Haywood, Cherry v. Lucent Technologies ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4092
CHERRY HAYWOOD,
Plaintiff-Appellant,
v.
LUCENT TECHNOLOGIES, INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4445—James H. Alesia, Judge.
____________
ARGUED SEPTEMBER 6, 2002—DECIDED MARCH 20, 2003
____________
Before POSNER, EASTERBROOK, and DIANE P. WOOD,
Circuit Judges.
DIANE P. WOOD, Circuit Judge. Cherry Haywood, an
African American woman who worked for some time
at Lucent Technologies as an engineer, had consistently
unfavorable performance reviews. After a tense encoun-
ter with a supervisor, Lucent fired her. Convinced that
it had done so for racially discriminatory reasons and
in retaliation for an earlier complaint, Haywood sued
Lucent under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. To these federal claims, she added
a supplemental state law claim for defamation. The dis-
trict court granted summary judgment in favor of Lucent
on all counts. We affirm.
2 No. 01-4092
I
Haywood began working for Lucent in 1996. In December
1997, after various assignments, she transferred to the
company’s Switching and Access Systems (SAS) organiza-
tion. In July 1998, Haywood received her mid-year perfor-
mance review, which was generally unfavorable. Hay-
wood, who felt that the problem was really management
and not her performance, responded by filing an internal
complaint of race discrimination with Lucent’s Equal Op-
portunity/Affirmative Action (EO/AA) organization. Yolanda
Escalante, an employee of the EO/AA organization, investi-
gated Haywood’s complaint and found no evidence of
race discrimination. Nevertheless, Escalante suggested
that management had not adequately defined Haywood’s
objectives, nor had it sufficiently documented its con-
cerns about Haywood’s performance. At her recommenda-
tion, management gave Haywood a satisfactory year-end
performance rating for 1998 and agreed to help Haywood
transfer to another department.
Thereafter, Haywood contacted Spencer Foote, an
African-American senior manager in Lucent’s Wireless or-
ganization, hoping to pursue opportunities in his organiza-
tion. When Foote interviewed Haywood in December 1998,
she told him about her earlier EO/AA complaint. Foote con-
tinued the hiring process, and in January 1999 he offered
her a position as a project engineer. Haywood accepted.
Once again, however, in May 1999, she received a gen-
erally unfavorable performance review, this time from
Darlene Scott, her manager in the Wireless group. Scott
appraised Haywood’s performance based on a list of 19
job objectives Haywood had received at the beginning of
the year. Although the evaluation attempted to be kind,
praising Haywood for her contributions to Lucent’s re-
cruiting efforts, it was generally critical. Scott’s evaluation
reported a number of problems, including that Haywood
(1) did not take personal responsibility for results and
No. 01-4092 3
usually deflected failure toward others; (2) did not as-
sume accountability and responsibility; (3) received feed-
back on her behaviors and interaction with team members
in a way that caused concern; (4) was not “proactive” in
providing information on her project; (5) inconsistently
met obligations, sometimes missing deadlines; and (6)
did not regularly submit time reports. Scott also pre-
pared a detailed, five-page, single-spaced memorandum
listing specific examples of these problems. In a meeting
with Scott, Foote, and the department’s human resource
manager, Melinda Jackson Douglas, Haywood was not
receptive to management’s feedback. Instead, she at-
tacked Scott’s evaluation of her performance, calling it
subjective and defamatory. Haywood promised to prepare
a rebuttal to Scott’s evaluation, but she never provided
any such document to her managers.
Around the beginning of July 1999, for reasons unre-
lated to this litigation, Lucent decided to disband Scott’s
group and allow project engineers to find work in other
groups within Foote’s organization. After some contro-
versy over an alleged delay, Haywood was transferred to
Robert Shuman’s group in early August.
In November 1999, the pattern of unfavorable reviews
continued. Shuman prepared Haywood’s end-of-year per-
formance review based on his own assessment of her work
and feedback from Haywood’s prior managers and peers
that year. His evaluation was negative: on a scale of one
to six (with six indicating the likelihood of termination),
Shuman gave Haywood a rating of “five.” A “five” meant
that Haywood would not be terminated, but placed on a
performance improvement plan. Haywood thought that
Shuman’s assessment was wrong.
