Brummett, Tony v. Sinclair Broadcast ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3373
TONY BRUMMETT,
Plaintiff-Appellant,
v.
SINCLAIR BROADCAST GROUP,
INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 C 3055—Jeanne E. Scott, Judge.
____________
ARGUED JANUARY 21, 2005—DECIDED JULY 6, 2005
____________
Before RIPPLE, WOOD and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Tony Brummett, an African-Ameri-
can male, filed this action against his former employer,
2 No. 04-3373
1
Sinclair Acquisition IV, Inc. (“Sinclair”), for alleged race
discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000 et seq. The district court
granted Sinclair’s motion for summary judgment. For the
reasons set forth in the following opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A. Facts
Sinclair owns and operates two television broadcast
stations, known by the call letters WICS and WICD, located
in central Illinois. In the fall of 2000, Sinclair decided to hire
2
two additional account executives for its WICS sales staff.
Mr. Brummett, at the time an account executive at a com-
peting television station, applied for one of the positions. He
interviewed with the WICS/WICD General Sales Manager,
Bob Evans, and the General Manager, Jack Connors. On
November 30, 2000, Connors recommended Mr. Brummett
for the position by an e-mail to his superior; the message
stated in part:
Brummett has been [at WRSP] for 2 1/2 years, and
before that had 4 years at the Decatur Herald & Review
newspaper. He told us that he was going to make
between $41,000-43,000 next year, but that he would be
1
Mr. Brummett named Sinclair Broadcast Group as the defen-
dant, but the corporation’s correct name is Sinclair Acquisition
IV, Inc.
2
At this time, one of Sinclair’s account executives at WICS was
Jennifer Valenti, who Mr. Brummett proposes as a comparable
employee.
No. 04-3373 3
willing to step back a little to come here. . . . Brummett
is the best bet we’ve been able to come across at WICS,
and Bob thinks we could try to get him for $725-750/
week on a six month guarantee. We have perhaps
$100,000 max of billing out of Springfield that we could
shuffle his way, but this 7th [account executive] for
WICS is going to be heavily developmental. As you
know, we budgeted nothing on the expense side for a
7th seller in 2001. . . .
He’s an experienced TV salesman in this market, in this
city, and has relationships that he’ll bring with him.
R.13, Tab E, Ex.8.
In January 2001, Sinclair hired Mr. Brummett as a WICS
account executive. Evans offered him a guaranteed salary
for his first six months of employment. During that time, he
was expected to generate as much new advertising business
as possible. For most account executives at Sinclair, once the
initial six-month period ended, they were paid on a straight
commission basis. According to Mr. Brummett, however,
Evans promised him that, if his first six months’ perfor-
mance was acceptable, Evans would transfer existing
accounts to Mr. Brummett from other account executives in
order to bring his annual commissions up to $38,000.
In March 2001, Sinclair hired Tim Snodgrass as an eighth
account executive for WICS. Evans made Snodgrass an offer
similar to the one made to Mr. Brummett: Snodgrass would
receive a specified weekly salary for the first six months
and, if his performance was satisfactory, he thereafter
would receive additional accounts that would yield a
minimum level of annual commissions. Snodgrass quit his
job at WICS before the end of his first six months.
When Mr. Brummett began working at WICS, he was
given an account list of former advertisers who had not pur-
4 No. 04-3373
chased advertising in more than a year. He had a difficult
time generating new business from this list because all of
the large advertisers already had accounts managed by
other account executives at WICS. Despite this difficulty,
Evans, who had resigned in May 2001, testified that, at the
time of his departure, he believed that Mr. Brummett was
doing a good job and would have ranked him as “[m]iddle
to up” among the account executives. Id., Tab C at 89.
In July 2001, Sinclair hired Johnny Faith to be the
General Sales Manager. That same month, at the end of
Mr. Brummett’s six-month probation period, Mr.
Brummett’s guaranteed weekly salary ended. On July 3,
he was notified that his current level of sales would not
support a $725 weekly draw against his commissions. His
salary therefore was reduced by thirty percent effective
July 2001, and he was told that Sinclair would adjust the
draw upward in the future if his sales levels increased.
Mr. Brummett expressed his dissatisfaction in an e-mail to
Connors:
I will need to speak with you on Thursday regarding
my commission here at New[s] 20. I thought business
will be much better here than Fox. I still believe that
however, the way this econmy [sic] is going at this time
it is pretty hard to sale [sic] anything. Jeff just gave me
my commission statement where it stand[s] as of now.
