William McGowan v. Deere & Company

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2967
W ILLIAM A. M C G OWAN,
Plaintiff-Appellant,
v.
D EERE & C OMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 C 4003—Joe Billy McDade, Judge.
A RGUED M AY 7, 2009—D ECIDED S EPTEMBER 11, 2009
Before
FLAUM and W ILLIAMS, Circuit Judges, and
LAWRENCE, District Judge.Œ
L AWRENCE, District Judge. William A. McGowan filed
this action against his employer, Deere & Company
(“Deere”), alleging inter alia that Deere discriminated
against him on the basis of race in violation of Title VII of
Œ
The Honorable William T. Lawrence, United States District
Judge for the Southern District of Indiana, sitting by designation.
2 No. 07-2967
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
42 U.S.C. § 1981 by refusing to reinstate him to his posi-
tion at Deere and refusing to promote him to other posi-
tions that he believes he was entitled to receive by virtue
of his seniority. The district court granted summary
judgment in favor of Deere on these claims, and McGowan
now appeals. For the reasons set forth in this opinion,
we affirm the district court’s decision.1
I. Background
McGowan is an African-American male. With the
exception of a period of time when he was laid off, he has
worked continuously at Deere from 1974 to the present. In
September 1999, McGowan injured his back and sought
treatment from a number of doctors, including Deere’s
company doctor, Dr. William Candler. McGowan was
ultimately diagnosed with a herniated intervertebral
disc in his lumbar spine that caused constant pain. He
was prescribed pain medication and physical therapy,
and it was suggested that he might have to undergo
surgery. In March 2000, McGowan returned to work
under either a 25-pound or a 35-pound weight restriction,
1
McGowan had also argued below that Deere discriminated
against him by failing to give him an income security benefit
and that Deere violated the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. Because McGowan does not press either of
these arguments on appeal, we limit our discussion to
McGowan’s refusal to reinstate and refusal to promote argu-
ments.
No. 07-2967 3
and his employment records indicate that by July 3,
2001, he was on a permanent 25-pound restriction.
At some point McGowan suffered another injury that,
when coupled with his pre-existing pain, led to the deci-
sion to undergo back surgery. The surgery was performed
in June 2004 by a neurosurgeon, Dr. Giuseppe Lanzino.
After the surgery, Dr. Lanzino and his nurse practitioner
sent a letter to McGowan’s treating physician, Dr. Brian
Cady, dated July 31, 2004. In that letter, they indicated
that McGowan could return to work with a 50-pound
restriction and that after a month he should be able to
resume full duty. The nurse practitioner filled out a
form with essentially this same information. However, a
few days later Dr. Candler informed McGowan that he
was still under a 25-pound weight restriction. Dr. Candler
claims that he contacted Dr. Lanzino after receiving
notice of the 50-pound restriction and that both of them
agreed that a 25-pound restriction was more appropri-
ate. There is a note to this effect in Dr. Candler’s
records, but nothing appears to have been submitted by
the parties from Dr. Lanzino’s office regarding this con-
versation.
Thereafter, on October 20, 2004, the nurse practitioner
signed another form stating that McGowan could lift up
to 80 pounds. Dr. Candler claims that after he received
this form, he contacted Dr. Lanzino in early November
and that Dr. Lanzino rescinded this form and reiterated
his agreement with the 25-pound restriction. There
does not appear to be any documentation in either
Dr. Candler’s or Dr. Lanzino’s medical records to support
Dr. Candler’s claim.
4 No. 07-2967
McGowan was eventually sent to Greg Monson, a
physical therapist, in June 2005 for a Functional Capacity
Evaluation (“FCE”). Monson concluded generally that
McGowan could perform “medium-heavy” work and
listed very specific weight limitations for different activi-
ties. For example, Monson concluded that McGowan
could lift 85 pound from floor to waist infrequently 1 to
4 times per day and could lift 25 pounds frequently
(33 to 250 repetitions per day) from waist to eye level as a
one-hand carry. In addition, Monson wrote a note in
August 2006 indicating that an across-the-board restriction
of 25 pounds on a frequent basis was appropriate.
McGowan’s treating physician, Dr. Cady, noted in
June 2006 that he saw nothing to contradict the FCE
based on his review of McGowan’s history of prior back
injury and his own examination.
