Gorence, Rogene v. Eagle Food Centers ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2102
ROGENE GORENCE, JAN WOLF,
and CARY BRUCE,
Plaintiffs-Appellants,
v.
EAGLE FOOD CENTERS, INCORPORATED,
a Delaware corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 93 C 4862--Blanche M. Manning, Judge.
Argued January 17, 2001--Decided March 8, 2001
Before EASTERBROOK, EVANS, and WILLIAMS, Circuit
Judges.
EVANS, Circuit Judge. Three employees of the
Eagle Food Center, having a boatload of
complaints against Eagle, have brought a hodge-
podge of unrelated employment discrimination
claims which the district judge dismissed on
summary judgment in three separate, lengthy
decisions of 28, 33, and 40 pages. Upon
reconsideration, the judge once again found that
the cases should be dismissed. The unhappy
employees appeal.
Cary Bruce was hired as a store clerk in 1958
and eventually became the manager of several
different stores. In 1990, when he was 47, he was
made a district manager, in charge of 17 suburban
Chicago stores. In June 1990 new personnel
arriving on the scene demoted him. He was
replaced by a 56-year-old man. Bruce became the
manager of a store in Libertyville, Illinois.
In 1991 one of the district managers resigned.
Bruce applied for the position but did not get
that one or other positions he applied for.
Instead, he was transferred from Libertyville to
a store in Round Lake Beach and then in 1993 to
a store in Belvidere. In January 1996 he was
suspended from the Belvidere position because,
according to Eagle, he had an inappropriate
personal relationship with the wife of another
employee. After his reinstatement, Bruce was
transferred to a store in McHenry, Illinois. He
claims that Eagle discriminated against him
because of his age and in retaliation for his
filing a charge of discrimination.
Jan Wolf began working for Eagle as a cashier
in April 1976. She was promoted to personnel
specialist at corporate headquarters in December
1985. In December 1987 she was promoted to
training manager, but at a lower salary than the
person she replaced. Wolf did not get promotions
she sought for positions as an industrial
engineering manager or a director of human
resources. After a reorganization in 1995, Wolf
became a human resources specialist. Her claims
are that the company engaged in sex
discrimination and violated the Equal Pay Act.
Rogene Gorence began working for Eagle as a
cashier in March 1965. In 1973 she became a
personnel specialist at corporate headquarters.
In 1975 Eagle expanded her duties to include
interpreting and administering labor agreements
and processing union grievances, but she did not
like negotiating and, in fact, has not negotiated
a labor contract since 1984. Eagle hired two
lawyers to negotiate, arbitrate, and handle labor
and employment matters. Gorence was paid less
than one of the attorneys, and she contends this
is gender discrimination.
In 1991 Gorence applied to be an assistant
warehouse manager; she was not hired. Then in
1992 she applied to be human resources manager,
another position she did not get. She became
Eagle’s labor relations manager in 1993, but her
position was eliminated in 1995, and she, like
Wolf, became a human resources specialist. Her
allegations include sex and age discrimination.
The plaintiffs’ primary gripe on this appeal is
that their claims were analyzed under the
framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), that is, by employing
an indirect method of proof, when they should
have been analyzed under the direct method of
proof. They claim that the McDonnell Douglas
formula puts too heavy a burden on them. However,
in what might be an abundance of caution, the
three plaintiffs also contend that they survive
summary judgment under McDonnell Douglas.
In Troupe v. May Department Stores, 20 F.3d 734(7th Cir. 1994), we said that under the direct
method of proof a plaintiff must show either an
acknowledgment of discriminatory intent by the
defendant or circumstantial evidence that
provides the basis for an inference of
intentional discrimination. That evidence can be
(1) suspicious timing, ambiguous statements,
etc., (2) evidence that similarly situated
employees were treated differently, or (3)
evidence that the employee was qualified and
passed over for the job and the employer’s reason
for the difference in treatment is a pretext for
discrimination. In Huff v. Uarco, 122 F.3d 374(1997), we noted that the third type of
circumstantial evidence in a direct case is
substantially the same as the evidence required
under McDonnell Douglas.
