Maclin, Mildred v. SBC Ameritech ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1751
MILDRED MACLIN,
Plaintiff-Appellant,
v.
SBC AMERITECH,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 2517—Amy J. St. Eve, Judge.
____________
ARGUED FEBRUARY 14, 2008—DECIDED APRIL 1, 2008
____________
Before RIPPLE, SYKES and TINDER, Circuit Judges.
RIPPLE, Circuit Judge. Mildred Maclin brought this
action against her employer, Ameritech, alleging dis-
crimination on the basis of disability, race and gender.1
After discovery, the parties filed cross-motions for sum-
mary judgment. The district court granted Ameritech’s
motion in its entirety. Ms. Maclin then appealed to this
1
The district court had subject matter jurisdiction pursuant
to 28 U.S.C. § 1331.
2 No. 07-1751
court.2 For the reasons stated in this opinion, we affirm
the judgment of the district court.
I
BACKGROUND
A.
Ms. Maclin began working for Ameritech in 1994. By
June 2001, she had been promoted to area manager, a
second-level management position that has a salary and
bonus potential in what Ameritech refers to as the MT
market zone. In January or February of 2003, Ms. Maclin
accepted a demotion in lieu of being laid off; she became
a first-level manager with a salary and bonus potential
in the MU market zone. At Ameritech, an employee’s
salary and bonus potential is determined by her pay
grade, not her title. The MU market zone is one step below
the MT pay grade; accordingly, it has a lower salary
range and a smaller potential bonus.
In fall 2003, Ms. Maclin participated in developing what
later became known as Bid Central, a new group at
Ameritech. While Bid Central was being developed, it
called its MU-level employees implementation engineers.
Later, once the group became formalized, employees in
the MU pay grade at Bid Central became known as com-
plex bids managers. When Ms. Maclin was transferred to
Bid Central, she remained a first-level manager with a
salary in the MU market zone.
2
We have subject matter jurisdiction pursuant to 28 U.S.C.
§ 1291.
No. 07-1751 3
Bruce Gregory became Ms. Maclin’s supervisor around
October 2003. Gregory assigned Ms. Maclin to the team
lead role in the group. On October 16, 2003, Ms. Maclin’s
official title at Bid Central became area manager of com-
plex bids.3 This assignment as team lead and the change
in title did not change her salary or bonus potential; she
remained in the MU market zone. Although Ms. Maclin
was not second-level management and was not in the
MT market zone when she was team lead, she did have
administrative and supervisory duties that other com-
plex bids managers in the MU market zone at Bid Central
did not have.
Ms. Maclin was injured in a car accident in Decem-
ber 2003. She took a medical leave of absence that began
on December 17, 2003, approximately two months after
she became the team lead at Bid Central. On December 23,
2003, Gregory appointed Dave Gentilini, a white male,
as interim team lead in Ms. Maclin’s absence.4 While
Ms. Maclin was still on medical leave, however, Gregory
3
Each of Ms. Maclin’s coworkers at Bid Central who were
deposed had referred to her as area manager at some point
during her tenure as team lead. Gregory testified that she
had that title, but that she was not “really” an area manager
because she was not in the MT market zone. Nevertheless,
the record contains an e-mail in which he notes that another
employee would be acting as an interim area manager during
her absence.
4
Gregory and other employees at Ameritech referred to
Gentilini as an interim area manager during the first few
months that he took over for Ms. Maclin. Later, when he
permanently took over the position, Gentilini’s title officially
became team lead.
4 No. 07-1751
decided to make Gentilini the permanent team lead. In
discussions with the human resources department, he
stated that he had seen performance problems with her
work, including incomplete or incorrectly performed
assignments and mishandled projects. He also stated that
Gentilini had performed exceptionally well in the position
and that, by the time Ms. Maclin returned to work,
Gentilini had held the position more than twice as long
as she had held it.
