Joseph P. O’leary v. Accretive Health, Inc.

The Honorable Lynn S. Adelman, of the Eastern District å
of Wisconsin, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1418
JOSEPH P. O’LEARY,
Plaintiff-Appellant,
v.
ACCRETIVE HEALTH, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 1428—Suzanne B. Conlon, Judge.
ARGUED OCTOBER 19, 2010—DECIDED SEPTEMBER 21, 2011
Before CUDAHY and ROVNER, Circuit Judges, and
ADELMAN, District Judge.å
ROVNER, Circuit Judge. After he was terminated from
his position as a senior vice-president for Accretive
Health, Inc. (“Accretive”), Joseph P. O’Leary sued the
company contending that he was fired in retaliation for

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2 No. 10-1418
opposing what he believed to be sexually and racially
discriminatory conduct by one of Accretive’s mid-level
supervisors. Accretive contended that it fired O’Leary
for inadequate work performance. The district court
granted summary judgment to Accretive, concluding
that O’Leary had not engaged in statutorily protected
conduct by reporting two incidents of inappropriate
behavior, and that in any event he had not established
that Accretive’s stated nondiscriminatory reasons for
firing him were pretextual. O’Leary v. Accretive Health, Inc.,
No. 09 C 1428, 2010 WL 234869 (N.D. Ill. Jan. 19, 2010).
We affirm.
I.
Accretive is a Chicago-based consulting firm that pro-
vides billing, collections, and other revenue-cycle serv-
ices to hospitals around the country. O’Leary joined
Accretive as a vice-president in February 2005, when
the company was less than two years old. O’Leary was
assigned to oversee revenue-cycle operations at four
Michigan hospitals. He initially reported to executive vice-
president Etienne Deffarges, and then later directly
to CEO Mary Tolan. When he joined Accretive, O’Leary
had little or no experience with the revenue-cycle process.
O’Leary received a positive review at the end of 2005,
but Accretive avers that as 2006 progressed, it developed
certain reservations regarding his performance which
accelerated in the closing months of the year. Tolan, to
whom O’Leary was now reporting directly, was compli-
mentary of O’Leary in many respects, but would later

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No. 10-1418 3
testify that she was concerned about the revenue-cycle
performance at certain of the hospitals under his super-
vision, as well as O’Leary’s command of Accretive’s
operating model and pertinent data and his ability to
implement improvements. To some extent, these issues
were flagged in O’Leary’s 2006 mid-year review as
points that needed O’Leary’s attention. O’Leary other-
wise denies that any such criticisms were conveyed to
him. Accretive also avers that beginning in mid-2006, it
heard criticisms of O’Leary’s performance from the
chief financial officers at three of the hospitals for which
he was responsible. Construing the record favorably to
O’Leary, there is a dispute of fact as to whether two of
these CFOs actually made the remarks that Accretive
attributes to them. But what is undisputed is that in
November 2006, Accretive replaced O’Leary with his
predecessor at St. Mary’s hospital in Saginaw, Michigan.
Accretive represents that it made the change at the
request of St. Mary’s CFO, who had grown concerned
about the growth of the hospital’s accounts receivable
and bad debt. O’Leary denies that St. Mary’s requested
his replacement, but as we discuss in detail below, he
has presented no evidence calling into dispute Accretive’s
averment on this point. Deffarges would later testify
that he and Tolan viewed their client’s request to replace
O’Leary as a “vote of no confidence in O’Leary’s leader-
ship on the ground.” R. 44-2 at 29 (Deffarges Dep. 166).
Meanwhile, in October 2006, O’Leary had learned that
Rhonda Miller, the site director at one of the hospitals
under his supervision, had made sexually charged
remarks during a dinner that the director had hosted for

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4 No. 10-1418
four of her subordinates. Miller apparently had bragged
about having sex with a number of Accretive employees
as well as the CFO of her former employer. She had also
told a young male employee at the dinner that she pre-
ferred dating men his age because “they were more her
speed.” R. 44-6 at 28 (O’Leary Dep. 134). That man, Blake
Graves, later recounted the remarks to his supervisor,
George Tsokolas, who in turn reported them to his own
supervisor, O’Leary. Graves told Tsokolas that he did
not feel that Miller had sexually harassed him; he
would later say that he had mentioned Miller’s remarks
to Tsokolas as an amusing anecdote rather than as a
complaint. When Tsokolas repeated the story to O’Leary,
he told O’Leary that Graves did not feel harassed by
Miller’s conduct. (O’Leary disputes that Tsokolas told
him this, but ineffectively; O’Leary’s testimony at the
cited pages of his deposition do not purport to deny
this.) Indeed, Tsokolas did not believe that any addi-
tional action was required.
Although O’Leary by his own admission had no reason
to believe that Graves felt sexually harassed by Miller’s
remarks, R. 54-1 at 17 (O’Leary Dep. 138), and O’Leary
himself was agnostic on the question of whether Miller’s
remarks amounted to sexual harassment, R. 54-1 at 17,
18 (O’Leary Dep. 135, 138), he nonetheless thought it
prudent to report the incident to senior management. On
October 23, 2006, after first speaking with Deffarges,
O’Leary informed CEO Tolan that Miller “had made
comments in front of a staff person that she had had
sexual relations with four other employees at Accretive
Health” and that “she liked younger men.” R. 44-10 at 21-

