Barbara Thomas-Bagrowski v. Ray LaHood ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 15, 2009
Decided January 19, 2010
Before
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 08-3952
BARBARA THOMAS-BAGROWSKI, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 04 C 3544
RAY LaHOOD, Secretary of
Transportation, Wayne R. Andersen,
Defendant-Appellee. Judge.
ORDER
In this lawsuit under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000et seq., Barbara Thomas-Bagrowski claims that she was the victim of racial discrimination,
retaliation, and a hostile work environment while employed by the Federal Aviation
Admin-istration (FAA). The district court granted summary judgment for the FAA, and
Thomas-Bagrowski appeals.
Thomas-Bagrowski was already a management employee in November 1997 when
she and three other employees applied for a permanent position as a team leader in the
No. 08-3952 Page 2
FAA’s human resources division. A panel interviewed the four candidates and gave a
white applicant, Valerie Granahan, the highest score. Thomas-Bagrowski, who is African-
American, finished third. Thomas-Bagrowski did not contest the scoring. Eventually, the
position was not filled due to a hiring freeze and internal job restructuring.
In June 1998, the FAA wanted to fill a temporary (one-year) opening for a team
leader. Joseph Yokley, the regional manager for human resources, decided to appoint
Granahan and Thomas-Bagrowski to split the position for six months each based on their
1997 interview scores. Yokley, who is African-American and was not a member of the
interview panel, later admitted that he selected Thomas-Bagrowski, instead of the runner-
up in the 1997 “team leader” competition, in a misconceived attempt at “affirmative
action.” But then, before Granahan completed the first six-month rotation, Yokley was
approached by employees who had not applied for the permanent position but were
interested in serving in the temporary team leader spot. Yokley then opened up the second
rotation to other applicants and, instead of allowing Thomas-Bagrowski to serve the entire
six months, divided the remaining time equally between her and five other employees
(whose races are not specified). In response, Thomas-Bagrowski filed an internal complaint
with the FAA in October 1998 claiming that Yokley engaged in racial discrimination.
Around the same time that Thomas-Bagrowski filed her internal complaint, the
FAA’s Great Lakes Region was undergoing reorganization. The FAA dissolved Thomas-
Bagrowski’s working group, and in November 1998 she was assigned to the Airways
Facilities team, led by David Pinner. The FAA also revised its operating policy for human
resources, in part to place greater emphasis on working together in teams and holding the
entire team accountable for ensuring that leave and telecommuting requests from
individual members do not impede customer service.
Thomas-Bagrowski first encountered problems with her new team over a demand to
telecommute. In her previous position she worked from her home in Milwaukee,
Wisconsin, instead of going to the office in Des Plaines, Illinois, and so she submitted a
telecommuting proposal in November 1998 for her new team to approve. The team did not
deny her request but asked her for more information. Instead of responding, Thomas-
Bagrowski asked Pinner to approve the request himself and asserted that she qualified for
accommodation under the Americans with Disabilities Act because of lower-back pain.
Thomas-Bagrowski had previously cited back pain in a claim for worker’s compensation,
which the Department of Labor denied after she failed to provide sufficient documentation
of her impairment and its cause. When Pinner asked for more information, Thomas-
No. 08-3952 Page 3
Bagrowski told him that her medical clinic had faxed him information about her condition
and that she did not feel the need to submit anything further.
In December 1998, Thomas-Bagrowski and Pinner clashed over her requests for
annual leave. Before her reassignment to Pinner’s team, Thomas-Bagrowski received
approval to schedule annual leave. After joining the Airways Facilities team, she balked at
having to resubmit the same leave requests to her new team for approval. Thomas-
Bagrowski refused to coordinate the leave requests with her new team members, but
Pinner approved the requests anyway.
But Pinner did not approve Thomas-Bagrowski’s requests for sick leave. In
February 1999 she asserted to Pinner that she was entitled to paid sick leave whenever she
needed it, whether accrued or not. In the past Thomas-Bagrowski had received approval to
take an advance of up to 240 hours against future sick leave, but that was to cover expected
absences while she was receiving cancer treatments. Her requests to Pinner were for
routine sick days and medical matters, which under FAA policy do not qualify for an
advance against future sick leave. Pinner requested additional medical information, but
Thomas-Bagrowski refused to submit anything. She told Pinner his requests violated the
Privacy Act. The record establishes that Pinner required similar documentation from white
employees who requested advances against their sick leave.
In March 1999, Thomas-Bagrowski filed another claim with the Department of
Labor for worker’s compensation. This time she alleged that her work environment was
hostile and that it caused her to develop shingles. Her claim was denied for insufficient
medical documentation.
Meanwhile, Thomas-Bagrowski simply stopped going to work. She was fired in
September 1999 after unauthorized absences totaling nearly 500 hours over three months.
She had submitted some documentation to justify her absences, but Pinner consulted with
a physician in the medical division and concluded that the documentation was inadequate.
