Benders, Evelyn v. Bellows and Bellows ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1487 & 06-2716
EVELYN BENDERS,
Plaintiff-Appellant,
v.
BELLOWS AND BELLOWS,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 04 C 7326 & 06 C 324—Samuel Der-Yeghiayan, Judge.
____________
ARGUED OCTOBER 22, 2007—DECIDED FEBRUARY 12, 2008
____________
Before EASTERBROOK, Chief Judge, and KANNE and
EVANS, Circuit Judges.
EVANS, Circuit Judge. The plaintiff, Evelyn Benders,
alleges that she was fired in April 2004 in retaliation
for filing an age and race discrimination claim with the
Equal Employment Opportunity Commission (EEOC)
and for threatening to report a dispute about her em-
ployment status to the IRS. The defendant law firm,
Bellows and Bellows, P.C. (B&B),1 maintains that it
1
According to an Internet directory, Lawyers.com, Bellows and
Bellows, P.C. is a “Boutique Chicago law firm concentrating
(continued...)
2 Nos. 06-1487 & 06-2716
terminated Benders’ employment in May 2003, well
before she engaged in any protected activities. The twist
in this case is that B&B’s decision to fire Benders was
communicated to her in rather uncertain terms by the
firm’s owner and president, Joel Bellows, who, despite
his marriage to Laurel Bellows (the other “B” of B&B),
had a romantic relationship with Benders during the
first several years of her employment.
Notwithstanding these and other complexities, the
district court found, as a matter of law, that B&B fired
Benders on the earlier date. Consequently, the court
granted B&B’s motion for summary judgment on all
three counts in the complaint. Benders v. Bellows and
Bellows, No. 04 C 7326, 2006 WL 208713 (N.D. Ill. Jan. 24,
2006). The case2 is now before us on Benders’ appeal.
As we must, we accept Ms. Benders’ allegations as
true at this stage of the proceedings. As so viewed, the
facts are that B&B hired Benders, an African-American
woman now in her fifties, as a legal secretary in 1996 and
promoted her to the position of office administrator
about a year later. In that position, Benders took charge
of the firm’s computer system, invoicing, and personnel
matters, including the hiring, firing, and training of
employees. Benders, during all this time, did not have an
employment contract with B&B.
Shortly after starting at the firm, Benders and
Mr. Bellows began a romantic relationship, which ended
1
(...continued)
in corporate and employment law, including litigation, negotiat-
ing and counseling.”
2
The “case” we refer to here (06-1487) is Benders’ three-count
claim in which she is represented by counsel. We will discuss
Benders’ pro se appeal from the district court’s dismissal of her
related sex discrimination case (06-2716) separately, at the end
of this opinion.
Nos. 06-1487 & 06-2716 3
about 5 years later. From time to time during this period,
Mr. Bellows helped Benders financially, issuing her
checks, drawn on the firm, to purchase various personal
items. B&B maintained a record of the monies given to
Benders, which she considered gifts, not loans or income.
B&B, on the other hand, claims that these monies
were not gifts. It issued 1099 IRS forms to Benders for
2002 and 2003 reflecting that these payments were
income.
In May 2003, Mr. Bellows had a private conversa-
tion with Benders in which he told her that his wife
and another principal of the firm, Nick Iavarone, were
“campaigning to get [Benders] out” and that she should
begin to look for other employment. Benders alleges
that Mr. Bellows assured her that she would remain
employed with the firm until she found “the right job.”
Benders suspected that the real reason for her future
departure was that B&B did not want an older black
woman around after it moved into its new offices. Accord-
ing to the firm, however, the decision to fire Benders
was made because Mrs. Bellows did not believe Benders
was competent as office administrator. B&B maintains
that Mr. Bellows offered to keep Benders on the payroll
as an act of generosity until she found another job.
Benders claims that, a few weeks later, Mr. Bellows
told her that the firm had hired a “moving consultant,”
who would “share some of the responsibilities” with
Benders, but that “no one would be the wiser.” In
July 2003, Cinthia LeGrand, a white woman approxi-
mately 10 years younger than Benders, began her em-
ployment at B&B. After LeGrand’s arrival, Benders’ duties
at the firm generally diminished. According to Benders,
however, at times, her responsibilities would “come back,”
causing her to question her role at B&B. B&B concedes
that it never stripped Benders of her title as office admin-
istrator, nor did it ever reduce her then-current salary
4 Nos. 06-1487 & 06-2716
until her last day at the firm, about 9 months after
LeGrand started.