Ultimately, Dr. Candler kept McGowan on a 25-pound
restriction. As a result, McGowan remained unable to
return to his prior position. Moreover, he was unable to
secure two other positions as a sheet fabricator cutting
parts with a “CNC laser” for which he was the senior
bidder because those two positions required an
employee to be able to lift, pull, and push more than 25
pounds. Instead, the Industrial Relations Administrator
at Deere awarded the positions to other individuals.
McGowan blames Dr. Candler for his failure to receive
these positions and believes that Dr. Candler is biased
against him. He contends that Dr. Candler’s animus is
evidenced by the fact that Dr. Candler was upset that
McGowan received a settlement for his original back
injury when Dr. Candler did not think that McGowan
was entitled to the settlement.
No. 07-2967 5
Following the decision to award the CNC laser cutting
jobs to other individuals, McGowan initiated this suit
alleging race discrimination for failing to return him to
his old position and failing to award him the two CNC
laser cutting positions. In support of his claims, he
alleged that two similarly-situated individuals, Gary
Edwards and Kirby McLaughlin, were permitted to
return to positions even though they had restrictions. 2
Edwards allegedly had the same job and supervisor as
McGowan and returned to work “after an injury despite
not being able to lift.” Aside from this informa-
tion, McGowan provided no further specifics on what
limitations (e.g., pushing and pulling) were placed on
Edwards or whether Dr. Candler had examined Edwards
and imposed any restrictions. McGowan claims that
McLaughlin was allowed to work in one of the depart-
ments where a CNC laser cutting job was located even
though she had a 10-pound weight restriction. McLaughlin
performed the job of breaking out cut parts. Similar to
Edwards, it is unclear what other restrictions McLaughlin
had or whether Dr. Candler was involved in any way
with her treatment or restrictions.
Deere moved for summary judgment on McGowan’s
claims. The district court concluded that McGowan had
failed to show that similarly-situated individuals were
treated more favorably and that McGowan was not quali-
2
Interestingly, McGowan testified at his deposition that
Edwards was not permitted to return to his old job after the
injury.
6 No. 07-2967
fied for the positions because of the weight restrictions.
In addition, the district court found that, even if
McGowan were qualified for the positions, McGowan
had failed to demonstrate that Deere’s stated reason for
not placing him in the positions was pretext. Accordingly,
the district court granted Deere’s motion for summary
judgment.
II. Discussion
We review a district court’s summary judgment
decision de novo. Chaklos v. Stevens, 560 F.3d 705, 710 (7th
Cir. 2009). Summary judgment is proper where “there is
no genuine issue of material fact and the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(c).
As noted, McGowan brings his claims of discrimination
pursuant to Title VII and § 1981. As this Court has ob-
served, “[a]lthough section 1981 and Title VII differ in
the types of discrimination they proscribe, the methods
of proof and elements of the case are essentially identi-
cal.” Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940 (7th
Cir. 1996). Because McGowan has no direct evidence of
race-based discrimination, he has elected to proceed
under the indirect, burden-shifting approach of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), for his claims.
Therefore, he has to show that: (1) he is a member of a
protected class; (2) he was qualified for the applicable
positions; (3) he suffered an adverse employment action;
and (4) similarly-situated persons not in the protected
class were treated more favorably. Fane v. Locke Reynolds,
No. 07-2967 7
LLP, 480 F.3d 534, 538 (7th Cir. 2007). If McGowan can
make out a prima facie case on these four factors, the
burden of production shifts to Deere to offer a
permissible, nondiscriminatory reason for the adverse
employment action. Id. If it can do so, the burden then
shifts back to McGowan to show that the stated reason
is merely a pretext for discrimination, i.e., a lie. Id. The
pretext analysis focuses on whether the reason was
honest and not whether it was accurate or wise. Barricks
v. Eli Lilly & Co., 481 F.3d 556, 560 (7th Cir. 2007). Not-
withstanding the shifting burdens, McGowan bears the
ultimate burden of persuading the trier of fact that Deere
intentionally discriminated against him on the basis of
his race. Fane, 480 F.3d at 538.
Here, the parties dispute the second and fourth prongs
as well as the pretext analysis. When an employee
claims that he is qualified and that the employer is lying
about the reasons for an adverse employment action, the
second prong and the pretext question merge. Peirick v.
IUPUI Athletics Dep’t, 510 F.3d 681, 687 (7th Cir. 2007).
Therefore, we begin with the fourth prong of the prima
facie case.