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No. 10-1418 5
22 (Tolan Dep. 256-57). O’Leary wrote an email to Tolan
and Deffarges later that same day memorializing his
conversation with Tolan.
At Tolan’s direction, Accretive’s human resources
director looked into the matter. His investigation con-
cluded that although Miller “exercised very poor judg-
ment in sharing intimate details about her personal life,
especially with younger co-workers and direct re-
ports[,] . . . [her] behavior is not in violation of any
current Accretive Health policy or practice.” R. 44-7 at 9
(O’Leary Dep. Ex. 11 at 2). Miller was nonetheless repri-
manded and warned that another instance of inappro-
priate conduct could result in her termination.
When he reported Miller’s conduct at the dinner to
Tolan, O’Leary also mentioned that he believed Miller was
“riding . . . really hard” a subordinate employee by the
name of Seline Nichols, who is African American. R. 44-6
at 33 (O’Leary Dep. 142). Part of what prompted O’Leary
to express this concern was the harsh manner in which
Miller treated Nichols in one particular meeting in
which O’Leary had participated. Nothing that Miller
said during that meeting had racial overtones; and
O’Leary knew that Miller had a reputation of being a
“taskmaster” who “ruled with a bit of an iron fist” and
himself considered her to be “a bit of a bully.” R. 44-6
at 11, 16 (O’Leary Dep. 76, 106). But as we discuss
below, O’Leary had other reasons to believe that Miller’s
adverse treatment of Nichols was based on Nichols’
race, and O’Leary testified in his deposition that he
expressed his concern to Tolan as one about racial dis-

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6 No. 10-1418
crimination. O’Leary did not say anything in his follow-
up email to Tolan about this concern. He would later
characterize that omission as an oversight.
Shortly before the 2006 Christmas holiday, Tolan and
Deffarges made the decision to terminate O’Leary.
Deffarges would later testify that they believed that he
had never developed a constructive relationship with
the CFO at St. Mary’s hospital, had failed to deal effec-
tively with the revenue-cycle issues at St. Mary’s which
ultimately led the CFO at that hospital to request his
replacement, had not demonstrated leadership at a
second hospital, and had not improved on the already-
strong results at a third hospital. Tolan added that
O’Leary had never immersed himself in details of the
revenue-cycle business and, as a manager, did not
know who under his supervision was and was not per-
forming up to snuff, and lacked the ability to coach
his subordinates to achieve better results. O’Leary was
informed of the termination decision after January 1, 2007.
Following his termination, O’Leary sued Accretive,
contending that he was discharged in retaliation for
opposing acts of sex and race discrimination at the com-
pany, in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e-3(a), and section one
of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“section
1981”). He also asserted a claim under Illinois law for
a bonus that he had allegedly earned but not received
for 2006.
The district court granted summary judgment to
Accretive on O’Leary’s retaliation claims. 2010 WL 234869.

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No. 10-1418 7
There were other incidents of alleged discriminatory 1
conduct by Miller that O’Leary had brought to the attention
of the court, but the court found insufficient evidence
that O’Leary had reported them to Tolan or others at the
company. Id.
The court noted that in order to establish retaliation
in violation of either Title VII or section 1981, O’Leary
was first required to show that he engaged in activity
protected by those statutes, i.e., that he had complained
to Accretive of conduct that he reasonably and in
good faith believed to be unlawful discrimination. Id. at
*4 (citing Tate v. Exec. Mgmt. Servs., Inc., 546 F.3d 528, 532-
33 (7th Cir. 2008)). O’Leary’s report of Miller’s conduct
at the October 2006 dinner did not qualify as protected
activity, the court determined, because Miller’s behavior
on that one occasion, although unprofessional, con-
stituted an isolated incident that no one could reasonably
believe to be severe or hostile enough to constitute ac-
tionable sexual harassment. Id. Indeed, O’Leary knew
that Graves, who was present at the dinner and had
reported the incident to his supervisor, himself did not
feel sexually harassed. Id. Although O’Leary contended
that his report was not confined to the dinner, but also
included his concern that Miller was treating Nichols in
a racially discriminatory fashion, the court believed that
O’Leary provided “no evidentiary support” for his asser-
tion. Id. at *5. The record instead suggested that he
had only commented on Miller’s “harsh management
style.” Id. The court also concluded, alternatively, that1
O’Leary had not presented sufficient evidence to estab-

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8 No. 10-1418
lish a material dispute of fact as to whether Accretive
discharged him because he had reported Miller’s con-
duct. Although O’Leary was discharged less than two
months after he made the report, the court observed
that “[s]uspicious timing alone rarely satisfies the causa-
tion prong of a plaintiff’s burden on summary judg-
ment in a retaliation case.” Id. (citing Scaife v. Cook Cnty.,
446 F.3d 735, 742 (7th Cir. 2006)). Furthermore,
O’Leary’s performance had received a negative review
in June 2006, several months before he ever reported
Miller’s conduct. In addition, Accretive averred that it
had received complaints from multiple clients about
O’Leary, and although the fact and content of some
of these complaints were disputed by O’Leary, it was
uncontested that the CFO at St. Mary’s hospital had
requested O’Leary’s replacement. In light of this evi-
dence, the court found it undisputed that Accretive
had discharged O’Leary for legitimate, nondiscriminatory
reasons rather than because he had reported activity
that he believed to be sexually or racially discriminatory.
Id. at *5-6. The court went on to grant summary judg-
ment in favor of O’Leary’s claim of entitlement to a
bonus, but the court’s ruling as to that state-law claim
is unchallenged in this appeal.
II.
We review the district court’s decision to resolve the
case on summary judgment de novo. E.g., Gross v. PPG
Indus., Inc., 636 F.3d 884, 888 (7th Cir. 2011). “Summary
judgment is appropriate when there are no genuine

