In the

       United States Court of Appeals
                     For the Seventh Circuit
                         ____________________
No. 18-1085
VICKI BARBERA,
                                                        Plaintiff-Appellant,
                                       v.

PEARSON EDUCATION, INC.,
                                                       Defendant-Appellee.
                         ____________________

          Appeal from the United States District Court for the
          Southern District of Indiana, Indianapolis Division.
   No. 1:16-cv-2533-JMS-DML — Jane Magnus-Stinson, Chief Judge.
                         ____________________

       ARGUED MAY 24, 2018 — DECIDED OCTOBER 12, 2018
                  ____________________

   Before MANION and BARRETT, Circuit Judges, and
GETTLEMAN, District Judge. *
   MANION, Circuit Judge. Vicki Barbera claims she did not get
the same chance to resign with severance pay that three men
got. She sued her former employer, Pearson Education, Inc.
(“Pearson”) for Title VII sex discrimination and other claims.


   *   Of the Northern District of Illinois, sitting by designation.
2                                                             No. 18-1085

She also says Pearson lost a key email exchange. The magis-
trate judge cured this by barring Pearson from disputing her
description of it, but declined to grant further sanctions. The
district court overruled Barbera’s objection. Accepting her
version of the missing emails, the district court granted sum-
mary judgment to Pearson because the proposed comparators
were not similarly situated. They sought resignation with sev-
erance pay 1 before circumstances materially changed, but
Barbera sought resignation with severance pay after they
changed. Barbera appeals the district court’s overruling her
objection about the emails and granting Pearson summary
judgment on the severance-pay discrimination claim. We af-
firm the district court.
                                  I. Facts 2
A. Background
    Pearson is an education publishing and assessment com-
pany. It employed Barbera from February 6, 1989, to February
29, 2016. Her last position was Manager of Business Analysis.
Back in April 2007, Pearson issued a Severance Policy provid-
ing severance pay. Only employees involuntarily terminated
without cause are eligible for severance pay (“No Voluntary
Departure” clause). Thus, employees leaving voluntarily are
ineligible. Also, if an employee is terminated as a result of a
sale, merger, “or any other transaction when [an] employee is
offered employment by the purchaser or another employer in




    1  We use “severance pay” as shorthand for “severance pay and bene-
fits.” A distinction between severance pay and benefits is immaterial here.
    2   We present the facts in the light most favorable to Barbera.
No. 18-1085                                                  3

connection with the transaction,” the employee is ineligible
for severance pay (“Merger/Acquisition” clause).
    In 2013, Pearson began to shift focus from physical to dig-
ital products. It saw a need to reduce its warehouses. Carving
an exception to the Severance Policy, Pearson issued a Volun-
tary Separation Plan in 2013 (“2013 VSP”), offering severance
pay to certain employees who left voluntarily. Eligible em-
ployees had a deadline to accept. Barbera was ineligible for
the 2013 VSP because it did not apply to her department.
    Pearson issued another VSP in 2014 (“2014 VSP”), with a
narrow acceptance window: February 17–28, 2014. Barbera
was eligible for the 2014 VSP, through which she could have
voluntarily resigned and received severance pay. She consid-
ered it, but declined. Pearson did not offer another VSP in
2014 or 2015. All separations after the 2014 VSP fell under the
Severance Policy, which states employees who leave volun-
tarily do not get severance pay and states employees termi-
nated as a result of any transaction but offered employment
by the purchaser or other employer do not get severance pay.
But Barbera points to three men who voluntarily left outside
the VSPs yet received severance pay.
   In July 2014, Pearson issued a “Request for Proposal” to
various entities, including R.R. Donnelley & Sons Company
(“Donnelley”), seeking to outsource.
B. Proposed comparators seek and receive severance pay
   In August 2014, Paul Zale (Director of Engineering) de-
cided to leave Pearson. He approached his boss about leaving
with severance pay and was offered it. He left Pearson on Sep-
tember 5, 2014. Pearson continued to pay him for 34 weeks.
4                                                             No. 18-1085

