Bannon, Gloria v. Univ Chicago ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2955
GLORIA BANNON and JACQUELINE BURTON,
Plaintiffs-Appellants,
v.
THE UNIVERSITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 3081—William J. Hibbler, Judge.
____________
ARGUED MAY 2, 2007—DECIDED OCTOBER 1, 2007
____________
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Gloria Bannon and Dr.
Jacqueline Burton both sued The University of Chicago,
operator of the Argonne National Laboratory where both
plaintiffs worked. Bannon, a woman of Mexican ancestry,
claims her supervisor leveled racial epithets at her and
repeatedly blocked her attempts to gain promotion from a
secretarial position to a supervisory one because of her
national origin. Further, Bannon says that after winning
promotion in November 2002, she was “frozen out” of
opportunities in retaliation for reporting funding irreg-
ularities. Bannon began a medical leave in February 2003,
and never returned to work. Instead, she initiated this
2 No. 06-2955
action, claiming she was: (1) denied promotion because
of her national origin, (2) subjected to a hostile work
environment, and (3) constructively discharged in viola-
tion of Title VII of the Civil Rights Act. Burton, a white
female, claims the university violated Title VII by deny-
ing her a promotion to senior scientist because of her
gender and that she was fired in retaliation for report-
ing improper billing practices, and not for the reason
provided by the school—a failure to report a conflict of
interest.
The district court dismissed Bannon’s retaliatory
constructive discharge claim on the pleadings and granted
summary judgment to the defendant on all other claims.
We affirm as to Bannon because: (1) she has no timely
failure-to-promote claim; (2) she did not establish that
she found her workplace subjectively hostile; (3) her IIED
claim is partially preempted and she was not the victim
of extreme and outrageous conduct; and (4) Illinois does
not recognize a cause of action for retaliatory constructive
discharge. With respect to Burton, we affirm because
she never applied for the promotion and cannot show
that the reason given for her termination was pretextual.
I. BACKGROUND
Because this case is at the summary judgment stage, we
summarize the facts as related by Bannon and Burton. See
Perez v. Illinois, 488 F.3d 773, 776 (7th Cir. 2007).
Bannon’s claims focus on her relationship with her super-
visor at Argonne, Christopher Reilly. She began working
as Reilly’s executive secretary in 1989. Initially the job
went smoothly, and Bannon received frequent raises. In
the 1990s, however, Reilly started using racial slurs,
calling her “wetback” and “brown cow,” for instance. A few
years later he heard other employees refer to Bannon as a
No. 06-2955 3
“Mexican terrorist in a miniskirt” and began to call her
that too. Bannon told him to “knock it off ” when he made
some of these remarks. In 2001, when Bannon told Reilly
where she thought he might find a document, he told her,
“I don’t know how that Mexican brain of yours works.” He
made similar comments to her when she asked him
about what she thought were questionable accounting
practices, telling her that she couldn’t understand figures
because of her “Mexican brain.” On at least one occasion,
this comment was made in the presence of another em-
ployee.
Bannon also contends that Reilly blocked her chances
for promotion within the lab. In 1997, the lab posted a
vacancy for a more senior project analyst position. Bannon
wanted to apply, but Reilly refused to recommend her.
Bannon needed his recommendation to be considered
for the promotion so she did not apply. The same thing
happened when the position became available again in
1998. In 2001, when the position became available for
the third time, Reilly did not immediately post it. Instead
he told Bannon that, if she took on many of the duties
of the project analyst position while continuing to work
as his secretary, he would create a new position for her
that would be at a slightly higher pay grade than the
project analyst job. Bannon agreed to do this. When she
reiterated her interest in a promotion to Reilly during
this time, he asked her if she “swam across the border
or walked across the desert.”
Reilly was unable to create a new position for Bannon,
apparently because the human resources department
would not authorize it. However, Bannon did receive
another raise as compensation for the extra work she
had done. In August 2002, after over a year’s delay, Reilly
posted the project analyst position. Bannon applied for
it in early September 2002, and when she informed Reilly
4 No. 06-2955
that she had done so, he became very angry, screamed at
her, and called her a “stupid Mexican.” Nonetheless, this
time Reilly did not block Bannon’s promotion. In mid-
September, Jacqueline Burton, who would be supervising
the new project analyst and had been reviewing the
applications for the position, told Reilly she wanted
Bannon to have the job. At the end of the month, Reilly
sent a letter to human resources asking them to give the
job to Bannon.1 Bannon received the promotion in October,
and it became effective on November 1, 2002.
