Angela LaFary v. Rogers Group, Incorporated ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1139
A NGELA N. L AF ARY,
Plaintiff-Appellant,
v.
R OGERS G ROUP, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06-cv-1121-LJM-DML—Larry J. McKinney, Judge.
S UBMITTED S EPTEMBER 23, 2009 Œ —D ECIDED JANUARY 12, 2010
Before F LAUM, W OOD , and SYKES, Circuit Judges.
W OOD , Circuit Judge. Angela LaFary liked her job as
a field clerk at the Martinsville, Indiana, office of Rogers
Group, Inc. (“RGI”), a company in the business of pro-
ducing crushed stone for road construction and similar
Œ
This court previously granted the parties’ joint motion to
waive oral argument. Thus, the appeal is submitted on the
briefs and the record. See F ED . R. A PP . P. 34(f); C IR . R. 34(e).
2 No. 09-1139
uses. Shortly after she became pregnant, however, RGI
transferred her to Bloomington, eventually letting her go
after she had taken more than six months of leave neces-
sitated by complications with her pregnancy. LaFary
sued RGI for age discrimination, sex discrimination, and
retaliation. The district court granted RGI’s motion for
summary judgment on all counts. LaFary appeals the
decision on the sex discrimination and retaliation
claims. As LaFary sees it, she was transferred from
Martinsville to Bloomington because she was pregnant,
and she lost her job because she asked for and took leave
to deal with complications with her pregnancy. The
district court found, however, that the evidence LaFary
proffered at the summary judgment stage was not
enough to support a prima facie case for either theory. It
therefore granted summary judgment in RGI’s favor.
We affirm.
I
LaFary (then Angela May, but we use her married
name throughout for simplicity) was hired by RGI in
1996. Over the years, she worked in a number of RGI’s
offices in southern Indiana as a field clerk. In 2003 she
moved to the Martinsville office. Her supervisor, Michael
DeMartin, told her that the position would serve as a
stepping stone to a full-time sales position. Her duties
in Martinsville were primarily administrative (payroll,
accounts payable, customer service), but they also
involved supporting sales operations.
In February 2004 LaFary married Carl “Nick” LaFary, an
independent contractor who performed trucking jobs
No. 09-1139 3
for RGI’s Martinsville operation. On March 15, 2004,
LaFary found out that she was pregnant. As we explain
in further detail below, the record is fuzzy about when
others in her office learned about her pregnancy. Although
LaFary eventually asserted in a written declaration pre-
pared for this lawsuit that she gave DeMartin the news
shortly thereafter, nowhere in the record is there solid
evidence showing exactly when he heard about it.
On March 25, 2004, DeMartin emailed a few other RGI
employees about, among other things, a proposal to
transfer LaFary to Bloomington. The email identified
certain “issues”: it noted the appearance of a conflict of
interest arising from an employee’s marriage to an inde-
pendent truck driver working for RGI, and it described
three business needs related to the operation of the
Oard Road facilities in Bloomington. The email con-
cluded with a recommendation that RGI transfer LaFary
to the Bloomington office to provide “live” administrative
support in lieu of the existing automated answering
system. It justified this proposal solely on the basis of its
business needs; it did not (at this point) mention the
alleged conflict of interest. DeMartin asserts that, at the
time he sent the email, he did not know that LaFary was
pregnant. On April 1 RGI transferred Nick LaFary to
Bloomington; LaFary suggests that this move eliminated
any possibility of a real or imagined conflict of interest
at the Martinsville location.
In late April 2004, DeMartin informed LaFary that she
was to be transferred to Bloomington. LaFary objected. By
this time, DeMartin knew that LaFary was pregnant,
because he responded to her complaints by suggesting that
4 No. 09-1139
she was just “emotional” because of her pregnancy.
DeMartin told LaFary that the transfer was necessary to
deal with new competition. DeMartin and RGI assert
that this transfer was a promotion, and they note that the
new position came with a raise. LaFary counters that
the transfer was an adverse action, because her new job
did not use the skills that she developed at Martinsville
and took her off the track for a sales position.
LaFary worked at the Bloomington facility for less
than two months before she was hospitalized from June 12
to June 16 for complications with her pregnancy.
