Preston, Jay v. WI Health Fund

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2384
JAY PRESTON,
Plaintiff-Appellant,
v.
WISCONSIN HEALTH FUND, BRUCE TROJAK,
and LINDA HAMILTON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-C-0448—Patricia J. Gorence, Magistrate Judge.
____________
ARGUED JANUARY 11, 2005—DECIDED FEBRUARY 9, 2005
____________
Before POSNER, MANION, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Jay Preston, a dentist, charges that
the Wisconsin Health Fund, his former employer, dis-
criminated against him on account of his sex in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq., when they replaced him as director of the Fund’s
dental clinic with Linda Hamilton (not to be confused with
the female lead in the first two Terminator movies). Preston
further argues that in procuring this substitution, Bruce
Trojak, the Fund’s chief executive officer, conspired with
Hamilton to destroy Preston’s contractual relationship with
the Fund, in violation of Wisconsin’s common law of
2 No. 04-2384
tortious interference with contract. The district court
granted summary judgment for the defendants.
The Fund is a teamsters health and welfare fund that
provides health services directly in clinics that it owns, as
well as indirectly by paying for medical or dental treat-
ment that its participants obtain outside the Fund’s clinics.
The Fund had been hemorrhaging money for many years
when Trojak became its chief executive officer in 1998.
The dental clinic alone, under Preston, its long-time di-
rector, lost $1 million the following year. Preston presented
ideas for stemming the flow to Trojak in a well-written
business plan (Preston has an M.B.A. as well as a dental
degree), despite which Trojak fired him and replaced him
with Hamilton, a much younger dentist who had no
apparent credentials for the job except eagerness for it.
Trojak testified at his deposition that Preston’s ideas were
too few and too late and that he was impressed by Hamil-
ton’s “can do” attitude. This may be true but it may also
be true, as Preston claims, that Trojak favored Hamilton
for personal reasons. There were rumors, although unsub-
stantiated, that they were having an affair. They frequently
dined together and sometimes after dinner would repair
to his apartment for—according to their not terribly credible
deposition testimony—platonic sessions solely devoted to
disinterested discussion of the future of the dental clinic,
though Hamilton did acknowledge indicating at these
sessions her desire to be promoted to dental director.
Trojak is no longer with the Fund, and Hamilton is no
longer the dental director. But the circumstances of their
departures are obscure, and both are represented in this
lawsuit by the Fund’s law firm.
A male executive’s romantically motivated favoritism
toward a female subordinate is not sex discrimination
even when it disadvantages a male competitor of the
woman. Such favoritism is not based on a belief that women
No. 04-2384 3
are better workers, or otherwise deserve to be treated better,
than men; indeed, it is entirely consistent with the opposite
opinion. The effect on the composition of the workplace is
likely to be nil, especially since the disadvantaged competi-
tor is as likely to be another woman as a man—were Preston
a woman, Trojak would still have fired her to make way for
Hamilton unless Trojak was romantically entangled with
both of them. Neither in purpose nor in consequence can
favoritism resulting from a personal relationship be equated
to sex discrimination. Schobert v. Illinois Dept. of Transporta-
tion, 304 F.3d 725, 733 (7th Cir. 2002); Womack v. Runyon, 147
F.3d 1298 (11th Cir. 1998) (per curiam); Becerra v. Dalton, 94
F.3d 145, 149-50 (4th Cir. 1996); DeCintio v. Westchester
County Medical Center, 807 F.2d 304, 308 (2d Cir. 1986).
Preston tries to bolster his case by pointing to the fact that
Trojak gave large raises to several women and by noting
that there was even talk in the workplace of “Bruce and his
harem.” But he provides no details that would enable a trier
of fact to infer that the raises were motivated by the recipi-
ents’ sex. All we know is the amount of the raises, the
number of recipients, and the sex ratio of the recipi-
ents—five women to two men. To infer discrimination we
would need to know more. We would need to know the sex
composition of the Fund’s workforce, whether there were
men who had jobs comparable to those of the five women
but didn’t get similar raises, and whether the raises were
due to the women’s being promoted to new jobs and if so
whether men had a fair opportunity to compete for those
promotions. There are some answers in the record but
Preston makes nothing of them. He insists that the bare fact
that more women than men got large raises, together with
the favoritism shown Linda Hamilton, is enough to get him
to a jury.
