In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3772

JUANITA JORDAN,

Plaintiff-Appellant,

v.

CITY OF GARY, INDIANA and

DONALD THOMPSON,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:01-CV-323-TS—Theresa L. Springmann, Judge.

____________

ARGUED MAY 26, 2004—DECIDED JANUARY 28, 2005

____________

Before BAUER, POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge. Juanita Jordan filed a complaint

on May 2, 2001 in federal court against her former employer, the City of Gary, Indiana, and her former supervisor

Donald Thompson alleging sex discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., age discrimination in violation of

the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621 et seq., as well as defamation of character and
2 No. 03-3772

1 In a letter dated August 28, 2000 Jordan was informed of her

termination, the effective date of which was identified as July 8,

2000.

violation of her freedom of speech. Following the defendant’s

motion for summary judgment, the district court, Judge

Theresa Springmann presiding, found as a matter of law

that Jordan failed to present sufficient evidence as to any

claim which would warrant a trial. The district court granted

the defendants’ motion for summary judgment and entered

judgment in their favor. We affirm.

I. Background

Juanita Jordan, a 60-year-old African-American female,

was employed by the City of Gary, Indiana, Division of

Health and Human Services (“HSS”) Health Clinic for 15

years, from June 1, 1984 until the date of her termination

on July 8, 2000.1

 Jordan joined the Gary Health Department

(“GHD”) as a switchboard operator and through the years

was promoted a number of times, eventually attaining the

position of Senior Disease Intervention Specialist (“DIS II”),

which she held at the time of her discharge. As a DIS II,

Jordan contacted individuals infected with either syphilis

or HIV, arranged testing and treatment for them and their

infected, or potentially infected, partners and counseled

them on a number of disease-related matters. To qualify for

that position, Jordan, 58 at the time of her termination had

earned a degree in psychology from Purdue University

Calumet in 1978 and had attended regular continuing education classes and seminars. 

Throughout most of her tenure at the HSS, the record

establishes that Jordan was a distinguished and dedicated

employee. Indeed, for two consecutive years, in 1988 and

1989, Jordan was named the best Disease Intervention
No. 03-3772 3

2 In 1993 Jordan was cited twice for work rules violations; in

January of that year she was reprimanded in writing for failing to

attend a mandatory meeting and in August of the same year she

was suspended for one day without pay (and her city vehicle privileges were suspended for ninety days) for using a vehicle without

authorization. In March of 1995 Jordan was reprimanded in writing for being absent from work without permission (apparently

Jordan was habitually returning from lunch late). Eighteen months

later, in October of 1996, Jordan received a verbal warning that

she had excessive absences and was eligible for disciplinary

suspension pending termination. Also, in October of 1998, Jordan

was referred to counseling after she helped initiate a physical

confrontation between two clients in the mens room of the clinic.

Her supervisor described this incident as “against all protocol.” Tr.

Exh. 28. In a memo, the Administrator of the Health Department,

Helen Smith, observed that “Ms. Jordan’s obvious lack of comprehension, grandiose attitude and unwarranted anger yield some

serious concerns related to the state of her mental health.” Id.

Specialist in the State of Indiana. In addition, Jordan was

considered to be a valuable resource at the HSS by a number of her colleagues and supervisors. However, beginning

in 1993, and continuing until her termination in 2000, a

number of rather serious flaws began to manifest themselves in Jordan’s work history as a model employee. 

From 1993 to 1999 Jordan was disciplined on a number

of occasions for violations of the City of Gary work rules and

policies, some very serious (e.g., failing to report to work and

using the city’s property without permission). These

violations resulted in various types of reprimands, referral

to a counselor under the City of Gary’s Employee Assistance

Program, and even suspension from her duties without

pay.2

 For example, on or about June 24, 1997, in a conversation with a client, Jordan began belittling and badgering

him over the telephone. According to the record, when the

client failed to recall some specific information that Jordan

requested she (Jordan) became abusive, calling him a “mur-
4 No. 03-3772

3 In deposition testimony Thompson testified that in October of

1999 the HSS was placed on a 90-day period of probation by the

mayor’s office. Jordan contends that the probation was actually

instituted a year later, in October of 2000. However, the timing of

the actual probation period is ancillary to our decision here (as it

was to the district court) and, therefore, is not a triable issue of

material fact.

derer,” and hanging up. Tr. Exh. 25. This resulted in

Jordan’s suspension without pay for three days, effective

June 24, 1997. However, in an act of defiance, Jordan

returned to work the following day, in spite of the suspension order, and as a result an additional day was added to

her suspension. In addition, she was also required to

consult an Employee Assistance Program counselor before

returning to work. 

