Belinda Egan v. Freedom Bank ( 2011 )


Menu:
  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 10-1214
    B ELINDA E GAN,
    Plaintiff-Appellant,
    v.
    F REEDOM B ANK, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Northern District of Illinois, Western Division.
    No. 3:09 CV 50013— Philip G. Reinhard, Judge.
    A RGUED M AY 28, 2010—D ECIDED O CTOBER 6, 2011
    Before M ANION, W ILLIAMS, and H AMILTON, Circuit Judges.
    W ILLIAMS, Circuit Judge. Only seven months after
    Freedom Bank recruited Belinda Egan to serve as one of its
    vice presidents, the bank fired her. She had no performance
    issues, no attendance problems, and no complaints against
    her. What she did have, though, was dinner shortly after
    she began with a member of the bank’s board of directors.
    The board member told her the fantasies he had about her,
    and she declined his advances. Egan complained to the
    2                                               No. 10-1214
    bank’s Human Resources officer that the board member
    had sexually harassed her, and the board member re-
    signed. Shortly after that, the person named as the bank’s
    new president told its then-president that he heard Egan
    had done something that she should have been fired for.
    And about two months after the new president assumed
    office, Egan was fired. A jury might credit the bank’s
    stance that the new president eliminated Egan’s position
    simply to reduce inefficiencies. Or it might agree with Egan
    that the bank terminated her in retaliation for her claim of
    sexual harassment. We conclude that the conflicting
    inferences that can be drawn from the record require a
    resolution by a jury. Therefore, we reverse the entry of
    summary judgment against Egan on her retaliation claim.
    I. BACKGROUND
    As this appeal comes to us from the entry of summary
    judgment against her, we recount the narrative that follows
    by viewing all facts in the record and drawing all reason-
    able inferences in the light most favorable to Egan.
    Zerante v. DeLuca, 
    555 F.3d 582
    , 584 (7th Cir. 2009).
    Greg Dempsey, then the president of Freedom
    Bank, contacted Belinda Egan in the spring of 2007 about a
    position at the bank. He already knew Egan, as the two
    had worked together at a different bank. Egan accepted
    Freedom Bank’s offer to become its vice president of
    retail banking and began working there on July 17, 2007.
    Egan met Don Burton, a member of the bank’s board of
    directors, during her first week on the job. Burton came
    into the bank when he was onsite for a board meeting,
    No. 10-1214                                             3
    and Egan asked his opinion about challenges Freedom
    faced in a particular market. They agreed to continue
    their conversation a week later over the lunch hour
    at Applebee’s. After that meeting, Egan saw Burton several
    times over the ensuing months when he would occasion-
    ally stop in the bank. They agreed to meet again on Sep-
    tember 13, 2007, and Burton asked her, “Do you want to
    meet at my place or somewhere else?” Egan named a
    restaurant. They met there at about 4:00 p.m., and Burton
    gave Egan feedback on a document she had requested
    that he review.
    Egan saw Burton again when she attended a bank board
    meeting on September 18, 2007. Burton called her that
    week and said he wanted to meet with her to discuss
    her meeting with Larry Henson, the CEO of Freedom
    Bank’s parent corporation, and they agreed to meet at
    a restaurant in the mid afternoon of September 20, 2007.
    That day, Burton and Egan discussed her meeting
    with Henson, and Burton told Egan that he had recom-
    mended to the board that they consider her to be the
    next president of Freedom Bank. Burton also said that
    the board of directors had the power to fire the
    bank’s senior management team, which caused Egan to
    feel uncomfortable. The conversation did not only involve
    work matters, however. Burton told Egan that he fanta-
    sized about making love to her on a dance floor
    and wanted to take her to Las Vegas and other places
    around the world. Egan declined his advances, and Burton
    replied, “If you change your mind, I’ll be home alone
    next Tuesday.” Wanting to leave, Egan secretly told
    her husband to telephone her, and, when the call came,
    she answered and informed Burton she needed to leave.
