Wade, Ella v. Lerner New York Inc ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1115
ELLA WADE,
Plaintiff-Appellant,
v.
LERNER NEW YORK, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 5204--Elaine E. Bucklo, Judge.
Argued October 27, 2000--Decided March 5, 2001
Before Easterbrook, Kanne, and Rovner, Circuit
Judges.
Kanne, Circuit Judge. Ella Wade, a former sales
associate at Lerner New York, Inc., accuses
Lerner of discriminating against her in violation
of the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. sec. 623(a). Wade appeals the
district court’s granting of Lerner’s motion for
summary judgment on her claims alleging that
Lerner improperly disciplined her and failed to
promote her to the position of assistant manager
because of her age. Because we agree with the
district court’s conclusion that Wade has failed
to meet her burden with respect to both of these
claims, we affirm that court’s decision.
I. History
Wade worked as a sales associate at Lerner, a
women’s clothing store, for over nineteen years
until she was terminated on April 27, 1997 at the
age of fifty-two. Wade alleges that she had
repeatedly requested and been denied both a
promotion to assistant manager and the training
that Lerner states is necessary to receive such
a promotion. Lerner disputes these assertions,
claiming that Wade never inquired about receiving
such a promotion or training.
On November 21, 1996, Wade was scheduled to
work at 8:00 a.m. Wade contends that she arrived
for work on time, signed in on her time sheet at
8:00 a.m., and then, because she was feeling ill,
requested and was granted permission by her
supervisor, Monique Stovall, to take a short
break to eat the breakfast she had brought with
her. Stovall claims that Wade failed to show up
on the sales floor until 8:19 a.m. Stovall later
noticed that Wade had signed in on her time sheet
at 8:00 a.m., despite not having actually started
work until after she finished her breakfast at
around 8:25 a.m. Stovall reported this occurrence
to the store manager, Darlene Shines-Wilson, and
they concluded that Wade had falsified her time
sheet. Despite Wade’s insistence that she arrived
to work on time, Shines-Wilson directed Stovall
to write up a Special Performance Review ("SPR")
reprimanding Wade for arriving to work late and
falsifying her time sheet. Wade believed that the
allegations in the SPR were false so she refused
to sign it. Although Stovall stated in the SPR
that Wade’s actions were grounds for termination,
no other action was taken against Wade for this
incident.
Wade filed an age discrimination claim with the
Illinois Human Rights Commission on December 5,
1996, alleging that she was paid less than
younger sales associates for the same work, not
considered for a promotion to assistant manager,
and written up for tardiness even though she had
arrived to work on time, all because of her age.
Wade filed a second complaint with the Illinois
Human Rights Commission on April 23, 1997,
claiming that Lerner was retaliating against her
for filing her original claim with the
commission.
Wade was involved in an incident at work on
April 26, 1997 that led to her termination the
very next day for violent and disruptive
behavior. While Wade disputed the accusations
surrounding her termination in the district
court, she does not challenge them here.
Wade filed suit against Lerner on August 21,
1998 in the United States District Court for the
Northern District of Illinois. She alleged that
Lerner discriminated against her in violation of
the ADEA by improperly disciplining her and
failing to promote her because of her age. See 29
U.S.C. sec. 623(a). Wade also claimed that Lerner
decreased her work hours and eventually
terminated her in retaliation for filing a
complaint with the Illinois Human Rights
Commission, thereby violating the ADEA, sec.
623(d), and Title VII, 42 U.S.C. sec. 2000e-3(a).
Lerner filed a motion for summary judgment on all
of Wade’s claims. On December 14, 1999, Judge
Bucklo granted Lerner’s motion for summary
judgment finding that Wade had failed to meet her
burden with respect to each of her claims. See
Wade v. Lerner New York, Inc., 81 F. Supp. 2d
882, 887 (N.D. Ill. 1999). Wade filed this appeal
contesting the district court’s decision with
regard to her ADEA claims that Lerner disciplined
her in a discriminatory manner and failed to
promote her because of her age.
II. Analysis
A. Standard of Review
We review the district court’s decision to
grant Lerner’s motion for summary judgment de
novo. See Paluck v. Gooding Rubber Co., 221 F.3d
1003, 1009 (7th Cir. 2000). Summary judgment is
proper when "the pleadings, depositions, answers
to interrogatories, and admissions on file,
together with the affidavits, if any, show that
there is no genuine issue as to any material fact
and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
A genuine issue of material fact exists "only if
there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict
for that party." Baron v. City of Highland Park,
195 F.3d 333, 338 (7th Cir. 1999) (citing
Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
In making this determination, we review the
record in the light most favorable to Wade,
drawing all reasonable inferences in her favor.