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No. 10-1418 9
issues of material fact and judgment as a matter of law
is warranted for the moving party.” Id. (citing Fed. R. Civ.
P. 56(a) and Anderson v. Liberty Lobby Inc., 477 U.S. 242,
255, 106 S. Ct. 2505, 2513-14 (1986)). In assessing whether
the record entitled Accretive to judgment as a matter
of law, we must examine the record in the light most
favorable to O’Leary, against whom summary judgment
was granted, Kenseth v. Dean Health Plan, Inc., 610 F.3d
452, 462 (7th Cir. 2010), resolving all evidentiary conflicts
in his favor and according him the benefit of all rea-
sonable inferences that may be drawn from the record,
McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir.
2010). Only if no reasonable trier of fact could find in
O’Leary’s favor may we affirm the grant of summary
judgment to Accretive. “It is not for courts at sum-
mary judgment to weigh evidence or determine the
credibility of [a witness’s] testimony; we leave those
tasks to factfinders.” Berry v. Chicago Transit Auth., 618
F.3d 688, 691 (7th Cir. 2010).
O’Leary has asserted claims of retaliation under both
Title VII and section 1981. Title VII, of course, prohibits
both race and sex discrimination (among other forms)
in the employment context, whereas section 1981 pro-
hibits race discrimination in the making and enforcing
of contracts. See Kyles v. J.K. Guardian Security Servs., Inc.,
222 F.3d 289, 302-03 (7th Cir. 2000). Both statutes also
prohibit retaliation for opposing discriminatory practices
that the statutes proscribe—Title VII expressly, § 2000e-
3(a), and section 1981 by judicial interpretation, CBOCS
W., Inc. v. Humphries, 553 U.S. 442, 128 S. Ct. 1951 (2008).
“[U]nlawful retaliation occurs when an employer takes

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10 No. 10-1418
an adverse employment action against an employee
for opposing impermissible discrimination.” Rogers v. City
of Chicago, 320 F.3d 748, 753 (7th Cir. 2003). Retaliation
may be established by either the direct or indirect
method of proof. The direct method requires the plain-
tiff to show: (1) that he engaged in activity protected
by the statute; (2) that his employer took an adverse
employment action against him; and (3) that there is
a causal connection between the plaintiff’s protected
activity and the adverse employment action. E.g., Leitgen
v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 673 (7th
Cir. 2011). The causal nexus referenced by the third
element may be shown through direct evidence, which
would entail something akin to an admission by the
employer (“I’m firing you because you had the nerve to
accuse me of sex discrimination!”), see Rhodes v. Ill. Dep’t of
Transp., 359 F.3d 498, 504 (7th Cir. 2004), or through “a
‘convincing mosaic’ of circumstantial evidence” that
would permit the same inference without the employer’s
admission, id. (quoting Troupe v. May Dep’t Stores Co., 20
F.3d 734, 737 (7th Cir. 1994)). The indirect method of
proof employs the burden-shifting framework first articu-
lated in the Supreme Court’s decision in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
E.g., Whittaker v. N. Ill. Univ., 424 F.3d 640, 646-47 (7th
Cir. 2005).
Regardless of which method the plaintiff employs to
show retaliation, he must first demonstrate that he en-
gaged in activity that is protected by the statute. Specifi-
cally, he must show that he took some step in opposi-
tion to a form of discrimination that the statute prohib-

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No. 10-1418 11
its. The plaintiff need not show that the practice
he opposed was in fact a violation of the statute; he may
be mistaken in that regard and still claim the protection
of the statute. E.g., Pickett v. Sheridan Health Care Ctr., 610
F.3d 434, 441 (7th Cir. 2010) (citing Fine v. Ryan Int’l Air-
lines, 305 F.3d 746, 752 (7th Cir. 2002)). However, his
opposition must be based on a good-faith and reasonable
belief that he is opposing unlawful conduct. E.g., Hatmaker
v. Mem’l Med. Ctr., 619 F.3d 741, 747 (7th Cir. 2010), cert.
denied, 131 S. Ct. 1603 (2011). If he does not honestly
believe he is opposing a practice prohibited by the
statute, id. at 747-48, or if his belief is objectively unrea-
sonable, Lang v. Nw. Univ., 472 F.3d 493, 495 (7th Cir.
2006), then his opposition is not protected by the statute.
Accretive contends that O’Leary’s retaliation claims
fail at this preliminary step. O’Leary’s report and call
for investigation of Miller’s remarks at the dinner do
not constitute protected conduct, in Accretive’s view,
because Miller’s conduct on that single occasion could
not reasonably be understood to constitute sexual harass-
ment that would be actionable under Title VII. The com-
pany makes a similar argument vis-à-vis O’Leary’s ex-
pression of concern that Miller might also be engaging
in race discrimination. As Accretive reads the record,
O’Leary only complained (to Tolan) that Miller was
“riding” Nichols, based on one instance in which he
had observed Miller berate her. In its view, a complaint
that Miller was treating a subordinate harshly cannot
reasonably be construed as a complaint of race discrim-
ination simply because Miller is white and Nichols is
African American, particularly given Miller’s reputation

