Luckie, Colette v. Ameritech Corp ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3442
COLETTE LUCKIE,
Plaintiff-Appellant,
v.
AMERITECH CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 8619—Blanche M. Manning, Judge.
____________
ARGUED SEPTEMBER 28, 2004—DECIDED NOVEMBER 19, 2004
____________
Before BAUER, EASTERBROOK, and MANION, Circuit
Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Colette
Luckie filed suit against Ameritech Corporation, claiming
racial harassment and retaliation in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e et seq. The district court granted Ameritech’s
motion for summary judgment on both claims. Luckie
appeals, and we affirm.
Background
Luckie, an African-American, began her employment with
Security Link, a division of Ameritech, in 1995. In 1997, she
2 No. 03-3442
was promoted to the position of Senior Manager of Organi-
zational Development and Planning (“OD&P”) in the
Human Resources department of the Small Business
Services (“SBS”) business unit. SBS later merged with
Ameritech’s Enhanced Business Services unit to form a new
unit, General Business Services (“GBS”). Orlando Ashford
was Luckie’s immediate supervisor and Jane Marvin, Vice-
President of Human Resources for GBS, was Luckie’s
second-line supervisor.
Marvin left Ameritech on April 30, 1999 and was replaced
by Gwen Patterson. Patterson had been the Vice-President
of Human Resources at Ameritech Information Industry
Services (“AIIS”). At the end of May 1999, Ashford also left
Ameritech and Luckie began reporting directly to Patterson.
In preparation for her new position, Patterson met with the
president of GBS, Ronald Blake, who asked her to focus on
widespread client dissatisfaction with Human Resources.
Blake asked Patterson to talk to the managers of other
business units to identify their concerns. As instructed,
Patterson contacted several people for their feedback on the
Human Resources organization and its employees. As part
of this effort, Patterson contacted Marvin, even though she
had left the company. During their conversation, Marvin
expressed concern regarding Luckie’s performance and
communicated her belief that Luckie may have “topped out”
and might not be able to meet the expectations of her job.
Marvin further noted that a Performance Improvement
Plan (“PIP”) might be necessary. A PIP is a formal proce-
dure by which an employee is given specific objectives and
expectations in order to improve performance; in essence,
the employee is given a last chance to improve before being
terminated for poor performance. Patterson also contacted
the Director of Human Resources, Sharon Krolopp. Krolopp
also expressed concern regarding Luckie’s performance.
Additionally, Patterson spoke with Doug Heath, Director of
the Ameritech Institute, who stated that Luckie had a “toxic
effect” on the organization.
No. 03-3442 3
Soon after her arrival, Patterson met with Luckie to
assess the performance of Luckie’s direct reports. The
parties disagree regarding the details of this meeting.
Luckie claims that Patterson asked only about the minority
employees and wanted Luckie to create performance issues
with those employees, or else Luckie would herself be
scrutinized. Luckie also contends that Patterson stated that
she wanted to “change the complexion” of the department.
For her part, Patterson denies asking Luckie to create
performance issues with minority employees and denies
making the “complexion” comment. Luckie further claims
that Patterson later called an African-American employee
named Richard Peterson a “dunce.” Finally, as further
evidence of discrimination, Luckie also points to an e-mail
sent by one of her staff, James Boring, to Blake reflecting
his dissatisfaction with the current culture at Ameritech
and concern with Patterson’s management style.
Though the details of Patterson and Luckie’s meeting
are disputed, it is undisputed that Patterson almost
immediately began documenting performance problems
with Luckie, including inaccessibility during work hours,
missed deadlines, inaccurate communications, and failure
to keep her credit card account up to date. Luckie contends
that any credit card arrearage was due to Patterson not
approving her expenses in a timely fashion. Patterson
discussed her expectations with Luckie, but Luckie’s
performance did not improve. Patterson then met with
Krolopp and Blake to discuss Luckie’s continuing perfor-
mance problems. With their input, Patterson ultimately
decided to put Luckie on a PIP on August 27, 1999. By its
terms, Luckie had 30 days to improve her performance;
failure to meet the goals and expectations set out in the PIP
could result in the termination of her employment.
