Gary Vaughn v. Thomas Vilsack , 715 F.3d 1001 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3673
G ARY V AUGHN,
Plaintiff-Appellant,
v.
T HOMAS J. V ILSACK,
Secretary, United States
Department of Agriculture,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-cv-00455-WDS—William D. Stiehl, Judge.
A RGUED O CTOBER 3, 2012—D ECIDED M ARCH 8, 2013
Before F LAUM, R IPPLE and W ILLIAMS, Circuit Judges.
R IPPLE, Circuit Judge. Gary Vaughn is employed by
the United States Department of Agriculture (“USDA”).
In this action under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17, he claims that he
suffered retaliation for engaging in protected activity
under the Act. The district court granted summary judg-
2 No. 11-3673
ment in favor of the Secretary.1 Mr. Vaughn timely ap-
pealed.2 For the reasons set forth in the following opin-
ion, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
When reviewing a grant of summary judgment, we
construe all facts in the light most favorable to the
nonmoving party, here, Mr. Vaughn. See Harper v. C.R.
England, Inc., 687 F.3d 297, 306 (7th Cir. 2012).
Mr. Vaughn started working for the United States Forest
Service, an agency within the USDA, in 1974. At all rele-
vant times, except when on temporary detail, he held
the title of Career Development Specialist, a GS-9 position,
and was assigned primarily to a facility in Golconda,
Illinois. That facility is a Job Corps training center that
the Forest Service operates for the Department of Labor.
This case involves two seemingly unrelated series of
events in Mr. Vaughn’s employment history that inter-
sected to form the basis of the present action.
1
The district court’s jurisdiction was predicated on 28 U.S.C.
§§ 1331 and 1343(a)(4).
2
The jurisdiction of this court is predicated on 28 U.S.C. § 1291.
No. 11-3673 3
1.
The first course of events involves a series of
earlier employment discrimination complaints filed by
Mr. Vaughn. Most were internal complaints with his
agency’s Equal Employment Opportunity (“EEO”) coun-
selor. These were filed in 1997, 2004, 2005 and 2006. In
these complaints, he accused the Forest Service of dis-
crimination based on race and age, and of retaliation
for exercising his right to bring such complaints. The
2005 complaint progressed to an action in the district court.
Mr. Vaughn and the USDA eventually settled all of
those matters, including the litigation in the district
court, in which he signed a settlement agreement on
September 11, 2007. Two days later, he received a
“letter of direction” from David Floyd, the director of
the Golconda Job Corps Center (the “Center”). That
communication informed Mr. Vaughn of a change in
his work schedule. He would no longer work regular
weekday hours. Instead, he would work Wednesday
through Friday from 3:30 p.m. to midnight, and Saturday
and Sunday from 8:00 a.m. to 4:30 p.m. Since receiving
the letter of direction, Mr. Vaughn also has been passed
over for a temporary assignment (what the parties call
a “rotation” or “detail”) to cover for a GS-11 employee
on extended leave. At the Center, details for temporary
positions typically are advertised and then held by the
selected employee for no more than 120 days. The par-
ticular temporary position that Mr. Vaughn sought
never was advertised, and his two co-workers who were
selected each held the higher-paying job for longer
4 No. 11-3673
than 120 days. Mr. Vaughn submitted three requests
for this detail and, after the third request, was told that
he might be considered in the future.
During the same period, Mr. Vaughn was denied over-
time opportunities. Director Floyd initially told
Mr. Vaughn in March 2008 that management’s con-
fusion about the terms of his union contract explained
the lack of overtime. In September 2008, however, the
Forest Service transferred Mr. Vaughn to a different,
newly created department, which removed him
entirely from the overtime rotation.
2.
While the events that we just described were unfolding,
a different series of events, parallel in its chronology,
also was occurring and eventually intersected with
those just described.
Beginning in 2005, Lynn Towery, the Career Develop-
ment Manager at the Center, filed a series of harassment
complaints against Mr. Vaughn. In April of that year,
Mr. Vaughn and Ms. Towery had ended a five-year
relationship. A few months after their break-up,
Ms. Towery notified Michael Ayon, Mr. Vaughn’s super-
visor, that Mr. Vaughn was harassing her on the job
by contacting her excessively for reasons unrelated to
work. In June 2005, Ayon met with Ms. Towery and
Mr. Vaughn; both employees agreed to limit all tele-
phone and in-person contact at work to work-related
issues. Less than a month later, however, Ms. Towery
No. 11-3673 5
accused Mr. Vaughn of not honoring their June 2005
agreement. After Director Floyd determined that
Mr. Vaughn had violated that agreement, Mr. Vaughn
was placed on paid administrative leave. The next day,
Ms. Towery sought an order of protection from the
Circuit Court of Saline County, Illinois. After a contested
hearing, in which Ms. Towery, Mr. Vaughn and other
witnesses testified, the state court granted Ms. Towery
an order of protection. That order, issued in July, di-
rected Mr. Vaughn to stay 500 feet away from her, except
at work if their responsibilities necessitated otherwise.
