Celia Greengrass v. International Monetary System ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2901
CELIA GREENGRASS,
Plaintiff-Appellant,
v.
INTERNATIONAL MONETARY SYSTEMS LTD.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12-cv-00212—Rudolph T. Randa, Judge.
____________________
ARGUED SEPTEMBER 19, 2014 — DECIDED JANUARY 12, 2015
____________________
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Celia Greengrass sued her for-
mer employer, International Monetary Systems Ltd. (“IMS”),
alleging that IMS retaliated against her for filing a complaint
with the U.S. Equal Employment Opportunity Commission
(“EEOC”) against the company by naming her in its annual
SEC filings and casting her complaint as “meritless.” The
district court granted summary judgment in favor of IMS on
the ground that Greengrass lacked evidence showing a
2 No. 13-2901
causal link between her EEOC filing and the alleged retalia-
tory act. We reverse. Greengrass made out a prima facie case
of retaliation by demonstrating that she engaged in a statu-
torily protected activity when she filed her EEOC charge,
that IMS engaged in an adverse employment action when it
listed her name in its SEC filings, and that there was suffi-
cient evidence for a rational trier of fact to find that IMS
listed her name because Greengrass filed the EEOC charge.
I. BACKGROUND
Celia Greengrass began working as an account executive
at IMS in January 2007. On September 10, 2007, Greengrass
made a written complaint to IMS alleging harassment by
Kevin Anderson, IMS’s Las Vegas General Manager. Two
days later, John Strabley, IMS’s CEO, forwarded a copy of
the complaint to Anderson, the alleged harasser, along with
the message, “Call me before you explode.” Greengrass quit
her job at IMS on November 25, 2007. On January 20, 2008,
Greengrass filed a discrimination complaint with the EEOC,
alleging sex discrimination, national origin discrimination,
and retaliation.
As a publicly traded company, IMS is subject to the
SEC’s annual filing requirements. In particular, item 103 of
SEC Regulation S-K requires companies to describe any ma-
terial legal proceedings, including the principal parties, facts
giving rise to the proceeding, and the relief sought. See 17
C.F.R. § 229.103 (1982). In March 2008, IMS’s Treasurer and
CFO, Danny Weibling, consulted with an outside account-
ant, Derek Webb, regarding whether Greengrass’s EEOC
complaint needed to be mentioned in the company’s SEC
filings. Following this consultation, IMS did not refer to
Greengrass’s complaint in its 2008 disclosures. It did, how-
No. 13-2901 3
ever, without naming the complainant, refer to a different
EEOC complaint brought against the company. IMS’s 10-Q
forms for the periods ending March 31, 2008, June 30, 2008,
and September 30, 2008 (all of which were prepared and
filed after Weibling’s discussion with Webb) reported that
IMS was engaged in litigation, but did not mention the
names of parties, instead referring to the litigants as “former
employees.”
At some point in July 2008, IMS received correspondence
from the EEOC regarding Greengrass’s complaint. Appar-
ently, the agency sought information regarding other sexual
harassment claims leveled against the company. On July 29,
2008, IMS’s general counsel, Martin Sklapsky, sent an email
to the company’s management team (including Weibling,
Strabley, and President/CEO Donald Mardak) regarding
how forthcoming IMS should be with the EEOC. It stated,
[T]he EEOC has finally responded to the …
Greengrass complaint. At this point, they're
just looking for some additional information.
One of the items they’re asking about is any
other sexual harassment claims made by any
employee between Nov 2005 and June 2008.
Obviously, the John Lounsbury complaint will
have to be included but what about the two is-
sues raised by Carol Cannedy?
I don’t think the issue with Stan is a problem.
She brought it to our attention, we addressed it
with Stan and it was done. The problem is the
issue with Paul. There was a complaint made
to Paul G, the situation was discussed with
Paul W and then the behavior she was com-
4 No. 13-2901
plaining about occurred at least one other time
after the discussion. The question is, do we in-
clude this in our response to the EEOC?