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12 No. 10-1418
(known to O’Leary) as a taskmaster. Further, if O’Leary’s
complaint was based on what he observed on a single
occasion, as Accretive asserts it was, then it could not
reasonably be understood to be a protected complaint
about racial harassment. And to the extent O’Leary avers
that he complained about more than a single incident,
the record, as Accretive understands it, does not support
him. Our own review of the record leads us to conclude
that Accretive is right as to O’Leary’s complaint insofar
as it concerned Miller’s remarks at the dinner, but
not insofar as it related to Miller’s treatment of Nichols.
When O’Leary expressed concern to Tolan, Deffarge,
and others about Miller’s conduct at the dinner, he could
not reasonably have believed that Miller’s behavior
constituted sexual harassment that was prohibited by
Title VII. O’Leary knew that Miller had boasted of her
sexual relationships with employees at Accretive and
elsewhere and had remarked to the twenty-something
Graves that men his age were more her speed. However,
conduct must be either severe or pervasive to constitute
actionable sexual harassment. E.g., Berry, 618 F.3d at 691.
Miller’s conduct plainly was neither: it involved a single
instance of sexually-charged remarks which, however
imprudent they may have been, were relatively tame.
The Supreme Court, in Clark Cnty. Sch. Dist. v. Breeden,
found that a brief chortle among colleagues over a
sexual remark made by a job applicant could not objec-
tively be thought of as sexual harassment proscribed
by Title VII, and for that reason the Court concluded
that a complaint about the incident did not constitute
protected opposition to discrimination. 532 U.S. 268, 271,

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No. 10-1418 13
121 S. Ct. 1508, 1510 (2001) (per curiam). The same is true
here. O’Leary had no reason to believe that Graves, who
first mentioned the incident, felt harassed by Miller’s
comments; in fact, Tsokolas had told him that Graves
did not feel harassed. Nor did O’Leary have reason to
believe that anyone else in attendance at the dinner
was bothered by Miller’s remarks either. Even if Graves
or someone else had expressed discomfort with the re-
marks, that would not be enough to establish that
Miller’s remarks by themselves established a hostile
work environment, for conduct must be both objectively
and subjectively offensive to be cognizable under Title VII.
E.g., Berry, 618 F.3d at 691. And although O’Leary points
to some evidence in the record suggesting that Miller
had engaged in similar behavior on other occasions,
which would make for a stronger contention that she
was running afoul of the statute, that evidence, to the
extent it was known to him at the time he took the
matter up the chain of command, neither triggered his
complaint nor was discussed with his superiors. So far as
the record reveals, O’Leary’s report focused on one inci-
dent of inappropriate behavior by Miller. No one could
reasonably think that Miller had violated Title VII
through her conduct at the dinner alone. See Mattson v.
Caterpillar, Inc., 359 F.3d 885, 889 (7th Cir. 2004) (finding
plaintiff’s sexual harassment charge not statutorily pro-
tected where based on one instance in which super-
visor’s breast brushed against his arm and another
incident in which supervisor reached around plaintiff
without touching him; no reasonable person could think
that this conduct constituted sexual harassment, and

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14 No. 10-1418
plaintiff himself did not believe that he had been sex-
ually harassed). Consequently, O’Leary, even assuming
that he was genuinely concerned about the possibility
that Miller had engaged in harassment, did not engage
in protected conduct when he reported the incident to
his superiors. His retaliation claim, to the extent it is
based on opposition to sex discrimination, therefore fails.
Whether O’Leary engaged in protected opposition to
race discrimination when he mentioned to Tolan his
concern that Miller was mistreating Nichols presents a
closer question. Accretive suggests at the outset that
O’Leary did not, in fact, say anything to Tolan about
Miller’s treatment of Nichols, given that Tolan did not
recall him mentioning it and O’Leary himself said
nothing about Nichols (or about race discrimination) in
the follow-up email he sent to Tolan and Deffarges after
he met with Tolan. The district court was of the same
view, observing that O’Leary had provided “no evidenti-
ary support” for the proposition that he had raised
this concern with Tolan. 2010 WL 234869, at *5. But
O’Leary testified unequivocally in his deposition that
he did discuss Miller’s treatment of Nichols with Tolan,
R. 54-1 at 19 (O’Leary Dep. 141-44), and that is enough
to establish a dispute of fact on this point. Payne v.
Pauley, 337 F.3d 767, 771-73 (7th Cir. 2003). Accretive’s
contention that O’Leary did not identify his concern
about Nichols as one of possible race discrimina-
tion also ignores his deposition testimony: O’Leary was
specifically asked whether he expressly mentioned
race discrimination to Tolan and he testified that he did.
R. 54-1 at 19 (O’Leary Dep. 144); see also id. (O’Leary
Dep. 142).