    4                                               No. 10-1214
    Egan told her friend Sheila Dempsey what had tran-
    spired and asked her not to tell her husband Greg Demp-
    sey, the president of Freedom Bank at the time. The next
    day, Sheila apologized and told Egan that she
    had informed her husband what had happened. Egan
    and Greg Dempsey then discussed her conversation
    with Burton. On September 24, 2007, Egan complained
    to the bank’s vice president of Human Resources,
    Rick Mineck, about what Burton had said to her at dinner.
    Mineck opened an investigation into Egan’s complaint.
    Before Mineck could interview Burton, Burton resigned
    from the bank’s board of directors. Mineck sent Egan
    a letter on October 2, 2007 stating that he had investigated
    Egan’s complaint and that action had been taken to
    prevent a reoccurrence of a similar incident. The letter
    also stated that no adverse action or retaliation would
    occur as a result of the complaint and that if she believed
    she was the subject of adverse action or retaliation,
    she should immediately contact Larry Henson, the CEO
    of Freedom Bank’s parent corporation.
    Greg Dempsey was transitioning out of his role as
    bank president around this time. Dave Barajas, Jr.
    was ultimately hired to replace him. Henson told Egan
    that she had been a candidate for the president position
    but that another person had been chosen, and he said
    that if she was willing to commit the time, he was
    willing to fund her courses in a graduate school banking
    program.
    Barajas and Greg Dempsey had various conversations as
    Barajas was considered for and prepared to become bank
    No. 10-1214                                                5
    president. In a conversation critical to this case, according
    to Dempsey, during September or early October of 2007,
    Barajas told him that he had heard Egan “had
    done something that she should have been fired for.”
    Dempsey believed Barajas was referring to Egan’s
    report that Burton said inappropriate things to her
    over dinner. Barajas denies making the statement to
    Dempsey.
    Barajas officially began as president of Freedom Bank
    in early December of 2007. Egan’s responsibilities initially
    increased because Barajas relied on her for day-to-day
    operations as he learned the job, but she said he refused
    to meet with her about plans for the future. Barajas
    did meet with others regarding the future, though, and
    he hired four new employees over the next several
    months. He hired Richard McCormick in January of 2008
    as vice president of private banking, Pam Topper to
    serve as vice president of corporate services, Amy
    Young to assist McCormick and then later to handle daily
    branch management duties, and Lyle Spaulding as a
    commercial lender.
    On February 22, 2008, Barajas wrote a letter to Egan
    advising her that he had decided to eliminate the position
    of vice president of retail banking, Egan’s position.
    The letter gave no reason for this decision. Egan filed
    suit alleging retaliation, a hostile work environment,
    and discrimination on the basis of her sex. The district
    court entered summary judgment against Egan, and
    she appeals.
    6                                             No. 10-1214
    II. ANALYSIS
    A. Summary Judgment Rulings
    We review the district court’s grant of summary judg-
    ment de novo, and we view all facts and draw all reason-
    able inferences therefrom in the light most favorable to
    Egan, the nonmoving party. See Poer v. Astrue, 
    606 F.3d 433
    , 438-39 (7th Cir. 2010). Summary judgment
    is only appropriate when the pleadings, discovery materi-
    als, disclosures, and affidavits demonstrate that there
    is no genuine issue as to any material fact and that
    the moving party is entitled to judgment as a matter of
    law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
    Catrett, 
    477 U.S. 317
    , 322-23 (1986).
    Title VII makes it unlawful for an employer to discrimi-
    nate against an employee for opposing a practice that
    Title VII forbids. 42 U.S.C. § 2000e-3; Poer, 
    606 F.3d at 439
    . A plaintiff may proceed under either the direct
    or indirect method to prove her claim of retaliation
    in violation of Title VII. Poer, 
    606 F.3d at 439
    . To
    proceed under the direct method as Egan does here,
    a plaintiff must show through either direct or circumstan-
    tial evidence that (1) she engaged in statutorily pro-
    tected activity; (2) she suffered an adverse action taken
    by the employer; and (3) there was a causal connection
    between the two. 
    Id. at 439
    . If the plaintiff’s evidence
    of retaliatory animus is contradicted,
    [T]he case must be tried unless the defendant
    presents unrebutted evidence that it would have
    taken the adverse employment action against the
    plaintiff anyway, “in which event the defendant’s
    No. 10-1214                                              7
    retaliatory motive, even if unchallenged, was not
    a but-for cause of the plaintiff’s harm.”
