Stephanie A. Massey v. Blue Cross-Blue Shield of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3504
Stephanie A. Massey,
Plaintiff-Appellant,
v.
Blue Cross-Blue Shield of Illinois,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 189--David H. Coar, Judge.
Argued April 13, 2000--Decided September 6, 2000
Before Flaum, Chief Judge, and Harlington Wood, Jr.,
and Diane P. Wood, Circuit Judges.
Diane P. Wood, Circuit Judge. Stephanie Massey was
fired by Blue Cross-Blue Shield. Believing that
this was the result of racial discrimination in
violation of Title VII, 42 U.S.C. sec. 2000e et
seq., and 42 U.S.C. sec. 1981, she brought this
suit in federal court. A jury agreed with her,
but the district court judge granted Blue Cross’s
post-verdict motion for judgment as a matter of
law. Massey now appeals, and, for the reasons
stated below, we affirm.
Massey is an African-American woman who worked
for Blue Cross’s Direct Markets Division. For the
first few years of her employment there, she
answered customer complaints and inquiries both
over the telephone and in writing. From 1992 to
1994, she received positive evaluations: her
technical and research skills were "excellent,"
her writing had "improved a good deal," and she
was rated "superior" in most categories. The
evaluations were critical only of her
organizational skills and attendance.
Based on this performance record, in 1994
Massey was hired into Blue Cross’s special
Executive Inquiries Unit. That unit responded to
the more difficult complaints and inquiries
received by Blue Cross and was headed by Susan
Amico, a Caucasian woman. The unit also had two

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other employees who were already there: Carrie
Thomas, an African-American whose position was
equivalent to Massey’s, and Bessie Goree, another
African-American who held the position of
administrative assistant in the unit. At the same
time as she hired Massey, Amico also hired Karen
Garza, a Caucasian woman, for a job equivalent to
Massey’s.
The Unit was situated in a room with two rows
of three desks. Amico arranged the seating of the
Unit such that all of the African-American
employees (Thomas, Goree, and Massey) were in one
row. Amico placed herself and Garza in the other
row, with the only empty desk positioned between
the two.
Amico’s evaluations of Massey went from good to
bad rather quickly. By 1996, Amico claimed that
Massey’s writing was "below average," her errors
were numerous, and that her other skills were
merely "satisfactory." This led Amico to put
Massey on a 60-day probation period, at the end
of which Amico fired her.
Massey sued Blue Cross in March of 1996,
alleging discrimination and retaliation based on
her race in violation of Title VII and sec. 1981.
The court granted Blue Cross’s summary judgment
motion as to the retaliation charge, but it
allowed Massey’s discrimination charge to go
forward. At trial, Massey introduced evidence
that her work had previously been commended, as
well as evidence that her work in the Executive
Inquiries Unit was not poor (at least not in
comparison to the work of her peers). She
testified that Amico had called her "stupid," and
had required her work to be rewritten, even when
there was nothing wrong with it. In fact,
Massey’s work was redone even when she copied
work that had already been deemed acceptable.
Massey argued that Amico’s negative evaluations
were not based on her performance, but on Amico’s
racial stereotypes. Massey noted that Garza, a
Caucasian woman, was given more assistance by
Amico than she was, and that Amico had tried to
separate the races through seating assignments.
Blue Cross defended its decision by arguing
that Massey was fired due to poor writing,
investigatory, and follow-up skills. Blue Cross
claimed that the other African-American employees
in the unit were not subjected to discrimination,
and that the seating assignment could not have
separated the races because the rows of seats
were too close to allow for any meaningful
separation.
The jury believed Massey, returning a verdict
in her favor on February 10, 1999. Blue Cross