See Myers v. Hasara, 226 F.3d 821, 825 (7th Cir.
2000) (citing Anderson, 477 U.S. at 255).
B. Wade’s Claims of Discrimination
Under the ADEA
The purpose of the ADEA is "to promote
employment of older persons based on their
ability rather than age; to prohibit arbitrary
age discrimination in employment; to help
employers and workers find ways of meeting
problems arising from the impact of age on
employment." 29 U.S.C. sec. 621(b). Effectuating
this purpose, the ADEA prohibits employers from
discriminating against employees who are at least
forty years old based on their age. 29 U.S.C.
sec.sec. 623(a), 631(a). "A plaintiff seeking
relief under the ADEA must establish that he
would not have been treated adversely by his
employer ’but for’ the employer’s motive to
discriminate against him because of his age."
Baron, 195 F.3d at 338. An employer’s age
discrimination may be proven by a showing of
direct evidence of the employer’s motive to
discriminate or through circumstantial evidence
and the indirect burden-shifting framework set
out in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668(1973). See Baron, 195 F.3d at 338. Under the
burden-shifting framework a plaintiff must first
establish, by a preponderance of the evidence, a
prima facie case of discrimination. See id. at
339. If a plaintiff is able to meet this initial
burden, then the burden shifts to the defendant
to provide "evidence of a legitimate and non-
discriminatory reason for the employment
decision." Robin v. Espo Eng’g Corp., 200 F.3d
1081, 1088 (7th Cir. 2000). If the defendant
provides such a reason, then the plaintiff must
prove, by a preponderance of the evidence, that
the defendant’s stated reason for the employment
decision is merely a pretext for discrimination.
See Jackson v. E.J. Brach Corp., 176 F.3d 971,
983 (7th Cir. 1999).
In this case, Wade has presented no direct
evidence of age discrimination on the part of
Lerner in support of her claims that Lerner
violated the ADEA. Wade must therefore use the
McDonnell Douglas burden-shifting method to prove
that Lerner discriminated against her because of
her age.
1. Wade’s Discriminatory Discipline Claim
Wade’s first claim on appeal asserts that the
district court erred by granting summary judgment
for Lerner on Wade’s discriminatory discipline
claim. Wade argues that summary judgment should
not have been granted on this claim because a
genuine issue of fact exists as to whether Wade
was disciplined because she arrived late to work
and falsified her timecard or because of her age.
To establish a prima facie case for her
discriminatory discipline claim, Wade must show
that: (1) she was a member of the protected class
of persons forty or older; (2) she was performing
her job satisfactorily; (3) she suffered an
adverse employment action; and (4) substantially
younger, similarly-situated employees were
treated more favorably. See Debs v. Northeastern
Ill. Univ., 153 F.3d 390, 395 (7th Cir. 1998).
Lerner acknowledges that Wade has met the first
three criteria of her prima facie case: she is
over forty years of age, she was performing her
job satisfactorily, and she was subjected to an
adverse employment action. Lerner contends,
however, that Wade cannot establish a prima facie
case of discriminatory discipline because she
cannot show that younger, similarly situated
employees were treated more favorably. According
to Lerner, if anything, Wade was treated more
favorably than younger, similarly situated
employees, such as sales associate Lorenzo
Holmes, age twenty-two, who was terminated by
Lerner for falsifying his time sheets. Wade
maintains that she was treated less favorably
than younger sales associates because they were
not falsely accused of being late for work or of
falsifying their time sheets. Because we must
review the record in the light most favorable to
Wade, we accept her version of the events of
November 21, 1996.
Even if we find that Wade has made out a prima
facie case for her claim of discriminatory
discipline, however, she still cannot prevail.
Once Wade has satisfied her prima facie case, the
burden shifts to Lerner to provide a legitimate,
non-discriminatory reason for disciplining Wade.
Lerner’s stated reason for disciplining Wade is
that its store manager, Shines-Wilson, believed
Wade’s supervisor, Stovall, when Stovall told her
that Wade had arrived late to work and falsified
her time sheet. Given this legitimate, non-
discriminatory explanation of why the SPR was
issued, Lerner has satisfied its burden, and Wade
must now show that Lerner’s stated reason was
merely a pretext for age discrimination. Wade has
failed to meet this burden.