No application of law to facts, however, is
ever quite so simple as setting out principles of
law. After over three and a half decades of laws
prohibiting employment discrimination in one form
or another, employers are fairly unlikely to be
caught making statements such as, "I fired Judy
because she was an old woman." Workplaces remain,
though, places filled with persons who express
thoughts which often reveal bias or ignorance.
Those persons can be caught saying, for example,
something like, "Old women are hard to deal
with." The first statement proves intentional
discrimination; the second, without more, does
not. Inevitably, in cases we see, we deal with
what falls in between.
The second hypothetical statement we just used
might be bigoted. But we have said that bigotry,
per se, is not actionable. It is actionable only
if it results in injury to a plaintiff; there
must be a real link between the bigotry and an
adverse employment action. Miller v. American
Family Mut. Ins. Co., 203 F.3d 997 (7th Cir.
2000). The comment would more than likely be what
we label a "stray" remark--a remark which fails
to show discrimination unless it is related to
the employment decision. Cianci v. Pettibone
Corp., 152 F.3d 723 (7th Cir. 1998); Fuka v.
Thomson Consumer Elec., 82 F.3d 1397 (7th Cir.
1996). We cautioned in Hunt v. City of Markham,
Ill., 219 F.3d 649 (7th Cir. 2000), that our
cases should not be overread to mean that "stray
remarks" of a derogatory character are never
evidence of discrimination. What our cases hold,
we said, is that if someone not involved in the
decisionmaking in a plaintiff’s case expressed
discriminatory feelings, that is not evidence
that the decision was discriminatory. It is
different, we said,
when the decision makers themselves, or those who
provide input into the decision, express such
feelings (1) around the time of, and (2) in
reference to, the adverse employment action
complained of.
At 652. It might be, in fact, that remarks
meeting these criteria are not "stray" at all.
Finally, evidence of inappropriate remarks not
shown to be directly related to the employment
decision may not support a direct-method-of-proof
case, but, in connection with other evidence,
might support a case under McDonnell Douglas.
Another principle could emerge from this
particular case; that is, that an amorphous
litany of complaints about a myriad of workplace
decisions regarding promotions, salary, etc. does
not necessarily meet a plaintiff’s burden of
proof. In this case, we have been buried in
details about employment decisions, some of which
are, and some of which are not, really involved
in this case. For instance, Bruce’s 1990 demotion
is now admitted to be outside the time limits for
this action. Nevertheless, it occupies pages and
pages in this record. Little has been done,
particularly by the three plaintiffs, to make
slogging through the record here either more
efficient or more pleasant. And it is simply not
true, we want to emphasize, that if a litigant
presents an overload of irrelevant or
nonprobative facts, somehow the irrelevancies
will add up to relevant evidence of
discriminatory intent. They do not; zero plus
zero is zero.
To bring some order to the chaos we find in
this record, we tether our analysis to the claims
set out in the second amended complaint and the
charges of discrimination filed with the Equal
Employment Opportunity Commission. Particularly
in employment discrimination cases, we cannot
range far and wide looking for any bad acts ever
committed by an employer and then conclude that
because the employer is bad, it must have
discriminated against a particular plaintiff.
Title VII, the ADEA, and other discrimination
statutes require more focus than that. They
require that a plaintiff’s claims first be
presented to the agency. 29 U.S.C. sec. 626(d);
42 U.S.C. sec. 2000e-5(f). Although we read
charges of discrimination liberally in order to
allow a claim of discrimination that is
reasonably related to the allegations in the
charge, it is the claims presented to the agency
and claims reasonably related to those in the
charge which form the basis for a federal court
lawsuit. Bielfeldt v. Commissioner, 231 F.3d 1035(7th Cir. 2000). In turn, a federal court
complaint needs to give notice of what the claims
are. Cheek v. Peabody Coal Co., 97 F.3d 200 (7th
Cir. 1996). As an aside, we also note that
although we have managed to find in the record
all but one of the administrative charges filed
by these plaintiffs, finding them has not been
very easy.
