Dunn, Harry C. v. Nordstrom Inc

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2958
Harry C. Dunn, III,
Plaintiff-Appellant,
v.
Nordstrom, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana.
No. IP98-1599-C-M/S--Larry J. McKinney, Chief Judge.
Argued April 17, 2001--Decided August 10, 2001
Before Fairchild, Cudahy, and Coffey,
Circuit Judges.
Cudahy, Circuit Judge. Nordstrom fired
Harry Dunn, III, an African-American
security guard at its Indianapolis retail
store, after discovering that Dunn had
brought a firearm into the store’s
employee service area. Dunn subsequently
filed suit against Nordstrom, alleging
that prior to his termination, Nordstrom
demoted him in retaliation for a
complaint of discrimination he filed with
the Equal Employment Opportunity
Commission (EEOC); that Nordstrom
promoted a less-qualified individual over
him following his second EEOC complaint;
and that Nordstrom terminated his
employment on the grounds of race, rather
than for his violation of the company’s
weapons policy. The district court
granted summary judgment in favor of
Nordstrom. We affirm in part, reverse in
part and remand for further proceedings.
I.
In June 1995, Nordstrom hired Harry Dunn
(an African-American) to serve as a loss
prevention agent at its Indianapolis,
Indiana retail location. J. Bradley
Hanen, the store’s loss prevention
manager (and thus Dunn’s supervisor),
informed Dunn on April 5, 1996 that he
was being promoted to the position of
"internal loss prevention lead."/1 Dunn
alleges that this position was equivalent
to assistant manager of the loss
prevention department, and required him
to interview new hires, oversee the
department budget, investigate store
employees and generally oversee the
internal loss prevention department. Dunn
also received an increase in salary to
accompany his new responsibilities.
However, in spite of his raise, Dunn
believed that his rate of compensation
was not comparable to the salary received
by the two (white) individuals who had
previously occupied his new position.
Thus, in December 1996, Dunn filed a
racial discrimination charge against
Nordstrom with the EEOC. It appears that
the EEOC did not act on this complaint.
Following this initial complaint to the
EEOC, Dunn alleges that he was demoted
from internal loss prevention
lead/assistant manager while
participating in a conference phone call
with Joseph Maniaci, Nordstrom’s regional
loss prevention manager, as well as with
other "internal leads" from other stores.
During this conversation, Maniaci
allegedly told Dunn that he should no
longer call himself "internal loss
prevention lead," but rather "internal
investigator." In addition, Dunn alleges
he was informed that his duties had been
reduced so that he no longer supervised
employees, oversaw the department’s
budget or staffed and trained department
employees. Further, Dunn alleges that he
was denied a $1 per hour raise as a
result of his demotion.
On April 9, 1997, Dunn filed a second
complaint with the EEOC, alleging that
Nordstrom demoted him in retaliation for
filing his initial EEOC complaint. As a
result of this second complaint, Dunn
alleges that Nordstrom promoted him back
to internal lead investigator and
provided him with the $11.75 per hour
salary allegedly received by the previous
white internal loss prevention lead
investigators. Dunn was also awarded
back pay for the previously incurred
salary deficiency.
Following Hanen’s departure from the
store in November 1996, Dunn became the
acting loss prevention manager. However,
by January 1997, Patty Sammuli applied
for and permanently occupied the manager
position; after approximately six months,
Sammuli transferred to Connecticut.
Although Dunn believed he deserved the
promotion to the newly-vacant manager
position, Nordstrom instead transferred
and promoted Carl Sims, who is also an
African-American male. Prior to this
promotion, Sims was the manager at a
Nordstrom Rack located in Oakbrook,
Illinois, where he apparently supervised
only one employee.