Mr. Vaughn remained on administrative leave
through July. The next month, he attended two ses-
sions with a psychotherapist, who was tasked with eval-
uating his fitness to return to work. The psycho-
therapist concluded that, although Mr. Vaughn was
mentally capable of returning, his “narcissistic”
tendencies “would predictably exacerbate an already
‘strained’ workplace environment with Lynn Towery.” 3
The psychotherapist also reported that Mr. Vaughn
had acknowledged that Ms. Towery received the order
of protection “due to his obsessive/compulsive contacts
and phone calls with her and difficulty accepting the
end of the relationship.” 4
The Forest Service permitted Mr. Vaughn to return to
work in September 2005. Rather than assign him to his
prior post, however, his superiors detailed him as a
3
R.20-21 at 9.
4
Id. at 4.
6 No. 11-3673
recreation specialist so that his schedule and tasks would
not bring him into contact with Ms. Towery. They also
instructed Mr. Vaughn not to contact her. To assure
compliance with the order of protection, Director Floyd
further directed Mr. Vaughn to stay within his work
area unless otherwise granted permission. Five months
later, in February 2006, the Forest Service lifted this
restriction.
In April 2006, after his 2006 EEO complaint had
been mediated, Mr. Vaughn returned to his old job. This
move once again brought him into regular contact with
Ms. Towery and her previous concerns resurfaced. Con-
sequently, in August, Director Floyd notified head-
quarters in Washington about the conflict between the
two employees and expressed concern that the tension
was affecting employee morale. He suggested that
“[t]he Center will be better off if these two people do
not have to work in concert with each other.” 5
In October 2006, six months after Mr. Vaughn had
resumed his old job, Director Floyd notified him that
Ms. Towery had filed an internal formal complaint,
alleging that he again was excessively contacting her. 6
The Director also informed him that several other em-
ployees had reported observing him following
Ms. Towery’s car in the parking lot, pulling in front of
her and then slowing down. Director Floyd ordered
Mr. Vaughn to refrain from contacting Ms. Towery by
5
R.20-6 at 3.
6
R.21 at 2.
No. 11-3673 7
phone, e-mail or in person, even for work-related matters.
Director Floyd also warned him that violating these
instructions would lead to disciplinary action, possibly
including termination, and reminded him that he could
file a grievance.
In February 2007, Ms. Towery filed an administrative
complaint with the Equal Employment Opportunity
Commission (“EEOC”), claiming sexual harassment. She
alleged that management at the Center had failed to
control Mr. Vaughn’s continuous, non-work-related
contacts, had facilitated his harassment by returning
him to his old job where the opportunities for inter-
action between them were greater and had failed to
limit excessive and unnecessary phone calls and e-mails
to work-related matters. On August 23, 2007, Ms. Towery
and the USDA reached a settlement agreement that,
in addition to providing monetary compensation to
Ms. Towery, prohibited Mr. Vaughn from being on the
job site at the same time as she. The letter of direction
from Director Floyd that changed Mr. Vaughn’s work
hours was issued three weeks later.
B. Procedural History
Mr. Vaughn linked the change in work hours, his exclu-
sion from participating in the GS-11 rotation and the
denial of overtime to the September 2007 settlement of
his Title VII suit. He filed two more administrative com-
plaints, alleging retaliation for his prior EEO activity.
Those complaints were resolved against him in March
and May 2009. After receiving a right-to-sue letter,
8 No. 11-3673
Mr. Vaughn filed suit against the USDA in the Southern
District of Illinois on June 15, 2009. He claimed that
Forest Service managers had retaliated against him for
his prior EEO activity by changing his work schedule,
denying his requests for a rotation in the GS-11 detail
and denying him overtime opportunities.
The Secretary moved for summary judgment, arguing
that the change in work schedule was necessary to
comply with the terms of its settlement with Ms. Towery,
whose accusations of harassment by Mr. Vaughn had
been building for some time. The Secretary further ex-
plained that Mr. Vaughn’s requests to participate in the
GS-11 rotation and for overtime had to be denied as a
necessary consequence of Ms. Towery’s settlement.