A. Analysis of McGowan’s Proffered Comparators
McGowan has pointed to two comparators, Edwards
and McLaughlin, whom he believes received more favor-
able treatment because they were allowed to return to
work despite having weight restrictions allegedly greater
8 No. 07-2967
than his own resrictions.3 To assess whether two em-
ployees are similar for purposes of the “similarly-situ-
ated” test, “a court must look at all relevant factors, the
number of which depends on the context of the case.”
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir.
2000). Thus, this test involves a flexible, common-sense
approach with requirements that vary from case to case.
Barricks, 481 F.3d at 560. Regardless of the context, how-
ever, the purpose of the test remains the same: to
discern whether there are sufficient common factors
between the plaintiff and another employee to allow for
a meaningful comparison in order to divine whether
discrimination was involved in an employment deci-
sion. Id.
The district court was critical of McGowan’s evidence
on this prong because the only evidence McGowan pre-
sented was his own affidavit. McGowan argues that this
evidence is competent because it is based on his personal
knowledge. In his favor, it is true that this Court has
indicated that self-serving affidavits can be used in op-
position to motions for summary judgment provided
that they meet the usual requirements, such as being
based on personal knowledge and setting forth specific
facts showing that there is a genuine issue for trial. See, e.g.,
3
In the district court, McGowan also listed the names of several
other employees who he alleged were allowed to return to
work following injuries, but he provided even less detail
about those individuals than he did about Edwards and
McLaughlin.
No. 07-2967 9
Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004).
But we need not decide if the affidavit meets this criteria
because, even accepting it for summary judgment pur-
poses, it is insufficient.
The critical areas of focus between McGowan and his
comparators include the work restrictions each
individual had and the duties each individual was re-
quired to perform. McGowan had an across-the-board
restriction that prohibited him from lifting, pulling, or
pushing more than 25 pounds. In comparison, McGowan
states simply that Edwards was not able to lift. Relying
solely on McGowan’s statement, it is unclear what the
full extent of Edwards’s restrictions were. For instance,
did Edwards have any restrictions related to pulling or
pushing? McGowan has provided no evidence to shed
light on these circumstances.
McGowan’s reliance on McLaughlin is fraught
with similar difficulties. He contends that McLaughlin
had a 10-pound lifting restriction, which is disputed by
Deere’s evidence that McLaughlin actually had a 30-
pound restriction. This evidentiary dispute aside, and
accepting for summary judgment purposes as we must
that there was a 10-pound restriction, McGowan has
provided insufficient details on the full range of restric-
tions that McLaughlin might have had. In addition, it
is not even clear that McLaughlin was required to
perform the same job. Specifically, it appears that
McLaughlin removed cut parts. It is unclear how this
position related to the CNC laser cutting position, e.g.,
whether it was more or less strenuous or how the weight
10 No. 07-2967
bearing requirements might have been similar or dif-
ferent. In any event, if McLaughlin was performing
a different job as the evidence suggests, he is not a
similarly-situated individual in the first instance.
Moreover, McGowan’s real argument is that Dr. Candler
harbored some racial animus and recommended an
inaccurate weight restriction that kept him from
obtaining the positions that he wanted. However, he
provides virtually no information on Edwards and
McLaughlin regarding Dr. Candler’s assessment of them
(if any was performed) and how it might relate to or
possibly conflict with the medical records from other
medical providers.
In short, McGowan has provided insufficient details
about his proffered comparators to allow a meaningful
comparison. Because he is unable to demonstrate that
a similarly-situated person not in the protected class
was treated more favorably than he was, he cannot
make out a prima facie case of racial discrimination.
B. Deere’s Basis for Its Decisions
Even though our conclusion on the similarly-situated
prong is sufficient by itself to uphold the district court’s
grant of summary judgment, we nonetheless address
Deere’s stated reason for its decisions, i.e., the parties’
pretext arguments. It is undisputed that Deere con-
sidered McGowan unqualified for the positions he
desired because of the 25-pound weight restriction im-
posed by Dr. Candler. McGowan goes to great lengths
No. 07-2967 11
to try to demonstrate that the restriction was inaccurate.
He also relies on Peirick to argue that he need do nothing
more than this in order to defeat summary judgment. In
other words, he believes that his argument relieves him
from having to present evidence of circumstances that
suggest pretext.