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filed a Rule 50 motion, and the district court
granted it, entering a judgment as a matter of
law on August 24, 1999.
We review a district court’s grant of judgment
as a matter of law de novo. See Futrell v. J.I.
Case, 38 F.3d 342, 346 (7th Cir. 1994).
Especially after a jury has evaluated a case, we
bear in mind that the question is not whether the
jury believed the right people, but only whether
it was presented with a legally sufficient amount
of evidence from which it could reasonably derive
its verdict. See id. But there must have been
more than a "mere scintilla" of evidence to
support the verdict. Id. When examining the
record, we look at the totality of the evidence,
see Sheehan v. Donlen Corp., 173 F.3d 1039, 1043
(7th Cir. 1999), and we view that evidence and
the inferences which may be taken from it in the
light most favorable to the party against whom
the judgment was granted. See Cygnar v. City of
Chicago, 865 F.2d 827, 834 (7th Cir. 1989); Tice
v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th
Cir. 1985). It is worth bearing in mind, however,
that this is fundamentally the same standard that
we use in reviewing a decision on summary
judgment, with the important difference that we
now know exactly what evidence was put before the
jury. If, reviewing that evidence in the proper
light, the nonmoving party did not introduce
enough to support her claim, then judgment as a
matter of law is correct.
Overturning a jury verdict is not something
that we do lightly. See Sheehan, 173 F.3d at
1043. According to our civil justice system, as
enshrined in the Seventh Amendment to the
Constitution, the jury is the body best equipped
to judge the facts, weigh the evidence, determine
credibility, and use its common sense to arrive
at a reasoned decision. See id. at 1046. As a
reviewing court, we must be "particularly careful
. . . to avoid supplanting [our] view of the
credibility or the weight of the evidence for
that . . . of the jury." Id. at 1047 (internal
citations omitted). Here, even taking that
generous standard of review into account, we
agree with the district court that this case
founders for lack of evidence. The facts that, in
Massey’s view, demonstrate racial discrimination,
cannot bear the weight she asks of them.
Blue Cross argues that Massey’s discharge was
attributable to her poor written communication
skills, investigatory ability, and follow-through
skills. These are, of course, legitimate, non-
discriminatory reasons for the discharge. At the
pretrial stage (especially in a summary judgment
context), once Blue Cross proffered this reason,
it became Massey’s burden to show that the reason

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was pretextual. See Yarbrough v. Tower
Oldsmobile, Inc., 789 F.2d 508, 511 (7th Cir.
1986). She could do so by showing that Blue
Cross’s motive was more likely a discriminatory
one, or by demonstrating that its proffered
reason was not worthy of credence. See id.
But this case is not about summary judgment,
and thus we need not tarry on the to’s and fro’s
of the indirect proof methodology. At the trial,
as we have explained before, the burden-shifting
process came to an end, and the only question was
whether Massey presented enough evidence to allow
a rational jury to find that she was the victim
of discrimination. See Diettrich v. Northwest
Airlines, Inc., 168 F.3d 961, 965 (7th Cir.
1999); Gehring v. Case Corp., 43 F.3d 340, 343
(7th Cir. 1994). The Supreme Court’s recent
decision in Reeves v. Sanderson Plumbing
Products, Inc., 120 S. Ct. 2097 (2000), makes it
clear that she could do this either by convincing
the jury that Blue Cross’s claim of firing her
for poor writing, investigatory skills, and
follow-through was actually a pretext for
discrimination, id. at 2108, or by other evidence
from which it could find intentional
discrimination. Id. at 2108-09 (also emphasizing
that the trier of fact is not required to find
discrimination if it rejects the defendant’s
explanation).
Massey first introduced evidence from which the
jury could have inferred that Blue Cross’s
allegations about her poor performance were not
worthy of belief, because her performance was not
that bad, at least in relation to her co-workers.
Massey pointed to appraisals by previous
supervisors that proclaimed that Massey had
"excellent technical skills . . . [and] research
skills," that her writing had improved over time,
and that she performed most of her tasks at a
"superior" level. From 1992 to 1994, the
appraisals criticized only her attendance and
some organizational skills. But earlier
performance evaluations that relate to less
demanding jobs are of little value in assessing
an employee’s present performance. The only
evidence about her performance in the Executive
Inquiries Unit came from Amico, who said that
Massey performed poorly, because her writing and
investigatory skills were poor. Blue Cross also
pointed out that the job in the Executive
Inquiries Unit dealt with more difficult cases
than those on which Massey had worked previously.
Massey also presented examples of her own
written work, which the jury may have seen as
undercutting Blue Cross’s stated reason for
firing her. While corrections were noted on many
of Massey’s letters and other work product, these

