Olsen, Michael J v. Marshall & Ilsley ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3840
Michael J. Olsen,
Plaintiff-Appellant,
v.
Marshall & Ilsley Corporation, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 774 C--Barbara B. Crabb, Chief Judge.
Argued April 9, 2001--Decided September 25, 2001
Before Posner, Evans, and Williams, Circuit
Judges.
Williams, Circuit Judge. In this Title
VII suit alleging sex discrimination and
retaliation, Michael J. Olsen appeals the
district court’s grant of summary
judgment to his former employer, M&I Mid-
State Bank ("Mid-State"), and his former
supervisor, Paul Schaller, (collectively
"the defendants"). He also appeals the
district court’s grant of summary
judgment to Mid-State’s parent, Marshall
& Ilsley Corporation, dismissing Marshall
& Ilsley from the suit because Olsen
failed to name it as a respondent in his
Equal Employment Opportunity Commission
(EEOC) charge. Because Olsen has not
created a genuine issue of material fact
as to pretext, we affirm the district
court’s grant of summary judgment to the
defendants. We also affirm the district
court’s grant of summary judgment to
Marshall & Ilsley for lack of adequate
notice of the claims against it.
I. BACKGROUND
We present the facts in the light most
favorable to Olsen, as we must on review
of a motion for summary judgment. Russell
v. Bd. of Trustees of the Univ. of
Illinois at Chicago, 243 F.3d 336, 339
(7th Cir. 2001).
Olsen served as a Mid-State vice
president and manager of its Mauston
branch for approximately two years. In
the first written evaluation of Olsen’s
performance in November 1996, Olsen’s
supervisor, Paul Schaller, rated Olsen’s
performance as "good" and "above average"
but noted that Olsen needed to increase
his personal sales, better promote Mid-
State in the Mauston community, and
improve his customer relations. The
review stated that Olsen’s "first
priority" should be to improve his
customer service skills and increase his
sales.
Throughout the remainder of 1996 and in
early 1997, Olsen observed interactions
between Schaller and Kathy Potter, a
female manager of another branch
supervised by Schaller, that were
suggestive of a sexual relationship, and
because Schaller recently recruited
Potter, Olsen thought the relationship
might not have been consensual. Olsen
reported his concerns to Karon Ruch, Mid-
State’s employment representative, on
July 31, 1997, and a few weeks later,
Ruch, in turn, informed Robert Schmidt
(Mid-State’s Chief Executive Officer) of
Olsen’s observations.
Olsen’s second evaluation in October
1997 was, in his view, "scathing." In
this review, Schaller stressed Olsen’s
lackluster personal sales without, in
Olsen’s opinion, considering how Olsen’s
devotion to other tasks affected his
ability to concentrate on personal sales.
The evaluation also documented a meeting
that had been called by three Mauston
branch employees to discuss their
concerns with Olsen’s managerial style
and other performance-related issues.
Olsen’s personal sales did not improve
during the remaining months of 1997. By
the end of that year, he had failed to
meet half of his personal goals. But by
early spring of the following year, his
personal sales numbers showed dramatic
improvement.
Still concerned about the nature of
Schaller and Potter’s relationship, Olsen
contacted Ruch a second time on February
27, 1998. Ruch informed Schmidt about
Olsen’s second report. Approximately one
month later, Schmidt set up a meeting
with Terrance Rothmann (the Executive
Vice President of Mid-State) and William
Smith (Mid-State’s Cashier/Controller)
during which they decided that Olsen
should be terminated.
Olsen filed charges with the EEOC
claiming sex discrimination and
retaliation in violation of Title VII.
The EEOC issued a right to sue letter and
he filed suit in federal court. The
district court granted the defendants’
motion for summary judgment on the sex
discrimination and retaliation claims as
well as Marshall & Ilsley’s summary judg
ment motion requesting dismissal from the
suit. Olsen appeals both of the district
court’s determinations.
II. ANALYSIS
We review de novo a district court’s
grant of summary judgment, viewing the
record and drawing all reasonable
inferences therefrom in Olsen’s favor.