It is hard to believe six month[s] is over. Needless to
say, I will be down half in my income that I made last
year. Bob told me before he left “if things do not turn
around he gave Cindy Barney Furniture just in case
he had to give it to Tim or I.” So with this in mind we
need to sit down and come up with something. Because
if not my life and the things I enjoy to do will change. I
am sure things will start to turn around in this market
but, I can’t take that big of lost [sic] each month in my
income.
No. 04-3373 5
Id., Tab B at Brummett ID00122. Mr. Brummett met with
Connors and Faith three times in July 2001, and he de-
manded the accounts promised to him by Evans which
would generate an annual income of $38,000. Connors and
Faith refused to acknowledge this arrangement.
On August 7, 2001, Mr. Brummett was notified that his
“draw for August will be reduced by $722.97 as you did not
cover your July amount.” Id. at Brummett ID00124.
Mr. Brummett again complained to Connors by e-mail:
Jack, would it be possible for me to speak with someone
from corporate? My August draw is now down to
$322.86. This is about $8 an hour. Jack, as I discussed
with you three times, I made considerable more this
time last year. If I was not guaranteed what I was mak-
ing at Fox it would not have been a reason to change
job[s]. I have a list of corporate contacts so if you can
point me in the right direction that will be great. Jack as
you know this draw will not even pay my rent, car
payment etc. Is something more going on?
Id. at Brummett ID00125. Connors responded by e-mail,
stating:
Do you have anything in writing from Bob Evans
promising you more than six months of guarantee or
asserting any kind of guarantee of billing from the
accounts on your list? If you do I would be happy to
review it.
I did review your July sales and commissions state-
ment this morning with Jeff Schlindwein, and last
month the advances on your commission ($2,191.66)
were considerably over your actual commission total
($1,418.69) for the month. I looked into your billing
further and saw that your total July time sales were
$17,615 against the monthly target of $28,000. This in-
6 No. 04-3373
cluded $12,185 in agency business, $4,140 in direct bus-
iness and $1,290 in new business. It is standard station
policy to recapture advances in excess of actual commis-
sion earned in the next payroll period.
If you would like to speak to someone at corporate
you could call Joellen Adams in Corporate Human
Resources.
Id. Mr. Brummett did not speak to anyone at Sinclair
corporate headquarters.
On August 22, 2001, Faith presented Mr. Brummett with
a Performance Improvement Agreement (“PIA”), which
stated:
It has become evident during three July 2001 meetings
with Jack Connors and me that you are dissatisfied with
your compensation as an account executive at
WICS/WICD. This dissatisfaction stems from the end of
your six-month probationary period with a guaranteed
salary and your transition to full commission in July
2001.
As we have discussed in those meetings, certain as-
pects of your job performance have been unsatisfactory.
Specifically, the attainment of your monthly revenue
goals and your development of new business have not
been where both you and the company had envisioned.
Therefore, substantial improvement in these areas is
necessary if you are to continue to be employed by the
company.
In hopes of improving your performance for a sus-
tained period, you are being issued this performance
improvement agreement. At this time, we are going to
extend your probationary period a final 40 days
(through September 30, 2001) during which time your
No. 04-3373 7
job performance must improve. The performance must
be maintained consistently or your employment may be
terminated. If you need assistance in meeting the
stations [sic] performance expectations, please let me
know and we can review the situation to determine
whether the assistance requested is feasible and/or
practical. Jack or I am readily accessible to answer any
questions you may have about our expectations.
Id., Tab E, Ex.3. The PIA listed five expectations for
Mr. Brummett to meet during the extended probationary
period: (1) service and maintain his existing business; (2)
generate $9,000 in new business; (3) achieve 100 percent of
his monthly quota of sales; (4) make a minimum of five face
calls per day, five written presentations per week, ten letters
to clients per week and one suggestion for a new business
incentive package per week; and (5) sell one Olympic
package and one Career Connection Campaign.
In a September 3, 2001 memorandum, Mr. Brummett
responded to Faith, stating:
Johnny, as I told you in that meeting, I were [sic] not
aware of any performance problems here at the station.
My goals have not been attainable, all the large accounts
seemed to be gone, and I have to work on getting all the
small accounts to make up for what a large account is
worth. As we all have discussed, the economy is not
going in the same direction as this time last year.