On June 26, 1997, Dunn (who possessed a
weapons permit) brought a handgun and
loaded clip into the store’s employee
service area, storing them in an unlocked
box on a shelf. Another loss prevention
employee reported this to Sims, who
located and disarmed the gun. When
confronted by Sims, Dunn admitted to
bringing the gun to work. Shortly
thereafter, Nordstrom terminated Dunn for
violating its express weapons policy,
which states, "For your protection and
safety of others, do not bring any
potentially dangerous items to work,
including weapons." When Dunn alerted
management to similar conduct by Mark
Fritz, a white loss prevention department
employee, Nordstrom promptly terminated
Fritz’s employment. Dunn alleges,
however, that the store manager was
reluctant to fire Fritz and only did so
out of considerations of fairness.
Dunn filed suit against Nordstrom under
both Title VII of the Civil Rights Act of
1964, 42 U.S.C. sec.sec. 2000e et seq.,
and 42 U.S.C. sec. 1981. In his
complaint, Dunn alleged three separate
acts of retaliation or discrimination by
Nordstrom: (1) his demotion from
assistant manager; (2) Sims’ promotion to
manager; and (3) his termination for
violating the weapons policy. The
district court disposed of all three
claims on summary judgment. Specifically,
the district court held that no material
issues of fact existed with regard to
Dunn’s claim of retaliatory demotion from
assistant manager because Dunn had failed
to prove he had previously been promoted
to that position. The district court
further held that, even if Dunn had
established this advancement, he had not
shown any adverse consequences resulting
from the less distinguished title he
allegedly received following his initial
complaint to the EEOC. Next, the district
court dismissed Dunn’s claim that
Nordstrom retaliated against him by
promoting Sims to loss prevention
manager, noting that Dunn provided no
supporting evidence other than self-
serving assertions of his superior
qualifications for the position. Lastly,
the district court found that no material
issues of fact existed with regard to
Dunn’s termination based on his violation
of Nordstrom’s weapons policy, and that
Dunn did not supply evidence that the
policy’s enforcement was a pretext for
discrimination. Dunn appeals.
II.
On appeal, Dunn argues that the district
court should not have granted summary
judgment on any of his retaliation and
discrimination claims because material
issues of fact exist with regard to each
claim. We review de novo the district
court’s disposition of this case on
summary judgment. See Bultemeyer v. Fort
Wayne Community Schools, 100 F.3d 1281,
1282-83 (7th Cir. 1996). In so doing, we
view the record in the light most
favorable to Dunn, the non-moving party.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Summary judgment is
only proper when the "pleadings,
depositions, answers to interrogatories,
and admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that 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, 322-23 (1986). On
appeal, Dunn argues that the district
court erred by granting summary judgment
because issues of fact existed with
regard to whether: (1) Nordstrom
retaliated against him by demoting him
following his initial complaint to the
EEOC; (2) Nordstrom retaliated against
him by promoting Sims following his
second EEOC complaint; and (3) Nordstrom
behaved in a discriminatory manner by
terminating him despite an unofficial
policy that, regardless of Nordstrom’s
official policy to the contrary,
permitted employees to store firearms in
the employee service area.
Because Dunn presents no direct evidence
in support of his claims, he must present
sufficient evidence to establish a prima
facie case of discrimination under the
burden-shifting methodology of McDonnell
Douglas Corp. v. Green, 411 U.S. 792
(1973). In order to prove a prima facie
case of discrimination, Dunn must show
that (1) he was a member of a protected
class; (2) he was meeting Nordstrom’s
legitimate performance expectations; (3)
he suffered an adverse employment action;
and (4) he was treated less favorably
than similarly situated employees outside
of his protected class. See Foster v.
Arthur Andersen, L.L.P., 168 F.3d 1029,
1035 (7th Cir. 1999).
The standard for establishing a prima
facie case of retaliation is slightly
different. Due to a "causal connection"
requirement, "[t]he McDonnell Douglas
standard that we apply in most of our
retaliation cases is not really the
McDonnell Douglas standard." See Bourbon
v. Kmart Corp., 223 F.3d 469, 475 (7th
Cir. 2000) (Posner, J., concurring).
Rather, a plaintiff must establish that:
(1) he engaged in a statutorily protected
activity; (2) he suffered an adverse
employment action subsequent to his
participation; and (3) there was a causal
link between the adverse action and the
protected activity. See Sweeney v. West,
149 F.3d 550, 555 (7th Cir. 1998). To
prove a causal link, the plaintiff is re
quired to show that the employer would
not have taken the adverse action "but
for" the plaintiff’s engagement in the
protected activity. See McKenzie v. Ill.