As an initial matter, McGowan’s argument misses the
mark. The focus of our inquiry is not on whether the
restriction was accurate; it is the honesty of Deere’s
belief in the stated reason that matters. Barricks, 481 F.3d at
560. Otherwise, this Court would be substituting its
judgment for the employer contrary to the oft-noted fact
that this Court is “not a super-personnel board charged
with evaluating the general quality of employment deci-
sions.” Brewer v. Bd. of Trustees of Univ. of Ill., 479 F.3d 908,
922 (7th Cir. 2007). Indeed, within the context of this
case, McGowan’s argument would lead the Court down
a path of reconciling conflicting medical evidence.4
Further, McGowan is mistaken if he believes that he
need do no more than demonstrate that the 25-pound
restriction is inaccurate. Nothing in Peirick indicated that
4
We recognize that Deere disputes whether the medical
evidence is conflicting. In particular, Deere relies on Dr.
Candler’s affidavit which indicates that he called Dr. Lanzino
and Dr. Lanzino recanted his opinion regarding a 50-pound
restriction. We need not resolve the soundness of this
evidence on summary judgment and will assume that there
is some evidence that a 50-pound restriction might have
been appropriate.
12 No. 07-2967
a plaintiff is relieved of the obligation of coming forward
with evidence of pretext if he claims that the stated
reason for an employment action is simply wrong. In
other words, just because the analysis of the second
prong of the prima facie case merges with the pretext
analysis does not mean that a plaintiff does not have to
present some circumstances from which intentional
discrimination can be inferred. Otherwise, an honest but
mistaken belief would subject an employer to liability.
Thus, in order to show pretext, a plaintiff is still required
to show that the employer’s stated reason for an employ-
ment action is dishonest and that the true reason was
based on discriminatory intent. Perez v. Illinois, 488 F.3d
773, 777 (7th Cir. 2007). If a plaintiff lacks direct evidence
of this, he may use indirect evidence and must show
that the stated reason is not credible and is factually
baseless, and he ultimately must be able to point to
some circumstances from which an inference can be
drawn that the real reason for the employment action
was discriminatory. Id. at 777-78. Indeed, this Court went
to great lengths in Peirick to note the various circum-
stances that demonstrated that the employer’s stated
reason was suspect. See Peirick, 510 F.3d at 691-94.
Of course, we recognize the cautionary language in
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
146-48 (2000), that circumstantial evidence probative of
intentional discrimination can include proof that an em-
ployer’s explanation for an employment action is
unworthy of belief, and that this circumstance coupled
with the prima facie case can permit a trier of fact to
find unlawful discrimination. But Reeves did not
No. 07-2967 13
eviscerate the requirement that there must still be cir-
cumstances demonstrating the presence of intentional
discrimination, the very harm that Title VII and similar
statutes are meant to redress. Thus, contrary to McGowan’s
belief, a plaintiff must do more than simply allege that
an employer’s stated reasons are inaccurate; he must still
have some circumstances to support an inference that
there was an improper motivation proscribed by law.
Unlike the circumstances of Reeves and Peirick, there is
no evidence suggesting that Deere’s stated reason for its
decisions is suspect and that its real motivation was
discriminatory. For one thing, there is medical evidence
to support the 25-pound restriction. McGowan had been
under a 25-pound restriction following his initial injury
in 1999, a fact with which Dr. Candler was well-ac-
quainted. Aside from Dr. Candler’s opinion, Deere had
an opinion from Monson, a physical therapist, who com-
pleted an FCE with very specific weight limitations for
different activities and concluded that an across-the-
board restriction of 25 pounds on a frequent basis was
appropriate. Moreover, Dr. Cady, McGowan’s treating
physician, could not find any reason to dispute the FCE.
Thus, there was a medical basis for the restriction, and
consequently Deere’s stated reason was not factually
baseless.
Ultimately, McGowan has not produced any evidence
suggesting that Deere’s actions were motivated by
racial animus. There simply is no evidence that Dr.
Candler was biased against McGowan because of his
race. In fact, McGowan claims that Dr. Candler is biased
14 No. 07-2967
against him because he was upset that McGowan
received a settlement for the back injury in 1999. If this
is true, it certainly would reflect negatively on
Dr. Candler’s professionalism, but it would not be unlaw-
ful under Title VII or § 1981. However, even if we give
McGowan the benefit of the doubt that Dr. Candler
might be racially-biased, there is nothing to show that
Deere knew or should have known that Dr. Candler
harbored such a bias and that it should not believe his
medical opinion (particularly when there was other
medical evidence to support it) when it decided not to
give McGowan the positions he desired. In short,
McGowan has not demonstrated that Deere intentionally
discriminated against him because of his race, even if
he could make out a prima facie case of race discrimination.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
grant of Deere’s motion for summary judgment.
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