                   NONPRECEDENTIAL DISPOSITION
                     To be cited only in accordance with
                             Fed. R. App. P. 32.1




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                              Argued June 4, 2007
                             Decided August 1, 2007

                                     Before

                   Hon. KENNETH F. RIPPLE, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge


No. 06-4176

SUSAN L. SMITH,                               Appeal from the United States
    Plaintiff-Appellant,                      District Court for the Central
                                              District of Illinois.
      v.
                                              No. 05 C 3031
AMERICAN FEDERATION OF
STATE, COUNTY AND                             Jeanne E. Scott,
MUNICIPAL EMPLOYEES,                          Judge.
Illinois Council 31,
       Defendant-Appellee.


                                     ORDER

   Susan Smith maintains she was terminated in violation of ERISA because her
employer no longer wanted to pay her high medical expenses. However, Smith
admits her termination occurred after she refused to attend a closed-door meeting
with her supervisor despite being warned her refusal would result in discipline.
She also admits her termination was ordered by an individual who was unaware of
her ongoing expensive medical treatment. Because Smith has failed to demonstrate
that the defendant’s proffered reason for her termination was pretextual, we affirm
No. 06-4176                                                                  Page 2

the district court’s grant of summary judgment to the defendant.

                                  I. Background

    Susan Smith was employed by Illinois Council 31 of the American Federation of
State, County and Municipal Employees (“Council 31”) from 1990 to 2003. At the
time of her termination, she was an administrative accountant in the Springfield
office, and her duties included accounting and administering payroll. Although
Smith’s position was nonunion, she was covered by the same health and disability
benefits plan as the union employees. Under that ERISA-qualified plan, Council 31
pays employee claims up to a stop/loss point, after which it is reimbursed by an
insurance carrier. When Smith worked at Council 31, that point was around
$60,000 per beneficiary, and $2 million in the aggregate.

   Smith’s direct supervisor at the time of her termination was Business Manager
William Sarver, who also worked in the Springfield office. Sarver, in turn, reported
to Executive Director Henry Bayer, who worked in the Chicago office. Although
Bayer approved Council 31’s monthly financial reports, Sarver reviewed weekly
expense reports, including employees’ insurance claims. According to Smith, Sarver
reviewed these claims in detail and often showed interest in why employees were
taking certain medications or submitting large bills. A customer service
representative for Council 31’s insurance provider stated that Sarver typically
inquired into the conditions, prognoses, and future costs of employees who
submitted large medical bills.

   In 1998 Smith was diagnosed with a brain aneurysm and underwent surgery for
treatment. As a result, her medical bills for 1998 totaled $52,810.57, which
Council 31’s plan paid in full. Smith returned to work about three weeks after her
surgery. Then in 2003, she underwent a CT scan that showed an unrelated brain
tumor. She informed Council 31 that she needed a leave of absence to undergo
another surgery, and the leave was granted. Smith underwent surgery to remove
the tumor on May 22, 2003, and her resulting medical expenses totaling $31,391.94
were paid by Council 31.

   Smith returned to work part-time on August 11, 2003. That morning, she met
with Sarver, who asked how she was feeling. Smith told him she was fine, but that
the doctors had been unable to remove the entire tumor during the surgery. As a
result, she said, she would need a CT scan every six months and would probably
need additional brain surgery in the future. Smith had Sarver feel the scar on her
head; Sarver asked if the tumor was cancerous, and Smith told him it was benign.
Sarver also asked why Smith was wearing glasses, and she responded that the
swelling in her brain was preventing her eyes from focusing correctly. They also
discussed how her condition prevented her from walking in a straight line. During
the course of this fifteen-minute conversation, Office Manager Stacey Pflugmacher
No. 06-4176                                                                    Page 3

was present but did not participate.

    Smith began working full-time the next week. According to Council 31, a
number of problems arose during these first two weeks of her return. Smith took
an emergency vacation day without providing an explanation or receiving
permission and took a few hours off another day. Smith maintained she should be
paid for these absences out of sick and vacation time she accrued during her three-
month absence, but Sarver and Pflugmacher maintained she accrued no time
during that period. A dispute arose over a payroll check for which Pflugmacher
maintained Smith miscalculated the withholding. Smith also sent department
correspondence out in her own name, which Sarver maintains he had repeatedly
told her not to do.

    Sarver had a telephone conversation with Smith on Friday, August 22, to discuss
these issues. During that conversation, Smith disputed the existence of any
problems. When Sarver informed her she needed to provide a reason for taking
emergency vacation days, Smith asked him if he was harassing her. Sarver
described the call as confrontational, and he decided to have an in-person meeting
with Smith the next week. On August 23 Sarver prepared notes listing the topics to
discuss at the meeting. The next day, he had a telephone conversation with Bayer
and discussed his concerns about Smith. Bayer told him to meet with Smith and
explain his expectations, but to give her a chance to correct the problems before
implementing discipline or termination. It is unclear who mentioned termination
first, but Sarver and Bayer agree Bayer explicitly instructed Sarver not to
terminate Smith.

