Fyfe, Patrick J. v. City Fort Wayne IN ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1396
PATRICK J. FYFE,
Plaintiff-Appellant,
v.
CITY OF FORT WAYNE, INDIANA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 98-CV-0353--Roger B. Cosbey, Magistrate Judge.
Submitted January 22, 2001--Decided February 22, 2001
Before BAUER, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Patrick Fyfe is no
shrinking violet. Over the course of his 20-year
career with the City of Fort Wayne Parks and
Recreation Department, Fyfe has filed numerous
lawsuits and administrative agency complaints
against his employer. Not surprisingly, he is not
particularly popular with his supervisors. In
this case, Fyfe contends that those supervisors
refused his request for reimbursement of expenses
(only $156, hardly a sum worthy of making a
federal case out of) associated with a work-
related seminar in retaliation for his earlier
complaints, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et
seq. In addition, Fyfe alleges that the City
violated the Equal Pay Act, 29 U.S.C. sec.
206(d), by making certain overtime payments to a
female employee who held the same job he did, but
refused to make similar payments to him. The
district court granted the City’s motion for
summary judgment, and we review that decision de
novo, drawing all reasonable inferences in favor
of Fyfe. Snider v. Belvidere Township, 216 F.3d
616, 618 (7th Cir. 2000)./1
Fyfe began working for the City’s parks
department in 1979, and at all times relevant to
this case held the position of gardener at the
Lawton Park greenhouse. Part of Fyfe’s
responsibilities at the greenhouse involved
spraying pesticides containing toxic chemicals,
some of which required quarantine. Accordingly,
for a period of time Fyfe was required to clock-
out of work several hours early and then return
in the evening to perform spraying after other
employees had left. The City’s obvious motivation
for utilizing this system was to limit exposure
to dangerous chemicals by completing pesticide
spraying after hours, but at the same time avoid
paying overtime to Fyfe. When Superintendent of
Conservatory and Horticulture Dennis Noak learned
of the split-shift arrangement in spring of 1998,
he directed Andy Force, Fyfe’s immediate
supervisor, to put an end to the practice unless
Fyfe obtained union approval. On the advice of
his union, Fyfe refused to sign an agreement
consenting to the split-shift work schedule and
foregoing overtime pay. Thereafter, the split-
shift arrangement was discontinued, and Fyfe was
required to complete pesticide spraying during
his regular 8-hour shift.
The parks department employed one other gardener
during the relevant time period, a woman named
Sharon Zettle. Zettle was the gardener at the
Botanical Conservatory, which, unlike the Lawton
Park greenhouse, was a plant showcase facility.
Zettle performed the same job duties as Fyfe and
received the same rate of regular pay. Due to the
nature of the Botanical Conservatory, however,
Zettle conducted pesticide spraying much less
frequently than Fyfe did at the Lawton Park
greenhouse. When she did so after hours--meaning
after the completion of her 8-hour shift--Zettle
was paid "call in" pay. Pursuant to the union
contract, an employee entitled to "call in" pay
is paid for 4 hours of work, even if the employee
completes his or her assignment in 5 minutes and
leaves the workplace. The record shows that
Zettle received "call in" pay on at least three
occasions for after-hours pesticide spraying.
Fyfe bases his Equal Pay Act claim on the fact
that Zettle occasionally received "call in" pay
but he never did during his 16 years as a
gardener. The Equal Pay Act, an amendment to the
Fair Labor Standards Act, forbids paying workers
of one gender less than workers of the opposite
gender in return for doing the same work unless
the pay differential is justified by factors
other than sex. See Wollenburg v. Comtech Mfg.
Co., 201 F.3d 973, 975 (7th Cir. 2000). In order
to prove a prima facie case of discrimination
under the Equal Pay Act, Fyfe must demonstrate
(1) different wages were paid to employees of the
opposite sex, (2) the employees perform equal
work requiring equal skill, effort, and
responsibility, and (3) the employees have
similar working conditions. Bragg v. Navistar
Int’l Transp. Corp., 164 F.3d 373, 378 (7th Cir.
