Johnson, Gail B. v. Nordstrom Inc

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3827
Gail Johnson,
Plaintiff-Appellant,
v.
Nordstrom, Inc., James M. Johansson
and Richard J. Archer,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97-C-1673--Richard L. Young, Judge.
Argued April 2, 2001--Decided July 20, 2001
Before Bauer, Cudahy, and Easterbrook,
Circuit Judges.
Cudahy, Circuit Judge. Gail Johnson
appeals a grant of summary judgment to
Nordstrom, Inc. on her Title VII claims
of employment discrimination, retaliation
and constructive discharge. We affirm.
I.
Johnson was hired in 1995 to work as a
salesperson in the cosmetics department
at Nordstrom’s retail department store in
downtown Indianapolis. Six months after
she was hired, Johnson was transferred to
the men’s fragrance counter to work as a
fragrance counter manager. In February
1997, Johnson sought a promotion to the
intriguing position of beauty director.
At the time, she had more than 13 years
of cosmetics experience. Richard Archer,
who was then the manager of the cosmetics
department, was responsible for filling
the beauty director position. Archer
interviewed Johnson and was aware of her
experience and qualifications for the
job. But he selected another employee for
the position--one who, Johnson alleges,
had only two years of cosmetics
experience. When Johnson questioned
Archer about his decision, he told her he
had selected the other employee because
she had more seniority at Nordstrom and
she had a "better feel for the Nordstrom
customer."
Johnson, an African-American, filed a
charge of race discrimination against
Nordstrom with the Equal Employment
Opportunity Commission (EEOC). In
response, Nordstrom indicated that
Johnson was not qualified for the beauty
director position, and that Deanne
Bennett, the (white) person who got the
job, was more qualified. Nordstrom
claimed that Johnson, during her
interview for the job, said she believed
the most important part of the job was
"sales," although that was incorrect
because the position primarily involved
training and other interaction with co-
workers. Nordstrom did not believe
Johnson would be qualified for this
aspect of the job because she was
perceived by her co-workers as a "shark"-
-apparently a retail term for a sales
employee who serves more than one
customer at a time, thereby depriving co-
workers of commission opportunities. This
perception was a source of tension
between Johnson and her co-workers. And
Bennett had superior Nordstrom
experience: Johnson at the time had six
months experience with Nordstrom, while
Bennett had worked there for three years.
In April 1997, another white employee was
promoted, this time to the position of
assistant manager. Archer, without
considering Johnson for the position,
gave the job to Lynette Irwin, who had
two months of part-time experience at
Nordstrom. But unlike Johnson, Irwin had
management experience at Nordstrom; in
fact, she had served as Johnson’s
supervisor. Johnson filed another charge
of discrimination with the EEOC.
Nordstrom responded that Johnson was not
considered for the position because
Archer believed she was not interested in
it. Nordstrom later indicated that
Johnson did not exhibit the leadership
and team-playing skills Archer was
seeking for the position.
Johnson’s retaliation claim is two-fold.
First, she claims that Nordstrom
retaliated against her for filing the
first EEOC charge by failing to promote
her to the assistant manager position.
Second, she claims that Archer and Irwin
took specific retaliatory actions against
her: they "saved stock work" for her and
they wrongly accused her of stealing
customers from other salespersons.
Further, Johnson alleges that Irwin
allowed other employees to falsely accuse
her, gave sales leads to other employees
and advised them to come to work early to
do stock work so they would not lose time
off the sales floor. Archer and Irwin
apparently also monitored Johnson to
determine whether she was in fact
stealing customers. In November 1997,
Johnson resigned.
