Singh, Sandhya v. Town Mount Pleasant ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 8, 2005
Decided March 9, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-2131
SANDHYA SINGH, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District
of Wisconsin.
v.
No. 01 C 1303
TOWN OF MOUNT PLEASANT,
RONALD MEYER, MARK GLEASON, J. P. Stadtmueller,
et al., Judge.
Defendants-Appellees.
ORDER
Sandhya Singh brought suit under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983, claiming defendants
discriminated against her on the basis of race, color, and national origin in creating a
hostile work environment, their failure to train her, and her final termination. The
district court granted summary judgment to defendants because Singh presented no
direct evidence and was unable to establish the requisite prima facie case for her
claims. For the following reasons, we affirm.
No. 05-2131 Page 2
I. Background.
In the fall of 1999, the Town of Mount Pleasant (Town) created the position of
Deputy Director of Planning and Development (DDPD). The position required an
expertise in, inter alia, municipal planning, zoning, and ordinance enforcement.
Essential functions of the position included executing the duties incumbent in the
above-mentioned areas and supervising the department when the Director was present
and management in his absence. This supervisory role included managing the
Department secretary, Juliet Edmands, and interacting with the front office.
Additionally, the DDPD was responsible for communicating Department concerns with
other Town departments and with the Town citizens. This newly created DDPD
position was a replacement for the prior Deputy Zoning Administrator (DZA) position.
The extinguished DZA position did not require an advanced degree and was non-
managerial in nature. Additionally, the DDPD was assigned a higher salary to
compensate for the advanced requirements and prevent the high turnover rates that
had plagued the DZA job.
In October of 1999, plaintiff Sandhya Singh interviewed for the DDPD job. Singh
met the educational qualifications for the position; she had an advanced degree in
Urban Affairs and Planning and, at the time, wrote grant proposals to the Department
of Housing and Urban Development for the City of Milwaukee. But the interviewers,
Ronald Meyer, the Department Director, and Patrick DeGrave, the Town
Administrator in charge of personnel decisions, were initially concerned about her lack
of work experience. When presented with this concern Singh assured them that she
would get up to speed within two months of being hired. With this assurance in place,
Meyer and DeGrave recommended that the Town Board hire her for the position. The
Town subsequently approved her employment contingent on the successful completion
of the standard six month probationary period.
Singh was given training materials before she officially started the new job. On
October 29, 1999, she was mailed Town zoning information with other orientation
materials. She began work on December 6, 1999, and was trained by Director Meyer
on the particulars of the Town’s planning and development process. Meyer testified
that he trained her as he trained the Department’s DZA’s: by providing relevant
ordinances, delegating responsibility, giving her examples of how tasks had been
accomplished in the past, reviewing and commenting on drafts, and exposing her to
day-to-day planning department operations. Additionally, Edmands testified to
showing Singh around the office and acquainting her with the location of maps, plans,
and office paperwork. DeGrave testified that he saw no difference between the ways
in which Singh was trained compared to those that had previously served as DZA’s.
Singh also attended meetings with Meyer and received personal preparation for
meetings she was instructed to administer.
No. 05-2131 Page 3
Singh claims that she attended three meetings with Meyer, but that he and
Edmands excluded her from others. Defendants respond that she actively avoided
attending meetings for which she was responsible. Singh oversaw the April 19, 2000,
Commission meeting in Meyer’s planned absence, but only after being forced to do so.
Commission Chair Dick Shaffer and Meyer reviewed the agenda with Singh so that she
would be prepared. Shortly before the meeting, however, Singh requested a leave of
absence that would have spanned the meeting date. This request was denied, and
during Singh’s oversight of the meeting two significant developments were approved
without meaningful site plans or infrastructure requirements. Meyer had to restore
the deleted requirements at a subsequent Commission meeting. Racine County later
referred the matter back to the town having found the approval unprecedented.