Gorence’s charge before the EEOC, filed May 26,
1992, stated that she did not receive the title
of manager in 1992 (manager of what she doesn’t
say) and that she was denied promotion to
warehouse and distribution center manager in
August 1991. She also claimed she was retaliated
against and that males were treated more
favorably. In her second amended complaint in the
district court, Gorence states claims under the
Age Discrimination in Employment Act, 29 U.S.C.
sec. 621 et seq., and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. sec.
2000e et seq. In count I she contends that she
was denied a promotion (in 1991) to the position
of assistant warehouse and distribution center
manager, and a less qualified, younger male got
the spot. The complaint also states:
15. From July 1, 1973 through the present,
Plaintiff GORENCE has been denied and continues
to be denied promotions and compensation because
of her age and sex.
16. From July 1973 through March 1993,
Plaintiff GORENCE was involved in training
Defendant’s personnel managers while holding the
title of Personnel Specialist. She was denied
promotions to the manager level based on her age
and sex.
Apparently these allegations, coupled with the
EEOC charge of discrimination, are somehow
supposed to provide notice that she was denied
two other promotions: to industrial relations
manager in 1992 and to labor relations director
in 1993. Perhaps the denial of promotion to
industrial relations manager is the one she
refers to cryptically in her charge before the
EEOC. It is hard, however, to find a sufficient
relationship between the claims in the charge
before the agency and the denial of a promotion
to director of labor relations, which she claims
she was denied in 1993. Also, it is hardly worth
noting that any claim dating back to 1973 is too
stale to recognize.
In her complaint, Gorence also alleges that she
was paid less than male employees with titles
similar to hers as labor relations manager. And
in count II she claims that Eagle retaliated
against her by changing her title from labor
relations manager to that of human resources
specialist.
Evidence which she says supports a finding of
intentional discrimination includes an
unfortunate statement that Donan McAuley, a
disgruntled former employee, attributed to
decisionmaker Doug Edwards. McAuley said that
Edwards said that "he didn’t want to talk to any
middle-aged menopausal women." It is something of
a leap to say that this statement means that the
reason Gorence was not hired as warehouse manager
was that she was a middle-aged woman. Even if he
did not want to talk to middle-aged women,
Edwards did, in fact, interview Gorence. He did
not hire her because his view was that her
qualifications did not meet those required for
the assistant warehouse manager.
Other evidence on which all the plaintiffs rely
to support an inference of discriminatory
employment practices includes their largely
unsupported claim that Eagle was willing to
promote young men to management positions even
though they did not have the requisite
experience. Similarly, plaintiffs cite "evidence"
of wage disparities along gender-based lines. For
instance, the evidence of salary disparities in
Gorence’s case involves her affidavit in which
she says that other persons, all male, who were
"specialists" as she was were "compensated at a
much higher level" than she was. She lists ten
such persons. Then as support for her statement,
she compares her salary with two of the males
whose salaries are higher. In a vacuum, without
information regarding duties, experience, etc.,
the comparisons are not evidence of intentional
discrimination.
Gorence offers, as well, her claim that the
qualifications for assistant warehouse manager
were changed when she applied for the position;
whereas in the past it had been a position for a
person with human resources experience, the
qualifications were changed to require warehouse
experience, which Gorence did not have. Eagle
says that the new warehouse manager needed an
assistant with warehouse experience. We are not
convinced that a requirement that an assistant
warehouse manager have warehouse experience shows
discriminatory intent, even if the job
description had recently been changed.
In addition to our uncertainty as to whether
these claims are actually in the lawsuit,
Gorence’s claims regarding promotion to
industrial relations manager and labor relations
director fail as well because, at the time she
applied for the positions, they did not exist,
and no one was ever placed into those positions.