Bannon did not report Reilly’s behavior to his superiors,
and in spite of all the problems she was having with him,
she admits that they socialized together outside of work
and that she “did not mind, and even enjoyed” some of
these events. She and her husband even went on a week-
long trip with Reilly and his wife in 1998. She also ad-
mits sending him a card in October 2002 in which she
referred to him as a “great boss” and invited him to lunch.
After her promotion, Burton became Bannon’s immedi-
ate supervisor, but Burton was fired by Argonne in
January 2003. Lorraine LaFreniere replaced her, and at
this point Bannon began having trouble at work again.
She was excluded from meetings that she used to partici-
pate in and was no longer allowed to organize and coordi-
nate meetings although that had previously been one of
her job duties. She felt that she was being “frozen out” of
her department after Burton’s termination. She was also
deeply upset by two incidents in which she was accused
of wrongdoing by Mark Jones, Argonne’s general counsel.
In October of 2002, he accused her of falsifying her over-
1
Although the defendant produced a copy of this letter dated
September 27, 2002, Bannon disputes whether it was ever sent.
However, she has presented no evidence showing that it was
not sent on the same day that it was dated.
No. 06-2955 5
time. Bannon’s lawyers told Jones that any further ques-
tions about her overtime should be directed to them, and
that was the last she heard about the issue. Then in
January 2003, Jones accused her of removing boxes of
Argonne property without permission. She told him that
she only removed personal items, and nothing more
came of this accusation. Bannon was so upset by her
treatment at Argonne that she took extended leave in
February 2003 and resigned a few months later.
Jacqueline Burton’s claims arise out of two incidents.
The first occurred in 2001, when she expressed interest
in being promoted to a senior scientist. Reilly, as Burton’s
immediate supervisor, was responsible for submitting
her application materials to the Associate Lab Director,
Harvey Drucker, who would ultimately decide whether to
promote her. Reilly did not submit Burton’s materials
because, he says, she did not give him everything that
was needed to complete her application. Specifically, he
says that she did not give him a list of scientific peers
who would be willing to write reference letters. Burton
does not deny that she failed to submit the list, but
contends that it was Reilly’s responsibility to ask for it,
and he never did. She asserts that he failed to collect
all the information he needed from her because he was
biased against her because of her gender. She points out
that in September 2002, he told Bannon that Burton was
a “dyke” and a “bitch” and that her marriage was a
“sham.”
The second incident involves Burton’s termination
from Argonne. In 2002, Argonne discovered that Burton’s
husband, John Walker, who also worked for Argonne, had
been doing consulting work on the side for an Argonne
vendor named Air, Soil, & Water (ASW). After investigat-
ing, Argonne discovered that Walker had earned a total of
$56,000 from ASW while he was still employed by
6 No. 06-2955
Argonne. Drucker believed that this was a significant
conflict of interest for both Burton and Walker and was
upset that neither one had reported it to the company.
He terminated Burton and Walker on account of this
conflict in January 2003. Burton believes that she was
really terminated because she expressed concerns about
questionable accounting practices to Reilly, and she
appealed her termination to both Drucker and an inde-
pendent review committee. The termination was upheld,
and the FBI ultimately investigated Burton’s and
Walker’s relationship with ASW. As far as we know this
investigation is still ongoing.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo, drawing all reasonable inferences in favor
of the non-moving parties. Perez, 488 F.3d at 776. Sum-
mary judgment is appropriate if there are no disputed
material facts and the moving party is entitled to judg-
ment as a matter of law. Brewer v. Bd. of Trs. of the Univ.
of Ill., 479 F.3d 908, 914-15 (7th Cir. 2007), petition for
cert. filed, 76 U.S.L.W. 3001 (U.S. June 19, 2007) (No. 06-
1694).
Likewise, our review of a district court’s grant of judg-
ment on the pleadings, see Federal Rule of Civil Procedure
12(c), is de novo. Moss v. Martin, 473 F.3d 694, 698 (7th
Cir. 2007). “Only when it appears beyond a doubt that
the plaintiff cannot prove any facts to support a claim
for relief and the moving party demonstrates that there
are no material issues of fact to be resolved will a court
grant a Rule 12(c) motion.” Id. With these standards in
mind, we begin with Bannon’s Title VII and state-law
claims.
No. 06-2955 7
A. Bannon’s Title VII Claims
1. Failure to Promote
The defendant argues that Bannon has not established
a timely failure-to-promote claim. Bannon does not mean-
ingfully respond to this argument, and we think it
is dispositive. Bannon had to submit her claim to the
EEOC within 300 days of the failure to promote. 42 U.S.C.
