Arizanovska v. Wal-Mart Stores, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3387
S VETLANA A RIZANOVSKA,
Plaintiff-Appellant,
v.
W AL-M ART STORES, INCORPORATED ,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 09 C 1404—Richard L. Young, Chief Judge.
A RGUED F EBRUARY 14, 2012—D ECIDED JUNE 12, 2012
Before E ASTERBROOK, Chief Judge, B AUER, Circuit Judge,
and C HANG , District Judge.Œ
B AUER, Circuit Judge. Svetlana Arizanovska filed an
action against her employer, alleging that she was dis-
criminated against because of her pregnancy and her
Œ
The Honorable Edmond E. Chang, District Judge of the
United States District Court for the Northern District of Illinois,
sitting by designation.
2 No. 11-3387
national origin. She added state-law claims of intentional
and negligent infliction of emotional distress. The dis-
trict court granted summary judgment against her on
both her federal and state-law claims. We affirm.
I. BACKGROUND
Svetlana Arizanovska was born in Macedonia and was
a former employee of Wal-Mart Stores, Inc. (“Wal-Mart”).
There, she worked part-time, three days a week as a
stocker on the overnight shift. A stocker is expected to
stock, zone, process returns, and clean the store. Since
stocking requires lifting heavy items, there is a require-
ment that stockers be able to lift up to 50 pounds. The
assistant manager, Nyra Buckner, was Arizanovska’s
primary supervisor and was in charge of providing
Arizanovska with her job assignments. Arizanovska’s
supervisor during the night shift was Eddie Houston.
In November 2008, Arizanovska learned that she was
pregnant. After experiencing some vaginal bleeding and
spotting, she went to her doctor three times in January.
Sometime after January 12, she told Buckner that
her doctor told her that she could not lift more than
20 pounds. Buckner then assigned Arizanovska to work
in the baby food and toothbrush aisles.
Arizanovska experienced some bleeding again on
January 24, 2009. The next day, Buckner assigned her
to work in Aisle 3. Arizanovska complained to Houston
about being assigned to that aisle.
On January 25, she saw some more spotting, and on
January 27, while working at her other job, she experi-
No. 11-3387 3
enced bleeding yet again. At this point, Arizanovska
went immediately to her doctor and learned that she
had miscarried.
In May 2009, Arizanovska discovered that she was
pregnant again, and around May 16, provided Wal-Mart
with a medical restriction; she was not to lift more
than 10 pounds. As a result of her medical restriction,
Arizanovska could no longer perform the essential lifting
functions of her position as a stocker. Arizanovska
asked that she be transferred to a position where she
only folded clothes. But no such position exists; in fact,
employees who fold clothes are also expected to down-
load stock.
On May 18, personnel manager Luann Christy con-
sulted with human resources manager Curtis Mace;
they agreed that under Wal-Mart’s Accommodation in
Employment Policy, Arizanovska would have to take a
leave of absence because she was unable to perform her
job duties. Wal-Mart’s Accommodation in Employment
Policy states:
If you have a medical condition that is not a
disability, but which prevents you from performing
your job, including pregnancy, you may be eligible for
a job aid or environmental adjustment under this
policy, a leave of absence under the Leave of Absence
Policy, or you also may request transfer to another
open position under the Associate Transfer Policy. . . .
Job aid or environmental adjustment means a change
in practices or the work environment which is both
easily achievable and which will have no negative
4 No. 11-3387
impact on the business. This type of accommoda-
tion does not include creating a job, light duty or
temporary alternative duty, or reassignment.
On May 20, Arizanovska told Christy that she would
not take a leave of absence and that she wanted “light
duty”; specifically, she wanted to fold clothes. Christy
told Arizanovska that she could not fold clothes and
that she would have to take a leave of absence until her
doctor released her from her medical restrictions that
prevented her from performing her job duties.
Arizanovska did not return to work at Wal-Mart after
May 20, 2009, and a little over a month later she
miscarried again. She filed a lawsuit against Wal-Mart
shortly thereafter.
The suit claimed that Wal-Mart had violated her
rights under Title VII of the Civil Rights Act, as amended
by the Pregnancy Discrimination Act. She complained
that Wal-Mart failed to accommodate her under its Ac-
commodation in Employment Policy because of
her pregnancy and/or national origin. She also claims
that Wal-Mart retaliated against her for filing a charge
of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Finally, Arizanovska brought
several state-law claims against Wal-Mart—intentional
and negligent infliction of emotional distress, negligent
supervision, and liability for its employees’ actions under
the theory of respondeat superior. The district court
granted summary judgment against Arizanovska on all
her federal and state-law claims. She timely appealed
that judgment.
No. 11-3387 5
II. DISCUSSION
We must determine whether the district court erred in
granting summary judgment in favor of Wal-Mart on
Arizanovska’s claims. We review de novo a district court’s
grant of summary judgment, viewing the facts and all
reasonable inferences in the light most favorable to
the nonmoving party—here, Arizanovska. Hall v. Nalco
Co., 534 F.3d 644, 646 (7th Cir. 2008). We have
previously held that “a factual dispute is ‘genuine’ only
if a reasonable jury could find for either party.” SMS
Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d
365, 368 (7th Cir. 2009).
