                            In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-1460

K ITSY J. A MRHEIN ,
                                               Plaintiff-Appellant,
                                v.

H EALTH C ARE S ERVICE C ORPORATION,

                                              Defendant-Appellee.


            Appeal from the United States District Court
                for the Central District of Illinois.
               No. 05 C 3015—Jeanne E. Scott, Judge.



   A RGUED N OVEMBER 26, 2007—D ECIDED O CTOBER 20, 2008




  Before B AUER, R OVNER AND W OOD , Circuit Judges.
  B AUER, Circuit Judge. After being disciplined and ulti-
mately terminated, Kitsy Amrhein sued her former em-
ployer, Health Care Service Corporation (“HCSC”),
alleging that she had been discriminated against on
the basis of her gender and that she was the victim of
unlawful retaliation. The district court granted summary
judgment for the defendant. Amrhein appeals, and for
the reasons stated below, we affirm.
2                                            No. 07-1460

                  I. BACKGROUND
  Amrhein worked for HCSC from May 28, 1985 until her
termination on March 1, 2004. In 1997, she was promoted
to the position of group specialist in HCSC’s Springfield
Full Service Unit; she held this position until she was
discharged. Group specialists at HCSC provide services
to employer groups that have insurance through Blue
Cross/Blue Shield. At the time that Amrhein was termi-
nated, there were eight group specialists in her unit,
including herself, six other women, and Scott Redpath.
Redpath and Amrhein were promoted to group specialist
at the same time. Amrhein was the primary contact for
United Airlines and the secondary contact for Georgia
Pacific; Redpath was the primary contact for Georgia
Pacific and the secondary contact for United Airlines.
Theresa Benner worked as the supervisor for Amrhein’s
unit; Benner reported to Jane Marquedant, who in turn
reported to Karen Woods.
  Beginning at the end of 2002, Amrhein formed an
opinion that she and Redpath were not treated equally at
HCSC. She felt that Redpath was assigned significantly
less work than she was and that Redpath did not pull
his weight with either the United Airlines or Georgia
Pacific accounts. Amrhein let this opinion be known to
several HCSC employees, including Benner.
  In a performance review drafted by Benner and dated
February 10, 2003, Amrhein received favorable marks
for all competency areas, but only met the “targeted
standard” with respect to contributions to team and
technical quality. She received a 2% salary increase.
No. 07-1460                                             3

Amrhein did not think this review or the salary increase
reflected the quality of her work, and she felt that she
was being penalized for complaining about Redpath.
  Over the following year, Amrhein was disciplined by
HCSC on two separate occasions. Employees of HCSC
were required to follow the HCSC Code of Conduct and
Business Ethics Code. The Code forbade the misuse of
corporate assets, which had been interpreted to include
the overuse of company telephones for personal pur-
poses. The Code also prohibited the disclosure of propri-
etary business information. HCSC monitored the quality
of the group specialist’s work with quality coordinators.
The coordinators would randomly tape-record telephone
conversations of group specialists and listen for viola-
tions of the Code.
  During a taped phone conversation with a representa-
tive from a competing company in January 2003, Amrhein
disclosed information that Karen Woods believed to be
“proprietary business information.” Amrhein divulged
the amount of the fee HCSC charged its customers for a
certain service, and further suggested that HCSC had not
trained its employees on compliance with the Health
Insurance Portability and Accountability Act. Amrhein
was suspended without pay for five days and placed on
probation. Amrhein claimed that there was nothing
improper about the conversation, and that the real reason
HCSC suspended her was that she had complained
about her 2003 performance review.
  A warning issued by Benner to Amrhein on December 2,
2003, indicated that her use of the telephone for personal
4                                              No. 07-1460

use was excessive; Amrhein did not believe her personal
telephone use was particularly excessive and argued to
Benner that Redpath’s use exceeded her own, and that
Redpath, who did not receive a warning, should have.
  On December 8, 2003, Marquedant, Benner, and Amrhein
met to discuss the telephone use and Amrhein’s frustra-
tion regarding the warning. During that meeting,
Amrhein stated that she felt she was being treated sig-
nificantly less fairly than Redpath by Benner and HCSC.
She also suggested that she might seek an EEOC mediator,
or “file a complaint” in order to obtain one.
  On December 12, 2003, Amrhein sent an e-mail
to Marquedant regarding her treatment at HCSC. In the
e-mail she discussed how her behavior and work
product far exceeded that of Redpath, but that Redpath
received preferential treatment. She stated that she felt
that this amounted to “sexual discrimination.” Also in
the e-mail, Amrhein detailed a series of personal tragedies
that she had experienced between June 2003 and Decem-
ber 2003. Her father passed away on June 9, 2003; her
brother-in-law died unexpectedly on September 12, 2003,
and her niece was hospitalized in November after ex-
pressing suicidal tendencies. Marquedant notified Woods
and human resources representative Yvonna Cosey
of Amrhein’s concerns. Cosey investigated Amrhein’s
various complaints.
  On January 14, 2004, Amrhein met with Cosey and
Marquedant. Cosey informed Amrhein that she found
no evidence of gender discrimination. Amrhein then
expressed her intent to file a complaint with the EEOC; the
No. 07-1460                                            5