In the end, however, another incident intervened that
led to Haywood’s termination. On December 2, 1999, she
was called to Shuman’s office to discuss the status of one
4 No. 01-4092
of her projects. Although the facts surrounding this inci-
dent are in dispute, and we would normally accept the
facts most favorable to Haywood, in this instance it is
important to recount both versions, because both ver-
sions reached the ultimate decisionmaker—Foote. Accord-
ing to Haywood, Shuman told Haywood that he felt she
did not put in the aggressive work he expected. When
Haywood responded that she did not understand, Shuman
became agitated and said, “Cherry, I think you don’t un-
derstand how much stress and pressure I am under here.”
Haywood responded, “Well, Bob, you know, I really feel
sorry for a person who allows their moral values and
ethics to be compromised if that is how you feel.” Shuman
ordered Haywood to “get the hell out of his office” and
told Haywood he never wanted to see her again without
a third person present. Shuman then rose from his chair,
came over to where Haywood was standing, took her by
the elbow, and pushed her out of the doorway.
Shuman’s account is quite different. He recalled that
Haywood was upset that he had questioned her progress
on a project. She attacked him personally, telling him
that he was a bad supervisor, that she did not respect
him, and that he thought he was God. After this outburst,
Shuman ended the discussion and told Haywood that
he wanted to have a third party present at any further
discussions because of his concern that Haywood would
misrepresent him. He asked Haywood to leave the office,
at which point she “stood her ground and proceeded to
stick her finger in [his] face, escalating her tone.” Shuman
raised his voice, stood up, opened the door, and asked her
to leave.
Both Shuman and Haywood e-mailed Foote, documenting
their versions of the incident. In Haywood’s e-mail, Hay-
wood acknowledged that she had raised her voice in re-
sponse to Shuman’s statements “attacking [her] credibility.”
Foote apparently chose to believe Shuman’s version of
No. 01-4092 5
the facts. After meeting with legal counsel, he terminated
Haywood on December 7, 1999, for (1) her inability to
accept and act upon constructive feedback; (2) her inabil-
ity to “establish a viable working relationship with man-
agement”; and (3) her “pattern of insubordinate behavior.”
On January 10, 2000, Haywood filed a complaint with
the Equal Employment Opportunity Commission (EEOC),
which issued Haywood a right-to-sue letter. This law-
suit followed on July 21, 2000.
II
We review the district court’s grant of summary judg-
ment de novo, examining the facts in a light most favor-
able to Haywood as the nonmoving party, and drawing
all reasonable inferences in her favor. Greer v. Board of
Educ. of City of Chicago, 267 F.3d 723, 726 (7th Cir. 2001).
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with 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); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
A. Race Discrimination Claim
A claim of race discrimination may be established in one
of two ways—under the direct method or the indirect
burden-shifting method set forth in McDonnell Douglas
v. Green, 411 U.S. 792 (1973). See Wallace v. SMC Pneu-
matics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997). Under the
direct method, the plaintiff may show either through di-
rect or circumstantial evidence that the employer’s deci-
sion to take the adverse job action was motivated by an
impermissible purpose, such as her race or national origin.
6 No. 01-4092
See id.; Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736
(7th Cir. 1994).
Relying on Troupe, Haywood argues that there is di-
rect evidence of discriminatory intent, which she claims
can be proved by circumstantial evidence. She points
first to various comments that Foote allegedly made to
herself and others at Lucent in the summer of 1999—
namely that Foote said he was tired of helping or putting
his neck out for African-American women because all
they did was complain. Haywood also claims that Foote
had told one African-American co-worker to be careful
about the company she kept: “As a black woman it’s al-
ready more difficult of a challenge to help you, but if
you are keeping bad company that will certainly not help
you.” Second, she claims that Lucent treated her less
favorably than it did two white male employees who
also received performance ratings of five on their year-end
review. Lucent put the two white male employees on
performance improvement plans; only Haywood was ter-
minated.