Johnson filed a complaint against
Nordstrom, James Johansson (the store
manager) and Archer under Title VII of
the Civil Rights Act of 1964 and 42
U.S.C. sec. 1981. She alleged race
discrimination in the failure to promote
her, retaliation and constructive
discharge. As noted, her retaliation
claim consisted of, inter alia,
Nordstrom’s failure to promote her to the
assistant manager position and Irwin’s
and Archer’s retaliatory conduct. Johnson
also alleged a state claim for
intentional infliction of emotional
distress. In response, Nordstrom filed a
motion for summary judgment and a motion
to strike certain portions of affidavits
filed by Johnson. Johnson filed a motion
in opposition to summary judgment and a
motion to strike affidavits submitted by
Nordstrom. The district court denied
Johnson’s motion to strike, granted in
part Nordstrom’s motion to strike and
granted Nordstrom’s motion for summary
judgment on all counts. It concluded that
Johnson had not demonstrated a prima
facie case on her failure to promote
claim. The court also found that Johnson
did not show that Nordstrom’s reasons for
failing to promote her were retaliatory;
she could not prove that Nordstrom’s
stated reasons were pretextual. As to
Archer’s and Irwin’s retaliatory conduct,
the court concluded that Johnson failed
to make a prima facie case. It also
concluded that the conduct was not
extreme or outrageous, such that would
support Johnson’s claim for intentional
infliction of emotional distress. Johnson
appeals.
II.
As everyone should know, we review a
grant of summary judgment de novo,
viewing all the facts and inferences in
the light most favorable to the non-
moving party. See Pafford v. Herman, 148
F.3d 658, 665 (7th Cir. 1998). "Summary
judgment may be granted only when ’there
is no genuine issue as to any material
fact and . . . the moving party is
entitled to a judgment as a matter of law.’"
Fed. R. Civ. P. 56(c). See also Celotex
Corp. v. Catrett, 477 U.S. 317, 322
(1986); Pafford, 148 F.3d at 665.
To defeat a motion for summary judgment
in a Title VII case, a plaintiff who
cannot provide direct evidence of
discrimination may use the "burden-
shifting" method outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this indirect method of
proof, the plaintiff first may raise an
inference of discrimination by offering
sufficient evidence to establish a prima
facie case. See id. at 802-05. If the
plaintiff succeeds, the burden then
shifts to the employer, who must
articulate a "legitimate,
nondiscriminatory reason" for the adverse
action. See Pafford, 148 F.3d at 665
(citing Texas Dep’t of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981)).
"If the employer carries this burden,
then the burden shifts back to the
plaintiff to produce ’evidence that
would, if believed by a trier of fact,
show that the true reason for the
employment action was discriminatory.’"
Pafford, 148 F.3d at 665 (quoting Sattar
v. Motorola, Inc., 138 F.3d 1164, 1169
(7th Cir. 1998) (citing St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 507-08
(1993))).
To establish a prima facie case of race
discrimination in a failure to promote
context, the plaintiff must show: 1) she
is a member of a protected group; 2) she
was qualified for the position sought; 3)
she was rejected for the position; and 4)
the employee promoted was not a member of
the protected group and was not better
qualified than the plaintiff. See Payne
v. Milwaukee Cty., 146 F.3d 430, 434 (7th
Cir. 1998). It is undisputed that Johnson
satisfies the first criterion. But the
district court found that she failed to
meet other elements of the prima facie
case.
A.
The district court first concluded that
Johnson had failed to make out her prima
facie case of discrimination because she
had not met her burden of showing that
she was qualified for the beauty director
position. The court found that the job
consisted of training staff; directing
the Nordstrom make-up team; overseeing
promotional events and addressing staff
questions and concerns. Entry on
Plaintiff’s Motion to Strike, Defendants’
Motion to Strike, and Defendants’ Motion
for Summary Judgment at 36 (Sept. 26,
2000). The court concluded that Johnson
was not qualified for this position
because of 1) Johnson’s interview answer
(misstating the most important element of
the position); 2) Johnson’s tension with
her co-workers; and 3) Johnson’s failure
to observe certain work policies. These
factors do not appear to establish that
Johnson was not qualified for the job.