following day, Marquedant notified Benner and Woods
of Amrhein’s intent to file an EEOC claim.
  On February 4, 2004, Woods sent an e-mail to her super-
visor asking for help in addressing their “options” with
Amrhein. Woods noted that Amrhein was a “huge chal-
lenge” and was “disruptive to the unit” and “costing us
a huge amount of time and resources.”
  On February 18, 2004, Marquedant met with several
group specialists, including Amrhein, to discuss new
policies regarding the scheduling of personal time off or
“PTO.” During the meeting, Amrhein complained about
the scheduling of her PTO, to which Marquedant re-
sponded that “if you wanted to schedule all of your days,
you should not have made the complaint,” and referenced
Amrhein’s “opening up a can of worms.” The argument
escalated quickly; witnesses characterized Amrhein’s
behavior in the meeting as argumentative.
  Also in 2004, Marquedant, while monitoring Amrhein’s
calls for personal use, overheard Amrhein make what
she judged to be an inappropriate disclosure. The call,
which took place on January 14, 2004, was between
Amrhein and Cathy Perricone, an employee of United
Airlines. Amrhein suggested in that conversation that
staff reallocation at HCSC had been due to the need for
HCSC to meet “performance guarantees,” which were
contractual performance expectations that HCSC had to
meet to avoid financial penalties. Marquedant notified
Benner and Woods of her opinion that this disclosure
violated the Code’s confidentiality policy. After dis-
cussing various options, Cosey, Woods and Marquedant
6                                               No. 07-1460

made the decision to terminate Amrhein. Amrhein was
notified on March 1, 2004 that she was terminated for
(1) the Perricone conversation; and (2) insubordination
at the February 18, 2004 meeting.
  On January 25, 2005, Amrhein filed a two-count com-
plaint against HCSC, alleging that HCSC had discrimi-
nated against her based on her gender in violation of
42 U.S.C. § 2000e-2(a) and had terminated her in retalia-
tion for her efforts to oppose gender discrimination in
violation of 42 U.S.C. § 2000e-3. On February 9, 2007, the
district court granted HCSC’s motion for summary judg-
ment. This timely appeal followed.


                      II. ANALYSIS
  On appeal, Amrhein argues that the district court erred
in finding that she failed to establish a prima facie case
of retaliation. She did not appeal the grant of summary
judgment on the gender discrimination claim. We
review a district court’s grant of summary judgment
de novo. Darst v. Interstate Brands Corp., 512 F.3d 903, 907
(7th Cir. 2008). Summary judgment is appropriate when
there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). We view the record in the light
most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor. Darst, 512
F.3d at 907.
  Under Title VII, “[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his
No. 07-1460                                                  7

employees . . . because [the employee] has opposed any
practice made an unlawful employment practice by this
subchapter, or . . . has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
Amrhein could elect to prove her retaliation claim by
using either the direct method or the indirect, bur-
den-shifting method. Gates v. Caterpillar, Inc., 513 F.3d 680,
686 (7th Cir. 2008).
  Under the direct method, she must present evidence
of (1) a statutorily protected activity; (2) a materially
adverse action taken by the employer; and (3) a causal
connection between the two. Id.; Humphries v. CBOCS
West, Inc., 474 F.3d 387, 404 (7th Cir. 2007). Amrhein can
rely on two types of evidence to show that her protected
activity motivated HCSC’s action: “direct evidence” or
“circumstantial evidence.” Lewis v. School Dist. # 70, 523
F.3d 730, 742 (7th Cir. 2008). Direct evidence is evidence
“which (if believed by the trier of fact) will prove
the fact in question without reliance upon inference or
presumption,” which typically involves an admission by
the decision maker regarding the retaliatory intent. Id.
(citation omitted). Because direct evidence of discrim-
inatory intent is rare, a plaintiff can also offer circum-
stantial evidence, which “allows the trier of fact to infer
intentional discrimination by the decisionmaker,” typically
through a longer chain of inferences. Id. (citation omitted
and emphasis in original).
  Amrheim did not produce direct evidence of retaliation,
relying instead on circumstantial evidence. The primary
8                                               No. 07-1460