In October of 1999, allegedly under pressure from the

Gary, Indiana Mayor’s office, changes in the HSS department were initiated.3

 Donald Thompson, the Division

Director of the HSS, claims he was directed to get to the

bottom of some alleged breaches of confidentiality and other

deficiencies manifested by staff members within the

department. As part of this initiative, Thompson enlisted

the help of the HSS Health Clinic Manager at the time,

Aleisa James (Jordan’ s supervisor from 1992-2000) and

instituted a number of changes in the department such as

a new policy requiring that, going forward, all DISs would

be required to hold a medical assistant certification, unless

they were licensed professional nurses. Also, in February of

2000 Thompson announced his intention to have the entire

staff re-apply for their positions. 

Shortly thereafter, in March of 2000, Aleisa James, the

Clinic Manager and Jordan’s supervisor, announced that

she would be taking approximately six weeks of medical

leave. James suggested to Thompson that Jordan and another employee, Roland Carey, II, be assigned to split the
No. 03-3772 5

4 After Jordan returned from her suspension, Thompson was

(continued...)

time that she would be on leave as acting Clinic Manager.

However, because Thompson had doubts about Jordan’s

abilities to take orders and follow directives, he instead

named Deputy Director of Health, Ida Parker, 55, as James’

replacement as the ranking officer in the HSS Health

Clinic. In addition, Carey, 37, was named supervisor/lead

case management person, based on “his previous working

relationship with Aleisa James and his case management

skills.” Carey’s role was to coordinate the case management

activities of the clinic (i.e., assign and manage the handling

and completion of cases on a day-to-day basis) and to report

on a daily basis to Ida Parker (who in turn reported to

Thompson as Director of the HSS). 

Following Carey’s installation as supervisor, Jordan’s

instances of insubordination and insolence escalated. The

week of May 8, 2000, Jordan was late returning from lunch

on three consecutive days and was issued a written warning on May 12. Also on Friday, May 12, 2000 Jordan was

disciplined for breaching the City’s dress code policy when

she wore a head covering to work. After being ordered to

remove the article, she complied; however, the following

Monday Jordan returned to work wearing the same head

covering and was suspended for three days for insubordination. In addition, on May 25, 2000 Jordan was once again

suspended, this time for five days, for leaving the building

without permission in order to discuss a grievance she had

filed with the City’s human resources department regarding

the head covering incident. In a further act of defiance,

during her suspension from work for being absent without

leave, Jordan was identified on the Health Clinic property

without authorization and was escorted from the property

by security after being informed that she was not to be on

the property while suspended.4
6 No. 03-3772

4 (...continued)

notified of a complaint lodged against Jordan alleging that she

had breached the HSS’s confidentially agreement by relaying sensitive and confidential information about a patient to his mother

without the patient’s permission.

5 Jordan’s termination was effective July 8, 2000 pursuant to City

of Gary Policy Manual work rule A-19 which mandates that “[n]o

employee shall be absent for three consecutive work days or more

without notifying his/her supervisor.” Tr. Exh. 17.

Reacting to the pattern of unacceptable behavior described

above, Thompson, in conjunction with his deputy, Ida

Parker, informed Jordan that she would be suspended until

July 5, 2000, demoted (with a corresponding $1,500 decrease in salary) and be placed on 90-days probation, after

which the status of her continued employment would be

reviewed. On July 5, 2000, Jordan failed to report for work

or to notify her supervisors that she would be absent.