Dep’t of Transp., 92 F.3d 473, 483 (7th
Cir. 1996).
Even if Dunn successfully establishes a
prima facie case of either discrimination
or retaliation, Nordstrom may
nevertheless escape liability by
articulating a "legitimate,
nondiscriminatory reason" for its action.
See Hughes v. Brown, 20 F.3d 745, 746
(7th Cir. 1994). If Nordstrom clears this
hurdle, the burden once again shifts to
Dunn, who must then provide evidence that
Nordstrom’s asserted rationale is merely
pretextual. See Essex v. United Parcel
Serv., Inc., 111 F.3d 1304, 1309 (7th
Cir. 1997).
A.
Dunn alleges that Nordstrom’s
retaliation for his two EEOC complaints
is evidenced by his demotion from
internal loss prevention lead/assistant
manager, as well as Nordstrom’s failure
to elevate him to manager of the loss
prevention department. We first address
Dunn’s claim that Nordstrom demoted him
for filing his first complaint with the
EEOC. The district court held that Dunn
failed to provide sufficient evidence of
a promotion to internal loss prevention
lead/assistant manager and that Dunn had
therefore failed to show that he ever
occupied the position from which he
claimed to have been demoted. Further,
the district court held that, assuming
Dunn had established this alleged
promotion, he had nevertheless failed to
prove that he had been demoted. Dunn
disagrees, arguing that he has shown a
material issue of fact that requires a
jury’s attention.
As an initial matter, we must determine
the precise position from which Dunn
claims to have been demoted. Dunn’s
briefs are not clear on this point,
predominantly alleging that he was the
store’s internal loss prevention lead,
but also claiming that this position was
the equivalent of being an assistant
manager. Despite this lack of clarity,
Dunn has shown that there is a sufficient
issue of fact with respect to his
promotion to internal loss prevention
lead and to whether this position was
essentially comparable to the position of
assistant manager. Dunn not only presents
a Nordstrom form entitled "Midwest Region
Merit Approval," stating that he was
"just promoted to internal lead," but he
also provides a document entitled
"Internal Loss Prevention Lead
Expectations," which indicates that
Dunn’s role as internal loss prevention
lead required him to supervise other
internal loss prevention employees,
review and generate various reports,
ensure that investigations were properly
and promptly completed and oversee the
department’s budget. From this evidence,
a jury could reasonably infer that
Nordstrom promoted Dunn to internal loss
prevention lead. Indeed, Nordstrom does
not really contest that Dunn was promoted
to this position. Thus, the district
court erred by finding that no material
issue of fact existed with regard to
Dunn’s claim that Nordstrom promoted him
to internal loss prevention lead (and
later demoted him).
Likewise, Dunn produces evidence that
the position of internal loss prevention
lead required him to perform the duties
of an assistant manager. According to
Hanen, his immediate supervisor, "people
view [the internal lead investigator
position] the same as Assistant Manager
of the Loss Prevention Department."
Further, loss prevention investigators
supervised by Dunn corroborated Hanen’s
affidavit testimony: Timothy A. Smith
"observed Mr. Dunn perform the duties of
Assistant Manager of the Loss Prevention
Department" prior to his first EEOC
complaint, and Stacy LeFlore maintained
that "Mr. Dunn held the position of
Internal Lead Investigator, which was the
Assistant Manager position in the
department . . . ." Nordstrom devotes
much of its brief to arguing that these
are conclusory statements and therefore
insufficient to create a genuine issue of
material fact. See Cleveland v. Porca
Co., 38 F.3d 289, 295 (7th Cir. 1994)
("[s]tatements of ’beliefs’ or ’opinions’
are insufficient to create a genuine
issue of material fact"). However, the
affiants are not just expressing beliefs
or opinions with respect to Dunn’s
position, but are instead asserting as a
fact that Dunn fulfilled the duties and
possessed the authority of the loss
prevention department’s assistant
manager. Nordstrom’s supporting
affidavits from management personnel, who
contend that this position did not exist
at the Indianapolis retail location
(although the post apparently existed at
other locations) and that the job title
change applied to all "lead internals,"
and not just to Dunn, are no more
credible than the affidavits presented by
Dunn./2 Indeed, Nordstrom’s apparent
inability to produce any documentary--
rather than testimonial--evidence
relating to the alleged across-the-board
demotion of midwest region internal loss
prevention leads is troubling because one
would expect a large corporation to
document the decision to demote so many
employees. Dunn is entitled to have a
jury weigh the evidence relating to his
performance of an assistant manager’s
duties, and the district court erred by
determining that Dunn had failed to
create an issue of fact with regard to
whether he performed the duties of an
assistant manager, although this was
perhaps not his official title.