Gorence’s claim that she was discriminated
against because McAuley was paid more than she
was also fails. McAuley had a different
educational background--he had a law degree and
she did not. He also performed different duties,
including arbitrations and labor negotiations,
and she did not. On this record, we cannot find
discrimination.
Finally, Gorence claims that she was retaliated
against because her title was changed from labor
relations manager to human resources specialist.
This change in title did not, however, result in
a loss of pay or benefits. Gorence has not shown
by the direct method of proof that Eagle acted
with discriminatory intent.
Turning to a McDonnell Douglas analysis of
Gorence’s Title VII claims, we find that she
cannot show she was qualified for the positions
or that the legitimate, nondiscriminatory reasons
given for the employment action are pretextual.
Under McDonnell Douglas she, as well as Wolf,
must establish a prima facie case of
discrimination, after which Eagle must offer
legitimate, nondiscriminatory reasons for the
employment action. She must then rebut the
employer’s legitimate reason by proving that it
is a pretext for discrimination. A prima facie
case requires her to show that she is a member of
a protected class, has applied for and was
qualified for an open position, was rejected, and
the position was filled with a person not in the
protected class or remained open. Mills v. Health
Care Serv. Corp., 171 F.3d 450 (7th Cir. 1999).
The McDonnell Douglas analysis is also applicable
to ADEA claims. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097(2000). Obviously, the prima facie case
necessarily involves age-related factors: she and
also Bruce must establish that they are in the
protected age group and that substantially
younger persons obtained the positions they
wanted. Paluck v. Gooding Rubber Co., 221 F.3d
1003 (7th Cir. 2000). For a retaliation claim,
the prima facie case includes three elements:
that the plaintiff engaged in protected activity;
that she suffered an adverse job action; and that
there is a causal link between the protected
activity and the adverse job action. Miller v.
American Family Mut. Ins. Co., 203 F.3d 997 (7th
Cir. 2000). Then the employer must present a
legitimate, nondiscriminatory reason for its
action and the plaintiff must establish pretext.
Under the McDonnell Douglas framework, Eagle
claims that Gorence simply was not qualified for
the job as warehouse assistant manager. What the
qualifications for a position are, even if those
qualifications change, is a business decision,
one courts should not interfere with. Dale v.
Chicago Tribune Co., 797 F.2d 458 (7th Cir.
1986). We do not tell employers what the
requirements for a job must be. Given the
qualifications which Eagle set out for the
position, Gorence simply did not measure up. All
in all, her claims were properly dismissed.
Next we turn to Wolf’s claims. She alleges in
the amended complaint that on March 30, 1992, she
was denied a promotion to the position of
director of human resources. She also alleges in
general that after taking a psychological test to
determine her management ability, she "did not
receive a promotion as a result of submitting to
that test despite her high marks thereon." The
complaint is unclear exactly what promotion that
would be; however, her second of three charges
before the EEOC refers to a position as
industrial engineering manager. This case has
been litigated as to that position as well as her
claim that a position as the director of training
management should have been created for her in
1992. The latter may or may not be encompassed
within the EEOC charges./1 Wolf also claims that
she was retaliated against for filing EEOC
charges by suffering cutbacks in her staff, by
the denial of promotions, and by a job change
from training manager to human resources
specialist. Wolf also asserted a claim of unequal
pay under the Equal Pay Act and Title VII, but
she now concedes that those claims are untimely.
Wolf does not present evidence to support her
promotion claims under the direct method of
proving intentional discrimination. Her claims
were properly analyzed under McDonnell Douglas.