Johnny, you and I know the truth here. This company
does not want to pay me what I was promised so you
are saying my “performance is a issue”. Johnny, you
know these requirements are not even realistic. If I write
letters, work on presentations, meetings, projections,
makegoods, and take care of current clients where
8 No. 04-3373
would I get the time to bring in this much business. You
know all the larger accounts have been taken.
I am told to sale [sic] one Olympic package and a
Career Connection. Account executives who have been
here for years have not sold these packages. Keep in
mind I sold the first career connection and another one
that you took.
Therefore, I was advised by my attorney, John Baker
not to sign the agreement. One reason, and the main one
is that, you have not and are not requiring other AE’s to
do the same. In addition, you and I both know an
Account Executive could not fulfill these goals on their
best day. Especially when you are adding continuous
stress on a person. Also, my probation period ended
when my draw was reduced and I should have received
additional accounts to get me to $38,000 what I was
guaranteed.
Id., Tab B at Brummett ID00131.
Mr. Brummett could not meet the goals listed in the PIA.
On October 19, 2001, Connors and Faith terminated his em-
ployment. Mr. Brummett then filed a charge of discrimina-
tion with the Equal Employment Opportunity Commission
(“EEOC”) and the Illinois Department of Human Rights.
After securing a right to sue letter from the EEOC, he filed
this action.
B. District Court Proceedings
The district court ruled that Mr. Brummett’s race discrimi-
nation claim could not survive summary judgment because
he had no direct evidence that Connors and Faith had been
motivated by race and, alternatively, because he had failed
No. 04-3373 9
to establish a prima facie case of discrimination. Specifically,
the court determined that Mr. Brummett had not raised a
genuine issue of material fact that Sinclair had treated him
less favorably than any similarly situated employee outside
of his protected class. In reaching this conclusion, the
district court distinguished all of the WICS/ WICD account
executives, apart from Snodgrass, based on Mr. Brummett’s
purported salary arrangement. The district court explained
that
[n]o account executive worked under the same terms
and conditions of employment as Brummett. Only
Brummett and Snodgrass received a guarantee of a
minimum annual income after the first six months of
employment. The other account executives were prom-
ised a negotiated weekly draw for the first six months
of employment, but thereafter each expected to be paid
straight commission based on his or her sales only.
Brummett has not shown that any of the other account
executives was promised a guaranteed minimum an-
nual income after the initial six-month period expired.
This is a material difference between Brummett’s terms
and conditions of employment and other account exe-
cutives’. Brummett’s entire conflict with Sinclair cen-
tered on Connors and Faith’s unwillingness to honor
Sinclair’s contractual obligation to provide Brummett
with the promised accounts. Because none of the other
account executives (other than Snodgrass) worked
under this critical condition of employment, Connors
and Faith were never faced with the question of
10 No. 04-3373
whether to honor such a guarantee. The other account
3
executives, therefore, were not similarly situated.
R.22 at 16.
Next, the district court concluded that Snodgrass also was
not a comparable employee to Mr. Brummett because
Snodgrass had “quit so early in his tenure at WICS-TV,
he was never contractually entitled to additional accounts
that would raise his commissions to a stated annual income
level. Connors and Faith, thus, never had the opportunity to
3
Anticipating Mr. Brummett’s possible arguments on appeal, the
district court stated that
Brummett could argue that the Court did not view the
evidence in the light most favorable to him when reaching
the conclusion that he was not similarly situated to the other
account executives. The evidence could be viewed as show-
ing that Brummett was on straight commission without any
contractual right to additional accounts that would guarantee
him a minimum annual income of $38,000.00 in commissions.
This view of the evidence is supported by Connors’ testi-
mony. This view of the evidence, however, is completely
inconsistent with Brummett’s evidence and theory of the
case. Furthermore, Brummett would still not be similarly
situated to the other account executives because no other
account executive was vigorously and vociferously demand-
ing commissions to which he or she was not entitled. Under
this view of the evidence, the PIA was a reasonable response
to Brummett’s unreasonable demands; no other account
executive was subjected to the PIA because no other account
executive was making these types of demands. Under either
view of the evidence, the other account executives were not
similarly situated.
R.22 at 17 n.4.
No. 04-3373 11
treat Snodgrass more favorably than Brummett.” Id. at 17
(citing Steinhauer v. DeGolier, 359 F.3d 481, 484-85 (7th Cir.