Most importantly, regardless of the
title ascribed to Dunn following his
alleged promotion, Dunn has shown that an
issue of fact exists relating to whether
he was entrusted with important new
duties, including employee supervision,
budgeting and reporting. While the
parties expend much of their energy
arguing over what title accompanied this
increase in responsibility, Dunn’s title-
-be it internal loss prevention lead,
assistant manager or whatever--is only
one factor to be weighed in determining
whether Nordstrom retaliated by demoting
Dunn. See Crady v. Liberty Nat’l Bank &
Trust Co., 993 F.2d 132, 136 (7th Cir.
1993) ("A materially adverse change might
be indicated by a termination of
employment, a demotion evidenced by a
decrease in wage or salary, a less
distinguished title, a material loss of
benefits, significantly diminished
material responsibilities, or other
indices that might be unique to a
particular situation."). Accordingly,
regardless whether Dunn was identified as
an internal loss prevention lead or
assistant manager, he has shown a
material issue of fact with regard to his
demotion by alleging his increase in
responsibility and subsequent loss of
this responsibility after he filed his
EEOC complaint.
Lastly, Nordstrom makes much of the fact
that "[t]iming may be an important clue
to causation, but does not eliminate the
need to show causation." Bermudez v. TRC
Holdings, Inc., 138 F.3d 1176, 1179 (7th
Cir. 1998) (citation omitted). Nordstrom
argues that Dunn’s only evidence of
causation comes from the timing of his
demotion. However, the demotion’s timing
is not Dunn’s only evidence of causation.
The record indicates that at least one
Nordstrom employee told Dunn that he was
"barking too loud and the company does
not like people that bark too loud" after
Dunn filed his first EEOC complaint.
Further, following Dunn’s second EEOC
complaint, in which he complained of his
demotion, Dunn was promptly promoted back
to his previous position and provided
with back pay. Accordingly, Dunn has
provided sufficient evidence of causation
to survive summary judgment.
Nordstrom further argues, based on the
affidavit of Maniaci, that Dunn’s proof
of causation does not even include the
timing of his demotion because the
decision to change "the lead internal
title to internal investigator" was made
prior to the filing of Dunn’s first EEOC
complaint. However, Nordstrom’s only
evidence to this effect is Maniaci’s tes
timony that he decided to change the
title "in the mid to latter half of
1996." Nordstrom believes that it is
unlikely that a decision made in the "mid
to latter half of 1996" was made after
December 16, 1999, the date of Dunn’s
first EEOC complaint. It may indeed be
unlikely that Maniaci made his decision
after Dunn filed his EEOC complaint.
However, Maniaci’s inability to more
precisely remember the date of Dunn’s
alleged demotion, Nordstrom’s lack of
documentary evidence--such as a
memorandum--relating to the alleged title
change and our previously noted concerns
regarding whether Dunn held the "lead
internal" title that Maniaci changed, all
counsel against deciding the issue of
causation on summary judgment.
Accordingly, the district court erred by
granting summary judgment in favor of
Nordstrom on the retaliation claim
relating to Dunn’s demotion.