    Haywood v. Lucent Techs., Inc., 
    323 F.3d 524
    , 531 (7th
    Cir. 2003) (quoting Stone v. City of Indianapolis
    Pub. Utils. Div., 
    281 F.3d 640
    , 642 (7th Cir. 2002)).
    The parties agree that Egan’s complaint to her
    Human Resources department that Burton had
    sexually harassed her constitutes statutorily protected
    activity. See 42 U.S.C. § 2000e-3(a). It is also clear
    that termination constitutes an adverse action.
    Haywood, 
    323 F.3d at 531
    . The issue, then, is whether
    Egan has introduced sufficient evidence from which a
    jury could find that there is a causal connection
    between her protected activity and her firing. See
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 249 (1986)
    (“at the summary judgment stage the judge’s function
    is not himself to weigh the evidence and determine
    the truth of the matter but to determine whether there is
    a genuine issue for trial”).
    Freedom Bank maintains that Barajas and the
    bank simply made a business decision to eliminate
    Egan’s position, and that her firing was not motivated
    in any way by her harassment complaint. Barajas
    testified in his deposition that Egan’s tasks were duplica-
    tive of those performed by another employee, and that
    for that reason, a business decision was made to
    eliminate Egan’s position. Consistent with Barajas’s
    position, Henson testified that he and Barajas partici-
    pated in discussions evaluating the bank’s entire organiza-
    tional structure. Henson stated that the bank was losing
    8                                              No. 10-1214
    money, so its leaders were attempting to make business
    decisions as to how best to proceed to develop the
    bank with a structure that ensured its profitability
    going forward. As part of that review, Henson said
    the decision was made to eliminate the middle manage-
    ment position Egan occupied at the time. Henson
    also stated that at least one other position had been
    eliminated since the decision was made to eliminate Egan’s
    position.
    With respect to the new hires, Henson testified that
    he had specific discussions with Barajas before Barajas was
    hired regarding new people that he might want to hire
    and what their roles might be. In particular, Henson
    said they discussed McCormick, whom Freedom Bank
    had been trying to recruit for a year or two. They also
    discussed Pam Topper, who like McCormick worked at
    a different bank where Barajas had served as a director,
    and they discussed a third person as well. The
    bank therefore takes the position that these new hires
    were not inconsistent with its decision to terminate
    Egan’s employment.
    The bank’s explanation is plausible, but on summary
    judgment, “the court has one task and one task only:
    to decide, based on the evidence of record, whether
    there is any material dispute of fact that requires
    trial.” Waldridge v. Am. Hoechst Corp., 
    24 F.3d 918
    , 920
    (7th Cir. 1994). Although a jury might agree with the
    bank that it eliminated Egan’s position for efficiency
    and operational reasons, there is also sufficient evidence
    in the record, viewed in the light most favorable to Egan
    No. 10-1214                                               9
    as we must, from which a reasonable jury could
    conclude that the bank instead fired Egan because
    she complained she had been sexually harassed by one
    of the bank’s esteemed board members. Notably,
    Greg Dempsey asserts that Barajas told him he heard
    Egan “had done something she should have been
    fired for.” Although the bank argues that the reference
    in the statement is ambiguous, certainly one reasonable
    conclusion that can be drawn from the comment is
    that Barajas was referencing Egan’s complaint that Burton
    had sexually harassed her. Indeed, that was the conclusion
    Dempsey drew. That conclusion need not even be the
    only reasonable conclusion that could be drawn to
    survive summary judgment; even so, there is no
    other explanation suggested by the record for what Barajas
    could be referencing.
    There are other factors a jury could weigh in Egan’s favor
    as well. A jury might also consider that Egan’s position
    was the only one the bank eliminated in 2008. It could
    also look to the fact that although the bank maintained
    that financial considerations were one reason for
    the decision to eliminate Egan’s position, it nonetheless
    hired four other persons in the first few months of
    Barajas’s tenure. And Egan had no performance issues.