See Warsco v. Preferred Technical Grp.,
258 F.3d 557, 563 (7th Cir. 2001). We
will affirm the district court’s grant of
summary judgment if there is no genuine
issue of material fact and the moving
party (here, Mid-State) is entitled to
judgment as a matter of law./1 Id.;
Fed. R. Civ. P. 56(c). Because Olsen has
not presented sufficient evidence from
which a reasonable factfinder could
conclude that Mid-State’s articulated
reasons for terminating him are a pretext
for intentional discrimination, we hold
that the defendants are entitled to
summary judgment. We further hold that
the district court’s grant of summary
judgment to defendant Marshall & Ilsley,
dismissing it as a defendant because
Olsen failed to name it as a respondent
in his EEOC charge, was proper.
A. Sex Discrimination and Retaliation
Claims
Olsen has chosen to proceed under the
"indirect" or, as otherwise termed, the
McDonnell Douglas burden-shifting method
of proving a discrimination or
retaliation claim. Under this method, the
plaintiff must first establish a prima
facie case. See Dunn v. Nordstrom, Inc.,
No. 00-2958, 2001 WL 898757, at *3 (7th
Cir. Aug. 10, 2001). If he meets this
burden, the burden of production then
shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for
its termination. Id. Once the defendant
does so, the burden shifts back to the
plaintiff to prove that the defendant’s
articulated reason is a pretext for
discrimination. Id.
In our review of a district court’s
disposition of a sex discrimination or
retaliation claim, we can move directly
to the third stage of the burden-shifting
paradigm, the question of pretext. See
Rummery v. Illinois Bell Telephone Co.,
250 F.3d 553, 556 (7th Cir. 2001). We
choose to do so here not because we are
convinced that Olsen has established the
prima facie case of either of his claims,
but because our prima facie case analysis
would overlap substantially with the
question of pretext. See Gordon v. United
States, 246 F.3d 878, 886 (7th Cir. 2001)
("[The] issue of satisfactory job
performance often focuses on the same
circumstances as must be scrutinized with
respect to the matter of pretext.");
Morrow v. Wal-Mart Stores, Inc., 152 F.3d
559, 561 (7th Cir. 1998) (noting overlap
between another element of the prima
facie case and pretext).
Mid-State articulates several
legitimate, nondiscriminatory reasons for
Olsen’s termination. It asserts that
Olsen: (1) was a poor performer; (2) was
a poor manager; (3) did not sufficiently
promote the branch in the local
community; and (4) did not willingly work
with walk-in customers. Olsen must show
that each of Mid-State’s reasons are pre
textual to withstand summary judgment.
See Velasco v. Illinois Dep’t of Human
Servs., 246 F.3d 1010, 1017 (7th Cir.
2001)./2 The two reasons most heavily
debated by both parties--his poor
performance and poor management--are the
focus of our discussion.
The type of evidence pertinent at the
pretext stage, i.e., evidence that calls
into question the veracity of the
employer’s explanation, see Bell v. EPA,
232 F.3d 546, 551 (7th Cir. 2000), may
take on many forms, including that which
shows that the employer’s explanation is
without basis in fact. See Velasco, 246
F.3d at 1017. When a plaintiff presents
evidence showing that an employer’s
explanation has no factual basis, a
reasonable factfinder may infer that (1)
the employer is lying about its true
motive and (2) because the employer is in
the best position to assert the reason
for its decision, that it offered a false
one in order to cover up a discriminatory
motive. Bell, 232 F.3d at 550 (internal
citations omitted). Presentation of
evidence of this sort creates a genuine
issue of material fact as to whether the
employee was fired for a discriminatory
reason.
1. Poor-performance rationale.
Olsen argues that Mid-State’s poor-
performance rationale has no basis in
fact because his personal sales
performance improved before his
termination. He points to his performance
results for the month preceding the month
of his termination in which he met over
100% of his personal sales goals for that
month./3 The record reveals, however,
that for the majority of his tenure as
Mauston branch manager, Olsen
consistently failed to meet his personal
sales goals despite Mid-State’s repeated
admonitions to improve his performance.
Mid-State likely viewed his one month of
exceptional performance as an anomaly
rather than an indication that a new era
of improved performance had begun.
For example, Schaller told Olsen during
his first formal review in November 1996
that his "first priority" should be to
improve his sales performance, among
other things. In the employee response
section of that evaluation, Olsen
conceded that his sales performance up to
that date had been less than
satisfactory, stating that he had "been
more concerned with subordinate goals and
branch goals than [his] own." In the
October 1997 evaluation, although
commending Olsen for coaching and pushing
others to increase their sales, Schaller
again told Olsen that he needed to
"increase personal sales." In the
employee response section of this
evaluation, Olsen did not dispute
Schaller’s assessment of his performance
but stated that he would "only concern
[himself] with improving [branch sales]
and encouraging the advancement of his
staff." Olsen failed to increase his
personal sales that year, reaching less
than half of his goal by the year’s end.
