Wyninger, Joella v. New Venture Gear ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1632
JOELLA K. WYNINGER,
Plaintiff-Appellant,
v.
NEW VENTURE GEAR, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 01 C 310—Sarah Evans Barker, Judge.
____________
ARGUED OCTOBER 29, 2003—DECIDED MARCH 19, 2004
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
KANNE, Circuit Judges.
KANNE, Circuit Judge. The plaintiff, Joella Wyninger,
alleges multiple violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e et seq. (2003), by her former
employer, New Venture Gear, Inc. (“NVG”).1 Wyninger
asserts that NVG tolerated or condoned a hostile work
1
NVG changed its name to Manual Transmissions of Muncie,
LLC on February 1, 2003. For simplicity, we will continue to refer
to the defendant as NVG.
2 No. 03-1632
environment based on gender, maintained unequal terms of
employment, and fired her because of her sex and in re-
taliation for a sexual harassment complaint she made
against her coworkers. The district court, after denying a
motion to consider newly discovered evidence, granted
summary judgment to NVG on all of Wyninger’s Title VII
claims. We affirm both the decision to exclude evidence and
the grant of summary judgment.
I. History
NVG, a joint venture created by General Motors Corp.
and the former Chrysler Corp., produces automobile parts.
Vendors supply NVG with unfinished component parts,
which NVG processes and assembles into manual transmis-
sions and drive-line components. One of NVG’s facilities is
located in Muncie, Indiana. This facility employs approxi-
mately 1300 workers on three shifts.
Joella Wyninger engaged in a variety of occupations
before joining NVG. She worked as a gear cutter and in the
tool crib at a manufacturing concern for nearly two years.
She also worked for a short period of time as a car-seat
inspector at a different manufacturer. Aside from manu-
facturing-related jobs, Wyninger worked as a waitress, a
telemarketer, and at various retail establishments. Her
brief experiences in supervisory roles came as a waitress
and in retail.
After interviewing for the position of production super-
visor at NVG’s Muncie facility in April of 2000, Wyninger
was hired under a ninety-day written contract. NVG in-
formed her that she would be monitored during this trial
period and that her employment could be made permanent
if she performed well. NVG cites Wyninger’s lack of manu-
facturing experience as the reason for this probationary
period.
No. 03-1632 3
At about the same time Wyninger was hired, NVG hired
three other production supervisors, all males. NVG placed
Bill Timbs and Scott Brand as full supervisors. NVG placed
Steve Lawrence as a supervisor-in-training, an intermedi-
ate position between full supervisor and a probationary
contract position like that afforded to Wyninger. Timbs had
over twenty years of experience in the military and nine
years of supervisory experience in manufacturing. Brand
had fourteen years of experience in manufacturing as a
project manager. Lawrence had twenty years of experience
in manufacturing and sixteen years of military experience.
Wyninger was the only production supervisor who was not
salaried and who lacked benefits. Her $25 per hour con-
tractual rate of payment, however, meant that Wyninger
earned roughly the same pay as her colleagues.
NVG initially assigned Wyninger as a trainee to the first
shift in Department 5600, a machinery area. She “shad-
owed” a first-shift production supervisor, Randy Johnson,
for at least three-to-four weeks to learn the job. Usually,
production supervisors received this form of training for two
weeks. Wyninger also received about twenty-nine hours of
formal classroom training during the course of her employ-
ment with NVG. The other newly hired production supervi-
sors received similar amounts of formal training: Brand
received about twenty-eight hours, Lawrence received about
seventeen hours, and Timbs received more than forty hours.
The record is silent about the amount of on-the-job training
provided to Brand, Lawrence, and Timbs. NVG did not
formally train Wyninger to calculate overtime for her
employees or to prepare inventory sheets for the next shift.
Department 5600 is divided into two sections: component
preparation and an assembly line. Wyninger worked in the
component preparation section, where hourly laborers per-
form preliminary tasks on unfinished components so that
the components can be assembled into final products on the
assembly line. Of particular importance to component
4 No. 03-1632
preparation is “heat treating” the components. Production
supervisors like Wyninger manage the hourly employees to
ensure efficient production. Among other things, the su-
pervisors monitor and instruct forklift drivers, known at
NVG as “truckers,” so that the component materials are
transported in a timely fashion to the heat-treat operation
and subsequently to the assembly line.