The district court granted summary judgment in favor
of the Secretary. The court concluded that Mr. Vaughn
had failed to submit sufficient evidence to establish a
prima facie case of retaliation under either the direct
or indirect methods of proof. The court reasoned that
the Secretary’s evidence—nearly two years’ worth of
complaints from Ms. Towery and an order of protec-
tion issued by a state court—negated the possibility
of inferring a causal connection between the Septem-
ber 2007 settlement of Mr. Vaughn’s first lawsuit and
the letter of direction that closely followed. Moreover,
the district court continued, Mr. Vaughn had not estab-
lished a prima facie case of retaliation because he
could not have been meeting his employer’s legitimate
expectations while harassing a co-worker. Mr. Vaughn
now appeals the judgment of the district court.
No. 11-3673 9
II
DISCUSSION
A. Standard of Review
We review de novo the district court’s grant of sum-
mary judgment. Hoppe v. Lewis Univ., 692 F.3d 833, 838
(7th Cir. 2012). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Jajeh v. Cnty. of Cook, 678
F.3d 560, 566 (7th Cir. 2012). We shall uphold a grant of
summary judgment if “the pleadings, discovery and
disclosure materials on file, as well as any affidavits,
demonstrate that there is no genuine issue of material
fact.” Winsley v. Cook Cnty., 563 F.3d 598, 603 (7th Cir.
2009) (citing former Fed. R. Civ. P. 56(c)).
B. Retaliation Under Title VII
To establish a prima facie case of retaliation, a plain-
tiff may proceed under either the direct or indirect meth-
ods of proof. Milligan v. Bd. of Trs. of S. Illinois Univ., 686
F.3d 378, 388 (7th Cir. 2012). Mr. Vaughn admits that
he did not rely on the direct method in the summary
judgment proceedings in the district court, and, conse-
quently, he declines to contest that aspect of the district
court’s ruling. He insists, however, that he did establish
a triable case of retaliation under the indirect method
of proof.
To meet his initial burden under that method,
Mr. Vaughn had to establish a prima facie case of retalia-
10 No. 11-3673
tion by demonstrating that: “(1) he engaged in a statu-
torily protected activity; (2) he met his employer’s legiti-
mate expectations . . . ; (3) he suffered a materially
adverse action; and (4) he was treated less favorably
than some similarly situated employee who did not
engage in the statutorily protected activity.” Harper, 687
F.3d at 309. If a plaintiff claiming retaliation produces
evidence that could establish all four elements, the
burden shifts to the defendant to offer a nondiscrim-
inatory reason for the adverse action. Id. If the defendant
identifies an appropriate reason, the burden shifts back
to the plaintiff to supply proof that the proffered reason
is pretextual. Id.
The Secretary did not dispute that Mr. Vaughn
engaged in statutorily protected activity. The dis-
trict court believed, however, that Mr. Vaughn’s claim
foundered on the second element of his prima
facie case—whether he was meeting his employer’s
legitimate employment expectations. Mr. Vaughn
now claims that the district court misapprehended
that there was no dispute between the parties on this
second element. He further submits that his evidence
was sufficient to establish the remaining elements of
his prima facie case and to demonstrate that the rea-
sons given for the actions taken against him were
pretextual. We now turn to an examination of
these contentions.
1.
The record does not support Mr. Vaughn’s conten-
tion that he was satisfying the legitimate performance
No. 11-3673 11
expectations of Forest Service management at the time
he received the letter of direction. An employee who
sexually harasses a co-worker cannot be considered to
be meeting his employer’s legitimate expectations “by
any stretch of the imagination.” Grayson v. O’Neill, 308
F.3d 808, 818 (7th Cir. 2002). Even if, as Mr. Vaughn
asserts, his unwanted contacts did not rise to the level
of actionable harassment on account of sex—the subject of
Ms. Towery’s EEOC complaint—he cannot contend
seriously that he was performing his job in a manner
that the Forest Service, or any other employer, would
find acceptable. There is no validity to Mr. Vaughn’s
suggestion that an employer must tolerate harassment
of a co-worker, no matter how offensive or disruptive to
the workplace, so long as the harasser does not cross
the threshold that will subject the employer to liability
for ignoring the harassment. See Hall v. Bodine Elec. Co.,
276 F.3d 345, 359 (7th Cir. 2002) (explaining that the
employer could have terminated plaintiff for engaging
in “tawdry” conduct not amounting to sexual harass-
ment to avoid future complaints of sex discrimination
or harassment).7 Mr. Vaughn had been warned that he
7
See also Merritt v. Dillard Paper Co., 120 F.3d 1181, 1191 (11th
Cir. 1997) (“We are emphatically not holding, however, that an
alleged sexual harasser cannot be fired. In fact, it may be
prudent for an employer to fire or otherwise discipline a
sexual harasser in order to avoid Title VII liability in the
future.”); Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)
(noting that while Title VII does not require employers to
terminate all sexual harassers, “[e]mployers should impose
(continued...)