   In March 2015, Thomas Lukasik (Key Account Manager)
spoke with Michael Nathanson (a Senior Vice President at
Pearson) and asked about voluntarily separating from Pear-
son. Nathanson told Lukasik if he stayed until the end of a
project he could leave Pearson. Pearson allowed Lukasik to
leave voluntarily in June 2015 with six months of severance
pay. Lukasik stated that when his employment with Pearson
ended, “Pearson was looking to do another layer of budget
reduction.” (Lukasik Aff. ¶ 6, No. 1:16-cv-2533, DE 50-2 at 21.)
   In April 2015, Tony Ramsey (Information Technology Sys-
tem Administrator) told Debbie Freeman (Pearson’s Director
of Human Resources) he wanted to leave and asked about
severance pay. Pearson allowed him to resign voluntarily that
month with 38 weeks of severance pay. Ramsey stated that
when his employment with Pearson ended, “Pearson was
looking for management-level employee reductions … .”
(Ramsey Aff. ¶ 7, No. 1:16-cv-2533, DE 50-2 at 6.)
C. Transfer to Donnelley
    During the summer of 2015, Pearson decided to transfer3
its warehouses and print services to Donnelley. By July 2015,

    3 Barbera drops a footnote in her appellate brief to clarify the nature
of the transaction between Pearson and Donnelley: “The R.R. Donnelley
outsourcing was not a sale of assets, sale of stock, merger, consolidation,
liquidation or dissolution. Rather, Pearson was looking for an entity to
operate its end-to-end print supply chain in North America, and ulti-
mately transferred its warehouses, print manufacturing, paper procure-
ment, and supporting services to R.R. Donnelley.” (Appellant Br. at 28
n.8.) Pearson’s appellate response mentions “selling a portion of its busi-
ness … .” (Appellee Br. at 12.) And the district court’s order mentions “the
sale to R.R. Donnelley … .” (Order granting SJ, No. 1:16-cv-2533, DE 70 at
20.) But both parties and the district court generally refer to the deal as a
“transaction” or “transfer” or “outsourcing.” In any event, the specific
No. 18-1085                                                             5

Pearson gave Donnelley a list of employees at the warehouses
so Donnelley could make placement decisions. In September
2015, before the formal announcement of the transaction,
Mike Scheuring (Director of Supply Chain, Barbera’s direct
boss) told Barbera about it. He told her warehouse employees
(including her) would be “rebadged” (stay on the job but
transfer employment) to Donnelley on February 29, 2016.
Pearson and Donnelley signed a contract on October 13, 2015.
The effective date of the transfer was February 29, 2016.
D. Barbera seeks severance pay
    “Sometime in the later part of 2015,” Barbera verbally
asked three people at Pearson if she could leave with sever-
ance pay. (Appellant Br. at 9.) She spoke with Freeman, Tim
Martin (all management reported to Martin), and Scheuring.
She “felt that she was given the runaround.” (Id.) Each di-
rected her to Nathanson. Barbera admitted she has no evi-
dence she made these requests before September 2015, and
she does not claim she made these requests before then.
    Barbera asserts in her appellate brief that she asked repeat-
edly, “beginning in the later part of 2015,” to leave with sev-
erance pay. (Appellant Br. at 9.) She echoes this by saying
“[s]ometime in the later part of 2015” she approached several
individuals about severance pay. (Id.) These statements in her
brief, though not precise, are clearer than her deposition
about timing: “And in fact, [Debbie Freeman is] the first one,


transactional method is not relevant here. The Severance Policy’s prohibi-
tion of severance pay includes this language: “any other transaction when
such employee is offered employment by the purchaser or another em-
ployer in connection with the transaction … .” (Severance Policy, revised
Jan. 1, 2015, No. 1:16-cv-2533, DE 50-4 at 17, emphasis added.)
6                                                     No. 18-1085