After her initial training on first shift, Wyninger was as-
signed to second shift where she supervised approximately
thirty employees. NVG assigned Earl Davis, an experienced
supervisor, to help Wyninger with any difficulties she may
have experienced during her first week on her own. She
reported directly to the second-shift superintendant, Russell
Wade. Bryant Allam, the Area Manager, was responsible
for production in Department 5600 across all three shifts.
Wyninger faced obstacles to successfully maintaining the
production flow on the second shift. Often the first-shift
workers failed to leave the equipment and stock ready for
continued production. Furthermore, the first-shift produc-
tion supervisor (Johnson) did not always leave inventory
lists for Wyninger to consult. Wyninger also frequently
complained about inadequate trucker support. The strain of
working in a fast-paced manufacturing environment
was made more difficult by the vulgar language and fiery
temper of the third-shift superintendent, Joe Crouch, who
often talked to Wyninger at length when their time at the
factory overlapped, and the similar behavior of second-shift
superintendent Wade. Due to her lack of formal training in
calculating overtime or preparing inventory sheets,
Wyninger committed mistakes and was mocked by her
supervisors. Wyninger was not paid overtime for routine
paperwork she completed before or after her shift; she
alleges that Johnson did receive overtime compensation.
On July 27, 2000, a production line went down in Depart-
ment 5600. Wade had informed Wyninger that gears being
No. 03-1632 5
welded on her shift had to be taken to the heat-treat
operation so that the gears would be ready for assembly.
Five hours into her shift, Wyninger had not yet been able to
send any gears to the heat-treat operation. This resulted in
the shutdown, since the assembly line had no parts to
process. Wade and Allam attributed the production line
shutdown to Wyninger’s failure to properly marshal her
resources and personnel. Wyninger blamed the truckers and
Wade for failing to help when she could not locate the
truckers.
On August 1, 2000, Wyninger received a phone call from
union committeeman Bob Slaven, her subordinates’ union
representative. Because Slaven represented the interests of
the workers on Wyninger’s shift, Wyninger often had
to consult with Slaven about employee issues that arose.
Slaven asked Wyninger about a job posting. When
Wyninger replied that she had posted a job and was sur-
prised Slaven had not come to look at “it,” Slaven—ap-
parently using the speaker feature on his telephone so other
men in his office could listen to the conversation— re-
sponded with a sexual innuendo about the “it” to which
Wyninger referred.2 Wyninger heard several men laugh-
ing. After Wyninger hung up the phone in disgust, the
phone rang again about one minute later and an unidenti-
fied voice—Wyninger thinks it was again Slaven and that
2
Wyninger testified to the following account of the first phone
call:
Slaven: “Have you posted the Wera job yet?”
Wyninger: “Yeah, it’s, I believe, it’s posted on the door—on
the door in the office, I’m surprised you haven’t come to look
at it.”
Slaven: “Oh, you mean the posting?”
Wyninger: “Yes, the posting.”
Slaven: “Oh, I was wondering what you wanted me to come
and look at.”
6 No. 03-1632
he was still using the speaker phone—asked twice, “You got
any pussy you can hook me up with?”
On August 2, Slaven again called Wyninger and de-
manded that she come to his office to discuss an employee
matter. Wyninger complied with Slaven’s request. Once
Wyninger entered, two union representatives followed her
inside and locked the door—although in fact the door could
still be opened by someone in the room. Wyninger unlocked
the door, but the men re-locked it when she sat down.
Slaven asked Wyninger about a sexual-harassment incident
in her department involving another employee. After
Wyninger described the resolution of the matter, Slaven
asked Wyninger why she wouldn’t answer the complain-
ing employee’s questions about her own preferences with
regard to oral sex. The three men in the room laughed.
Wyninger, again, was offended and distressed by the
conduct of Slaven.
Wyninger initially complained to coworkers about the
phone calls on August 1; she reported all of her complaints
to human resources on August 2. On August 3, NVG hu-
man-resources personnel called Wyninger into work early,
informed Wyninger that NVG had a “zero tolerance” policy
with respect to sexual harassment, prompted Wyninger to
write a report, gave her the night off with pay, and began
an investigation into the complaint.