12 No. 11-3673
would be disciplined—up to and including termina-
tion—if he did not remedy his behavior. He cannot use
his prior EEO activity as a shield against the con-
sequences of his inappropriate workplace conduct. See
Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir.
2008) (noting that “inappropriate workplace activities
are not legitimized by an earlier-filed complaint of dis-
crimination”).
Mr. Vaughn attempts to discredit Ms. Towery’s accusa-
tions by questioning her motives. He points to the af-
fidavit of one co-worker who avers that he overheard
Ms. Towery vow to “do whatever it takes to get Gary
Vaughn fired.” 8 Attacking her credibility, however, does
not strengthen his argument that he was meeting his
employer’s legitimate performance expectations. Even
if this affidavit could be said to cast doubt on the truth
of Ms. Towery’s allegations, it is irrelevant to whether
Mr. Vaughn was fulfilling the Forest Service’s expecta-
tions. The relevant inquiry is whether management
believed in good faith that its decision with respect to
Mr. Vaughn was appropriate to remedy behavior which,
based on the information then available, only could be
7
(...continued)
sufficient penalties to assure a workplace free from sexual
harassment,” among which may be removal to avoid Title VII
liability); cf. Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d
1181, 1187 (11th Cir. 1984) (noting that “Title VII does not take
away an employer’s right to interpret its rules as it chooses,
and to make determinations as it sees fit under those rules”).
8
R.31.
No. 11-3673 13
described as harassing. See Harper, 687 F.3d at 310-11
(emphasizing facts known to employer at time of
plaintiff’s termination).
In sum, given the significant evidence before the
Forest Service that Mr. Vaughn had engaged in inap-
propriate behavior in the workplace with respect to
Ms. Towery, the record supports the Forest Service’s
view that it was permissible for it to act on that evidence
to protect its employee and maintain the effectiveness
of the office.
2.
Because Mr. Vaughn failed to establish all four
elements of a prima facie case of retaliation under the
indirect method, we do not need to address the issue of
pretext. See Harper, 687 F.3d at 311. Mr. Vaughn’s attacks
on the USDA’s investigation of Ms. Towery’s claims
highlight, however, that, in many cases, analysis of the
“legitimate expectations” prong of the prima facie case
is very much akin to, or merges with, the question of
pretext.9 That is the situation here, and thus summary
judgment for the Secretary was appropriate even if we
consider Mr. Vaughn’s claim that the USDA’s explana-
tion for its actions against him is pretextual.
9
See, e.g., Benuzzi v. Bd. of Educ. of Chicago, 647 F.3d 652, 663 (7th
Cir. 2011); Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 477
(7th Cir. 2010); Jones v. Union Pac. R.R. Co., 302 F.3d 735, 742 (7th
Cir. 2002).
14 No. 11-3673
The focus of the pretext inquiry is whether the prof-
fered reason for issuing the letter of direction is a lie.
O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th
Cir. 2011). Mr. Vaughn contends that the USDA’s ex-
planation—that action was taken as required by its settle-
ment with Ms. Towery—must be false because, he
insists, Forest Service management “never investigated
Towery’s claims at all.” 1 0 Instead, he says, the USDA
implemented the adverse actions without telling him
about Ms. Towery’s accusations or giving him an oppor-
tunity to respond. The record does not support this
contention.
The investigation window opened in 2005 with
Ms. Towery’s first accusation of harassment, not twenty
months later when she finally filed an administrative
complaint with the EEOC. During the interim, manage-
ment received numerous complaints from Ms. Towery,
placed Mr. Vaughn on administrative leave after investi-
gating her allegations, reviewed a psychotherapist’s re-
port as well as reports from other employees about
his threatening behavior toward her and consulted
with headquarters in Washington. Mr. Vaughn knew
about these accusations to management but never
denied them. He even acknowledged his “obses-
sive/compulsive contacts” with Ms. Towery.1 1 This in-
formation amassed by management renders baseless
Mr. Vaughn’s charge of a sham investigation. See, e.g.,
10
Appellant’s Br. 28.
11
R.20-21 at 4.