4 No. 04-2384
One reason it is not enough is that the courts take a
realistic view of the circumstances in which an infer-
ence that men are discriminating in favor of rather than
against women is plausible. Phelan v. City of Chicago, 347
F.3d 679, 684-85 (7th Cir. 2003); Mills v. Health Care Service
Corp., 171 F.3d 450, 455-57 (7th Cir. 1999); Leadbetter v. Gilley,
385 F.3d 683, 690 (6th Cir. 2004). It is not surprising when
women discriminate in favor of women any more than it is
surprising men discriminate in favor of men. It is surprising,
in many though not all cases, when men discriminate
against men in favor of women. Two situations that have
been identified in the cases where it is not surprising. The
first is where the men running the company are under
pressure from affirmative action plans, customers, public
opinion, the EEOC, a judicial decree, or corporate superiors
imbued with belief in “diversity” to increase the proportion
of women in the company’s workforce. Hill v. Ross, 183 F.3d
586 (7th Cir. 1999); Wheeler v. Missouri Highway & Transpor-
tation Comm’n, 348 F.3d 744, 749 (8th Cir. 2003); Brunet v.
City of Columbus, 1 F.3d 390 (6th Cir. 1993). The second
situation is where the jobs in question are traditional
“women’s work,” such as nursing, which the men running
the company believe women can do better than men; fixated
on this stereotype they refuse to make an individualized
assessment of male applicants. Lynn v. Deaconess Medical
Center-West Campus, 160 F.3d 484 (8th Cir. 1998); Diaz v. Pan
American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971); cf.
Mississippi University for Women v. Hogan, 458 U.S. 718, 720-
21 (1982).
There may be other situations as well in which it is
plausible to expect that men might discriminate against men
and in favor of women; the list is not a closed one. See
Phelan v. City of Chicago, supra, 347 F.3d at 684-85; Mills v.
Health Care Service Corp., supra, 171 F.3d at 456-57. But when
No. 04-2384 5
as in this case no reason is given why men might be ex-
pected to discriminate against men, the plaintiff, to raise a
triable issue of discrimination, must present some evidence
beyond the bare fact that a woman got a job that a man
wanted to get or keep. A gross disparity in qualifications
might be such evidence—but for the fact in this case that the
plaintiff himself is insisting that the reason the less-qualified
Hamilton was given the job of the more-qualified Preston
was personal and, as we have explained, unrelated to sex
discrimination. All that is left is the undeveloped evidence
of the raises given to the other women. The district judge
was correct, therefore, to grant summary judgment for the
Fund on Preston’s Title VII claim.
Let us move on to the tort claim. Preston’s lawyer sug-
gested at argument that by joining it to a Title VII claim he
had the defendants in a fork. If we thought that Trojak
advanced Hamilton for purely romantic reasons, this
would, he conceded, undermine his Title VII claim for the
reason that we have just explained. But he insisted that
it would make his tortious-interference case by showing that
Trojak and Hamilton had ruptured Preston’s contractual
relationship with the Fund without justification.
In the typical tortious-interference case, A has a con-
tract with B—for example, to sing in an opera produced by
B—and C comes along and induces A to break her contract
and sing for C’s opera company instead. B can sue A
for breach of contract, but B can also sue C in tort for
inducing the breach. IDS Life Ins. Co. v. SunAmerica Life Ins.
Co., 136 F.3d 537, 539 (7th Cir. 1998); Lumley v. Gye, 2 El. &
Bl. 216, 118 Eng. Rep. 749 (Q.B. 1853); W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 129, p. 980 (5th ed.
1984); Restatement (Second) of Torts § 766 (1979). The present
case is unusual because C is, as it were, another singer,
6 No. 04-2384
trying to take A’s place. It is not as if Trojak-Hamilton,
viewed as a pair who conspired to replace Preston with
Hamilton, were competitors of the Fund seeking to steal
Preston from it. They were employees of the Fund seeking
to get rid of a competing employee. The struggle is in-
ternal to the employer, which will find it hard to control
its employees if they can sue each other—and especially
if they can sue the Fund’s CEO—over promotions and
demotions. If Preston’s tortious-interference claim can fly,
it means that whenever a supervisor decides to promote one
person in place of another, the person who doesn’t get the
promotion will be able to sue him. An employer’s costs will
rise if he must compensate his supervisors for the risk of
their being sued by employees whom they fire—that, or the
supervisors will be timid about firing nonperforming
employees, an arguable characterization of Preston.
