Victoria Harper v. Fulton County, Illinois ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2553
VICTORIA HARPER,
Plaintiff-Appellant,
v.
FULTON COUNTY, ILLINOIS ,
Defendant-Appellee.
Appeal from the United States District Court for the
Central District of Illinois.
No. 10-CV-01423 — Michael M. Mihm, Judge.
ARGUED FEBRUARY 20, 2014 — DECIDED APRIL 8, 2014
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. After the Fulton County Board
voted not to raise the salary of the County Treasurer, Victoria
Harper, she filed a § 1983 action against the County for sex
discrimination. The County moved for summary judgment.
After considering Harper’s sex discrimination claim under
both the direct and indirect methods, the district court con-
cluded that the claim failed as a matter of law, and granted the
2 No. 13-2553
County’s motion for summary judgment. Harper appeals. We
affirm.
I. Facts
Victoria Harper has served as County Treasurer for Fulton
County, Illinois, since 1994. The County Treasurer is elected
and serves a four-year term. See Ill. Const. art. VII, § 4(c); 55
ILCS 5/3-10001. After her election in 1994, Harper was re-
elected in 1998, 2002, 2006, and 2010. Pursuant to the Illinois
Counties Code, the Fulton County Board—a body composed
of twenty-one members—is empowered to set the salaries for
the County Treasurer, the County Clerk, and other elected
officials. See 55 ILCS 5/4-6001. The Board’s Finance Committee
is composed of five members of the Board and focuses on the
County’s budget, expenditures, and general financial situation.
The Finance Committee makes an initial recommendation to
the Board regarding the salaries of the County Treasurer and
County Clerk. From 1983–2002, the County Treasurer and
County Clerk were paid the same salary. In the early 2000s,
Ronald Rumler, the County Clerk, announced his decision to
retire. The County Board voted to increase Rumler’s salary in
order to allow him to receive greater retirement benefits. Thus,
from 2003–2006, the County Clerk’s salary exceeded the
County Treasurer’s salary. After Rumler’s retirement, the new
County Clerk, James Nelson, and the County Treasurer were
paid the same salary from 2007–2010.
In the years leading up to 2010, however, disputes arose
between Harper and the members of the Finance Committee
and the Board. These disputes seem to have prompted the
Finance Committee to recommend against increasing the
No. 13-2553 3
County Treasurer’s salary for her term in office commencing
in December 2010.1 At that time, the members of the Finance
Committee were Bob Bucher, Steve Conklin, Mat Fletcher, Ed
Huggins, and Rob Malott. At its May 11, 2010, meeting, the
Board adopted this recommendation by a vote of 10–8. At the
same meeting, the Board voted (16–2) to give the County Clerk
annual pay raises for the term commencing in December 2010.
As a result, Harper’s salary remained $58,300 from 2010–2013,
while Nelson’s salary started at $64,300 and rose to $71,300 for
the same period.
Harper believed that the decision to deny her pay raises
while awarding pay raises to Nelson was the result of sex
discrimination on the part of a critical mass of the male
members of the Board. She responded by filing a § 1983 action
against the County for sex discrimination in compensation in
violation of the Fourteenth Amendment’s Equal Protection
Clause.2 The County moved for summary judgment. The
County identified a number of justifications for denying
Harper pay raises, most of them centered around her work
performance. The district court granted summary judgment in
favor of the County. Harper appeals.
1
Because the position of County Treasurer is an elected one, there could be
no guarantee that Harper would succeed in her 2010 bid for re-election.
However, the County concedes that the Board fully expected Harper to be
re-elected in 2010.
2
Her lawsuit included other causes of action that are not at issue in this
appeal.
4 No. 13-2553
II. Discussion
On appeal, Harper contends that the district court erred in
concluding that her sex discrimination claim failed as a matter
of law. We review the decision to grant a summary judgment
motion de novo and construe the evidence in the light most
favorable to Harper, the nonmoving party. See Fed. R. Civ. P.
