Barricks, Lena C. v. Eli Lilly & Company ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3771
LENA C. BARRICKS,
Plaintiff-Appellant,
v.
ELI LILLY AND COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division at Lafayette.
No. 4:03-CV-0092—Allen Sharp, Judge.
____________
ARGUED DECEMBER 11, 2006—DECIDED APRIL 4, 2007
____________
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Alone among the thirty or so
employees in her department, Lena Barricks did not
receive a raise in 2003. Barricks, who had worked as a
chemical operator at Eli Lilly and Company (“Lilly”) since
1977, thought that discrimination was behind this, so
after retiring in 2004 she sued her former employer for
age and gender discrimination. The district court granted
summary judgment to Lilly and Barricks appeals. Because
Barricks cannot show that Lilly’s stated reason for de-
clining to give the raise—her performance—is a pretext
for discrimination, we affirm the judgment of the district
court.
2 No. 05-3771
I. BACKGROUND
Lilly employs a somewhat involved methodology to
determine which employees in Barricks’s department
should receive raises (or “merit increases” as Lilly calls
them). In response to interrogatories and through the
testimony of the department’s human resources repre-
sentative, Lilly explained that the process begins with the
employee’s performance evaluation from the previous
year, which is determined by the shift supervisor with
limited input from other members of management. The
evaluation includes a number from one (lowest) to five,
which is fed into a computer algorithm along with infor-
mation about the employee’s current salary level and the
overall budget for raises. The computer produces for each
employee a “range of allowable merit increases”—for
instance, between $50 and $100 per month—from which
the shift supervisor, the human resources manager, and
the department head decide on a raise. They begin with
the range midpoint—$75 in the above example—and give
exemplary employees raises toward the high end of the
range, and weaker employees raises toward the low end,
offsetting any dollar amounts above the midpoint with
lower-than-midpoint raises. In other words, if the hypo-
thetical employee with a midpoint of $75 received a raise
of $80 per month, the $5 per month “deficit” above the
midpoint would be offset by giving another employee a
raise $5 below that employee’s midpoint. Beginning in
2002, the department also instituted an unwritten policy
of declining to give raises of $20 per month or less, because
of what the human resources manager called an “insult
factor”—an employee might prefer no raise at all to a
very small one.
The present lawsuit is confined to Lilly’s decision not
to give Barricks a raise in 2003. In her performance
evaluation for 2002, upon which the decision was largely
based, she received an overall rating of two out of five.
No. 05-3771 3
(Lilly stated in response to Barricks’s administrative
complaint that it was “a low level 2 performance”—in other
words, just above a one.) The evaluation summary notes
four “hits,” such as the fact that she had no infractions
during the year and trained new chemical operators, and
four “misses,” including a need to focus on computer and
communication skills. The evaluation also listed three
satisfactory “performance behaviors,” but four where
improvement was needed, including “create external
focus,” “anticipate changes and prepare for the future,”
and “achieve results with people.” The evaluation noted
that based on her review, Barricks was eligible for a
raise but a disclaimer stated that she was not guaran-
teed one.
The computer produced a range between $0 and $30 per
month for Barricks’s raise. Based on her low evaluation,
her high pay grade level (34 out of a possible 36 for her
position), the need to offset other raises above employees’
midpoints, and the $20 de minimis policy, Barricks’s
supervisors did not give her a raise for 2003. Barricks
testified in a deposition that in her twelve years as a
senior chemical operator, she had received a raise six
times. She filed suit but the district court granted sum-
mary judgment to Lilly on unspecified grounds, and
this appeal followed.
II. ANALYSIS
It is said that you can find a statistic to prove anything.
In Lilly’s view of the case, four of the five women in
Barricks’s department received raises for 2003, as did ten
of the eleven employees over age fifty. But Barricks points
out that none of the four women received raises above
their midpoints, while many of the male employees did. On
the other hand, the four women received performance
ratings of three, and a raise below the midpoint was
4 No. 05-3771
common for the men with threes. Depending on the
statistic under consideration, discrimination was either
perfectly obvious or utterly nonexistent.