NVG was unsuccessful in its attempts to trace the August
1 phone calls, and Slaven denied involvement with the
second call. Although Wyninger insists that both calls were
received while Don Blakey (an NVG employee) was in her
office, Blakey recalled only one phone call. NVG did place a
device on Wyninger’s phone to monitor all future calls to
her office. NVG also investigated the August 2 meeting in
Slaven’s office. NVG interviewed all individuals present at
the meeting; they insisted that they meant no harm and
were only “kidding around.” NVG determined that the door
No. 03-1632 7
could not lock anyone inside the room. On August 7, NVG
concluded that there was insufficient evidence to punish
Slaven or anyone else based on Wyninger’s complaint
because of the discrepancies in the accounts of the incidents
related by the parties.
At the end of the ninety-day employment contract, set to
expire on August 12, 2000, NVG determined that it would
not extend Wyninger’s employment. The human resources
department had final authority to make hiring and firing
decisions, although it took into consideration the opinions
of those with direct supervisory roles, including the second-
shift superintendant Wade and the Area Manager Allam.
NVG cited Wyninger’s failure to meet perform-
ance expectations as the reason for its decision. Steve
Lawrence, one of the other production supervisors hired
during the same time period as Wyninger, was also term-
inated by NVG for performance problems.
Wyninger filed a charge of discrimination with the
Equal Employment Opportunity Commission on August 31,
2000, and subsequently received her right-to-sue letter on
December 7, 2000. On March 7, 2001, Wyninger filed
a complaint and demand for relief pursuant to Title VII
in the Southern District of Indiana, alleging a hostile work
environment, retaliation, and sex discrimination. NVG filed
a motion for summary judgment on May 15, 2002.
Wyninger filed her response on June 17, 2002. NVG filed its
reply on July 1 and Wyninger filed her surreply on July 29.
On October 7, 2002, Wyninger filed a motion to
consider newly discovered evidence. This evidence described
the experience of another female employee, Lori
Herchenroeder, at NVG. Herchenroeder had submitted a
claim to the Indiana Civil Rights Commission alleging that
NVG promoted an inferior male employee rather than her
in retaliation for an earlier complaint to the Commission.
On December 30, 2002, the magistrate judge denied
8 No. 03-1632
Wyninger’s motion under Federal Rule of Evidence 403
because the evidence was likely to confuse the issues and
waste time.
On February 5, 2003, the district court granted NVG’s
motion for summary judgment as to all federal claims.3
Wyninger has appealed both the exclusion of evidence and
the grant of summary judgment on all of her Title VII
claims.
II. Analysis
We review evidentiary rulings of the district court under
an abuse of discretion standard. Young v. James Green
Mgmt., Inc., 327 F.3d 616, 621 (7th Cir. 2003). “To this end,
we will not find error unless the court’s decision is based on
an erroneous conclusion of law or the record contains no
evidence on which the court rationally could have based its
decision . . . .” Van Stan v. Fancy Colours & Co., 125 F.3d
563, 570 (7th Cir. 1997).
We review de novo a grant of summary judgment; in do-
ing so, we construe all facts in favor of the non-moving
party. Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.
2003). Summary judgment is proper “if 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 mov-
ing party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c) (2003).
3
Wyninger also asserted Indiana common-law actions of prom-
issory estoppel and intentional infliction of emotional distress in
her complaint. Judge Barker dismissed these claims without pre-
judice after ruling in favor of NVG on the summary-judgment
motion.
No. 03-1632 9
A. The Evidentiary Ruling
“Although relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Fed. R. Evid.
403 (2003).
The magistrate judge found that the proffered
Herchenroeder evidence, concerning another female NVG
employee’s charge of gender discrimination, had limited
probative value on any issue material to Wyninger’s case
because the evidence involved a different employment deci-
sion in a different department made by different decision-
makers. Since the issues were separate and the evidence
not particularly probative, the magistrate judge concluded
that allowing this evidence would lead to undue delay and
confusion of the issues. The parties would be forced to try a
“case within a case” on the propriety of the employment
action taken against Herchenroeder by NVG. It was also
noted, though not relied on, that the Herchenroeder evi-
dence was offered five months after the close of discovery
and the submission of NVG’s summary-judgment motion.