No. 11-3673 15
Luster v. Illinois Dep’t of Corr., 652 F.3d 726, 729, 733 (7th
Cir. 2011) (concluding that the employer conducted a
reasonable investigation of a co-worker’s accusation of
sexual harassment against plaintiff by interviewing
plaintiff, the complaining co-worker and two wit-
nesses). The fact that the USDA did not interview
Mr. Vaughn during the course of the EEOC investiga-
tion is not fatal. See Davis v. Time Warner Cable of South-
eastern Wis., L.P., 651 F.3d 664, 674 (7th Cir. 2011)
(noting that the employer’s failure to interview em-
ployee during course of a pre-termination investigation
was not enough, by itself, to raise inference of pretext).
Mr. Vaughn next argues that an inference of pretext
arises from what he describes as contradictory explana-
tions for refusing him overtime. Inconsistent or shifting
employer explanations, in some cases, can provide a
reasonable basis for finding pretext. Silverman v. Bd. of
Educ. of Chicago, 637 F.3d 729, 737 (7th Cir. 2011);
Schuster v. Lucent Techs., Inc., 327 F.3d 569, 577 (7th
Cir. 2003) (holding that explanations can provide a
basis for finding pretext if they are sufficiently shifting
and inconsistent to permit an inference of mendacity).
Director Floyd initially attributed the absence of over-
time to a misreading of the labor agreement. After that
misunderstanding was dispelled, however, Mr. Vaughn
was told that giving him overtime was impossible
because those hours would require him to work during
Ms. Towery’s shifts, which the settlement agreement
with her forbids.
These are not inconsistent explanations. Mr. Vaughn
knew from the time his schedule was first changed that
16 No. 11-3673
he could no longer work during Ms. Towery’s work hours;
management’s explanation that this no-contact restric-
tion effectively precluded overtime hours is consistent
with Mr. Vaughn’s inability to be at the Center at the
same time as Ms. Towery. Director Floyd’s misreading
of the union contract imposed what Mr. Vaughn thought
was an additional restriction on his working overtime;
Director Floyd’s later correction of that mistake and
reminder to Mr. Vaughn that overtime still was not
available due to Ms. Towery’s settlement constituted
reconfirmation of an existing explanation, “rather than
an abrupt change in explanation.” Schuster, 327 F.3d at 579.
Mr. Vaughn further submits that management’s ex-
planation for denying him overtime is pretextual
because, soon after the misunderstanding about his
contract was resolved, he was placed in a newly
created department, which eliminated him entirely
from overtime consideration. At summary judgment,
Mr. Vaughn insisted that this change in assignment
was suspicious, not only because of its timing, but
also because the only other person reassigned to that
department, Jane Parker, also had lodged a charge of
discrimination. The two of them, Mr. Vaughn asserted,
were the only non-managerial employees at the Center
who had engaged in EEO activity in the recent past.
In fact, Mr. Vaughn’s evidence discloses a third
non-managerial employee who had engaged in EEO
activity but was not assigned to the new department.
Mr. Vaughn tried to distinguish that employee from
himself and Parker by pointing to evidence that the
other employee’s EEO activity had taken place “many
No. 11-3673 17
years ago.” 12 Yet, he never defined “many years,” making
the proposed distinction of little analytical usefulness.
In any event, Mr. Vaughn’s transfer to the new depart-
ment does not raise any inference of pretext because
the status quo remained unchanged after the reassign-
ment. Before the move, Mr. Vaughn was in a position
where overtime was authorized but unavailable to him
because additional hours would bring him in contact
with Ms. Towery; after the move, overtime was simply
not available. Mr. Vaughn’s transfer therefore did not
place him in a situation any worse than the one in which
he had been before the transfer. He could not work over-
time in either job, and at summary judgment, he never
suggested that the new position had other negative
attributes not present in his previous position.
Lastly, Mr. Vaughn argues that management’s explana-
tion that he could not rotate into the GS-11 position
because of Ms. Towery’s settlement must be pretextual
because he had not been told why he could not perform
the detail during his new hours. Mr. Vaughn’s argument
fails, however, in light of the job duties of the position.
The detailee “is responsible for the supervision and
administration of the entire ‘vocation trades’ section of
the facility, including carpentry, masonry, and electrical,
as well as the maintenance of the Center.” 1 3 At summary
judgment Mr. Vaughn did not even suggest, let alone
present evidence, that all of those activities could be
12
R.28-3 at 4.
13
R.2-2 at 2.
18 No. 11-3673
supervised without ever being on the premises during
normal work hours.
In sum, Mr. Vaughn has failed to establish a prima
facie case of retaliation because he has failed to demon-
strate that he was meeting his employer’s legitimate ex-
pectations. Moreover, even if we consider Mr. Vaughn’s
claim that the USDA’s explanation of its actions
against him is pretextual, the Secretary has put for-
ward, and he has failed to rebut, a legitimate reason for
the action that was taken.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
A FFIRMED
3-8-13