In December 2003, Mr. Bellows approached Benders
and proposed that, instead of making a contribution to
the firm’s 401(k) plan on her behalf for 2003, he would
assume responsibility for a civil judgment entered against
Benders regarding her student loans. Mr. Bellows alleg-
edly explained to Benders that, to effectuate this arrange-
ment, he would have to reclassify her as an independent
contractor for the last few weeks of 2003. Benders admits
that she agreed to forego the payment, but only on the
condition that she be returned to employee status by mid-
January 2004. From that point on, however, Benders’
paychecks bore the notation, “independent contractor.”
Despite the change in status, B&B concedes that it
continued to deduct federal taxes from Benders’ paycheck.
In February 2004, in response to her complaints,
Mr. Bellows told Benders that he was going to put her
back on the payroll long enough for her to collect unem-
ployment, for approximately 5 weeks, and then she
would have to leave the firm. But Benders’ paychecks
remained the same. Benders was never asked to sign
an independent contractor agreement, which she knew to
be the firm’s practice.
Later that month, Benders filed a claim with the Illinois
EEOC, alleging race and age discrimination in connec-
tion with her apparent demotion and B&B’s hiring of
LeGrand. Her charge appended e-mails written by
Mr. Bellows. One of the e-mails referred to Benders as
“Seabiscuit” who “should have been put down” long ago. In
another e-mail, Mr. Bellows said that African-American
members of his staff were making Benders’ employment
situation “a racial thing.” After Benders filed the charge,
she claims that Mr. Bellows became increasingly hostile
towards her and made her working conditions difficult.
Nos. 06-1487 & 06-2716 5
According to B&B, however, it was Benders who caused
problems. The firm claims that she became disruptive
and insubordinate, did not actively seek other employment,
deliberately caused problems for LeGrand, and did not
perform certain duties.
On April 12, 2004, B&B filed its position statement
with the EEOC. Benders alleges that, 3 days later,
Mr. Bellows approached her and told her that because
she had filed an “awful EEOC charge,” he would not
consider paying her severance. B&B denies that
Mr. Bellows made any such statement.
On April 14, 2004, after receiving another “independent
contractor” paycheck, Benders reminded Mr. Bellows
that she planned to refinance her home and needed
her pay stub to reflect her current status as an employee.
Mr. Bellows replied in an e-mail that he “had thought
that [Benders] [was] being paid as an employee until
recently” and promised to issue her a corrected check.
He changed his mind, however, because Mrs. Bellows
would not allow it. Four days later, Benders sent
Mr. Bellows an e-mail telling him that she intended to
file a formal complaint with the IRS, requesting that
the agency make a determination of her employment
status.3
Finally, on April 20, 2004, Mr. Bellows told Benders
to leave the firm. According to B&B, Benders was asked
to leave because a day earlier she had become hostile
with Mrs. Bellows. Mrs. Bellows subsequently told her
husband that she would not come to the office until
Benders was fired. B&B claims that Mr. Bellows told
Benders she was “causing too much of a distraction.”
3
Benders ultimately did file a complaint with the IRS in
July 2004.
6 Nos. 06-1487 & 06-2716
Benders denies ever having an altercation with
Mrs. Bellows and maintains she was accused of “causing
too many problems” at the firm. Benders filed a retalia-
tory discharge claim with the EEOC and subsequently
received a right-to-sue letter.
In November 2004, Benders filed this suit in dis-
trict court, alleging three counts: (1) a claim of retalia-
tion for filing an EEOC charge under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (2)
a claim of interference with the attainment of a benefit
under § 510 of the Employee Retirement Income Security
Act (ERISA), 29 U.S.C. § 1140 et seq.; and (3) a claim of
retaliatory discharge under Illinois common law. B&B
eventually moved for summary judgment and, as we
noted, the district court granted the motion.
We review a grant of summary judgment de novo. Perez
v. Illinois, 488 F.3d 773, 776 (7th Cir. 2007). Summary
judgment is proper if “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). We draw all reasonable infer-
ences from the evidence in the light most favorable to
the nonmoving party. Perez, 488 F.3d at 776.
We first examine whether the district court correctly
found as a matter of law that B&B decided to fire Benders
in May 2003. As we stated earlier, this determination
was central to the court’s decision to dismiss all three
claims.
