Steinhauer, Robert v. DeGolier, Laura ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1142
ROBERT STEINHAUER,
Plaintiff-Appellant,
v.
LAURA DEGOLIER and STATE OF WISCONSIN,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02-C-0280C—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 4, 2003—DECIDED FEBRUARY 24, 2004
____________
Before FLAUM, Chief Judge, and EASTERBROOK and MANION,
Circuit Judges.
MANION, Circuit Judge. After Laura DeGolier, the
executive director of the Wisconsin Conservation Corps,
fired Robert Steinhauer, he sued DeGolier under 42 U.S.C.
§ 1983 and the State of Wisconsin under Title VII for sex
discrimination. The district court granted the defendants
summary judgment, concluding that Steinhauer failed to
present sufficient evidence of sex discrimination under
either the direct or indirect method. Steinhauer appeals. We
affirm.
2 No. 03-1142
I.
In 1983, the Wisconsin State Legislature created the
Wisconsin Conservation Corps (“WCC”). The WCC’s
mission is to employ young adults in projects involving re-
source conservation. In February 1999, then-Governor
Tommy Thompson appointed Laura DeGolier to head the
WCC as its executive director. DeGolier later hired Eileen
Stevens to serve as the human resources coordinator.
In turn, Stevens recommended that DeGolier hire Robert
Steinhauer. DeGolier accepted Stevens’ recommendation
and, on June 12, 2000, hired Steinhauer as a personnel
assistant. Steinhauer’s primary duties were to assist with the
employment and supervision of WCC enrollees and to
provide enrollee support and training.
After he was hired, Steinhauer apparently did not mesh
well with Stevens and DeGolier. He was not the only one to
butt heads with the two: It seems that DeGolier’s approach
to management was far different from that of her predeces-
sor. DeGolier exerted more authority and took a much more
hands-on approach, and she often belittled staff members
and criticized the way they had done things in the past.
Stevens’ support of DeGolier also rubbed the WCC staff the
wrong way, and over the next year or so several WCC
staffers left or were terminated. Steinhauer was one of the
staff members who were fired; DeGolier fired him the day
before his probationary period ended, claiming that she did
so after Stevens complained that she could no longer work
with Steinhauer. After he was fired, Steinhauer sued
DeGolier under 42 U.S.C. § 1983 and the State under Title
VII for sex discrimination.
Following extensive discovery, the defendants moved for
summary judgment. Steinhauer argued that he presented
sufficient direct and circumstantial evidence of sex discrimi-
nation under the direct method to withstand summary
No. 03-1142 3
judgment. Specifically, Steinhauer pointed to various com-
ments allegedly made by Stevens and DeGolier evincing
an anti-male bias; two cartoons published in a weekly news-
letter which made fun of men; allegations of incidents
where Steinhauer’s duties were altered; conversations
Stevens and DeGolier had with another WCC staffer con-
cerning their divorces; the fact that five men left during
DeGolier’s tenure at the WCC; and DeGolier’s alleged com-
ments that she wanted to replace the male project team
leaders.
The district court reviewed this referenced evidence and
concluded that it failed to create a reasonable inference
of sex bias and thus did not support a claim of sex discri-
mination under the direct method. The district court also
rejected Steinhauer’s attempt to establish discrimination
under the indirect McDonnell-Douglas method because the
WCC replaced Steinhauer with a man, and therefore he
could not establish a prima facie case of discrimination.
Accordingly, the district court granted the defendants sum-
mary judgment. Steinhauer appeals.
II.
On appeal, Steinhauer argues that the district court erred
in granting the defendants summary judgment. Summary
judgment is appropriate if there are no genuine issues of
material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c). Our review of a de-
cision on summary judgment is de novo. Haugerud v. Amery
Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001).
To avoid summary judgment on his sex discrimination
claims, Steinhauer must present facts from which a reason-
able juror could find that the defendants terminated him
because of his sex. Markel v. Board of Regents of Univ. of Wis.,
4 No. 03-1142
276 F.3d 906, 910 (7th Cir. 2002). This applies under both
Title VII and Section 1983. Friedel v. City of Madison, 832 F.2d
965 (7th Cir. 1987) (“When the plaintiff alleges intentional
discrimination . . . it is clear that the same standards in
general govern liability under sections 1981, 1983, and Title
VII.”). There are two methods of proof available to
Steinhauer—the indirect method and the direct method.
Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003).
Steinhauer relies on both, which we consider in turn below.