Patterson discussed the PIP with Luckie. During the PIP,
Patterson met with Luckie regularly. In addition, Debbie
Lewis or Susan Brenkus, who worked for different business
4 No. 03-3442
units and did not report to Patterson, also attended. The
consensus among the three was that Luckie was defensive
during these meetings and not open to suggestions.
At some point in August 1999, Luckie contacted the
Ameritech internal EEO hotline to complain about
Patterson’s conduct and spoke with EEO representative
Mamie Clay. Luckie only identified herself by her first
name, and did not name Patterson as the manager about
whom she was calling. Luckie asserts that Clay guessed
that she was talking about Patterson and said she would
talk to Patterson about the problem. Clay denies that
she guessed that the manager was Patterson. Regardless,
Patterson and Clay have both testified that they have never
met or spoken to one another. Luckie contacted Clay at the
EEO hotline again later in August, this time with another
employee, Wanda Raymond (an Asian-American), on the
line. Again, Luckie and Raymond used their first names
only, and did not identify Patterson or the business unit in
which they worked. At some point after this second call,
Luckie visited Clay face-to-face. She still identified herself
only as “Colette” and provided no new information.
Luckie then retained an attorney, who sent three let-
ters to Ameritech beginning on September 16, 1999. The
letters claimed that Luckie had been discriminated against
and was interested in engaging in discussion to settle her
claims. In part, the letters described the dispute between
Luckie and Patterson over Luckie’s credit card balance. In
response to the letters, Deborah Ingram of Ameritech’s EEO
department asked Patterson to provide information about
the credit card account balances of all her employees.
When she failed to improve her performance under the
PIP, Luckie was terminated on October 4, 1999. Both
Krolopp and Blake approved Patterson’s decision to fire her.
Luckie filed this suit on November 8, 2001. On August 21,
2003, the district court granted summary judgment in favor
of Ameritech.
No. 03-3442 5
Title VII Claims
Summary judgment is appropriate where 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 judgment as a matter of law.”
FED. R. CIV. P. 56(c). We review the district court’s grant of
summary judgment de novo, construing all facts and
reasonable inferences in the light most favorable to the non-
moving party. Miller v. Am. Family Mut. Ins. Co., 203 F.3d
997, 1003 (7th Cir. 2000).
Racial Harassment
Title VII prohibits an employer from engaging in racial
harassment that creates a hostile working environment.
Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 938 (7th
Cir. 1996). To state a claim for a hostile work environment,
Luckie must demonstrate that: (1) she was subject to
unwelcome harassment; (2) the harassment was based on
her race; (3) the harassment was sufficiently severe or
pervasive so as to alter the conditions of her employment
and create a hostile or abusive atmosphere; and (4) there is
a basis for employer liability. Williams v. Waste Mgmt. of
Ill., 361 F.3d 1021, 1029 (7th Cir. 2004).
Luckie’s allegations of harassment do not conform to the
traditional hostile work environment claim in that she does
not allege that she was the target of any racial slurs,
epithets, or other overtly race-related behavior. See John-
son, 91 F.3d at 938. Nonetheless, Luckie contends that
three separate incidents are evidence of a campaign of
racial harassment by Patterson. Specifically, she points to:
(1) Patterson’s comment that she wanted to “change the
complexion” of the Human Resources group; (2) Patterson
calling an African-American employee a “dunce”; and (3) an
e-mail sent by James Boring which complained of the effect
6 No. 03-3442
that Patterson’s management style was having on several
employees and the department as a whole.1 None of these
incidents are sufficiently connected to race so as to satisfy
the second element of the hostile environment analysis. The
conduct at issue must have a racial character or purpose to
support a hostile work environment claim. Hardin v. S.C.
Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999).
Among the complained-of incidents, the only comment that
arguably has a racial character is Patterson’s statement
regarding changing the “complexion” of the department.
