Pryor, Donna F. v. Seyfarth, Shaw, Fair ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2280
Donna F. Pryor,
Plaintiff-Appellant,
v.
Seyfarth, Shaw, Fairweather & Geraldson,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 7588--Harry D. Leinenweber, Judge.
Argued January 7, 2000--Decided May 11, 2000
Before Posner, Chief Judge, and Rovner and Evans,
Circuit Judges.
Posner, Chief Judge. The plaintiff appeals from
the dismissal of her suit, on motion for summary
judgment, for sexual harassment, and for
retaliation for complaining about it, all in
violation of Title VII. She was a secretary at a
large Chicago law firm and claims that in 1994 a
partner named Woodford for whom she was working
harassed her on account of her gender. She bases
the claim on five incidents, which for purposes
of this appeal we assume happened exactly as she
claims they did, spread over the last half of the
year:
1. Woodford asked to see a "Frederick’s of
Hollywood" catalog that was on the plaintiff’s
desk and asked her whether she had ever bought
anything from Frederick’s. When she said yes,
Woodford responded: "Well, can I see some
pictures of you in some of the outfits that you
have bought from Frederick’s of Hollywood?" She
said she had bought only shoes from Frederick’s,
and so there were no pictures of her wearing
outfits from that store. He said, "Well, when you
get some pictures can I see them?"
2. He said her shoes were "unusual" and that he
"prefer[red] to see you in shoes with your toes
out as opposed to those type of shoes."
3. He asked her "What’s the color for next week?"
and when she replied that she didn’t know he
said, "Do all your clothes correspond?"
4. Working on a case the documents in which
included a book that had pictures of women in
bondage or black leather, Woodford asked Pryor to
"look at this." When she inquired whether it was
relevant to a case, he replied, "No, I just
wanted you to see it."
5. Noticing an outfit in a shopping bag behind
Pryor’s desk, Woodford said, "Oh, a new outfit?"
And when she said yes, he said, "Is that
something you got from Frederick’s of Hollywood?"
Neither singly nor in combination do these
incidents rise to the level at which alleged
sexual harassment becomes actionable under
federal law. Incidents 3 and 5 seem entirely
innocuous, 1 and 2 mildly flirtatious, and 4
possibly suggestive or even offensive, but not so
offensive as to constitute actionable harassment.
For Title VII does not forbid sexual harassment
as such. The harassment must be sufficiently
severe that a rational trier of fact could find
that it had actually changed the conditions of
the plaintiff’s workplace, e.g., Silk v. City of
Chicago, 194 F.3d 788, 804 (7th Cir. 1999); Cowan
v. Prudential Ins. Co., 141 F.3d 751, 755-56 (7th
Cir. 1998); Mendoza v. Borden, Inc., 195 F.3d
1238, 1245-46 (11th Cir. 1999), for only sexual
discrimination that changes those conditions is
(so far as bears on sexual harassment at any
rate) actionable under that statute. E.g., Smith
v. Sheahan, 189 F.3d 529, 532 (7th Cir. 1999).
The harassment alleged here falls short of the
harassment held in Baskerville v. Culligan Int’l
Co., 50 F.3d 428 (7th Cir. 1995), and other
cases, e.g., McKenzie v. Illinois Dept. of
Transportation, 92 F.3d 473, 476-77, 480 (7th
Cir. 1996); Saxton v. American Tel. & Tel. Co.,
10 F.3d 526, 538, 534 (7th Cir. 1993); Weiss v.
Coca-Cola Bottling Co., 990 F.2d 333, 334-35, 337
(7th Cir. 1993); Mendoza v. Borden, Inc., supra,
195 F.3d at 1242-43, 1247 (and cases cited in id.
at 1246-47); Shepard v. Comptroller of Public
Accounts, 168 F.3d 871, 872, 874 (5th Cir. 1999);
Quinn v. Green Tree Credit Corp., 159 F.3d 759,
768 (2d Cir. 1998), to be beyond the reach of
Title VII because insufficiently severe to change
the conditions of employment as they would be
perceived by a reasonable person, not
hypersensitive.