Although Jordan filed a grievance the following day with the

City of Gary regarding the suspensions and demotion she

had received— in which she also alleged a pattern of

harassment—she persisted in her insubordination by failing

to report for work over the next two weeks. On July 19,

2000, Thompson sent Jordan a certified letter informing her

that she was absent without leave and advising her of the

fact that a recommendation for her termination had been

forwarded to the City’s human resources department.

Jordan’s dismissal from the Health Department became

final effective July 8, 2000.5

 In response, Jordan filed a

complaint with the Equal Employment Opportunity

Commission (“EEOC”) on July 23, 2000, alleging discrimination on the basis of sex and age as well as failure to

promote, which was denied. Jordan was subsequently

issued Notice of Right to Sue by the EEOC in February of

2001. 

Jordan filed a pro se complaint on May 2, 2001, in the
No. 03-3772 7

United States District Court for the Northern District of

Indiana, alleging that the City of Gary and Thompson discriminated against her on the basis of her sex, in violation

of Title VII and her age, in violation of the ADEA. Specifically, Jordan claimed that Thompson discriminated against

her on the basis of her sex and age when he selected, James,

a 55-year-old female, and Carey, a 37-year-old male, to assume James’ responsibilities instead of promoting her (Jordan

herself was 60 years old at the time). In addition, Jordan

claims that she was also discriminated against on the basis

of both her age and sex when she was disciplined various

times in May of 2000, demoted and terminated in July of

that year. Jordan also included a surprising claim that she

was “constructively discharged” by Thompson when she had

no other recourse but to not return to work following her

final suspension and demotion, thereby causing her termination.

On February 14, 2003, after discovery had been conducted,

the defendants moved for summary judgment and the district court agreed granting the motion to dismiss. Proof of

discrimination may be found under either the direct or

indirect method. The trial judge concluded that, under the

direct method of proof, Jordan had failed to establish that

Thompson had intentionally discriminated against Jordan

because she was an older female. In addition, under the

indirect method the court found that, assuming Jordan had

made out a prima facie case of age and sex discrimination

regarding her failure to promote claim, she had failed to

establish that Thompson’s reasons for promoting Carey (i.e.,

that he believed Carey would be a better candidate due to

his managerial skills and his lack of a derogatory discipline

record), was pretextual. As to her claim that she had been

discriminatorily disciplined, demoted and subsequently

terminated, the court found that Jordan had failed to

identify a similarly situated male employee in the department under the age of 40 who was treated less favorably.

See Grayson v. City of Chicago, 317 F.3d 745, 817-18 (7th
8 No. 03-3772

6 In addition, Jordan claimed that the defendants had sexually

harassed her, violated her First Amendment rights to free speech

and defamed her. The district court granted summary judgment

as to these claims finding that they lacked any merit. Because

Jordan does not challenge the district court’s decision to grant

summary judgment, and they are not properly before us on

appeal, we see no need to discuss them here.

Cir. 2003) (Title VII); Franzoni v. Hartmarx Corp., 300 F.3d

767, 771-72 (7th Cir. 2002) (ADEA). In addition to failing to

produce a similarly situated employee, the judge found that

Jordan had brought forward “no credible evidence” suggesting either her discipline or demotion was based on her age

or sex and therefore this claim, as well as her constructive

discharge claim, must fail as a matter of law.6

 On appeal

Jordan argues that the district court erred in granting

summary judgment to the defendants on her Title VII and

ADEA claims.

II. Analysis 

“We review a district court’s grant of summary judgment

de novo, construing all facts and inferences in the light

most favorable to the nonmoving party.” Williams v. Waste

Mgt. of Ill., 361 F.3d 1021, 1028 (7th Cir. 2004). In addition,

summary judgment is only appropriate where “the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there

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

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

Fed.R.Civ.P. 56(c).

Under Title VII it is unlawful for any employer to “fail or

refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex,

or national origin.” 42 U.S.C. § 2000e-2. In addition, the
No. 03-3772 9

ADEA provides that it is unlawful for any employer to “fail

or refuse to hire or to discharge any individual or otherwise

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1).

In resisting summary judgment under Title VII, a plaintiff

has two available methods of proving retaliation: the “direct” and “indirect method.” Rogers v. City of Chicago, 320

F.3d 748, 753 (7th Cir. 2003).