However, this remark was made in the context of discussing
the department’s organization and ways to increase its
efficiency. Indeed, Luckie admits that Patterson did not
overtly refer to race at all during this discussion, or at any
other time. We agree that the statement reflects Patterson’s
plans for reorganization, and that no reasonable jury could
find that it was racial in character or purpose. Accordingly,
the district court correctly held that none of the incidents
which Luckie cites have the required racial character and
purpose to support a racial harassment claim.
Furthermore, the events at issue are not severe or
pervasive, as is required to satisfy the third element of
a racially hostile work environment claim. A hostile work
environment must be both objectively and subjectively
offensive. Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998). To determine whether an environment is objectively
hostile or offensive, the court must consider all the circum-
stances, including frequency and severity of the conduct,
whether it is humiliating or physically threatening, and
whether it unreasonably interferes with an employee’s work
1
Luckie also claims that Patterson instructed Luckie to “watch
out for those people” in reference to Wanda Raymond. The district
court refused to consider this statement because it was not found
anywhere in the record and therefore not based on admissible
evidence. Luckie does not address this deficiency, so we likewise
do not weigh the statement.
No. 03-3442 7
performance. McPherson v. City of Waukegan, 379 F.3d 430,
438 (7th Cir. 2004). The incidents of which Luckie com-
plains fail to satisfy this objective test. The conduct in
question consists of isolated events that were not physically
threatening or humiliating and in some cases were not even
directed at Luckie. The evidence is insufficient to show a
workplace permeated with discriminatory ridicule, intimi-
dation, and insult. See Cooper-Schut v. Visteon Auto. Sys.,
361 F.3d 421, 426 (7th Cir. 2004). Since Luckie fails to
establish all of the elements of a hostile work environment
claim, the district court properly granted summary judg-
ment to Ameritech.
Retaliation
An employer may not retaliate against an employee
who has complained about discrimination or other practices
that violate Title VII. 42 U.S.C. § 2000e-3(a); Sitar v. Ind.
Dep’t of Transp., 344 F.3d 720, 727 (7th Cir. 2003). Luckie
argues that Ameritech retaliated against her by placing her
on a PIP and later terminating her employment because she
contacted the EEO hotline to complain about Patterson and
hired an attorney who sent letters to Ameritech alleging
racial discrimination.
A plaintiff has two distinct ways of establishing a prima
facie case for unlawful retaliation: the direct method and
the indirect method. Stone v. City of Indianapolis Public
Util. Div., 281 F.3d 640, 644 (7th Cir. 2002). In order to
survive summary judgment under the direct method, Luckie
must present direct evidence that: (1) she engaged in
statutorily protected activity; (2) she suffered an adverse
employment action; and (3) there is a causal connection
between the two. Haywood v. Lucent Tech., Inc., 323 F.3d
524, 531 (7th Cir. 2003). Alternatively, under the indirect
method, Luckie must establish that: (1) she engaged in
statutorily protected activity; (2) she was performing her job
8 No. 03-3442
according to Ameritech’s legitimate expectations; (3) despite
her satisfactory performance, 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. Williams, 361 F.3d at 1031;
Stone, 281 F.3d at 644.
Luckie contends that Patterson placed her on a PIP and
later fired her in retaliation for her complaints to the EEO
office and for hiring an attorney who sent letters to
Ameritech which complained of harassment by Patterson.
Luckie’s claim fails under the direct method because she
cannot prove a causal connection between her complaints
and her termination. The key inquiry in determining
whether there is a causal connection under the direct
method is whether Patterson was aware of the allegations
of discrimination at the time of her decisions to place Luckie
on a PIP and terminate her employment; absent such
knowledge, there can be no causal link between the two.
Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th Cir.