Lucent begins by arguing that there should be a pre-
sumption of non-discrimination because Foote, who dis-
charged Haywood, is also African-American. It is wrong;
no such presumption exists, nor should one be created.
To the contrary, the Supreme Court has explicitly re-
jected exactly this idea: “Because of the many facets of
human motivation, it would be unwise to presume as a
matter of law that human beings of one definable group
will not discriminate against other members of their
group.” Castaneda v. Partida, 430 U.S. 482, 499 (1976); see
also Oncale v. Sundowner, 523 U.S. 75, 78 (1998).
In the end, however, Lucent does not need any such
presumption. As the district court found, Haywood’s
circumstantial evidence is far too remote and insubstantial
to permit a rational trier of fact to find direct discrimina-
No. 01-4092 7
tion. Even if one believed, consistently with Haywood’s
account, that Foote made the alleged comments in the
summer of 1999, those comments were not made con-
temporaneously with or in reference to Haywood’s ter-
mination in December 1999. Gorence v. Eagle Food Ctrs.,
242 F.3d 759, 762 (7th Cir. 2001) (“[B]igotry, 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.”); see also Pafford
v. Herman, 148 F.3d 658, 666 (7th Cir. 1998). They are
too remote to provide the link Haywood needs for a “di-
rect evidence” case.
The only other evidence to which Haywood points is
Lucent’s allegedly more favorable treatment of the two
white employees who received similar performance rat-
ings. If Foote had cited Haywood’s performance ratings
as the reason for the termination, this might require
further exploration. But he did not. He said that he
was terminating Haywood because of her inability to
accept and act on feedback, her problematic relationship
with management, and her pattern of insubordination.
Haywood has not pointed to evidence showing that the
other two employees had a comparable set of failings, and
thus no inference can be drawn from the fact that they
were given another chance and she was not. See, e.g.,
Jones v. Union Pacific R.R. Co., 302 F.3d 735, 745 (7th
Cir. 2002) (rejecting a similar “unusable comparison”).
Haywood’s discrimination claim fares no better under
the McDonnell Douglas paradigm. As the plaintiff, she
had the burden of establishing a prima facie case of race
discrimination. To do so, she had to show that: (1) she
was a member of a protected class; (2) she was meeting
her employer’s legitimate job expectations; (3) she suf-
fered an adverse employment action; and (4) similarly
situated employees not in the protected class were treated
8 No. 01-4092
more favorably. 411 U.S. at 802; Wells v. Unisource World-
wide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002).
The district court found that Haywood failed to show
that she was meeting her employer’s legitimate job ex-
pectations (element 2). We agree. Haywood consistently
received unfavorable performance reviews throughout her
time at Lucent. The fact that she believes these evalua-
tions were unwarranted is not enough to carry the day
for her. In fact, she has pointed to nothing that tends to
negate these assessments and show that her work was
acceptable. At most, Haywood claims that a performance
rating of “five” did not mandate termination. Perhaps not.
But, as we just noted, this was not the only reason why
she was terminated. Haywood has not met her burden of
showing that she was meeting Lucent’s legitimate job
expectations at the time of her termination, Brummett
v. Lee Enters., Inc., 284 F.3d 742, 745 (7th Cir. 2001), and
that dooms her claim. She did not establish a prima
facie case of race discrimination, and thus it is unneces-
sary for us to reach the issue of pretext.
B. Retaliation
Haywood also claims that she was a victim of unlawful
retaliation, claiming that she suffered adverse employ-
ment action as a result of filing an internal complaint
of race discrimination. In assessing this part of her case,
we follow the standards for retaliation claims announced
in Stone v. City of Indianapolis Public Utilities Division,
281 F.3d 640 (7th Cir. 2002).
The plaintiff may establish a prima facie case of reta-
liation in one of two ways. First, she may present direct
evidence of a statutorily protected activity, an adverse
employment action, and a causal connection between the
two. Id. at 644. If her evidence is contradicted, the case
No. 01-4092 9
must be tried unless the defendant presents unrebutted
evidence that it would have taken the adverse employ-
ment action against the plaintiff anyway, “in which
event the defendant’s retaliatory motive, even if unchal-
lenged, was not a but-for cause of the plaintiff’s harm.” Id.
at 642; see also Price Waterhouse v. Hopkins, 490 U.S. 228,
244-45 (1989).