The district court held that no reasonable trier of fact
could find other than that B&B decided to terminate
Benders’ employment in 2003 primarily based on the
following “undisputed” facts: (1) in May 2003, Mr. Bellows
told Benders that her employment was being “terminated”
and that she should begin looking for another job;
Nos. 06-1487 & 06-2716 7
(2) Benders’ replacement, LeGrand, was hired shortly
thereafter; and (3) Benders stated that her job had been
“eliminated” in a January 2004 EEOC questionnaire. We
disagree with this conclusion.
First, Benders did not concede that her employment
was “terminated” in May 2003. The record shows that
she admitted to the language Mr. Bellows used, but not
to the fact that her employment had actually been termi-
nated. Her response to a proposed finding of fact is illus-
trative: “Contested that the Firm decided to ‘terminate’
Benders in 2003. Benders was only told that she should
begin looking for another job, not that she was termi-
nated.” (Emphasis added.) On the contrary, Benders
testified that, while she may have been demoted in 2003,
she was actually fired on April 20, 2004, 2 months
after she filed a claim with the EEOC and 2 days after
threatening to report certain conduct to the IRS. Thus,
the fact that Benders’ employment was “terminated” in
May 2003 was far from undisputed.
Second, Benders did not admit that she was “replaced”
by LeGrand in June 2003. Benders agreed that LeGrand
was hired by the firm in June 2003 and that she took
over some of Benders’ responsibilities. However, Benders
also testified that she continued working at the firm until
April 2004 doing many of her usual duties, and it was
unclear what her role was. Benders’ response to a pro-
posed finding of fact is helpful: “Contested. Benders
stated that [m]y role diminished. But it still became—
it was still fuzzy because at times it would come back . . .
[s]o it never really stopped.” Again, the fact that Benders
had been replaced in the summer of 2003 was disputed.
Third, Benders’ statements in the EEOC questionnaire
are more complex than B&B acknowledges. Benders
admitted writing “Demotion; Job elimination” in the
space asking for “issues.” However, she also wrote,
8 Nos. 06-1487 & 06-2716
“TOLD to look for employment.” These statements are not
inconsistent with her understanding that, while her role
had diminished somewhat, and she may have been de-
moted, B&B did not decide to fire her until April 2004.
The attempt here to justify summary judgment on “undis-
puted” facts is not convincing.
Academic tenure cases likewise do not support a resolu-
tion of this dispute on summary judgment. In cases such
as Delaware State College v. Ricks, 449 U.S. 250 (1980),
Chardon v. Fernandez, 454 U.S. 6 (1981), and Lever v.
Northwestern University, 979 F.2d 552 (7th Cir. 1992),
courts have concluded that “termination of employment . . .
is a delayed, but inevitable, consequence of the denial
of tenure.” Ricks, 449 U.S. at 257-58. Although that line
of cases primarily deals with limitations questions (which
are not at issue here), it is tempting to apply their dis-
cussions to this case. After all, the facts of Ricks and its
progeny concern an initial decision (to deny tenure), which
was communicated to the employee and subsequently
followed by a period of continued employment. There,
the courts found that the earlier decision was the im-
portant one, noting that “[m]ere continuity of employment,
without more, is insufficient to prolong the life of a cause
of action for employment discrimination.” Id. at 257. Thus,
B&B might argue that a similar sequence of events
occurred here: it made an initial decision (to fire Benders),
gave the employee notice, and finally terminated her
employment at a later date. Accordingly, Benders’ ultimate
dismissal in 2004 was a “delayed, but inevitable, conse-
quence” of B&B’s 2003 decision, which is the relevant
date of termination.
We think that the Ricks line of cases is distinguishable.
First, in those cases, the decision to deny tenure was
made after a designated number of years, by a specific
committee, with the employee’s knowledge, and usually
according to procedures outlined in a faculty handbook.
Nos. 06-1487 & 06-2716 9
See, e.g., Lever, 979 F.2d at 554. Nothing even coming
close to a formal process was alleged in this case. Second,
in the academic tenure case, the tenure decision was
communicated to the employee in no uncertain terms,
usually in a letter. See, e.g., id. at 553. Here, we have
only a private conversation between Mr. Bellows and
Benders (and, we repeat, the two allegedly had a 5-year
intimate relationship), the content of which is vague
and disputed. Finally, in the Ricks line of cases, the
employee who was denied tenure was usually offered a
subsequent one-year “terminal” contract, with explicit
notice that employment would end upon its expiration.