Although she originally thought that she would return
to work in July, her doctor ordered her to stay home
through her December due date plus an additional six
to eight weeks of recovery. DeMartin expressed dismay
at the prospect of such a long absence. LaFary took one
week of vacation time, and then she was approved for
12 weeks of leave under the Family and Medical Leave
Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., and 180 days of
short-term disability leave. The parties dispute whether
these latter periods were to run consecutively or concur-
rently. Running concurrently, as RGI believes that they
did, LaFary’s leave expired on December 22. RGI’s
policy was automatically to terminate the job of an em-
ployee who did not return to work after her approved
leave expired. LaFary’s email correspondence with
DeMartin and others indicates that she was aware of
this policy.
At the time LaFary’s leave began, in July 2004, DeMartin
suggested that her job would be waiting when she re-
turned. Indeed, as late as January 10, 2005, employee
No. 09-1139 5
benefits administrator Duchess Dukes told LaFary that
she still had a position with the company. On that same
day, January 10, 2005, LaFary emailed DeMartin to
confirm that fact. On January 11, DeMartin called LaFary
and asked her about her plans. When she said that she
would like to return to RGI, DeMartin told her that the
company had ended her employment based on its leave
policy and that it would not be able to rehire her
because of a lack of business. Around the same time, RGI
cut eight other positions because of the cancellation of one
contract and the delay of another. DeMartin also told
LaFary that she should apply for other RGI positions
as they became available.
II
LaFary did not accept DeMartin’s olive branch.
Instead, she filed Equal Employment Opportunity Com-
mission complaints against RGI, alleging age discrim-
ination, sex discrimination, and retaliation, focusing on
RGI’s decisions to transfer her to Bloomington and to
let her go. (She later abandoned her age discrimination
claim.) She followed up with a lawsuit in state court in
Indiana, charging RGI with sex discrimination in viola-
tion of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e
et seq. RGI removed the case to the United States
District Court for the Southern District of Indiana.
Before the district court, and now here for purposes of
our de novo review, LaFary has relied on the familiar
indirect method of proof. Using this approach, she was
required to put before the district court evidence that (if
believed by a trier of fact) would demonstrate that she was
6 No. 09-1139
a member of a protected class, that she suffered an
adverse employment action, that she was performing
her job satisfactorily, and that a similarly situated individ-
ual outside her protected class was treated more favor-
ably. Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir.
2001). For pregnancy discrimination cases, the plaintiff also
must establish that her employer knew she was pregnant.
Griffin v. Sisters of St. Francis, Inc., 489 F.3d 838, 844 (7th Cir.
2007). If the plaintiff satisfies these elements, the employer
must identify a nondiscriminatory reason for the action
taken; if it does so, the plaintiff may avoid summary
judgment only if she can produce evidence that the prof-
fered reason is pretextual. Clay, 253 F.3d at 1005. The
parties agree that LaFary was a member of a protected
class and performed her job satisfactorily. They also agree
that RGI’s decision to fire her (or not to restore her job)
constitutes an adverse employment action.
The district court granted summary judgment for RGI
on December 22, 2008, finding that DeMartin did not
know that LaFary was pregnant when he decided to
transfer her to Bloomington, that the transfer was not
an adverse action, and that with respect to the termina-
tion of her employment she failed to identify a
similarly situated person who was directly comparable
to her in all material respects except for sex.
III
A
LaFary first alleges that RGI’s decision to transfer her
from Martinsville to Bloomington was the result of sex
No. 09-1139 7
(or pregnancy) discrimination. The district court granted
RGI’s motion for summary judgment, finding that LaFary
could not establish a prima facie case. In particular, it
concluded that the transfer was not an adverse employ-
ment action and there was no competent evidence demon-
strating that DeMartin knew that LaFary was pregnant
when he decided to transfer her.
If the district court was correct in either of those
findings, LaFary cannot succeed. We consider first the
question whether a trier of fact could have viewed the
move to Bloomington as an adverse employment action.
Employment decisions are adverse if a nominally lateral
transfer “significantly reduces the employee’s career
prospects by preventing her from using her skills and
experience, so that the skills are likely to atrophy and
her career is likely to be stunted.” Nichols v. S. Ill.
Univ.-Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007) (quot-
ing O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th
Cir. 2004)). See Burlington N. & S. F. R. Co. v. White, 548
U.S. 53, 68 (2006) (asking whether “a reasonable employee
would have found the challenged action materially ad-
verse”).