A. Jordan’s Claims Under the Direct Method

To prove discrimination via direct evidence “essentially

requires an admission by the decision-maker that his actions were based on the prohibited amicus.” Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). It

should not be surprising that in today’s politically correct

workplace environment such admissions are rarely, if ever,

made or encountered. See id. Therefore, a plaintiff may also

“prevail under the direct method of proof by constructing a

‘convincing mosaic’ of circumstantial evidence that ‘allows

a jury to infer intentional discrimination by the decisionmaker.’ ” Rhodes v. Ill. Dept. of Transp., 359 F.3d 498, 504

(7th Cir. 2004); Troupe v. May Dept. Stores Co., 20 F.3d 734,

737 (7th Cir. 1994). Nonetheless, under the direct method,

circumstantial evidence “must point directly to a discriminatory reason for the employer’s action.” Id. (quoting Adams

v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)).

Jordan argues that circumstantial evidence concerning

Thompson’s disparate treatment of two other older women—

Geraldine Steele, 62, and Pearlena Hammond, 65—at the

Gary Health Department evinces his discriminatory state

of mind and would allow us to infer his intent to discriminate against her. Jordan alleges that Thompson intentionally required Steele and Hammond to work together despite

his knowledge that there was latent animosity between the

two. Also, Jordan claims that, in order to make things tougher
10 No. 03-3772

on these women, Thompson rearranged their lab without

informing them prior to doing so, denied them budgeted salary increases, treated them rudely and eventually transferred one of them, Steele, to a “trivial job” without cause.

While we feel inclined to acknowledge that the circumstances

described by Jordan are indeed suspect, and under other

conditions may induce a finding of discriminatory intent on

Thompson’s part, they did not occur in a vacuum; rather,

they took place at a time when the Department was

undergoing managerial, as well as structural, changes

which undoubtedly frustrated and confused a number of

employees. 

During the time period in which Jordan claims that she

(as well as the other women) were discriminated against,

conditions in the HSS and the Health Clinic were in a state

of flux. As mentioned above, Thompson was in the process

of instituting a number of changes to improve the functionality and professionalism in the division. Although it is true

that Steele, Hammond and Jordan were required to undergo

changes in their routines that may have been distasteful to

them, other employees were also required to make adjustments. For example, Jodie Pryor, a 37-year-old female

was terminated and three other females, Kimberly Peterson,

35, Tracey Roberts, 39, and Joanna Grimes, 52, all left the

HSS during this period. This is not to mention the fact that

Aleisa James, who was replaced by Ida Parker and Roland

Carey, was not given her former position back after she

returned from her leave of absence. The circumstances

Jordan cites certainly describe a working situation which

was anything but stable. In addition, the record certainly suggests that Thompson was not making many friends through

his management style and the reorganization policies that

he was instituting. Nevertheless, we are unpersuaded that

the circumstantial evidence which Jordan points to under

the direct method, especially when one considers the fact that

the Health Clinic was in a period of transition, would allow

a reasonable jury to infer intentional discrimination on
No. 03-3772 11

7 In the district court’s Memorandum of Decision and Order,

Judge Springmann makes clear that, for the sake of brevity, the

court “assumed, without deciding,” that Jordan had made out a

prima facie case and moved right to Jordan’s pretext arguments.

Thompson’s part. See Sartor v. Spherion Corp., 388 F.3d

275, 278 (7th Cir. 2004).

B. Jordan’s Claims Under the Indirect Method

A plaintiff that has failed to establish discriminatory

intent under the direct method may nonetheless ultimately

prevail under the indirect, burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). In order to survive a motion for summary

judgment under the indirect method, Jordan must initially

establish, by a preponderance of the evidence, a prima facie

case of discrimination. Thereafter, it is incumbent upon the

defendants-appellees (the “City”) to counter with a legitimate, nondisciminatory and nonpretextual reason for the

employment action. This method of analysis is applicable

whether the discrimination alleged is on the basis of sex,

when proceeding pursuant to Title VII, or on the basis of age,

under the ADEA. See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142-43 (2001).

