Margarita Zayas v. Rockford Memorial Hospital

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2555
MARGARITA ZAYAS,
Plaintiff‐Appellant,
v.
R OCKFORD MEMORIAL HOSPITAL ,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 11‐C‐50290 — Philip G. Reinhard, Judge.
____________________
A RGUED NOVEMBER 14, 2013 — DECIDED J ANUARY 30, 2014
____________________
Before W OOD, Chief Judge, and C UDAHY and R OVNER , Cir‐
cuit Judges.
C UDAHY, Circuit Judge. This matter concerns allegations of
employment discrimination under Title VII and the Age Dis‐
crimination in Employment Act. Margarita Zayas worked for
Rockford Memorial Hospital (the Hospital) as an ultrasound
technician from November 1999 until her discharge in April
2011. Larry Griesman, Zayas’ direct supervisor, was respon‐
sible for hiring and terminating Zayas. Zayas is Puerto Rican

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2 No. 13‐2555
and was fifty‐five years old at the time of her termination,
the oldest ultrasound tech at the Hospital. She brought both
a national origin discrimination claim and a hostile work en‐
vironment claim under Title VII, 42 U.S.C. § 2000e et seq., as
well as an age discrimination claim under the Age Discrimi‐
nation in Employment Act, 29 U.S.C. § 621 et seq.
Zayas was discharged for sending Griesman a series of
disrespectful emails, despite her supervisor’s warnings. In
April of 2010, Griesman and a human resources employee
held two meetings in which they warned Zayas about send‐
ing Griesman inappropriate emails. Thereafter, Zayas con‐
tinued to write emails of the same nature, which caused
Griesman to issue Zayas a formal written warning on July
28, 2010. Disregarding informal and formal warnings, Zayas
sent three more equally unprofessional emails to Griesman.
Consequently, on April 22, 2011, Griesman discharged Zayas
for sending emails that “were perceived as negative, unpro‐
fessional and disrespectful towards her managers and
peers.”
Despite the insubordinate emails, Zayas contends that
the Hospital terminated her because of her age and national
origin. Zayas’ age discrimination claim is hardly supported,
since it is based solely on the fact that she was the oldest
technician in the department, and was replaced by a younger
employee. Zayas provided no other evidence to support this
claim. As for the national origin claims, Zayas offers a series
of incidents in an attempt to establish discrimination and a
hostile work environment:
(1) Griesman singled Zayas out in a meeting and said
“you think everyone is out to get you;” (2) a co‐
worker “almost got physical with her” and told Zayas

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No. 13‐2555 3
she should quit; (3) another co‐worker posted a poem
about “firing trouble” above Zayas’ locker; (4) on one
occasion, Zayas walked into an office and all the other
technicians got up and left; (5) several technicians
called her “Maria” even though she asked them not
to; (6) Zayas asked a co‐worker if a patient received a
Spanish translator and the co‐worker responded by
saying “if they are in this country, they need to learn
to speak English;” (7) Zayas attempted to move an ul‐
trasound machine, but a co‐worker obstructed her
ability to move it; and (8) a co‐worker exited a room
without closing the door to which Zayas responded:
“Why aren’t you closing the door? Is it because I am
Puerto Rican?”
Zayas also cites satisfactory job performance appraisal scores
for 2008 and 2009 as evidence of meeting her employer’s le‐
gitimate job expectations, contending that the emails were
simply a pretext for discrimination.
The district court granted the Hospital’s motion for
summary judgment on all three claims. We review the grant
of summary judgment de novo, construing all facts and rea‐
sonable inferences in Zayas’ favor. Smiley v. Columbia Coll.
Chi., 714 F.3d 998, 1001 (7th Cir. 2013).
I.
We turn first to the discrimination claims. Zayas alleges
discrimination on the basis of both her age and national
origin. Plaintiffs may support these claims through a direct
or indirect method of proof. See Martino v. W. & S. Fin. Grp.,
715 F.3d 195, 201 (7th Cir. 2013).