    Smith was out of the office on August 25, so on the morning of August 26 Sarver
asked her to come to his office for a meeting. Once Smith arrived, Pflugmacher,
who was also present, asked if she should close the door; Sarver said yes. Smith
then stated that she would not participate in a closed-door meeting and rose to
leave. Sarver ordered her to stay, but she refused and said she was going to call
Bayer. Sarver told her to go ahead, and she left his office. Smith and Sarver then
both called Bayer, and Sarver reached him first. After learning what had
happened, Bayer told Sarver to direct Smith to attend the meeting or face
discipline. Bayer then spoke with Smith, who asked to bring a witness or
tape-record the meeting; Bayer denied both requests and told her the meeting was
not disciplinary. He instructed Smith to attend the closed-door meeting or face
discipline. Bayer then called Sarver again and told him to terminate Smith if she
still refused. Shortly thereafter, Sarver called Smith to his office again; she came,
but she stood in the doorway to prevent the door from being closed. Sarver then
terminated her and gave her five minutes to vacate the premises.

  After her termination, Smith filed retaliatory termination claims under the
Americans with Disabilities Act (“ADA”) and Section 510 of the Employee
No. 06-4176                                                                       Page 4

Retirement and Income Security Act (“ERISA”) maintaining she was fired to save
Council 31 the costs of her future medical treatment. Council 31 filed for summary
judgment on both claims. Smith conceded the ADA claim could not stand because
she was not disabled within the terms of the statute, but she maintained there was
sufficient evidence to demonstrate her termination violated ERISA. The district
court disagreed, and instead concluded Smith failed to provide sufficient evidence
that Council 31’s proffered reason for terminating her—insubordination in refusing
to attend the meeting—was pretextual. The court thus granted Council 31
summary judgment on both claims. Smith now appeals the grant of summary
judgment on her ERISA claim.

                                    II. Discussion

   We review de novo a district court’s grant of summary judgment, viewing the
evidence in the light most favorable to the nonmoving party. Healy v. City of Chi.,
450 F.3d 732, 738 (7th Cir. 2006). Summary judgment is appropriate when “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 judgment as a matter of law.”
FED. R. CIV. P. 56(c).

    Section 510 of ERISA prohibits discharging an employee with the specific intent of
preventing or retaliating against the employee’s use of an ERISA-qualified benefits
plan. 29 U.S.C. § 1140. When establishing this prohibited intent through indirect
evidence, as Smith seeks to do, a plaintiff must demonstrate that she: (1) was a
member of a protected class; (2) was qualified for her job; and (3) was discharged under
circumstances that provide some basis for believing the prohibited intent was present.
See Lindemann v. Mobil Oil Corp., 141 F.3d 290, 296 (7th Cir. 1998). As in all cases
involving this method of indirect proof, if the plaintiff succeeds in making a prima facie
case, the burden shifts to the defendant to present a legitimate, nondiscriminatory
reason for its action. See Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir.1996).
Once it has done so, the burden shifts back to the plaintiff to present evidence that the
proffered reason is pretextual, i.e., is “a deliberate falsehood.” See Forrester v.
Rauland-Borg Corp., 453 F.3d 416, 419 (7th Cir. 2006).

   Smith maintains the district court erroneously concluded she failed to make out a
prima facie case of Council 31’s prohibited intent. According to Smith, this conclusion
resulted from the court’s incorrect refusal to draw an inference of prohibited intent
from the temporal proximity of her August 11 meeting with Sarver and her August 26
termination. Although the district court’s conclusion on the prima facie element is not
entirely clear from its opinion, we need not resolve this dispute because Council 31 has
come forward with a legitimate explanation for Smith’s termination. See Lindemann,
141 F.3d at 296 (“[I]t is unnecessary for this Court to determine whether a plaintiff has
established a prima facie case where a defendant has advanced a legitimate,
No. 06-4176                                                                          Page 5

nondiscriminatory reason for its action.”). Accordingly, we will proceed under the
assumption that Smith has proven her prima facie case, and turn to the question of
whether she has provided sufficient evidence that Council 31’s proffered reason for her
termination was pretextual.

    Smith has provided no evidence to dispute Council 31’s claim that she was
insubordinate. Indeed, Smith concedes she was instructed multiple times to attend the
closed-door meeting but nonetheless refused, and further admits she was warned her
refusal would result in discipline. Smith insists her insubordination is irrelevant
because Sarver intended to fire her all along.1 We disagree; having brought about
termination through her own insubordination, Smith cannot recover on the theory that
her superiors might have fired her for a prohibited reason had she given them the
chance. Moreover, Smith’s evidence regarding Sarver’s intent is irrelevant because the
order to terminate came from Bayer, not Sarver. Smith admits she never discussed her
ongoing treatment with Bayer, and she provides no evidence that he was aware of the
future costs she might incur. Absent such knowledge, Bayer cannot have acted with
the prohibited intent Smith suggests. Accordingly, Smith has failed to present a
genuine dispute as to the legitimacy of Council 31’s proffered reason for her
termination. The district court’s grant of summary judgment is thus AFFIRMED.




1
  Smith also makes some mention of Council 31’s failure to follow union contract policies for
escalating discipline prior to termination. We need not consider this argument because Smith
concedes her position was not covered by the union contract.