We turn now to Arizanovska’s claims, taking each
theory of recovery in turn.
A. Pregnancy and National Origin Discrimination
Arizanovska claims that she was forced out of her job at
Wal-Mart as a result of pregnancy and national origin
discrimination. The district court disagreed, finding
that she did not make out a prima facie case of discrim-
ination. Arizanovska may prove her discrimination case
under either the direct or indirect method, Weber v. Univ.
Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir. 2010), but
has elected to pursue her discrimination case only
under the indirect proof method.
Under the indirect method, Arizanovska is required to
produce evidence establishing a prima facie case of dis-
crimination: (1) that she was a member of a protected
class; (2) that she was performing her job satisfactorily;
6 No. 11-3387
(3) that she suffered an adverse employment action;
and (4) that Wal-Mart treated a similarly-situated indi-
vidual outside Arizanovska’s protected class more favor-
ably. Dear v. Shinseki, 578 F.3d 605, 609 (7th Cir. 2009). If
Arizanovska satisfies those elements, the burden then
shifts to Wal-Mart to identify a legitimate, nondiscrimina-
tory reason for the action taken. Stockwell v. City of
Harvey, 597 F.3d 895, 901 (7th Cir. 2010). And if Wal-Mart
advances a nondiscriminatory reason for requiring
Arizanovska to take a leave of absence, summary judg-
ment would only be erroneous if Arizanovska produced
evidence that the proffered reason was a pretext for
improper discrimination. Id.Wal-Mart agrees that Arizanovska is a member of a
protected class but argues that Arizanovska cannot satisfy
the other three prongs of the prima facie case. Summary
judgment is appropriate if Arizanovska cannot demon-
strate any one element of the prima facie case, so we
only need address the fourth prong, an obvious loser. See
Lewis v. City of Chicago, 496 F.3d 645, 652 (7th Cir. 2007).
In order to meet the fourth prong of the prima facie case,
Arizanovska must identify a similarly-situated employee
outside her protected classes who was treated more
favorably. Shinseki, 578 F.3d at 609. Arizanovska has not
done this. To support both her pregnancy and national
origin discrimination claims, Arizanovska contends that
two pregnant, African-American employees were treated
more favorably—i.e., that because of their pregnancies
and race they were allowed to work in aisles with less
heavy items. But the evidence contradicts that. First,
No. 11-3387 7
neither of those employees was assigned to light-duty
work. Second, neither employee provided Wal-Mart
with temporary medical restrictions that prevented
them from doing their job duties. Because there is no
basis to conclude that those employees were treated
more favorably, she cannot make out a prima facie case
for discrimination.
Moreover, with respect to her pregnancy discrimina-
tion claim, Arizanovska has not identified a similarly-
situated employee outside her protected class—i.e., non-
pregnant. Both of the employees she identified were
pregnant, and so we cannot infer pregnancy discrimina-
tion on that basis because there is no comparison
between the treatment of pregnant employees versus non-
pregnant employees. The purpose of the “similarly-situ-
ated” comparator is to ensure that all other variables are
discounted so that discrimination can be inferred. “If an
employer takes an action against one employee in a
protected class but not another outside that class, and all
else is equal between the comparators, we can infer
discrimination, at least provisionally at the prima facie
stage of the analysis.” Silverman v. Bd. of Educ., 637 F.3d
729, 742 (7th Cir. 2011). The “similarly-situated” inquiry
is a “flexible, common-sense one,” Henry v. Jones, 507
F.3d 558, 564 (7th Cir. 2007), but it at least requires that
the plaintiff name a comparator outside her protected class.
Arizanovska also argues that Wal-Mart’s Accommoda-
tion Policy gives preferential treatment to an employee
who is injured outside of work over a pregnant woman
whose condition was attained outside of work. That
8 No. 11-3387
argument, however, is really a challenge to the policy
itself and is not applicable when proving a discrimina-
tion case under the indirect method. And anyway, Title VII
does not require that sort of accommodation. Wal-Mart
did not create a light duty position for Arizanovska
because, according to its Accommodation Policy, it
would not create that position for any non-pregnant
employee who was under medical restrictions. That
policy is consistent with Title VII’s requirements. See
Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548 (7th
Cir. 2011) (“[A]n employer is not required to provide
an accommodation to a pregnant employee unless it
provides the same accommodation to its similarly
situated non-pregnant employees.”).
In short, because Arizanovska has not shown that
similarly-situated employees outside of her protected
classes were treated more favorably, she has failed to
establish a prima facie case of racial or national origin
discrimination under the indirect method. We find, as
the district court did, that summary judgment was
proper. We need not reach the issue of pretext, as plaintiff
has failed to state a prima facie case of discrimination.
See Cowan v. Glenbrook Sec. Serv., Inc., 123 F.3d 438, 445
(7th Cir. 1997).
