after

discovery “against a party who fails to make a showing

sufficient to establish the existence of an element

essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). Here, taking the facts in

the light most favorable to the plaintiff as the non-moving

party, Silverman nevertheless falls short in her attempt

to raise a genuine issue of material fact as to the honesty

of the Board’s justification for its decision. A successful

pretext argument would require Silverman to do more

than simply allege that the Board’s reason for not

renewing her contract is dishonest.

The strongest evidence Silverman offers to support her

theory is the conflicting accounts regarding the Board’s

corroborative evaluations of her performance. Despite

Love’s declaration regarding her observations of Silver-
No. 10-2977 29

man’s teaching, Silverman testified that Love simply

never observed her—that it just never happened.

With respect to Kramer, when Silverman testified in her

November 2008 deposition, she did not recall Kramer

coming into her classroom. In her April 2010 affidavit,

however, Silverman stated that Kramer did enter her

classroom for a quick visit during the spring of 2006.

The district court did not rely on either of these accounts

concerning Love or Kramer. Nevertheless, from these

allegedly fabricated and unsubstantiated observations,

Silverman maintains, a jury could infer retaliatory motive.

Although the parties dispute some of the facts surrounding these incidents, their dispute still does not

create a genuine issue of material fact as to whether the

Board’s justification is worthy of belief. See Stalter v. WalMart Stores, Inc., 195 F.3d 285, 288-89 (7th Cir. 1999)

(“We look not at the wisdom of the employer’s decision, but rather at the genuineness of the employer’s

motives”); Giannopoulos, 109 F.3d at 411 (recognizing that

the court does not decide whether a justification for termination was fair, but whether it was the true reason).

The relevant task for our review, and the burden that

Silverman bears, is to show a genuine issue of material

fact regarding whether the Board’s reliance on Karvelas’s

assessments was legitimate or was intended merely

to conceal retaliatory intent. See id. Pretext is “more than

just faulty reasoning or mistaken judgment on the part

of the employer; it is [a] lie, specifically a phony reason

for some action.” Scruggs v. Garst Seed Co., 587 F.3d 832,

839 (7th Cir. 2009) (citation and quotation marks omitted).

See also Forrester v. Rauland-Borg Corp., 453 F.3d 416, 419
30 No. 10-2977

(7th Cir. 2006) (stating that pretext is “a deliberate falsehood”). As we have noted with respect to pretext in

the discrimination context, if the Board honestly

believed the non-discriminatory reason it proffered, the

reason was not pretextual. See Scruggs, 587 F.3d at 839.

If the Board were supporting its decisions by relying

on Love’s observations, the factual dispute about whether

she actually made the observations would be material.

On this record, however, we do not believe that it is

material. Karvelas was the key decisionmaker, and her

observations in the 2004-2005 school year, some made

before she learned of Silverman’s pregnancy and all

before the EEOC charge, were consistent with her negative observations in the 2005-2006 school year. And

those observations were also consistent with Kramer’s

observations. Silverman points to nothing in the record

that reasonably calls into question the Board’s reliance

on Karvelas’s assessments. She has failed to raise a

genuine issue of material fact about the honesty of the

Board’s stated non-discriminatory reason for not

renewing her contract at the end of the 2005-2006

school year. 

The judgment of the district court is therefore AFFIRMED.

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