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4 No. 13‐2555
The direct method requires courts to inquire whether a
rational juror could infer discriminatory intent from the di‐
rect and the circumstantial evidence in the record. Id. at 201–
02. Zayas cannot rely on the direct method, since the record
contains neither explicit declarations of a discriminatory mo‐
tive nor sufficient circumstantial evidence for a rational jury
to infer discrimination. With respect to her age, the only rel‐
evant circumstances are the fact that her replacement is a
younger woman (as were all of Zayas’ co‐workers), which is
not sufficient on its own to establish an age discrimination
claim. With respect to her ethnicity, Zayas’ evidence is simi‐
larly limited: she relies on a single derogatory comment
about Spanish speakers made by Zayas’ co‐worker (rather
than her supervisor) and on the fact that her replacement is
white. On either ground, Zayas is a long way from being
able to prove a discriminatory motive directly. See e.g., Adams
v. Wal‐Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.
2003)(“circumstantial evidence … must point directly to a
discriminatory reason for the employer’s action.”).
Therefore, Zayas only asserts discrimination under the
indirect method of proof standard. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under the indirect meth‐
od, Zayas must establish a prima facie case by showing: (1)
she is a member of a protected group; (2) she satisfied her
employer’s legitimate job expectations; (3) she suffered an
adverse employment action; and (4) similarly situated em‐
ployees outside of the protected class were treated more fa‐
vorably. Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 511
(7th Cir. 2012). If these elements are met, the burden shifts to
the defendant to introduce a legitimate, non‐discriminatory
reason for the employment action. Id. On rebuttal, the plain‐

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No. 13‐2555 5
tiff must provide evidence demonstrating that the defend‐
ant’s stated reason is pretextual. Id. at 511–12.
It is undisputed that Zayas has satisfied the first and
third prongs under the indirect method of proof: she is a
member of a protected class, Puerto Rican and over the age
of 40, and suffered an adverse employment action, termina‐
tion. As for the second and fourth prongs, Zayas still lacks
sufficient evidence to overcome summary judgment.
Zayas points to her 2008 and 2009 satisfactory perfor‐
mance evaluations as proof that she met the Hospital’s legit‐
imate job expectations. Zayas’ reliance on these evaluations
is misplaced. The question is not whether she ever satisfied
the Hospital’s expectations, but whether she met the Hospi‐
tal’s expectations at the time she was fired. See Peters v. Renais‐
sance Hotel Operating Co., 307 F.3d 535, 545–46 (7th Cir. 2002).
Further, our analysis of an employer’s legitimate expecta‐
tions does not merely consider whether a plaintiff’s actual
job performance was satisfactory—it is a much broader
analysis, which allows fact‐finders to consider factors such
as insubordination and workplace camaraderie. See Fane v.
Locke Reynolds, LLP, 480 F.3d 534, 540 (7th Cir. 2007).
In any event, Zayas’ performance evaluations do not
overcome the more recent disciplinary actions imposed on
her. The record indicates that Griesman warned Zayas, twice
in the same month, about sending inappropriate emails.
Nevertheless, Zayas continued to write emails of the same
nature, which drove Griesman to issue a written warning.
Zayas ignored that written warning and wrote an additional
three equally unprofessional emails. Thus, the paper trail of
emails, disregarding Griesman’s written warning, indicates

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6 No. 13‐2555
that Zayas was not meeting her employer’s expectations in
the year before her termination.
Finally, to satisfy the fourth prong of the McDonnell
Douglas test Zayas must identify a similarly situated em‐
ployee, who is not Puerto Rican, who engaged in the same
behavior and was treated more favorably. The similarly situ‐
ated employee must be “directly comparable to her in all
material respects.” See Patterson v. Avery Dennison Corp., 281
F.3d 676, 680 (7th Cir. 2002). Although “precise equivalence”
is not required, a plaintiff still needs to show that a compara‐
tor employee was “treated more favorably by the same deci‐
sionmaker,” even though they were both “subject to the
same standards of conduct” and engaged in similar, but not
necessarily identical, conduct. Coleman v. Donahoe, 667 F.3d
835, 846–48, 850 (7th Cir. 2012).
Zayas lacks evidence tending to show a similarly situated
employee, who is not Puerto Rican or under the age of 40,
that engaged in similarly unprofessional communications,
and was not disciplined for it. Instead, Zayas makes broad
assertions that she was treated differently because other ul‐
trasound technicians were not “subject to similar harass‐
ment,” “singled out,” and “subjected to unwarranted disci‐
pline.” Such broad conclusions are insufficient to satisfy this
prong of the test. See, e.g., Oest v. Ill. Dept. of Corr., 240 F.3d
605, 615 (7th Cir. 2001)(“uncorroborated generalities are in‐
sufficient to support a Title VII claim”). Based on the absence
of comparator evidence Zayas cannot establish a prima facie
case for either of her discrimination claims.
Zayas further alleges that her disrespectful emails were a
mere pretext for the Hospital’s discriminatory motives. She
contends that a jury should assess the appropriateness of her