56(a); Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th
Cir. 2011). We must determine whether the evidence, so
construed, establishes genuine disputes of material fact with
respect to Harper’s sex discrimination claim. Id. And because
Harper contends that she can establish sex discrimination
under both the direct and indirect methods, we consider both
methods in turn.
A. Direct Method
“Under the ‘direct method,’ the plaintiff may avoid
summary judgment by presenting sufficient evidence, either
direct or circumstantial, that the employer’s discriminatory
animus motivated an adverse employment action.” Coleman v.
Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). “Direct evidence is
evidence that would prove discriminatory intent without
reliance on inference or presumption.” Makowski v.
SmithAmundsen LLC, 662 F.3d 818, 824 (7th Cir. 2011). Such
evidence essentially “‘requires an admission by the deci-
sion-maker that [the decision-maker’s] actions were based
upon the prohibited animus.’” Serednyj, 656 F.3d at 548(quoting Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir.
2004)). Should the plaintiff lack direct evidence, she may also
point to circumstantial evidence that allows a jury to infer
No. 13-2553 5
intentional discrimination by the decision-maker. Makowski,
662 F.3d at 824.
Harper points to the testimony of two other County
employees in an attempt to establish her sex discrimination
claim under the direct method. First, Sandra Monari, a Board
member from 1998–2010 and the Chairman from 2000–2004,
testified by declaration (made under penalty of perjury
pursuant to 28 U.S.C. § 1746) that, in 2004, Ed Ketchum, a male
Board member, dispensed with the traditional approach to
electing the Chairman and secured the position for himself
through a floor nomination at a special meeting during
“extremely severe weather conditions.”3 Monari also testified
that at some point during Ketchum’s chairmanship, he “and
other male members” of the Board insisted that Teresa
Abudusky, a female Board member, resign because her long
work commute (about one hour and forty-five minutes) caused
her to miss committee and Board meetings. Monari testified
that Doug Manock, a male Board member, was not asked to
resign even though he also had a long commute (about one
hour and fifteen minutes) that caused him to be repeatedly
absent from meetings. In addition, Monari testified that, during
her twelve years as a Board member, she “observed the
attitude and actions of the male board members” and con-
cluded that “a sufficient number of the male members of the
Board who had influence with the remaining male members of
the Board were biased against women.” Specifically, Monari
3
See Owens v. Hinsley, 635 F.3d 950, 955 (7th Cir. 2011) (“[A] declaration
under § 1746 is equivalent to an affidavit for purposes of summary
judgment.”).
6 No. 13-2553
stated that, based on her observations of the conduct of
Ketchum, George Hall, Doug Manock, Steve Conklin, and
Terry Piff in relation to the incidents wherein Monari lost the
chairmanship and Abudusky was asked to resign, Monari
believed that those particular members “held a bias against
women in positions of authority.” Finally, Monari remarked
that, in 2006, Ketchum, Hall, and Manock “regularly voiced
complaints about Victoria Harper’s accounting reports and her
conduct of the Office of Treasurer.”
Second, Mary Hampton, the County’s Circuit Clerk since
1988, testified by deposition that whenever the County Clerk’s
salary was set higher than her salary, she would have to make
a presentation to the Board in order to have her salary raised
to the County Clerk’s level. Hampton testified that male
officers were not required to similarly justify their pay raises
to the Board. However, she admitted that she had no “personal
knowledge of whether the other elected officials appeared
before the Finance Committee to explain why they needed a
particular budget or salary increase … .” Hampton also
testified that she felt that Hall talked down to her and Harper
and adopted a more aggressive tone than when he was
speaking to men. Finally, Hampton testified that in August
2008, when she requested a raise, she felt hostility when she
was in the same room as the members of the Finance Commit-
tee, which at that time included Bucher, Hall, Ketchum,
Manock, and Williams.
