Minor, M. Jane v. Centocor Inc , 457 F.3d 632 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3080
M. JANE MINOR,
Plaintiff-Appellant,
v.
CENTOCOR, INC., and
JOHNSON & JOHNSON, INC.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
Nos. 02-3354 & 04-3114—Richard Mills, Judge.
____________
ARGUED APRIL 7, 2006—DECIDED AUGUST 4, 2006
____________
Before FLAUM, Chief Judge, and POSNER and
EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. M. Jane Minor was a sales
representative for Centocor, pitching to physicians and
hospitals the products that Centocor and its affiliates
offered to treat vascular conditions. After Antonio Siciliano
became her supervisor, Minor contends, she was put in
an impossible situation—Siciliano required her to visit
all of her accounts twice a month, and her major accounts
more frequently. That led her to work 70 to 90 hours a week
(much of it driving time); until then 50 to 55 hours had been
enough. In August 2001, after two months of this regimen,
Minor began to experience atrial fibrillation and depression.
2 No. 05-3080
In October 2001 she stopped working. Both Centocor and
the Social Security Administration have concluded that
Minor is disabled (she receives benefits from both sources).
She attributes her medical problems to Siciliano’s demands.
In this litigation Minor contends that those demands
reflected both age and sex discrimination, violating the Age
Discrimination in Employment Act and Title VII of the Civil
Rights Act of 1964. (Minor has sued not only Centocor but
also its corporate parent, which is not a proper party. Worth
v. Tyer, 276 F.3d 249, 259-60 (7th Cir. 2001). We treat
Centocor as the only defendant.) Minor wants the court
to award the difference between her disability benefits
and what she could have made had she remained in the
work force. (Her lawyer related at oral argument that she
does not seek any other recovery.)
Nothing in the record so much as hints that Centocor
in general, or Siciliano in particular, is biased against
women or older workers, so Minor proposes to use the
indirect method of proof pioneered by McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The district court
concluded, however, that Minor had not established a prima
facie case under that method because Centocor did not take
any “adverse employment action” against her. Minor was
not fired or demoted; she is still Centocor’s employee,
welcome to resume work if her condition improves. The
events of which she complains—not only the schedule for
visiting accounts but also being bombarded by email
messages from Siciliano and being subject to criticism and
close supervision—are the ordinary incidents of employ-
ment rather than adverse actions, the judge concluded in
granting summary judgment for Centocor.
Although hundreds if not thousands of decisions say that
an “adverse employment action” is essential to the plain-
tiff’s prima facie case, that term does not appear in any
employment-discrimination statute or McDonnell Douglas,
No. 05-3080 3
and the Supreme Court has never adopted it as a legal
requirement. The statutory term is “discrimination,” and a
proxy such as “adverse employment action” often may help
to express the idea—which the Supreme Court has
embraced—that it is essential to distinguish between
material differences and the many day-to-day travails
and disappointments that, although frustrating, are not
so central to the employment relation that they amount
to discriminatory terms or conditions. See, e.g., Burlington
Northern & Santa Fe Ry. v. White, No. 05-259 (U.S. June
22, 2006), slip op. 13-14; Faragher v. Boca Raton, 524 U.S.
775, 788 (1998); Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 80-82 (1998). See also Washington v.
Illinois Department of Revenue, 420 F.3d 658, 661-63 (7th
Cir. 2005); Herrnreiter v. Chicago Housing Authority, 315
F.3d 742, 743-45 (7th Cir. 2002). Helpful though a judicial
gloss such as “adverse employment action” may be, that
phrase must not be confused with the statute itself or
allowed to displace the Supreme Court’s approach, which
inquires whether the difference is material.
Extra work can be a material difference in the terms and
conditions of employment. See Tart v. Illinois Power Co.,
366 F.3d 461, 475 (7th Cir. 2004); Greer v. St. Louis Re-
gional Medical Center, 258 F.3d 843, 845-46 (8th Cir. 2001).
Minor contends that Siciliano required her to work at least
25% longer to earn the same income as before. That is
functionally the same as a 25% reduction in Minor’s hourly
pay, a material change by any standard. And if Centocor
requires women (or older workers) to work longer hours
than men (or younger workers) to obtain the same remuner-
ation, that material difference also is discriminatory and
violates federal law. So Minor’s suit may not be dismissed
on the ground that her grievances are too niggling to come
within Title VII and the ADA.
Still, the McDonnell Douglas approach requires the
plaintiff to establish a difference in treatment compared
4 No. 05-3080
with a member of the favored group (in this case, a man or
a younger worker). Here Minor falls short. Siciliano re-
quired all sales representatives under his supervision to
visit their customers every other week. Minor (with the
support of an expert in pharmaceutical sales) says that this
is too often, but that’s not pertinent under federal law.