Gregory also changed the nature of the team lead role
during Ms. Maclin’s absence. During Ms. Maclin’s tenure
as team lead, Gregory had been working with other
departments at Ameritech to establish Bid Central and
had relied on the team lead to act as a focal point for the
concerns of the other complex bids managers. By the
time Ms. Maclin returned to full-time work in June 2004,
however, Bid Central was no longer in its formative
stages. The team lead role lost its administrative duties and
the other bids managers began reporting directly to
Gregory rather than the team lead. In the modified team
lead position that Gentilini held, none of the other com-
plex bids managers reported to him. He also never per-
formed the administrative duties that Ms. Maclin had
performed before her leave, such as approving time
sheets and reimbursement forms.
Ms. Maclin was not assigned to the modified team lead
role when she returned from her medical leave. About a
month before she returned to full-time work, her title
was changed officially to complex bids manager. The
change did not affect her salary range and bonus potential;
she remained in the MU salary range where she had been
before her leave. She did not possess the additional super-
visory and administrative responsibilities she had held
No. 07-1751 5
before her absence, but neither did Gentilini possess
those duties in the modified team lead position.
Ameritech’s compensation guidelines list several factors
that determine whether, and in what amount, a pay
increase will be awarded and the amount of that award.
One factor is the employee’s current salary compared to
that salary grade’s target range. The guide also contains a
matrix for determining the combined salary increase and
bonus payment that an employee may receive. The matrix
considers two factors: (1) current salary relative to that
salary level’s range, and (2) the employee’s performance
evaluation. An employee like Ms. Maclin, with a salary
in the top third of her salary range who met, but did not
exceed, her supervisors’ expectations, may receive a
combined raise and bonus not to exceed two percent of
her salary. An employee like Gentilini, with a salary in
the middle to lower end of the MU range who performed
exceptionally well, qualifies under Ameritech’s system
for a larger combined raise and bonus.
In 2004, Ameritech awarded bonuses and pay raises
based on the employee’s performance in 2003. It awarded
Ms. Maclin a 1.5% pay increase and a 1.5% lump sum
bonus. Her combined pay raise and bonus exceeded the
total that, according to Ameritech’s compensation guide-
lines, she should have received for that year. Gentilini
received a combined pay increase and bonus of 4% of his
salary, an amount within the range prescribed by
Ameritech’s compensation guidelines for a person with
his salary and performance review. Even after the raises
were given, however, Gentilini was paid less than
Ms. Maclin. He and two other members of Bid Central also
were given an additional discretionary bonus that
Ms. Maclin was not awarded.
6 No. 07-1751
B.
Ms. Maclin brought this action against Ameritech on
April 27, 2005. She claimed that, in violation of the Ameri-
cans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., Ameritech had failed to reasonably accommo-
date her disability. She also claimed that Ameritech had
demoted her from the team lead position because of her
disability, in violation of the ADA, and because of her
race and gender, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. Finally,
she claimed that Ameritech had discriminated against
her on the basis of her disability, race and gender when
Ameritech set her pay raise and when it denied her a
discretionary bonus. Ms. Maclin did not allege any vio-
lation of the Family and Medical Leave Act, 29 U.S.C.
§ 2601 et seq.
After discovery, Ms. Maclin and Ameritech filed cross-
motions for summary judgment. The district court granted
summary judgment to Ameritech on each of Ms. Maclin’s
claims. Ms. Maclin timely appealed.
II
DISCUSSION
We review de novo the district court’s decision to
grant summary judgment. Krieg v. Seybold, 481 F.3d 512,
516 (7th Cir. 2007). Summary judgment is appropriate
where the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with any affidavits,
show that there is no genuine issue of material fact, and the
movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Krieg, 481 F.3d at 516. When considering
No. 07-1751 7
cross-motions for summary judgment, the court must
construe all inferences in favor of the party against whom
the particular motion is made. Krieg, 481 F.3d at 516. The
nonmoving party cannot succeed by resting on its plead-
ings; it must provide evidence on which a jury reason-
ably could find in its favor. Squibb v. Mem’l Med. Ctr.,
497 F.3d 775, 780 (7th Cir. 2007). “We may affirm a sum-
mary judgment on any ground that finds support in the
record where the ground has been adequately presented
in the trial court so that the non-moving party had an
opportunity to submit affidavits or other evidence and
contest the issue.” Lawshe v. Simpson, 16 F.3d 1475, 1483
(7th Cir. 1994) (internal quotation marks omitted).