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No. 10-1418 15
Where things get a bit murky is in ascertaining
whether O’Leary was voicing a concern about race dis-
crimination based solely on having observed Miller
berate Nichols on one occasion. O’Leary’s concern that
Miller was “riding” Nichols evidently was based on that
one incident, and that by itself would not support a rea-
sonable basis to think that Miller was discriminating
against Nichols based on race in a way that Title VII or
section 1981 would recognize as actionable harassment.
Moreover, Miller had not berated Nichols using racially
charged language and her reputation as a tough boss
would militate against any inference that the episode
was attributable to any sort of animosity, race-based
or otherwise, against Nichols.
But a fair reading of O’Leary’s deposition suggests
that the concern about race discrimination he voiced to
Tolan was based on more than what he had seen on
one occasion. O’Leary noted in his deposition that he
had not seen Miller treat white employees in the same
manner he had seen her treat Nichols; that Miller had
complained to him about Nichols and two other black
employees; and that he had never heard anything
negative about the performance of these three employees
until Miller became their supervisor. Nichols ultimately
resigned from the company, and O’Leary testified that
based on his subsequent conversations with Nichols, he
believed that Miller had forced her out. (Nichols told
O’Leary that she had grown so frustrated with Miller’s
overbearing behavior that she asked Miller, “[W]hat
do you want me to do, quit?” To which Miller had re-
sponded, “I accept your resignation.” R. 54-1 at 10 (O’Leary

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16 No. 10-1418
After having laid out the various ways in which he believed 2
that Miller had mistreated her subordinates at Accretive,
including the circumstances that caused him concern that
Miller may have discriminated against Nichols on the basis
of her race, O’Leary was asked at his deposition whether, “other
than the conduct of Ms. Miller that [he had] described,” he
had ever reported any other complaints about Miller’s conduct
to Tolan or other senior Accretive officials. O’Leary answered,
“None other than what we’ve discussed.” Accretive Br. 26
(quoting O’Leary Dep. 158). Accretive reads O’Leary’s answer
as a concession that, insofar as he expressed a concern to his
superiors about the mistreatment of Nichols, his concern
was based solely on the one meeting at which O’Leary had
observed Miller berating Nichols and was framed as such.
Unfortunately, we cannot locate the relevant page from
O’Leary’s deposition in the record: rather than submitting
the entire deposition, the parties have included only excerpts
that do not include this particular page. So we lack the im-
mediate context surrounding the question and answer that
would permit an independent assessment of what O’Leary
meant. Even so, it seems to us that when O’Leary said “none
other than what we’ve discussed,” it is possible and even
likely that he was referring to all of the circumstances that led
(continued...)
Dep. 90-91). Nichols also mentioned to O’Leary that a
friend had encouraged her to file a charge of discrimina-
tion with the Equal Employment Opportunity Commis-
sion, and that she was contemplating that possibility.
As we read the record, O’Leary testified that he had all
of this in mind when he told Tolan that he was
concerned that Miller was guilty of race discrimination
in her dealings with Nichols.2

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No. 10-1418 17
(...continued) 2
him to suspect Miller of engaging in race discrimination—and
which he had discussed earlier in his deposition—not just the
single instance in which he saw Miller treat Nichols harshly.
Moreover, O’Leary had already testified by this point that he
did describe the concern he expressed to Tolan as one about
race discrimination rather than generic mistreatment of
Nichols. R. 54-1 at 19 (O’Leary Dep. 144). We owe O’Leary the
benefit of the doubt on this point.
Now, it appears to be true, as Accretive points out, that
O’Leary had the chronology wrong when he testified
that Nichols had resigned by the time he spoke with
Tolan: O’Leary’s meeting with Tolan was on October 23,
2006, and the record indicates that Nichols did not resign
until October 25. But although Nichols had not yet re-
signed when O’Leary spoke with Tolan, it is nonetheless
a fair reading of his deposition testimony that the
concern he expressed about race discrimination was
based on more than the one occasion on which he had
seen Miller berate Nichols. It is also a fair inference
that O’Leary’s concern was not simply that Miller might
be making the workplace hostile for Nichols, but also
that she might be evaluating Nichols’ job performance
negatively based on her race rather than her competence,
which is the type of discrimination that commonly results
in a tangible, adverse employment action against an
employee. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
760-65, 118 S. Ct. 2257, 2268-70 (1998) (distinguishing
between harassment and tangible employment actions
for purposes of employer liability).

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18 No. 10-1418
Moreover, Tolan was not the only person with whom
O’Leary said he raised this concern. From his amended
complaint forward, O’Leary alleged that he voiced this
concern to Tolan “and others at Accretive.” R. 37 ¶ 30
(amended complaint); see also R. 65 ¶¶ 57, 64, 109 (cor-
rected response to defendant’s statement of facts); R. 54-1
at 13 (O’Leary Dep. 101-02), 14 (O’Leary Dep. 107-08). For
example, O’Leary testified at his deposition that after
he learned that Nichols had resigned and was con-
sidering the possibility of a discrimination charge, he
discussed his concerns with Stanley Telford, the
company’s director of human resources. R. 54-1 at 13
(O’Leary Dep. 102-03). According to O’Leary, Telford in
turn followed up with him after conducting Nichols’ exit
interview, informing O’Leary that because Nichols had
not volunteered any observation that she had been dis-
criminated against by Accretive, he did not think there
was anything to worry about. R. 54-1 at 13-14 (O’Leary
Dep. 102-05). O’Leary avers that he also reported his
concerns regarding Miller’s treatment of Nichols to
Deffarges, Stephen Smith (another senior vice-president)
and Greg Kazarian (Accretive’s general counsel), among
others. R. 65 ¶¶ 57, 64, 109; R. 54-1 at 13-14 (O’Leary Dep.
101-08), 18 (O’Leary Dep. 138). Deffarges and Telford have
denied that O’Leary reported any concerns about Miller
mistreating Nichols. R. 44-2 at 37-38 (Deffarges Dep. 242-
43); R. 44-8 at 10 (Telford Dep. 303). But Kazarian recalled
O’Leary having a concern that Miller was too demanding
of her subordinates, including Nichols, R. 59-1 at 11
(Kazarian Dep. 214-15), and Smith acknowledged that
O’Leary expressed a concern that Miller had driven