2004)).
II
DISCUSSION
A. Standard of Review
We review a district court’s grant or denial of a motion for
summary judgment de novo, viewing all facts and reason-
able inferences from the record in the light most favorable
to the nonmoving party. Hall v. Bodine Elec. Co., 276 F.3d
345, 352 (7th Cir. 2002). Summary judgment is appropriate
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 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, 322-23 (1986). A genuine issue of material fact
arises only if sufficient evidence favoring the nonmoving
party exists to permit a jury to return a verdict for that
party. Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 527 (7th
Cir. 2003).
B. Race Discrimination Claim
Title VII makes it 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.” 42 U.S.C. § 2000e-
2(a)(1). Lacking any direct evidence of racial animus,
12 No. 04-3373
Mr. Brummett relies upon the indirect method of proving
discrimination established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this method, the plaintiff
must first establish a prima facie case of discrimination.
Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776,
784 (7th Cir. 2004). If the plaintiff meets this burden, the
burden shifts to the employer to present a legitimate and
non-discriminatory reason for the employment action. Id. If
the employer does so, the plaintiff must show that the
proffered reasons are a pretext for discrimination. Id.To make the prima facie showing, Mr. Brummett must
show four elements: (1) he belongs to a protected class; (2)
his performance met his employer’s legitimate expectations;
(3) he suffered an adverse employment action; and (4) sim-
ilarly situated others not in his protected class received
more favorable treatment. Id. It is undisputed in this case
that Mr. Brummett, as an African-American, belongs to a
protected class and that he suffered an adverse employment
action when his employment was terminated. However, as
we shall discuss in some detail, Mr. Brummett has not
raised a genuine issue of material fact as to whether he was
treated less favorably than employees outside of his pro-
tected class who were similarly situated to him.
A similarly situated employee for purposes of proving
discrimination refers to “employees who were ‘directly
comparable to [the plaintiff] in all material respects.’ ” Ajayi,
336 F.3d at 532 (quoting Patterson v. Avery Dennison Corp.,
281 F.3d 676, 680 (7th Cir. 2002)). To evaluate whether two
employees are directly comparable, we consider all of the
relevant factors, “which most often include whether the
employees (i) held the same job description, (ii) were subject
to the same standards, (iii) were subordinate to the same
No. 04-3373 13
supervisor, and (iv) had comparable experience, education,
and other qualifications—provided the employer considered
the latter factors in making the personnel decision.” Id.“Above all, we are mindful that courts do not sit as super
personnel departments, second-guessing an employer’s
facially legitimate business decisions.” Id.
1. Jennifer Valenti
Mr. Brummett claims that we should compare Sinclair’s
treatment of him to Sinclair’s treatment of account executive
Jennifer Valenti. Although Valenti and Mr. Brummett had
the same supervisor, the same job duties and the same
expectation of meeting a monthly sales quota, we cannot
conclude that they are directly comparable. Mr. Brummett
maintains that he had a unique arrangement with respect to
his compensation. See Spath v. Hayes Wheels Int’l-Indiana,
Inc., 211 F.3d 392, 397 (7th Cir. 2000) (noting that compara-
ble employees must be similarly situated “in all respects”).
The record contains no evidence that, like Mr. Brummett,
Valenti had been promised that she would receive addi-
tional accounts after her first six months or that she ever had
demanded aggressively such accounts. Although Connors’
and Faith’s stated reason for firing Mr. Brummett was
inadequate sales, the record amply reflects that
Mr. Brummett’s salary demands, and Connors’ unwilling-
ness to meet them, were an important factor in the employ-
ment relationship.
Furthermore, even if we determined that Valenti was
a similarly situated employee, the record does not reflect
that Sinclair held Mr. Brummett to a higher standard.
Mr. Brummett claims that, when one examines the per-
centage of his monthly quotas he achieved in 2001, he out-
14 No. 04-3373
performed Valenti, yet only he was placed on probation.
Specifically, he submits that, on average in 2001, he met
79 percent of his monthly sales quotas, while Valenti met
only 75 percent of her quotas. Also, when he was put on
probation, he had achieved 70 percent of his monthly quota
in the prior two months; by contrast, Valenti had achieved
less than 70 percent of her quota in the same months. More-
over, he submits that Valenti reached less than 64 percent of
her sales quota during five months in 2000 but never was
4
disciplined.