1. Jordan’s Failure to Promote Claim

Jordan alleges that the decision not to promote her to both

the manager position (to which Parker was appointed) and

the supervisor position (Carey) in the Health Department

was discriminatory in nature. In addition, she contends that

she has established a prima facie case of discrimination7

and that she has also successfully demonstrated that the

justification for not promoting her offered by the City is
12 No. 03-3772

pretextual, contrary to the findings of the trial judge. We

disagree.

In order to establish a prima facie case of sex or race

discrimination for failure to promote Jordan would have to

establish, by a preponderance of the evidence, that: (1) she

is a member of a protected class; (2) she is qualified for the

position; (3) she was rejected for the position sought; and (4)

the position was granted to a person outside the protected

class who is similarly or less qualified than Jordan. See

Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir.

2003), accord McDonnell Douglas, 411 U.S. at 802-03. 

The first prong of Jordan’s argument is that she should

have been promoted to the position of Health Clinic manager rather than Parker. In order to establish a prima facie

case of discrimination for failure to promote under the

McDonell Douglas framework, Jordan is required to identify

a person outside the protected class of which she is a member that was given the job instead of her. See id. However,

it is undisputed that Parker is an African-American female

over the age of 40. Therefore, because Parker is a member

of the same protected class as Jordan, Jordan is precluded

from successfully arguing that she was unfairly discriminated against when Thompson chose to assign Parker as

the head of the Health Clinic instead of her. Stated differently, Jordan had failed to establish a prima facie case of

discrimination under the McDonnell Douglas framework as

to this prong of her failure to promote claim. See, e.g., Ritter

v. Hill ‘N Dale Farm, Inc., 231 F.3d 1039, 1044 (7th Cir.

2000).

In the second prong of her failure to promote claim

Jordan also argues that she should have been awarded the

Health Clinic supervisor position instead of Carey. While

Carey, unlike Parker, is outside of Jordan’s protected class,

our analysis does not end there. In addition to identifying

a person outside the protected class, Jordan must also
No. 03-3772 13

establish that the person promoted in her place was similarly situated at the time of the alleged discrimination

against her. Grayson, 317 F.3d at 748. In order for Jordan

to establish that a fellow employee, like Carey, is a similarly

situated person Jordan must demonstrate that Carey

occupied the same job level and engaged in similar past

misconduct, but as a result of his misconduct he (unlike

Jordan) was treated differently (i.e., more favorably) for no

legitimate reason. Adams v. Wal-Mart Stores, Inc., 324 F.3d

935, 939-40 (7th Cir. 2003). The record establishes that

Jordan had an extensive track record of repeated and

ongoing disciplinary problems prior to Thompson’s decision

to appoint Carey as supervisor, while Carey did not. Indeed,

Jordan has introduced no evidence into the record that

would suggest that Carey had ever committed a work rules

violation or even a breach of protocol while employed at the

GHD. Therefore, Carey cannot be considered a “similarly

situated person” within the meaning of McDonnell Douglas

and Jordan has failed to establish a prima facie case of

discrimination under this prong of her failure to promote

argument as well. See id.

However, even if we were to assume, as did the trial court,

that Jordan has made out a prima facie case under this

prong of her argument, she has failed to establish that the

legitimate business justification proffered by the defendantsappellees is pretextual. In order to meet her burden of

proving that the City’s justification for promoting Carey in

place of Jordan is pretexutal, she is required to establish

that the City’s “explanation [was] designed to obscure the

unlawful discriminatory employment action.” Emmel v. CocaCola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir. 1996).

What’s more, in order to establish pretext, Jordan must establish that her credentials were “so superior to the credentials of the person selected for the job that no reasonable

person, in the exercise of impartial judgment, could have

chosen the candidate selected over the plaintiff for the job in
14 No. 03-3772

question,” which she has failed to do. Millbrook v. IBP, Inc.,

280 F.3d 1169, 1181 (7th Cir. 2002) (internal quotations

omitted).