Pryor seeks to distinguish these cases by means
of two affidavits filed after her deposition, at
which she testified about the five incidents
summarized above. One affidavit is hers and
asserts that Woodford had been harassing her for
years. The other affidavit is by another former
employee of the Seyfarth firm and alleges that
she was harassed by Woodford too. As far as
Pryor’s affidavit is concerned, she gives us no
reason to depart from the presumption that an
affidavit which seeks to bolster a party’s prior
deposition is not entitled to consideration,
e.g., Maldonado v. U.S. Bank, 186 F.3d 759, 769
(7th Cir. 1999); Raskin v. Wyatt Co., 125 F.3d
55, 63 (2d Cir. 1997), while the other affidavit
shows only that Pryor’s lawyer is confused about
the rule that sexual harassment is actionable
under Title VII only when it changes the
plaintiff’s conditions of employment. Insofar as
Woodford harassed other employees, and did so
without (so far as appears) Pryor’s knowledge, it
could not have altered her conditions of
employment, and so she could not complain about
that harassment under Title VII. Burnett v. Tyco
Corp., 203 F.3d 980, 981 (6th Cir. 2000); Abeita
v. Transamerica Mailings, Inc., 159 F.3d 246, 249
n. 4 (6th Cir. 1998); Creamer v. Laidlaw Transit,
Inc., 86 F.3d 167, 171 (10th Cir. 1996); Hirase-
Doi v. U.S. West Communications, Inc., 61 F.3d
777, 782 (10th Cir. 1995). At argument her lawyer
told us that Woodford had leered at her without
her knowing it, and he adduced this as evidence
that Woodford’s harassment was "pervasive." It
was actually irrelevant.
So the claim of sexual harassment fails. But
Seyfarth does not argue that the claim was so
frivolous that the making of it showed that Pryor
was unfit to remain at the firm--that she was the
harasser. See McDonnell v. Cisneros, 84 F.3d 246,
259 (7th Cir. 1996). And so her claim of
retaliation is unaffected by the failure of her
claim of harassment.
Three months after she filed that claim she was
fired by Seyfarth’s personnel manager after being
discovered glueing an artificial fingernail on
the finger of a friend in the ladies’ bathroom at
the Seyfarth firm. Seyfarth points out that even
if the offense seems a trivial one not meriting
the discharge of a long-term employee, still, so
long as the discharge was not motivated by the
fact that Pryor had filed a claim against the
firm the disproportionate character of the
manager’s action could not establish liability
under Title VII. That is true, because Title VII
is not a "good cause" statute; it creates a
remedy against invidious discrimination (or, as
here, retaliation), not against caprice. The
circumstances leading up to the discharge,
however, cast enough suspicion on the motive for
firing Pryor to entitle her to a trial.
To begin with, if the facts are taken as they
should be in the light most favorable to Pryor,
there was no "offense." She was on her break when
she applied the nail; she had been "doing" nails
for her coworkers for years; there was no rule
against having a visitor and doing the visitor’s
nail; and the procedure took only 30 seconds. We
repeat that it is not our business whether the
firm had good cause to fire Pryor; but it would
be odd if the firm had delegated to its personnel
manager the authority to fire a long-term
employee for entirely capricious reasons--
sufficiently odd to make one wonder whether
retaliation rather than whim may have been the
real cause of the firm’s action.
Against this Seyfarth argues that the incident
with the nail was merely the straw that broke the
camel’s back--Pryor’s secretarial work was
unsatisfactory and her attire "inappropriate."
Yet she had been working for the firm for nine
years when she was fired in May 1995, and, so far
as the documentary record, at least, is
concerned, her work had been entirely
satisfactory throughout. As recently as the
summer of 1994, her annual performance reviews
(the last before she was fired) by the three
lawyers she was working for then had been highly
positive, especially the review by an associate
named Dalinka for whom she worked. Dalinka in his
deposition testified that Pryor’s work had
actually been unsatisfactory when he filled out
the performance-review form and that he had given
her a glowing report in order not to make her
feel bad. Yet the form requires only that the
reviewer check boxes (needs improvement,
satisfactory, etc.) beside each task category.