Mid-State was free to determine that,
based on this history, Olsen’s one month
of improved performance was not an
indication that he would continue to meet
its expectations. In Mid-State’s view,
"one month of sales does not make a
salesman," and we are not authorized by
Title VII to impose upon the employer a
contrary assessment. See Dunn, No. 00-
2958, 2001 WL 898757, at *6 ("[The
employer] was entitled to determine that
the deficiencies in [the employee’s]
performance outweighed [his]
accomplishments.") (internal citation
omitted). Olsen may be correct in
suggesting that one month of exceptional
performance would allay the average
employer’s performance concerns, but we
are not concerned with the average
employer. Our only concern at the pretext
stage is whether this defendant honestly
remained dissatisfied with its employee’s
performance. See O’Connor v. DePaul
Univ., 123 F.3d 665, 670 (7th Cir. 1997).
And Olsen has not presented any evidence
that would cause a reasonable factfinder
to question whether Mid-State honestly
believed its assessment.
Moreover, in our many cases discussing
the nature of the pretext inquiry, we
have stated that it is not enough for a
plaintiff to show that his employer’s
explanation was based on an inaccurate
assessment of its employee’s performance.
See, e.g., Adreani v. First Colonial
Bankshares Corp., 154 F.3d 389, 398 (7th
Cir. 1998); see Walker v. Glickman, 241
F.3d 884, 890 (7th Cir. 2001) ("[T]he
court’s role is not to determine whether
[the employer’s] decision was right, but
whether [the employee] presented
sufficient evidence that [the employer’s]
reason was a lie for the action it
took."). The plaintiff in Adreani pointed
to his own positive perception of his
performance in an attempt to create a
genuine issue of material fact as to
pretext. We rejected his attempt, noting
that (even assuming that an employee’s
perception of his own performance can be
considered objective evidence of his
abilities) evidence that shows that an
employer incorrectly assessed its
employee’s abilities does not shed light
on whether the employer is lying about
that assessment. Id. at 399. And without
proof of a lie, no inference of
discriminatory motive can be drawn. See
Bell, 232 F.3d at 550 (internal citations
omitted).
Olsen, like the plaintiff in Adreani,
has placed his own assessment of his
abilities adjacent to his employer’s and
asked us to draw from the apparent
incongruity the inference that his
employer is lying. An employee’s
perception of his own performance,
however, cannot tell a reasonable
factfinder something about what the
employer believed about the employee’s
abilities. See Adreani, 154 F.3d at 399.
2. Poor-manager rationale.
Olsen commits similar errors in his
attempts to rebut Mid-State’s assertion
that he was a poor manager. He argues
that Mid-State’s poor-manager rationale
has no factual basis but fails to
sufficiently contradict salient facts
that provide support for Mid-State’s
explanation. For example, Olsen claims
that his relations with branch employees
had improved by the date of his
termination. He does not dispute,
however, that in October 1997 several
Mauston branch employees called a meeting
during which they expressed to Olsen
their concerns about his lack of
leadership in the sales arena,
encroaching management style, and poor
customer relations skills. And, despite
Olsen’s unsubstantiated assertion to the
contrary, there is evidence that at least
one of the employees continued to express
concerns about his managerial style until
the date of his termination, ultimately
suggesting to her supervisors that she
would resign if Olsen continued to misuse
her time and abilities. Even assuming
that Olsen has presented evidence from
which a jury could conclude that his
employee relations had improved (and he
has not), the undisputed evidence clearly
provides factual support for Mid-State’s
assertion. And because there is some
factual basis for Mid-State’s belief that
Olsen was a poor manager, there is no
legal basis for us to conclude that a
reasonable factfinder could find its
explanation a pretext for discrimination.
See Adreani, 154 F.3d at 399.
Olsen also implicitly argues that the
employee-called meeting was a sham and,
therefore, could not have served as a
basis for Mid-State’s poor-manager
rationale. In support of his argument, he
points to the fact that the employees
called the meeting at Schaller’s
suggestion. The undisputed evidence shows
that it was only after the employees
complained to Schaller about Olsen that
Schaller suggested they schedule a
meeting with Olsen to discuss their
concerns. So it is not clear from the
record whether, but for Schaller’s
suggestion, the employees would have
called the meeting.