Interpersonal problems developed between Singh and the other employees of the
Town within the first few months of her employment. At some point in January 2000,
Singh and Mark Gleason, a Town Board member, talked about the holidays. Singh
explained that she didn’t celebrate Christmas but honored many deities through a
variety of festivals. Gleason snickered at the explanation and replied “[o]h, we don’t
do all that.” Additionally, Meyer, Gleason, and Edmands gathered for coffee in the
office break room without inviting her. At times, Singh would interrupt these breaks
to ask Meyer for advice while she was helping townspeople. Singh claims that Meyer
would not come to the public desk to assist the townsperson, but instead had Singh
walk back and forth to communicate questions and answers.
Furthermore, Singh and Edmands fought repeatedly. Singh complained to
DeGrave and Meyer about the level of respect Edmands’ received and ultimately
refused to manage her. Both DeGrave and Meyer instructed Singh to utilize Edmands’
skills and reminded her that department management was part of her job. In April
2000, a meeting with Meyer, Singh, Edmands, and union steward Karen Theos
devolved into a shouting match between the two, and Meyer threatened to fire them
both. After the meeting Meyer again reminded Singh that she was Edmands’ manager
and maintaining their professional relationship was part of her job.
In late April 2000, when the United States and Cuba were at odds over whether a
Cuban child, Elian Gonzalez, should be returned to his father in Cuba, Singh
overheard a conversation between Meyer and Edmands that made her uncomfortable.
Singh entered Meyer’s office while he and Edmands were discussing the event and she
overheard him say “they should all be sent back.” Singh notes that Meyer and
Edmands appeared embarrassed when they realized she had heard this remark.
In May 2000, Singh’s probationary period ended and Meyer and DeGrave met to
discuss her progress. They agreed that she wasn’t meeting their expectations on a
number of points, including work flow issues with Edmands, code enforcement process,
and agenda preparation. As a result of the review, they extended her probation
No. 05-2131 Page 4
another six months and provided her with an action plan on June 9, 2000. The plan
was designed to correct these outstanding problems. Initially Singh responded
acknowledging: “I know the action plan and an improved communication will help us
all.” Tr. Rec. 91, ¶ 9, Ex. H, p.2. One month later she submitted a complete point by
point response further acknowledging that she was behind on her paperwork, with
some outstanding matters two months overdue. But, again she refused to manage
Edmands. Singh also expressed her frustration to DeGrave, who encouraged her to
“tough it out.” Id. at p.1.
Sometime in June or July 2000, DeGrave left his job with the Town and Meyer
became the Interim Town Administrator. In their efforts to recruit a new
administrator, the Town published an advertisement for the position that included the
phrase: “[m]ust be a U.S. citizen.” Previously, a Canadian citizen had been appointed
to one of the Town boards and the matter had caused some controversy amongst the
citizens.
Patrick O’Donnell was hired to replace DeGrave that fall. Singh’s performance
came up in his initial departmental review with Meyer. On December 1, 2000, Singh
and O’Donnell met to discuss her extended probationary period. There were still
problems and O’Donnell wanted to extend her probationary period a second time.
Singh initially refused and demanded to be either fired or brought on full time.
Ultimately she accepted a three month review period.
During this second probationary period Singh and Meyer met to review her
performance, but she continued to have problems. Singh criticized the administration
of the plan when she met with Meyer and had two separate fights with co-workers. In
mid-December she was involved in a dispute with Laurie Heggaton from the Financial
Department. Later that month she argued with Sue Blaha, the Municipal County
Clerk, when Singh wanted to cancel a public meeting without sufficient warning. At
approximately the same time, Singh was charged with the administration of the
January Planning Commission meeting. To prepare her for this task, Commission
Chair Shaffer, Meyer, and O’Donnell met with her for three hours on January 7, 2001.
Meyer and Singh met again on January 9 to review her action plan and to review the
Planning Commission meeting agenda items. Then on January 15, Shaffer, Singh, and
Meyer had to meet for an unprecedented third time to review the agenda.
At this point O’Donnell conducted an independent review of Singh’s performance.