The second is the indirect method, our “adaptation
of McDonnell Douglas to the retaliation context.” Stone,
281 F.3d at 644. At the first stage, the plaintiff must show
that (1) she engaged in statutorily protected activity; (2)
she performed her job according to her employer’s legiti-
mate expectations; (3) despite her satisfactory job perfor-
mance, she suffered an adverse employment action; and
(4) she was treated less favorably than similarly situated
employees who did not engage in statutorily protected
activity. Id. at 644; Hilt-Dyson v. City of Chicago, 282 F.3d
456, 466 (7th Cir. 2002). Under this method, the “plaintiff
so proceeding need not show even an attenuated causal
link,” Stone, 281 F.3d at 644. If the plaintiff establishes
these elements, the burden shifts to the defendant to
come forward with a legitimate, non-invidious reason for
the adverse employment action. Id. Although the burden
of production shifts to the defendant under this method,
“the burden of persuasion rests at all times on the plain-
tiff.” Klein v. Trustees of Indiana Univ., 766 F.2d 275,
280 (7th Cir. 1985). Once the defendant presents a legiti-
mate, non-invidious reason for the adverse employment
action, the burden shifts back to the plaintiff to show that
the defendant’s reason is pretextual. Id.Haywood claims that in retaliation for filing her EO/AA
complaint of race discrimination, she was subjected to a
number of adverse employment actions, including (1)
negative performance reviews in May and November
1999, (2) an alleged transfer delay in July 1999, and (3)
termination in December 1999.
10 No. 01-4092
While Haywood’s termination certainly qualifies as an
adverse employment action, see Crady v. Liberty Nat’l
Bank & Trust Co., 993 F.2d 132, 135 (7th Cir. 1993),
Lucent’s other employment actions do not. We consider
first the delay in her transfer. As we have said before,
mere unhappiness and inconvenience are not actionable
under Title VII. See Smart v. Ball State Univ., 89 F.3d 437,
441 (7th Cir. 1996). At minimum, the employee must be
able to show a quantitative or qualitative change in the
terms or conditions of employment. See Patt v. Family
Health Sys., Inc., 280 F.3d 749, 753 (7th Cir. 2002). The
alleged one-month delay in Haywood’s transfer was nei-
ther sort of change. Her duties, responsibilities, compen-
sation, and benefits remained the same during this period,
and Haywood does not allege that the delay affected
her opportunities at Lucent or otherwise injured her
career. See, e.g., Herrnreiter v. Chicago Hous. Auth., 315
F.3d 742, 744 (7th Cir. 2002). The uncertainty she ex-
perienced while waiting for her transfer may have been
unpleasant, but it was not severe enough to constitute
an adverse employment action.
As for the negative performance evaluations, it is well
established that these alone do not constitute an adverse
employment action. Hilt-Dyson, 282 F.3d at 466; Grube
v. Lau Indus., 257 F.3d 723, 729 (7th Cir. 2001); Sweeney
v. West, 149 F.3d 550, 556 (7th Cir. 1998). They may be
presented as evidence of discrimination, Smart, 89 F.3d
at 442, or as evidence at the pretext stage to suggest
that defendant’s legitimate reasons for the plaintiff’s
termination are unworthy of belief or somehow tainted,
Giacoletto v. Amax Zinc Co., Inc., 954 F.2d 424, 427 (7th
Cir. 1992). Haywood has nothing, however, to suggest that
they are anything but genuine evaluations. In the end, it
does not matter, because her termination suffices to satisfy
her burden of demonstrating an adverse employment
action. See Crady, 993 F.2d at 35.