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No. 10-1418 19
Nichols out of the company and might pursue some sort
of claim against Accretive, R. 57-1 at 23-24 (Smith Dep.
at 157-58). In any case, the record, construed favorably
to O’Leary, certainly supports the notion that he did
voice a concern within the company that Miller was
mistreating Nichols, and that he expressly labeled his
concern as one about race discrimination in his discus-
sion with CEO Tolan.
Assuming the truth of O’Leary’s version of events,
his complaints about Miller’s treatment of Nichols consti-
tuted a cognizable expression of opposition to the sort
of discriminatory practices that are prohibited by Title VII
and section 1981. Based on the circumstances he de-
scribed in his deposition, his belief that Miller might be
taking adverse employment actions against Nichols on
the basis of her race was a reasonable, good-faith
concern about race discrimination and was therefore
protected by both statutes. We must therefore consider
whether O’Leary has otherwise provided sufficient evi-
dence in support of his claim of retaliation.
O’Leary has attempted to establish retaliation through
both the direct and indirect methods of proof. As to the
former, we conclude that the evidence does not support
a finding of a causal connection between his complaint
and his subsequent discharge. As to the latter, we do not
believe he has presented sufficient evidence that Ac-
cretive’s stated reasons for his discharge are pretextual.
Our discussion of direct proof of retaliation may be
brief. O’Leary relies principally on the fact that Accretive
decided to fire him within sixty days after he voiced

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20 No. 10-1418
concerns about Miller to demonstrate a causal nexus
between those two events. But, as the district court recog-
nized, temporal proximity between an employee’s pro-
tected activity and an adverse employment action is
rarely sufficient to show that the former caused the
latter. E.g., Leitgen, 630 F.3d at 675. The timing of events
in this case is not strongly suggestive of retaliation,
either alone or in the context of other circumstances
O’Leary has cited.
The indirect method of proof requires the plaintiff to
first establish a prima facie case of discrimination (in
this case, retaliation) by establishing (in addition to
statutorily-protected conduct and an adverse employ-
ment action) that he was performing his job satisfactorily
and that he was treated less favorably than one or
more other similarly situated employees who did not
oppose discrimination. E.g., Whittaker, 424 F.3d at 647. If
he succeeds in making a prima facie showing, then
Accretive must offer a legitimate, nondiscriminatory
explanation for the decision to discharge him. Id. The
burden of production then returns to O’Leary to show
that Accretive’s articulated reason for his discharge is
pretextual. E.g., Vance v. Ball State Univ., 646 F.3d 461, 473
(7th Cir. 2011). The parties are at odds over virtually
every element save for whether O’Leary suffered an
adverse employment action (he was discharged). We
believe that O’Leary’s case falters on his attempts to
show that he was meeting his employer’s expectations
and that Accretive’s stated reasons for discharging him
are pretextual, which because they both relate to his
work performance, amount to two sides of the same

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No. 10-1418 21
coin. See Hague v. Thompson Distrib. Co., 436 F.3d 816, 823
(7th Cir. 2006).
In order to show that the employer’s stated, nondiscrimi-
natory reason for firing him is pretextual, the plaintiff
must present evidence suggesting that the employer is
dissembling. Where, as here, the employer contends
that the plaintiff’s job performance was wanting, the
plaintiff must do more than dispute the validity of the
employer’s criticisms. The question is not whether the
employer’s stated reason was inaccurate or unfair, but
whether the employer honestly believed the reasons it
has offered to explain the discharge. E.g., Montgomery v.
Am. Airlines, Inc., 626 F.3d 382, 397 (7th Cir. 2010). “[I]t is
not the court’s concern that an employer may be wrong
about its employee’s performance, or may be too hard on
its employee. Rather, the only question is whether the
employer’s proffered reason was pretextual, meaning
that it was a lie.” Naik v. Boehringer Ingelheim Pharm., Inc.,
627 F.3d 596, 601 (7th Cir. 2010) (quoting Ineichen v.
Ameritech, 410 F.3d 956, 961 (7th Cir. 2005)).
O’Leary’s best evidence of pretext is found in declara-
tions from officials of two of the hospitals under O’Leary’s
supervision—Borgess Medical Center in Kalamazoo
and Genesys Regional Medical Center in Flint—whom
Accretive said were critical of O’Leary’s performance,
denying that they had said anything negative about
O’Leary. R. 53-4 ¶ 6 (Decl. of Richard Felbinger); R. 53-7
¶ 6 (Decl. of John Keuten). These declarations do not
address the particular remarks that Accretive has attrib-
uted to them; but because the declarants categorically