1998). Once Fyfe clears this hurdle, the burden
shifts to the City to prove that the pay
disparity is due to "(i) a seniority system; (ii)
a merit system; (iii) a system which measures
earnings by quantity or quality of production; or
(iv) a differential based on any other factor
other than sex." 29 U.S.C. sec. 206(d)(1); see
Soto v. Adams Elevator Equip. Co., 941 F.2d 543,
548 (7th Cir. 1991). We have recognized that the
Equal Pay Act’s fourth affirmative defense is a
broad, catch-all exception that embraces a nearly
limitless array of ways to distinguish among
employees. Dey v. Colt Constr. & Dev. Co., 28
F.3d 1446, 1462 (7th Cir. 1994).
It is undisputed that Zettle received "call in"
pay and Fyfe did not. Fyfe runs into trouble,
however, in attempting to establish that he and
Zettle performed equal work under similar working
conditions. In fact, as the district court
recognized, Zettle performed more work than Fyfe.
On occasions when Zettle received "call in" pay
for pesticide spraying, she completed that task
after--and in addition to--her regular 8-hour
shift./2 When Fyfe performed evening pesticide
spraying, on the other hand, he clocked out
earlier in the day for several hours. Thus,
unlike Zettle, Fyfe never worked more than 8
hours in a day (doing pesticide spraying). It
certainly does not violate the Equal Pay Act to
pay an employee additional money for additional
work.
The true gravamen of Fyfe’s Equal Pay Act claim
is that Zettle was permitted to work overtime,
rendering her eligible for additional pay, but he
was denied that opportunity. Indeed, when Fyfe
requested permission to continue after-hours
spraying even after his split-shift work schedule
was discontinued, Mr. Force told him that the
City already was paying "call in" pay to Zettle
and didn’t want to pay it for Fyfe, too. Fyfe
characterizes this statement as direct evidence
of wage discrimination. But even if the denial of
the opportunity to work overtime satisfies the
first element of an Equal Pay Act claim--and at
least one court has held that it does not, True
v. New York State Department of Correctional
Services, 613 F. Supp. 27, 30-31 (W.D.N.Y. 1984)-
-the City has established that the divergent
purposes of the Lawton Park greenhouse and the
Botanical Conservatory merited the differential
treatment. As a public showcase, the conservatory
only rarely required spraying; the greenhouse was
a growing facility and required more regular
spraying. Permitting Zettle occasionally to
perform her spraying duties after hours would
therefore cost the City much less in "call in"
pay than it would to permit Fyfe regularly to
spray after hours. Thus there was a legitimate
fiscal reason for giving overtime work to Zettle
but not to Fyfe. See 29 U.S.C. sec.
206(d)(1)(iv). In addition, requiring Zettle to
spray the conservatory during her regular shift
presumably could expose the public to dangerous
pesticides, which of course was not a concern at
the greenhouse, which was closed to the public.
Because any difference in overtime hours is
clearly "due to a factor unrelated to gender,
there is no violation." Lindale v. Tokheim Corp.,
145 F.3d 953, 957 (7th Cir. 1998)./3
We turn now to Fyfe’s Title VII retaliation
claim. The evidence shows that in June of 1998,
Fyfe requested permission to attend a pesticide-
related seminar in Columbus, Ohio, in order to
earn credits toward maintaining a license he
held. When Noak denied Fyfe’s request to attend
the seminar on City time, Fyfe asked Robert
Arnold, Noak’s supervisor, to intercede on his
behalf. Arnold reported back that Noak informed
him Fyfe was not a "team player and didn’t
deserve to go." Fyfe attended the seminar anyway
but was forced to use one personal day and one
vacation day to do so, and pay his own expenses.
Arnold approved Fyfe’s request for time off to
attend the seminar.
Upon returning from the seminar, Fyfe, ever
persistent, asked Arnold to reimburse him for his
travel and hotel expenses, a grand total of only
$156.89. According to Fyfe, Arnold stated that he
considered Fyfe’s request a "fair trade," and
told Fyfe to send his expense paperwork directly
to Arnold and watch his paycheck for
reimbursement. But the reimbursement never came
because Arnold merely forwarded the paperwork to
the controller’s office without signing it.
Arnold testified that he did so to "see if
something could come of it," even though he
believed reimbursement was not warranted because
Fyfe’s travel did not occur during approved work
time and reimbursement was not required under the
City’s collective bargaining agreement with
Fyfe’s union. Arnold allegedly brushed off Fyfe’s
questions concerning the status of his
reimbursement in the fall of 1998.