LaFary maintains that her old job in Martinsville was a
stepping stone to a full-time sales position, while the
Bloomington position involved only answering the
phones, accounts payable, and payroll. She suggests that
the transfer was adverse because the Bloomington job
did not allow her to use the skills she developed at
Martinsville. RGI responds that the transfer was a promo-
tion, it came with a pay raise, and it would have
8 No. 09-1139
included more responsibilities if she had stayed at
Bloomington longer than she did. It is a close question
whether LaFary’s two-month stint in Bloomington, during
which she was assigned less challenging tasks, provides
enough evidence to show that the move to Bloomington
was adverse, in the face of RGI’s evidence that it entailed
both a pay raise and a more expansive job description.
We need not decide this issue, however, since LaFary
has not undermined the district court’s other ground for
summary judgment.
LaFary did not introduce evidence tending to show
that RGI knew that she was pregnant when it decided to
transfer her to Bloomington. She does not dispute that
DeMartin made his decision on or before March 25, 2004,
which is the date when DeMartin emailed other RGI
employees about the proposed transfer. The March 25
email stated a clear position, and DeMartin eventually
executed the recommendation exactly. There is no
evidence that new circumstances after that date had
anything to do with DeMartin’s decision to send her to
Bloomington. LaFary must therefore establish that
DeMartin knew that she was pregnant on or before
March 25.
LaFary herself learned that she was pregnant on
March 15. The only evidence LaFary offers regarding the
date by which DeMartin learned of her pregnancy is
the written declaration that we mentioned earlier, in
which she asserts that “Mr. DeMartin was aware of the
fact that I was pregnant shortly after I became pregnant.”
This declaration suffers from two problems. Most signifi-
No. 09-1139 9
cantly, even in the context of a case where the precise
date when DeMartin learned of her pregnancy was impor-
tant, LaFary does not specify whether DeMartin knew
before, on, or after March 25, the critical date for our
inquiry. Without evidence establishing that fact, LaFary
cannot prove a critical element of her case.
Moreover, this declaration came after a deposition in
which LaFary admitted that she did not know when
DeMartin or the other decision-makers learned that she
was pregnant. A plaintiff cannot defeat a motion for
summary judgment by “contradict[ing] deposition testi-
mony with later-filed contradictory affidavits.” Ineichen v.
Ameritech, 410 F.3d 956, 963 (7th Cir. 2005). LaFary
has boxed herself into a corner. If her declaration estab-
lishes that she has specific knowledge of the date on
which DeMartin learned she was pregnant, Ineichen
would bar her declaration because it would contradict
the deposition. If we interpret the phrase “shortly after” in
her declaration as a concession that she never has been
certain about the precise time when DeMartin learned
that she was pregnant, then she has not offered any
evidence that would show that he knew as of the time he
sent the March 25 email.
In the end, LaFary has not presented evidence that would
support a finding that DeMartin knew that she was
pregnant when he decided to transfer her to Bloomington.
The district court thus properly granted RGI’s motion
for summary judgment on LaFary’s claim that the
transfer was motivated by sex or pregnancy discrimination.
10 No. 09-1139
B
LaFary also contends that RGI’s decisions to terminate
her employment and then not to rehire her violated Title
VII’s prohibitions against pregnancy discrimination and
retaliation. Her evidence, however, fell short of raising a
genuine issue of fact on these points. First, it does not
show that RGI violated its own policy by counting
FMLA and short-term disability leave concurrently.
LaFary’s own emails, along with contemporaneous state-
ments of various RGI employees, establish at least a
de facto policy that called for her automatic discharge
after 180 days. Moreover, LaFary’s evidence does not
establish that a similarly situated person outside her
protected class was treated more favorably. See Clay, 253
F.3d at 1005. After initially naming a number of potential
comparators, LaFary focuses on Admin Menjivar. Menjivar
took short-term disability leave for 187 days, but he was
then reinstated. RGI dismissed LaFary pursuant to the
same policy, but it did not rehire her after 199 days of
leave. Although these times are comparable, other critical
details are not. RGI asserts that it did not rehire LaFary
because of its financial condition: it lost one contract and
another was delayed. As we noted, RGI eliminated eight
positions around the time of LaFary’s potential return.
In contrast, as LaFary tacitly admits, RGI was enjoying
financial success at the time it rehired Menjivar. LaFary
also had no evidence that RGI had a particular need for
her skills; in contrast, the company rehired Menjivar
because it needed the expertise that he possessed. These
differences are enough to show that Menjivar was not
similarly situated to LaFary. Given the absence of
No. 09-1139 11
evidence raising a genuine issue of fact, the district court
was correct to grant RGI’s motion for summary judg-
ment on this claim as well.
* * *
For these reasons, we A FFIRM the judgment of the
district court.
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