In the

United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-2021

JERILYN A. L UCAS,
                                             Plaintiff-Appellant,
                               v.

P YRAM AX B ANK, FSB,
                                             Defendant-Appellee.
                        ____________

           Appeal from the United States District Court
                for the Eastern District of Wisconsin.
           No. 05-C-888—Rudolph T. Randa, Chief Judge.
                        ____________

    A RGUED F EBRUARY 12, 2008—D ECIDED A UGUST 22, 2008
                        ____________



  Before E ASTERBROOK, Chief Judge, and R IPPLE and
R OVNER, Circuit Judges.
   R OVNER, Circuit Judge. Jerilyn Lucas claims that her
former employer, PyraMax Bank, demoted and ultimately
fired her because of her gender in violation of Title VII of
the Civil Rights Act of 1964, see 42 U.S.C. § 2000e to 2000e-
17. Lucas also contends that PyraMax retaliated against her
in violation of Title VII, see 

and that it
2                                             No. 07-2021

took adverse employment actions against her because she
exercised her rights under the Family and Medical Leave
Act of 1993 (FMLA), see 29 U.S.C. § 2601 et seq., and the
Employment Retirement Income Security Act of 1974
(ERISA), see 29 U.S.C. § 1001 et seq. The district court
granted summary judgment in favor of PyraMax, and
for the reasons that follow, we affirm.


                     I. Background
  In February 2003, Lucas applied for the position of
branch executive officer (“BEO”) at PyraMax’s Greenfield
office. Lucas had at least fourteen years’ experience in
marketing and sales, consumer lending, collections, risk
management, and human resources at the time she applied,
but she had no prior experience as a BEO of a bank and
had not previously been responsible for the operational
functions of a lending institution. Lucas was interviewed
by Monica Baker, Senior Vice-President of Human Re-
sources, who then forwarded her application to Karen
Murphy, Senior Vice-President of Retail Banking. Murphy
eventually offered the position to Lucas, and she started
working as Greenfield’s BEO in March 2003.
  Soon after Lucas started, Murphy warned her about the
“personnel issues” at the branch. Murphy described the
staff as immature and informed Lucas that she would have
her “hands full” reinstating order. Murphy also told Lucas
about PyraMax’s flex-time policy, which gave employees
some flexibility in their work schedules, provided that at
least one member of management was on duty at all times.
Lucas had no performance problems when she started; in
No. 07-2021                                              3

fact, early on Murphy told Lucas that she was a “great
addition to the PyraMax Bank team.” But at the same
time, Murphy felt that Lucas needed a greater amount
of supervision than other BEOs.
  Lucas suffered from serious medical conditions through-
out her employment at PyraMax. During her first month on
the job, she had a kidney stone, and then the next month
she suffered from an unspecified “chronic and at times
debilitating illness” that required repeated treatment.
Despite her absences from work, at that time Lucas’s
performance did not suffer. In her first 90-day performance
evaluation dated June 10, 2003, Lucas was rated as either
“outstanding” or “effective” in all categories, although
she was told to increase her knowledge of operations
within the next two months.
  In August 2003, Murphy began receiving complaints
about Lucas. Members of Greenfield’s staff told Murphy
that Lucas did not understand the operational aspects of
banking, such as balancing the bank totals and deter-
mining where errors occurred in various transactions,
and that she was often not available to answer questions.
And according to Denise Walkowiak, a BEO at another
branch, Lucas would frequently call her with questions
about basic operational issues. Lucas also told Walkowiak
that she regularly came to work late and left early, and
Lucas admitted that, on average, she worked about
20 fewer hours per week than did Walkowiak. In Octo-
ber 2003 a branch receptionist told Murphy that Lucas’s
frequent absences and her inability to answer work-related
questions had become the subject of conversation among
4                                               No. 07-2021