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No. 13‐2555 7
emails and determine whether they were sufficiently inap‐
propriate to justify her termination. Zayas misconstrues the
pretext inquiry. The pretext inquiry focuses on whether the
stated reason for the adverse employment action is in fact the
reason for it—not on whether the stated reason is accurate or
fair. See e.g., Ransom v. CSC Consulting, Inc., 217 F.3d 467, 471
(7th Cir. 2000)(“it is not … the court’s concern that an em‐
ployer may be wrong about its employee’s performance, or
be too hard on its employee.”). Thus, it is irrelevant if Zayas’
emails were not egregious enough to justify her termination,
as long as Griesman believed they were. Zayas offered no
evidence to show that Griesman lied about his reaction to
the emails. Therefore, we have no trouble finding that Zayas’
emails were not a pretextual basis for her termination.
For the foregoing reasons, Zayas has not met her burden
under the indirect method of proof standard, and summary
judgment is affirmed as to both discrimination claims.
II.
Zayas also alleges that she was subjected to a hostile
work environment. To establish a prima facie case for a hos‐
tile work environment claim, she must show: (1) that she
was subject to unwelcome harassment; (2) the harassment
was based on her national origin; (3) the harassment was se‐
vere or pervasive so as to alter the conditions of her work
environment by creating a hostile or abusive situation; and
(4) there is a basis for employer liability. See Lucero v. Nettle
Creek Sch. Corp., 566 F.3d 720, 731 (7th Cir. 2009).
As the district court held, Zayas’ hostile work environ‐
ment claim fails on the second prong of this test, even if we
assume that the other three are met. “[A]lleged harassment

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8 No. 13‐2555
must be sufficiently connected to race before it may reasona‐
bly be construed as being motivated by the defendant’s hos‐
tility to the plaintiff’s race.” Beamon v. Marshall & Ilsley Trust
Co., 411 F.3d 854, 863–64 (7th Cir. 2005)(internal citations
omitted). Zayas has not shown a sufficient connection be‐
tween her national origin and the incidents she complains of.
In fact, only two of the incidents that she offered into evi‐
dence have any relation whatsoever to her national origin.
The first incident involved a co‐worker who, referring to
a patient who only spoke Spanish, commented to Zayas that
people in the United States need to learn English. Though
the remark may have been insensitive, the district court cor‐
rectly found that this was an isolated incident that occurred
two years before Zayas’ termination and was derogatory to
non‐English speaking immigrants, rather than Puerto Ricans
specifically. Moreover, Griesman responded to the situation
by immediately addressing the matter with the employee
who made the comments. Ironically, in the only other inci‐
dent related to her national origin, it was Zayas herself who
made her Puerto Rican heritage an issue, by asking a co‐
worker: “Why aren’t you closing the door? Is it because I’m
Puerto Rican?”
The rest of Zayas’ allegations lack any clear connection to
her national origin. While such a connection does not have to
be explicit, there must be some connection, for “not every
perceived unfairness in the workplace may be ascribed to
discriminatory motivation merely because the complaining
employee belongs to a racial minority.” Id. at 863. In light of
the scant evidence in the record relating to this claim, we
have no trouble holding that any hostility directed at or felt
by Zayas was not connected with her ethnicity.

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No. 13‐2555 9
Though the foregoing is sufficient to affirm the district
court with respect to the hostile work environment claim, we
also note that Zayas’ arguments fail the third prong of the
test. To satisfy this prong, Zayas must show that her work‐
place was both objectively and subjectively hostile. Harris v.
Forklift Sys., 510 U.S. 17, 21 (1993). Unlike the subjective ele‐
ment, it is difficult to show that the harassment was objective‐
ly “severe or pervasive as to alter the conditions of the vic‐
tim’s employment and to create an abusive working atmos‐
phere.” Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345
(7th Cir. 1999). Zayas offers only a short and exhaustive list
of allegedly hostile occurrences over her long employment at
the Hospital. This list falls short of showing the kind of sys‐
tematic discriminatory behavior that hostile work environ‐
ment claims require. See e.g., Filipovic v. K & R Express Sys.,
Inc., 176 F.3d 390, 398 (7th Cir. 1999).
Although Zayas cites a number of hostile incidents, none
of them were related to her national origin, nor were they
objectively severe enough to survive summary judgment.
The district court correctly noted that, although Zayas’ co‐
workers did not like her, it was likely the result of “work‐
place pettiness,” not her Puerto Rican origin. Thus, the dis‐
trict court’s grant of summary judgment on the hostile work
environment claim is affirmed.
III.
Despite Zayas’ many claims, there is insufficient evidence
to find that her termination was based on anything but the
many disrespectful emails she sent to Griesman. As a result,
the district court properly granted summary judgment in
favor of the Hospital with respect to all three claims. Accord‐
ingly, WE AFFIRM.

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