circumstantial evidence presented was the proximity
between her stated intention to file an EEOC claim and her
termination. Suspicious timing may be enough to meet
the minimal burden of establishing a prima facie case,
but suspicious timing alone is generally insufficient to
establish a genuine issue of material fact for trial. Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 506-07 (7th Cir. 2004);
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th
Cir. 2004). Amrhein argues that the relevant time period
is the six weeks between the January 14, 2004 meeting
with Cosey and Marquedant and her termination on
March 1, 2004. At that meeting, Amrhein stated that she
intended to file a complaint with the EEOC, but Amrhein
had voiced a similar intention at the December 3, 2003
meeting, almost three months before her termination.
That period of time between the threat and the firing is
not enough, on its own, to create a jury issue on the
inference of retaliation. See Sauzek v. Exxon Coal USA, Inc.,
202 F.3d 913, 919 (7th Cir. 2000).
  Amrhein argues that she presented more than just the
suspicious timing, including (1) a “pattern” that developed
among her supervisors of “act[ing] out against her when
she complained about favorable treatment extended to
Redpath”; (2) that her supervisors were “upset” about her
intention to go to the EEOC, as evidenced by, inter alia, the
e-mail from Woods; (3) that the Perricone conversation
was an “excuse” to fire her; (4) that Marquedant exagger-
ated the extent of Amrhein’s insubordination during the
encounter on February 18, 2004; and (5) that HCSC did not
follow its standard disciplinary processes in firing her.
Amrhein did not raise this last point before the district
No. 07-1460                                                 9

court in opposition to summary judgment, so we will not
consider it. Domka v. Portage County, Wis., 523 F.3d 776, 783
(7th Cir. 2008) (citing Liberles v. County of Cook, 709 F.2d
1122, 1126 (7th Cir. 1983)). The remaining evidence
falls short of establishing a prima facie case. The evidence
that HCSC employees were “upset” at Amrhein for
raising the EEOC claim is scant, and Amrhein fails to
indicate how any other actions by HCSC employees
reflected an intent to retaliate against her because she
raised the EEOC complaint. In the course of the three
months, Amrhein had several issues with her employer
beyond the complaint, including the Perricone call and
the insubordination. The evidence supporting the infer-
ence that these actions, along with the other violation
of the HCSC Code and the discipline for excessive tele-
phone use, led to Amrhein’s termination far outweighs
any inference that Amrhein’s stated intention to file an
EEOC claim did.
  Taken as a whole, the circumstantial evidence is far
too speculative to amount to a triable issue.
  Under the indirect method, an employee must establish
a prima facie case by proving that she (1) engaged in a
statutorily protected activity; (2) met her employer’s
legitimate expectations; (3) suffered an adverse employ-
ment action; and (4) was treated less favorably than
similarly situated employees who did not engage in
statutorily protected activity. Nichols v. Southern Illinois
University-Edwardsville, 510 F.3d 772, 784-85 (7th Cir. 2007).
Once the prima facie case is established, the burden
shifts to the employer to produce a non-discriminatory
10                                              No. 07-1460

reason for its action; if the employer meets this burden,
the burden shifts back to the employee to demonstrate
that the proffered reason is pretextual. Id. at 785.
  Like the district court, we focus our attention on the
“similarly situated” prong. A similarly situated employee
need not be “identical,” but the plaintiff must show that
the other employee “dealt with the same supervisor, [was]
subject to the same standards, and had engaged
in similar conduct without such differentiating or mit-
igating circumstances as would distinguish [his] conduct
or the employer’s treatment of [him].” Gates v. Caterpillar,
Inc., 513 F.3d 680, 690 (7th Cir. 2008); Crawford v. Ind.
Harbor Belt RR. Co., 461 F.3d 844, 846 (7th Cir. 2006) (hold-
ing that a similarly situated employee is one who is
“comparable to plaintiff in all material respects”).
  The district court found that Amrhein did not establish
a prima facie case because she did not identify any simi-
larly situated employees that were not terminated. We
agree. Amrhein presents Woods, Hall, and Redpath, but
all of these employees differ from Amrhein in
material respects, particularly in the disparity in
their disciplinary history.
  Amrhein argues that Woods disclosed confidential
information to Perricone in a manner similar to Amrheim’s
disclosure and did not face similar punishment. Woods,
a senior manager at HCSC, was three levels of manage-
ment above Amrhein; Amrhein and Woods did not
report to the same supervisor. Moreover, the offending
conduct alleged by Amrhein, even if true, indicates that
No. 07-1460                                               11