Thomas-Bagrowski had not supplied an expected date of recovery, or a medical
explanation for her incapacity, or a list of suggested duty restrictions. She challenged her
discharge before the Merit Systems Protection Board, but her claim was dismissed. She did
not appeal the Board’s decision.
In 2004, Thomas-Bagrowski filed this lawsuit claiming racial discrimination (for
denying her a six-month detail as team leader), retaliation (for denying her sick leave and
telecommuting requests after she filed her internal complaint), and a hostile work
No. 08-3952 Page 4
environment (for requiring approval from her team and additional medical documentation
for her leave requests). The litigation, however, does not concern Thomas-Bagrowski’s
termination from the FAA. In granting summary judgment for the FAA, the district court
concluded that Thomas-Bagrowski, who rested her discrimination claim on the indirect,
burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), had
produced no evidence suggesting that Yokley’s reason for denying her the six-month
detail--that he wanted to consider employees who had not applied for the permanent
position--was pretextual. The court concluded that Pinner’s refusal to permit Thomas-
Bagrowski to telecommute was not a materially adverse action, because she had not shown
that she was entitled to any accommodation for a disability under the ADA and, in any
event, could not insist on being granted a telecommuting option as an accommodation.
The court also reasoned that the refusal of sick leave was not materially adverse, as her
requests did not comport with FAA policy. In addition, she showed no causal connection
to her internal complaint. Finally, the court found no evidence of a hostile work
environment and did not credit Thomas-Bagrowski’s assertions that FAA personnel
policies were “overwhelmingly excessive and unnecessary.”
On appeal, Thomas-Bagrowski first argues that her discrimination claim should
have survived summary judgment. She asserts that under the direct method the claim
should have gone forward, but that theory was waived by the failure to present it to the
district court, see Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 751 n.3 (7th Cir. 2006), and is
frivolous in any event because she has not identified any direct evidence of discrimination.
Thomas-Bagrowski also contends that she established a prima facie case, and that the FAA
failed to provide a legitimate explanation for denying her a six-month term as team leader.
Thus, she concludes, a material dispute exists about whether the agency acted out of a
preference for white employees.
The FAA’s motion for summary judgment discussed Thomas-Bagrowski’s case
under the indirect method of racial discrimination. In her response, Thomas-Bagrowski
presented no legal argument, only an extended list of facts and exhibits. The district court
followed the FAA’s lead and simply assumed that Thomas-Bagrowski had established a
prima-facie case and skipped directly to the question of pretext. The agency offered
undisputed evidence that Yokley divided up the last six months of the temporary position
of team leader because he wanted to consider employees who were interested in that brief
assignment but had not applied for the permanent position. See Fane v. Locke Reynolds, LLP,
480 F.3d 534, 538 (7th Cir. 2007) (explaining that employer may prevail on summary
judgment if it offers genuine, nondiscriminatory reason for employment action); Barricks v.
Eli Lilly & Co., 481 F.3d 556, 560 (7th Cir. 2007) (explaining that employer’s reasons need
No. 08-3952 Page 5
only have been honest, regardless if they were accurate or wise, to prevail on summary
judgment). There is no evidence that Yokley lied about his desire to consider more
applicants (or even any evidence that the employees who shared the final six months with
Thomas-Bagrowski were not African-American), and he stated that he always planned to
reevaluate the division’s needs before Thomas-Bagrowski began her term. In fact,
as Thomas-Bagrowski acknowledges, Yokley originally selected her in part out of a racial
preference, in an attempt at affirmative action.
The lack of evidence of pretext is reason enough to sustain the grant of summary
judgment on the discrimination claim, but we add the observation that Thomas-Bagrowski
did not establish a prima facie case. What was missing is evidence that she was best
qualified for the six-month position in the first place. See Jackson v. City of Chi., 552 F.3d 619,
622 (7th Cir. 2009). As the FAA acknowledges, Yokley’s initial decision to award her the
detail because of her race, despite the fact that the interview panel favored another white
candidate, could have led to a legitimate reverse-discrimination claim from the second-
place candidate. See Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005). In that
sense, then, Thomas-Bagrowski lost nothing when Yokley rescinded the decision to let her
fill the temporary position for the entire six months.
Thomas-Bagrowski also challenges the district court’s conclusion that the FAA’s
refusals to approve her sick leave and telecommuting requests were insufficient to show a
genuine issue of retaliation. Her brief is difficult to follow, but apparently she argues that
the timing of the changes in FAA policies after she had filed an internal complaint alleging
discrimination was enough to show a causal connection to a materially adverse action.
The district court correctly recognized, however, that the FAA did not take a
materially adverse action by declining to approve Thomas-Bagrowski’s requests for sick
leave or to telecommute. By refusing to provide required documentation, Thomas-
Bagrowski never completed the requests in the first place. See, e.g., Hudson v. Chi. Transit
Auth., 375 F.3d 552, 558 (7th Cir. 2004). The FAA did not alter the conditions of her
employment, see Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004), but simply required that
she follow agency-wide procedures in asking for those benefits.
AFFIRMED.