Doris M. Ineichen v. Ameritech

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3094
D ORIS M. I NEICHEN ,
Plaintiff-Appellant,
v.
A MERITECH ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 4069—Michael M. Mihm, Judge.
____________
A RGUED F EBRUARY 10, 2005—D ECIDED J UNE 10, 2005
____________
Before M ANION , E VANS , and S YKES , Circuit Judges.
M ANION , Circuit Judge. After Ameritech fired Doris
Ineichen, she sued Ameritech alleging race, sex, and dis-
ability discrimination, as well as violations of the Family
and Medical Leave Act. The district court granted
Ameritech summary judgment. Ineichen appeals. We affirm.
I.
In May 1994, Doris Ineichen, who is white, began working
for Ameritech at its Rock Island County, Illinois facility. She

-- 1 of 14 --

2 No. 04-3094
worked as a service representative and then later as a coach,
training other service representatives.
At some point during her employment with Ameritech,
Ineichen began dating another Ameritech employee, Ray
Jones, who is black. As a result of this relationship, between
June and September 2001, her supervisors had several
cautionary conversations with her and Jones. Scott Shaw,
who supervised Ineichen, and Mary Williams, Shaw’s
supervisor, counseled Ineichen to keep her personal and
business life separate and not to spend an inordinate
amount of time with Jones in the office while they were
supposed to be working.
In late August 2001, another Ameritech employee told
Williams and Shaw that a Credit Application System
(“CAS”) check had been run on Ray Jones on August 15,
2001. CAS checks a potential customer’s credit history,
including the person’s billing history with Ameritech. The
Ameritech computer system tracks which employee’s com-
puter password is used to access the CAS application, and
Williams and Shaw learned that the CAS check on Jones
was created on August 15, 2001, with “D. Ineichen’s”
account and password.
Concerned that Ineichen had improperly accessed Jones’s
private information, Shaw interviewed Jones and asked him
whether he had given anyone permission to run a CAS
check on him in August 2001. Jones said that he had not.
Williams and Shaw then met with Ineichen and a union
representative. During this meeting, Williams and Shaw
informed Ineichen that she was being suspended pending
dismissal for violating the Ameritech Code of Business
Conduct, which provides that: “No employee will access,
use or disclose customer records or reports, customer pro-
prietary information or any other proprietary information
without a valid business reason.” The Code also provides

-- 2 of 14 --

No. 04-3094 3
that “[e]mployees shall not gain access to their own records
or those of family and friends without a valid business rea-
son and prior approval from their supervisor.” The meeting
ended when Ineichen had an anxiety attack and was taken
away by paramedics. Williams later telephoned Ineichen
while she was in the hospital to confirm that Ineichen
understood the result of the meeting, namely that she was
suspended pending dismissal.
On September 6, 2001, Ameritech held a Dismissal Panel
with union representatives to decide Ineichen’s fate. During
the Dismissal Panel, Ineichen stated that she did not
remember whether she had run a CAS check on Jones, but
claims she would have no reason to do so, so it wouldn’t
make sense for her to have run a check. Ineichen, however,
admitted that she did not have permission to run a CAS
check on Jones. Following the Dismissal Panel, Williams
and Shaw terminated Ineichen for unauthorized access of
Jones’s CAS history.
Following her termination, Ineichen sued Ameritech,
alleging that Ameritech fired her because of her race
(white), because she was dating a black man (Jones), and
because of her sex (female), all in violation of Title VII. 42
U.S.C. §§ 2000e et seq. Ineichen also alleged a claim of
disability discrimination and a violation of the Family and
Medical Leave Act. 29 U.S.C. §§ 2601 et seq. The district
court granted Ameritech summary judgment on all of
Ineichen’s claims. Ineichen appeals, although on appeal she
only challenges the district court’s rulings on her race and
sex discrimination claims.
II.
On appeal, Ineichen claims that Ameritech committed
race discrimination in two ways: first, by firing her because