Dunn next argues that Nordstrom
retaliated against him in response to his
second EEOC complaint by promoting the
less-qualified Sims to manager of the
internal loss prevention department. To
establish this claim, Dunn must present
more than his own, subjective self-
appraisal to create a genuine issue of
fact. See Fortier v. Ameritech Mobile
Communications, Inc., 161 F.3d 1106, 1114
(7th Cir. 1998); Gustovich v. AT&T
Communications, Inc., 972 F.2d 845, 848
(7th Cir. 1992); Williams v. Williams
Elec., Inc., 856 F.2d 920, 924 (7th Cir.
1988). Dunn’s evidence does not survive
this challenge. Dunn attempts to
distinguish his allegedly superior
qualifications by noting that Sims
hadsupervised only one investigator in a
small Illinois store prior to his
promotion. Dunn further asserts that
Nordstrom had recognized his capability
to fulfill the manager position "soon";
that he received "excellent ratings" from
his superiors while Sims failed to garner
similar accolades; that he received two
performance awards from Nordstrom; and
that he had already proven his abilities
as assistant manager and acting manager
in the Indianapolis store.
Because we are reviewing a decision on
summary judgment, we accept all of these
assertions as true. See Yorger v.
Pittsburgh Corning Corp., 733 F.2d 1215,
1218-19 (7th Cir. 1984). However, "even
if [a plaintiff’s] personal appraisal
contains true statements about his
accomplishments, [an employer is]
entitled to determine that the
deficiencies in his performance
outweighed such accomplishments."
Fortier, 161 F.3d at 1114. Nordstrom
correctly argues that its decision to
promote Sims fell within its business
judgment, for the record reflects that
despite "excellent ratings," Dunn’s
performance was also the subject of some
concern. In a 1996 performance
evaluation, Hanen acknowledged that:
"Harry’s customer service, leadership,
team play, and professionalism are great.
Harry is a dedicated, hard working, and
consistent employee with in [sic] Loss
Prevention." However, Hanen also
asserted, "To[o] often Harry is quick to
make an excuse, instead of taking
accountability and making sure it will
not happen again. Productivity wise I
think Harry needs to be a lot more
organization [sic] in compiling his
cases. . . . Because of his lack of
organization and other opportunities he
sometimes is unable to handle more than
one task at a time. . . . Harry has a
great potential to move up into
management if he addressed [sic] his
opportunities."/3 (Emphasis added).
Thus, in determining which individual was
better qualified to occupy the managerial
position, Nordstrom was required to make
a calculated business decision by
weighing the relative merits and
deficiencies of both candidates. And, as
we have repeatedly emphasized, it is not
our job to sit in judgment of a
defendant’s personnel department and sec
ond-guess its business decisions.
Accordingly, Dunn fails to establish a
claim of retaliation relating to
Nordstrom’s failure to promote him to
manager./4
B.
Dunn lastly argues that the district
court improperly granted summary judgment
in favor of Nordstrom on the issue
whether Nordstrom had presented a valid,
non-pretextual reason for terminating his
employment. "In trying to establish a
basis that an employer’s explanation was
merely pretextual, an employee must
’focus on the specific reasons advanced
by the defendant to support the discharge.’"
Lenoir v. Roll Coater, Inc., 13 F.3d
1130, 1133 (7th Cir. 1994) (citing Smith
v. Gen. Scanning, Inc., 876 F.2d 1315,
1319 (7th Cir. 1989)). When, as here, a
plaintiff does not have direct evidence
that rebuts the employer’s reason, the
"[p]laintiff 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
discharge." Lenoir, 13 F.3d at 1133
(citing Smith, 876 F.2d at 1319).
Significantly, in establishing pretext,
Dunn need not show that his race was the
true motivation behind Nordstrom’s
decision; it is sufficient for Dunn to
establish a prima facie case of
discrimination and show that Nordstrom’s
proffered reason for terminating his
employment--his violation of Nordstrom’s
written weapons policy--was not the true
basis for Nordstrom’s action. See Reeves
v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000) ("In appropriate
circumstances, the trier of fact can
reasonably infer from the falsity of the
explanation that the employer is
dissembling to cover up a discriminatory
purpose.").