There are spaces for optional comments under the
boxes, and Dalinka went out of his way to make
positive comments in each space, though he could
just have checked the boxes without hurting
Pryor’s feelings. His going the extra mile, as it
were, casts doubt on his testimony that he was
making a merely pro forma positive report, and by
undermining his credibility also casts doubt on
his further and more fundamental testimony that
Pryor’s work had deteriorated. Wylie v. Ford
Motor Co., 536 F.2d 306, 307-08 (10th Cir. 1976).
It is common for supervisors to overrate their
subordinates for purposes of building morale,
avoiding conflict, and deflecting criticisms that
the supervisor isn’t doing a good job (or that he
shouldn’t have hired this subordinate in the
first place). Not much weight can be given to
positive reviews. But not much does not equal
zero. And by going out of his way to say nice
things about the plaintiff Dalinka made it
possible for a reasonable trier of fact to infer
that his later denigration of her performance was
invented for purposes of the litigation.
Disbelieving a witness’s testimony about one of
the material facts in a case can justify the
trier of fact in disbelieving the witness’s
contested testimony on other material facts.
Dressler v. Busch Entertainment Corp., 143 F.3d
778, 781 (3d Cir. 1998); Burton v. State, 651
So. 2d 641, 655-56 (Ala. Crim. App.), aff’d sub
nom. Ex parte Burton, 651 So. 2d 659 (Ala. 1994).
An affidavit from another lawyer for whom Pryor
worked denied that she had any performance
problems; and Dalinka never documented any of his
concerns about her performance. One doesn’t want
to encourage bureaucracy in the workplace; but of
all employers, lawyers can be expected to be most
sensitive to charges of employment discrimination
and most assiduous about documenting actions
calculated to rebut such charges. Especially a
law firm like Seyfarth that specializes in
employment law!
Dalinka testified that Pryor refused to learn
the computer program Excel. He says that all
secretaries were required to learn it, but
Seyfarth cannot locate a document saying this.
Pryor testified that, far from refusing to learn
Excel (which however she testified was optional
rather than mandatory), she was scheduled for an
Excel lesson the very day she was fired.
Finally, the personnel manager criticized Pryor
for "inappropriate attire" (apparently, wearing
stretch pants and a sweater top). The manager
testified that Pryor persisted in wearing such
attire; Pryor testified that she immediately
switched to wearing suits. Such a conflict cannot
be resolved on summary judgment.
Not only may the grounds on which Pryor was
fired have been pretextual, but she presented
evidence that Seyfarth had a policy of
progressive discipline which would have precluded
the firing of Pryor for such trivial offenses
without prior warnings which it is conceded she
did not receive. Seyfarth denies the existence of
such a policy, but this is another issue of fact
that cannot be resolved on summary judgment. Its
argument that an employee is incompetent to
testify to the existence of an employment policy
is absurd.
The personnel manager testified that she didn’t
know that Pryor had filed a claim against the
firm when she fired her, but this was another bit
of contested evidence that a jury would not be
required to believe. The snitch who turned Pryor
in to the personnel manager for the nail
misdemeanor knew about the claim, and the manager
spoke to other people at the firm before firing
her, including Dalinka, whose complaints about
Pryor’s performance may have been fabricated as
part of a retaliatory scheme. Dalinka,
incidentally, worked in the same department of
the firm as Woodford.
A reasonable jury could find that after and
because Pryor filed a claim, the firm was
"laying" for her, biding its time to create a
space between the date of the claim and the date
of the discharge, and in the interval gathering
pretextual evidence of misconduct to provide a
figleaf for its retaliatory action. Of course we
do not hold that this is the correct
interpretation of the events, only that the
matter is sufficiently in doubt to require a
trial.
The dismissal of the harassment count is
affirmed, but the dismissal of the retaliation
count is reversed and the case remanded for
further proceedings consistent with this opinion.
Affirmed in Part, Reversed in Part, and Remanded.