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corrections were often not matters of incorrect
grammar, spelling, or substance. Many of them
simply suggested that those reviewing Massey’s
work had different writing styles with which they
wanted her to conform. But the question for the
court was not whether Amico was being too picky
about Massey’s writing style; it was whether
Amico genuinely believed that Massey was not
producing the kind of work Blue Cross wanted.
The jury also heard Amico’s admission that
other employees in Massey’s Unit made mistakes,
and it knew that Amico could not explain why she
had evidently criticized Massey more than others.
Amico’s own evaluations of Massey’s work
contained numerous spelling, grammatical, and
punctuation errors. Once again, however, even if
Amico was not an A+ writer, it is hard to see why
insisting on good writing from her subordinates
amounted to racial discrimination, intentional or
otherwise. It is always possible, of course, that
the jury might have disbelieved everything Amico
said, but we routinely deny summary judgments
based on that kind of hope, and consistency
requires us also to reject that possibility as a
way of saving the jury’s verdict.
Massey also presented more immediate evidence
that Blue Cross’s actual reason for firing her
was discriminatory. After she was fired, she was
replaced by a Caucasian employee. Garza, a
Caucasian woman in the same position with the
same seniority, received better treatment than
Massey, in that Amico gave Garza help whenever
she needed it but did not provide the same
assistance to Massey. Massey presented evidence
that Amico partitioned the room into a African-
American and a Caucasian side by seating the
African-American employees on one side of the
aisle, and the Caucasian employees on the other.
Massey also testified that Amico (her supervisor
and the one responsible for her firing, and thus
not a person whose so-called "stray remarks" were
immaterial) called her "stupid," despite her
previous work record and advanced degree.
The district court felt that neither the
seating nor the name-calling could support a
claim of racial discrimination. It was
particularly troubled by the "seating
arrangement" evidence. Because the two aisles of
the room were very close together, the court
observed that placing African-Americans on one
side and Caucasians on the other could not
possibly indicate racial animus. We agree that
the seating proves nothing: in a room with only
six desks, it is literally impossible to arrange
three African-American employees and two
Caucasian employees in the "neutral" way Massey
thinks was required. Last, one rude comment from
the supervisor that a person is "stupid," while

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certainly not to be commended, does not amount to
evidence of racial discrimination, even after
Reeves.
In sum we find that the district court
correctly ruled that the evidence Massey
presented at trial did not justify submitting the
case to the jury, and therefore it was proper to
grant Blue Cross’s renewed motion for judgment as
a matter of law. Compare Denisi v. Dominick’s
Finer Foods, Inc., 99 F.3d 860 (7th Cir. 1996)
(finding summary judgment proper where the
plaintiff submitted only his own testimony in an
attempt to combat documented evidence of his poor
performance); McCalpine v. Foertsch, 870 F.2d 409
(7th Cir. 1989) (finding judgment as a matter of
law proper where the plaintiff had no evidence to
combat the employer’s proof that the supervisors
charged with discrimination were simply not an
integral part of the hiring process); Christensen
v. Equitable Life Assurance Society of the United
States, 767 F.2d 340 (7th Cir. 1985) (finding
judgment as a matter of law proper where the
plaintiff’s only evidence of pretext was a lawful
program instituted by the employer).
We therefore AFFIRM the judgment as a matter of
law in favor of Blue Cross-Blue Shield.

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