members of the Greenfield staff. The receptionist informed
Murphy that members of the staff saw Lucas as unfamiliar
with operational duties and generally unapproachable.
Murphy noted some of these concerns in Lucas’s semi-
annual review, in which she gave Lucas ratings of “2” out
of “5” in the areas of staff performance management,
branch client services, and internal client services. But
Lucas excelled in sales, and during her tenure, Greenfield
enjoyed the highest sales of any PyraMax branch.
  Unfortunately, Lucas’s medical problems continued. In
late October 2003, while at work, Lucas experienced stroke-
like symptoms, and Murphy had to take her to the emer-
gency room. Lucas underwent a brain scan, which re-
vealed some abnormalities that required further testing.
Lucas shared these results with Murphy, and Murphy
told her that “news like this is the kiss of death in most
employers’ eyes.” The following month, Lucas was asked
to complete a medical questionnaire and return it to
human resources. Lucas had filled out a medical question-
naire eight months earlier, but, according to PyraMax, the
bank was transitioning to a self-funded health insurance
program and needed to supplement its records. PyraMax
also required Lucas to sign an authorization for release
of her medical records to the bank because, her doctor
later told her, the bank was seeking a “stop loss” insurance
policy to protect itself in case the cost of an individual
employee’s health care exceeded a certain amount.
  In December 2003 Lucas hired Jessica Overmyer as an
assistant BEO. Overmyer had started out at a different
branch within the bank and had performed well at that
No. 07-2021                                                  5

branch. That same month, Murphy hired Robert Cooper,
who had 15 years’ experience as a BEO, as a management
trainee. Lucas took bereavement and personal time off
between December 19, 2003, and January 19, 2004, and
Cooper served as BEO during this and other of Lucas’s
absences. According to Murphy, members of Greenfield’s
staff responded well to Cooper and his positive attitude
helped improve employee morale. Cooper also was said
to have an “excellent attendance record, 17 years with
never having called in sick.”
  In May 2004, a little over a year after her start with
PyraMax, Murphy informed Lucas of the current problems
with Lucas’s job performance. Murphy told Lucas that
she had a poor work attitude and that members of the
staff had “picked up on” her negativity. Lucas had en-
gaged in at least one public confrontation with a senior
staff member,1 and Murphy informed her that her behav-
ior (both in that instance and generally) was unprofes-
sional. Additionally, despite Murphy’s earlier admonish-
ments, Lucas still did not possess the required operations
and personnel-management skills. According to Murphy,
Lucas needed more supervision and advice about her
responsibilities than all other BEOs combined. Murphy


1
  The incident involved Consumer Lending Manager Eric
Halling, who, together with Murphy, played an April Fool’s Joke
on the staff by imposing an unreasonable demand (no details
are given as to the nature of this “demand”) in a fictional new
sales contest. We credit Lucas’s version of the event, in which
she criticized Halling in front of others, but did so because
she was defending her staff before they learned about the joke.
6                                               No. 07-2021

also voiced concern over Lucas’s frequent, unexcused
absences.
  In June 2004, after at least three employees had sought to
transfer out of Greenfield, Murphy met with Overmyer to
discuss the direction of the branch. Murphy noted that
Overmyer’s performance and attitude had drastically
worsened since her arrival at Greenfield, and Overmyer
explained that she was overwhelmed by the amount of
work that was now required. According to Overmyer,
because Lucas was frequently out of the office and, even
when she was there, was not able to answer operational
questions, Overmyer essentially had to do both her own
job and Lucas’s. Murphy then met with three other staff
members, two of whom confirmed that it was difficult
to get Lucas to answer questions and that she lacked
operations knowledge. Those same two employees also
stated, however, that Overmyer was too harsh with them.
From these meetings, Murphy concluded that Lucas’s
behavior was causing “an impending mass exodus of
employees from the Greenfield branch.” Murphy dis-
cussed the situation with Baker, and the two agreed that
Lucas should be removed from her position as BEO. But,
because Lucas was skilled in sales, they determined that
rather than fire her, they would demote her to a “floating
BEO trainee” position, where she was to undergo training
to improve her operational skills. Cooper replaced her
as BEO.
  Lucas accepted the new position and began training on
June 21, 2004. But she had to go on leave the next day
because her demotion had exacerbated an existing
No. 07-2021                                                   7

anxiety and panic disorder. Lucas did not return to work
until almost two months later. But in July 2004, while she
was on leave, Lucas filed a complaint with the Equal
Rights Division of Wisconsin’s Department of Workforce
Development, alleging gender discrimination and retalia-
tion. Lucas’s training resumed once she returned to work,
but in early October, Lucas was diagnosed with a genetic
sensory conflict condition, which left her unable to com-
plete most of the training. Despite her condition, Lucas
withdrew from PyraMax’s health insurance plan, effective
December 1, 2004, because, Lucas asserts, she thought
her job was in jeopardy and she decided to secure other
coverage. Lucas was transferred to a different branch
and by December 2004, staff members at that branch
began to complain about her performance. On Decem-
ber 10, Murphy terminated Lucas.


