Seventh Circuit Affirms Summary Judgment for Employer in Reverse-Race Discrimination Case

In Good v. University of Chicago Medical Center, No. 1102679 (7th Cir. 3/12/2012), Plaintiff Good appealed the summary judgment entered by a district court that tossed her claim of reverse-race discrimination. Plaintiff previously worked as a lead technologist in the medical center's radiology department. While admitting there were issues with her job performance, she asserted that her white race was the reason she was terminated rather than demoted as occurred with employees of other races. Because defendants had obtained summary judgment, the Seventh Circuit construed all facts and drew all inferences in favor of Plaintiff. The medical center used a four step corrective and progressive action policy, under which an employee who failed a performance improvement plan, ["PIP"], could be terminated. The policy manual, however, also stated that it was the policy of the employer "to demote [an] individual" who "cannot perform...her assigned job responsibilities" as a result of "her skills [] not [being] matched to the requirements of the job" or because the employee "lack[s]...motivation to perform up to standards." But unlike other employees, managers who worked in the radiology department were held to a higher standard based on their additional responsibilities. Though managerial employees could be terminated at any time, some managers were demoted rather than subjected to the harsher regime of corrective treatments which included PIPs, new probationary periods, or discharge.

In June 2007, Plaintiff received an overall evaluation of less than 3 on a scale of 1 to 5, with 5 being the highest. Plaintiff was then subjected to a 90 day PIP during which she failed to improve in giving timely patient service, increasing staff efficiency, or reducing staff overtime in her department. Plaintiff then received a 30 day PIP, a transfer to third shift, and a warning that a failure to improve performance could result in termination. When plaintiff received her 90 and 30-day PIPs, she was told that a demotion was a possibility. Later in 2007, the employer told Plaintiff that it had changed its demotion policy, and was no longer undertaking such demotions, which resulted in the discharge of Plaintiff once her 30-day PIP ended without any performance improvements.

Plaintiff was replaced with a white employee after her termination. Plaintiff then pointed to three other employees with different races or ethnicities from herself, and who were all demoted rather than fired, as circumstantial evidence to support her direct method of proving reverse-race discrimination. The Court rejected Plaintiff's efforts and stressed that such evidence failed to identify a discriminatory reason for the employer's decision to fire her rather than demote her. While the Seventh Circuit accepted the proffered three employees as comparatives, and the existence of a common decision-maker in the Director of the radiology department, the circumstantial evidence was too insubstantial to lead directly to the conclusion that the employer was illegally motivated without having to use speculation. The record did not even support a sliver of race-based animus on the part of the employer. The deviation from the demotion policy, standing alone, did not satisfy the high burden of showing race was behind the alleged difference in treatment of candidates for demotion or discharge under the direct method of proof. Indeed, there was no evidence of race-based insults or stray remarks that could be construed as anti-white animus. Moreover, the critical undisputed facts revealed that plaintiff was replaced with another white employee. No convincing mosaic appeared in the record to sustain plaintiff's attempt to prove reverse-race discrimination through the direct method by using circumstantial evidence.

Plaintiff then urged that she succeeded in preventing summary judgment by means of the indirect burden-shifting method used under McDonnell Douglas Corp. v. Green,411 U.S. 792 (1973). (Id. at 15). Plaintiff failed to clear the hurdle placed by the first element, which required her to show background circumstances indicating that the employer was inclined or acted as if it had reason to discriminate invidiously against whites, or that there was something fishy about her termination. With a replacement who was also white, and the absence of any record facts that could even suggest that the employer had a discriminatory attitude against whites, the Seventh Circuit affirmed the summary judgment entered against the employee. One instance alone of a minority employee, who though similar to plaintiff had received differing discipline, was insufficient in the absence of any evidence of an anti-white bias by the employer along with the nonexistence of any formal or informal affirmative action plan. Such undisputed facts sunk Plaintiff's reverse-race discrimination case.