A. Indirect Method
Steinhauer contends that he presented sufficient evidence
under the indirect method to avoid summary judgment.
Under the McDonnell-Douglas indirect method, the plaintiff
must establish a prima facie case of discrimination. The
burden then shifts to the employer to articulate a legitimate
non-discriminatory reason for its employment action. At
this point, the employer is entitled to summary judgment
unless the claimant can present sufficient evidence that the
employer’s proffered reason is a pretext for discrimination.
See Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir.
1999).
To establish a prima facie case, Steinhauer must show
(1) he was a member of a protected class; (2) he was quali-
fied for the position; (3) he was fired; and (4) he was re-
placed by a woman, or that a similarly situated woman was
treated more favorably. See Mills, 171 F.3d at 454. The first
element is really a non-issue because everyone is male
or female. The third element is also clear as Steinhauer
was terminated from his employment. The defendants,
however, claim that Steinhauer was not qualified for the
position (the second element) and that he failed to establish
that he was replaced by a woman or that a similarly situated
No. 03-1142 5
woman was treated more favorably (the fourth element).
Because, as discussed below, Steinhauer’s case clearly falters
on the fourth element, we need not decide whether he was
sufficiently qualified for the position.
In this case, DeGolier replaced Steinhauer with anoth-
er man, Chan Voeltz. Therefore Steinhauer cannot establish
the final element of the prima facie case by establishing that
1
he was replaced by a woman. Steinhauer also attempts to
establish the fourth element of the prima facie case by
pointing to allegedly disparate treatment involving a female
co-worker, Michelle Purifoy. In this regard, Steinhauer
claims that he was fired for having a private conversation
with Purifoy, but the fact that she was not terminated
1
Steinhauer attempts to establish that he was not replaced
by Chan Voeltz, claiming that Voeltz did not perform all of the
same functions as Steinhauer had. In support of his position,
Steinhauer points to the deposition testimony of a former co-
worker, Donald Hammes. In his deposition, Hammes stated
that in his opinion Voeltz did not replace Stenhauer, “[a]t least
not in the sense that Chan did the three jobs [Steinhauer had
performed].” However, Hammes’ testimony was without foun-
dation, as he was not in the position to know the appropriate
responsibilities of the various employees. Moreover, in his dep-
osition Hammes qualified his statement by saying: “[Voeltz] was
hired as far as I know to do purely human resource work. . . .”
Moreover, Hammes admitted in his deposition that Stevens had
told Chan that he would be doing some projects work, some
training work, and that he would be getting out in the field more.
This contradicted Hammes’ testimony that Voeltz was hired “as
far as I know to do purely human resource work. . . .” Con-
versely, the defendants presented clear evidence that DeGolier
hired Voeltz on January 14, 2001 to fill Steinhauer’s position, and
Hammes’ speculative and inconsistent deposition testimony fails
to create a genuine factual dispute on this issue.
6 No. 03-1142
establishes the fourth prong of the prima facie case.
DeGolier admits that she decided to fire Steinhauer in part
because he had met with Purifoy. The defendants also admit
2
that Purifoy was not fired as a result of that meeting.
However, Purifoy and Steinhauer were not similarly
situated because Steinhauer was still on probation while
Purifoy was not. See Spath v. Hayes Wheels Int’l-Indiana, Inc.,
211 F.3d 392, 397 (7th Cir. 2000) (holding that comparable
employees must be similarly situated “in all respects”) (in-
ternal citation omitted); Bogren v. Minnesota, 236 F.3d 399,
405 (8th Cir. 2000) (probationary state trooper not similarly
situated to non-probationary state trooper); McKenna v.
Weinberger, 729 F.2d 783, 789 (D.C. Cir. 1984) (female proba-
tionary employee not similarly situated to male permanent
employee). Thus, Steinhauer cannot establish the fourth
element by pointing to Purifoy’s continued employment,
and his case fails under the indirect McDonnell-Douglas
3
burden-shifting approach.
2
Apparently when DeGolier took over at the WCC, she believed
employees spent too much time visiting with each other and
attempted to reform the work ethic of the employees.
Also, according to DeGolier, Steinhauer would question other
employees about things unrelated to his job, and some of the
employees complained about Steinhauer intimidating them.
For these reasons, DeGolier directed the employees not to meet
with each other. Although there is some dispute as to who com-
plained about Steinhauer, and the extent of the complaints, that
factual dispute is immaterial because Steinhauer failed to estab-
lish a prima facie case of sex discrimination.