-- 3 of 14 --

4 No. 04-3094
she was white, and, second, by firing her because she was
dating a black man. Ineichen also claims that Ameritech
fired her because she was a woman. We consider each claim
separately below.
Ineichen first claims that Ameritech fired her because she
was white, in violation of Title VII. To avoid summary
judgment on this claim, Ineichen relies on the indirect
McDonnell Douglas method of proof. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell
Douglas method, to establish a claim of race discrimination,
a plaintiff must establish that she is a member of a protected
class; was meeting her employer’s legitimate performance
expectations; suffered an adverse employment action; and
was treated less favorably than similarly situated individu-
als who are not white. See Williams v. Waste Mgmt. of Illinois,
Inc., 361 F.3d 1021, 1034 (7th Cir. 2004).
However, because Ineichen is white, the district court
concluded that to establish a prima facie case of reverse
discrimination, she must show more. Specifically, relying on
this court’s decisions in Mills v. Health Care Service Corp., 171
F.3d 450, 455-57 (7th Cir. 1999), and Phelan v. City of Chicago,
347 F.3d 679, 684-85 (7th Cir. 2003), the district court
concluded that a white plaintiff must show “background
circumstances” sufficient to demonstrate that the particular
employer has “reason or inclination to discriminate invidi-
ously against whites” or evidence that “there is something
‘fishy’ about the facts at hand.” Phelan, 347 F.3d at 684.
Applying this standard, the district court concluded that
Ineichen failed to present evidence sufficient to satisfy the
heightened standard applicable to reverse discrimination

-- 4 of 14 --

No. 04-3094 5
1 Because Ineichen is white, the parties both characterize
Ineichen’s claim as one of reverse discrimination. The typical
reverse discrimination case involves the hiring of a minority
candidate over a white candidate, but here Ineichen was replaced
by a white woman. Alternatively, reverse discrimination claims
arise where the decisionmakers are of the same sex or race as the
alleged victim, see, e.g., Preston v. Wis. Health Fund, 397 F.3d 539
(7th Cir. 2005), yet here the parties do not identify the race of the
decisionmakers, namely Shaw and Williams. However, because
Ineichen does not challenge the applicability of the heightened
standard for reverse discrimination cases, we assume that is
because both Shaw and Williams are white. Instead she argues
that she has satisfied the heightened standard.
cases, and, accordingly, granted Ameritech summary
judgment. 1
On appeal, Ineichen claims she presented sufficient
evidence that there was something “fishy”about the facts at
hand because she showed that several black employees
“were not terminated for engaging in more egregious be-
havior.” It is questionable whether this is enough to satisfy
the heightened standard. It certainly does not fit the typical
scenarios with which we recently illustrated the application
of the heightened standard in Preston v. Wisconsin Health
Fund, 397 F.3d 539 (7th Cir. 2005). That case involved a
reverse sex discrimination case, where the male plaintiff
alleged his male boss discriminated against men in favor of
women. In affirming the district court’s grant of summary
judgment to the employer, we explained the rationale for
the heightened standard in Phelan and Mills: “It is not sur-
prising when women discriminate in favor of women any
more than it is surprising when men discriminate in favor
of men. [But] [i]t is surprising, in many though not all cases,
when men discriminate against men in favor of women.” Id.
at 542. However, we noted that such reverse discrimination

-- 5 of 14 --

6 No. 04-3094
is not surprising under two circumstances: First, “where the
men running the company are under pressure from affirma-
tive action plans, customers, public opinion, the EEOC, a
judicial decree, or corporate superiors imbued with belief in
‘diversity’ to increase the proportion of women in the
company’s workforce.” Id. Second, “where the jobs in
question are traditional ‘women’s work,’ such as nursing,
which the men running the company believe women can do
better than men . . . .” Id.
Although Preston involved reverse sex discrimination
(male discriminating against male), the same rationale ap-
plies equally in other reverse discrimination cases (female
discriminating against female, white against white, black
against black). Thus, Ineichen must present some evidence
to show that it is not surprising that her supervisors would
discriminate against her because she was white. The evi-
dence she relies on, that several blacks were disciplined less
severely, does not fit the mold of Preston. Preston also made
clear, however, that the examples provided are not exclusive
and that “the list is not a closed one.” We need not decide,
however, whether to add Ineichen’s situation to the “fishy”
list because even assuming she satisfied the heightened
standard, she has nonetheless failed to establish the fourth
prong of the McDonnell Douglas prima facie case. Specifi-
cally, Ineichen has failed to present evidence that she was
treated less favorably than similarly situated individuals
who are not white.
In attempting to satisfy this element of the prima facie
case, Ineichen pointed to four non-whites who violated
Ameritech’s Code of Conduct, but who were not fired. The
district court found that two of these individuals were not
similarly situated, and Ineichen does not challenge that
ruling on appeal. The two people she points to on appeal,
Tramere Millbrook and Brian Tousseau, both of whom are