During the review he received written confirmation of prior oral complaints made
against Singh, including comments from coworkers and townspeople. As a result, on
February 26, 2001, Meyer and O’Donnell recommended that the Town Board fire
Singh. In his recommendation O’Donnell noted that Singh exhibited a significant lack
of necessary planning experience, was unable to be proactive, didn't get along with
others, and lacked maturity and professionalism. O’Donnell testified that he made his
No. 05-2131 Page 5
recommendation independent of Meyer’s recommendation and that he did not consider
feedback from Edmands or Gleason. The Board voted unanimously to terminate her
employment.
Singh brought suit in the Eastern District of Wisconsin alleging a hostile work
environment, insufficient training, and that the extension of her probationary period
and final termination were all tainted by impermissible considerations of race, color,
and national origin in violation of Title VII, 42 U.S.C. § 1981, and § 1983. The district
court granted defendants’ summary judgment motion and Singh now appeals.
II. Discussion.
We review the district court’s grant of summary judgment de novo, construing all
facts and drawing all reasonable inferences in favor of the nonmoving party. Sartor v.
Spherion Corp., 388 F.3d 275, 277 (7th Cir. 2004). Summary judgment is appropriate
if the moving party demonstrates “there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
When determining whether a genuine issue of material fact exists, this Court considers
evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Ind.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are facts that
“might affect the outcome of the suit” under the applicable substantive law. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Singh erroneously claims
that this Title VII matter requires “added rigor” in evaluating the propriety of
summary judgment. We rejected any such heightened review in Alexander v. Wis.
Dept. of Health and Human Services, 263 F.3d 673, 680-81 (7th Cir. 2001).
Singh’s complaint alleged a hostile work environment, insufficient training, and
that her extended probationary period and termination were tainted by impermissible
considerations of race, color, and national origin in violation of Title VII and 42 U.S.C.
§ 1981. Title VII of the Civil Rights Act of 1964 makes it an unlawful employment
practice for an employer “to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions or privileges of employment, because of such individual’s race, color,
religion, sex or national origin.” 42 U.S.C. § 2000e-2(a). Under § 1981 “all persons
within the jurisdiction of the United States shall have the same right . . . to the full and
equal benefit of all laws . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981. Because
Title VII and § 1981 discrimination claims are analyzed in the same manner, we
review Singh’s primary claims simultaneously. Patton v. Indianapolis Pub. Sch. Bd.,
276 F.3d 334, 337-38 (7th Cir. 2002). A plaintiff may prove impermissible
discrimination with either direct or indirect evidence. Vakharia v. Swedish Covenant
Hosp., 190 F.3d 799, 806 (7th Cir. 1999). Singh acknowledges she has no direct
evidence, and so we proceed to examine her indirect evidence.
No. 05-2131 Page 6
Where there is no direct evidence, the plaintiff may shift the burden of proof by
raising an inference of discrimination at the summary judgment stage. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the burden shifting method,
the plaintiff must present sufficient evidence that establishes, by a preponderance of
the evidence, each element of the prima facie case of discrimination. Robin v. Espo
Eng’g Co., 200 F.3d 1081, 1088 (7th Cir. 2000). If the plaintiff succeeds in meeting this
burden, a presumption of intentional discrimination arises and the burden then shifts
to the defendant to provide a legitimate, non-discriminatory reason for the action. Id.We turn first to Singh’s claim regarding the allegedly hostile work environment.
Racial harassment that is so “severe or pervasive as to alter the conditions of [the
victim’s] employment and create an abusive working environment violates Title VII,”
and thus, for our case, § 1981. Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998)
(internal quotations and citations omitted). For Singh to establish a prima facie case
of hostile work environment she must show (1) that the work environment was both
subjectively and objectively offensive; (2) that the harassment was based on
membership in a protected class; (3) that the conduct was severe or pervasive; and
(4) there is a basis for employer liability. Mendenhall v. Mueller Streamline Co., 419
F.3d 686, 691 (7th Cir. 2005) (citations omitted). As the district court noted, Singh
fails to establish a prima facie case.