later in the year, that I approached and asked if there would
be any severance available.” (Barbera Dep., 126:18–126:21,
No. 1:16-cv-2533, DE 51 at 27.) Barbera provided more speci-
ficity about timing in her summary judgment response, as we
see below.
    In its summary judgment brief, Pearson stated: “Shortly
after learning of the transaction in mid-September 2015, Ms.
Barbera asked several individuals whether there was any pos-
sibility of voluntarily ending her employment with Pearson
and receiving severance.” (Pearson MSJ Br., No. 1:16-cv-2533,
DE 52 at 10.) Barbera responded: “Defendant’s Brief argues
that Ms. Barbera made these requests ‘shortly after learning
of the transaction in mid-September, 2015.’ However, there is
no evidence in the record to indicate whether these requests
were made before or after September, 2015.” (Barbera MSJ
Resp., No. 1:16-cv-2533, DE 60 at 14 n.3, internal citation omit-
ted.) The district court correctly noted Barbera’s admission
that there is no evidence in the record to indicate whether she
made her initial three requests for severance before or after
September 2015 and correctly noted she bears the burden of
identifying similarly situated individuals but she has not al-
leged, much less shown, that she requested severance in the
same period as the three proposed comparators. On appeal,
Barbera does not point us to anything regarding the timing of
these requests more specific than the statement in her brief
that she approached several individuals “[s]ometime in the
later part of 2015.” (Appellant Br. at 9.) Thus, the light most
favorable to her would have put the beginning of her sever-
ance requests at July 1, 2015, at the earliest, which is well after
the last date a proposed comparator asked for severance
(Ramsey, April 2015). But even this light is too far a stretch
and cannot be supported because Barbera admitted there is
No. 18-1085                                                   7

no evidence in the record that she made these requests before
September 2015, and she does not claim she made these re-
quests before then.
    In this context, the district court observed the “only evi-
dence of these requests consists of Ms. Barbera’s deposition
testimony on the subject.” (Order granting SJ, No. 1:16-cv-
2533, DE 70 at 19 n.5.) Barbera argues on appeal the district
court discounted the credibility of her testimony, failed to
view the evidence in the light most favorable to her, and failed
to draw inferences in her favor. To the contrary, the district
court accepted Barbera’s version of the interactions, and cor-
rectly held that Barbera presented no evidence that she re-
quested severance during the same relevant time period as
the proposed comparators did. Considering everything Bar-
bera has raised, the light most favorable to her shows she first
requested severance in September 2015 at the earliest.
E. Barbera’s further requests for severance pay
   At an all-employee meeting on January 12, 2016, Pearson
formally announced the transaction with Donnelley by stat-
ing about 700 warehouse employees would be terminated by
Pearson on February 29, 2016, and would be notified whether
they would transition to Donnelley. Pearson told its employ-
ees if they decided to resign instead of transition they would
not receive severance, consistent with the Severance Policy.
   In January 2016, around the time of that announcement,
Barbera emailed Nathanson and asked if she could leave with
severance pay. She copied Scheuring. Nathanson replied via
email that if she wanted to exit voluntarily with severance,
she had to ask within the deadline for the 2014 VSP. Na-
8                                                  No. 18-1085

thanson’s reply did not mention the transaction or “rebadg-
ing” as the reasons for denying her severance request. This
email exchange is missing. We accept Barbera’s version of it.
    Sometime after Nathanson denied Barbera’s severance re-
quest, Barbera spoke with Freeman about Zale and Lukasik
resigning but still receiving severance pay, and said it did not
seem fair. Freeman reminded her Ramsey also received sev-
erance pay and then said, “don’t tell them I told you.”
    On February 8, 2016, Barbera renewed her request for sev-
erance pay by having her attorneys write to Dan Lennon,
Pearson’s Vice President and Senior Counsel. Pearson again
denied the request, but gave a different explanation. Lennon
wrote on February 18, 2016, Barbera was ineligible for sever-
ance pay under the Severance Policy because her separation
related to a “merger or acquisition” and because Donnelley
offered her a job. Lennon spoke with Nathanson the same day
about a litigation hold, but never spoke with Scheuring about
one. After the conversation between Nathanson and Lennon,
“Pearson destroyed all copies of the email string on which Mr.
Nathanson was a recipient and reply author.” (Appellant Br.
at 12.) Pearson also destroyed Barbera’s entire email account.
    Barbera’s employment with Pearson ended on February
29, 2016. Barbera did not appear for work on the day she could
have begun employment with Donnelley.
F. Summary of facts
   Pearson did not allow Barbera to leave outside a VSP with
severance pay even though it allowed three men to do so. The
three men each sought severance after the 2014 VSP deadline
and after Pearson issued the Request for Proposal in July 2014,
but before Pearson decided in the summer of 2015 to contract
No. 18-1085                                                  9