A. ADA Claims
Ms. Maclin contends that she is disabled and that
Ameritech discriminated against her on the basis of this
disability. The district court determined that Ms. Maclin
was not disabled as that term is defined by the ADA.
Because a “plaintiff seeking to avoid summary judgment
must demonstrate that there is at least a genuine issue
of material fact as to whether [she] is disabled,” Squibb,
497 F.3d at 780, the court granted summary judgment to
Ameritech on all of Ms. Maclin’s ADA claims.
The ADA prohibits discrimination against a “qualified
individual with a disability.” 42 U.S.C. § 12112(a). It
defines a disability as “a physical or mental impairment
that substantially limits one or more . . . major life ac-
tivities.”5 Id. § 12102(2)(A). An employee is disabled if
5
A person also may qualify as disabled under the ADA if she
has a record of an impairment that limits a major life activity
(continued...)
8 No. 07-1751
she “is unable to perform [a major life] activity or is
‘significantly restricted as to the condition, manner or
duration under which’ she can perform it, as compared to
an average person in the general population.” Squibb,
497 F.3d at 781 (quoting 29 C.F.R. § 1630.2(j)(1)) (alteration
omitted). “Whether a particular impairment substan-
tially limits a major life activity is a case-specific, individ-
ualized inquiry.” Id.
Ms. Maclin submits that she is limited in the major
life activity of sitting because she cannot sit for more
than two hours at a time without severe pain. We have held
that a more serious restriction on sitting, one that prevents
a person from sitting more than thirty minutes at a time,
does not qualify as a disability under the ADA. Id. at 784-
85. Even taking at face value Ms. Maclin’s contentions
regarding her ability to sit, her assertion that she must take
breaks from sitting every two hours “does not compare to
the claims this court has held should survive summary
judgment.” Id. at 785. The district court therefore properly
granted summary judgment for Ameritech on all of Ms.
Maclin’s ADA claims because she has not established that
she has an ADA-cognizable disability. Id. at 786 (“Because
we have concluded that [the plaintiff] is not disabled
within the meaning of the [ADA], she is not protected by
its substantive anti-discrimination provisions. We need not
examine her [ADA] claims further.”).
5
(...continued)
or is regarded as having such an impairment, but Ms. Maclin
has not contended that she is disabled under either of these
definitions. 42 U.S.C. § 12102(2)(b), (c).
No. 07-1751 9
B. Race and Gender Discrimination Claims
Ms. Maclin also contends that Ameritech discriminated
against her on the basis of her race and gender. Ms. Maclin
attempts to support her Title VII claims using the indi-
rect, burden-shifting method of proof set forth in McDon-
nell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
method, she must establish a prima facie case of inten-
tional discrimination by showing that: (1) she is a mem-
ber of a protected class; (2) she reasonably performed to
Ameritech’s legitimate job expectations; (3) she suffered a
materially adverse employment action; and (4) Ameritech
treated her differently than a similarly situated em-
ployee outside her protected class. Raymond v. Ameritech
Corp., 442 F.3d 600, 610 (7th Cir. 2006). Ms. Maclin’s
claims necessarily fail if she cannot establish these four
elements.6 See id.
This court has taken a broad view with regard to what
qualifies as an adverse employment action, the third
element of a prima facie case. Nevertheless, an action must
be “significant” to be cognizable as discrimination. Wash-
ington v. Ill. Dep’t of Revenue, 420 F.3d 658, 660 (7th
Cir. 2005). The action must involve more than a mere
inconvenience or an alteration of job responsibilities.
Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 780 (7th
Cir. 2007). We have articulated three general categories of
6
Under this method of proof, the burden shifts to Ameritech to
“articulate some legitimate, nondiscriminatory reason” for its
actions only if Ms. Maclin establishes all four elements of her
prima facie case. Raymond v. Ameritech Corp., 442 F.3d 600,
610 (7th Cir. 2006) (citation omitted). In that event, Ms. Maclin
would have the burden to show that Ameritech’s justification
is pretextual. Id.