The district court did not abuse its discretion by excluding
the Herchenroeder evidence. There is ample support in the
record for the finding that the evidence involved different
circumstances and would not be probative on the issues in
Wyninger’s case. Furthermore, since the Herchenroeder
evidence consisted of contested allegations, we agree that
the district court would have been forced to decide the
merits of a separate case despite its limited probative value
in Wyninger’s case. In these circumstances, the district
court was justified in refusing to grant the motion to
consider newly discovered evidence. See Tidemann v.
Nadler Golf Car Sales, Inc., 224 F.3d 719, 723-25 (7th Cir.
2000); Grassi v. Info. Res., Inc., 63 F.3d 596, 602-03 (7th
Cir. 1995).
10 No. 03-1632
B. Hostile Work Environment
Title VII makes it “an unlawful employment practice for
an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color,
religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1).
Thus, the statute prohibits an employer from “requiring
people to work in a discriminatorily hostile or abusive
environment.” Shanoff v. Ill. Dep’t of Human Servs., 258
F.3d 696, 701 (7th Cir. 2001) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)).
In order to maintain an actionable claim of hostile work
environment, Wyninger must first demonstrate that a
supervisor or coworker harassed her because of her sex.
Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir.
2002). Next, she must show that the harassment was both
subjectively and objectively “so severe or pervasive as to
alter the conditions of employment and create an abusive
working environment.” Id. at 462-63 (quoting Faragher
v. City of Boca Raton, 524 U.S. 775, 786 (1998)); see also
Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir.
1998). In determining whether the environment was ob-
jectively hostile, a court must consider all of the circum-
stances, including the frequency and severity of conduct,
whether it is threatening and/or humiliating or merely
offensive, and whether the harassment unreasonably in-
terferes with an employee’s work. Hilt-Dyson, 282 F.3d at
463; Haugerud v. Amery Sch. Dist., 259 F.3d 678, 693 (7th
Cir. 2001).
To hold NVG liable for the acts of Wyninger’s coworkers,
as opposed to the actions of supervisors or others higher in
the chain of command, Wyninger must also demonstrate
that NVG was negligent. Longstreet v. Ill. Dep’t of Corr.,
276 F.3d 379, 381 (7th Cir. 2002); Adusumilli, 164 F.3d at
361. An employer can be held responsible for the conduct of
No. 03-1632 11
coworkers in this context only if it “knew or should have
known” about the harassment and failed to take reasonable
steps to remedy the harassment once it was on notice. Berry
v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001). In
clarifying the employer’s duty in coworker harassment
cases, we have noted:
If an employer takes reasonable steps to discover and
rectify the harassment of its employees . . . it has
discharged its legal duty. An employer’s response to
alleged instances of employee harassment must be
reasonably calculated to prevent further harassment
under the particular facts and circumstances of the case
at the time the allegations are made. We are not to
focus solely upon whether the remedial activity ulti-
mately succeeded, but instead should determine
whether the employer’s total response was reasonable
under the circumstances as then existed.
Id. (quoting McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473,
480 (7th Cir. 1996)).
Wyninger points to both specific incidents and general
workplace conditions in attempting to establish a hos-
tile work environment. The incidents involving Slaven, over
the phone on August 1 and in Slaven’s office on August 2,
provide the strongest evidence of objectively hostile working
conditions. Wyninger also asserts, however, that Crouch’s
and Wade’s vexing personalities, the intransigence of the
truckers, and general workplace difficulties help her to
establish her claim.
In assessing the conduct of Crouch and Wade (individuals
higher than Wyninger in the chain of command), it is clear
that Wyninger has not established a genuine issue of
material fact on whether she was harassed because of
her gender. Wyninger cannot base a hostile environment
claim upon Crouch’s and Wade’s vulgar language because,
12 No. 03-1632
at most, they are “crude individual[s] who treated [every-
one] poorly.” Hardin v. S.C. Johnson & Son, Inc., 167 F.3d
340, 346 (7th Cir. 1999). Other employees, including men,
were also afraid of and offended by Crouch’s criticism and
vulgarity and insulted by Wade’s approach to his supervi-
sory role. Crouch and Wade did not interact with Wyninger
any differently than they did with other male coworkers
and subordinates.
