Dayna Scruggs v. Garst Seed Company ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2266
D AYNA L. S CRUGGS,
Plaintiff-Appellant,
v.
G ARST S EED C OMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 05 C 67—Allen Sharp, Judge.
A RGUED JUNE 4, 2008—D ECIDED N OVEMBER 20, 2009
Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Dayna Scruggs appeals from
the grant of summary judgment in favor of her former
employer, Garst Seed Company, on her claims of retalia-
tion and a hostile work environment. A company-wide
restructuring eliminated her position before she filed
a charge of discrimination, so the company did not
retaliate against her for filing the discrimination charge
when it eliminated her position. In addition, although
2 No. 07-2266
she contends the company also retaliated against her
when it did not hire her for one of the open positions
after the restructuring, Garst hired the person who had
previously held the position. The incumbent was experi-
enced in the job, and Scruggs has not created an issue for
trial that the hiring decision was pretextual. Finally, the
relatively isolated gender-based comments and remarks
Scruggs’s supervisor directed toward her were not suffi-
ciently severe or pervasive to rise to the level of a hostile
work environment. Therefore, we affirm the judgment
of the district court.
I. BACKGROUND
Dayna Scruggs worked at Garst Seed Company’s seed
breeding research facility in Brookston, Indiana, where
she was on the soft wheat breeding team. The two other
members of the Brookston soft wheat breeding team
were Curtis Beazer, a Wheat Breeder, and Eugene
Glover, a Research Assistant. Beazer and Glover both
held exempt, salaried positions. Scruggs’s position as a
Research Technician was a nonexempt, hourly wage
position.
Scruggs and Beazer began working together in 1988 or
1989. When Beazer ascended to Wheat Breeder in 1995,
he became Scruggs’s supervisor. Scruggs maintains
that after Beazer became her supervisor in 1995, he re-
peatedly gave her trouble. The conduct to which she
points includes her contention that between 2000 and
2002, Beazer refused to provide her with assistance in
dealing with temporary employees, including two occa-
No. 07-2266 3
sions when temporary employees reacted negatively
after Scruggs terminated their employment. She states
that one time, while she was discussing his alleged lack
of support, Beazer told her that she was “too dumb to
catch on” and that the temporary employees were her
own responsibility.
Scruggs also alleges that Beazer took several steps in
an attempt to have her quit her job. She claims that he
intentionally under-built a new greenhouse facility in
2001, changed the temperature in the greenhouse on
several occasions, and performed “crosses” of plants too
early. She also says that Beazer instructed Glover to spy
on her during 2002 and 2003. Scruggs maintains that
Beazer later began checking on her several times a day,
and that he also once asked her what it would take for
her to leave because he would rather hire a 20-year old to
do the field work that he and Scruggs currently had to
perform.
Scruggs also pointed to several events in 2003. That
year, Scruggs says that Beazer introduced her to other
employees as the person in charge of “cookies with sprin-
kles.” Scruggs complained to Beazer’s supervisor, David
Worrall, about this comment. A short time later, Beazer
struck a temporary employee. Scruggs did not witness
the incident, but she reported it and also said that Beazer
had previously hit her. Scruggs maintains that Beazer
retaliated against her for reporting the incident by re-
quiring that she take on additional work responsibilities
usually handled by Beazer and Glover, although she
reported to Worrall only that she was “overwhelmed” by
4 No. 07-2266
the job duties she had been assigned. At another point in
2003, Beazer stated that he hated “pushy, aggressive
women” and that Scruggs was such a woman.
Scruggs also asserts that at various points during her
employment, Beazer said that she was “made for the
back seat of a car,” that her parties were “drunken fias-
cos,” that she was not “smart enough,” and that she
looked like a “UPS driver,” a “dyke,” and was a “redneck.”
In March of 2004, Worrall met with Scruggs and Beazer
in an effort to straighten out the issues between the two.
Scruggs told Worrall that she did not trust Beazer
because he was “manufacturing” research data and
complained about Beazer’s comment that he would like
to replace her with a 20-year-old employee. Worrall
responded that he thought Scruggs had misunderstood
the statement. Scruggs then left the meeting. She says
that Beazer followed her down the hallway dancing,
whistling, and singing.