10 No. 07-1751
actionable, materially adverse employment actions for the
purposes of Title VII:
(1) cases in which the employee’s compensation,
fringe benefits, or other financial terms of employment
are diminished, including termination; (2) cases in
which a nominally lateral transfer with no change in
financial terms significantly reduces the employee’s
career prospects by preventing her from using her
skills and experience, so that the skills are likely to
atrophy and her career is likely to be stunted; and
(3) cases in which the employee is not moved to a
different job or the skill requirements of her present
job altered, but the conditions in which she works
are changed in a way that subjects her to a humiliating,
degrading, unsafe, unhealthful, or otherwise signifi-
cantly negative alteration in her workplace environ-
ment.
Id. (citing O’Neal v. City of Chicago, 392 F.3d 909, 911
(7th Cir. 2004)). “We have cautioned, however, that cases in
the second category are to be distinguished from cases
involving a purely lateral transfer, that is, a transfer that
does not involve a demotion in form or substance.” Id.
(internal quotation marks omitted). Neither does a “trans-
fer involving no reduction in pay and no more than a
minor change in working conditions” qualify as an ad-
verse employment action. Id. (citation omitted).
Ms. Maclin contends that she suffered an adverse
employment action when she was denied a discretionary
bonus, when she was denied a sufficiently large pay
raise and when her title was changed upon her return to
work. We consider each in turn.
No. 07-1751 11
1. Discretionary Bonus
Ms. Maclin contends that she suffered an adverse
employment action when she was denied a discretionary
bonus. This claim must fail as a matter of law. Farrell v.
Butler Univ., 421 F.3d 609, 614 (7th Cir. 2005); Rabinovitz v.
Pena, 89 F.3d 482, 488 (7th Cir. 1996). Ameritech’s guide-
lines state that the bonus that Ms. Maclin was denied “is
not an entitlement.” R.69-2, Ex. F at 6. Furthermore, Ms.
Maclin concedes that the bonus she was denied was a
wholly discretionary payment by her employer. The “loss
of a bonus is not an adverse employment action . . . where
the employee is not automatically entitled to the bonus.”
Rabinovitz, 89 F.3d at 488-89; see also Farrell, 421 F.3d at 614.
Additionally, Ms. Maclin has not shown that Ameritech’s
reason for declining to give her a discretionary bonus
was a pretext for discrimination. Ameritech contends
that it did not award her a discretionary bonus because
she only had met—not exceeded—her supervisor’s ex-
pectations. Ameritech contends that three Bid Central
employees—a white male, an Asian-American female
and an African-American male—performed exceptionally
well and therefore each was given an individual discre-
tionary award. Ms. Maclin has offered no evidence
that this explanation is a pretext for discrimination. She
therefore has failed to carry her burden, and her claim
must fail. Raymond, 442 F.3d at 610.
2. Comparatively Small Pay Raise
Ms. Maclin contends that she suffered an adverse
employment action when she was given a smaller pay raise
than Gentilini, her white, male coworker. Because
Ms. Maclin abandoned this claim in the district court, she
12 No. 07-1751
cannot pursue it on appeal. Keck Garrett & Assocs. v. Nextel
Commc’ns, Inc., ___ F.3d ___, No. 07-1350, 2008 WL 451300,
at *9 (7th Cir. Feb. 21, 2008).
Ameritech moved for summary judgment on
Ms. Maclin’s pay raise claim on two grounds: (1) Ms.
Maclin could not show that anyone outside her pro-
tected classes was both similarly situated to her and more
favorably treated, and (2) Ms. Maclin could not show that
Ameritech’s proffered reasons for giving Gentilini a
comparatively larger salary increase were pretextual. In
her response to Ameritech’s motion for summary judg-
ment, Ms. Maclin failed to defend her claim against
these arguments. See id. She therefore abandoned the
claim. Id.
