Sartor, Carolyn D. v. Spherion Corporation ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4246
CAROLYN D. SARTOR,
Plaintiff-Appellant,
v.
SPHERION CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 4312—Amy J. St. Eve, Judge.
____________
ARGUED SEPTEMBER 9, 2004—DECIDED NOVEMBER 1, 2004
____________
Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Carolyn Sartor, an African-Ameri-
can woman, filed suit against Spherion, her former em-
ployer, alleging intentional discrimination on the basis of
sex and race. The district court granted summary judgment
in favor of Spherion. We affirm.
Spherion provides business solution consulting and staf-
fing services through branch offices in the United States and
abroad. In early 2000 Sartor was hired to work in Spherion’s
Technology Division, which at the time consisted of three main
practice groups: Software Quality Management (“SQM”),
Enterprise Application Integration (“EAI”), and Information
2 No. 03-4246
Design Services (“IDS”). A fourth, smaller practice group
provided assistance to health care clients and was known as
the “HIPAA” group in reference to the federal Health
Insurance Portability and Accountability Act. Spherion
hired Sartor to serve as practice director of the Oak Brook,
Illinois branch of the IDS group. Sartor later took on addi-
tional responsibilities as director of the Chicago IDS branch.
In late 2001, in response to significant losses, Spherion
embarked upon a major reorganization designed to focus
the company’s resources on more profitable service lines. As
part of the reorganization, the company eliminated the role
of practice director and renamed the existing practice
directors to positions as Business Development Directors
(“BDDs”), thus expanding the alphabet-soup corporate lexi-
con. The purpose of this change was to focus the attention
of these managers more on sales and less on supervision of
the company’s consultants. Sartor became BDD for the IDS
group. Spherion hired David Anderson as its Chicago Area
vice-president to help it through the general reorganization.
On or about January 9, 2002, Anderson and Sartor met to
discuss the IDS practice group and Sartor’s role. Anderson
asked Sartor to provide him with a forecast of revenue
opportunities for 2002, which she later did. Sometime in
January 2002 (the record is uncertain exactly when),
Spherion decided to eliminate the IDS, EAI, and HIPAA
groups as separate entities and offer portions of the EAI
and IDS services through a newly-formed group called
Application Development Integration (“ADI”), to be headed
by two BDDs. Although the plan called for most of the EAI
service lines to be offered by the ADI group, almost all the
IDS lines (Sartor’s practice group) were to be discontinued.
The SQM group was to remain intact.
On January 21, 2002, Anderson and Sartor discussed the
elimination of Sartor’s IDS group. Sartor told Anderson she
wanted to become a BDD in the new ADI group, but Anderson
No. 03-4246 3
was noncommittal. Four days later, Anderson requested
another meeting with Sartor. They met on January 31 and
discussed the BDD position, as well as the possibility of a
position as “branch delivery director.” Unlike the BDD job,
which involved pitching Spherion’s services to clients and
developing solutions for them, Spherion’s delivery directors
were responsible for the actual subsequent provision of
services. It is not clear whether Anderson actually offered
Sartor a delivery director position during the January 31
meeting. It is also unclear whether Anderson had already
ruled out the possibility of Sartor remaining in her role as
a BDD in the reorganized company. On February 4, 2002,
Sartor e-mailed Anderson to ask for a description of the
delivery director job; he sent it to her along with a request
that she respond to him “with a final decision tomorrow”
about her interest in that position.
Sartor met with Anderson the next day and told him she
was better suited for the BDD position. Again Anderson
requested sales forecast information from Sartor and again
she obliged. But on February 11, when they next met in
person, Anderson informed Sartor that he could not justify
employing her as a BDD in the new ADI group and that her
employment was therefore terminated.
Sartor sued Spherion in the district court, alleging unlaw-
ful discrimination on the basis of sex and race in violation
of 42 U.S.C. § 1981 and 42 U.S.C. §§ 2000e, et seq. She also
asserted breach of contract and statutory claims under
Illinois state law. The district court granted summary judg-
ment to Spherion on the federal discrimination claims and
declined to exercise supplemental jurisdiction over the state
law claims, dismissing them without prejudice. Sartor ap-
pealed the grant of summary judgment.
Our review of summary judgment is de novo. Gordon v.
United Airlines, Inc., 246 F.3d 878, 885 (7th Cir. 2001). We
apply the same methodology as the district court. Summary
4 No. 03-4246
judgment will be granted if there is no genuine issue of
material fact and the moving party is entitled to judgment
as a matter of law. FED. R. CIV. PROC. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). We view all the facts and
draw all reasonable inferences in favor of the nonmoving
party. Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th
Cir. 2002). However, to survive summary judgment, the
nonmoving party may not rely on mere allegations; she
must present specific facts to show that a genuine issue of
material fact exists. Celotex, 477 U.S. at 322-23.
Discriminatory intent may be proven directly or indirectly.
The district court held that Sartor waived any argument
under the direct method of proof by failing to offer anything
beyond the “bald assertion” that Anderson displayed
discriminatory animus toward Sartor. Alternatively, the
court held that the evidence did not amount to direct proof
of discriminatory intent. Sartor argues on appeal that she
did not waive her argument under the direct method of
proof because she presented circumstantial evidence of dis-
criminatory intent. While it is true that a plaintiff may dem-
onstrate discriminatory intent under the direct method of
proof using circumstantial evidence, see Rhodes v. Ill. Dep’t
of Transp., 359 F.3d 498, 504 (7th Cir. 1997), Sartor has
failed to bring forward circumstantial evidence sufficient to
survive summary judgment.