These factors are designed to identify conduct that is sufficiently severe or
pervasive so that a reasonable person would find it hostile and which the victim
himself subjectively sees as abusive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22
(1993). This form of the inquiry is intended to “take a middle path between making
actionable any merely offensive conduct and requiring tangible psychological injury
before the conduct is actionable.” Ngeunjuntr v. Metropolitan Life Ins. Co., 146 F.3d
464, 467 (7th Cir. 1998) (citing Harris, 510 U.S. at 22). Relatively isolated instances
of nonsevere misconduct or comments will not support a claim of a hostile
environment. Id. In determining whether a workplace is hostile we look to the greater
context of the actions in question, evaluating the severity, whether something is
threatening and humiliating, or merely offensive, and the frequency. Id. Whether such
an objectively threatening environment exists is a question of law. Hardin v. S.C.
Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999) (citations omitted).
When examining Singh’s claims, we find that she cannot show that the few
questionable comments created an objectively threatening environment. Singh’s
primary proof of racial harassment lies in two separate comments: Gleason’s
unenlightened remark about the Indian holidays and Meyer’s comment to Edmands
regarding the Elian Gonzalez deportation. While the remarks of Gleason and Meyer
may be inappropriate and offensive, they do not rise to the level of creating an
objectively hostile work environment. Gleason’s remark about the differences between
Christian and Indian holidays may have been unenlightened and condescending, but
No. 05-2131 Page 7
it was not a direct attack on Singh or her beliefs. See McPhaul v. Madison County
Board of Comm'rs, 226 F.3d 558, 567. Furthermore, Meyer’s remark “that they should
all be sent back” was made to Edmands about a political conflict that captivated the
attention of the nation. The comment was not directed towards Singh, and while it
may indeed have been insensitive, it was not an attack on the plaintiff. Id.Furthermore, these two remarks were spread out over at least four months. Two
comments over four months in fifteen months of employment can hardly be described
as severe and pervasive. Finally, Singh failed to present evidence that these comments
interfered with her work performance, or were physically threatening or humiliating.
As the district court noted, this failure alone defeats a prima facie case for hostile work
environment. See Harris, 510 U.S. at 21.
The other incidents of which Singh complains are non-racial in character. Her
social exclusion in the office, Meyer having lost his temper at times, and Gleason’s
behavior and concern about her tardiness and investigating her time reports have no
distinct racial animus. Additionally, the Town’s job advertisement that required U.S.
citizenship for the position addressed citizenship, not race, color, or national origin.
While Singh provides unsubstantiated hearsay that Gleason proposed the citizenship
requirement, she ignores the fact that the hiring followed on the heels of the
controversial appointment of a Canadian citizen to a decision-making board of the
Town. Beyond this, Singh presents no argument on the issue other than citing
Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) as a general example that citizenship
may be used as a pretext for impermissible discrimination. The primary holding of
Espinoza, however, affirmed a hiring practice that excluded lawfully admitted resident
aliens and reviewed, in detail, the general legality of the Federal government’s own
U.S. citizenship employment requirement. Id. at 89-96. Singh fails to present us with
any argument as to how her case differs from this scenario. Plaintiff also makes much
of two comments purportedly about her accent, but the record shows only one reported
remark that was clearly about her accent, and at oral argument she acknowledged that
this statement was unsupported hearsay.1 Singh’s hostile work environment claim
fails.
Next we review Singh’s allegations of insufficient training. To establish a prima
facie case of discrimination for failure to train the plaintiff must show that (1) she is
a member of a protected group; (2) that the Town provided training to its employees;
(3) that she was eligible for training; and (4) “that she was not provided training under
circumstances giving rise to an inference of discrimination,” i.e., that she was denied
1
The comment was allegedly made between Meyer and Edmands before Singh began
working for the Town, and she only learned of it from Bonnie Sorenson. The second remark
was communicated to her by Sue Brewer. Brewer told Singh that “[t]hey never thought you
would be able to do this. . . .” In testimony Singh acknowledged that she had no context for the
statement and that it my have referred to her technical experience.