§ 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 109 (2002); Salas v. Wis. Dep’t of Corrs., 493
F.3d 913, 921 (7th Cir. 2007). She submitted her claim on
July 14, 2003. As a result, she can only sue for events
that happened on or after September 17, 2002.2 Therefore,
to the extent her failure-to-promote claim is based on
Reilly’s refusal to recommend her for promotion in 1997
and 1998, it is time-barred. The other event that argu-
ably constitutes a failure to promote is Reilly’s decision
in 2001 not to post the project analyst position as soon as
it became available—a decision that ultimately led to
Bannon taking on many of the duties of a project analyst
without receiving the corresponding promotion. But
Reilly posted the job in August 2002, so any delay in
making this promotion available to Bannon ended at that
point, outside of the limitations period.
However, Bannon also argues that, when she finally
applied for the project analyst position in September 2002,
Reilly “delayed” her promotion for two months until
November. This claim would fall within the limitations
period, and a delay in promoting an employee can consti-
2
The parties dispute whether Bannon filed her EEOC charge
on July 14, 2003 or August 12, 2003. It ultimately makes no
difference to the resolution of Bannon’s claims, so we give her
the benefit of the doubt and assume she filed her charge on
July 14.
8 No. 06-2955
tute an adverse employment action, see Cullom v. Brown,
209 F.3d 1035, 1042 (7th Cir. 2000). But we do not think
that the two-month gap in this case between the time
Bannon applied for and received her promotion qualifies
as an adverse employment action. Employees cannot
expect to be promoted the instant they apply. Some lag
time has to be allowed for the application to work its
way through the administrative process and for the
employer to consider other candidates.
The record suggests that this is exactly what happened
in Bannon’s case. She submitted her application to Burton
in early September, and Burton took some time to re-
view it along with the applications of other candidates.
In mid-September, Burton informed Reilly that she had
selected Bannon for the job. Just nine days later Reilly
recommended Bannon for the job to human resources. It
then took human resources some time to act on the
recommendation, and the company officially awarded the
job to Bannon in October, to take effect on the first day
of the following month. The only “delay” in this sequence
of events that can be attributed to Reilly is the nine days
between Burton telling Reilly she had selected Bannon
and Reilly’s request to human resources that Bannon be
given the job. It is not unreasonable for a supervisor to
take nine days to process a promotion application, espe-
cially when the supervisor likely has other tasks. There-
fore, the district court did not err in granting sum-
mary judgment on this claim.
2. Hostile Work Environment
This is the strongest of Bannon’s claims. To succeed
with this claim she has to show that her work environ-
ment was both subjectively and objectively offensive.
Boumehdi v. Plastag Holdings, 489 F.3d 781, 788 (7th Cir.
2007). Bannon correctly points out that the district court
No. 06-2955 9
erred by refusing to consider racial slurs made by Reilly
outside the limitations period. When a plaintiff makes
a hostile work environment claim, the court should
consider harassing incidents that occur outside the
limitations period as long as at least one harassing
incident occurred within the period. Morgan, 536 U.S. at
116-17; Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383,
385 (7th Cir. 2007). At least some of the racial slurs took
place within the limitations period so all of Reilly’s com-
ments are fair game. And, we agree with Bannon that
being repeatedly called a racist slur by one’s boss can be
considered objectively offensive treatment, see Cerros v.
Steel Techs., Inc., 398 F.3d 944, 950-51 (7th Cir. 2005),
especially when those slurs are made in the context of
comments denigrating one’s intelligence—as when Reilly
told Bannon that her “Mexican brain” couldn’t under-
stand figures.
However, Bannon has not established that she consid-
ered her workplace to be subjectively offensive. She has
admitted that she socialized with Reilly outside of work
not once but several times during the same period when
she says he was harassing her. Furthermore, one of these
social events—a week-long vacation that Bannon and
Reilly took together with their spouses—was more pro-
longed and extensive than typical socializing among office
colleagues. Bannon argues that she only socialized with
Reilly because she feared his anger if she refused his
invitations, but we note that on at least one recent occa-
sion in October 2002—when she invited him to lunch
in the card praising him as a “great boss”—she initiated
the contact. She also failed to report Reilly’s behavior to
his superiors at Argonne even though the conduct she
complains of continued for at least five years. See Wolf v.
Nw. Ind. Symphony Soc’y, 250 F.3d 1136, 1144 (7th Cir.