-- 6 of 14 --

No. 04-3094 7
2 Ameritech also points to evidence in the record that another
Ameritech employee, Dean Lowery, was fired because he, like
Ineichen, ran an unauthorized CAS check on a coworker whom
he was (or had been—it is unclear which) dating. This, Ameritech
argues, demonstrates that it treated those with similar violations
similarly. Ameritech, however, does not identify Lowery’s race
and the portions of the record cited by the parties do not reveal
whether he is black or white, so while this shows that Ameritech
fired two individuals for the same violation, it does not aid us
in determining whether race had something to do with the
termination.
black, violated Ameritech’s Code of Conduct by engaging
in “cramming.” Cramming involves charging a customer for
products or services the customer did not order. Although
Millbrook and Tousseau were disciplined, they were not
fired, and that, Ineichen argues, shows that non-whites were
treated more favorably.
However, to satisfy the “similarly situated” prong of the
prima facie case, an employee must be “directly comparable
in all material respects.” Sartor v. Spherion Corp., 388 F.3d
275, 279 (7th Cir. 2004) (internal quotation omitted). This
requires the plaintiff to show not only that the employees
reported to the same supervisor, engaged in the same
conduct, and had the same qualifications, but also show that
there were no “differentiating or mitigating circumstances
as would distinguish . . . the employer’s treatment of them.”
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000).
In this case, Ineichen is not similarly situated to either
Millbrook or Tousseau, because the latter two engaged in
different conduct. 2 Because Ineichen failed to present suffi-
cient evidence that a similarly situated non-white employee

-- 7 of 14 --

8 No. 04-3094
was treated more favorably, she has failed to establish a
prima facie case of discrimination.
Moreover, even if Ineichen presented sufficient evidence
to establish a prima facie case of race discrimination, that
merely means that “the burden shifts to the defendant to
provide a legitimate, non-discriminatory reason for the ac-
tion.” See Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir.
2000). In this case, Ameritech presented evidence of such a
non-discriminatory reason for her firing, namely that it fired
her based on evidence that she violated Ameritech’s Code
of Business Conduct by running a CAS check on Jones
without permission or proper authorization from her
supervisor. At this point, then, to avoid summary judgment,
Ineichen must present evidence that the reason proffered by
Ameritech is pretextual. Id. Although on appeal Ineichen
claims that it would not have made sense for her to run a
CAS check on Jones, that Jones would have consented to the
search if asked, and that Ameritech should have further
investigated the charge before firing her, it is not “the
court’s concern that an employer may be wrong about its
employee’s performance, or be too hard on its employee.
Rather, the only question is whether the employer’s prof-
fered reason was pretextual, meaning that it was a lie.”
Ransom v. CSC Consulting, Inc., 217 F.3d 467, 471 (7th Cir.
2000). Ineichen has failed to present any evidence that
Ameritech’s proffered reason was a lie. Accordingly,
Ameritech was entitled to summary judgment on Ineichen’s
claim that Ameritech fired her because she is white.
Ineichen also claims that Ameritech committed illegal race
discrimination by firing her for dating a black coworker.
This court has not yet definitely ruled on whether discrimi-
nating against a person because they are involved in an
interracial relationship constitutes race discrimination in
violation of Title VII, although the Fifth, Sixth, and Eleventh