3
Because Steinhauer failed to present a prima facie case of sex
discrimination, the burden never shifts to the defendants to
present a non-discriminatory reason for his discharge. Accord-
ingly, any claim of pretext by Steinhauer is irrelevant. Thus,
(continued...)
No. 03-1142 7
B. Direct Method
Steinhauer also attempts to establish sex discrimination
under the direct method. To avoid summary judgment un-
der the direct method, Steinhauer must present sufficient
direct or circumstantial evidence to create a reasonable
inference that he was fired because of his sex. Volovsek
v. Wisconsin Dept. of Agr., Trade & Consumer Prot., 344
F.3d 680, 689 (7th Cir. 2003). In this case, Steinhauer points
to numerous facts and comments which he believes con-
stitute direct and circumstantial evidence of sex discrimina-
tion. However, as discussed below, the record does not
support Steinhauer’s position.
First, many of the facts Steinhauer points to provide no
insight as to DeGolier’s motivation at all, much less indicate
that she discriminated against him because of his sex. For
instance, Steinhauer claims that DeGolier’s hiring of some-
one else to make a presentation at a crew leader workshop,
removing him from recruiting trips, and requiring him to
make his own travel arrangements constitutes circumstan-
tial evidence of sex discrimination. But to say that this is
evidence of sex discrimination begs the question of why
DeGolier altered Steinhauer’s job responsibilities; the
change by itself provides no evidence of motivation, much
less evidence that DeGolier terminated Steinhauer because
(...continued)
although Steinhauer claims there is an issue of fact as to whether
his co-workers complained about him, that is irrelevant because
such facts relate to the question of pretext, which this case does
not reach since Steinhauer failed to establish a prima facie case.
8 No. 03-1142
4
of his sex. And for Steinhauer to claim that DeGolier made
these decisions because of his sex is mere speculation which
cannot defeat summary judgment. See, e.g., Mills v. First
Federal Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 841-42 (7th
Cir. 1996).
Similarly misplaced is Steinhauer’s reliance on the fact
that DeGolier made negative comments about certain male
employees, calling one a “little Hitler”; that she raised her
voice at certain male employees; that she continually put
down several male employees; and that five males left the
WCC or were terminated. Again, this evidence begs the
question of why she criticized and put down the men, and
why they left WCC. Although Steinhauer believes it was the
result of sex discrimination, there is no evidence in the
record to support this assertion, and his claims are once
again based on speculation and thus insufficient to avoid
summary judgment. Mills, 83 F.3d at 841-42. Moreover,
the record demonstrates that DeGolier also criticized and
belittled females working in the office, and that female
subordinates also left the WCC during DeGolier’s tenure
because of her management style. Additionally, DeGolier
hired males as replacements for some of the former WCC
workers. Without some evidence indicating that sex mo-
tivated DeGolier’s management style and the discharge
4
Steinhauer does not claim that any of these changes constituted
an adverse employment action supporting a separate claim of
discrimination. See, e.g., Traylor v. Brown, 295 F.3d 783, 788 (7th
Cir. 2002) (noting that Title VII prohibits employers from
discriminating against employees with respect to the “terms,
conditions or privileges of employment,” which requires the
employee to show that he suffered a materially adverse employ-
ment action). Rather, Steinhauer relies on these alleged changes
as proof that he was fired due to his sex.
No. 03-1142 9
(constructive or otherwise) of these other individuals, the
fact that DeGolier raised her voice and criticized some male
employees and that they later left the WCC does not create
a reasonable inference of sex discrimination.
Steinhauer next argues that “DeGolier made it very clear
that she wanted to get rid of the men on the projects
teams . . . [and] that it was her intent that females control
WCC.” Steinhauer claims these statements create an infer-
ence of sex discrimination. However, a review of the record
demonstrates that the project department consisted of all
men. Thus, DeGolier’s alleged statement that she wanted to
get rid of the men on the projects teams does not indicate an
intent to discriminate against men in general, but to termi-
nate certain of the individuals serving as project team
leaders, all of whom were men. Similarly, a review of the
record demonstrates that as to DeGolier’s supposed intent
to have females control the WCC, what Steinhauer actually
said in his deposition was: “[DeGolier] made it very clear
that she had a time line to which she would be working
with the organization and when that was done and until
a successor was named she was going to pick Eileen
[Stevens] . . . to lead because there’s no way she was going
to allow the men in the projects to take it over.” Again,
only men served in the projects department, and the record
indicates that DeGolier found their work unacceptable.