Woods engaged in a single violative act, rather than the
multiple incidents in Amrhein’s employment history.
  Next, Amrhein argues that Hall engaged in disruptive
conduct on par with Amrhein’s spat with Marquedant and
received only a reprimand. Hall, a group specialist like
Amrhein, dealt with the same supervisors and was
subject to the same standards. There was no evidence
showing that Hall had other conduct violations. Without
a similar disciplinary history, Hall cannot be considered
“similarly situated.”
  Which leaves us with Redpath, another group specialist,
who had been previously disciplined for performance
issues. Specifically, he had received a written warning
and verbal counseling for excessive amounts of personal
telephone calls. Amrhein also notes that he was alleged
to have abused HCSC’s policies regarding credit cards
by failing to pay a bill on time. She argues that this second
incident should be treated as another Code violation,
which makes him comparable to her. That is not a
logical conclusion or analogy.
  So, Amrhein’s prima facie case under the indirect
method must also fail. But even if we were to assume that
Amrhein presented a prima facie case of retaliation
under either method, Amrhein failed to rebut HCSC’s
legitimate proffered reason for the termination. See
McCoy v. Maytag Corp., 495 F.3d 515, 522 (7th Cir. 2007).
Amrheim stated that it fired Amrhein because she dis-
closed proprietary information in the Perricone conversa-
tion—a violation of the HCSC Code—and the insubor-
dination with Marquedant. There is ample evidence in
12                                            No. 07-1460

the record that these events occurred, and they qualify
as legitimate, nondiscriminatory reasons to discharge
Amrhein. Amrhein fails to discredit these reasons as
pretext.


                  III. CONCLUSION
  Accordingly, we A FFIRM the district court’s grant of
summary judgment.




  R OVNER, Circuit Judge, dissenting. This is a very close
case but one key piece of evidence, taken in context,
demonstrates that a retaliatory motive may have played
a part in Amrhein’s termination. That evidence is
Marquedant’s statement to Amrhein that “if [she] wanted
to choose all of [her] days [off], then [she] should not
have complained in the first place,” and that Amrhein
had “open[ed] up a can of worms.” The timing of those
statements, uttered by a decision-maker in the termina-
tion, a few weeks after an internal investigation into
Amrhein’s charges of discrimination and her threats to
go to the EEOC, a few weeks after another decision-maker
complained that Amrhein was a “huge challenge” and
costing the company time and resources, and a scant
twelve days before the termination, imply a retaliatory
No. 07-1460                                             13

intent. Because of that evidence, I believe we should treat
this as a mixed motive case, shifting the burden to the
employer to demonstrate that it still would have termi-
nated Amrhein for reasons other than retaliation.
Because there is a genuine factual dispute regarding
whether HCSC would have terminated Amrhein absent
any unlawful motive, summary judgment should be
vacated and the case should be remanded for trial.
  Although timing helps Amrhein make her case, I agree
with the majority that timing alone might not be enough
to take the case to trial. It may be helpful to briefly
recap events at the end of 2003 and the beginning of 2004,
as Amrhein’s troubles at work were escalating. In early
December 2003, Benner issued Amrhein a warning about
her personal telephone use. Amrhein complained that
Redpath’s personal telephone usage exceeded her own
but he had not been similarly warned. Amrhein indicated
she was considering filing a complaint with the EEOC. On
December 12, 2003, Amrhein sent an e-mail to Marquedant
complaining that Redpath was receiving preferential
treatment even though he was far less productive than
she, a difference she attributed to sex discrimination.
Marquedant forwarded the e-mail to Cosey, a human
resources representative, and Cosey conducted an
internal investigation. On January 14, 2004, Cosey and
Marquedant met with Amrhein to inform her that Cosey
found no evidence of gender discrimination. They also
presented her with a revised warning about her phone
usage. Amrhein reiterated her intent to file a complaint
with the EEOC. Marquedant conveyed this threat to
Benner and Woods the next day. In late January, when
14                                               No. 07-1460