Benders, however, was given no contract or even an end
date. She was finally told to leave on a seemingly ran-
dom day, 11 months after her initial conversation with
Mr. Bellows, and before she found another job. We do not
mean to imply that every termination must include all
of these ingredients, but the absence of any formal process
or clear evidence of a decision to terminate makes the
academic tenure cases inapposite to a case like ours
on summary judgment.
We conclude that the record paints an indeterminate
picture of the significance of the May 2003 conversation.
Whether Benders was fired on that date is a material
issue of fact to be decided by a jury. Thus, it was error to
grant summary judgment on that basis. We now turn to
an individual assessment of Benders’ three claims.
Benders’ first count alleges a claim of retaliation under
Title VII for filing an EEOC charge. See 42 U.S.C. § 2000e-
3(a). A plaintiff can establish a prima facie case of unlaw-
ful retaliation via the direct or the indirect method of
proof. Stone v. City of Indianapolis Pub. Utils. Div., 281
F.3d 640, 644 (7th Cir. 2002). Benders elects the former.
Thus, to survive summary judgment, she must present
direct evidence that: (1) she engaged in statutorily
protected activity; (2) she suffered an adverse employment
10 Nos. 06-1487 & 06-2716
action; and (3) there is a causal connection between the
two. Luckie v. Ameritech Corp., 389 F.3d 708, 714 (7th Cir.
2004). Because direct evidence—which essentially re-
quires an admission by the employer—is rare, we also
consider circumstantial evidence from which the fact
finder could infer intentional discrimination. Mannie v.
Potter, 394 F.3d 977, 983 (7th Cir. 2005). Benders’ obstacle
on summary judgment is the third element, causation.
B&B argues that Benders cannot establish causation
as a matter of law pursuant to Clark County School
District v. Breeden, 532 U.S. 268 (2001). In that case,
the Court held that “[e]mployers need not suspend previ-
ously planned transfers upon discovering that a Title VII
suit has been filed, and their proceeding along lines
previously contemplated, though not yet definitely deter-
mined, is no evidence whatever of causality.” Id. at 272.
There, the employer’s evidence that it intended to trans-
fer the employee prior to learning of the lawsuit was not
at issue, and the employee was transferred within about
a month of the decision. Id. In Cichon v. Exelon Genera-
tion Co., we applied Clark County to a case where the
evidence showed that the decision to discharge an em-
ployee was made a day before the employer learned of
the lawsuit, and the employee was removed less than a
month later. Cichon, 401 F.3d 803, 811 (7th Cir. 2005).
However, because we already found that there is a genuine
issue of material fact as to when B&B decided to fire
Benders, reliance on Clark County and Cichon, at this
point, is premature.
B&B nevertheless asserts that Benders brought forth
no direct or circumstantial evidence of causation. We
disagree. Benders testified that on April 15, 2004, just 3
days after B&B filed its response with the EEOC,
Mr. Bellows approached her and referred to the “awful
EEOC charge” that she filed 2 months earlier. Benders
was fired 5 days after that, before she found other em-
Nos. 06-1487 & 06-2716 11
ployment, raising an inference that she was fired in
retaliation for filing the charge. See Culver v. Gorman &
Co., 416 F.3d 540, 546 (7th Cir. 2005) (discussing the
significance of “suspicious timing”). Mr. Bellows denied
ever speaking to Benders about the EEOC charge, but this
only creates a factual dispute to be resolved at trial.
Viewed in the light most favorable to Benders, the evi-
dence raises an inference of a causal connection between
her complaints of discrimination and her termination.
Because Benders presented evidence establishing a
prima facie case of retaliation, her Title VII claim must be
tried unless B&B presents unrebutted evidence that
Benders would have been fired absent her allegations of
discrimination. Stone, 281 F.3d at 644. Summary judgment
is only appropriate if there is no material issue of fact
as to whether B&B’s explanation is pretext for retalia-
tion. Hudson v. Chicago Transit Auth., 375 F.3d 552, 559
(7th Cir. 2004). Benders can avoid summary judgment
by pointing to specific facts that cast doubt upon B&B’s
explanation. Culver, 416 F.3d at 547.