No. 05-2131 Page 8
training given to other similarly situated employees who were not members of the
protected group. See Pafford v. Herman, 148 F.3d 658, 667 (7th Cir. 1998) (citation
omitted). The fourth factor presents our material question.
Singh’s argument regarding her inadequate training relies primarily on conclusory
statements and is almost wholly unsubstantiated by citations to the record. It is
uncontested that the Town’s training process for the portions of her job similar to that
of the extinguished DZA position were loose. Evidence was introduced showing the
prior DZA’s were trained in the same manner she was: reviewing ordinances, attending
meetings, and becoming oriented with the office materials. Meyer testified that he did
all of these things and Edmands testified that she showed Singh around the office,
orienting her to the location of maps, ordinances, and work forms. Furthermore,
DeGrave testified that he saw no difference between Singh’s training and that of prior
DZA’s. Singh is unable to rebut these specific facts regarding her training, and
conclusory allegations unsupported by evidentiary fact are insufficient to defeat a
motion for summary judgment. See Rogers v. City of Chicago, 320 F.3d 748, 751 (7th
Cir. 2003). She emphasizes that she attended only three meetings, but she makes no
mention of the training that she received in advance of the Planning Commission
meetings that she was instructed to administer or that she requested a leave of
absence in an effort to avoid this meeting. Furthermore, the meetings from which
Singh was allegedly excluded were open to the general public. We fail to see how the
Town could have prevented her from attending and she presents no evidence on the
point. Moreover, Singh herself introduced evidence of Meyer aiding her in answering
questions asked by townspeople. While she may have preferred him to join her at the
front desk so as to avoid having to walk back and forth to communicate questions and
answers, this does not mean that Meyer did not assist, and thus train, her in aiding
the townspeople. Finally, Singh fails to acknowledge that she was mailed zoning
information in the months before she started work, a specific effort on the part of the
town to ensure she would have a solid base of knowledge before beginning work.
Absent any contrary evidence on these points, Singh may not defeat a motion for
summary judgment. Id.; See also Laborers’ Pension Fund v. RES Envtl. Servs., 377
F.3d 735, 739 (7th Cir. 2004) (citation omitted).
Nor is Singh similarly situated to prior employees of the department. A plaintiff
may demonstrate that she is “similarly situated” to a relevant prior employee by
“showing that there is someone who is directly comparable to her in all material
respects.” Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002) (citations
omitted). But “a court must look at all relevant factors, the number of which depends
on the context of the case.” Id. In making this latter evaluation, we look to whether the
employees had the same job description, dealt with the same supervisor, were subject
to the same standards, and if they had comparable “experience, education and
qualifications” if the employer took these factors into consideration. Ajayi v. Aramark
Bus. Servs., 336 F.3d 520, 531-32 (7th Cir. 2003) (citations omitted). The DDPD
No. 05-2131 Page 9
position was created by the Town prior to her hiring. This new job required an
advanced degree and explicitly included the responsibility for managing the
department in the absence of the Director of Planning and Development. None of the
previously employed DZA’s were required to have this advanced degree, either as an
initial or continuing condition of employment. Furthermore, the DZA’s were not
required to manage or supervise the department in the absence of the Director. These
differences, coupled with the training Singh did receive, defeat her attempt to establish
the requisite prima facie case, and her claim fails.
Finally we review Singh’s claims regarding her extended probationary period and
ultimate termination. To meet the prima facie case for a discriminatory corrective
action she must show (1) she is the member of a protected class; (2) she was meeting
her employer’s legitimate employment expectations; (3) she suffered an adverse
employment action; and (4) similarly situated employees who were not members of the
protected class were treated more favorably. Vakharia, 190 F.3d at 806. Singh is
unable to show that she was meeting her employer’s legitimate expectations at the
time of her first or second probation extensions or prior to being fired.