On January 7, 1999, the date of a pretrial
conference, Fyfe again inquired of Arnold as to
the whereabouts of his expected reimbursement.
Arnold replied, "If I have to go across the
street to the courthouse, you can forget it" (or
something to that effect). When Fyfe informed
Arnold that this response could be considered
evidence of retaliation, Arnold challenged Fyfe
to "go file the charge."
So Fyfe added a claim under Title VII, which
prohibits employers from discriminating against
an employee "because he has made a charge,
testified, assisted, or participated in any
manner in an investigation, proceeding, or
hearing under this subchapter." 42 U.S.C. sec.
2000e-3(a). In order to prevail on his claim of
discrimination, Fyfe must either offer direct
evidence of retaliation or proceed under a
burden-shifting approach. Contreras v. Suncast
Corp., Nos. 00-1977, 00-2493, slip op. at 15 (7th
Cir. Jan. 3, 2001). Direct evidence is that
which, "if believed by the trier of fact, will
prove the particular fact in question without
reliance upon inference or presumption," and
usually takes the form of an acknowledgment of
discriminatory intent by the employer. Kennedy v.
Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716,
722-23 (7th Cir. 1998) (quoting Hunt-Golliday v.
Metropolitan Water Reclamation Dist. of Greater
Chicago, 104 F.3d 1004, 1010 (7th Cir. 1997)). In
the absence of direct evidence of retaliation,
Fyfe must show (1) he engaged in activity
protected under Title VII, (2) he suffered an
adverse employment action, and (3) a causal
connection between the adverse action and his
protected activity. Hill v. American Gen. Fin.,
Inc., 218 F.3d 639, 645 (7th Cir. 2000). Once a
prima facie case is established, the burden
shifts to the City to put forth a legitimate and
nondiscriminatory reason for its actions, and
then back to Fyfe to show that the City’s
articulated reason is merely a pretext for
unlawful discrimination. Rennie v. Dalton, 3 F.3d
1100, 1108-09 (7th Cir. 1993). Fyfe attempts to
proceed on both the direct evidence track and the
burden-shifting track, but both efforts come up
short.
Fyfe insists that Arnold’s January 7 remarks
constitute direct evidence of unlawful
retaliation. "When a plaintiff proceeds under the
direct proof method, allegedly discriminatory
statements are relevant . . . only if they are
both made by the decisionmaker and related to the
employment decision at issue." Stopka v. Alliance
of Am. Insurers, 141 F.3d 681, 688 (7th Cir.
1988). Moreover, "isolated comments must be
contemporaneous with the [adverse action] or
causally related to the . . . decision making
process." Kennedy, 140 F.3d at 723 (quoting Geier
v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir.
1996)). In Miller v. American Family Mutual
Insurance Company, 203 F.3d 997, 1005 (7th Cir.
2000), for example, we held that a supervisor’s
discriminatory statements were irrelevant because
the supervisor did not even work for the company
at the time of the adverse employment decisions,
and thus his bias could not have motivated them.
Fyfe faces a similar hurdle here. It is
undisputed that Fyfe submitted his expense
paperwork to Arnold shortly after his travel in
June 1998 and that Arnold forwarded it to the
controller’s office without endorsing it because
he believed, at that time, that Fyfe was not
entitled to reimbursement. Arnold has taken no
further action with respect to Fyfe’s
reimbursement request since summer of 1998. Thus,
the City’s decision not to reimburse Fyfe was
complete long before Arnold’s statements, which
have, for that reason, little probative value.
Moreover, Fyfe’s lawsuit postdates the City’s
decision not to reimburse him (the lawsuit was
filed on November 12, 1998), so it could not have
motivated the decision under any circumstances.
See Miller, 203 F.3d at 1006 (affirming summary
judgment for employer on pregnancy discrimination
claim because decisionmaker was not aware of
plaintiff’s pregnancy until after decision).
Nothing Arnold said--or could have said--fills
this gap in Fyfe’s theory.