2001) (plaintiff did not show that he found treatment
by supervisor subjectively offensive when he did not
10 No. 06-2955
complain about treatment and sent supervisor a letter
telling her she was a good boss and he wanted to maintain
their friendship); cf. Kampmier v. Emeritus Corp., 472 F.3d
930, 942 (7th Cir. 2007) (questioning whether plaintiff
who maintained some social ties with alleged harasser
subjectively viewed harassment as offensive but ulti-
mately concluding that plaintiff ’s repeated complaints to
supervisors about harasser’s conduct raised a fact issue
on this point). We think that Bannon’s failure to report
Reilly’s behavior over this long period of time combined
with the unusually extensive social relationship she
maintained with him would prevent a reasonable jury
from finding that she subjectively viewed her work envi-
ronment as hostile. So, although it is a closer call, we
conclude that the district court did not err in granting
summary judgment on this claim.
3. Constructive Discharge Claim
Bannon bases her Title VII constructive discharge claim
on the same conduct that underlies her hostile work
environment claim. But to succeed in a constructive
discharge claim, Bannon has to show more than a hostile
work environment. She has to show that her working
environment was so intolerable that resignation was a
fitting response. See McPherson v. City of Waukegan, 379
F.3d 430, 440 (7th Cir. 2004). Because we have decided
that Bannon has not made the necessary showing to
support her hostile work environment claim, it follows that
her constructive discharge claim fails. See Roney v. Ill.
Dep’t of Transp., 474 F.3d 455, 463 (7th Cir. 2007). Fur-
thermore, Bannon has not presented sufficient evidence
to connect her resignation to her ethnicity. Reilly is the
only person Bannon says denigrated her ethnic back-
ground, but when Bannon resigned she had been promoted
and was no longer under Reilly’s direct supervision.
No. 06-2955 11
Instead her resignation seems to have been prompted by
her new supervisor, Lorraine LaFreniere’s actions in
“freezing her out” of some of her job duties and by her
distress over the investigations Argonne’s general coun-
sel, Mark Jones, conducted into her behavior. Bannon
has never suggested that either LaFreniere or Jones
harbored any bias towards Hispanics.
B. Bannon’s State-Law Claims
Bannon also made two state-law claims, intentional
infliction of emotional distress and retaliatory construc-
tive discharge. The district court decided, and the defen-
dant now argues, that Bannon’s claim for intentional
infliction of emotional distress was preempted by the
Illinois Human Rights Act (IHRA). Whether a state-law
tort claim is preempted depends on whether the IHRA
“furnish[es] the legal duty that the defendant was alleged
to have breached.” Naeem v. McKesson Drug Co., 444 F.3d
593, 604 (7th Cir. 2006). If the plaintiff ’s allegations
against the defendant implicate only a duty provided by
the IHRA, such as the duty of employers to refrain from
discriminating against employees on the basis of their
race or national origin, then the plaintiff ’s claim is pre-
empted. Id. In this case, Bannon’s primary allegation is
that Reilly caused her emotional distress by his use of
racial slurs. It is Reilly’s alleged breach of his duty under
the IHRA to refrain from discrimination that Bannon
claims caused her distress. It is true, as Bannon points
out, that her claims are not entirely based on Reilly’s
discriminatory behavior—so her claim may not be en-
tirely preempted. She also asserts that she was distressed
by being “frozen out” of her job duties and investigated
by Jones. In addition, it is possible to view Bannon’s
allegations against Reilly as being independent of any
duty imposed by the IHRA. For example, she could be
12 No. 06-2955
claiming that, regardless of his motivation, his hostile
attitude towards her and denigration of her intelligence
caused her distress. But this does not help Bannon since
the conduct she complains of—being excluded from some
meetings, being denied the responsibility of organiz-
ing meetings, being forced to attend a few unpleasant
sessions with Argonne’s general counsel that led to no
disciplinary action, and having a mean boss who some-
times told her she was stupid—does not qualify as “ex-
treme and outrageous” conduct. Rather it is the kind of
ordinary workplace stress that is not actionable. See
Graham v. Commonwealth Edison Co., 742 N.E.2d 858,
867-68 (Ill. App. Ct. 2000) (plaintiff ’s temporary reas-
signment and demotion were not extreme and outrageous;
investigations of employees undertaken for legitimate
purpose are not extreme and outrageous).
As for Bannon’s final claim, retaliatory constructive
discharge, the district court correctly concluded that
Illinois law does not recognize such a claim. See Fisher v.
Lexington Health Care, Inc., 722 N.E.2d 1115, 1121 (Ill.
1999); see also Thomas v. Guardsmark, Inc., 381 F.3d 701,
708 (7th Cir. 2004) (collecting cases).