Granted, what was a promotion for Hamilton was not
a lost promotion for Preston; it was the loss of his job. But
he was an employee at will. That means the Fund didn’t
want him to have a right to sue it for breach of con-
tract if it fired him. Not that there can never be a suit for
tortious interference with contract by an employee at will.
Employment at will is a contractual relationship, albeit
one with no definite duration; if for example some compet-
ing dental clinic had slandered Preston to the Fund in order
to get him fired in the hope of being able to hire him for
itself at a lower wage, he would have a solid claim against
the clinic for tortious interference. Mendelson v. Blatz Brewing
Co., 101 N.W.2d 805, 807 (Wis. 1960); Mackenzie v. Miller
Brewing Co., 608 N.W.2d 331, 349 (Wis. App. 2000); Speakers
of Sport, Inc. v. ProServ, Inc., 178 F.3d 862, 865 (7th Cir. 1999).
But that would not be like this case. The practical effect of a
suit against a coworker or a corporate officer might be to
transform employment at will into employment terminable
No. 04-2384 7
only for cause.
The cases do not rule out all possibility of an at-will
employee’s bringing a suit for tortious interference against a
corporate officer, such as Trojak. Mendelson and Mackenzie
were such cases; see also Lorenz v. Dreske, 214 N.W.2d 753,
760 (Wis. 1974); Joseph P. Caulfield & Associates, Inc. v. Litho
Productions, Inc., 155 F.3d 883, 890 (7th Cir. 1998) (Wisconsin
law); Farr v. Gruber, 950 F.2d 399, 402 (7th Cir. 1991) (ditto);
Kumpf v. Steinhaus, 779 F.2d 1323, 1325 (7th Cir. 1985) (ditto).
But to avoid converting employment at will into employ-
ment terminable only for cause, the cases require the
plaintiff to prove that the defendant had an improper
motive. Mark R. Hinkston, “Tortious Interference with At-
Will Employment,” Wisconsin Lawyer, Sept. 2001, pp. 14, 16-
17, 54, 56 (Sept. 2001). As we noted in Farr, the cases are
unclear on what should count as such a motive. See, e.g.,
Thelen v. Marc’s Big Boy Corp., 64 F.3d 264, 270 (7th Cir. 1995)
(Wisconsin law); Albert v. Loksen, 239 F.3d 256, 275-76 (2d
Cir. 2001); Daley v. Aetna Life & Casualty Co., 734 A.2d 112,
134-36 (Conn. 1999); Fellhauer v. City of Geneva, 568 N.E.2d
870, 878-79 (Ill. 1991). But unless courts are to be over-
whelmed by suits by disgruntled former employees against
corporate officers, more is required than that a discharge be
tainted by some private motive, such as greed, personal
dislike, or, in this case perhaps, a personal attachment to a
competing employee. Few are the employees whose actions
are motivated solely by a selfless devotion to the employer’s
interests. The plaintiff must prove both that the employer
did not benefit from the defendant’s act and that the act was
independently tortious, for example as fraud or defamation.
Preston has made no effort to satisfy either requirement:
With the dental clinic that he had long managed operating
at a large deficit, as was the Fund as a whole, the trustees
undoubtedly expected their new CEO to wield the axe.
There is no evidence that they regretted Preston’s discharge
8 No. 04-2384
or Hamilton’s replacing him or made any effort to reemploy
Preston—a natural step to have taken had they thought it a
mistake (or worse) to fire him. They ratified Preston’s
discharge. There is also no evidence that Trojak and Hamil-
ton defamed or defrauded Preston or otherwise committed
an independent tort against him (that is, a tort different
from the tort of intentional interference with a contract) in
procuring his discharge and replacement by Hamilton. A
jury would be speculating if it found that Trojak would not
have appointed Hamilton to head the dental clinic had he
not had romantic feelings toward her. Trojak and Hamilton
may not have been acting solely in the interests of the Fund,
but that is too demanding a test.
AFFIRMED.
No. 04-2384 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-05