But we need not decide that issue;
rather, we conclude that these are the
reasons proffered by Nordstrom for
failing to promote Johnson, and that
Johnson has failed to demonstrate that
these reasons are pretextual. See EEOC v.
Our Lady of the Resurrection Med. Ctr.,
77 F.3d 145, 150 (7th Cir. 1996) ("To
expedite the process it may be preferable
to get past the prima facie case and
examine the pertinent issue of whether
there was discrimination in a job
action."); see also Holmberg v. Baxter
Healthcare Corp., 901 F.2d 1387, 1391
(7th Cir. 1990) (where the plaintiff had
not met the burden of showing pretext, it
was not necessary to decide whether the
plaintiff established a prima facie
case).
To demonstrate pretext, "a plaintiff
must show more than that the employer’s
decision was incorrect; the plaintiff
must also show the employer lied about
its proffered explanation." Abioye v.
Sundstrand Corp., 164 F.3d 364, 368 (7th
Cir. 1998) (citing Russell v. Acme-Evans
Co., 51 F.3d 64, 68 (7th Cir. 1995)).
Without direct evidence of pretext, the
plaintiff must "prove pretext indirectly
by showing one of the following: (1)
Defendant’s explanation of Plaintiff’s
discharge had no basis in fact, or (2)
the explanation was not the ’real’
reason, or (3) at least the reason stated
was insufficient to warrant the
[allegedly discriminatory action]."
Lenoir v. Roll Coater, Inc., 13 F.3d
1130, 1133 (7th Cir. 1994) (citing Smith
v. General Scanning, Inc., 876 F.2d 1315,
1319 (7th Cir. 1989)).
Thus, Johnson’s burden was to show that
Nordstrom lied when it stated that it
believed Johnson was unqualified for the
beauty director position, or when it
stated that it believed Bennett was more
qualified. Johnson’s subjective belief
that she was better qualified than
Bennett does not, without more,
demonstrate pretext. See Johnson v.
University of Wisconsin-Eau Claire, 70
F.3d 469, 481 (7th Cir. 1995).
Johnson takes issue with the district
court’s reliance on her alleged interview
answer stating that sales would be the
primary aspect of the beauty director’s
job. Johnson claims that "even if she did
[give that answer], that was not
necessarily a wrong answer, because
increased sales, indirectly, through the
training of Cosmetics Associates, is the
ultimate goal of any retailer . . . ."
This, however, does not undermine the
employer’s honest belief that sales was
not the main aspect of the job, and that
Johnson indicated in her interview that
she was unaware of this fact. Even
viewing these facts in the light most
favorable to Johnson, whether the
interview answer was right or wrong is
for Nordstrom to decide, and does not
demonstrate that this reason for failing
to promote Johnson was pretextual. See
Hartley v. Wisconsin Bell, Inc., 124 F.3d
887, 890 (7th Cir. 1997) ("Plaintiffs
lose if the company honestly believed in
the nondiscriminatory reasons it offered,
even if the reasons are foolish or
trivial or even baseless.") (citing McCoy
v. WGN Continental Broadcasting Co., 957
F.2d 368, 373 (7th Cir. 1992)).
Johnson also argues that her "stealing"
of customers and violation of work rules
were disputed. Whether she stole
customers or not is irrelevant; what is
relevant is the undisputed fact that her
co-workers thought she did. Johnson has
failed to demonstrate that this was a
false justification for Nordstrom’s
refusal to promote her. Likewise, the
disputed allegation that Johnson violated
several workplace policies was not shown
to be pretextual--simply disputed. It is
well established that an employer is free
to develop its own criteria in
determining whom to promote, and Johnson
has failed to demonstrate that these were
not Nordstrom’s true rationales. See,
e.g., Schaffner v. Glencoe Park Dist.,
No. 00-4144, 2001 WL 748076, at *3 (7th
Cir. July 5, 2001).