B. Retaliation
Arizanovska contends that Wal-Mart retaliated against
her after she filed her EEOC charge of discrimination.
Unlike her discrimination claim, which she pursued under
the indirect method, Arizanovska now relies exclusively
No. 11-3387 9
on the direct method. That means she can overcome
summary judgment only by showing that: (1) she
engaged in statutorily protected activity; (2) she suffered
a materially adverse employment action; and (3) the
protected activity is causally related to the adverse em-
ployment action. Davis v. Time Warner Cable of Se. Wiscon-
sin, L.P., 651 F. 3d 664, 677 (7th Cir. 2011).
There is no question here regarding the first element
of the prima facie case. Arizanovska filed an EEOC charge
of discrimination—clearly a protected activity under
Title VII. The second element, however, requires some
discussion. Arizanovska identifies her adverse employ-
ment action as Wal-Mart placing her on an unpaid leave
of absence. But the district court determined that this
was not an adverse employment action.
We have defined adverse employment quite broadly.
McDonnell v. Cisneros, 84 F.3d 256, 258-59 (7th Cir. 1996).
But for an employment action to be adverse, “the chal-
lenged action must be one that a reasonable employee
would find to be materially adverse such that the em-
ployee would be dissuaded from engaging in the
protected activity.” Roney v. Illinois Dep’t of Transp., 474
F.3d 455, 461 (7th Cir. 2007) (citing Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)). We have
noted that materially adverse employment actions can
be categorized into three groups of cases involving: (1) the
employee’s current wealth such as compensation, fringe
benefits, and financial terms of employment including
termination; (2) the employee’s career prospects thus
impacting the employee’s future wealth; and (3) changes
10 No. 11-3387
to the employee’s work conditions including subjecting
her to “humiliating, degrading, unsafe, unhealthful, or
otherwise significant negative alteration in [her] work
place environment.” Herrnreiter v. Chicago Hous. Auth., 315
F.3d 742, 744-45 (7th Cir. 2002) (internal citations and
quotations omitted).
Being forced to take an unpaid leave of absence
certainly falls into the first category of material adverse
employment actions. Yet Wal-Mart argues that its offer
of an unpaid leave of absence was not materially
adverse because it was consistent with its Accommoda-
tion Employment Policy; the choice was either terminate
Arizanovska or place her on an unpaid leave of absence
because there were no other open positions on the over-
night shift and, according to its Accommodation Em-
ployment Policy, Wal-Mart does not create light duty
positions for any employee. That may be well and true;
however, that rationale ignores the reality of the situa-
tion. The fact remains, Arizanovska went from a part-time
employee to unpaid and temporarily unemployed. Wal-
Mart has not cited any case—nor are we aware of
any—in which an employment action was found not to
be materially adverse merely because it was consistent
with a broader company policy. In fact, such a finding
would allow companies to retaliate, and even discriminate
with impunity so long as the employment action com-
plained of was consistent with some internal policy;
a company’s employment policy should not be used
to shield liability in that way. Arizanovska went from
a part-time employee to unpaid and temporarily unem-
ployed. That certainly is not a promotion; nor is it a
No. 11-3387 11
continuation of the status quo. And the mere fact that
it was the result of Wal-Mart’s Accommodation Policy
does not make it sting any less. We find that she has
suffered a materially adverse employment action and
has satisfied the first two elements of a prima facie re-
taliation case. But she is a loser on the third element.
To establish the third element—i.e., a causal rela-
tion—she must show that her EEOC charge was a “sub-
stantial motivating factor” in Wal-Mart’s decision to
require her to take an unpaid leave of absence. Leitgen v.
Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 675 (7th
Cir. 2011). Here, Arizanovska points to an e-mail corre-
spondence between two of Wal-Mart’s supervisors—
Christy (Personnel Manager) and Mace (Human Resources
Manager). In the e-mail exchange, Christy explained to
Mace that Arizanovska had filed legal action against
Wal-Mart following her first pregnancy. Christy
then further explained that Arizanovska was pregnant
again and now had a medical restriction that prevented
her from lifting more than 10 pounds. Mace re-
sponded that Arizanovska would have to take a leave
of absence until she could perform her essential job
functions. If this e-mail seems innocuous, it is because it
is. Mace’s and Christy’s statements do nothing more
than explain Wal-Mart’s Accommodation Policy, which
would apply regardless of whether Arizanovska filed
a claim. There is no indication that Arizanovska’s
EEOC charge was a factor, much less a substantial mo-
tivating factor, for Wal-Mart to require her to take a
leave of absence. We have no basis from which to infer
that Wal-Mart’s motive was actually retaliatory. The
12 No. 11-3387
district court properly granted summary judgment
against Arizanovska’s retaliation claim.
C. State-law Claims
We find that the district court did not err in
granting summary judgment against Arizanovska on
her remaining state-law claims.
III. CONCLUSION
For the reasons stated above, we A FFIRM the district
court’s decision to grant summary judgment in favor of
the defendant.
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