The fact that Schaller encouraged the
employees to call a meeting, however, has
no bearing on whether Mid-State honestly
believed the substance of the employees’
complaints. In their complaints to
Schaller and in their subsequent meeting
with Olsen, at least two employees
expressed that they felt Olsen was
"dumping" his work on them and that his
spotty knowledge of Mid-State products
often left him unable to answer their
questions. They also told Olsen about
instances where he had improperly
completed paperwork for customers or
improperly handled accounts and that his
over-use of industry jargon made it
difficult for customers to understand
him. Olsen does not dispute the accuracy
of the employees’ complaints nor the fact
that the decision-makers were aware of
them. Therefore, a reasonable factfinder
could not say that Mid-State, which was
entitled to accept the employees’
complaints as true and rely on them in
assessing Olsen’s competency, had no
basis for believing that Olsen was a poor
manager. See Adreani, 154 F.3d at 399.
Olsen’s remaining attempts to show
pretext also fail./4 Because the points
Olsen asserts would not lead a reasonable
jury to question Mid-State’s honest
belief in its poor-performance and poor-
manager explanations, summary judgment
for the defendants was appropriate. See
Velasco, 246 F.3d at 1017 (stating that a
plaintiff cannot withstand summary
judgment if he fails to create a triable
issue of fact with respect to each of his
employer’s legitimate reasons).
B. Failure to Name Defendant in EEOC
Charge
In accordance with Title VII, Olsen
filed a complaint with his state Equal
Rights Division and the Equal Employment
Opportunity Commission. However, he
failed to name Marshall & Ilsley, Mid-
State Bank’s parent, as a defendant in
these proceedings.
Olsen’s failure to name Marshall &
Ilsley in his EEOC charge is fatal. Under
the law of this circuit, a parent
organization not named in the plaintiff’s
EEOC charge must be dismissed from the
suit unless the plaintiff can show that
the parent had notice of the claim
against it, as opposed to its subsidiary,
and had an opportunity to conciliate on
its own behalf. Schnellbaecher v. Baskin
Clothing Co., 887 F.2d 124, 127 (7th Cir.
1989). Olsen has not shown that Marshall
& Ilsley had adequate notice or an
opportunity to conciliate on its own
behalf. He has shown only that Marshall &
Ilsley had notice of the claim against
Mid-State and participated in the
administrative proceedings on Mid-State’s
behalf, and his self-serving allegations
to the contrary are insufficient to
create a genuine issue of material fact.
See Basith v. Cook County, 241 F.3d 919,
928 (7th Cir. 2001). The district court’s
grant of summary judgment, dismissing
Marshall & Ilsley was proper.
III. CONCLUSION
For these reasons, we Affirm the district
court’s grant of summary judgment to the
defendants and its dismissal of defendant
Marshall & Ilsley Corporation.
FOOTNOTES
/1 A genuine issue of material fact exists only if
"there is sufficient evidence favoring the non-
moving party for a jury to return a verdict for
that party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986) (citation omitted).
/2 There is one exception to this rule. "There may
be cases in which the multiple grounds offered by
the defendant for the adverse action . . . are so
intertwined, or the pretextual character of one
of them so fishy and suspicious, that the plain-
tiff could withstand summary judgment" by point-
ing out the pretextual nature of one reason. Wolf
v. Buss (America), Inc., 77 F.3d 914, 920 (7th
Cir. 1996). Olsen, however, has not indicated,
other than in a perfunctory argument in his reply
brief, why this exception should apply here.
/3 The record is unclear as to whether Olsen’s
performance results for the prior month, which
were also extraordinary, were available to Sch-
midt, Rothmann, and Smith (the decision-makers)
at the time of his termination. No results were
available for the month of his termination.
/4 For instance, Olsen points to a positive remark
made by Schaller in March 1997, several months
before he made his sexual harassment report, that
praised Olsen for handling well the task of
temporarily managing two Mid-State branches. A
stray remark made in March 1997 does not undercut
the undisputed evidence that, according to Mid-
State’s ranking system, Olsen’s personal sales
performance was far behind his counterparts for
the 1997 calendar year, and, therefore, is not
the sort of evidence that shows pretext.