They’re asking about other complaints because
they’re looking for a pattern of conduct by
IMS. Their logic would be that if we have mul-
tiple complaints, obviously we’re doing some-
thing wrong.
Our problem is that we don’t know if Celia
was aware of that issue and told the EEOC of
other complaints made. The letter from the
EEOC appears to just be a form letter and the
request for that information is likely a standard
question. I’m asking for your opinions on this
because no matter how we respond, IMS has
some potential liability.
If we do not mention it and Celia already re-
ported it to them, it makes it appear IMS is try-
ing to hide something. If we do report it, that
means we’ve had three sexual harassment
complaints in about eight months. That’s the
sort of pattern they’re looking for and since all
the complaints are from different offices, it
would give them the impression that it’s a
company-wide problem, not just an issue with
one or two employees. That’s the sort of situa-
tion where the EEOC could step in and file suit
themselves. If Celia has to litigate this herself,
IMS is probably not going to get a large dam-
ages award because she likely doesn’t have the
resources for a lengthy court fight. However, if
No. 13-2901 5
the EEOC files suit, that is no longer an issue
and they’ll be looking to punish IMS for a pat-
tern of behavior, not necessarily just this one
incident.
This all may not matter anyway. One of the
things they asked for was a list of IMS employ-
ees. I've asked for clarification on whether they
want a list of all employees or for just the Las
Vegas office. If they want a list of every em-
ployee, it would seem they intend to conduct
an investigation of the entire company, not just
the Las Vegas office. If that’s the case, we may
have no choice but to disclose the incidents
with both Paul and Stan.
Around January 12, 2009, IMS received notice that the
EEOC wanted to conduct interviews regarding Greengrass’s
complaint. This signaled a major ramping up of the agency’s
involvement in Greengrass’s case.
For its next SEC filing, dated April 6, 2009, IMS chose to
include Greengrass’s complaint and to specifically name her.
The “Legal Proceedings” section of its annual 10-K filing
stated: “On January 20, 2008, Celia Greengrass filed a sexual
harassment complaint with the [EEOC]. The claim is still
under investigation by the EEOC but IMS believes the claims
to be meritless and will vigorously defend itself.” (In reality,
Greengrass’s EEOC claim did not allege sexual harassment,
but rather sex discrimination, national origin discrimination,
and retaliation against IMS.) These disclosures were repeat-
ed in the “Legal Proceedings” portion of IMS’s Form 10-K/A
Amendment No. 1 Annual Report and in a quarterly disclo-
sure dated May 14, 2009. Other former employees with
6 No. 13-2901
pending claims against IMS were also specifically named in
these filings.
On September 3, 2009, the EEOC found reasonable cause
to believe that Greengrass and other females as a class were
subject to harassment because of their sex and national
origin, and that Greengrass and females, as a class, were
constructively discharged because of their sex, national
origin, and in retaliation for engaging in protected activity.
Around December 24, 2009, the parties resolved Green-
grass’s original EEOC complaint through conciliation, which
did not include IMS’s rehiring of Greengrass.
IMS reported the resolution of its dispute with Green-
grass in the company’s Form 10-K Annual Report for 2009,
stating, “During 2009, the company was defendant in two
cases of note.… Settlement was reached in the EEOC matter
in November 2009.” It did not refer to any other parties by
name. In later filed quarterly and annual reports, IMS con-
tinued to refer generically to plaintiffs and defendants in on-
going litigation, not identifying them by name.
After leaving IMS, Greengrass struggled to find and
maintain regular employment. Greengrass attributes her
post-IMS difficulties to the SEC filings that identified her by
name. She claims that a Google search of her name draws
multiple results regarding IMS’s SEC filings that include her
name. She also claims that a recruiter informed her she was
“unemployable” due to this information.
On September 28, 2010, Greengrass filed a second EEOC
complaint against IMS, alleging it retaliated against her be-
cause of her previous complaint based on its SEC filings. On
March 25, 2011, the EEOC found “reasonable cause” to be-
No. 13-2901 7
lieve IMS had violated Title VII’s retaliation provision by
“providing information regarding her previous Charge of
Discrimination on a public record to preclude her from ob-
taining new employment.” The parties were unable to re-
solve the dispute through conciliation and the EEOC issued
Greengrass a right-to-sue letter.