As to Wyninger’s reliance on generalized workplace dif-
ficulties, the record conclusively shows that, regardless of
their sex, production supervisors had problems motivating
truckers to allocate their time properly and had trouble
keeping track of inventory. Wyninger’s assertions that
she experienced difficulties in fulfilling her duties do not
prove, without more, that male production supervisors were
provided with easier work environments and superior
training by NVG. See Hildebrandt v. Ill. Dep’t of Natural
Res., 347 F.3d 1014, 1036 (7th Cir. 2003) (noting in regard
to a hostile environment claim that “bare allegations not
supported by specific facts are insufficient in opposing a
motion for summary judgment” (internal quotations omit-
ted)).
Slaven’s alleged comments and behavior, on the other
hand, which included the harassing phone calls and the
intimidating meeting in his office, are fairly read to be
motivated by Wyninger’s gender. Furthermore, we accept
for present purposes that Wyninger found her environment
to be subjectively hostile as a result of these occurrences.
As we previously explained, Wyninger also must establish
that her workplace was objectively hostile because of
Slaven’s actions. In evaluating whether she meets this ob-
jective test, we must keep the following in mind:
Not every unpleasant workplace is a hostile environ-
ment. The occasional vulgar banter, tinged with sexual
No. 03-1632 13
innuendo, of coarse or boorish workers would be neither
pervasive nor offensive enough to be actionable. The
workplace that is actionable is the one that is hellish.
Rogers, 320 F.3d at 752 (quoting Perry v. Harris Chernin,
Inc., 126 F.3d 1010, 1013 (7th Cir. 1997)). Our case law has
made clear that some acts going beyond occasional vulgar
banter also fail to constitute an objectively hostile environ-
ment. See, e.g., Pryor v. Seyfarth, Shaw, Fairweather, &
Geraldson, 212 F.3d 976, 977-78 (7th Cir. 2000) (male at-
torney showing female secretary pictures of women in
bondage and black leather and asking about her wardrobe
on several occasions); Adusumilli, 164 F.3d at 361-62 (brief
instances of unwanted physical contact, including a poke to
the buttocks); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333,
337 (7th Cir. 1993) (unwanted touches and attempts to
kiss).
In considering the blunt and humiliating requests over
the telephone (with an audience listening to the conversa-
tion) in conjunction with the arguably threatening atmo-
sphere created by Slaven and the other two men in his
office the next day, it is possible that these acts are severe
enough to establish a hostile work environment despite a
lack of evidence of pervasive sexual harassment or physical
contact. Wyninger’s allegations indicate that Slaven
solicited sex in a crude and shocking manner. With that
boorish solicitation from the previous day as a back-
drop, Slaven used Wyninger’s sense of duty to her work to
lure her into a physically intimidating situation—a woman
locked in a small room with three larger men, snickering at
her refusal to discuss oral sex.
We need not decide whether Slaven’s behavior constitutes
an objectively abusive working environment, however,
because “the question whether [NVG] took prompt and
effective remedial action is dispositive here.” Tutman v.
WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048-49 (7th Cir.
14 No. 03-1632
2000); see also Longstreet, 276 F.3d at 381-83 (prison not
held liable for two instances of disgusting sexual behavior
by coworkers because prompt and appropriate remedial
action taken); Berry, 260 F.3d at 812-13 (airline not held
liable for lengthy period of harassment by coworker because
of prompt remedial action taken once notified).
NVG’s response to Wyninger’s complaint was “reasonable
under the circumstances as then existed.” Berry, 260 F.3d
at 811 (quoting McKenzie, 92 F.3d at 480). Human re-
sources requested a full written report from Wyninger, gave
her the rest of her shift off with pay, and conducted a
prompt, thorough investigation into the incidents. NVG
failed in its attempt to trace the August 1 phone calls, but
did place a device on Wyninger’s phone so that any future
harassment could be attributed to a particular actor.