Scruggs was not the only person at Garst to have prob-
lems with Beazer. Beazer also made comments about
Eugene Glover and Brian Rice, male Research Assistants
at the Brookston facility. Beazer called Glover “fat” and
made fun of Rice’s home state. He also made derogatory
comments about certain employees’ cars, among other
things. Scruggs testified in her deposition that Beazer
did not get along with “[a]nyone that was marginally
intolerant or had an opinion he could not tolerate.”
Garst managers and Human Resources Director D.J.
Horrigan discussed the Brookston facility in the early
part of 2004 and the problems Beazer presented. Horrigan
No. 07-2266 5
sent Worrall and two other managers a memorandum
summarizing discussions regarding the Brookston site
in May 2004. The memorandum contemplated a reorgani-
zation where Beazer would be demoted to Assistant
Breeder or offered a severance package, Glover’s position
would be eliminated, and Scruggs would keep her posi-
tion. The proposal discussed in the memorandum
was not carried out.
Instead, in September 2004, Syngenta Seeds, Inc. pur-
chased a majority interest in Garst. Syngenta already
owned a wheat research and sales program in soft red
winter wheat. Therefore, to eliminate redundancy, the
company restructured the soft wheat research opera-
tions. It closed a facility in Arkansas and restructured
staffing at the other soft wheat research facilities,
including Brookston. The company decided it would have
three salaried employees at each soft wheat research
location: Breeder, Assistant Wheat Breeder, and Research
Assistant. The position of Research Technician would be
eliminated. That was the role Scruggs held in Brookston.
Worrall traveled to the Brookston facility in Novem-
ber 2004 and informed employees of the restructuring.
Scruggs was on medical leave at the time, so she
was not present. Worrall says that he called Scruggs at
home in November 2004 and left her a message advising
her that a restructuring would be occurring. Scruggs,
however, asserts that she did not receive such a
message and that she did not learn of the restructuring
until several months later.
On December 3, 2004, Scruggs filed a discrimination
charge with the Equal Employment Opportunity Com-
6 No. 07-2266
mission (EEOC) that alleged gender discrimination, a
hostile work environment, and retaliation. Also that
month, Worrall informed Beazer that he would not be
continuing at Brookston, and Barton Fogleman became
the new Wheat Breeder at that location.
With Fogleman in place, the company set out to hire
persons for the two other soft wheat breeding positions
at Brookston. Fogleman, Horrigan, and Worrall inter-
viewed candidates for the Brookston Assistant Breeder
and Research Assistant positions. Approximately twenty
persons applied for the Assistant Breeder position, in-
cluding Glover. The company interviewed Glover for the
Assistant Breeder role but ultimately selected another
candidate, Jennifer Vonderw ell. A pproxim ately
seventeen people applied for the Research Assistant
position, including six who also applied for the Assistant
Breeder position. Glover and Scruggs were two of the
applicants. Glover, Scruggs, and several others were
interviewed in March and April of 2005. The company
selected Glover. Fogleman explained that the company
chose Glover because of his past experience at
Brookston, his experience managing test plots at other
locations, and his education. Glover has a Bachelor of
Science degree in agronomy and had served as the Re-
search Assistant at the Brookston facility for many years.
Scruggs does not have a college degree, and she also
did not have the same type or level of experience. In
particular, Scruggs did not have experience comparable
to Glover’s in managing plots outside of Brookston. The
Brookston facility manages research plots in Michigan,
Ohio, Indiana, and Illinois. Glover had managed these
No. 07-2266 7
sites for a number of years, and Fogleman believed that
his experience would be very helpful going forward.
After Scruggs did not receive the Research Assistant
position, she filed another charge of discrimination with
the EEOC on April 28, 2005. She alleged that Garst termi-
nated her employment in retaliation for the EEOC
charge she had filed the previous December. The district
court granted summary judgment in Garst’s favor on
Scruggs’s claims of retaliation, hostile work environment,
and gender discrimination.