We have frequently discussed the dangers of relying
on raw data without further analysis or context in em-
ployment discrimination disputes. See Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 491-92 (7th Cir. 2007);
Hill v. Stoughton Trailers, LLC, 445 F.3d 949, 951-92 (7th
Cir. 2006); Radue v. Kimberly-Clark Corp., 219 F.3d 612,
616, 619 (7th Cir. 2000). So, rather than play the numbers
game, we review the district court’s decision within the
McDonnell Douglas burden-shifting framework, by which
Barricks has elected to attempt to prove discrimination
indirectly. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973). Under this familiar approach, Barricks
must first make out a prima facie case of discrimination by
showing that (1) she is a member of a protected class; (2)
her performance met her employer’s legitimate expecta-
tions; (3) despite this performance, she was subjected to an
adverse employment action; and (4) her employer treated
similarly situated employees outside of the protected class
more favorably. Ptasznik v. St. Joseph Hosp., 464 F.3d 691,
696 (7th Cir. 2006). If she succeeds, the burden shifts to
the employer to articulate a legitimate, nondiscriminatory
reason for its decision, which the plaintiff can then attack
as a pretext for discrimination. Id. This approach applies
to claims of gender discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), as well
as claims under the Age Discrimination in Employment
Act of 1967, 29 U.S.C. § 623. Raymond v. Ameritech Corp.,
442 F.3d 600, 610 (7th Cir. 2006). We review the district
court’s grant of summary judgment de novo. Jackson v.
County of Racine, 474 F.3d 493, 498 (7th Cir. 2007).
Lilly concedes that as a woman over the age of forty,
Barricks is a member of protected classes, and that she
No. 05-3771 5
was meeting the company’s expectations. (Her ratings
were low, but they were not unacceptable, it says.) Lilly
also does not dispute that the denial of a raise—as opposed
to missing out on something more transient, like a
bonus—qualifies as an adverse employment action. See
Farrell v. Butler Univ., 421 F.3d 609, 614 (7th Cir. 2005);
Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014,
1030 (7th Cir. 2003); Hunt v. City of Markham, 219 F.3d
649, 654 (7th Cir. 2000). That leaves the fourth factor,
whether similarly situated employees who were not
members of the protected class were treated more favor-
ably. The “similarly situated” test is a flexible, common-
sense inquiry whose requirements vary from case to
case. Humphries v. CBOCS West, Inc., 474 F.3d 387, 404-
05 (7th Cir. 2007). Its purpose is to determine whether
there are enough common factors between a plaintiff and
a comparator—and few enough confounding ones—to allow
for a meaningful comparison in order to divine whether
discrimination was at play. Id. at 406; see also Keri v. Bd.
of Trs. of Purdue Univ., 458 F.3d 620, 644 (7th Cir. 2006)
(plaintiff must demonstrate that there is someone di-
rectly comparable in all material respects).
Barricks’s claim of age discrimination fails at this
point in the analysis. She makes no attempt to point to a
younger employee who was similarly situated and re-
ceived more favorable treatment, and instead relies on
the fact that everyone besides her got a raise. The record
does not disclose the age of most of the other employees, so
it is impossible to know whether or not they are members
of her protected class. Barricks mentions the age of a
handful of employees in passing, but they were not super-
vised by Platt, who, Barricks concedes, played the deci-
sive role in giving performance evaluations and determin-
ing raise amounts. See Radue, 219 F.3d at 618 (noting
importance of showing common supervisor, because
different supervisors make employment decisions in
different ways).
6 No. 05-3771
On her claim of gender discrimination, Barricks identi-
fies one potential comparator, Lawrence Swick, who
was also a senior chemical operator, shared Barricks’s pay
grade and level of experience, and was supervised by
Platt. Lilly notes that in 2002 Swick received a perfor-
mance rating of three compared to Barricks’s two, and
contends that he is therefore an inadequate comparator.
See Anders v. Waste Mgmt. of Wis., Inc., 463 F.3d 670, 676
(7th Cir. 2006). Given the important role of the evaluation
in Lilly’s calculation of raises, Barricks should have
included in the record Swick’s evaluation so that we
could rule out performance as the basis for Swick’s re-
ceiving a raise and Barricks’s disappointment. Never-
theless, we do know from the number ratings and from
deposition testimony that Swick’s performance, like
Barricks’s, was relatively low. Platt explained that Swick
had been subject to various disciplinary infractions that
had affected his eligibility for a raise. Even though
Barricks’s low performance rating stemmed from deficien-
cies in her work rather than disciplinary issues, there is
no evidence that the computer recognized this difference.
See Hill, 445 F.3d at 952 (comparator must have perfor-
mance history “somewhat comparable” to plaintiff ’s). Since
Swick received a raise in 2003 and Barricks did not, he
received more favorable treatment. See Bio v. Federal
Express Corp., 424 F.3d 593, 598 (7th Cir. 2005).
