Deborah Dear v. Eric Shinseki ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3728
D EBORAH D EAR,
Plaintiff-Appellant,
v.
E RIC K. S HINSEKI, Secretary of Veterans Affairs,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07 C 2366—Samuel Der-Yeghiayan, Judge.
A RGUED M AY 27, 2009—D ECIDED A UGUST 20, 2009
Before C UDAHY, R IPPLE, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Deborah Dear has an impressive
resume. She has a bachelor’s degree in nursing and a
master’s degree in nursing administration. She has
served as a nursing instructor at the City Colleges of
Chicago and Triton College, and has even prepared com-
bat medical support personnel during Operation Iraqi
Freedom. Sometimes, however, good qualifications and
performance in one setting do not translate into suc-
2 No. 08-3728
cessful performance as a manager in another. In her most
recent position as a Clinical Nurse Manager in the Emer-
gency Department of the Hines Veterans Affairs Hospital,
Dear clashed with her staff, physician colleagues, and
supervisors over a variety of issues.
Dear’s supervisors, Ruth Jennetten and Paula Steward,
temporarily and then permanently reassigned Dear to
lower-level staff nurse positions. They justified these
actions on the basis of Dear’s poor supervisory perfor-
mance and failure to address the problems they had
identified, but Dear believes that she was demoted
because of her race. She filed this lawsuit against the
Secretary of Veterans Affairs, bringing race discrimina-
tion, retaliation, and hostile work environment claims.
The district court granted summary judgment in favor
of the Secretary, and Dear now appeals. Because Dear
has failed to put forth sufficient evidence to allow her
claims to go forward, we affirm.
I
In February 2004, the Hines Veterans Affairs (“VA”)
Hospital’s Emergency Department (“the Department”)
hired Deborah Dear, an African-American woman, as a
Clinical Nurse Manager. Up until 2006, Dear was per-
forming adequately in this supervisory position, having
received a promotion and generally positive job evalua-
tions. In April 2006, Dear approached her direct super-
visor, Ruth Jennetten, and asked if she could convert a
certain part-time employee to full-time status. Jennetten
explained that this particular employee was ineligible for
No. 08-3728 3
conversion. Soon thereafter, Dear asked Jennetten if she
could fire the same employee, which struck Jennetten
as odd. She decided to investigate.
What she found was a Department in revolt. Several
Department staff members complained about Dear’s
supervisory deficiencies and threatened to walk off the
job if Dear continued to be their supervisor. Jennetten
personally witnessed Dear inappropriately discipline a
member of the staff, and Paula Steward, Dear’s second-
level supervisor, also noted Dear’s unusual denial of
annual leave that had been requested by a staff member
four to six months in advance. Perhaps as a result of
this treatment, the staff and emergency room physicians
rallied around the part-time employee who Dear wished
to fire. Dear conceded in her deposition testimony that
she had conflicts with various members of the Depart-
ment, and she gave several examples. She noted that in
January 2006, one Department physician, Bruce Guay,
wrote an open letter singling her out for her lack of assis-
tance during a crisis. Joe Volpe fought with Dear over
her effort to change his existing schedule, which had
been structured to allow him and his wife to be the sole
caregivers of their child. Barbara Bollenberg, a Depart-
ment nurse, directly sought Dear’s removal.
In response to this, Steward requested that Dear
compose a plan for improving the morale of the Depart-
ment and submit it to Steward in one and a half weeks.
Dear missed the deadline and eventually submitted a
report that addressed only one of the problems
Steward had identified. Believing that the situation was
4 No. 08-3728
potentially harmful to the patients, Jennetten sent Dear
a memorandum on June 1, 2006, notifying her that she
was being temporarily reassigned to a staff nurse posi-
tion in the Telephone Care Program. Because this position
did not have supervisory responsibilities, Dear suffered
a two-step decrease in her salary.
Dear met with Jennetten and Steward the following day.
They explained to her that the VA was taking this
action because of her lack of supervisory skills, the numer-
ous complaints in the Department about her, and her
failure to come up with a plan to address the situation.
At some point during the conversation, Jennetten also
made the following remark, which Dear repeated in
her deposition testimony:
You need to change. I’m just—if I can just give you
this advice, you can take it whichever way you want.