II. ANALYSIS
A. No Error in Denying Motion to Strike
Before we turn to the merits of the summary judgment
decision, we address one preliminary matter. Scruggs
contends that the district court erroneously denied her
motion to “strike” Garst’s summary judgment motion, or,
in the alternative, to strike Fogleman’s affidavit. We
review the district court’s decision for an abuse of dis-
cretion, Judson Atkinson Candies, Inc. v. Latini-Hohberger
Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008), and find no
error. Scruggs maintained that Garst misled her as to the
identity of the person responsible for the Research Assis-
tant hiring decision and concealed Fogleman’s identity.
As the district court recognized, however, Scruggs
clearly knew about Fogleman, as he was one of the
persons who interviewed her for the Research Assistant
position. Scruggs also discussed Fogleman during her
deposition, and Horrigan testified at his deposition the
8 No. 07-2266
following day about Fogleman’s involvement in the
decision to hire Glover instead of Scruggs for the
Research Assistant position. So, we find no abuse of
discretion in the district court’s denial of the motion to
strike.
B. Summary Judgment Proper on Retaliation Claims
Scruggs contests the district court’s decision to grant
summary judgment in Garst’s favor on her retaliation
claims. She maintains that Garst retaliated against her
for complaining about how she had been treated at
the company, and that it did so in two ways: first by
eliminating her position, and second by declining to
hire her for the Research Assistant position at the
Brookston facility that became open after the company’s
restructuring.
We review the district court’s grant of summary judg-
ment de novo, viewing the record and all reasonable
inferences drawn from it in the light most favorable
to the party opposing the motion. Peirick v. Ind.
Univ.-Purdue Univ. Indianapolis Athletic Dep’t, 510 F.3d
681, 687 (7th Cir. 2007). Summary judgment is appro-
priate when the materials before the court demonstrate
“that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c); see Hobbs v. City of
Chicago, 573 F.3d 454, 460 (7th Cir. 2009).
Title VII forbids an employer from discriminating
against an employee who has “opposed any practice”
No. 07-2266 9
made unlawful by Title VII or who “has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under Title VII. 42
U.S.C. § 2000e-3(a). Scruggs can prove retaliation under
either the direct or indirect method. See Argyropoulos v.
City of Alton, 539 F.3d 724, 733 (7th Cir. 2008). Under the
direct method, a plaintiff must present evidence that:
(1) she engaged in statutorily protected activity; (2) she
suffered a materially adverse action; and (3) a causal
connection exists between them. Id. A plaintiff pro-
ceeding under the indirect method establishes a prima
facie case by establishing the same first two elements,
as well as that: (3) she was meeting her employer’s legiti-
mate expectations; and (4) she was treated less favorably
than a similarly situated employee who did not engage
in statutorily protected activity. Stephens v. Erickson, 569
F.3d 779, 786 (7th Cir. 2009); Kodl v. Bd. of Ed., School Dist.
45, Villa Park, 490 F.3d 558, 562 (7th Cir. 2007).
If the plaintiff succeeds in passing this initial hurdle, the
burden shifts to the defendant to demonstrate a nondis-
criminatory reason for its action. Stephens, 569 F.3d at 787;
Fischer v. Avanade, Inc., 519 F.3d 393, 408 (7th Cir. 2008). If
the defendant does so, the plaintiff must show that a
genuine issue of material fact exists as to whether the
defendant’s proferred reason was pretextual to avoid
the entry of summary judgment against it. Argyropoulos,
539 F.3d at 736. “[A]n employee’s failure to cast doubt
on an employer’s nonretaliatory explanation” means a
claim fails under either the direct or indirect method.
Id. at 736 n.6.
10 No. 07-2266
The prima facie case and pretext analyses often
overlap, so we have said that we can proceed directly
to the pretext inquiry if the defendant offers a nondiscrimi-
natory reason for its action. Adelman-Reyes v. St. Xavier
Univ., 500 F.3d 662, 665 (7th Cir. 2007). Garst gave legiti-
mate non-discriminatory reasons for its actions, namely
that Scruggs’s position was eliminated as part of a com-
pany restructuring and that it selected someone else for
a new position because that person was better qualified.