    In short, Egan’s claim that the bank retaliated against
    her and eliminated her position because she com-
    plained of sexual harassment are “not so incredible or
    implausible . . . that a reasonable jury could not find in
    [her] favor.” Kodish v. Oakbrook Terrace Fire Prot. Dist.,
    
    604 F.3d 490
    , 507 (7th Cir. 2010). We therefore reverse the
    grant of summary judgment on Egan’s retaliation claim.
    10                                              No. 10-1214
    Egan also makes perfunctory arguments in her brief
    that her hostile work environment and gender discrimina-
    tion claims should proceed to trial. The single
    verbal proposition in this case by a member of the board
    of directors does not rise to the level of a hostile
    work environment, however. See Berry v. Chi. Transit
    Auth., 
    618 F.3d 688
    , 691-92 (7th Cir. 2010) (comments
    must be severe or pervasive to create a hostile work
    environment). The bank’s hire of a male as its president
    instead of Egan does not create a triable issue that
    it discriminated against her on the basis of her gender,
    as she does not develop any argument as to why
    she was similarly qualified. See Bodenstab v. County of Cook,
    
    569 F.3d 651
    , 658 (7th Cir. 2009) (issues not developed
    in an opening brief are waived). Summary judgment on
    the hostile work environment and gender discrimination
    claims was proper.
    B. Magistrate Judge’s Orders
    Egan also wishes to challenge orders entered by
    a magistrate judge on November 6, 2009 and January 5,
    2010. The latter order directed Egan to pay the defendants
    $4,815. The order also stated it would set a time by
    which the amount must be paid after the district court
    decided the defendants’ pending motion for summary
    judgment. Both parties characterize the orders as sanc-
    tions orders.
    The district court granted the defendants’ motion for
    summary judgment on January 11, 2010 and entered
    judgment that day. The district court made no mention
    No. 10-1214                                                 11
    of the magistrate orders, nor had Egan objected to
    them. She maintains she did not object because the
    district court’s judgment was entered before the fourteen-
    day time period to object to the magistrate’s latest
    order had run. See Fed. R. Civ. P. 72. To date, no time
    has been set by which the attorneys’ fees must be paid,
    nor has the district court considered the propriety of the
    award.
    The defendants maintain we lack jurisdiction to
    consider the magistrate’s orders, and they are correct. We
    first note that our jurisdiction over the substantive
    appeal was clear. See Budinich v. Becton Dickinson
    and Co., 
    486 U.S. 196
    , 200-01 (1988); Houben v. Telular
    Corp., 
    231 F.3d 1066
    , 1071 (7th Cir. 2000). With respect
    to the magistrate orders, there is an initial question as to
    whether there is even a final order, as the last order did
    not set a time by which the fees were to be paid and
    instead stated that a time would be set at a later date.
    See Shapo v. Engle, 
    463 F.3d 641
    , 643 (7th Cir. 2006) (describ-
    ing test for finality as whether the judge has finished with
    the case). More importantly here, the parties had not
    consented to proceed before a magistrate judge under
    
    28 U.S.C. § 636
    (c). In the absence of a consent, a magistrate
    judge may only recommend a sanctions disposition
    to the district court, and only the district court’s decisions
    are reviewable in the appellate court. See Directv,
    Inc. v. Barczewski, 
    604 F.3d 1004
    , 1011 (7th Cir. 2010);
    Alpern v. Lieb, 
    38 F.3d 933
    , 936 (7th Cir. 1994); see also
    King v. Ionization Intern., Inc., 
    825 F.2d 1180
    , 1185 (7th Cir.
    1987) (“The only part of the statute that expressly autho-
    rizes the magistrate to enter a final judgment appealable
    12                                              No. 10-1214
    directly to the court of appeals is 
    28 U.S.C. § 636
    (c).”).
    We therefore lack jurisdiction over the challenges Egan
    would like to make to the magistrate’s orders. On remand,
    the district court will have the opportunity to consider
    the orders, see Alpern, 
    38 F.3d at 936
    , along with the defen-
    dants’ arguments that Egan failed to object to the orders
    in a timely manner.
    III. CONCLUSION
    The judgment of the district court is REVERSED and this
    case is R EMANDED for further proceedings consistent with
    this opinion.
    10-6-11