Mr. Brummett’s analysis overlooks Valenti’s superior
overall sales performance. For instance, in 2001, Valenti’s
sales totaled $227,524, and Mr. Brummett’s totaled $137,959.
Also, Valenti had a higher net billing in nine out of the first
ten months of that year. See R.13, Tab E, Ex.9 at 65-73. In
addition, the sales figures for August through October 2001
(when Mr. Brummett was under scrutiny) indicate that
Valenti had the higher sales: (1) she developed six to eight
new accounts each month, and Mr. Brummett had no more
than three in any one month; (2) her lowest monthly net bil-
ling was $26,807, and Mr. Brummett’s highest month was
$19,289; and (3) she achieved 86 to 141 percent of her
monthly quotas, and Mr. Brummett achieved 74 to 77 per-
cent. In sum, although the two employees’ performance is
somewhat comparable based on the annualized percent of
monthly quota achieved, as Mr. Brummett suggests, it can-
not be said that Mr. Brummett was outperforming Valenti
when her total sales and recruitment of new business were
higher.
4
Mr. Brummett also suggests that his sales goals were set
unrealistically high. Sinclair counters that Mr. Brummett ignores
the fact that his monthly goals, at least after May 2001, were
keyed to the level of income that he demanded.
No. 04-3373 15
Connors’ deposition testimony further supports that
Valenti was not held to a lower standard; he explained:
Q. Can you reflect upon [Jennifer Valenti’s] numbers for
[May 2001]?
A. Jennifer had been there for almost four years, not
quite four years. When someone has been on staff for
that long a period of time, you are going to see they’re
going to be more prone to fluctuations based on a num-
ber of factors. It could be that they have some seasonal
accounts, for example, and the seasonal accounts would
contribute billing at a certain time of the year and not at
other times of the year.
What I would typically look for is to see if someone is
under quota on one or two months, are they then over
quota on another one or two months. If someone is
consistently under quota month after month after
month after month, then that tells you something. But if
someone is up and down, that tells you that it’s a
business with some variability built into it.
Q. And as of May 2001, if you recall, did you have any
particular concern about Ms. Valenti’s sales perfor-
mance?
A. I wouldn’t say I had any particular concerns because
you don’t view it as a snapshot of one month, you view
it on a continuum.
Q. But as of May 2001, was she on a list of someone you
were watching because you had concerns about the pat-
tern that was developing and it was a consistent down-
ward trend?
A. No. Because it wasn’t on a consistent downward trend.
Id., Tab E at 97-98.
16 No. 04-3373
Thus, we conclude that Mr. Brummett and Valenti are not
similarly situated employees, and, as a result, no discrimi-
natory intent can be inferred from the fact that Sinclair
never put Valenti on probation nor terminated her employ-
ment. See Spath, 211 F.3d at 397.
2. Timothy Snodgrass
Mr. Brummett also points to account executive Snodgrass
as a similarly situated employee. This comparison is not apt.
Like Mr. Brummett, Snodgrass was promised by Evans that
he would be given certain accounts after six months’
employment, assuming his performance was satisfactory, in
order to obtain a minimum annual income. Unlike
Mr. Brummett, however, Snodgrass resigned before his
probationary period ended. Therefore, Connors and Faith
never had to choose whether to honor or refuse Evan’s
promise. Moreover, Mr. Brummett and Snodgrass “were not
similarly situated because [Snodgrass] was still on pro-
bation while [Mr. Brummett] was not.” Steinhauer, 359 F.3d
at 485 (collecting cases).
In sum, Mr. Brummett has not presented a similarly
situated employee who was not in his protected class and
who Sinclair treated better than him. Because he cannot
establish this element of the prima facie case of discrimina-
tion, the district court’s grant of summary judgment was
5
appropriate.
5
Even if Mr. Brummett could make the prima facie showing, his
claim would fail because he lacks evidence of pretext. Put simply,
the record bears no hint that his “race had anything to do with
his termination.” Brummett v. Lee Enters., 284 F.3d 742, 745 n.1
(7th Cir. 2002) (noting that Mr. Brummett’s claim against his
previous employer could not satisfy the pretext prong of
(continued...)
No. 04-3373 17
Conclusion
For all of the foregoing reasons, we affirm the judgment
of the district court.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
5
(...continued)
McDonnell Douglas because the record had no evidence of racial
animus).
USCA-02-C-0072—7-6-05