Thus, her not wanting those individuals to take over does
not indicate an anti-male hostility, nor does her alleged
intent to have Stevens as the successor. It merely indicates
a preference for a specific individual, who happens to be a
5
female.
5
In addition to Steinhauer’s statement about DeGolier’s alleged
intent, he cites to an affidavit from former co-worker Rebecca
(continued...)
10 No. 03-1142
These facts are analogous to those in Mills, 83 F.3d at 833.
In Mills, in support of her age discrimination claim, Mills
stated in an affidavit that a supervisor had told her “that
management was out to get rid of me and [another em-
ployee], the two oldest employees at the time. Mr. Silver
mentioned something about management’s concern that we
may not be able to keep up with the regulations. I took this
to mean it was because of our age.” Id. at 841. We concluded
in Mills that the latter two statements made clear that it was
Mills who perceived an age-related edge to Silver’s state-
ment that they intended to get rid of her and her co-worker.
Id. Similarly, in this case, it is Steinhauer who added the sex-
based characterization to DeGolier’s motivation behind
replacing the project leaders. This is the only reasonable
interpretation of her statement—that she wanted to replace
those individuals—given that the record indicates DeGolier
butted heads with the project leaders and was dissatisfied
with their performance, and that she hired a man to replace
one of the project leaders.
Other statements Steinhauer points to are likewise un-
helpful. For instance, he points to the fact that DeGolier
used the word “guys” and the phrase “good old boys’
(...continued)
Kemp: “Ms. DeGolier told me explicitly that it was her ‘intent’ to
turn around the male power structure so that females would
control the organization.” In the context of the rest of the record,
this statement would seem to be related to DeGolier’s clear intent
to rid the WCC of those serving as project leaders (all of whom
were men) and put Stevens (a woman) temporarily in charge, as
opposed to a statement of discriminatory intent. However, even
if this statement created an inference that DeGolier intended to
promote women to leadership positions, it is unrelated to
Steinhauer’s firing because he served as a low-level assistant and
was not part of the “power structure.”
No. 03-1142 11
club.” DeGolier explained that she used “guys” to refer to
both men and women. And that she used “good old boys’
club” to refer to those (both men and women) entrenched in
the former ways of the WCC. But even assuming she used
those terms to refer only to men, there is nothing inherently
anti-male about those phrases, and their use in no way
creates a reasonable inference that sex motivated an em-
ployment decision, any more than the use of “gals” or
“good old girls’ club” would indicate an anti-female ani-
mus. See DeLoach v. Infinity Broadcasting, 164 F.3d 398, 403
(7th Cir. 1999) (reference to old boys’ network does not
indicate age animus, but rather is a comment about those in
power). Similarly, the fact that DeGolier referred to one of
the men as a “pompous male” does not seem to indicate a
sex bias but a bias against pompous subordinates, but in
any event, this comment was not made to Steinhauer and
was made in passing, and also is unrelated to any employ-
ment decision. Curry v. Menard, Inc., 270 F.3d 473, 477 (7th
Cir. 2001) (inappropriate remarks not directed at employee
are not direct evidence of discrimination); Indurante v. Local
705, Intern. Broth. of Teamsters, AFL-CIO, 160 F.3d 364, 367
(7th Cir. 1998) (stray remarks not related to the disputed
employment action are not direct evidence of discriminatory
intent).
Next, Steinhauer points to the fact that DeGolier includ-
ed in her weekly newsletter two jokes making fun of men:
“Give a man a fish and he will eat for a day. Teach him how
to fish, and he will sit in a boat and drink beer all day.” And
“The surest way to make a monkey out of a man is to quote
him.” These two jokes do not demonstrate an anti-male
animus related to employment, but instead merely portray
common humor that could be expressed in almost any
setting. Moreover, as the record demonstrates, these were
but two of the many digs taken over approximately two
years, with other newsletters making fun of lawyers, doctors
12 No. 03-1142
and police officers. Likewise, DeGolier’s alleged musings
that women are part of a super-human group which men
are not qualified to join, and that men are silly and not as
smart as women, while trite, are inconsequential in this
context. If the same comment substituted women as the
object of ridicule, it would be similarly insignificant in
demonstrating that an employer discriminated against
someone because of sex. These inane comments do not
constitute sufficient evidence of anti-male bias to create an
issue of fact as to DeGolier’s motivation for firing
Steinhauer.