The record establishes that Carey’s qualifications for the

supervisor (and later Health Clinic Manager) roles in the

Health Clinic were objectively comparable, if not superior,

to those of Jordan. Carey was at the same job classification

level, DIS II, as Jordan at the time he was named supervisor. In addition, there is a wealth of un-refuted testimony

in the record that suggests that Carey was a more desirable

employee than Jordan despite his lack of relative job

experience. For example, in support of his decision to name

Carey acting supervisor, Thompson stated that his choice

was “based . . . on his previous working relationship with

Aleisa James and his case management skills.” In addition,

James stated that when she was preparing to go on medical

leave she was going to appoint Carey acting supervisor for

three weeks due to his organizational skills; the very same

reason Thompson gave for promoting him. Also, the Deputy

Director of Health (and James’ superior) stated that she

“approved the appointment of Roland Carey, II, as the appropriate candidate to assist with the ongoing case management,” and that the choice “was based solely on his case

management skills.” Parker Aff. ¶¶ 9, 10. This evidence,

when viewed in conjunction with Jordan’s lengthy and repetitive record of insubordination and violation of work rules,

demonstrates that it was entirely reasonable for Thompson

to conclude that Carey was the only qualified candidate for

the position of acting supervisor and later Director of the

Health Clinic. Indeed, Jordan has failed to establish that

she was even as qualified as Carey for the position, much

less “so superior” a candidate that the only reason for the

denial of the promotion was discriminatory in nature. See

Millbrook, 280 F.3d at 1181. 

Thus, because the evidence in the record clearly establishes

the fact that Parker is a member of the same protected
No. 03-3772 15

class, and that Carey was not a similarly situated person to

Jordan within the meaning of Title VII or the ADEA, and

because Jordan has failed to establish that the City’s justification for discharging her was pretextual, the district

court’s grant of summary judgment in favor of the City on

Jordan’s failure to promote claim falls far short of constituting a reversible error.

2. Discriminatory Discipline

Jordan also argues she was being unlawfully discriminated against when she was disciplined on three separate

occasions, outlined in detail above, for: (a) wearing a head

covering after being warned not to on May 12, 2000; (b) being absent from work without leave on or about May 25,

2000; and (c) allegedly disclosing confidential information

to the mother of a client sometime prior to May 26, 2000. The

district court found that because Jordan failed to identify a

similarly situated employee outside her class who was

treated more favorably, the City’s motion for summary

judgment was warranted as to this element of her claim as

well. We agree. 

In order for Jordan to successfully claim that she was

disciplined for a prohibited discriminatory reason she must

establish that: (1) she is a member of a protected class; (2)

she was meeting her employer’s legitimate work expectations; (3) she suffered an adverse employment action; and

(4) that other, similarly situated, substantially younger,

male employees were treated more favorably. See Grayson,

317 F.3d at 817-18; Franzoni v. Hartmarx Corp., 300 F.3d

767, 771-72 (7th Cir. 2002) (ADEA). In her brief, Jordan

briefly addresses why she believes she has satisfied most of

the elements of a prima facie case for discrimination, but

she has overlooked one very important factor: she has failed

to supply us with an example of a similarly situated
16 No. 03-3772

8 Instead, Jordan extolls her virtues as an employee, points to

three other older women in the Health Clinic whom she believes

were discriminated against and eludes to Carey receiving the

promotion in her place as based on a prohibited amicus, while

downplaying her repeated insubordination and violation of work

rules. However, other examples of alleged discrimination are

superfluous to building a prima facie case and Carey cannot be

considered a similarly situated employee under Title VII and the

ADEA.

9 Furthermore, even if we were to assume that Jordan had made

out a prima facie case for discrimination, the City would still be

(continued...)

employee outside of her protected class who was treated

differently.8

The only person that Jordan identifies who might be considered a similarly situated employee is Carey. However, on

a number of occasions this court has made it clear that in

order to be considered similarly situated an employee must

be “directly comparable in all material respects.” Hudson v.

Chicago Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004),

accord Patterson v. Avery Dennision Corp., 281 F.3d 676,

680 (7th Cir. 2002). “This court does not sit as a superpersonnel department that re-examines an entities business

decisions.” Dale v. Chicago Tribune Co., 797 F.2d 458, 464

(7th Cir. 1986). Carey was promoted to acting supervisor of

the Health Clinic on or about March of 2000, prior to any of

the alleged incidents of discrimination described by Jordan

(which begin with her being disciplined a number of times

two months later in May of 2000). Therefore, because Carey

was her superior at all times relevant to this facet of Jordan’s

claim, and because we have held that Carey’s promotion was

not itself an act of discrimination, Carey cannot be considered to be “similarly situated” and Jordan’s claim must fail.