Fyfe’s effort to establish a prima facie case
under an indirect theory also fails. As an
initial matter, we cannot accept Fyfe’s bald
assertion that the denial of his request for
reimbursement of $156.89 constitutes an adverse
employment action. Not every unwelcome employment
action qualifies as an adverse action; rather, it
must cause a materially adverse change in the
terms and conditions of employment, "more
disruptive than a mere inconvenience or an
alteration of job responsibilities." Rabinovitz
v. Pena, 89 F.3d 482, 488 (7th Cir. 1996)
(quoting Crady v. Liberty Nat’l Bank & Trust Co.
of Ind., 993 F.2d 132, 136 (7th Cir. 1993)).
Under this standard, we have held that the denial
of a raise constitutes a sufficiently material
adverse action, Hunt v. City of Markham,
Illinois, 219 F.3d 649, 654 (7th Cir. 2000), but
that the denial of a bonus does not. Rabinovitz,
89 F.3d at 488-89. The difference is that raises
are a normal and expected element of an
employee’s salary, while bonuses generally are
"sporadic, irregular, unpredictable, and wholly
discretionary on the part of the employer." Hunt,
219 F.3d at 654. Employees therefore act in
reliance upon the expectation of receiving a
raise and suffer more deeply when it is denied.
Id.
The City’s denial of Fyfe’s request for
reimbursement is more like the denial of a bonus
than the denial of a raise. Fyfe does not dispute
that the reimbursement was purely discretionary;
indeed, prior to leaving for Columbus, he knew
that his trip had not been approved by his
superiors. And although the record does not
reflect the regularity with which City employees
attend seminars, and the regularity with which
their expenses are reimbursed,/4 we think it’s
a safe bet that neither is as regular as the
yearly raise most employees receive. Accordingly,
we hold that the City’s refusal to reimburse
Fyfe’s travel and lodging expenses was not an
adverse employment action for purposes of Title
VII.
Moreover, even if the City’s failure to
reimburse Fyfe constituted an adverse employment
action, he has not sustained his burden of
establishing that the action was motivated by his
protected conduct. As stated above, this lawsuit
can have no connection to the City’s decision not
to reimburse Fyfe because that decision was made
almost 6 months before Fyfe asserted his claim.
And although Fyfe had brought earlier charges
against the City, the most recent of those was
filed in January 1997. In order to establish a
causal connection via mere temporal proximity,
the employer’s adverse action must follow fairly
soon after the employee’s protected conduct.
Sweeney v. West, 149 F.3d 550, 557 (7th Cir.
1998). In the absence of any other evidence of a
causal link, the 18-month interval in this case
is insufficient proof of causation. See Hughes v.
Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992)
(4 months insufficient); Juarez v. Ameritech
Mobile Communications, Inc., 957 F.2d 317, 321
(7th Cir. 1992) (6 months insufficient). Because
Fyfe cannot establish a prima facie case of Title
VII retaliation, we need go no further. The
judgment of the district court is
AFFIRMED.
/1 The district court also granted summary judgment
to the City on three separate retaliation claims
based on (1) the City’s decision to suspend him
for 5 days and demote him to "the tree gang," a
tree maintenance crew, (2) the City’s refusal to
interview him for a promotion, and (3) the City’s
refusal to approve his attendance at a subsequent
out-of-town seminar. Fyfe does not appeal the
district court’s decision with respect to these
incidents of alleged retaliation.
/2 It is unclear why Zettle received "call in" pay
instead of the regular overtime rate of time and
one-half. "Call in" pay, as we read the
collective bargaining agreement, is required only
when an employee is called to work by supervisors
at a time when he or she is not otherwise
scheduled to work. As Fyfe points out, there is
no evidence that Zettle was called to work from
home, as opposed to merely staying at work at the
end of her shift to complete the spraying. But no
matter. In either event, Zettle actually worked
more hours than Fyfe.
/3 Recent events confirm this conclusion. Since the
filing of this lawsuit, Fyfe and Zettle have
switched locations and Zettle, as the greenhouse
gardener, has been required to complete her
spraying duties during her regular 8-hour shift.
/4 Fyfe makes much of the fact that the City paid
Zettle’s registration fee for the Columbus
seminar the year following Fyfe’s attendance. But
Zettle’s trip was approved by her supervisor and
took place under a new collective bargaining
agreement that required the City to pay those
expenses. Zettle was not reimbursed for any other
expenses.