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22 No. 10-1418
deny having said anything critical about O’Leary, it is a
fair inference that their denial includes the remarks to
which Accretive refers, which were negative. So con-
strued, these declarations would support an inference
that the remarks were not, in fact, made, and that
Accretive did not honestly believe that the clients them-
selves were dissatisfied with the company’s performance
generally or with O’Leary’s performance in particular.
Notably, however, O’Leary has no such evidence
with respect to the criticism Accretive says it received
from the CFO of St. Mary’s hospital, Gary Chawk. Recall
that, according to Accretive, Chawk had begun ex-
pressing concern in the summer of 2006 about the
growth of accounts receivable and bad debt at St. Mary’s
and ultimately, in November 2006, asked that Smith
(O’Leary’s predecessor on the account) be brought in to
replace O’Leary. It is undisputed that O’Leary was, in
fact, replaced on the St. Mary’s account; and although
O’Leary denies that Chawk asked for removal, he has
no testimony from Chawk disputing that it was
Chawk who solicited his replacement on the account
(more on that in a moment). O’Leary questions the
veracity of Tolan and Deffarges in attributing this
request to Chawk, but however self-serving and uncor-
roborated their testimony may be, it is perfectly good
evidence that Chawk made the request. Payne v. Pauley,
supra, 337 F.3d at 771-73. The most that O’Leary can
counter with is Tolan’s previous notation, in his
June 2006 review, that Chawk was a “strong vocal sup-
porter” of O’Leary’s. R. 44-7 at 18 (O’Leary Dep. Ex. 31 at
2). That certainly supports the notion that Chawk was
content with O’Leary’s helmsmanship of the revenue

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No. 10-1418 23
cycle at St. Mary’s at that time, but it by no means
rules out the possibility that Chawk might have re-
quested his ouster five months later.
It is true that O’Leary was denied leave to depose
Chawk. But O’Leary did not seek to take Chawk’s deposi-
tion until he had already taken the ten depositions
allotted to him by Federal Rule of Civil Procedure 30,
plus an additional three that were taken by the parties’
agreement. He filed a motion to depose up to twenty
individuals (which Accretive opposed), R. 29, followed
by a more modest request to depose five more people,
Chawk among them, R. 34. But as the district judge
noted in her order denying the narrower motion, O’Leary
did not adequately explain why, given what O’Leary
had learned from the individuals already deposed and
what he anticipated discovering from the proposed
deponents, leave to take any of these additional deposi-
tions was warranted. R. 36 at 2. Discovery orders of
this nature are reviewed for abuse of discretion. E.g.,
Walker v. Sheahan, 526 F.3d 973, 977-78 (7th Cir. 2008).
O’Leary has not demonstrated that the court abused its
discretion in denying his unsubstantiated request.
Deffarges indicated in his testimony that O’Leary’s
ouster from the St. Mary’s account at the request of the
client was a tipping point in Accretive’s decision to
discharge O’Leary. “I felt the Gary Chawk request might
be the straw that broke the camel’s back, to use a
colloquial expression,” he said. R. 44-2 at 30 (Deffarges
Dep. 169). Relatedly, Deffarges and Tolan both cited
poor handling of accounts receivable and the growth in

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24 No. 10-1418
uncollectible debt at St. Mary’s as a reason for their dis-
satisfaction (as well as Chawk’s discontent) with
O’Leary’s performance. R. 44-10 at 18-19 (Tolan Dep. 224-
25); R. 44-2 at 29 (Deffarges Dep. 166); see also R. 44-4
(Kazarian Dep. 73-74). O’Leary disagrees with the notion
that there was a significant problem with accounts re-
ceivable or bad debt at St. Mary’s and suggests that to
the extent that Chawk became dissatisfied with Accre-
tive’s performance, his discontent was due to another
issue for which O’Leary had little or no responsibility.
But he has cited no record evidence which might
permit the factfinder to conclude that Tolan and
Deffarges did not honestly believe there was a sig-
nificant problem with accounts receivable and bad debt
and that the problem was due to a failure of leader-
ship on O’Leary’s part. O’Leary’s failure to call into
question the notion that Accretive perceived there to be
an accounts-receivable crisis at St. Mary’s, or that Chawk
solicited his replacement on the account, leaves a key
reason cited for his discharge unchallenged.
We hasten to add, however, that the record reflects
additional concerns that stand unrebutted on the current
record. As we noted in our summary of the facts,
O’Leary’s 2006 mid-year review, which was conducted
by Tolan, while positive in a number of respects, was not
unqualifiedly so. Tolan rated him “2” vis-à-vis Accretive’s
operational model, indicating that his command and
application of the model was “marginal” and required
improvement. R. 44-7 at 17-18 (O’Leary Dep. Ex. 31 at 1-2).
By way of explanation, Tolan wrote that “Joe needs to go
deeper into key elements of the operating model so that