Greengrass sued IMS alleging retaliation under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e, et seq. After discovery closed, both Greengrass and
IMS moved for summary judgment. The district court grant-
ed summary judgment to IMS on all claims, finding Green-
grass had “no evidence” of causation, and she appealed.
II. ANALYSIS
Greengrass challenges the district court’s conclusion that
she did not provide enough evidence that IMS retaliated
against her for asserting her rights under Title VII to survive
summary judgment. We review the district court’s grant of
summary judgment de novo, “constru[ing] all facts and rea-
sonable inferences from the record in a light most favorable
to the nonmoving party.” Magin v. Monsanto Co., 420 F.3d
679, 686 (7th Cir. 2005). “Summary judgment is appropriate
when there are no genuine issues of material fact and judg-
ment as a matter of law is warranted for the moving party.”
Gross v. PPG Indus., Inc., 636 F.3d 884, 888 (7th Cir. 2011) (in-
ternal citations omitted).
A Title VII plaintiff can prove retaliation using either the
direct or indirect method. Majors v. Gen. Elec. Co., 714 F.3d
527, 537 (7th Cir. 2013). Under the direct method, which
Greengrass relies upon, a plaintiff must prove (1) that she
engaged in statutorily protected activity; (2) that she was
8 No. 13-2901
subjected to an adverse employment action; and (3) that
there was a causal connection between the two. O'Leary v.
Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).
There is no dispute that Greengrass satisfied the first el-
ement, as her formal EEOC charges were “the most obvious
form of statutorily protected activity.” Silverman v. Board of
Educ. of City of Chicago, 637 F.3d 729, 740 (7th Cir. 2011). We
also find (and IMS does not dispute) that listing Green-
grass’s name in publicly available SEC filings (and referring
to her complaint as “meritless”) constituted a materially ad-
verse employment action. As Greengrass’s allegations re-
garding the recruiter who called her “unemployable” make
clear, an employee’s decision to file an EEOC complaint
might be negatively viewed by future employers. So, nam-
ing EEOC claimants in publicly available SEC filings could
”dissuade[] a reasonable worker from making or supporting
a charge of discrimination”—the essence of a materially ad-
verse employment action. See Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006); see also Veprinsky v. Fluor
Daniel, Inc., 87 F.3d 881, 888-91 (7th Cir. 1996) (holding that
“post-termination acts of retaliation that have a nexus to
employment,” e.g., by “imping[ing] on [an employee’s] fu-
ture employment prospects” are actionable under Title VII).
We now turn to the causation requirement, which the
district court found Greengrass failed to satisfy. To demon-
strate a “causal link” between the protected activity and the
adverse employment action, a plaintiff must show the de-
fendant “would not have taken the adverse … action but for
[her] protected activity.” King v. Preferred Technical Grp., 166
F.3d 887, 892 (7th Cir. 1999). Direct evidence typically re-
quires an admission by the employer of discriminatory ani-
No. 13-2901 9
mus, which is “rare.” Benders v. Bellows & Bellows, 515 F.3d
757, 764 (7th Cir. 2008). But a plaintiff may also supply the
causal link through circumstantial evidence from which a
jury may infer intentional discrimination. Stephens v. Erick-
son, 569 F.3d 779, 787 (7th Cir. 2009). Such circumstantial ev-
idence may include suspicious timing, ambiguous state-
ments of animus, evidence other employees were treated dif-
ferently, or evidence the employer’s proffered reason for the
adverse action was pretextual. Coleman v. Donahoe, 667 F.3d
835, 860 (7th Cir. 2012). When the plaintiff has “assemble[d]
from various scraps of circumstantial evidence enough to
allow the trier of fact to conclude that it is more likely than
not that discrimination lay behind the adverse action, then
summary judgment for the defendant is not appropriate.”
Morgan v. SVT, LLC, 724 F.3d 990, 996 (7th Cir. 2013).