Even assuming that Swick and Barricks are similarly
situated, however, Barricks has failed to show that Lilly’s
stated reason for denying her a raise was pretextual. The
focus of a pretext inquiry is whether the employer’s rea-
son is honest, not whether it is accurate or wise. Ptasznik,
464 F.3d at 696; see also Burks v. Wis. Dep’t of Transp.,
464 F.3d 744, 754-55 (7th Cir. 2006) (“An employee’s
attempt to avoid summary judgment cannot succeed unless
the employee puts forth evidence suggesting that the
employer itself did not believe the reasons for [the adverse
No. 05-3771 7
employment action].”). Lilly states that given Barricks’s
potential raise range of $0-30 per month, she would have
needed a raise of at least 67% of her maximum possible
raise in order to make it over the $20 de minimis level. (By
contrast, Swick received only 60% of his maximum possible
raise, and his performance evaluation was higher than
Barricks’s.1) Barricks does not argue on appeal that the
$20 policy was bogus, although she does characterize it
in the facts section of her brief as “the invisible $20 ‘pol-
icy.’ ” She produced no evidence, however, not even her
own affidavit, to suggest that the policy was a fabrication.
In fact, at one point in her deposition she conceded that
when in the past she and a female colleague received
raises of $20 or $30 per month, it was “pretty insulting,”
which tends to support Lilly’s basis for instituting the
policy. If she wished to create a genuine issue of material
fact as to the policy’s existence, she would have to produce
at least some evidence or argumentation. See Piraino v.
Int’l Orientation Resources, Inc., 84 F.3d 270, 274-75 (7th
Cir. 1996) (fact issue as to existence of employer’s unwrit-
ten pregnancy policy where managers did not mention
policy in discussions with pregnant employee and then
suddenly produced written directive codifying allegedly
informal policy); Sarsha v. Sears, Roebuck & Co., 3 F.3d
1035, 1040 (7th Cir. 1993) (fact issue as to existence of
company’s no-dating policy where plaintiff had met ex-wife
while both worked for defendant, and defendant had even
thrown wedding party for the two); see also EEOC v.
Yellow Freight Sys., Inc., 253 F.3d 943, 957-58 (7th Cir.
2001) (en banc) (Wood, J., dissenting in part and concur-
ring in part) (discussing evidence needed to create issue on
existence of unwritten policy).
1
Swick’s raise range was $55 to $115, and he received a raise
of $70.
8 No. 05-3771
Instead of challenging the $20 policy, Barricks argues
that Lilly has inconsistently described the role of various
managers in the merit increase process, and that this
proves pretext. Specifically, she contends that at times,
Lilly stated that the shift supervisor alone made the key
decisions, and at other times that he decided in concert
with others. We find no inconsistency. In the pleadings
and during discovery, Lilly explained that the shift
supervisor has primary responsibility for issuing a perfor-
mance evaluation, and then in conjunction with the
human resources representative and the department
head, the shift supervisor selects a raise amount from the
computer generated range.
Barricks also argues that Lilly intimidated one of her
female co-workers from signing an affidavit in support of
Barricks’s motion for summary judgment, and that this
shows that the company knew that its case was weak. But
the affidavit, even if it had been signed and admitted as
evidence, would not have affected the result at summary
judgment, for its assertions, including a claim that Platt
expected female employees to do more “housekeeping” (i.e.,
cleaning and maintenance) work than men, made it into
evidence in other ways, including through Barricks’s own
affidavit. Cf. Great Am. Ins. Co. v. Horab, 309 F.2d 262,
264-65 (8th Cir. 1962) (Blackmun, J.) (where interference
with witness did not affect result, excluding evidence of
interference was not abuse of discretion). Finally, Barricks
contends that Platt was reprimanded after pornography
was found on his computer and a book of off-color jokes
was found in his desk, and that this proves that he
denied her a raise because of her gender. But she does
not explain how these vague transgressions had any-
thing to do with the decision not to offer her a raise. See
Rozskowiak v. Village of Arlington Heights, 415 F.3d 608,
612-13 (7th Cir. 2005); Sanghvi v. St. Catherine’s Hosp.,
Inc., 258 F.3d 570, 575-76 (7th Cir. 2001); Schaffner v.
No. 05-3771 9
Glencoe Park Dist., 256 F.3d 616, 622-23 (7th Cir. 2001).
Indeed, some of Barricks’s allegations concern Platt’s
inappropriate conduct after he was transferred to another
facility and ceased to be her supervisor, so those could
hardly bear on his role in the decision. In short, Barricks
has failed to present enough evidence to cast the shadow
of pretext on Lilly’s explanation for denying the raise.
See Keri, 458 F.3d at 645.
III. CONCLUSION
For these reasons, the district court’s decision granting
summary judgment to Lilly is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-4-07