Blakey, the employee in Wyninger’s office at the time of the
alleged phone calls, was unable to confirm Wyninger’s
account as he recalled only one phone call during the time
he was in her office. NVG also investigated the August 2
meeting and found that the door could not have locked
Wyninger inside the room and that the men involved
claimed to only be “kidding around.” NVG concluded that
there was insufficient proof to take disciplinary action
against any of the individuals. Wyninger does not allege
any further harassment in her remaining days at NVG.
NVG satisfied its obligation to maintain a harassment-
free work environment under Title VII. See Tutman, 209
F.3d at 1048 (“In hostile work environment cases, the
employer can avoid liability for its employees’ harassment
if it takes prompt and appropriate corrective action reason-
ably likely to prevent the harassment from recurring.”).
NVG acted promptly and effectively in responding to
Wyninger’s complaint; no further harassing behavior oc-
curred after August 2. Our determination in this regard
could have been made easier had NVG reminded its em-
ployees of the company’s written sexual harassment policy,
No. 03-1632 15
offered Wyninger an alternative to dealing directly with
Slaven, and ordered the men to offer an apology to
Wyninger for causing her grief. But we do not “sit as a
super-personnel department.” Ransom v. CSC Consulting,
Inc., 217 F.3d 467, 471 (7th Cir. 2000). NVG’s investigation
was sufficient under the circumstances. We affirm the grant
of summary judgment on this claim.
C. Sex Discrimination
Under Title VII, it is unlawful for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s race, color, religion, sex,
or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). Thus, in a
case involving alleged discrimination on the basis of sex,
“there are two primary issues to consider: first, was the
purported difference in treatment prompted by plaintiff’s
sex, and second, did the difference in treatment affect
plaintiff’s compensation, terms, conditions, or privileges of
employment.” Haugerud, 259 F.3d at 691.
Wyninger presents three separate theories of sex discrim-
ination. First, she argues that NVG hired her pursuant to
a short-term contract with hourly wages and no benefits
because of her gender. Second, she asserts that NVG
maintained unequal terms of employment, including
training and overtime pay, because of her gender. Third,
she alleges that NVG fired her because of her gender.
An employee alleging sex discrimination can either pro-
ceed directly, by presenting direct and/or circumstantial
evidence on the issue of discriminatory intent, or indirectly,
by utilizing the McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), burden-shifting method. Haugerud, 259 F.3d at
16 No. 03-1632
691. On each of her sex discrimination claims, Wyninger
fails to establish a genuine issue of material fact using the
direct method. She has presented no direct evidence and
little circumstantial evidence to support her contention that
NVG discriminated against her because of her gender.
To establish a prima facie case of sex discrimination un-
der the indirect, or burden-shifting, method, the employee
must demonstrate that: (1) she is a member of a protected
class; (2) she was performing her job satisfactorily; (3) she
suffered an adverse employment action; and (4) at least one
similarly situated employee, not in her protected class, was
treated more favorably. Gordon v. United Airlines, Inc., 246
F.3d 878, 885-86 (7th Cir. 2001); Contreras v. Suncast
Corp., 237 F.3d 756, 759 (7th Cir. 2001).
If the employee establishes a prima facie case, the em-
ployer can present contradictory evidence to raise a genuine
issue of fact for trial. Or, the employer can produce evidence
of a legitimate nondiscriminatory explanation of its adverse
employment action; the employer would then be entitled to
summary judgment unless the employee can rebut this
explanation with evidence that it is pretextual. Gordon, 246
F.3d at 886. The employer’s explanation can be “foolish or
trivial or even baseless” so long as the company “honestly
believed” in the reasons it offered for the adverse employ-
ment action. Hartley v. Wis. Bell, Inc., 124 F.3d 887, 890
(7th Cir. 1997); see also Wade v. Lerner N.Y., Inc., 243 F.3d
319, 323 (7th Cir. 2001).
Wyninger’s first theory of sex discrimination, that her
hiring as an hourly probationary supervisor was based on
her gender, fails to satisfy the fourth prong of the prima
facie test. There are simply no similarly situated male em-
ployees to whom Wyninger can be compared. To be simi-
larly situated to another employee, Wyninger must show
that the employee is directly comparable in all material
respects. Patterson v. Avery Dennison Corp., 281 F.3d 676,
No. 03-1632 17
680 (7th Cir. 2002). In considering Wyninger’s claim that
her terms of employment at hiring were discriminatory
because of sex, we must consider whether Timbs, Brand,
and Lawrence had similar experience and other qualifica-
tions, or any other “differentiating or mitigating circum-
stances as would distinguish . . . the employer’s treatment
of them.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618
(7th Cir. 2000).