                         II. Analysis
  On appeal Lucas first contends that the district court
improperly granted summary judgment on her claim
that she was demoted and later fired because of her
gender. We review the district court’s grant of summary
judgment de novo, and we construe all reasonable infer-
ences in Lucas’s favor. See Maclin v. SBC Ameritech, 

, 786 (7th Cir. 2008); Metzger v. Ill. State Police, 

, 680 (7th Cir. 2008). Lucas relies on the indirect
method of proof articulated in McDonnell Douglas Corp. v.
Green, 

, 802 (1973), under which she had to
show that: (1) she is a member of a protected class, (2) she
met her employer’s legitimate job expectations, (3) she
8                                                 No. 07-2021

suffered an adverse employment action, and (4) similarly
situated employees outside of the protected class received
more favorable treatment. See Peirick v. Ind. Univ.-Purdue
Univ. Indianapolis Athletics Dep’t, 

, 687 (7th
Cir. 2007); Thanongsinh v. Bd. of Educ., 

, 772 (7th
Cir. 2006).
  In this case, Lucas has not presented sufficient evidence
to show that she was meeting PyraMax’s legitimate job
expectations. Although she was strong in sales and well-
received when she first started, Lucas later became unap-
proachable, was unable to answer the job-related ques-
tions from her staff, and, compared to other BEOs, was
unproductive. Consequently, as Murphy repeatedly
warned her, Lucas eventually fell far short of PyraMax’s
expectations. See Peele v. Country Mut. Ins. Co., 

,
328-29 (7th Cir. 2002) (concluding that employee whose
job performance was repeatedly criticized was not
meeting employer’s legitimate job expectations, despite
evidence that, at one point, employee had received positive
performance reviews); see also Hong v. Children’s Mem’l
Hosp., 

, 1262 (7th Cir. 1993) (noting that
central issue is whether employee was performing well
in her job at time of her firing). In addition, Murphy
believed that Lucas was responsible for “an impending
mass exodus” of workers from the branch. Although
Lucas has presented some evidence that Overmyer
may also have been part of the problem at the Greenfield
branch, at the most she has established that it may have
been bad business judgment for Murphy to attribute the
problems entirely to her. None of her evidence calls
into question Murphy’s genuine belief that Lucas was
No. 07-2021                                                 9

the cause of the “exodus” from the branch. And although
Murphy told her on several occasions that her operational
skills were lacking, Lucas never became proficient in
operations, and those skills—not just sales—were a sig-
nificant part of her job. Cf. Herron v. DaimlerChrysler Corp.,

, 300 (7th Cir. 2004).
  Lucas also cannot show that a similarly situated male
employee received better treatment than she did. We have
noted that a coworker must possess a “comparable set
of failings” to be similarly situated to the fired employee.
Burks v. Wis. Dep’t of Transp., 

, 751 (7th Cir.
2006) (internal quotation marks and citation omitted).
Lucas compares herself to Cooper, but he is not similarly
situated because he had a functioning working relation-
ship with members of the staff and also had better devel-
oped operational skills than she did.
  Next, Lucas contends that PyraMax retaliated against her
for filing a complaint with Wisconsin’s Equal Rights
Division. Lucas proceeds under the direct method of
proof; therefore, she had to show that (1) she engaged in
statutorily protected activity, (2) she suffered an adverse
action taken by the employer, and (3) there was a causal
connection between the two. See Fischer v. Avanade, Inc., 