Even if Ms. Maclin had not abandoned her claim, how-
ever, summary judgment for Ameritech would be appro-
priate. As noted by the district court, Ms. Maclin failed
to establish at least one necessary element of her claim:
that she was similarly situated to Gentilini. Raymond,
442 F.3d at 610. Ms. Maclin’s only evidence that she is
similarly situated to Gentilini is her own perceptions
about her work performance, which cannot suffice to
establish this element of her case. See Millbrook v. IBP, Inc.,
280 F.3d 1169, 1181 (7th Cir. 2002). Because she failed to
demonstrate the existence of an issue of material fact on
a necessary element, summary judgment on the pay
raise claim was appropriate.
Moreover, even if Ms. Maclin had succeeded in estab-
lishing her prima facie case, she has failed to prove
that Ameritech’s proffered reasons for awarding her a
comparatively small pay raise were a pretext for discrimi-
nation. Raymond, 442 F.3d at 610. Ameritech contended that
it had determined Ms. Maclin’s and Gentilini’s raises in
No. 07-1751 13
accordance with the company’s non-discriminatory matrix.
The matrix takes into account two factors, the employee’s
salary relative to her pay range and the employee’s perfor-
mance review, and, based on those factors, it determines
the total raise and bonus for which the employee qualifies.
Ms. Maclin has offered no evidence that this explanation is
a pretext for discrimination. She therefore has failed to
carry her burden of proving that Ameritech’s justification
for its pay raise was pretextual, and her claim must fail.
See id.
3. Change in Job Title and Duties
Finally, Ms. Maclin submits that she suffered an adverse
employment action when, upon her return from medical
leave, Ameritech refused to reinstate her as the team lead
and changed her title. To survive summary judgment on
this claim, she must establish that the change in job
duties and title constitute an adverse employment action
within the meaning of the statute. Id.
Ms. Maclin and Ameritech agree that she returned to
work at the MU salary grade, the same grade that she had
before her leave of absence. Gentilini, the new team lead,
also had that salary grade. Ameritech contends that,
because Ms. Maclin’s position has the same salary, bene-
fits and opportunities for promotion as the person in the
team lead role, denying her the team lead position was
not an adverse employment action. See Grayson v. City of
Chicago, 317 F.3d 745, 750 (7th Cir. 2003).
Ms. Maclin does not offer any evidence that there is a
difference, significant or otherwise, between her duties as
complex bids manager and the team lead. She contends
only that some time after Gentilini was made team lead,
14 No. 07-1751
Ameritech officially changed her title from area manager
to complex bids manager. Ms. Maclin submits that she
suffered an adverse employment action because that
change in title resulted in a loss of prestige.
This contention fails to establish that Ms. Maclin suf-
fered an adverse employment action. An adverse em-
ployment action must involve a material, substantive
change in an employee’s pay and responsibilities. Grayson,
317 F.3d at 750. An employee has not suffered an adverse
employment action if her title changes but her position
remains the same in terms of responsibilities, salary,
benefits and opportunities for promotion. Id. Even a
change in title that deprives an employee of prestige is
insufficient if it lacks more substantive effect. See id.
Ms. Maclin contends only that Ameritech changed
her title after she was placed in Bid Central and in the
MU salary, and that it did so on the basis of her race or
gender. It is undisputed that Ms. Maclin remains in the
same salary grade that she held before her title changed
in 2004 from area manager to complex bids manager. She
has not established that the change had any significant or
material affect on her job or opportunities for advancement.
See id. Ms. Maclin has not shown that, if she had been given
the team lead role upon her return to work, she would have
had better responsibilities, salary, benefits or opportunities
for promotion. Id. In fact, she conceded that the team lead
position as it exists today does not have the responsibilities
that she had as team lead in 2003. At most, Ms. Maclin
contends that she lost prestige when Ameritech changed
her title and began calling her a complex bids manager
instead of an area manager. Therefore, she has failed to
establish that she suffered an adverse employment action;
she consequently cannot state a discrimination claim
No. 07-1751 15
because she failed to establish a necessary element of her
prima facie case. Id.; Raymond, 442 F.3d at 610.
Conclusion
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
USCA-02-C-0072—4-1-08