Johnson’s "evidence" of pretext fails to
indicate that Nordstrom’s proffered
reasons are not worthy of credence. For
example, she claims that Nordstrom’s
promotion policies are not sensible. But
it is not our place to evaluate the
wisdom of an employer’s business
decisions. See Gordon v. United Airlines,
Inc., 246 F.3d 878, 889 (7th Cir. 2001)
(citing Stewart v. Henderson, 207 F.3d
374, 378 (7th Cir. 2000)). We only
require that an employer honestly
believed its reason for its actions, even
if its reason is "foolish or trivial or
even baseless." Brill v. Lante Corp., 119
F.3d 1266, 1270 (7th Cir. 1997); see also
Schaffner, 2001 WL 748076, at *4.
Johnson’s other "evidence" of pretext is
equally unconvincing. She comes closest
to the mark when she says that the
alleged vacillation in Nordstrom’s
reasons for failing to promote her
creates an issue of fact as to pretext.
Johnson relies on our decisions in Gordon
and Lawson v. CSX Transp., Inc., 245 F.3d
916 (7th Cir. 2001). In both those cases,
however, pretext was demonstrated by not
only shifting but also conflicting, and
at times retracted, justifications for
adverse treatment. See Gordon, 246 F.3d
at 890; Lawson, 245 F.3d at 931-32 &
n.13. Here, Nordstrom simply supplemented
its explanations in the context of EEOC
charges and litigation; there has been no
retraction of any of its reasons for
failing to promote Johnson nor are any of
its reasons inconsistent or conflicting.
Thus, Johnson has failed to demonstrate
that Nordstrom’s legitimate, non-
discriminatory reasons for failing to
promote her to beauty director were
pretextual.
B.
When considering the failure to promote
Johnson to the assistant manager
position, the district court again relied
on criteria that seem more appropriately
characterized as non-discriminatory
reasons for failing to promote than
evidence that Johnson was not qualified.
Here the district court found that
Johnson was qualified, but held that she
failed to demonstrate that she was better
qualified than Irwin, the employee who
received the position. The court reasoned
that Johnson demonstrated her
qualifications by presenting evidence to
dispute Nordstrom’s claims that she stole
customers, had tension with her co-
workers, improperly utilized breaks and
shirked stock work.
On the issue whether Johnson was more
qualified than Irwin, Johnson argued that
1) Irwin was only part-time and had fewer
years of experience; 2) the head of human
resources was concerned about Irwin’s
qualifications for the job; and 3) Archer
exhibited favoritism toward Irwin. The
court noted that Irwin served as
Johnson’s supervisor prior to her
promotion, and thus--unlike Johnson--had
management experience within Nordstrom.
Further, the court reasoned, the concerns
about Irwin by the human resources chief
do not show that she believed Johnson was
more capable than Irwin. And third,
simple favoritism cannot be the basis of
a race-related complaint under Title VII.
As with the beauty director position, we
decline to consider whether Johnson
demonstrated a prima facie case for the
assistant manager promotion because again
she failed to meet her burden of
demonstrating that Nordstrom’s proffered
reasons were pretextual. Johnson offered
nothing to refute the legitimate,
nondiscriminatory reason advanced:
"Nordstrom, through manager Archer,
honestly believed that she did not
possess leadership skills required for a
management position . . . ." Entry on
Plaintiff’s Motion to Strike, Defendant’s
Motion to Strike, and Defendants’ Motion
for Summary Judgment at 46-47. Because
Johnson was unable to present evidence
that Archer was lying, lack of pretext is
a clearer ground for affirming the grant
of summary judgment on the failure to
promote claim.
III.
Johnson next argues that Nordstrom
retaliated against her for filing EEOC
charges for failure to promote her to
beauty director. Her retaliation claim is
two-fold: first, Johnson argues that
Nordstrom retaliated by failing to
promote her to the assistant manager
position. Second, she contends that
Archer and Irwin mistreated her in
retaliation for filing the charges.