We have previously held that an employer’s expectation’s are legitimate if they are
bona fide. See Coco v. Elmwood Care, 128 F.3d 1177, 1179 (7th Cir. 1997). This has
nothing to do with whether they are too demanding. Robin, 200 F.3d at 1090. Where
it appears the employer’s expectations for the employee were the actual expectations,
the court will presume those expectations bona fide. See Foster v. Arthur Andersen,
LLP, 168 F.3d 1029, 1035 (7th Cir. 1999). Singh may rebut this presumption by
showing that the expectations are fabricated or by producing evidence showing the
expectations were applied in a disparate manner. Coco, 128 F.3d at 1180; Curry v.
Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001). Because she can do neither, we
look to see whether she met these bona fide expectations. Furthermore, because we
have rejected Singh’s failure to train claim, we conduct this examination independent
of her prior argument. Maarouf v. Walker Mfg., 210 F.3d 750, 753 (7th Cir. 2000).
Singh was expected to be up to speed and able to assume management of the
department within two months. She represented that she would be capable of doing
this during her interview, and despite her attempts to describe this fact away in
testimony, there is no genuine issue here. To facilitate this accelerated responsibility,
the Town mailed Singh a copy of its zoning information well in advance of her start
date. Moreover, she attended meetings with her supervisor and received personal
preparation in advance of meetings she was expected to administer, yet, she was
unable or unwilling to fulfill her duties. Singh does not dispute that when she was
asked to assume Meyer’s responsibilities during his planned absence in the spring of
2000 she requested a leave of absence to avoid the situation. Nor does she deny that
despite the preparation given by Planning Commission Chair Shaffer and Meyer, she
approved two inadequate development plans that were criticized by the County. Nor
No. 05-2131 Page 10
does she deny that she openly argued with Edmands in a meeting and repeatedly
refused to manage her. In light of these facts, Singh cannot show she was meeting her
employer’s legitimate expectations in June 2000 when she was placed on her initial
probation extension.
Nor can Singh establish a prima facie case regarding the second extension of her
probationary period. While Meyer was operating as the interim Town Administrator
for much of the second half of 2000, and therefore unable to provide extensive
supervision, there is no evidence to show that Singh’s questionable management had
improved other than her unsupported statements arguing she met all legitimate
expectations. Singh fails to address the fact that she continued to neglect her duties
towards Edmands and responded to the action plan by rejecting the relevance of this
management aspect of her position. We note that “[g]eneral averments of adequate
performance . . . are ordinarily insufficient to create a factual issue on summary
judgment; rather [plaintiff] must specifically refute the facts which allegedly support
the employer’s claim of deficient performance.” Sirvidas v. Commonwealth Edison Co.,
60 F.3d 375, 378 (7th Cir. 1995) (citations omitted).
Finally, regarding her termination, plaintiff again fails to establish the prima facie
case for discrimination. Singh cannot show that she met the legitimate expectations
of the town throughout her fifteen months of employment. She does not deny that
during her extended probationary period she publicly argued with co-workers Sue
Blaha and Laurie Heggaton in December 2000 and with Meyer in January 2001, or
that the Department received complaints about her work. Finally, she cannot refute
O’Donnell’s independent assessment that after fifteen months of employment she still
lacked the requisite skills for the position.
Finally, we review Singh’s § 1983 equal protection claim. She argues that the
district court erred in dismissing her claim against Gleason and Meyer because she
was (1) treated differently from others who were similarly situated; and (2) the
defendants intentionally treated her differently because of her membership in the
classes to which she belongs. Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51
(7th Cir. 2002). Her argument, however, unwisely relied on her Title VII and § 1981
claims without any separate analysis. For the reasons that the above claims failed we
now affirm the dismissal of her § 1983 claim, too.
III. Conclusion.
We AFFIRM the district court’s grant of summary judgment in favor of the
defendants.