Sartor alleged that she was the only African-American
employed at her level or above in the Technology Division
of Spherion; as a result, while other employees were fired in
the reorganization, she was the only African-American at
her level who was terminated. She also notes that she was
asked to provide revenue forecasts, while neither of the two
white BDDs who were retained were required to do so.
Finally, she points to the fact that Anderson fired her even
though she had been promoted to BDD just weeks before
Anderson took over as her supervisor. These facts, if true,
do not constitute direct proof of discriminatory intent
No. 03-4246 5
sufficient to survive summary judgment.
A plaintiff constructing a circumstantial case of discrimi-
natory intent under the direct method of proof must pro-
duce “a ‘convincing mosaic’ of circumstantial evidence” that
points “directly to a discriminatory reason for the employer’s
action.” Id. (quoting Troupe v. May Dep’t Stores Co., 20 F.3d
734, 737 (7th Cir. 1994) and Adams v. Wal-Mart Stores,
Inc., 324 F.3d 935, 939 (7th Cir. 2003). In the context of a
business undergoing a substantial reorganization, the fact
that the sole black employee at a particular management
level was not retained does not itself signal that the company
was motivated to fire her because of her race. Likewise, and
again in the context of a company engaged in restructuring,
the fact that Sartor was asked to provide sales forecasts and
her white counterparts were not does not “point directly” to
a discriminatory reason for her eventual termination.
Finally, Sartor’s promotion to BDD just prior to the arrival
of a new supervisor does not strike us as suspicious.
When direct evidence is lacking, a plaintiff may proceed
under the indirect, burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Pasqua v. Metro. Life Ins. Co., 101 F.3d 514, 516
(7th Cir. 1996). Under McDonnell Douglas a plaintiff must
initially establish a prima facie case of unlawful discrimina-
tion by a preponderance of the evidence. If she does this,
the burden shifts to the defendant to proffer a legitimate,
nondiscriminatory reason for its adverse action against the
plaintiff. McDonnell Douglas, 411 U.S. at 802. Such a rea-
son, if unrebutted, defeats the plaintiff’s claim. However, if
the plaintiff can prove by a preponderance of the evidence
that the employer’s proffered explanation is a mere pretext
for actual discrimination, id. at 803, then the employer is
liable for the plaintiff’s injuries.
To establish a prima facie case under McDonnell Douglas,
the plaintiff must show: (1) that she is a member of a pro-
6 No. 03-4246
tected class; (2) that she was performing her job satisfacto-
rily; (3) that she was the object of a materially adverse
employment action; and (4) that similarly-situated employ-
ees outside the protected class were treated more favorably.
Id. at 802; Gordon, 246 F.3d at 885-86. Spherion conceded
the first three elements; the district court held that Sartor
failed to show that any similarly-situated employee outside
the protected classes was treated more favorably than she.
On appeal Sartor argues for the first time that because
the BDDs who were retained in Spherion’s restructuring
absorbed some of her former job duties and are not in the
protected class, she is not required to show that similarly-
situated employees were treated more favorably, citing
Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000).
“We have long refused to consider arguments that were not
presented to the district court in response to summary judg-
ment motions.” Arendt v. Vetta Sports, Inc., 99 F.3d 231,
237 (7th Cir. 1996) (quoting Cooper v. Lane, 969 F.2d 368,
371 (7th Cir. 1992)).
This court has held that to be similarly situated for pur-
poses of analysis under McDonnell Douglas, an employee
must be “directly comparable in all material respects” to the
plaintiff. Patterson v. Avery Dennison Corp., 281 F.3d 676,
680 (7th Cir. 2002). Sartor has focused on the two em-
ployees who got the job she wanted as BDD of the newly-
organized ADI group.
One of those individuals is Deb Simone, a white woman
who served as BDD of the HIPAA practice group until its
elimination. Simone had experience selling services offered
under the SQM and EAI practice groups while serving as
BDD of the HIPAA group. Since the new ADI group mainly
would be selling services formerly offered under the EAI
banner, Simone’s knowledge and experience with EAI dis-
tinguish her from Sartor in a material respect. The fact that
the ADI group would sell some of the service lines previ-
No. 03-4246 7
ously carried by Sartor’s IDS group does not override the
substantial differences in experience between the two
women.
Sartor also points to Mike Smith, a white male, as a simi-
larly-situated individual who was treated more favorably
than she. Before the restructuring, Smith was BDD of the
EAI group; like Simone, he became a BDD of the new ADI
group. The company argues that Smith’s expertise with the
WebSphere platform, a major element of IDS’s future
service offerings, materially distinguishes him from Sartor,
who admits to having no experience with WebSphere. Sartor
contends that Smith’s expertise with WebSphere is irrele-
vant because she had a proven record of sales of other
products and the company failed to document a single sale
by Smith of a WebSphere-based service. But Smith’s exper-
tise with a product that the company regarded as central to
its future business plans makes him dissimilar to Sartor
regardless of Sartor’s other qualifications for the job. Smith
need not have sold WebSphere in order to qualify himself to
do so in the future, and whether Sartor’s sales of other
services somehow trumps Smith’s expertise in WebSphere
is not relevant to whether Smith and Simone are similarly
situated in the legal sense. We will not question Spherion’s
business judgment that knowledge of the WebSphere prod-
uct was crucial to the success of the new IDS group.
Sartor has failed to bring forward evidence that a simi-
larly-situated employee was treated more favorably than
she. As a result, she has failed to establish a prima facie
case of intentional discrimination on the basis of sex or race.
The decision of the district court granting summary judg-
ment to Spherion is therefore AFFIRMED.
A true Copy:
8 No. 03-4246
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-1-04