None of this testimony is direct evidence that the Board (or
members thereof) denied Harper pay raises because of her sex.
Thus, the question is whether this testimony is strong enough
circumstantial evidence to allow a jury to infer intentional
No. 13-2553 7
discrimination by the Board—or, at least, a critical mass of the
Board’s members. We conclude that this testimony falls far
short of that standard.
Monari’s testimony includes nothing to suggest that the
power struggle resulting in her ouster from the Chairmanship
had anything to do with her sex. To conclude that it did would
be raw speculation. Similarly, Monari fails to link Ketchum,
Hall, and Manock’s complaints about Harper’s performance to
her sex.4 Furthermore, Monari’s testimony that she believes
that a critical mass of male Board members are biased against
women is conclusory. And Hampton’s testimony that male
office-holders were not required to justify their pay raises is
pure speculation in light of her admission that she lacked
personal knowledge. Finally, Hampton does not offer any
evidence linking her sex to her perceptions of hostility from the
Finance Committee members during the August 2008 meeting
to her sex.
All that remains is Monari’s testimony that Ketchum and
“other male members” of the Board asked Abudusky to resign
but did not ask Manock to resign, along with Hampton’s
deposition testimony that Hall spoke more aggressively to her
and Harper than to men. In some circumstances, “behavior
toward or comments directed at other employees in the
protected group” can be one kind of circumstantial evidence
indicating discrimination. Good v. Univ. of Chi. Med. Ctr., 673
F.3d 670, 675 (7th Cir. 2012) (quoting Darchak v. City of Chi. Bd.
4
Indeed, that testimony is consistent with the County’s contention that it
did not give Harper pay raises due to her poor work performance.
8 No. 13-2553
of Educ., 580 F.3d 622, 631 (7th Cir. 2009)). But Harper offers no
evidence that these “other male members” (whom she fails to
identify) were still on the Board in 2010 or, if so, voted to deny
her pay raises. See id. at 676 (“The direct method of proof …
requires evidence leading directly to the conclusion that an
employer was illegally motivated, without reliance on specula-
tion.”). Similarly, even supposing this evidence were enough
to establish that Ketchum and Hall held biases against women,
Harper has failed to link those alleged biases to the decision to
deny Harper pay raises. Adams v. Wal-Mart Stores, Inc., 324 F.3d
935, 939 (7th Cir. 2003) (“‘[B]igotry, per se, is not actionable. It
is actionable only if it results in injury to a plaintiff; there must
be a real link between the bigotry and an adverse employment
action.’” (quoting Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759,
762 (7th Cir. 2001))). This is especially so given that neither
Ketchum nor Hall were on the Finance Committee when the
recommendation was made.
In other words, the testimony does not lead “directly to the
conclusion that” the Finance Committee’s recommendation
and the Board’s vote to adopt that recommendation were
based on Harper’s sex. Good, 673 F.3d at 676. And even if the
testimony had some circumstantial relevance, the totality of
Harper’s evidence is simply insufficient to establish intentional
sex discrimination.
B. Indirect Method
Under the indirect method, also known as the McDonnell
Douglas burden-shifting approach, Harper “must establish a
prima facie case of sex discrimination by producing competent
evidence that (1) she is a woman, (2) she suffered an adverse
No. 13-2553 9
employment action, (3) she was meeting [the County’s]
legitimate business expectations, and (4) a similarly situated
man was treated more favorably.” Weber v. Univs. Research
Ass’n, Inc., 621 F.3d 589, 593 (7th Cir. 2010). If she does so, the
burden shifts to the County to articulate a legitimate, non-
discriminatory justification for denying Harper pay raises. Id.Once the County offers such a justification, the burden shifts
back to Harper to show that the justification is simply a pretext
and that her sex was the real reason she did not receive pay
raises. Id.Here the parties focus on whether the County’s justifica-
tions for denying Harper pay raises are pretextual.5 The
County offers seven justifications for denying Harper pay
raises. First, Conklin, Huggins, and Hall testified that they
believed Harper should not receive pay raises because of an
incident wherein the Illinois State Police investigated Harper
for requesting a check from the County’s General Fund for
“supplies” even though the check was to reimburse herself for
money she had donated to the County in the early 2000s.