A plaintiff can establish pretext "directly with
evidence that [an] employer was more likely than
not motivated by a discriminatory reason, or
indirectly by evidence that the employer’s
explanation is not credible." Jackson v. E.J.
Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999)
(citations omitted). As Wade has presented no
direct evidence in this case, she must prove
pretext with indirect evidence. Using indirect
evidence, Wade may establish that Lerner’s stated
reason for disciplining her is merely a pretext
for discrimination by showing that Lerner’s
reason is: (1) factually baseless; (2) not the
actual motivation for the discipline; or that it
is (3) insufficient to motivate the discipline.
See id. Wade’s sole argument, that Stovall’s
accusations against her were fabricated, fails to
establish the presence of any pretext in this
case. In describing a plaintiff’s burden in this
context we have explained that "the issue of
pretext does not address the correctness or
desirability of reasons offered for employment
decisions. Rather, it addresses the issue of
whether the employer honestly believes in the
reasons it offers." McCoy v. WGN Cont’l Broad.
Co., 957 F.2d 368, 373 (7th Cir. 1992). Thus, if
Lerner "honestly believed in the
nondiscriminatory reason[ ] it offered," it is
irrelevant whether Lerner disciplined Wade for an
infraction she did not actually commit. Hartley
v. Wis. Bell, Inc., 124 F.3d 887, 890 (7th Cir.
1997); see also Pitasi v. Gartner Group, Inc.,
184 F.3d 709, 718 (7th Cir. 1999) ("[I]t is not
sufficient for the employee to show that his
employer fired him for incorrect or poorly
considered reasons. He must establish that the
employer did not honestly believe the reasons it
gave for terminating him."). Shines-Wilson, the
store manager, made the decision to discipline
Wade because she believed that Wade arrived to
work late and falsified her time sheet.
Therefore, Wade must be able to show that when
Shines-Wilson directed Stovall to write up an SPR
reprimanding Wade, Shines-Wilson did not honestly
believe that Wade had shown up late to work or
falsified her time sheet. The record is void of
any evidence indicating that Shines-Wilson did
not honestly believe Stovall’s presentation of
the facts when she made her decision to
discipline Wade. Thus, Wade’s discriminatory
discipline claim cannot be sustained.
2. Wade’s Discriminatory Denial
of a Promotion Claim
Wade also appeals the district court’s decision
granting Lerner’s motion for summary judgment on
the claim that Lerner discriminated against Wade
by refusing to promote her to assistant manager
because of her age. On appeal, Wade argues that
the district court’s decision was erroneous
because Lerner discriminated against her when it
failed to even consider her for a promotion and
refused to give her the training she needed to
become eligible for a promotion. For Wade to make
out a prima facie case for the discriminatory
denial of a promotion under the ADEA she must
show that: (1) she was a member of the protected
class of persons forty or older; (2) she applied
and was qualified to be an assistant manager; (3)
she was not promoted; and (4) similarly situated
younger employees were treated more favorably.
See Rabinovitz v. Pena, 89 F.3d 482, 486 (7th
Cir. 1996).
Wade clearly satisfies the first and fourth
requirements of the prima facie case as she is
over the required age of forty years old and
several sales associates significantly younger
than Wade were promoted to assistant manager.
Whether Wade satisfies the second criteria is a
closer call. Construing the facts in the light
most favorable to Wade, as we are required to do,
we accept her statement that she applied for the
position of assistant manager. As to whether Wade
was qualified for this promotion, Lerner argues
that Wade was not qualified for such a promotion
because she had neither received the proper
training to assume such a position nor displayed
the aptitude to learn such training. Wade claims
that she repeatedly asked for and was denied this
instruction as well as an opportunity to
demonstrate the aptitude to learn such training.
With regard to this training, a former manager at
the Lerner Store where Wade worked testified in
her deposition that none of Lerner’s sales
associates were qualified for an assistant
manager position unless they were allowed to
receive the training that Lerner offered. As
Lerner decided which sales associates received
this training, "Lerner controlled the means by
which its employees could ’qualify’ for
managerial positions." Wade v. Lerner New York,
Inc., 81 F. Supp. 2d 882, 885 (N.D. Ill. 1999).