B&B advances several noninvidious reasons for termi-
nating Benders: she failed to perform certain duties;
she was disruptive and insubordinate; and she got into
a hostile altercation with Mrs. Bellows. B&B produced
e-mails allegedly evidencing Benders’ poor performance.
Rather than demonstrating Benders’ incompetence,
however, the e-mails show a general environment of
distrust and dysfunction at the firm, where many em-
ployees—including Benders herself—were confused about
her role and responsibilities. B&B also offered affidavits
from employees verifying Benders’ purported insubordi-
nation. However, Benders’ testimony disputes the cred-
ibility of these affidavits and maintains that it was
Mr. Bellows who made her working conditions difficult
after she filed the EEOC charge. Finally, B&B offered
affidavits confirming the alleged confrontation between
12 Nos. 06-1487 & 06-2716
Mrs. Bellows and Benders. Again, Benders testified that
she recalled no such altercation. Whether this confronta-
tion took place and whether Benders underperformed
in her duties are factual questions bearing on the issue
of pretext. Thus, summary judgment is inappropriate
on Benders’ first claim.
Benders’ second count alleges a claim of interference
with the attainment of a benefit under § 510 of ERISA.
That section states:
It shall be unlawful for any person to discharge, fine,
suspend, expel, discipline, or discriminate against a
participant or beneficiary for exercising any right to
which he is entitled under the provisions of an em-
ployee benefit plan, . . . or for the purpose of interfer-
ing with the attainment of any right to which such
participant may become entitled under the plan . . . .
29 U.S.C. § 1140. Section 510 protects the employment
relationship giving rise to an individual’s pension rights.
McGath v. Auto-Body N. Shore, Inc., 7 F.3d 665, 669 (7th
Cir. 1993). In addition to termination, § 510 also applies
to situations where an employer reclassifies an employee
as an independent contractor, see, e.g., Berger v. AXA
Network LLC, 459 F.3d 804, 806 (7th Cir. 2006), as long
as the employer had “the specific intent to deprive an
employee of his plan rights.” Isbell v. Allstate Ins. Co., 418
F.3d 788, 796 (7th Cir. 2005).
Benders maintains that B&B violated § 510 in two
ways: (1) by reclassifying her as an independent con-
tractor in December 2003 and refusing to reinstate her
as an employee to avoid making a contribution to her
401(k) account; and (2) by terminating her employment
in April 2004 because of her disagreement with her
status as an independent contractor and her attempts
to regain her status as an employee. Contrary to the
district court’s conclusion, this issue does not directly
Nos. 06-1487 & 06-2716 13
depend on when Benders was fired. As Mr. Bellows
acknowledged in his affidavit, whatever B&B decided in
May, Benders would have been a “qualifying employee”—
and thus eligible for the December 2003 contribution—if
not for her change in status. B&B cannot reasonably
dispute this fact because it argues that Benders know-
ingly accepted payment of a default judgment instead of
a contribution to her 401(k) account. For such a quid pro
quo to have occurred, Benders must have been entitled to
the benefit to begin with. The issue boils down to whether
Benders consented to the arrangement, thus negating
the “specific intent” necessary to find B&B liable.
B&B first argues that there is no direct or circumstan-
tial evidence that it intended to deprive Benders of a
benefit. Again, B&B’s argument is that Benders agreed to
forego the 401(k) contribution in exchange for payment
of her student loan judgment. However, Benders refuted
this argument by testifying that she only agreed to re-
main an independent contractor for a few weeks, not
indefinitely. As evidence, Benders produced e-mails in
which she accused Mr. Bellows of reneging on his promise,
to which Mr. Bellows responded that he would reinstate
her as an employee. Indeed, in his affidavit, Mr. Bellows
admitted to twice agreeing to restore Benders’ status
but later changing his mind. Furthermore, Benders
ultimately was told to leave the firm 2 days after inform-
ing Mr. Bellows of her intent to file a claim with the
IRS regarding her status. Thus, Benders offered some
evidence that B&B intended to interfere with her attain-
ment of a benefit when, despite her complaints,
Mr. Bellows broke his promise and dismissed her.