Using that mode of analysis, we find that Wolf
fails to show that she was qualified for the
position of human resources director in 1992. She
had never negotiated a collective bargaining
agreement and her experience in such a position
was not comparable to that of the person
ultimately hired, Bill Crigger. In fact, Wolf
admitted that she did not have the experience
that Crigger had. The same facts go to whether
Eagle had a legitimate, nondiscriminatory reason
for preferring Crigger over Wolf. He had worked
for another company where he was a human resource
manager for one division and a training
coordinator and personnel manager for another
division. Other than generalized claims that
Eagle did not have females in higher level
positions, there is nothing to show that Eagle’s
preference for Crigger in this situation was a
pretext for discrimination.
Wolf’s other promotion claims fail as well. The
position of industrial engineering manager went
to a person who had been working for the
consulting firm which handled the
responsibilities of the position for 10 months.
That Eagle chose to hire that person to continue
the work he had been doing is a legitimate,
nondiscriminatory reason for not promoting Wolf.
Again, Wolf has presented no evidence of pretext.
The other position--that of director of training
development--was never created. Therefore, if
there is a claim in this lawsuit that Wolf should
have been given the position, it fails.
Some of Wolf’s retaliation claims could hardly
be said to rise to the level of adverse job
actions with which a federal court should be
concerned--loss of secretarial support, for
instance. Even the change in title from human
relations manager to human relations specialist
did not involve a loss of pay or benefits. Such
a change does not constitute an adverse job
action. See Ribando v. United Airlines, 200 F.3d
507 (7th Cir. 1999).
Cary Bruce’s claims are for age discrimination
and retaliation. In the amended complaint he
claims that he was demoted from a position as
district manager and then later was not promoted
to other district manager positions; rather,
younger less qualified males were selected. He
acknowledges that his claim that he was demoted
in 1990 is barred because his EEOC charge was
filed more than 300 days after the demotion--on
August 5, 1992. See Lever v. Northwestern Univ.,
979 F.2d 552 (7th Cir. 1992). That leaves Bruce
with claims that he should have been promoted in
1991 and 1992 and that he was retaliated against
after he filed his charge by being suspended and
transferred to less desirable locations.
Bruce’s evidence of intentional discrimination
through the direct method of proof includes
statements made by certain Eagle officials. The
problem with all of the statements is that they
are not sufficiently connected with any decision
regarding Bruce. In 1993 one official asked for
a protocol to get rid of older store managers.
The statement having been made a year after any
relevant employment decision, it is not
sufficiently connected to Bruce’s claims.
Similarly, McAuley said that Steve Bryan
commented in 1990 that Bruce was not one of the
younger managers that Bryan "wanted to put in
place." A problem with this statement is that
Bryan did not begin to work for Eagle until 1991.
It also is not connected with any particular
employment decision. Finally, Bruce claims that
Bryan often used terms "young and aggressive"
when referring to managers. Again there is no
connection to a decision regarding Bruce.
Looking at Bruce’s claims through the prism of
McDonnell Douglas, we also find that Eagle’s
contention that Bruce was not qualified and that
it had legitimate, nondiscriminatory reasons for
not promoting him is supported in the record. In
1991 and 1992 Eagle wanted to change the non-
innovative culture which had prevailed at the
company. Eagle wanted district managers who did
well at problem identification and problem
solving. The company wanted effective leaders who
were good communicators and motivators and who
had flexible management styles. Eagle considered
Bruce deficient in these categories. Bruce was
seen as someone who allowed outdated merchandise
in his store, who had problems with store
conditions and cleanliness, and who was the
target of a number of employee grievances. The
company questioned his leadership style and
general performance. Bruce has not shown that
these concerns were a pretext for discrimination
on the basis of age.
Bruce’s retaliation claims involve transfers to
different stores and a suspension without pay.
The suspension was a result of his having an
affair with an employee’s wife. There is no
evidence that the reason was pretextual. The
transfers did not constitute an adverse
employment action; he retained the same pay and
benefits.
As to all three plaintiffs, the judgment of the
district court is
AFFIRMED.
FOOTNOTE
/1 Looking in the record in places where such things
would reasonably be expected to appear, we have
found only two of the three charges Wolf
apparently filed with the EEOC.