Employers may run (or ruin) their businesses as they
please, provided that they avoid discrimination on grounds
forbidden by federal law. See Forrester v. Rauland-Borg
Corp., No. 05-4650 (7th Cir. June 29, 2006) (collecting
authority); Pollard v. Rea Magnet Wire Co., 824 F.2d 557(7th Cir. 1987). Siciliano’s group included men and women,
over and under age 40; all were subject to the same require-
ments.
Minor insists that a formally equal rule affected her
disproportionately because her territory was larger. Her
accounts were located in Springfield, Illinois (where she
lived); St. Louis, Missouri; Peoria, Illinois; Des Moines and
Iowa City, Iowa; Evansville, Indiana; and Owensboro,
Kentucky. Driving time from Springfield to either Evans-
ville or Owensboro is eight hours each way; the drive to Des
Moines lasts between 5½ and 7 hours each way. St. Louis
is a 2-hour drive from Springfield and Peoria 1½. Driving
alone takes up a full work schedule; no time remains to call
on hospitals and physicians. The problem was aggravated,
Minor adds, by Centocor’s refusal to pay for moving ex-
penses so that she could relocate to St. Louis, from which
travel times would have been shorter. (Centocor responds
that where she lived was her affair, and that it does not
reimburse sales representatives of either sex or any age for
moving expenses.)
Other sales representatives may have had more com-
pact territories, but nothing in the record suggests that
Centocor assigned her accounts because of her sex or age.
Thus her line of argument hints at a disparate-impact
No. 05-3080 5
theory. Yet McDonnell Douglas is a framework for assessing
disparate-treatment claims, not disparate-impact claims.
Minor does not have a good disparate-impact theory
anyway, for she does not attempt to measure the effect of
Siciliano’s policy on all women (or all older workers); her
only contention is that the policy injured her, particularly.
That’s not sufficient by any standard.
What is more, at least some of the problem appears to
be of Minor’s making. She chose to drive rather than
travel by air—and she made round-trip journeys from
Springfield rather than circle trips (Springfield to St. Louis
to Iowa to Peoria to Evansville and Owensboro, then back
to Springfield). Although she blames infrequent air ser-
vice to Springfield for the decision to drive, she offers no
explanation for preferring out-and-back forays over circle
trips. The most efficient method may have been to meet
accounts in Springfield, drive to St. Louis (where her major
customers were located), and after doing the rounds there
use a combination of air travel and rental cars to visit Des
Moines, Iowa City, Peoria, Evansville, and Owensboro
before returning by air to St. Louis and driving home to
Springfield. Expenses of air travel and auto rental would
have been fully reimbursed by Centocor.
How to construct the shortest route that visits all destina-
tions is an old subject: in graph theory and linear program-
ming it is known as the “traveling salesman problem” and
is the subject of a considerable literature. Many of the
important papers on the topic are collected at
http://www.tsp.gatech.edu/history/biblio/tspbiblio.html. Our
suggested routing may or may not be optimal—that de-
pends in part on airline schedules—but is better than the
automobile-only, hub-and-spoke system that Minor pre-
ferred. Counsel seemed to assume the Centocor had the
burden to establish that a shorter tour was available, but
the plaintiff in employment-discrimination litigation bears
the burden of establishing the prima facie case, see
6 No. 05-3080
Ballance v. Springfield, 424 F.3d 614, 617 (7th Cir. 2005),
which entails proof of unequal treatment; and on this record
there is no foundation for a conclusion that Minor was
treated unequally, even in the sense of suffering a one-
person disparate impact.
Although Minor contends that Siciliano treated her
differently by providing a routing schedule, while allowing
other sales representatives to set their own, the record does
not support that contention. It does show that Siciliano sent
her a “sample routing”, which Siciliano invited Minor to
discuss, but it would not permit a reasonable jury to
conclude that Siciliano required Minor to use that routing
while giving other representatives free choice (recall that
Minor devised and followed her own routing)—nor would it
permit a jury to find that this “sample routing”, if designed
to be mandatory, was inefficient. Siciliano’s proposal
entailed air travel (except for an auto journey between
Evansville and Owensboro) and completed the tour in time
for Minor to spend every Friday in the office rather than on
the road. She never tried this routing (to repeat, driving
was her own preference) and has not offered any evidence
to show that, had it been followed, her schedule would have
been more onerous than that of younger or male employees.
Identification of a material difference in the terms and
conditions of employment is an objective exercise. That a
given employee perceives a burden is not enough, if that
burden is attributable to the employee’s own stubbornness
or miscalculation. Nothing in this record suggests that
Siciliano was trying to exploit a special vulnerability (as the
employer may have been trying to do in Washington); he
had no incentive to assign Minor an inefficient routing, for
his own income depended on the team’s sales. If he wanted
to replace Minor, there were much more direct ways to do
so. Because the record would not permit a reasonable jury
No. 05-3080 7
to conclude that Minor was treated worse than other sales
representatives on account of age or sex, the judgment is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-4-06