, 408 (7th Cir. 2008); Dorsey v. Morgan Stanley, 

, 627 (7th Cir. 2007). In this case, Lucas was
demoted before she complained of gender discrimination,
and thus, this action could not have been retaliatory. With
regard to her firing, there is also no evidence that her
gender-discrimination complaint caused the discharge.
At the time that she complained, Lucas had already
10                                                  No. 07-2021

received several warnings that her job performance was
unsatisfactory. Although PyraMax demoted her to give
her a chance to improve her operational (and other) skills,
her performance record establishes that she had not done
so by the time she was fired. As such, nothing in the record
supports Lucas’s contention that PyraMax fired her
because she complained of gender discrimination.
  Lucas also claims that PyraMax demoted and then
discharged her for exercising her rights under the FMLA.
The FMLA makes it “unlawful for any employer to dis-
charge or in any other manner discriminate against any
individual for opposing any practice made unlawful” by
the Act. See 29 U.S.C. § 2615(a)(2); Kauffman v. Fed. Express
Corp., 

, 884 (7th Cir. 2005). To survive a motion
for summary judgment on her claim of retaliation under
the FMLA, Lucas had to submit evidence showing that
PyraMax demoted or fired her because she took valid
leave. See Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37,

, 616 (7th Cir. 2001). But, as we have noted,
“employers may fire employees for poor performance
if they would have fired them for their performance
regardless of their having taken leave.” Ogborn v. United
Food and Commercial Workers Union, Local No. 881, 

, 768 (7th Cir. 2002); see also Phelan v. City of Chicago, 

, 682-83 (7th Cir. 2006). Here the evidence
shows that Lucas was not adequately performing her job
and that her behavior was undermining the branch. We
recognize that Lucas highlights some rather unfortunate
remarks made by PyraMax, such as Murphy’s comment
that news about her poor health was the “kiss of death” for
most employees. But none of these comments were made
No. 07-2021                                                  11

contemporaneously or in connection with either the
demotion or discharge. Therefore, they fall in the category
of “stray remarks.” See, e.g, Nichols v. Southern Illinois
Univ.-Edwardsville, 

, 781-82 (7th Cir. 2007);
Adelman-Reyes v. Saint Xavier Univ., 

, 666-67
(7th Cir. 2007). And, as we have already observed, her
inability to perform operational duties and to interact
appropriately with members of the staff provided a
legitimate reason for PyraMax to fire her.
  Finally, Lucas argues that PyraMax fired her in viola-
tion of § 510 of ERISA to avoid paying medical benefits.
Under that section, an employer cannot discharge “ ‘a
participant or beneficiary for exercising any right to
which he is entitled under the provision of an employee
benefit plan.’ ” Dewitt v. Proctor Hosp., 

, 949 (7th
Cir. 2008) (quoting 29 U.S.C. § 1140). To create a triable
issue under § 510 using the indirect method of proof, Lucas
had to show sufficient evidence that she (1) belonged to
the protected class of participant or beneficiary, (2) was
qualified for her position, and (3) was fired under cir-
cumstances that support her contention that PyraMax
intended to deprive her of benefits. See Kampmier v. Emeri-
tus Corp., 

, 943 (7th Cir. 2007); Isbell v. Allstate
Ins. Co., 

, 796 (7th Cir. 2005). Because Lucas
voluntarily withdrew from PyraMax’s health insurance
plan before she was fired, the parties dispute whether
she qualifies as a participant of its health insurance
plan. The statute defines participant as “any employee or
former employee of an employer . . . who is or may become
eligible to receive a benefit of any type from an employee
benefit plan which covers employees of such employer or
12                                               No. 07-2021

members of such organization.” 29 U.S.C. § 1002(7).
Because Lucas could have re-enrolled had she not been
fired, the district court determined that she was a partici-
pant in PyraMax’s health care plan.
  We need not resolve this dispute, however, because
Lucas cannot satisfy the second or third prongs of the test.
As we discussed above, the evidence does not support
Lucas’s argument that she was qualified for her job when
PyraMax fired her. Additionally, we have held that “an
ERISA retaliation plaintiff must demonstrate that the
employer had the specific intent to violate the statute and to
interfere with an employee’s ERISA rights.” Bilow v. Much
Shelist Freed Denenberg Ament & Rubenstein, P.C., 

, 892 (7th Cir. 2001) (emphasis in original). Here,
PyraMax believed that Lucas was not a member of its
plan when it terminated her, at which time PyraMax also
had received several months’ worth of complaints about
Lucas’s poor job performance. Therefore, she cannot show
that PyraMax had the specific intent to deprive her of
benefits by firing her.


                      III. Conclusion
  For these reasons, the judgment of the district court is
A FFIRMED.




                            8-22-08