Greengrass has assembled a convincing array of circum-
stantial evidence. We begin with her evidence of suspicious
timing. Suspicious timing is generally found when “an ad-
verse employment action follows close on the heels of pro-
tected expression.” Kidwell v. Eisenhauer, 679 F.3d 957, 966
(7th Cir. 2012). IMS argues that it did not begin listing names
in its SEC filing until 14 months after Greengrass filed her
first EEOC complaint, undercutting any suggestion of suspi-
cious timing. However, this is not the only relevant
timeframe. IMS did not become aware of the EEOC’s inten-
tion to seriously pursue Greengrass’s claim until January
2009, when the agency informed IMS it would be taking in-
terviews. Before this point—as Sklapsy’s July 29, 2008 email
to IMS management makes clear—the company was confi-
dent it could avoid a “large damages award” because, with-
out the EEOC’s involvement, Greengrass “likely [would not]
have the resources for a lengthy court fight.” Thus, a reason-
10 No. 13-2901
able jury could find that IMS decided to retaliate against her
not when she filed her charge, but when IMS saw that the
EEOC was taking the charge seriously, and that the retalia-
tion occurred in its next scheduled SEC filing on April 6,
2009. See Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th
Cir. 2011) (noting whether amount of time lapsed is suspi-
cious “depends on context”).
Greengrass presented evidence of animus as well. A rea-
sonable jury could, for example, interpret Sklapsky’s July
2008 email as evincing disdain for the EEOC process and an-
imus against Greengrass for filing her complaint. Animus
might also be inferred from Strabley’s decision to forward
Greengrass’s complaint to her alleged harasser with the
message, “Call me before you explode.” The fact that IMS
employees do not mention how IMS might retaliate is irrele-
vant since they raise the reasonable inference that IMS held
animus about the process and Greengrass’s decision to en-
gage it. See Kasten v. Saint-Gobain Performance Plastics Corp.,
703 F.3d 966, 974 (7th Cir. 2012) (noting whether ambiguous
statements are discriminatory, retaliatory, or benign “is an
appropriate question for a jury”).
Greengrass also provided evidence of pretext. Pretext can
be shown by “identif[ying] … weaknesses, implausibilities,
inconsistencies, or contradictions” in an employer’s asserted
reason for taking an adverse employment action such “that a
reasonable person could find [it] unworthy of credence.”
Coleman, 667 F.3d at 852-53 (citations omitted). IMS main-
tains that it changed its policy to include names on its SEC
filings based on advice from “auditors and others” regard-
ing compliance with SEC Regulation S-K item 103. The dis-
trict court agreed, finding that “[u]ltimately, it was uncer-
No. 13-2901 11
tainty over the filing requirements, not discriminatory ani-
mus, which led to the inclusion of Greengrass’s name on
IMS’s SEC filings.” However, IMS’s multiple shifts in poli-
cy—from not including litigants’ names, to listing them, and
then not including them again—could lead a reasonable ju-
ror to find that IMS is “dissembling” when it contends that it
listed Greengrass’s name in response to advice regarding
compliance with SEC regulations. See id. (noting pretext can
be shown by evidence of “dissembling”). As Greengrass
points out, IMS had also consulted with an outside account-
ant, Derek Webb, before filing its 2008 disclosures, which
did not identify litigants by name. And IMS offers no evi-
dence of when it received the alleged advice to change poli-
cy. Where, as here, “there is a question of fact as to the be-
lievability of an employer’s purported reasons for an em-
ployment decision then, ‘even if the evidence presented by
[the plaintiff] does not compel the conclusion that [her em-
ployer] discriminated against [her] when making its ... deci-
sion, at a bare minimum it suffices to defeat [the employer’s]
summary judgment motion.’” Rudin v. Lincoln Land Commu-
nity College, 420 F.3d 712, 726 (7th Cir. 2005) (quoting Court-
ney v. Biosound, Inc., 42 F.3d 414, 423 (7th Cir. 1994)). In light
of this evidence, summary judgment for the defendant was
inappropriate.
III. CONCLUSION
The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion.