Erika Langenbach v. Wal-Mart Stores, Incorporated , 761 F.3d 792 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1022
ERIKA M. LANGENBACH,
Plaintiff-Appellant,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12-cv-01019 — Nancy Joseph, Magistrate Judge.
ARGUED MAY 29, 2014 — DECIDED AUGUST 4, 2014
Before BAUER, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Erika Langenbach worked for Wal-Mart
for over ten years, moving her way up the internal hierarchy.
Her progress was consistent until she sought promotion to an
Assistant Manager position; Wal-Mart did not promote her until
more than a year after her initial application submission.
Eventually, she completed the company Management-In-Training
program and began work as an Assistant Manager.
2 No. 14-1022
Although she had impressed her bosses with her previous
work, the Assistant Manager position proved to be a challenge.
Langenbach struggled with delegation, organization, and time
management. After receiving several negative performance
reviews, she was fired. Her termination happened to come five
months after she returned from FMLA leave.
She now alleges that Wal-Mart retaliated against her for
exercising her FMLA rights and discriminated against her because
of her sex by delaying her promotion to Assistant Manager, paying
her less than her male counterparts, and refusing to promote
her further. The district court dismissed the suit following Wal-
Mart’s motion for summary judgment, and we now affirm.
I. BACKGROUND
Langenbach began working for Wal-Mart in 1998, when she
was hired to stock shelves in Mukwonago, Wisconsin. The next
year, she requested and was transferred to the Saukville,
Wisconsin store, where she was promoted to Jewelry Department
Sales Coordinator. In 2001, she was promoted to Jewelry
Department Manager. In 2006 or 2007, Langenbach began seeking
an Assistant Manager position, applying to Wal-Mart’s
Management-In-Training program several times without success.
She was finally admitted to the Management-In-Training program
at a store in West Baraboo, Wisconsin in February 2008. To qualify
for promotion to Assistant Manager, a Wal-Mart employee had
to meet one of the following minimum requirements: (1) one year
retail experience and one year supervisor experience, (2) two
years general work experience and one year supervisor experience,
or (3) completion of two or more years of college.
Upon completing the program, Langenbach began work as
an Assistant Manager at the West Bend, Wisconsin store. She
No. 14-1022 3
was initially assigned to the day shift but was scheduled for the
night shift about a year later. This change-of-shift was in line with
her job description, which noted that Assistant Managers were
required to work overnight shifts as required.
In 2009, Langenbach received her first annual evaluation as
an Assistant Manager. She was given an overall “Solid Performer”
rating, but management also noted a number of deficiencies she
needed to work on, including her assertiveness and time
management skills. Later that year, Langenbach was placed on
her first Performance Improvement Plan (the “2009 PIP”). Wal-
Mart used these plans to improve sub-par performance and
gathered information from managers and supervisees to compile
them. The 2009 PIP described several problems with Langenbach’s
performance, including a lack of leadership, a tendency to push
decisions off on associates, spending too much time in the office
rather than on the sales floor, not following appropriate overnight
shift procedures, and professionalism issues. This PIP was never
completed, however, as Langenbach’s managers did not hold
the anticipated follow-up meetings.
Around January 2010, Langenbach returned to the day shift.
On January 21st, Wal-Mart filed a written discipline comment
(a “Coaching for Improvement” in Wal-martese) concerning
Langenbach. “Coachings” were used for discrete disciplinary
problems, while PIPs were used to address ongoing performance
issues. According to the comment, Langenbach was not following
management routines and frequently failed to complete her duties
on time.
Langenbach’s annual review took place in April 2010. The
Store Manager, Mike Dooley, prepared the review, which gave
Langenbach a competency score of 2.63 out of 5 and a rating of
4 No. 14-1022
“Development Needed.” The review noted that Wal-Mart needed
to see a “complete turn around” from Langenbach and a renewed
sense of “urgency and time management.” It described specific
issues complying with the overnight stocking program,
attendance, and holding underperforming associates accountable.
Later that month, Langenbach discovered that she needed
surgery to remove fibroid tumors in her uterus. In July 2010, she
submitted a written request for continuous leave under the Family
and Medical Leave Act (“FMLA”) from July 30, 2010 to August
26, 2010. Wal-Mart approved the request. A few days before her
scheduled return to work, Langenbach had some complications
involving the incision from her surgery. She spoke with Joanne
Massopust, the Market Human Resources Manager, seeking an
extension of her leave or an accommodation by which she could
work only part-time until the incision healed. Additionally, she
provided a return to work certification form from her doctor,
which indicated that she would be able to return to work without
restrictions on September 13, 2010. In response, Wal-Mart
extended her continuous leave through September 13, 2010.1
Upon return from leave, Langenbach was again assigned to
the overnight shift. While this shift could be more physically
demanding than the day shift, Assistant Managers could delegate
the heavy lifting to the associates they supervised. Around this
time, Langenbach also had a brief discussion with her supervisor,
Courtney Wilcox, where she expressed concerns about her medical
condition. Wilcox told Langenbach that she needed to go back
1
In the district court, Langenbach alleged that Wal-Mart’s grant of
continuous, rather than intermittent, FMLA leave from August 26 to
September 13 constituted interference with her rights under the FMLA. She
abandoned this argument on appeal.
No. 14-1022 5
on leave or request an Americans with Disabilities Act
accommodation if she was concerned about her condition’s effect
on her job performance. Langenbach did not follow up on the
conversation.
Langenbach’s mid-year evaluation took place after she
returned from leave. Although the evaluation was prepared in
July, before Langenbach took her leave, Wal-Mart decided to
deliver it after she returned. This evaluation assessed Langen-
bach’s overall competency rating at 2.26 out of 5 and assigned
her an overall performance rating of “Development Needed.”
As in the 2009 evaluation, the managers’ comments reflected
poor leadership skills and insufficient organization and planning.
Following this poor evaluation, Langenbach was again placed
on a Performance Improvement Plan (the “2010 PIP”). The 2010
PIP identified a number of issues with Langenbach’s performance.
For instance, it described Langenbach’s time management
problems, noting that she was “not organized to be able to give
clear cut deadlines on calendar events, etc. Too many things left
until the last minute. [She gets] focused on one task and forget[s]
or lose[s] track of what else is going on.” It further explained
that Langenbach had not consistently implemented company
policies or complied with Assistant Manager routines. The 2010
PIP went on to identify actions Langenbach could take to improve
her performance, measurement standards by which her
performance would be evaluated, and a time frame in which she
was expected to improve.
Wilcox and Dooley held the first follow-up session for the
2010 PIP in November 2010. Langenbach’s progress was rated
as “Below Expectations” and the follow-up document explained
that she had failed to improve her time management or the
6 No. 14-1022
consistency with which she implemented management routines
and company policies. At the second follow-up session in January
2011, Wilcox and Dooley once more rated Langenbach’s progress
as “Below Expectations,” again citing her poor time management
skills and inconsistent implementation of routines and policies.
The final follow-up session took place on March 1, 2011. Prior
to this session, Wilcox and Dooley met with Massopust and
determined that Langenbach had not made the improvements
specified in the plan. As a result, they decided to fire her.
Several other Wal-Mart employees’ career paths are also
relevant to this appeal. Joe Frankiewicz, who, like Langenbach,
had only a high school education, began working at the West
Bend Wal-Mart as a meat cutter in 1998. Before that, he managed
the meat department at a local Piggly Wiggly. Seven months after
he started, he was promoted to Manager of the West Bend meat
department, an Assistant Manager position. He had to apply
for the position, but he was the only applicant. No Management-
In-Training program was involved because no such program
existed for the food departments. He was uniquely qualified for
this position because he knew how to cut meat, a skill he described
as a “lost art.”
Adam Zastrow began working at Wal-Mart in 2001 as a
produce sales associate in the West Bend store. He started out
with a part-time schedule because at the time, he was attending
community college. Eventually, he completed two years of
community college, but did not obtain an Associate’s Degree.
Eventually, he transitioned to full-time work. A year-and-a-half
later, he attended the Management-In-Training program in Beaver
Dam, Wisconsin and was promoted to Assistant Manager at
another store. He got the job because he mentioned to his manager
No. 14-1022 7
that he was looking for work that paid more and she said she
would recommend him for the program. About six years later,
he was promoted to Shift Manager. A little more than a year after
that promotion, he became a Store Manager.
There were also a number of male college graduates who were
hired directly into the Management-in-Training program—C.J.
Tabasky, Blake Hamel, Preston St. John, LaTravis Henry, and
Troney Shumpert. They all played football for Chris Meidt, Wal-
Mart’s Regional Manager in Wisconsin. Meidt had them e-mail
their resumes to him and forwarded them on to the human
resources manager.
II. ARGUMENT
On appeal, Langenbach argues that the district court erred
in granting summary judgment on her FMLA retaliation claim
and her Title VII failure-to-promote and disparate pay claims.
We will address each of these claims in turn, mindful that we
review the district court’s summary judgment determination
de novo and will affirm only if, drawing all reasonable inferences
in Langenbach’s favor, there is no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
A. FMLA Retaliation Claim
Langenbach first asserts that Wal-Mart illegally retaliated
against her for exercising her rights under the FMLA by taking
several adverse actions against her after she returned from leave.
To make out a prima facie retaliation case, an employee can
proceed using either a direct or indirect method of proof. Scruggs
v. Carrier Corp., 688 F.3d 821, 826 (7th Cir. 2012).
8 No. 14-1022
1. Direct Method
To establish a prima facie case using the direct method,
Langenbach had to “present evidence of (1) a statutorily protected
activity; (2) a materially adverse action taken by the employer;
and (3) a causal connection between the two.” Id. at 826. The
parties do not dispute that Langenbach’s leave was statutorily
protected. They do, however, dispute which of Wal-Mart’s actions
were “materially adverse” and whether there was a causal
connection between Langenbach’s FMLA leave and the materially
adverse actions.
Langenbach argues that Wal-Mart took four materially adverse
actions against her: giving her the worst performance rating she
had ever received, placing her on a performance improvement
plan, assigning her to the overnight shift, and terminating her.
The first two of these actions—her performance review and the
2010 PIP—are not materially adverse. See Haywood v. Lucent Techs.,
Inc., 323 F.3d 524, 532 (7th Cir. 2003) (negative performance
evaluations alone are not an adverse employment action); Cole
v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009) (implementation of
a performance improvement plan not materially adverse action).
Langenbach’s assignment to the night shift was likewise not
materially adverse. Where there is no evidence the defendant
sought to exploit a “known vulnerability” by altering a plaintiff’s
work schedule upon return from FMLA leave, a schedule change
is not a materially adverse action. Porter v. City of Chi., 700 F.3d
944, 955 (7th Cir. 2012); cf. Washington v. Ill. Dep’t of Revenue, 420
F.3d 658, 662 (7th Cir. 2005) (finding that, in altering plaintiff’s
schedule, employer sought to exploit a “known vulnerabil-
ity”—the fact that she used her prior flex time schedule to care
for her disabled son). Langenbach asserts that the night shift was
No. 14-1022 9
more physically demanding, and that she had alerted her
supervisors to ongoing limitations following her return to work.
But Langenbach also did not seek special accommodations after
Massopust told her she could, and her doctor had cleared her
to work without restrictions. Based on these facts, we don’t think
it is a reasonable inference that Wal-Mart assigned her to the night
shift to exploit a known vulnerability. See McCann v. Iroquois Hosp.
Corp., 622 F.3d 745, 754 (7th Cir. 2010).
This leaves Langenbach’s termination, which the parties agree
is a materially adverse action. Proceeding to step three of the
direct method analysis, we must determine if there is a causal
connection between Langenbach’s FMLA leave and Wal-Mart’s
decision to fire her. Langenbach can establish a causal nexus either
with a direct admission from Wal-Mart or “a convincing mosaic
of circumstantial evidence.” Pagel v. TIN Inc., 695 F.3d 622, 631
(7th Cir. 2012). This mosaic can include suspicious timing,
ambiguous statements from which retaliatory intent can be
inferred, evidence of similar employees being treated differently,
or evidence that the employer offered a pretextual reason for
the termination. Id. On summary judgment, this circumstantial
evidence must point “directly to the conclusion that an employer
was illegally motivated, without reliance on speculation.” Good
v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 676 (7th Cir. 2012).
Langenbach cannot lead us to conclude that she was fired
for retaliatory reasons without the aid of unbridled speculation.
She asserts both that the timing of her termination was suspicious
and that her managers offered pretextual reasons for it. But she
cannot deny that she had a history of performance issues that
preceded her 2010 leave. Before taking leave, she had already
received low performance evaluations and been placed on a PIP
10 No. 14-1022
(although her supervisors did not follow up with it). And the
comments her supervisors made about her shortcomings as an
Assistant Manager were consistent both before and after her leave;
at all relevant times, they complained that she lacked leadership
and time management skills. We do not see anything that suggests
a different conclusion.
2. Indirect Method
Alternatively, Langenbach asks us to consider whether she
can survive summary judgment using the indirect method of
proof. To make out such a claim, she must present evidence that
she was meeting Wal-Mart’s legitimate expectations, suffered
an adverse employment action, and was treated less favorably
than similarly situated employees who did not request FMLA
leave. Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 592 (7th Cir.
2008).
Langenbach did not present evidence that she was meeting
Wal-Mart’s legitimate expectations. When determining if this
is so, “the issue is not the employee’s past performance but
whether the employee was performing well at the time of [her]
termination.” Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th
Cir. 2002) (internal quotation marks omitted). The only evidence
Langenbach points to that her work at the time she was fired
was satisfactory is a comment by Wilcox that she was “doing
great” and “doing fine.” These comments are relevant, as Wilcox
was involved in the decision to fire Langenbach. Cf. Young v. James
Green Mgmt., Inc., 327 F.3d 616, 622 n.2 (7th Cir. 2003) (in
employment discrimination cases, declarant must be involved
in the decision-making process affecting the challenged
employment action). But they are also consistent with the written
evaluations received at the 2010 PIP follow-up meetings, in which
No. 14-1022 11
Wilcox noted that Langenbach had “made strides to improve
her performance” but that they ultimately were not enough to
meet company expectations. And, in any event, there is
voluminous evidence that Langenbach was not meeting Wal-
Mart’s expectations—the notes from the 2010 PIP, her evaluations,
and the deposition testimony of her co-workers. Without some
other evidence of the quality of Langenbach’s work, we cannot
say she was meeting Wal-Mart’s expectations. She therefore cannot
make out a case for FMLA retaliation using the indirect method.
B. Title VII
Langenbach also makes two claims of sex discrimination under
Title VII: that Wal-Mart failed to promote her because of her sex
and that she was paid less than her male counterparts.
Her failure-to-promote claim has two factual bases: first, the
ten-year delay in promoting her to Assistant Manager and second,
Wal-Mart’s failure to promote her past Assistant Manager. The
latter can be dismissed out of hand: Langenbach was fired from
her Assistant Manager position because she was not meeting
Wal-Mart’s performance expectations. Further, she admitted in
her deposition that she was not qualified for promotion past
Assistant Manager, and she never applied for any higher position.
See Grayson v. City of Chi., 317 F.3d 745, 748 (7th Cir. 2003) (one
of the requirements for making out a prima facie case of
discrimination is that the plaintiff applied for the job sought).
12 No. 14-1022
The former takes a little more analysis.2 As in the FMLA
analysis above, a Title VII discrimination plaintiff can proceed
under either the direct or indirect method of proof.
We begin with the indirect method. This method employs
a burden-shifting approach: the employee must first make out
a prima facie case of discrimination before the burden of
disproving discrimination falls to the employer. Collins v. Am.
Red Cross, 715 F.3d 994, 1000 (7th Cir. 2013). A prima facie case
of employment discrimination requires evidence that: (1) the
employee is a member of a protected class, (2) she was meeting
the employer’s legitimate expectations, (3) she suffered an adverse
employment action, and (4) similarly situated employees outside
of the protected class were treated more favorably. Naficy v. Ill.
Dep’t of Human Servs., 697 F.3d 504, 511 (7th Cir. 2012). Langenbach
has presented sufficient evidence of the first three requirements
to survive summary judgment. There is no serious question that
she is a member of the protected class or that she was meeting
the employer’s legitimate expectations at the time she applied
for promotion to assistant manager; all her reviews from her time
as a Jewelry Department Manager were positive. And a significant
delay in promotion can be an adverse employment action. Bannon
2
Wal-Mart argues the claim is time barred, as the theory is based on
alleged discriminatory actions that took place prior to Langenbach’s
promotion to Assistant Manager in April 2008. Under Title VII, a challenge
to an unlawful employment practice must be filed within 300 days of the
discrete discriminatory action. Roney v. Ill. Dep’t of Transp., 474 F.3d 455, 460
(7th Cir. 2007). Because Langenbach did not file any Title VII claims until
much longer than 300 days after her promotion, Wal-Mart contends, any
claim based on conduct from 2008 is barred. We need not address this
argument, however, because we find that Langenbach’s claim fails on the
merits.
No. 14-1022 13
v. Univ. of Chi., 503 F.3d 623, 628 (7th Cir. 2007) (recognizing that
delayed promotion can be the basis for a discrimination suit but
rejecting that basis where the gap between plaintiff’s application
for and receipt of a promotion was only two months).
This leaves us to consider whether Langenbach pointed to
sufficient evidence that similarly-situated male employees were
promoted more quickly than she was. To be “similarly situated,”
co-workers must be “directly comparable to the plaintiff in all
material aspects, but they need not be identical in every
conceivable way.” Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir.
2012) (citing Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 365–66
(7th Cir. 2009)) (internal quotation marks omitted). Whether a
co-worker is similarly situated is typically a question for the fact-
finder, but summary judgment is appropriate where no reasonable
jury could find the plaintiff has met her burden. Srail v. Vill. of
Lisle, 588 F.3d 940, 945 (7th Cir. 2009).
For comparison, Langenbach relies primarily on two male
Wal-Mart employees: Joe Frankiewicz and Adam Zastrow. Both
were promoted to Assistant Manager less than two years after
being hired and upon their first application to the position.3
Langenbach, by contrast, applied several times for a management
position in her district beginning in 2006 or 2007. Her applications
were denied. She eventually applied outside her district and was
3
She also points to the football-playing college graduates who were hired
directly into the Assistant Manager role. Langenbach, however, has only a
high school diploma so these men are not directly comparable to her. She
complains that Chris Meidt, the Regional Manager, hired these men from
a college football team he used to coach without using the normal policy.
Again, however, they are not similarly situated to Langenbach and thus are
not relevant to her case.
14 No. 14-1022
accepted into a Management-In-Training program in another
district in 2008.
But Frankiewicz and Zastrow both differ in significant ways
from Langenbach. Frankiewicz has a special skill—the “lost art”
of meat cutting—that uniquely qualified him to become an
Assistant Manager heading up the meat department. He also
had three years of management experience at a local Piggly Wiggly
before starting work at Wal-Mart. Langenbach does not allege
that she also had such qualifications. Likewise, Zastrow had two
years of community college experience, which alone allowed
him to meet the minimum requirements for the Assistant Manager
position. Langenbach has no education past a high school diploma.
Differences in experience, education, and qualifications are
relevant to the similarly-situated analysis so long as the employer
took them into account when making the relevant employer
decisions. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002). Wal-Mart’s minimum requirements for the
Assistant Manager position depend heavily on schooling and
experience. We do not think, given these significant differences,
that a reasonable fact-finder would find Frankiewicz or Zastrow
an adequate comparator for Langenbach.
This brings us to the direct method. To prevail, a plaintiff must
produce either direct or circumstantial evidence that would permit
a jury to infer that discrimination motivated an adverse
employment action. Diaz v. Kraft Foods Global, Inc., 653 F.3d 582,
587 (7th Cir. 2011). Langenbach lacks direct evidence, and so must
rely on circumstantial evidence. Circumstantial evidence can
take a number of forms, such as suspicious timing, behavior or
comments directed at members of the protected group, evidence
showing that similarly-situated employees outside the protected
No. 14-1022 15
group received systematically better treatment, and evidence
that the reason the employer gave for the adverse action was
pretextual. Id. She relies exclusively on evidence showing that
similarly-situated male employees were promoted more quickly
than she was. But the analysis for whether the men were similarly
situated is substantially the same as the analysis under the indirect
method. See Good, 673 F.3d at 675–75 (7th Cir. 2012). Because
Zastrow and Frankiewicz are inappropriate comparators under
the indirect method, they are similarly inappropriate for the direct
method of proving discrimination.
Langenbach also contends that she was paid less than her
male counterparts because she was not promoted when she should
have been. This argument is inextricably intertwined with her
delayed-promotion argument, as Wal-Mart’s pay structure is
linked to job title and seniority; essentially, her argument is that
she was paid less than her male counterparts because she was
not promoted at the same rate. Because we find the grant of
summary judgment was appropriate on her delayed-promotion
claim, we need not address her disparate pay claim.
III. CONCLUSION
On the undisputed facts, we do not believe Langenbach can
establish either that she was retaliated against for taking FMLA
leave or that she was discriminated against because of her sex.
We therefore AFFIRM the district court’s decision.