Because Wade claims that she asked for and was
denied both the required training and the
opportunity to display her ability to learn such
training, we will accept for now that Wade was at
least qualified to receive the training that
would qualify her for a promotion to assistant
manager.
Once we have found that Wade applied for a
promotion to assistant manager, she has satisfied
the third requirement of the prima facie case
because she never did attain that position. Thus,
Wade has established a prima facie case for her
claim that she was denied a promotion because of
her age, and the burden shifts to Lerner to
provide a legitimate, non-discriminatory reason
for not promoting Wade to assistant manager.
Lerner offers three reasons why Wade did not
receive a promotion to assistant manager. Lerner
contends that it never considered Wade for such
a promotion because: (1) she had falsified her
time records; (2) she had a record of attendance
problems; and (3) those sales associates who were
promoted to the assistant manager position in
November 1996 had no disciplinary record and were
otherwise more qualified than Wade. Lerner’s
production of these reasons satisfies its burden
to provide legitimate, non-discriminatory reasons
for not promoting Wade, and therefore, we now
consider whether Wade can prove that Lerner’s
stated reasons are merely a pretext for age
discrimination. See Baron v. City of Highland
Park, 195 F.3d 333, 341 (7th Cir. 1999). Wade can
establish that Lerner’s legitimate, non-
discriminatory reasons for failing to promote her
are pretext by showing that Lerner’s stated
reasons are: (1) factually baseless; (2) not the
true motivation for failing to promote her; or
(3) not a sufficient basis upon which to decide
not to promote Wade. See id.Wade argues that Lerner’s first stated reason
for failing to promote her is nothing more than
pretext because she applied for and was denied a
promotion before she was disciplined for
allegedly falsifying her timecard. Based on
Wade’s statement regarding the timing of when she
sought a promotion, we will set aside Lerner’s
claim that Wade was never considered for a
promotion because she had falsified her time
sheet. We will also set aside Lerner’s assertion
that those individuals who received the
promotions did not have disciplinary records and
were otherwise more qualified than Wade. We have
already held that Wade applied for a promotion
before she was disciplined in November.
Furthermore, Lerner’s definition of "more
qualified" consists of those individuals whom
Lerner provided with the training needed to
become qualified for the assistant manager
position. Thus, a reasonable juror could find
that Lerner purposefully refused to provide
training to Wade because of her age. Wade fails,
however, to provide any evidence to support the
inference that Lerner’s assertion that it did not
consider Wade for a promotion due to her
attendance problems is merely a pretext for
discrimination.
Wade acknowledges that she was written up for
tardiness on three occasions. Furthermore, she
provides no evidence to counter Lerner’s
statement that none of the four individuals
promoted to managerial positions in November 1996
had an attendance problem similar to Wade. Wade’s
only response to Lerner’s legitimate, non-
discriminatory reason for not promoting her is
that Lerner’s decision-making process did not
sufficiently account for Wade’s many years of
experience. This response is inadequate, however,
as Wade "has to do more than show that by [her]
own standards [she] should have been treated
better." Kuhn v. Ball State Univ., 78 F.3d 330,
331-32 (7th Cir. 1996). Essentially, Wade asks
this Court to determine that Lerner should have
made promotion decisions in a manner which would
have enabled her to become an assistant manager.
We have repeatedly held, however, that we will
not sit as a "’superpersonnel department’"
debating the merits of legitimate, non-
discriminatory criteria a business chooses to
employ in determining which of its employees will
receive promotions. Debs v. Northeastern Ill.
Univ., 153 F.3d 390, 396 (7th Cir. 1998) (quoting
Dale v. Chicago Tribune Co., 797 F.2d 458, 464
(7th Cir. 1986)). Once we have determined that an
employer has given a legitimate, non-
discriminatory reason for not promoting someone,
and that reason is not a pretext for
discrimination, our analysis is concluded. Thus,
because Wade is unable to provide any evidence
that Lerner’s legitimate, non-discriminatory
reason for not promoting her is merely a pretext
for discrimination, she has failed to meet her
burden under the McDonnell Douglas framework to
show that she was a victim of age discrimination.
III. Conclusion
We agree with the district court’s conclusion
that Wade has failed to meet her burden with
respect to each of her claims, and therefore, we
AFFIRM the decision of the district court granting
Lerner’s motion for summary judgment.