C. Burton’s Title VII and State-Law Claims
1. Failure to Promote
Burton first contends that Reilly stymied her promotion
on account of her gender when he failed to ask her for her
references, thus ensuring that her application for promo-
tion would be incomplete. Burton attempts to prove this
claim under the indirect method. Therefore, she must
show that she is a member of a protected class, was
qualified for the promotion, was denied the promotion, and
that similarly situated employees outside the protected
class were treated more favorably. Perez, 488 F.3d at 776;
No. 06-2955 13
Pantoja v. Am. NTN Bearing Mfg. Corp., No. 06-1252, 2007
WL 2230095, *4 (7th Cir. Aug. 6, 2007) (suggesting
alternate manner of satisfying prima facie case). She
argues that a genuine issue of material fact exists about
whether she or Reilly was responsible for compiling her
references and whether Reilly ever asked her for refer-
ences. But even if we assume that Reilly was responsible
for compiling the references and never asked Burton for
them, she has still failed to establish the third and
fourth elements of the indirect method. First, she has
not shown that she was denied a promotion to senior
scientist because she cannot show that she even applied for
this promotion. Even if Reilly was responsible for compil-
ing Burton’s references, he could not do this until she told
him whom she wanted to serve as references. Yet Burton
does not deny that she failed to provide him with even this
minimal amount of information. Burton faults Reilly for
not asking for this information, but we do not see how his
failure to ask prevented Burton from submitting a com-
plete application. Argonne has submitted its policy on
promotions which clearly shows that references are
required for promotion to senior scientist. Burton does not
contest the accuracy of this document or seriously contend
that references were not required. Nor does she say that
Reilly misled her by telling her that this rule would not
apply to her. Therefore, she should not have needed a
request from Reilly to know that she had to give him at
least a list of references before her application for promo-
tion would be complete. Finally, Burton has not presented
evidence that Reilly took more initiative when compiling
references from male candidates for promotion.
2. Retaliatory Discharge
Burton’s claim that she was discharged in retaliation
for informing Reilly about questionable accounting prac-
14 No. 06-2955
tices is also without merit. To succeed on this claim, which
is brought under Illinois law, Burton must show that she
was discharged in retaliation for her activities and that the
discharge violates public policy. Hartlein v. Ill. Power Co.,
601 N.E.2d 720, 728 (Ill. 1992). If the employer offers a
legitimate, nondiscriminatory reason for the discharge, the
employee must show that the reason is pretextual. Gomez
v. The Finishing Co., 861 N.E.2d 189, 197-98 (Ill. App.
Ct. 2006). On appeal, Burton’s only argument is that
Argonne’s stated reason for firing her, her failure to report
her husband’s $56,000 worth of consulting work for an
Argonne vendor, was pretextual because Argonne’s con-
flicts policy by its terms does not apply to consulting fees.3
We do not think the terms of Argonne’s conflicts policy
establish pretext. First, contrary to Burton’s contention,
the conflicts policy can be read as applying to consulting
fees. In any case, Burton is essentially arguing that
Argonne erred in applying its conflicts policy to her
situation. Even if this were true, there is a difference
between a mistake and a lie. The fact that Argonne’s
3
In her reply brief, Burton also argues that Argonne’s stated
reason for her discharge was pretextual because in 1999 (three
years before Argonne investigated Burton’s conflict) Drucker
told her that there was no need to report conflicts involving
Argonne’s partners in a special program called QuickSite. Burton
says that ASW was a QuickSite partner, and thus it was disin-
genuous for Drucker to fire her for not reporting a conflict
with ASW when he had already told her that conflicts with
QuickSite partners like ASW did not have to be reported. This
argument is waived because it was not presented in Burton’s
opening brief. See United States v. Dabney, No. 06-2192, 2007 WL
2200481, at *4 (7th Cir. Aug. 2, 2007). In any case, this argument
also disregards the fact that, even if Drucker gave Burton mixed
signals about whether work for ASW presented a conflict,
Drucker’s initial decision to fire her was ultimately reviewed
and upheld by an independent committee of Argonne officials.
No. 06-2955 15
stated reason for firing Burton may have been mistaken
does not mean it was pretextual. See Miller v. J.M. Jones
Co., 587 N.E.2d 654, 661 (Ill. App. Ct. 1992) (question is
not whether employer treated employee fairly but whether
discharge was retaliatory).
In addition, Burton has presented no evidence to show
that Drucker knew that she had questioned Reilly about
accounting practices when he made the initial decision to
fire her. She makes a half-hearted attempt to suggest
that Reilly was the real decision-maker, in contradiction
to what both Reilly and Drucker said in their affidavits,
but she has not presented sufficient evidence to support
this allegation.
III. CONCLUSION
For the above reasons, we AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-01-07