Amrhein learned she was not getting a pay raise, she
reminded Marquedant of her intent to pursue a sex
discrimination claim with the EEOC.
  On February 4, 2004, Woods asked her supervisor for
help in addressing their “options” with Amrhein because
she was a “huge challenge” and was “costing [the com-
pany] a huge amount of time and resources.” Only two
weeks later, on February 18, 2004, Marquedant met with
Amrhein and other group specialists to discuss the new
policy for scheduling paid time off. When Amrhein
questioned the policy because it did not allow her to take
off all of the days she had accumulated, Marquedant, one
of the decision-makers in the termination, told Amrhein
that “if I wanted to choose all of my days, then I should
not have complained in the first place[.]” Amrhein Dep. at
256. Marquedant, in the same meeting, “then went on
to make reference to [Amrhein] ‘opening up a can of
worms.’ ” Amrhein Affidavit at ¶ 18. The record contains
conflicting accounts of the tenor of this discussion, and on
summary judgment, we must construe those accounts in
Amrhein’s favor. Amrhein (and others) denied that
Amrhein raised her voice or was argumentative or
engaged in insubordination.
  Nonetheless, Amrhein was terminated approximately
twelve days later for insubordination and for other infrac-
tions that the majority details. Two of the three decision-
makers in the termination had recently made comments
that could be construed as circumstantial evidence of
retaliatory intent. See Tubergen v. St. Vincent Hosp. & Health
Care Ctr., Inc., 517 F.3d 470, 473-74 (7th Cir. 2008) (under
No. 07-1460                                              15

the direct proof method, direct or circumstantial evidence
that the employer’s decision to take the adverse employ-
ment action was motivated by an impermissible
purpose may suffice). Circumstantial evidence includes
suspicious timing or behavior. Tubergen, 517 F.3d at 473-74.
In my view, Marquedant’s statements at the February 18
meeting indicated that she was not happy about
Amrhein’s complaints about discrimination. Woods’
February 4th request for “options” to deal with Amrhein
and a charge that she was costing time and resources
came very soon after the company had expended time
and resources conducting an internal investigation into
Amrhein’s charge of sex discrimination. Construing these
circumstantial statements and events in Amrhein’s favor,
her employer appears to have been motivated at least
in part by retaliation for complaining about gender dis-
crimination. Moreover, the conflicting accounts of
Amrhein’s behavior at the February 18th meeting
suggest that Amrhein was not insubordinate and that
the charge of insubordination was a pretextual reason
for the termination. Stalter v. Wal-Mart Stores, Inc., 195
F.3d 285, 289 (7th Cir. 1999) (a plaintiff may demonstrate
pretext with evidence tending to prove that the em-
ployer’s proffered reasons are factually baseless, were not
the actual motivation for the discharge in question, or were
insufficient to motivate the discharge). True, Amrhein
had also violated certain company policies, but it is
unclear whether HCSC would have terminated Amrhein
for those violations alone. An employer may well have a
mixed motive, that is, more than one reason for firing
an employee, but if the termination would not have
16                                                  No. 07-1460

occurred but for the retaliatory intent of the employer,
then the termination is unlawful. Speedy v. Rexnord Corp.,
243 F.3d 397, 401-02 (7th Cir. 2001); McNutt v. Bd. of
Trustees of Univ. of Ill., 141 F.3d. 706, 707-09 (7th Cir. 1998).
   In a mixed motive case, an employer accused of retaliat-
ing against an employee for exercising her rights under
Title VII may avoid liability by proving by a preponder-
ance of the evidence that it would have made the same
employment decision even if it had not taken the plain-
tiff’s protected activity into account. Speedy, 243 F.3d at
401-02; Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 893-94
(7th Cir. 1996) (in the face of direct evidence of retalia-
tion, the employer must ultimately establish, by a prepon-
derance of the evidence, that it would have taken same
action even if a desire to retaliate in no way tainted its
decision making). Summary judgment will rarely be
granted in a mixed motive case once the plaintiff has
presented direct (including circumstantial) evidence
that a forbidden factor contributed to the employer’s
decision to take an adverse action against the employee.
Frobose v. Am. Sav. & Loan Ass’n of Danville, 152 F.3d 602,
615 n.12 (7th Cir. 1998). See also Venters v. City of Delphi, 123
F.3d 956, 973 (7th Cir. 1997) (employee can prevail
under Title VII so long as an illicit criterion played a
motivating role in her discharge, even if another,
legitimate criterion also played a role; once employee
has presented direct evidence that a forbidden factor
contributed to the termination, generally a trial will be
required to determine whether the employer would have
No. 07-1460                                                17

taken the same action in the absence of that factor).1 Unless
the employer has presented undisputed evidence that it
would have taken the same action in the absence of any
retaliatory intent, summary judgment is inappropriate.
Because HCSC has not produced that evidence here,
because the claim of insubordination may be pretextual,
and because the true motive for the discharge is in
dispute, summary judgment should not have been
granted here. For these reasons, I respectfully dissent.




1
  Moreover, Amrhein’s inability to point out a comparable
employee, one who had a similar disciplinary record and who
was managed by the same supervisor, is not determinative in a
direct evidence/mixed motive case. Although evidence of a
comparable employee is considered helpful, it is not required.
Speedy, 243 F.3d at 402-03.



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