No. 01-4092 11
That is of little avail to Haywood, however, because
we agree with the district court that she has not estab-
lished a causal link between her termination and her
internal complaint of race discrimination. After Haywood
informed Foote about her complaint against her former
SAS organization, Foote offered Haywood the opportunity
for a fresh start in his organization. Other than “pure
speculation” that Foote was actually lying in wait for the
opportunity to punish Haywood for having filed a com-
plaint of race discrimination against a completely different
group of people at Lucent, Haywood provides nothing
to establish causation. Lalvani v. Cook County, 269 F.3d
785, 791 (7th Cir. 2001). Haywood was not terminated
until a year after she informed Foote that she filed the
complaint. This time period is far too long—at least on this
record—to allow a reasonable fact-finder to infer that
her termination was causally related to the filing of her
complaint. See Filipovic v. K & R Express Sys., Inc., 176
F.3d 390 (7th Cir. 1999) (four months negates causal
inference); Davidson v. Midelfort Clinic, 133 F.3d 499 (7th
Cir. 1998) (no causal inference where employee was termi-
nated five months after filing EEOC complaint). While
“temporal proximity is only evidence of causation, not a
separate element of the prima facie case,” here Haywood
fails to bring forth any evidence that her termination was
related to her complaint. Lalvani, 269 F.3d at 791. Thus,
Haywood’s retaliation claim fails under the direct method.
Haywood’s indirect case was also correctly rejected. As
we noted earlier, Haywood has not alleged or shown that
she was performing her job in a satisfactory manner.
Stone, 281 F.3d at 644; Hilt-Dyson, 282 F.3d at 466. Sum-
mary judgment on the retaliation claim was proper.
C. Defamation
The facts surrounding Haywood’s slander claim are in
dispute, but none of the disputes is material in the final
12 No. 01-4092
analysis. Haywood alleges that Scott, Shuman, and Foote
told security that Haywood was unstable, and that if she
appeared on company premises, security was to call the
police. Haywood learned of these statements from Jacque-
line McKinley, a security guard at Lucent, who learned
of these statements from her superiors. Scott, Shuman,
and Foote deny making any of these statements.
To prove defamation, Haywood must show (1) a false
statement by Lucent, (2) an unprivileged publication of
the defamatory statement, and (3) damages. Parker v.
House O’Lite Corp., 756 N.E.2d 286, 292 (Ill. App. Ct. 1999).
The problem with Haywood’s claim is that she has not
presented any admissible evidence of a defamatory state-
ment. See Bombard v. Fort Wayne Newspapers, Inc., 92
F.3d 560, 562 (7th Cir. 1996) (“[E]vidence relied upon must
be competent evidence of a type otherwise admissible at
trial.”). The only evidence she offers is her own testimony
that another employee told her about information re-
ceived from the employee’s superiors in corporate security.
This is inadmissible hearsay on multiple levels and is “not
enough to preclude summary judgment.” Logan v. Cater-
pillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001). Although
statements by Haywood’s managers might constitute non-
hearsay admissions on behalf of Lucent, Haywood’s own
version of the statements—based on another employee’s
version of the statements, which is based on the employees’
superiors’ version of the statements—is not admissible
and will not overcome a motion for summary judgment.
See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.
1997).
Moreover, an otherwise defamatory statement may not
be actionable if a qualified privilege exists. See Parker,
756 N.E.2d at 297. Illinois common law protects “honest
communications of misinformation in certain favored
circumstances in order to facilitate the availability of
No. 01-4092 13
correct information.” Kuwik v. Starmark Star Mktg. &
Admin., Inc., 619 N.E.2d 129, 133 (Ill. 1993). A court
must determine as a matter of law and general policy
whether the occasion created a “recognized duty or inter-
est that makes the communication privileged.” Parker, 756
N.E.2d at 297. The inquiry is a general one, requiring the
court to “weigh the value of the type of interest to be
protected against the degree of damage to be expected
from release of the type of defamatory matter involved.” Id.
The district court held that Lucent had a compelling
interest to make sure terminated employees were no
longer allowed on company premises. Haywood presented
no evidence tending to show that the company had no
such interest, nor did she support a claim that Lucent
had abused this privilege. See Kuwik, 619 N.E.2d at 133.
We therefore affirm the district court’s holding that
the communications were covered by this qualified privi-
lege.
III
For the preceding reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-20-03