Second, Bucher, Conklin, and Hall testified that they believed
that Harper did not work full-time. Third, Bucher, Conklin,
Fletcher, Huggins, and Hall testified that they believed that
Harper could have chosen better investments but refused to do
so or work with the Finance Committee with respect to the
County’s investments. Fourth, the County asserts that on two
different occasions Harper did not provide reports requested
5
The denial of a raise—even a purely discretionary one—can be an adverse
employment action. Hunt v. City of Markham, Ill., 219 F.3d 649, 654 (7th Cir.
2000).
10 No. 13-2553
by the Finance Committee. Fifth, Harper sued the County in
state court in an effort to overturn a Board resolution directing
that the County Administrator be given “read only” access to
the County Treasurer’s reports. Sixth, Harper often did not
provide monthly reports to the Board members until after the
Finance Committee met and shortly before the Board met.
Seventh, Harper did not assist with the County’s budget and
often did not attend Finance Committee meetings.
Harper has utterly failed to come forward with evidence
tending to prove that the County’s numerous justifications for
denying her pay raises are pretexts masking sex
discrimination6. Harper does contend that the testifying Board
members were mistaken about a number of the accusations
they level against her. But so long as these accusations were
sincere, it does not matter whether they were wrong. See
6
Harper argues that the Board was not legally permitted to deny her raises
on the basis of her work performance. Harper relies upon an Illinois
Supreme Court decision referencing that “if one is lawfully entitled to a
public office the right to salary attaches to the office and that it may be
recovered in full, irrespective of any service rendered … .” Kelly v. Chi. Park
Dist., 98 N.E.2d 738, 741 (Ill. 1951). But Kelly is concerned with whether a
public official is actually being paid her full salary—the decision does not
concern an authorized body’s initial decision about what the public office’s
salary should be. At the May meeting, the Board set the salary for the four-
year term commencing in December 2010. Because the elections for that
term had not yet occurred, neither Harper (nor anyone else) was “lawfully
entitled” to the office of County Treasurer for the December 2010 term.
Moreover, apart from imposing minimums not at issue here, the Illinois
Counties Code imposes no substantive limitations on the Board’s power to
set the salaries of certain County officers prior to the commencement of
their terms. See 55 ILCS 5/4-6001.
No. 13-2553 11
Ballance v. City of Springfield, 424 F.3d 614, 621 (7th Cir. 2005)
(observing that a plaintiff cannot prevail if the employer
“honestly believed in the nondiscriminatory reasons it offered,
even if the reasons are foolish or trivial or even baseless”
(quoting Bell v. E.P.A., 232 F.3d 546, 550 (7th Cir. 2000))).7
Moreover, Harper concedes that many of the accusations were
true, but contends that the problems were not (entirely) her
fault. For example, Harper argues that she did not write the
check giving rise to the state police investigation, she did not
have the technical ability (or, at least, the time) to generate the
requested reports, she was not obligated by statute to assist
with the budget or attend Finance Committee meetings, and
the Finance Committee’s investment views wrongly valued
high interest rates over liquidity. However, the fact that some
of the criticisms leveled against Harper may not be completely
fair does not establish that they are pretextual.
Harper’s only attempt to show pretext relates to the lawsuit
she filed against the County in resistance to the Board’s
resolution directing that the County Administrator be given
“read only” access to the County Treasurer’s reports.