B&B also maintains that it did not have the requisite
intent to violate § 510 because it had no economic incen-
tive to take the allegedly adverse action. See Little v. Cox’s
Supermarkets, 71 F.3d 637, 644 (7th Cir. 1995) (finding
that a potential saving of $216 could not be viewed as a
14 Nos. 06-1487 & 06-2716
motivating factor in the employee’s discharge). We think
there is no doubt that this contention is true. Paying
off the student loan judgment greatly exceeded any
contribution Benders would have received if she had
remained an employee. Consequently, there is no material
issue of fact regarding whether B&B intended to profit
from keeping Benders classified as an independent con-
tractor for part of 2003. Also, since Benders was fired, at
the latest in April 2004, a 401(k) contribution for that
year would not have been made. In that regard, it ap-
pears to be undisputed that none of B&B’s employees
received a 401(k) contribution in 2004.
Finally, given the reality of the sticky situation at
B&B—where amour was hot and heavy in the air—it’s
more than a bit unrealistic to think that the firm shoved
Benders out the door so it could save a few bucks by
dodging a 401(k) contribution to a pension plan. Sum-
mary judgment was properly granted to B&B on
Benders’ ERISA claim.
Benders’ third and final count alleges a claim of retalia-
tory discharge under Illinois common law in connection
with her threat to notify the IRS of her employment
status situation. As an exception to the at-will employ-
ment rule, a retaliatory discharge claim may succeed if
an employee shows: (1) that she was discharged (2) in
retaliation for her activities (3) in contravention of a
clearly mandated public policy. McGrath v. CCC Info.
Servs., Inc., 731 N.E.2d 384, 388 (Ill. App. Ct. 2000).
Illinois courts have held that the “clear mandate of
public policy” standard is met in the context of workers’
compensation claims and whistleblowing. Brandon v.
Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 941
(7th Cir. 2002). When whistleblowing, the employee need
not be correct about the unlawfulness of the conduct, as
long as she held a good-faith belief. Id. The public policy
requirement is not met when “only private interests are
Nos. 06-1487 & 06-2716 15
at stake.” Palmateer v. Int’l Harvester Co., 421 N.E.2d
876, 879 (Ill. 1981). The issue here is whether Benders’
claim fails for this reason.4
B&B argues that the Illinois appellate court’s decision
in McGrath supports its position that Benders’ dispute
with the firm was purely private. There, the court re-
jected the employee’s claim that violations of the state’s
Wage Payment and Collection Act formed the predicate
for a retaliatory discharge suit. McGrath, 731 N.E.2d at
391. The court explained that a dispute over the
employee’s conditional stock options and calculation of
bonus is economic in nature and therefore not actionable.
However, in that case, the state statute only concerned the
forfeiture of employee benefits. Id. at 390. Here, the
federal laws governing the classification of workers
as employees or independent contractors for tax pur-
poses concern more than workers’ economic interests.
They affect the tax revenues collected by the federal
government, the compliance with which, B&B does not
dispute, is a matter of public concern. See Brandon, 277
F.3d at 942 (citing cases where violations of federal law
have given rise to valid retaliatory discharge claims
under Illinois law).
B&B also maintains that because Benders did not
suspect tax fraud per se at the time she threatened to
report the matter to the IRS, her claim is barred. We
disagree. Illinois courts frame the inquiry as whether
only private interests are “at stake,” focusing on the
employer’s allegedly wrongful conduct. See, e.g., Palmateer,
421 N.E.2d at 879. B&B cites no cases requiring the
4
B&B also argued that Benders did not demonstrate that the
firm’s proffered reasons for firing her were pretext. However,
as we discussed in the context of her Title VII claim, Benders
adequately rebutted B&B’s evidence on this issue.
16 Nos. 06-1487 & 06-2716
employee to fully grasp the legal issues implicated by
the employer’s wrongdoing. Instead, Illinois case law
holds that a “purely personal and private dispute” is not
actionable. McGrath, 731 N.E.2d at 392. Benders’ e-mail
informing B&B of her intent to contact the IRS put the
firm on notice of potential tax violations. Mr. Bellows
acknowledged that he understood at the time that B&B
might incur tax liability, if Benders’ classification was
incorrect. While Benders clearly had an economic inter-
est in reporting the matter, the evidence shows that
she also held a good-faith belief that what B&B was doing
was not lawful. That, coupled with the fact that there
was arguably some “public interest” implicated by B&B’s
conduct, is enough to overcome summary judgment.