2000). It is not sufficient that Patterson could or even
should have known about Luckie’s complaints; she must
have had actual knowledge of the complaints for her
decisions to be retaliatory. Hayes v. Potter, 310 F.3d 979,
982-83 (7th Cir. 2002); Miller, 203 F.3d at 1008 (“an
employer cannot retaliate when it is unaware of any com-
plaints”). At minimum, therefore, Luckie must offer evi-
dence that would support a reasonable inference that
Patterson was aware of Luckie’s allegations of discrimina-
tion. Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1458 (7th
Cir. 1994). Even in the light most favorable to her, there
is simply no evidence in the record that would support such
an inference. Mamie Clay has testified that she did not
discuss Luckie’s allegations with Patterson; in fact, she
states that the two have not met or even spoken. Patterson
asserts that she didn’t know about Luckie’s complaints
at the time she made the decision to terminate her employ-
No. 03-3442 9
ment. Furthermore, it is the stated policy of Ameritech’s
EEO department to protect the confidentiality of any
employee who complains about discrimination. There is
nothing in the record that refutes either Clay or Patterson’s
statements, nor explains why Clay would deviate from the
confidentiality policy of the EEO department. Similarly,
there is no evidence that Patterson knew about the letters
sent in September from Luckie’s attorney. The sole evidence
on which Luckie relies is that Deborah Ingram of
Ameritech’s EEO department asked Patterson for informa-
tion about the credit card balance history of her employees.
Notably, the credit card inquiry was regarding all of
Patterson’s employees, not just Luckie. As such, Patterson
would have no reason to know that Ingram’s request for
information was in response to a claim of discrimination by
Luckie, as opposed to any of her other employees. Lacking
a causal connection, Luckie’s claim fails under the direct
method.
Proceeding to the indirect method, the district court
correctly found that Luckie failed to establish a prima facie
case because she was not performing her job according
to Ameritech’s legitimate expectations at the time she
was fired. The record unambiguously reflects that Luckie
had performance problems before she was placed on a PIP,
and that these performance deficiencies were noted by other
managers besides Patterson. Ameritech has further shown
that Luckie failed to correct these problems while on the
PIP. Luckie continued to miss deadlines, the quality of her
work product was unacceptable, and she was often inacces-
sible during work hours. Luckie’s only response is that she
had received positive performance evaluations in the past.
However, the fact that Luckie may have met expectations
in the past is irrelevant; she must show that she was
meeting expectations at the time of her termination. Peters
v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th
Cir. 2002). By failing to establish this element of the prima
10 No. 03-3442
facie case, Luckie’s claim cannot withstand summary
judgment under the indirect analysis.
Evidentiary Rulings
Luckie also challenges the district court’s rulings on the
admissibility of two pieces of evidence. Specifically, she
claims that the district court erred by refusing to strike as
hearsay: (1) a portion of Patterson’s affidavit pertaining to
a conversation with Doug Heath, in which Heath stated
that Luckie had a “toxic effect” on the department; and (2)
a portion of Marvin’s affidavit relating to her conversations
with Patterson regarding Luckie. We review evidentiary
rulings for abuse of discretion. Hildebrandt v. Ill. Dep’t of
Natural Res., 347 F.3d 1014, 1040 (7th Cir. 2003). To be
entitled to relief, Luckie must show not only that the
district court erred by failing to exclude evidence, but also
that the erroneous ruling prejudiced her substantial rights.
Rogers v. City of Chicago, 320 F.3d 748, 751 (7th Cir. 2003).
The district court did not err in its evidentiary rulings,
therefore we need not consider whether Luckie’s substantial
rights were affected.
Neither of the two statements at issue is hearsay because
they were not offered to prove the truth of the matter
asserted. FED. R. CIV. P. 801(c). Rather, each statement was
offered to show Patterson’s state of mind at the time she
was evaluating Luckie’s performance. See, e.g., EEOC v.
Univ. of Chicago Hosps., 276 F.3d 326, 333 (7th Cir. 2002).
The evidence was therefore properly considered by the
district court.
For the reasons set forth above, we AFFIRM the district
court’s grant of summary judgment in favor of the defen-
dant, Ameritech.
No. 03-3442 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-19-04