-- 8 of 14 --

No. 04-3094 9
3 In Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188 (7th
Cir. 1992), the plaintiffs, a black man and a white woman who
were married, sued alleging race discrimination, including claims
that the defendant discriminated against them based on their
interracial marriage. On appeal, this court did not specifically
address whether such claims are actionable under Title VII.
Likewise, in Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878
(7th Cir. 1998), the plaintiffs, who were white, presented a claim
under Title VII, alleging discrimination based on their friendship
with black co-workers. This court did not definitely resolve the
propriety of such claims because the plaintiffs had conceded that
an employee can bring an associational race discrimination claim
under Title VII. Id. at 884.
Circuits have held that it does. 3 See Tetro v. Elliott Popham
Pontiac, Oldsmobile, Buick and GMC Trucks, Inc., 173 F.3d 988,
994 (6th Cir. 1999) (holding that a white employee may sue
for race discrimination under Title VII where he alleges he
was fired for having a biracial child); Deffenbaugh-Williams
v. Wal-Mart Stores, Inc., 156 F.3d 581, 588-89 (5th Cir. 1998),
reinstated in relevant part on reh’g en banc, Williams v.
Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir.1999) (per
curiam) (holding “Title VII prohibits discrimination in
employment premised on an interracial relationship”); Parr
v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 891-92
(11th Cir. 1986) (holding that “[w]here a plaintiff claims
discrimination based upon an interracial marriage or
association, he alleges, by definition, that he has been
discriminated against because of his race,” and thus states
a claim under Title VII).
On appeal, Ameritech states that it is “willing to assume
for purposes of this appeal that this Court would reach the
same conclusion.” Nonetheless, Ameritech maintains it is
entitled to summary judgment because Ineichen failed to

-- 9 of 14 --

10 No. 04-3094
present sufficient evidence to establish that Ameritech ter-
minated her because of her relationship with a black man.
Because Ameritech assumes that firing someone for dating
a person of a different race would violate Title VII, in the
context of this case, we assume so as well but without
deciding the question of law. We thus consider whether
Ineichen has presented sufficient evidence of such discrimi-
nation to avoid summary judgment. Under the direct
method, which is the only method of proof Ineichen relies
upon to establish this discrimination claim, “[t]here are two
types of permissible evidence . . . direct evidence and
circumstantial evidence. The former essentially requires an
admission by the decision-maker that his actions were based
upon the prohibited animus. The latter is evidence that
allows a jury to infer intentional discrimination by the
decision-maker.” Buie v. Quad/Graphics, Inc., 366 F.3d 496,
503 (7th Cir. 2004) (internal citation omitted).
To support her claim of discrimination under the direct
method, Ineichen points to remarks attributed to Shaw by
Pamela Moulton, a former manager at the Rock Island
facility. Moulton testified that Shaw told her the relation-
ship between Ineichen and Jones was “causing problems in
the office specifically, and that it didn’t seem like maybe
[Ineichen] was doing her job, I guess, as suited [sic] because
of seeing Ray” and that “people . . . didn’t like” the relation-
ship. Moulton further testified that Shaw “knew he had to
do something about it meaning letting her go, not having
her in that position.”
This testimony, however, does not indicate that Shaw had
a problem with Ineichen’s relationship with Jones because
she was white and he was black. It simply points to the fact
that the relationship with a coworker was interfering with
her ability to perform her job. In fact, when asked if Shaw or
Williams ever commented on the fact that Jones was black