Steinhauer next points to several conversations DeGolier
had with two other employees—Decker and Stevens—
about their divorces, and negative comments they made
during these vent sessions about their ex-husbands. He also
focuses on a statement DeGolier made to Decker during one
such conversation to the effect that Decker was weak and
that men prey on weak women. No doubt it is the rare case
when a conversation about an ex-spouse is complimentary.
And the comment about Decker says a lot more of
DeGolier’s negative opinion of Decker than it does of men
in general. These personal conversations, while inappropri-
ate in a working environment, were just that— personal
conversations about the women’s dissatisfaction with their
marriages and their husbands, the resulting divorces, and
the continuing problems they were having with their ex-
husbands. Similarly, comments DeGolier allegedly made
that she had her skirts shortened to have her way with men
and that one of the project leaders was “led by his penis,”
while clearly inappropriate, do not reasonably create an
inference that DeGolier harbored a general anti-male bias,
much less an anti-male bias in the professional arena.
Moreover, Steinhauer has failed to show a connection
between any of these conversations and DeGolier’s employ-
ment decisions. Hong v. Children’s Memorial Hospital, 993
No. 03-1142 13
F.2d 1257, 1266 (7th Cir.1993) (alleged discriminatory
remarks, when unrelated to the employment decision in
question, are not evidence that employer relied on illegiti-
mate criteria); Smith v. Firestone Tire and Rubber Co., 875 F.2d
1325, 1330 (7th Cir.1989) (same); Oest v. Illinois Dep’t
of Corrections, 240 F.3d 605, 611 (7th Cir. 2001) (comments
must be more than the random office banter or stray remark
to constitute proof of discriminatory intent); Schaffner v.
Glencoe Park Dist., 256 F.3d 616, 622-23 (7th Cir. 2001)
(same); Fuka v. Thomson Consumer Electronics, 82 F.3d 1397,
1403-04 (7th Cir. 1996) (plaintiff must show remarks related
to employment decision).
Moreover, even if these comments were sufficient to cre-
ate an inference of an anti-male bias, to avoid summary
judgment Steinhauer must still present sufficient evidence
that would allow a reasonable jury to find that the defen-
dants discriminated against him because of his sex, and the
record, as a whole, prevents such a finding. See Palucki v.
Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989). See
also Rogers, 320 F.3d at 753. Rather, the record shows that
Steinhauer was hired less than six months before his termi-
nation by DeGolier, based on Stevens’ recommendation, and
that the same two individuals later decided to fire him.
Under these circumstances, it is unreasonable to infer that
DeGolier and Stevens decided to terminate Steinhauer
based on his sex since they had just decided to hire him
notwithstanding his sex. E.E.O.C. v. Our Lady of the
Resurrection, 77 F.3d 145, 152 (7th Cir. 1996); Roberts v.
Separators, Inc., 172 F.3d 448, 452 (7th Cir. 1999); Ritter v. Hill
’N Dale Farm, Inc. 231 F.3d 1039, 1044 (7th Cir. 2000). This is
especially true since Steinhauer was replaced by a man.
Apparently the man who replaced him, Voeltz, was part of
the DeGolier-Stevens fan club and was willing to follow
their agenda rather than his own. In fact, the record as a
whole makes clear that what was motivating DeGolier and
14 No. 03-1142
Stevens was not sex, but on which side of the power
struggle various employees fell. Those on DeGolier and
Stevens’ side fared well; those—both men and women—
sticking to their former ways and battling the new manage-
ment had problems, thus explaining DeGolier’s comments
about the “good old boys” and ridding WCC of those run-
ning the projects department. As a whole, the record does
not contain sufficient evidence to create a reasonable in-
ference of sex discrimination, and accordingly summary
judgment was appropriate.
III.
In sum, Steinhauer failed to present sufficient evidence to
establish a prima facie case of sex discrimination because he
failed to show that he was replaced by a woman or that a
similarly situated female was treated more favorably.
Steinhauer also failed to create a reasonable inference of sex
discrimination under the direct method, as the evidence he
presented did not establish directly or circumstantially that
his termination was motivated by his sex. Moreover, the
record as a whole negates any reasonable inference of sex
discrimination where the various people testifying make
clear that DeGolier had problems with both men and
women subordinates, and hired and fired both, including
Steinhauer. For these and the foregoing reasons, we AFFIRM.
No. 03-1142 15
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-24-04