You need to change your voice and you need to change
your facial expressions.
After Dear’s demotion, Gail Speer, a white nurse who was
not as qualified as Dear for the post, replaced her on an
interim basis.
On June 29, 2006, Dear contacted the EEO counselor
within the VA’s Office of Resolution Management. After
an investigation, EEO counselor Thurman Story com-
pleted a report on July 12, 2006, in which he sum-
marized interviews of Dear, Jennetten, and Steward.
Two days later, Jennetten informed Dear that her tempo-
rary reassignment would end on August 6, 2006. Jennetten
offered her three open, non-supervisory staff nurse posi-
tions for permanent reassignment. Dear responded nega-
No. 08-3728 5
tively in a memorandum dated July 18, 2006, that the
three open positions would cause her hardship because
of her family caregiving responsibilities; she requested
alternatives that would allow her to keep her existing
schedule. On that date, Dear also filed a formal adminis-
trative EEO complaint alleging racial discrimination for
the temporary reassignment. Eight days later, Jennetten
informed Dear that in light of her failure to select one
of the three open positions, she was being permanently
reassigned to a staff nurse position in the Resident Care
Facility Unit. Dear then amended her EEO complaint to
include additional claims of racial discrimination and
retaliation for the permanent reassignment.
Dear eventually filed this lawsuit in April 2007,
alleging racial discrimination, retaliation, and a hostile
work environment in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. At the close
of discovery, the Secretary moved for summary judg-
ment, which the district court granted. Dear timely ap-
pealed.
II
As a threshold matter, we must determine which of
Dear’s claims are before us. There is no question about
Dear’s race discrimination and retaliation claims, but
the Secretary contends (and the district court found) that
the hostile work environment claim is barred because
it exceeds the scope of Dear’s administrative complaint.
This court considers a theory raised in court to fall within
the scope of an administrative complaint if it is rea-
6 No. 08-3728
sonably related to the charges actually set forth in the
administrative filing. In other words, as we explained in
a related setting, “the [administrative] charge and the
[court] complaint must describe the same conduct and
implicate the same individuals.” Ezell v. Potter, 400 F.3d
1041, 1046 (7th Cir. 2005). That is the case here. Dear’s
hostile work environment claim implicates the same
conduct (e.g., Jennetten’s comments to Dear, Dear’s reas-
signments) and the same people (e.g., Department staff
and Dear’s supervisors, Jennetten and Steward) as her
other claims. As a result, it is properly before us.
A
Dear’s first contention is that the VA discriminated
against her on the basis of her race when it demoted her to
a staff nurse position. While her brief is not clear on
whether she is pursuing the direct or indirect method of
proof, at oral argument counsel for Dear clarified that
this is an “indirect case.” This is wise, as there is insuf-
ficient evidence to proceed on a direct theory. The only
evidence that Dear describes as direct is Jennetten’s
remark to Dear that she needed to change her tone of
voice and facial expressions; this statement, even if it was
delivered in a snippy or condescending way, has no
plausible connection to Dear’s race. It could have been
said to an employee of any race who was having trouble
supervising staff, and there is plenty of evidence in
the record that Dear was having difficulty in her rela-
tionships with the staff and physicians in the Department.
No. 08-3728 7
Under an indirect theory, Dear must put forward a prima
facie case by establishing that (1) she is a member of a
protected class; (2) her job performance met her em-
ployer’s legitimate expectations; (3) she was subject to a
materially adverse employment action; and (4) the em-
ployer treated similarly situated employees outside the
protected class more favorably. Ballance v. City of Spring-
field, 424 F.3d 614, 617 (7th Cir. 2005). Both sides accept
that Dear is in a protected class on the basis of her race
and that her reassignment to a staff nurse position with
less pay was an adverse employment action. The parties
dispute whether Dear was meeting legitimate expecta-
tions and whether she has identified a similarly situated
employee.
When considering whether an employee is meeting an
employer’s legitimate expectations, this court looks to
whether she was performing adequately at the time of the
adverse employment action. Hong v. Children’s Memorial
Hosp., 993 F.2d 1257, 1262 (7th Cir. 1993). Dear relies
heavily on her credentials, work experience, and previous
positive job evaluations as a Clinical Nurse Manager.