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No. 10-1418 25
he can action and model and teach.” Id. at 18 (O’Leary
Dep. Ex. 31 at 2.) Tolan would later describe this rating
as “a very damning assessment.” R. 44-9 at 21 (Tolan
Dep. 45). In the same review, Tolan, speaking to
the composite performance of the Greater Michigan
hospitals under O’Leary’s supervision, observed:
Goals are obtainable [sic], however, Joe will need to
mount intense focused attention to drive the results
home. Joe will need to be very hands on, close to
the details and driving key initiatives while teaching
the team to better understand the levers that get
results. Key focus must produce better execution . . . .”
R. 44-7 at 17 (O’Leary Dep. Ex. 31 at 1).
Tolan’s subsequent deposition testimony articulating
the reasons for the decision to discharge O’Leary
tracked and expanded on the areas of improvement she
had noted in his mid-year review. Tolan testified that
O’Leary had failed to immerse himself in the details of the
revenue-cycle business and acquire a complete under-
standing of that business. She also believed that his
subordinates lagged in their performance, that he was
not conversant with who under his command was a
good performer and who was not, and that he failed as
a leader in helping the laggards to improve their per-
formance and in moving issues forward toward resolu-
tion. R. 44-9 at 18-21, 25-26, 28 (Tolan Dep. 42-45, 82-83, 92);
R. 44-10 at 4 (Tolan Dep. 130).
We note further that although O’Leary has established
a dispute of fact as to whether the CFOs of Borgess and
Genesys expressed criticisms of his work, he has not

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26 No. 10-1418
otherwise called into question the concerns that Tolan and
Deffarges had with respect to his performance at those
two hospitals. In his deposition testimony, Deffarges
recalled that Tolan told him the Borgess team could do
better and that O’Leary was not sufficiently engaged to
lead the team to a higher level of performance. R. 44-2
at 14-15 (Deffarges Dep. 89-90). This is consistent with
the observation that Tolan had made in her mid-year
review of O’Leary: “Borgess—Revenue results have
been plateauing and at times the team seems to be unclear
about their plan of action to get to 4% net revenue im-
provement pace.” R. 44-7 at 17 (O’Leary Dep. Ex. 31 at 1).
With respect to Genesys, Deffarges recounted Tolan’s
observation that the Accretive team was “rudderless.”
R. 44-2 at 15 (Deffarges Dep. 90). This is consistent with
the types of concerns Tolan had noted in the mid-year
review: “This team generally lacks command of the
pertinent information and is often very slow in adopting
Accretive [o]perating model approaches. Cost control
also looks rocky here.” R. 44-7 at 17 (O’Leary Dep. Ex. 31
at 1).
As we noted at the outset, there is a dispute of fact as
to whether Tolan, apart from the observations she
made in the written 2006 mid-year review, communi-
cated any of these criticisms to O’Leary, although he
has acknowledged being advised of the areas in which
he could improve his performance via the performance
reviews. See R. 71 at 19 (O’Leary Dep. 160). Tolan
testified that she repeatedly did convey her concerns to
O’Leary, both before and after the mid-year review.

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No. 10-1418 27
But O’Leary denied this in his own deposition testimony
and declaration, and his own testimony is enough to
create a dispute of fact on this point.
Tolan testified that she also made her concerns known
to other Accretive executives, and in this respect there is
not a dispute of fact. Tolan testified that she com-
municated her criticisms of O’Leary to Deffarges, John
Staton (Accretive’s CFO), and Kazarian during the
second half of 2006. R. 44-9 at 12-13, 27-28 (Tolan Dep. 31-
32, 91-92). Deffarges, for one, confirmed that Tolan had
discussed such concerns with him. R. 44-2 at 14-15
(Deffarges Dep. 89-90). O’Leary generally denies the
truth of Tolan’s testimony on this point, but none of the
evidence he cites (principally his own declaration
denying that such criticisms were ever communicated to
him, see R. 53-10 ¶¶ 16-18) actually calls into question
whether Tolan in fact did voice concerns about
O’Leary’s performance to her colleagues.
And although O’Leary has denied that such crit-
icisms were expressed to him, we note that his own
communications with other Accretive employees re-
flects an awareness that Tolan was not content with his
performance. At some point in the spring or summer of
2006, for example, O’Leary complained to Deffarges
that Tolan had “unreasonable expectations” and “was
never happy about the results.” R. 44-2 at 13 (Deffarges
Dep. 88). (O’Leary attempts to dispute this averment,
R. 65 ¶ 21, but ineffectively; none of the evidence he
cites purports to deny that he said this.) And in late
September 2006, before he ever raised his concerns about

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28 No. 10-1418
Miller, he wondered in an email whether Tolan did not
want to fire him. R. 44-7 at 28 (O’Leary Dep. Ex. 38).
None of the evidence calls into question the veracity
of the legitimate, performance-related concerns that
Accretive has articulated for O’Leary’s discharge. O’Leary
vigorously disputes the merits of these criticisms. But
it is not for us to decide whether Tolan was right or wrong
in finding his performance wanting. We do not sit as a
super-personnel department. See, e.g., Silverman v. Bd. of
Educ. of City of Chicago, 637 F.3d 729, 738 (7th Cir. 2011).
The only question is whether these were actually the
reasons for O’Leary’s discharge. And O’Leary has pre-
sented no evidence from which the factfinder could
conclude that Tolan and Deffarges did not honestly
believe these criticisms and discharged him based on
these nondiscriminatory grounds.
III.
We AFFIRM the district court’s decision to enter sum-
mary judgment against O’Leary and in favor of Accretive.
9-21-11

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