with Donnelley, before Pearson gave Donnelley an employee
list by July 2015, and before the contract was signed on Octo-
ber 13, 2015. The deal’s effective date was February 29, 2016.
Barbera first sought severance pay “later in the year” 2015 and
has no evidence (and does not claim) she asked for it before
September 2015. Her employment was involuntarily termi-
nated on February 29, 2016. Pearson never issued a written
litigation hold for this matter and never communicated with
Scheuring about a litigation hold. During this litigation, Bar-
bera asked Pearson to produce her January 2016 email ex-
change with Nathanson in which he told her she could not
receive severance pay because she missed the 2014 VSP dead-
line. But Pearson never produced it. Barbera insists she did
not delete it. We accept her version of the email exchange.
                   II. Procedural Posture
    Litigation ensued. Barbera moved under Rule 37(e) for
sanctions against Pearson regarding the missing email ex-
change. Pearson moved for summary judgment on all claims.
The magistrate judge granted Barbera’s motion in part by or-
dering as a cure that the jury would be instructed to take as
true the matters described in paragraphs 1 through 6 of Bar-
bera’s proposed stipulations of fact, but denied the motion in
part by not granting further sanctions. Barbera objected. The
district court overruled the objection and granted summary
judgment to Pearson on all claims. Barbera appeals the order
overruling her objection regarding sanctions and appeals the
grant of summary judgment regarding the Title VII sever-
ance-pay sex-discrimination claim. She does not appeal the
grant of summary judgment to Pearson on her other claims.
10                                                 No. 18-1085

                         III. Analysis
A. Missing emails
    We review the denial of discovery sanctions for abuse of
discretion. Chatham v. Davis, 

, 687 (7th Cir. 2016).
Barbera argues the lower courts did not go far enough in sanc-
tioning Pearson for destroying the emails. Preliminarily, the
magistrate judge found Pearson failed to take reasonable
steps to preserve relevant electronically stored information,
but only ordered Pearson could not contest Barbera’s recollec-
tion of the emails. Specifically, the magistrate judge held any
prejudice could be cured by requiring paragraphs 1 through
6 of Barbera’s proposed stipulations of fact—concerning the
contents of the email exchange—be taken as true. The magis-
trate judge declined to grant further sanctions because it
found “[t]he record before the court does not lead the court to
the conclusion that Pearson (or anyone whose actions can be
attributed to it) acted with the intent to deprive Ms. Barbera
of the use in the litigation of the information in the email ex-
change.” (MJ’s Order Mot. Sanctions, No. 1:16-cv-2533, DE 62
at 11.) Barbera objected and asked the district court to con-
sider further sanctions, including ordering an eventual jury to
take as true all her proposed stipulations of fact, but the dis-
trict court overruled the objection because she had not identi-
fied, and the court had not found, evidence of bad faith or in-
tent to deprive.
    If a party should preserve electronically stored infor-
mation for litigation but loses it by failing to take reasonable
preservation steps, the court upon finding prejudice “may or-
der measures no greater than necessary to cure the prejudice”
to the other party from the loss. Fed. R. Civ. P. 37(e)(1). Bar-
No. 18-1085                                                  11

bera seems to acknowledge the lower courts cured the preju-
dice by taking paragraphs 1 through 6 of her proposed stipu-
lations of fact as true.
   If the court finds the party “acted with the intent to de-
prive another party of the information’s use in the litigation,”
the court “may” impose further sanctions, including default
judgment. Fed. R. Civ. P. 37(e)(2). Barbera acknowledges she
has no direct evidence of Pearson’s intent, but argues circum-
stantial evidence, including the timing of the loss, is beyond
coincidental. We see no abuse of discretion. The district court
was not unreasonable in declining to find Pearson intended to
deprive her of the emails. Besides, even had the district court
made such a finding, relief was discretionary. And she has not
shown how acceptance of the other allegations in her pro-
posed stipulations would prevent summary judgment.
    The cure granted was enough. The court accepted as true
paragraphs 1 through 6 of her proposed stipulations: 1) Bar-
bera emailed Nathanson (copy to Scheuring) in January 2016,
around the time of the formal announcement of the transac-
tion; 2) her email asked him whether she could receive sever-
ance pay rather than rebadging and stated she would be
happy to extend her employment long enough to help in the
transition but she did want to leave; 3) he responded within
one workday by denying her request for severance pay and
stating that if she wanted to exit with severance she had to ask
within the 2014 VSP deadline; 4) she interpreted his email as
referring to the Voluntary Severance Pay policy of February
1, 2014; 5) his reply did not say anything about the outsourc-
ing or transaction being the reason for denying her request for
severance; 6) his reply did not say anything about rebadging
being the reason for the denial. We also accept these facts as
12                                                    No. 18-1085