While these indicators can be relevant to the question
whether an employee is meeting legitimate expectations,
they cannot “demonstrate the adequacy of performance
at the crucial time when the employment action is taken.”
Fortier v. Ameritech Mobile Communs., 161 F.3d 1106, 1112
(7th Cir. 1998). The record reveals that, at the time of the
demotion, there were concrete reasons to think that
Dear’s supervisory performance was lacking, and Dear
failed to comply with her own supervisor’s order that
she compose a plan to deal with the resulting low morale
8 No. 08-3728
in her department. We thus agree with the district court
that Dear has failed to demonstrate that she was
meeting the VA’s legitimate expectations.
Even if she could show that she was performing at the
required level, Dear would still have to point to a
similarly situated employee who was directly comparable
in all material respects. In deciding whether someone is
comparable for this purpose, we consider all relevant
factors, including whether the employee (1) held the
same job description; (2) was subject to the same
standards; (3) was subordinate to the same supervisor;
and (4) had comparable experience, education, and other
qualifications. Bio v. Fed. Express Corp., 424 F.3d 593,
597 (7th Cir. 2005).
While Dear does not clearly identify in her brief who
she thinks is the best comparator, we see several possible
candidates in this record. Dear cited Pat Reiman in her
deposition and discussed Terri Michovich in an exhibit
contained in her summary judgment documents. At oral
argument, Dear’s counsel pointed to Dear’s interim
replacement, Gail Speer, as the similarly situated em-
ployee. Unfortunately for Dear, none of these people
passes the test. Reiman was a low-level clerical employee
who had no supervisory responsibilities and thus was
employed in a totally different capacity than Dear. Terri
Michovich, a white Clinical Nurse Manager who had
unsatisfactory performance evaluations, yet who did not
suffer a demotion, might be a plausible candidate. But
Dear cannot rely on her, because the record does not
reveal enough about the nature of Michovich’s unsatis-
No. 08-3728 9
factory performance or whether the VA requested that
Michovich provide a plan for improvement and, if so,
whether or not she complied. Finally, Dear has not pro-
vided any information about Speer’s performance, and it
is unlikely that an interim replacement could be con-
sidered similarly situated to a permanent employee. It
is the plaintiff’s burden to put forth evidence of employees
outside of the protected class who might have been
treated differently, but Dear has failed to do so. The
district court was correct to grant summary judgment
on Dear’s race discrimination claim.
B
Dear also alleges that she suffered retaliation (in the
form of her second reassignment) as a result of exploring
EEO remedies. Under the indirect method of proof, Dear
must show more or less the same four things that the
race discrimination claim required. The only exception is
that the first element calls on her to show that she
engaged in a statutorily protected activity, and the last
requires evidence that similarly situated employees
who did not engage in that protected activity were
treated more favorably. Sitar v. Ind. DOT, 344 F.3d 720, 728
(7th Cir. 2003). Both parties agree that Dear engaged in
statutorily protected activity by seeking administrative
remedies and that she suffered an adverse employment
action. But, just as with her race discrimination claim,
she has not introduced enough evidence to reach a jury
on the questions whether she was performing her job
satisfactorily and whether a similarly situated person
10 No. 08-3728
received better treatment. As a result, her retaliation
claim also cannot withstand summary judgment.
C
To pursue a hostile work environment claim, Dear
must prove (1) that her work environment was both
objectively and subjectively offensive; (2) that the harass-
ment was based on her membership in a protected class;
(3) that the conduct was either severe or pervasive; and
(4) that there is a basis for employer liability. Cerros v.
Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002). Dear’s
best evidence for this claim boils down to Jennetten’s
statements to her as well as allegations that her problems
in the Department derived from white staff, colleagues,
and supervisors. Nor can Jennetten’s statements to Dear
be objectively construed as racist. Finally, Dear’s conten-
tion that only white VA employees were causing her
problems is not supported by the record. For example,
Steward, Dear’s second-level supervisor, is African-
American. In light of the lack of evidence indicating that
the work environment was hostile for African-Americans,
the district court was correct to grant summary judg-
ment on this claim as well.
* * *
For these reasons, we A FFIRM the judgment of the
district court.
8-20-09