Timbs and Lawrence had substantial manufacturing and
military experience prior to joining NVG. Brand had four-
teen years of experience as a project manager. Wyninger
had very limited manufacturing experience and no supervi-
sory experience in a manufacturing environment. Because
of their vastly superior work experience, none of the other
production supervisors qualify as being similarly situated
to Wyninger at hiring. Because no similarly situated in-
dividual, not in her protected class, was treated more
favorably, her prima facie case fails.
Wyninger likewise cannot make a prima facie showing on
her second theory of sex discrimination, that NVG main-
tained unequal terms of employment by providing in-
adequate training to her and refusing to pay her overtime.
While true that Timbs received eleven more hours of formal
classroom training than Wyninger, the other production
supervisors received less formal training. Furthermore,
Wyninger received at least three-to-four weeks of informal
training under Johnson (he testified that she shadowed him
even longer) rather than the standard two weeks. Also,
Wyninger was introduced to Earl Davis, an experienced
supervisor, so that she could seek his help with any prob-
lems that might come up after she was placed on her own
shift. As to training, there is insufficient evidence of either
an adverse employment action or more favorable treatment
of a similarly situated employee.
As to overtime pay, Wyninger cannot prove that she was
subjected to an adverse employment action. Overtime at
NVG had to be pre-approved by supervisors and was only
18 No. 03-1632
approved for specific project-related tasks, not for routine
paperwork and other administrative tasks. Wyninger
alleges only that Johnson received overtime, not that he
received overtime pay for paperwork and administrative
tasks. She does not contest that NVG refused to pay over-
time wages to supervisors for finishing paperwork after or
before their shifts, but that is the work for which she
now—Wyninger failed to submit overtime hours while she
worked at NVG—seeks compensation.
Wyninger’s third and final theory of sex discrimination,
that NVG fired her because of her gender, comes closest to
establishing a prima facie case under the indirect method.
Since NVG relied on Wyninger’s job performance as its
explanation for firing her and because those assessing
Wyninger’s performance are the same parties accused of
discrimination, Wyninger does not need to present evidence
at the prima facie stage that she was performing her job
satisfactorily. See Curry v. Menard, Inc., 270 F.3d 473, 477-
78 (7th Cir. 2001); Oest v. Ill. Dep’t of Corr., 240 F.3d 605,
612 n.3 (7th Cir. 2001); Flores v. Preferred Technical Group,
182 F.3d 512, 515 (7th Cir. 1999).
Once Wyninger joined the ranks of production supervisor,
she became similarly situated to the other individuals
performing that job. Because only one similarly situated
employee, Lawrence, was fired, others were treated more
favorably than Wyninger. Wyninger and Lawrence, though,
were the only two production supervisors hired in 2000 that
were criticized for performance issues, and both were fired.
Moreover, only Wyninger was blamed by NVG for an
assembly line shutdown during the relevant period. These
facts remove Timbs and Brand, the two male production
supervisors hired around the same time as Wyninger who
had satisfactory job performances and weren’t fired, from
the class of similarly situated individuals. Thus, Wyninger
does not present a prima facie case of sex discrimination for
her firing.
No. 03-1632 19
Even if Wyninger could establish a prima facie case, NVG
is still entitled to summary judgment because it has
presented an unrebutted, nondiscriminatory explanation for
Wyninger’s firing. NVG cites the production line shutdown
on July 27 and other performance problems as its reason for
choosing not to retain Wyninger. Wyninger tries to rebut
NVG with two separate arguments. The first is that she
was not actually the one to blame for the July 27 incident
and that she completed the rest of her work without major
incident and, indeed, without significant criticism.4 The
second is to point to the lack of records kept by NVG to
justify its performance and experience-based explanations.