The district court dismissed the claim
of retaliation based on the failure to
promote because, although Johnson had
demonstrated a prima facie case of
retaliation, she could not show that
Nordstrom’s reasons for not promoting her
to assistant manager (lack of team
playing and leadership skills and her
perception as a "shark") were pretextual.
As we have discussed in Part II.B, above,
we agree.
The district court next considered
Johnson’s claim of mistreatment by Irwin
and Archer. It concluded that Johnson’s
claim did not raise allegations "of the
severity necessary to be classified as an
adverse employment action" and she
therefore had failed to establish a prima
facie case. To make a prima facie case
for retaliation, a plaintiff must
demonstrate that 1) she engaged in a
statutorily protected activity; 2) she
suffered an adverse employment action
after that activity; and 3) there was a
causal link between the adverse action
and the protected activity. Sweeney v.
West, 149 F.3d 550, 555 (7th Cir. 1998).
The district court did not elaborate on
its finding that the mistreatment could
not be classified as an adverse
employment action, but, in any event, we
can affirm on other grounds. Johnson
admitted that Irwin was unaware of
Johnson’s filing of the EEOC charges, and
that therefore her conduct could not have
been retaliatory. See O’Connor v. Chicago
Transit Auth., 985 F.2d 1362, 1369-70
(7th Cir. 1993); Causey v. Balog, 162
F.3d 795, 803-04 (4th Cir. 1998). And it
is undisputed that Archer treated Johnson
as poorly before her filing of the EEOC
charges as he did afterwards. If there
was "no ratcheting up of the harassment"
after the complaint was filed, the
complaint could not have been the cause
of the allegedly retaliatory conduct. See
McDonnell v. Cisneros, 84 F.3d 256, 259
(7th Cir. 1996). Thus, we find that
Johnson failed to show that there was a
causal link between the adverse action
and the protected activity, and we
therefore agree with the district court
insofar as it found that Johnson failed
to make a prima facie case.
IV.
Johnson argues that the same conduct
that forms the basis of her
discrimination and retaliation claims
amounts to constructive discharge.
Specifically, Johnson alleges that Archer
and Irwin "saved stock work" for her and
wrongly accused her of stealing
customers. Further, she contends, Irwin
allowed other employees to falsely accuse
her, gave sales leads to other employees
and advised other employees to come to
work early to do stock work so they would
not lose time off the sales floor.
Johnson also charges that Archer and
Irwin monitored her to determine whether
she was, in fact, stealing customers.
Johnson claims that these actions,
combined with the failure to promote
Johnson on account of her race, were so
intolerable that she was constructively
discharged. But these allegations are a
far cry from the conduct needed to
support a constructive discharge claim.
"[T]o state a claim for constructive
discharge, a plaintiff needs to show that
her working conditions were so
intolerable that a reasonable person
would have been compelled to resign."
Chambers v. American Trans Air, Inc., 17
F.3d 998, 1005 (7th Cir. 1994) (citing
Henn v. National Geographic Soc., 819
F.2d 824 (7th Cir.), cert. denied, 484
U.S. 974 (1987)). Such conditions
typically include much more egregious
allegations than those cited by Johnson.
To be actionable, "the conduct at issue
must ’ha[ve] the purpose or effect of
unreasonably interfering with an
individual’s work performance or creating
an intimidating, hostile or offensive
working environment.’" Filipovic v. K &
R Express Sys., Inc., 176 F.3d 390, 397
(7th Cir. 1999) (quoting Saxton v.
American Tel. & Tel., Co., 10 F.3d 526,
533 (7th Cir. 1993)). The actions of
Archer and Irwin were not so intolerable
as to force her departure.
V.
Last, Johnson takes issue with the
district court’s striking of several
paragraphs of affidavits submitted in
support of her allegation of
discrimination. We review a district
court’s decision to strike an affidavit
for abuse of discretion. Clark v. Takata
Corp., 192 F.3d 750, 760 (7th Cir. 1999)
(citing Buckner v. Sam’s Club, Inc., 75
F.3d 290, 292 (7th Cir. 1996)).