Specifically, because County Counsel represented the County,
the state court appointed a special attorney to represent
Harper, but who was to be paid by the County (pursuant to
7
As Ballance makes clear, there is no merit to Harper’s contention that
“[t]his court has not addressed the question of whether proof [of] the falsity
of the employer’s stated reasons for the employment action is all that is
required to survive summary judgment.” Showing that the proffered
justifications were mistaken is not enough; to establish pretext a plaintiff
must show that the employer is lying when it claims that the justifications
were the real reasons for the adverse employment action.
12 No. 13-2553
Illinois law). However, the Board resisted the efforts of
Harper’s attorney to collect his fee for about one and one-half
years. Harper contends that the Board’s reluctance to pay her
attorney’s fee interfered with his ability to attempt to negotiate
and reach a settlement, which shows that the Board was not
genuinely interested in ensuring that the County Administra-
tor obtained access to the County Treasurer’s reports.8 But
Harper’s attorney was appointed for the purpose of aiding
Harper in the lawsuit that she brought in order to oppose the
Board’s demands. It is not reasonable to infer from the Board’s
reluctance to pay for the services rendered on behalf of
Harper’s opposition to the Board’s demands that the Board
was not concerned with Harper’s compliance with those
demands. Indeed, as the County has stated, Harper’s decision
to bring the suit was one of the County’s justifications for
denying Harper pay raises. Regardless, Harper still has
completely failed to come forward with evidence that the
County’s other six justifications are pretextual.
Harper also complains that the Board treated Nelson, a
male, better than her by giving him pay raises. But the County
explains that the Board adopted the Finance Committee’s
recommendation to give Nelson (the County Clerk) pay raises
for the term commencing in December 2010 because of his
particularly excellent work performance. The County points to
evidence that Finance Committee members believed that
Nelson went beyond his normal duties and worked overtime
(including on weekends during the election process). The
County offers evidence that Nelson helped the County save
8
The parties do not tell us the outcome of the state litigation.
No. 13-2553 13
about $160,000 in health insurance premiums. The County also
offers evidence that Finance Committee members believed that
Nelson had improved the equipment, processes, and efficiency
of the election process, had guided the County through a major
information technology upgrade, and had spearheaded the
County’s efforts to establish a geographic information system.
Harper offers no contrary evidence. Thus, in addition to the
complaints about her work performance, the County has
offered undisputed and legitimate reasons for giving pay raises
to Nelson but not to Harper. And Harper offers no evidence
that these reasons are pretexts masking sex discrimination.
Finally, Harper points out that much of the County’s
evidence regarding its justifications for denying her pay raises
(while giving them to Nelson) comes from the testimony of
individual Finance Committee members and other Board
members. Harper contends that this evidence is irrelevant
because it does not necessarily reflect the views of all ten Board
members who voted to deny her pay raises. Of course, any rule
that only evidence reflecting the views of all of these ten Board
members is relevant would not bode well for Harper’s theory
that only some of those Board members (a critical mass) were
motivated by biases against women. In fact, the testimony of
the individual Board members regarding why they voted to
deny Harper pay raises is certainly relevant to whether that
decision was the product of sex discrimination. Similarly,
because the Board merely voted to adopt the Finance Commit-
tee’s recommendation to deny Harper pay raises, the Finance
Committee members’ reasons for making that recommenda-
tion shed light on the Board’s ultimate decision to adopt that
recommendation.
14 No. 13-2553
Moreover, at the May 11, 2010, meeting, the Board adopted
three resolutions concerning the content and timeliness of the
Treasurer’s reports. Harper concedes that these resolutions
demonstrate that the Board was concerned about the content
and timeliness of her reports when it voted to deny her pay
raises. But, as explained above, Harper has failed to show that
the Board’s concerns about the content and timeliness of her
reports were merely excuses covering sex discrimination. Thus,
even if we were to confine our review of the Board’s justifica-
tions to its concerns about the content and timeliness of
Harper’s reports, Harper cannot establish pretext.
III. Conclusion
Because, as a matter of law, Harper cannot establish sex
discrimination under either the direct or indirect method, we
AFFIRM the judgment of the district court.