Dunn argues that he has shown that an
issue of fact exists with regard to
whether Nordstrom’s weapons policy,
rather than racial motivations, was the
reason for his termination. Dunn
acknowledges that Nordstrom has a written
weapons policy, which states: "For your
protection and safety of others, do not
bring any potentially dangerous items to
work, including weapons." However, Dunn
maintains that this weapons policy went
unenforced until Nordstrom was required
to produce a reason to mask its-racially-
motivated termination of his employment.
In support, Dunn offers not only his own
affidavit stating that his supervisors
had never objected to his storing a
handgun in the store’s employee service
area, but also the affidavits of Hanen
and two internal investigators, all of
whom attest that handguns were stored in
the employee service area without
objection.
Even if Dunn is correct that Nordstrom’s
weapons policy went unenforced until he
was discharged, Dunn has failed to show
that the policy, once Nordstrom chose to
enforce it, was applied in a
discriminatory manner. As noted earlier,
a prima facie case requires the employee
to show (in addition to the first two
elements of the McDonnell Douglas claim)
that he was discharged and that other,
similarly situated employees who were not
members of the plaintiff’s protected
class were treated more favorably. See
Bellaver v. Quanex Corp., 200 F.3d 485,
494 (7th Cir. 2000) (citing McCreary v.
Libbey-Owens-Ford Co., 132 F.3d 1159,
1166 (7th Cir. 1997)). Nordstrom notes
that it fired Mark Fritz, a white
employee, upon learning that Fritz also
stored weapons in the store’s employee
service area. Dunn does not dispute this
fact, nor does Dunn name any other white
employee who stored weapons in the
employee service area but was not fired.
Accordingly, Nordstrom has shown that
once it did choose to enforce its weapons
policy, it did so in a non-discriminatory
manner. Dunn’s only counter-argument is
to assert that J.J. Johannson, the store
manager, expressed regret when
terminating Fritz, and did not express
similar regret when discharging Dunn.
However, it is irrelevant whether
Nordstrom enjoyed complying with the
anti-discrimination laws so long as
Nordstrom actually did comply. Here,
while Nordstrom may have suddenly decided
to implement its previously unenforced
weapons policy, Nordstrom did so in a
non-discriminatory manner. Accordingly,
Dunn has failed to establish a material
issue of fact with regard to whether he
was terminated for discriminatory
reasons.
III.
For the reasons stated above, the
decision of the district court is Affirmed
in part, Reversed in part and Remanded for
further proceedings consistent with this
opinion.
FOOTNOTES
/1 Nordstrom employs both internal and external loss
prevention employees. While it is not entirely
clear from the record, the internal loss preven-
tion department apparently attempts to prevent
Nordstrom employees from stealing merchandise,
while the external loss prevention department
guards against shoplifting by customers.
/2 The relevance to this case of Nordstrom’s testi-
mony that it "changed the lead internal title to
internal investigator" is suspect because Dunn
was not a "lead internal," but rather an "inter-
nal loss prevention lead." This may be an issue
of semantics, but where, as here, semantics
matter, the parties’ failure to adequately de-
scribe the loss prevention department’s various
job titles is disappointing. The record is re-
plete with references to "internal leads," "lead
internals," "internal investigators," "internal
loss prevention leads," and the like. On remand,
the parties are requested to avoid jargon and to
speak of job titles with clarity.
/3 "Opportunities" appears to be Nordstrom’s euphe-
mism for "shortcomings."
/4 Dunn provides additional support for his retalia-
tion claim by pointing to Sims’ affidavit, in
which Sims alleges that he was used to fire Dunn
because he is African-American and could thus
make Dunn’s termination appear unrelated to race.
But, however relevant Sims’ allegations may be to
a determination of Nordstrom’s motivation when it
terminated Dunn, they do not indicate that Nord-
strom’s promotional selection was in direct
response to the EEOC complaint. Sims’ affidavit
lends no support to Dunn’s retaliation claim,
for, notably, Sims never attests that Dunn was
more competent to fulfill the managerial respon-
sibilities that Nordstrom granted Sims.