So we proceed to the pretext analysis. Pretext includes
“more than just faulty reasoning or mistaken judgment
on the part of the employer; it is ‘lie, specifically a
phony reason for some action.’ ” Argyropoulos, 539 F.3d
at 736 (quoting Sublett v. John Wiley & Sons, Inc., 463 F.3d
731, 737 (7th Cir. 2006)); see also Forrester v. Rauland-Borg
Corp., 453 F.3d 416, 419 (7th Cir. 2006) (stating that pretext
is “a deliberate falsehood”). If the employer honestly
believed the reason it proffers for its employment
decision, the reason was not pretextual. Argyropoulos, 539
F.3d at 736.
We begin with Scruggs’s claim that Garst retaliated
against her by eliminating her position as a Research
Technician. According to the company, it eliminated the
Research Technician position as part of a company-wide
restructuring after Syngenta purchased Garst. We agree
with Garst that the evidence in the record does not
create an issue for trial as to whether this reason was a
pretext for retaliating against her. Significantly, the
record reflects that the company made its decision to
eliminate Research Technician positions before Scruggs
filed her first EEOC charge on December 3, 2004. Syngenta
No. 07-2266 11
bought a majority interest in Garst in September 2004.
It then restructured soft wheat research at locations
around the country to make its operations more efficient.
The decision to eliminate the Research Technician role
was made as part of the restructuring, not out of retalia-
tion against one employee. Although Scruggs maintains
that Garst did not make the decision until after she had
filed her EEOC charge in December 2004, the evidence
in the record reflects that the company made the
decision before then and that Worrall visited Brookston
in November 2004 to communicate the restructuring
decision to Brookston employees. Even if Scruggs did not
learn of the decision until later (she maintains she did not
receive a voice mail that Worrall says he left for her
regarding the restructuring), she was away from the
office on an extended medical leave in November 2004.
The evidence to which she points does not create an
issue for trial. She directs us to certain pages in Beazer’s
deposition testimony, for example, but they only
indicate that when Worrall told Beazer that Beazer had
to leave the Brookston facility, Worrall did not say why
the company was making the change or whose idea it
was. They do not suggest that the company-wide restruc-
turing decision took place after December 2004.
Scruggs also argues that Garst did not hire her for
the restructured Research Assistant position because she
had filed a discrimination charge with the EEOC. Scruggs
filed her first discrimination charge with the EEOC in
December 2004, and the company made the decision to
select another person for the Research Assistant position
on April 25, 2005. Garst maintains that it chose a more
12 No. 07-2266
qualified candidate for the Research Assistant position,
which is a legitimate explanation. See Butts v. Aurora
Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). The
question is whether it is a pretext for retaliation. The
Research Assistant position required a Bachelor of
Science degree in agronomy or a related field, or an
acceptable combination of education and experience,
including “at least two years of practical experience
in plant breeding and genetics in wheat.” Scruggs
does not have a college degree and did not have any
practical experience in genetics. Glover, the person Garst
selected for the position, has a Bachelor of Science
degree in agronomy. In addition, he had years of experi-
ence relevant to the position. He was the incumbent in
the role, having served as the Research Assistant/
Specialist at the Brookston facility for many years before
the restructuring. He was also the person in charge of
test plots at multiple other locations—experience that
Fogleman believed would be very valuable to the soft
wheat breeding team he would be managing at Brookston.
That an internal memorandum in the spring of 2004
discussed the possibility of eliminating Glover’s position
and keeping the one Scruggs held does not cast doubt
on the company’s assertion that it selected Glover
because he was better qualified to serve as the Research
Assistant. When Syngenta purchased Garst, it decided
to eliminate the Research Technician position, not the
Research Assistant position. It is logical that the
company would select the person with experience in the
Research Assistant position. Scruggs has not raised a
genuine issue of material fact that the company’s explana-
No. 07-2266 13
tion was a pretext for retaliation. Accordingly, sum-
mary judgment was appropriate.