An employee’s self-evaluation cannot create an issue of
fact about an employer’s honest assessment of inadequate
performance. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446,
1460 (7th Cir. 1994); Gustovich v. AT&T Communications
Inc., 972 F.2d 845, 848 (7th Cir. 1992). Wyninger has not
presented evidence that other production supervisors were
blamed for serious problems in the manufacturing process
but escaped firing. Even if we assume that Wyninger satis-
factorily completed her job during most of the ninety days
she worked at NVG, this does nothing to rebut NVG’s
significant dissatisfaction with Wyninger’s July 27 perfor-
mance. Wyninger admits that she was aware that her
supervisors, Wade and Allam, and NVG management were
dissatisfied with her performance on July 27. Finally, the
employer’s lack of corroborating written evidence is not
enough by itself to rebut the employer’s nondiscriminatory
explanation for adverse employment actions against an
employee. We affirm the grant of summary judgment on
Wyninger’s sex discrimination claim.
4
NVG, of course, contests this factual assertion.
20 No. 03-1632
D. Retaliation
“It shall be an unlawful employment practice for an em-
ployer to discriminate against any of his employees . . .
because [the employee] has made a charge, testified, as-
sisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. §
2000e-3(a). Thus, under Title VII, “unlawful retaliation
occurs when an employer takes an adverse employment
action against an employee for opposing impermissible
discrimination.” Rogers, 320 F.3d at 753.
Like a sex discrimination charge, there are two distinct
ways for an employee to pursue a retaliation charge. The
first is to proceed under the direct method. Rogers, 320 F.3d
at 753. Both direct evidence, such as an admission of guilt
by the employer, and circumstantial evidence can be
considered under the direct method; the employee must
show that she engaged in protected activity and suffered an
adverse employment action as a result. Id.; Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.
2002). There is no bright-line rule as to the amount of
evidence necessary to survive summary judgment under the
direct method, but it is clear that “mere temporal proxim-
ity” is not enough to establish a genuine issue of material
fact. Stone, 281 F.3d at 644. If the employee’s evidence is
uncontradicted, the employee is entitled to summary
judgment; if the employer contradicts evidence presented
under the direct method, then “the case must be tried
unless the defendant presents unrebutted evidence that he
would have taken the adverse employment action against
the plaintiff even if” the defendant lacked a retaliatory
motive. Id.
Wyninger alleges that her firing (or, the non-renewal
of her contract) constitutes retaliation for her complaint
against Slaven. Beyond suspicious timing, however, there
is little evidence in the record to indicate that her retalia-
No. 03-1632 21
tion claim has any merit. Thus, Wyninger cannot establish
a retaliation claim through the direct method.
Under the indirect method of pursuing a retaliation claim,
based on the burden-shifting analysis in McDonnell
Douglas, an employee is entitled to summary judgment if he
presents uncontradicted evidence that “(1) after lodging a
complaint about discrimination, (2) only he, and not any
otherwise similarly situated employee who did not com-
plain, was (3) subjected to an adverse employment action
even though (4) he was performing his job in a satisfactory
manner[.]” Stone, 281 F.3d at 642. The employer can sur-
vive a summary judgment motion by presenting contradic-
tory evidence in response to the employee’s prima facie
case; the employer is entitled to summary judgment despite
the employee’s prima facie case “[i]f the [employer] presents
unrebutted evidence of a noninvidious reason for the
adverse action.” Id. at 644. The reason provided for the
adverse action can be “good or bad, provided only that it is
not one that the law forbids.” Id. at 642.
Wyninger also cannot establish her claim through the
indirect method. Since Lawrence, an otherwise similarly
situated production supervisor, did not complain and yet
was fired for performance difficulties in the same time
period, Wyninger has not made a prima facie case. Even if
Wyninger was able to establish a prima facie case, NVG has
presented a legitimate, non-retaliatory reason for her
dismissal: the shutdown of the manufacturing line on July
27, 2000 that NVG management blamed on Wyninger. See
supra Part IIC. It does not matter that NVG may have been
mistaken about the cause of the fiasco; as long as NVG
honestly believed that Wyninger’s lack of supervisory
ability was to blame, this reason is sufficient.
22 No. 03-1632
III. Conclusion
For the foregoing reasons, we AFFIRM the exclusion of
newly discovered evidence and the grant of summary judg-
ment on all federal claims.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-19-04