-- 10 of 14 --

No. 04-3094 11
and Ineichen was white, Moulton replied: “No. It was more
just them seeing each other.” And when asked: “Did you
ever hear anybody else at work say anything about the
difference in [Ineichen] and Ray’s races?” she said “No.”
In response, Ineichen points to an affidavit from Moulton
made after her deposition, in which she stated that: “In my
deposition, I was asked if Scott Shaw said anything specific
about problems the interracial relationship between
Murlene Ineichen and Ray Jones was causing in the office
and I answered that Mr. Shaw said they didn’t like it, so
they knew he had to do something about it, meaning letting
her go.” This is a misrepresentation of the deposition
testimony. In her deposition, Moulton was asked: “Did
Mr. Shaw say anything specific about what problems this
relationship was causing in the office?” It was to that
question that Moulton responded: “They just didn’t like it.
They didn’t like it, so he knew he had to do something
about it, meaning letting her go, not having her in that posi-
tion.” Contrary to Moulton’s portrayal, this exchange in no
way addressed the issue of race. Moreover, in the remainder
of her deposition, when Moulton was asked specifically
about the relationship, she stated unequivocally that Shaw
and Williams never said anything about the fact that Jones
was black and Ineichen white. She further stated that she
had never heard anyone at work say anything about the
differences in Ineichen and Jones’s races. Rather, in her
deposition, when asked about who did not like Ineichen’s
relationship with Jones, Moulton responded: “the older
representatives, you know, that had been there quite some
time because they were so sick of hearing about so and so
sleeping with who or this and that.”
Although at the summary judgment stage we must inter-
pret the evidence in the light most favorable to Ineichen,
Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1312 (7th

-- 11 of 14 --

12 No. 04-3094
Cir. 1989), that does not allow her to contradict deposition
testimony with later-filed contradictory affidavits. As we
explained in Bank of Illinois, “[w]e have long followed the
rule that parties cannot thwart the purposes of Rule 56 by
creating ‘sham’ issues of fact with affidavits that contradict
their prior depositions. . . . If such contradictions were
permitted . . . ‘the very purpose of the summary judgment
motion—to weed out unfounded claims, specious denials,
and sham defenses—would be severely undercut.’ ” Bank of
Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162,
1168-69 (7th Cir. 1996). Because Moulton unequivocally
testified in her deposition that Williams and Shaw never
commented on the fact that Jones was black and Ineichen
white, we reject Ineichen’s attempt to create an issue to
avoid summary judgment with a newly filed affidavit
which contradicts her earlier testimony.
Ineichen also points to a comment Williams allegedly
made to the effect that given the culture we live in, and
Rock Island being in the Midwest, she and Jones had to be
careful. Ineichen argues the reference to “culture” was a
code for a disapproval of the interracial nature of their
relationship. However, in her deposition, in discussing this
reference to “culture” Ineichen testified that Williams never
explicitly mentioned their race, but instead commented on
their age difference—Ineichen was substantially younger
than Jones. Thus, this comment fails to establish a racial
animus. Ineichen also testified that Shaw talked about other
people in the office having a problem with the interracial
aspect of her relationship with Jones. At most, this shows
that some coworkers disapproved of the relationship.
Neither statement, however, shows that the decisionmakers
harbored an animus against Ineichen because she was white
and Jones was black. Moreover, neither of these comments

-- 12 of 14 --

No. 04-3094 13
demonstrates a connection between Ineichen’s firing and
her interracial relationship with Jones. Therefore, Ineichen
has failed to present sufficient direct evidence to avoid
summary judgment on her claim that Ameritech discrimi-
nated against her based on her interracial relationship.
Ineichen also argues that the district court erred in grant-
ing Ameritech summary judgment on her sex discrimination
claim. To establish sex discrimination, Ineichen relies once
more on the indirect method of proof, pointing to the same
two individuals, Millbrook and Tousseau, referenced above
in the context of her race discrimination case. However, as
noted above Millbrook and Tousseau were not similarly
situated to Ineichen, and Ineichen therefore cannot establish
a prima facie case of sex discrimination. Moreover, even if
they were similarly situated, as discussed above, Ineichen
failed to present evidence of pretext. See supra at 8. Accord-
ingly, Ameritech was entitled to summary judgment on
Ineichen’s sex discrimination claim as well.
III.
Ineichen failed to present evidence that a similarly situ-
ated non-white or a male employee was treated more favor-
ably or that Ameritech’s proffered reason for her discharge
was pretexual. Therefore, her claims of race and sex discrim-
ination fail under the McDonnell Douglas indirect method.
Ineichen also failed to present sufficient evidence under the
direct method that Ameritech fired her because she was
dating a black man. Accordingly, the district court properly
granted Ameritech summary judgment. We AFFIRM .

-- 13 of 14 --

14 No. 04-3094
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-10-05

-- 14 of 14 --