The district court struck portions of
affidavits of Nordstrom employees that
may have reflected a racially charged
work environment at Nordstrom. For
example, one affidavit indicated that an
employee was "written up" for allegedly
giving preferential treatment to black
customers over white customers. Rule
56(e) of the Federal Rules of Civil
Procedure provides that affidavits in
support of motions for summary judgment
must 1) be made with personal knowledge;
2) set forth facts that would be
admissible into evidence; and 3) show
affirmatively that the affiant is a
competent witness. The court struck
portions of the affidavits for lack of
personal knowledge, as inadmissible
hearsay or as conclusory and self-
serving.
Johnson argues that the statements were
not submitted for the truth of the
matters asserted, "but rather to
demonstrate that such racist conduct
occurred and that racist statements were
made." She also contests the court’s
decision to strike other paragraphs of
the affidavits because of "lack of
knowledge." Finally, Johnson contests the
decision to strike certain portions of
the affidavits as conclusory and self-
serving.
We need not decide whether the portions
of these affidavits were improperly
stricken, because--even if they were--
their admission would not help Johnson’s
case. Nordstrom correctly argues that
nothing struck from the affidavits would
create a material issue on the summary
judgment question since the statements
were offered to demonstrate a racially
hostile environment and Nordstrom’s
racial animus. They would not be material
because:
Liability under Title VII does not turn
on the bigotry of company managers unless
that bigotry resulted in injury to the
plaintiff. A showing of other instances
of discrimination in the company may have
evidentiary value, but it is not a
substitute for a showing of injury to the
plaintiff. There therefore needs to be a
link between [the] manager’s alleged
prejudice, and the decisions that [the
plaintiff] is challenging.
Chambers, 17 F.3d at 1004 (citation
omitted).
The statements Johnson sought to have
admitted presumably were for the purpose
of providing direct evidence of
discrimination on the part of Nordstrom,
thus ostensibly obviating the need for
Johnson to surmount the obstacles in the
path of an indirect showing. But
affidavits showing a generally racially
charged environment, without more, would
not help Johnson’s cause.
Johnson also contests the striking of
portions of her own affidavit because the
district court concluded that they
contradicted her deposition testimony.
First, the statement that Johnson "was
never informed by anyone at Nordstrom
that [her] job performance was lacking or
needed improvement" was contradicted by
her deposition testimony that Irwin
confronted her about stealing customers
and that Irwin was taking notes on
Johnson. Second, the statement that
Johnson "never received any verbal or
written reprimands for [her] interactions
with [her] co-workers" clashed with her
testimony that Irwin confronted her about
stealing customers. Third, Johnson’s
statement that "Archer never discussed
breaks or overtime with me" was
contradicted by her testimony that he
did. Johnson offers nothing but a bald
assertion that her statements were not
contradicted by her testimony, but
instead "supplemented" her testimony.
There is no abuse of discretion here.
"[A]n affidavit cannot be used to create
a genuine issue of material fact where
the affidavit differs from prior
deposition testimony to the point that it
is unreliable." Patterson v. Chicago
Ass’n for Retarded Citizens, 150 F.3d
719, 720 (7th Cir. 1998).
The district court also struck Johnson’s
statement as follows: "As a co-worker, I
was able to assess Bennett’s
performance." The court concluded that
this statement was also inadmissible
because it contradicted Johnson’s
deposition testimony. In Johnson’s
testimony, she said she could not compare
her customer service performance to
Bennett’s. The deposition testimony is,
therefore, limited, and there is no clear
contradiction; perhaps there were other
aspects of Bennett’s performance that
Johnson felt she could assess. However,
this error is harmless; admission of this
statement would not have, and should not
have, changed the result.
VI.
For the foregoing reasons, we AFFIRM the
judgment of the district court.