See Ajayi v. Aramark Business Servs., Inc., 336 F.3d 520,

531-32 (7th Cir. 2003).9
No. 03-3772 17

9 (...continued)

entitled to summary judgment because Jordan cannot demonstrate

that any of the reasons given for her discipline were pretextual.

In the first incident, where Jordan reported to work with an unauthorized head covering a day following being ordered not to

wear such an article, Jordan claims that there was no rule against

wearing head coverings and that others had worn them regularly.

However, Jordan was disciplined for not following a legal order

from a superior and insubordination regardless of what the rules

and regulations were at the time. Next, Jordan claims that she

was suspended for filing a grievance with the city, but the record

establishes differently. The memorandum sent to Jordan apprising her of her suspension for this incident demonstrated that she

was disciplined for “leaving the workplace without proper notification to supervisor.” Jordan admitted that she committed this

infraction and that she did not notify a supervisor; therefore, the

reprimand was for a valid, nonpretextual reason. Finally, Jordan

claims that she was unfairly disciplined for an alleged incident of

breaching confidentiality where she allegedly informed a client’s

mother that he had syphilis. Indeed, she claims that because she

was on suspension when the unsubstantiated complaint was

received, there is no way she could have been the one that

committed the infraction. In addition, Jordan posits that because

she was not apprised of the anonymous complaint until weeks

later, it must have been a fabrication. However, this is antithetical due to the fact that complaints are often made days or weeks

after an incident occurs (in this case the mother may not have

even told the son about the incident until days later) and it would

be prudent for the department not to immediately act on such a

complaint without first investigating the veracity before confronting Jordan.

C. Constructive Discharge

In her third assignment of error Jordan claims that, in

addition to being unreasonably disciplined and passed over

for a promotion, she was constructively discharged due to
18 No. 03-3772

10 The termination letter states that Jordan was “given notification to return to work on July 5, 2000,” and that because she “did

not report to work nor did [she] communicate with the divisional

office . . . [her] employment as a disease intervention counselor

[would] be terminated.” July 19, 2000 Letter from Thompson to

Jordan.

the “significant harassment” she was subjected to in the

months leading up to her termination. The trial court concluded that Jordan had failed to raise a genuine issue as to

any material fact regarding the alleged intolerable conditions Jordan endured and further made findings that her

discipline, demotion and subsequent termination did constitute a rational claim for constructive discharge. We agree.

Constructive discharge occurs when an employee is so mistreated at work that a “reasonable person in that employee’s

position would be forced to quit.” Williams v. Waste Mgt. of

Illinois, 361 F.3d 1021, 1032 (7th Cir. 2004) (citing EEOC v.

Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th Cir. 2002)). In

this regard Jordan’s claim on this count is incredible, for in

her own affidavit testimony Jordan acknowledges that she

was fired. As noted above, in addition to her previous

insubordination (i.e., being absent without leave and not

adhering to the Health Clinic’s working hours policy)

Jordan was terminated because she failed to return to work

as ordered after being suspended from her duties at the

Health Clinic for being absent without leave, a fact which

Jordan does not dispute.10 Indeed, Jordan unequivocally

states that “[o]n August 28, I was sent a letter saying that

I had been terminated for being absent and not notifying

my supervisor. My employment with the city [sic] of Gary

was terminated effective July 8, 2000.” Jordan Aff. ¶ 32.

We can make it no plainer than to reiterate that constructive

discharge “refers to a situation in which an employee is not

fired but quits.” McPherson v. City of Waukegan, 379 F.3d

430, 440 (7th Cir. 2004) (quoting Robinson v. Sappington, 351
No. 03-3772 19

F.3d 317, 336 (7th Cir. 2003)), accord Chambers v. American

Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir. 1993).

III. Conclusion

The decision of the district court is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-28-05