Now that we have concluded that the district court
erred in awarding summary judgment on two of the
three counts in Benders’ initial suit (Benders I), we turn
to her second case, filed pro se (Benders II), where she
alleges sex discrimination in violation of Title VII. Benders
first tried to advance this claim in 2005, when she moved
to file a third amended complaint to her original action.
The district court denied that motion as untimely. Benders
then filed a new complaint, raising the same sex dis-
crimination claim, which the district court dismissed for
failure to state a claim.5
Our review is de novo. DeWalt v. Carter, 224 F.3d 607,
611 (7th Cir. 2000). We take Benders’ factual allegations
5
Of course, the claim in Benders II was also dismissable as
violative of the rule against splitting causes of actions—all of
Benders’ claims against B&B growing out of her employment
there should have been in a single suit. That point was not
pressed by B&B in the district court, so we won’t consider it
here. That’s no-harm, no-foul for B&B here because, as we
will conclude, the claim in Benders II will not be coming back
alive.
Nos. 06-1487 & 06-2716 17
as true and draw all reasonable inferences in her favor.
Id. Although a pro se complaint is to be liberally con-
strued, Talley v. Lane, 13 F.3d 1031, 1033 (7th Cir. 1994),
a plaintiff can plead herself out of court by alleging facts
that show she is not entitled to a judgment. Early v.
Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir.
1992).
Title VII provides that “[i]t shall be an unlawful employ-
ment practice for an employer . . . to discriminate against
any individual . . . because of such individual’s . . . sex[.]”
42 U.S.C. § 2000e-2(a)(1). Benders’ complaint alleges
that she was fired because Mr. Bellows did not want his
wife to learn about their affair. Essentially, Benders
complains of being discriminated against not because
of her sex, but because of her consensual sexual relation-
ship with Mr. Bellows.6 We agree that these allegations are
insufficient to support a cause of action for sex discrimina-
tion. See Kahn v. Objective Solutions, Int’l, 86 F. Supp. 2d
377, 380 (S.D.N.Y. 2000) (collecting cases finding that a
voluntary, romantic relationship cannot form the basis of
a sex discrimination suit under Title VII); see also
Huebschen v. Dep’t of Health and Soc. Servs., 716 F.2d
1167, 1172 (7th Cir. 1983) (reaching a similar conclusion
in an analogous § 1983 equal protection case7).
Nor are the alleged facts sufficient to state a claim of
sexual harassment based on a hostile work environment.
A plaintiff claiming a hostile work environment must
establish the following elements: (1) she was subject to
unwelcome sexual harassment; (2) the harassment was
6
Benders now argues that the sex was not consensual, but this
statement is inconsistent with her complaint.
7
The same standards for proving intentional discrimination
apply to Title VII and § 1983 equal protection claims. Williams
v. Seniff, 342 F.3d 774, 788 n.13 (7th Cir. 2003).
18 Nos. 06-1487 & 06-2716
based on sex; (3) the harassment had the effect of unrea-
sonably interfering with her work performance in creating
an intimidating, hostile, or offensive working environ-
ment that seriously affected her psychological well-being;
and (4) there is a basis for employer liability. Robinson
v. Sappington, 351 F.3d 317, 328-29 (7th Cir. 2003).
In her complaint, Benders does not allege that
Mr. Bellows’ initial sexual advances toward her had a
negative effect on her work performance. Rather, she
admits that she performed well, was promoted, and
received pay raises during their 5-year affair. Benders
also concedes that the break-up was “amicable” and
that thereafter she and Mr. Bellows became “friends.”
Her accusations concerning a hostile work environment
consist of conclusory statements pertaining to nonsexual
conduct by Mr. Bellows a year later, after he told her
to find another job. Benders alleges that Mr. Bellows’
motivation behind getting her to leave was to hide their
romantic relationship from his wife. Thus, we see again
that Benders’ complaint centers not around her sex, but
her consensual sexual relationship with Mr. Bellows. This,
as we discussed, is an insufficient basis for a Title VII
claim.
For these reasons, we AFFIRM the grant of summary
judgment to B&B on the ERISA count in case 06-1487 but
REVERSE the grant of summary judgment on the other
two claims in that case and REMAND for further proceed-
ings consistent with this opinion. Finally, because we
agree that Benders’ second complaint fails to state a
claim, we AFFIRM the judgment of dismissal in Benders II,
case 06-2716.
Nos. 06-1487 & 06-2716 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-12-08