true. But they make no difference here. Even Barbera’s version
of the emails contains neither a fabled smoking gun, nor a
shard of colored glass for the (jettisoned) convincing mosaic,
nor any other reason to deny summary judgment.
B. Summary judgment
    We review the grant of summary judgment de novo.
O’Leary v. Accretive Health, Inc., 

, 630 (7th Cir.
2011). We view the facts in the light most favorable to Barbera
and draw all reasonable inferences in her favor. Darst v. Inter-
state Brands Corp., 

, 907 (7th Cir. 2008).
    The district court granted Pearson summary judgment on
Barbera’s Title VII gender-discrimination claim. Barbera ap-
peals summary judgment on this claim, but she does not ap-
peal summary judgment on any other claim. Title VII of the
Civil Rights Act of 1964 makes it unlawful for an employer “to
fail or refuse to hire or to discharge any individual, or other-
wise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s race, color, religion, sex, or
national origin … .” 42 U.S.C. § 2000e-2(a)(1). With such a
claim, the “fundamental question at the summary judgment
stage is simply whether a reasonable jury could find prohib-
ited discrimination.” Bass v. Joliet Pub. Sch. Dist. No. 86, 

, 840 (7th Cir. 2014). “To survive summary judgment
on a Title VII discrimination claim, a plaintiff must present
‘evidence [that] would permit a reasonable factfinder to con-
clude that the plaintiff’s race, ethnicity, sex, religion, or other
proscribed factor caused’” the adverse employment action.
Milligan-Grimstad v. Stanley, 

, 710 (7th Cir. 2017)
(quoting Ortiz v. Werner Enters., Inc., 

, 765 (7th Cir.
2016)). In Ortiz, we exterminated “the rat’s nest of surplus
No. 18-1085                                                   13

‘tests’” in these cases, rejected unhelpful distinctions between
evidence, and emphasized that “all evidence belongs in a sin-
gle pile and must be evaluated as a whole.” 

. But we left McDonnell Douglas burden-shifting as a viable
option for pursuing employment discrimination claims.
    At summary judgment, Pearson and Barbera organized
their arguments in terms of the McDonnell Douglas framework
and the district court followed. Under this framework, Bar-
bera first had to show: 1) she is a member of a protected class;
2) she performed her job to her employer’s expectations; 3)
she suffered an adverse employment action; and 4) one or
more similarly situated individuals outside her protected
class received better treatment. Ferrill v. Oak Creek-Franklin
Joint Sch. Dist., 

, 500 (7th Cir. 2017). If she made
this prima facie showing, then the burden would shift to Pear-
son to present a legitimate, non-discriminatory reason for the
challenged employment action. 

carried this bur-
den, then the burden would shift back to Barbera to show pre-
text, or at least to produce evidence establishing a genuine
factual dispute about pretext to defeat summary judgment. 

not contest the first three parts of the prima
facie showing. The district court granted summary judgment
to it because Barbera failed to satisfy the fourth; she did not
raise evidence or reasonable inferences sufficient for a reason-
able jury to find any similarly situated individuals received
better treatment. “‘[A]n employee is similarly situated to a
plaintiff if the two employees deal with the same supervisor,
are subject to the same standards, and have engaged in simi-
lar conduct without such differentiating or mitigating circum-
stances as would distinguish their employer’s treatment of
them.’” Lauth v. Covance, Inc., 

, 716 (7th Cir. 2017)
14                                                  No. 18-1085

(quoting Hanners v. Trent, 

, 692–93 (7th Cir. 2012)).
“‘Similarly situated employees must be directly comparable
to the plaintiff in all material respects,’ yet this is a flexible
inquiry with no magic formula.” Khowaja v. Sessions, 

, 1015 (7th Cir. 2018) (quoting Coleman v. Donahoe, 

, 846–47 (7th Cir. 2012)). “Whether a comparator is
similarly situated is usually a question for the fact-finder, and
summary judgment is appropriate only when no reasonable
fact-finder could find that plaintiffs have met their burden on
the issue.” 