C. Summary Judgment Proper on Hostile Work Envi-
ronment Claim
Scruggs also argues that the district court erred when
it granted summary judgment to Garst on her claim that
she was subjected to a hostile work environment
because of her gender. Because a “hostile work environ-
ment” is a single unlawful practice under Title VII, a
discrimination charge based on a hostile work environ-
ment encompasses all the events during that hostile
environment so long as the charge is filed within the
charging period (here, within 300 days of “the last act
said to constitute the discriminatory working condi-
tion”). Bright v. Hill’s Pet Nutrition, Inc., 510 F.3d 766, 768
(7th Cir. 2007); see Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 115-21 (2002). When it considered Scruggs’s
hostile work environment claim, the district court
properly considered Beazer’s actions outside the 300-day
charging period. But even with that conduct in the mix,
summary judgment on the hostile work environment
claim was correct.
To survive summary judgment on her hostile
work environment claim, Scruggs needed to show the
following: (1) her work environment was both objectively
and subjectively offensive; (2) the harassment com-
plained of was based on her gender; (3) the conduct was
either severe or pervasive; and (4) there is a basis for
employer liability. Dear v. Shinseki, 578 F.3d 605, 611 (7th
Cir. 2009). Scruggs is correct that the unwelcome treat-
14 No. 07-2266
ment need not be based on “unwelcome sexual advances,
requests for sexual favors or other verbal or physical
conduct of a sexual nature.” Boumehdi v. Plastaq Holdings,
Inc., 489 F.3d 781, 788 (7th Cir. 2007) (quoting Rhodes v.
Ill. Dep’t of Transp., 359 F.3d 498, 505 (7th Cir. 2004));
see also Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80
(1998). Instead, conduct demonstrating “anti-female
animus” can support a hostile work environment claim.
Boumedhdi, 489 F.3d at 788. In other words, a plaintiff
can proceed on a claim when the work environment is
hostile because it is “sexist rather than sexual.” Id.Even so, summary judgment on this claim was
proper. To rise to the level of a hostile work environ-
ment, conduct must be sufficiently severe or pervasive
to alter the conditions of employment such that it
creates an abusive working environment. Ezell v. Potter,
400 F.3d 1041, 1047 (7th Cir. 2005). The environment
must be both subjectively and objectively offensive.
Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003).
Factors in our assessment include the severity of the
allegedly discriminatory conduct, its frequency, whether
it is physically threatening or humiliating or merely
offensive, and whether it unreasonably interferes with
an employee’s work performance. Id. Offhand com-
ments, isolated incidents, and simple teasing do not rise
to the level of conduct that alters the terms and condi-
tions of employment. Adusumilli v. City of Chicago, 164
F.3d 353, 361-62 (7th Cir. 1998).
Here, the gender-based conduct was not objectively
severe or pervasive. Viewing the record in the light
most favorable to Scruggs, Beazer made occasional inap-
No. 07-2266 15
propriate comments, including that Scruggs was “made
for the back seat of a car” and looked like a “dyke.” On
the other hand, his conduct was not physically
threatening, as he did not touch her or threaten to touch
her (other than allegedly striking her with a clipboard
in 1995). He did not make comments suggesting that he
was interested in her sexually. Instead, most of Beazer’s
comments related to Scruggs’s work habits or alleged
lack of sophistication, which were the kinds of com-
ments he made to both male and female employees. The
sporadic comments to which she points do not rise to
the level of an objectively hostile work environment
under Title VII. See Adusumilli, 164 F.3d at 361. Because
Scruggs cannot show that the environment was
objectively severe or pervasive, summary judgment
was appropriate on this claim.
Finally, we note that Scruggs raises as the final issue
in the statement of issues in her brief whether the
district court properly granted summary judgment on
her claim of gender discrimination. She does not address
a gender discrimination claim in the argument section
of her brief, however. As a result, she has waived this
argument. See Salas v. Wis. Dep’t of Corrs., 493 F.3d 913,
924 (7th Cir. 2007).
III. CONCLUSION
The judgment of the district court is A FFIRMED.
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