–47 (internal quotation
marks and citation omitted).
    This case boils down to timing. Barbera points to three
men who received severance pay outside the VSPs. But these
three requested severance pay and left Pearson well before
Barbera made her first severance request “sometime in the
later part of 2015” but not before September 2015, and well
before she emailed Nathanson with the request in January
2016. Zale requested severance pay in August 2014 and left in
September 2014. Lukasik requested severance pay in March
2015 and left in June 2015. Ramsey requested severance pay
and left in April 2015. The timing distinction means the pro-
posed comparators are not similarly situated because Pearson
went through rapid, material changes during 2015. It decided
in the summer of 2015 to contract with Donnelley. As the dis-
trict court noted, in July 2015 Scheuring began giving Donnel-
ley ratings detailing his team’s skills to assist it with place-
ment decisions. By September 2015, Scheuring told Barbera he
would ask her for data because a transition was going to hap-
pen. On October 13, 2015, Pearson signed the contract with
Donnelley. The district court correctly concluded that Pear-
son’s impending transaction with the promise of continued
No. 18-1085                                                    15

employment to individuals such as Barbera is a differentiat-
ing circumstance between her and the proposed comparators.
When Barbera sought severance pay, Pearson was in the
midst of transferring some of its business and transitioning
some of its employees to Donnelley. By the time she sought
severance pay, Pearson had already told Donnelley which
employees would be available to transition.
    When the three proposed comparators sought severance,
Pearson was shifting to digital products, consolidating ware-
houses, and making other budget cuts. But when Barbera first
sought severance “sometime in the later part of 2015” but not
before September 2015, Pearson was not seeking to eliminate
positions for budget concerns, and had already decided to
transition its entire warehouse workforce to Donnelley. When
Barbera first sought severance, the transaction was final or
nearly final, and Pearson had given information about its em-
ployees, including Barbera, to Donnelley so it could make
placement decisions. Barbera did not seek severance until af-
ter discussions about transitioning employees began, but the
proposed comparators sought severance significantly earlier.
    Another significant difference is none of the three pro-
posed comparators were offered jobs by Donnelley and there
is no evidence it would have offered them jobs. But Barbera
was offered the same position she held at Pearson. This is sig-
nificant because the Severance Policy prohibited severance
pay in the event of a corporate transaction when the employee
was offered employment by the acquiring entity: “no sever-
ance will be paid to an employee terminated as a result of a
sale of assets, sale of stock, merger, consolidation, liquidation,
dissolution or any other transaction when such employee is
offered employment by the purchaser or another employer in
16                                                            No. 18-1085

connection with the transaction, regardless of whether the po-
sition offered is comparable to the employee’s current posi-
tion or is accepted by the employee.” (Severance Policy, re-
vised Jan. 1, 2015, No. 1:16-cv-2533, DE 50-4 at 17.) None of
the proposed comparators left Pearson because of a transac-
tion with another company in which they were offered em-
ployment.
    In sum, there are at least two main, related reasons the
three proposed comparators are not similarly situated to Bar-
bera. One is the timing of the requests for severance pay. The
circumstances at Pearson materially changed between the
time the last proposed comparator sought severance pay
(April 2015) and the time Barbera first sought severance pay
(sometime in the later part of 2015 but not before September
2015). The other stems from the Severance Policy’s Mer-
ger/Acquisition clause, which prevented Barbera from receiv-
ing severance pay but did not prevent the three proposed
comparators from receiving it. 4
   To avoid Title VII sex-discrimination liability, Pearson did
not need to make wise or even generally fair decisions, so long


     4

“Severance as a Result of Merger/Acquisition
“Notwithstanding any other provision of this Policy, no severance will be
paid to an employee terminated as a result of a sale of assets, sale of stock,
merger, consolidation, liquidation, dissolution or any other transaction
when such employee is offered employment by the purchaser or another
employer in connection with the transaction, regardless of whether the
position offered is comparable to the employee’s current position or is ac-
cepted by the employee.”
(Severance Policy, revised Jan. 1, 2015, No. 1:16-cv-2533, DE 50-4 at 17.)
No. 18-1085                                                   17

as it did not discriminate on the basis of sex. When all the ev-
idence is piled together, there are no facts or reasonable infer-
ences from which a reasonable jury could conclude Pearson
discriminated against Barbera because of her sex. She argues
on appeal a jury should decide the “fact-driven and credibil-
ity-laden” evaluation of whether the proposed comparators
are similarly situated to her. (Appellant Br. at 21.) We agree
with her that facts drive this case. Most cases are fact-driven—
and law-driven. We would also agree with her that this case
is fact-intensive. But even viewing the facts in the light most
favorable to her, and drawing all reasonable inferences in her
favor, we agree with the district court that the proposed com-
parators are not similarly situated to her and that she has
shown no grounds for a reasonable jury to find sex discrimi-
nation. Sheer complexity is not enough to stave off summary
judgment. Indeed, facts that are merely complicated but nev-
ertheless ineluctably point to one conclusion amount to even
less than the scintilla of evidence that famously cannot stave
off summary judgment. And whether or not this case is par-
ticularly credibility-laden, we take Barbera at her word but
still see no path around summary judgment.
    We are mindful that the “similarly situated” requirement
is part of the McDonnell Douglas boost to plaintiffs, and should
not be an insurmountable obstacle. 

.
But although the proposed comparators need not be identical
to Barbera, they must be situated similarly enough to suggest
prohibited discrimination. At summary judgment, Barbera
needed to come forward with evidence of discrimination. She
pursued the McDonnell Douglas path but did not reach the end
because timing and the Merger/Acquisition clause distin-
guish Barbera from the proposed comparators.
18                                                No. 18-1085

    We agree with the district court that Barbera failed to
make a prima facie showing of discrimination under the
McDonnell Douglas framework to avoid summary judgment.
But given Ortiz’s admonition to pile all the evidence together,
we will address her claim of pretext. She argues Pearson gave
two different explanations for the denial of severance, creat-
ing a genuine issue of material fact regarding pretext. Specif-
ically, she argues that Nathanson’s explanation of the denial
(in the missing January 2016 email which we accept Barbera’s
account of) was contradicted by Lennon’s explanation (in the
February 8, 2016 letter). Nathanson’s email said Barbera had
to opt into the 2014 VSP and did not say anything about the
Donnelley transaction being the reason for the denial. But
Lennon’s letter said the Merger/Acquisition clause of the Sev-
erance Policy applied to her due to the impending Donnelley
transaction. The two explanations differ, but they are not mu-
tually exclusive. Both can be true without violating the prin-
ciple of non-contradiction. A comparison of the email to the
letter does not suggest pretext or sex discrimination.
    Barbera also claims the district court committed error by
applying the “preponderance of the evidence” standard to the
pretext issue on summary judgment. It is true that the district
court used the wrong phrase in concluding she had “not met
her burden of proving by a preponderance of the evidence
that the reasons were pretext for discrimination.” (Order
granting MSJ, No. 1:16-cv-2533, DE 70 at 22.) At the summary
judgment stage, she needed only to raise a genuine issue of
material fact; she did not need to prove anything. But the dis-
trict court’s language was harmless. After all, it wrote in the
preceding sentence: “Nothing in the record suggests that ei-
ther of those reasons were proffered by Pearson in order to
mask unlawful discrimination or that Pearson lied about its
No. 18-1085                                                19

reasons for not offering Ms. Barbera severance.” (Id.) So even
though the burden language was wrong, the point is clear:
there is no evidence of pretext. Moreover, the misstatement of
the burden is also harmless because our review is de novo.
                       IV. Conclusion
   We AFFIRM the decisions of the district court overruling
Barbera’s objection regarding sanctions and granting sum-
mary judgment to Pearson on Barbera’s Title VII severance-
pay sex-discrimination claim.