Kerrie Milligan-Grimstad v. Morgan Stanley

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-4224
KERRIE MILLIGAN-GRIMSTAD,
Plaintiff-Appellant,
v.
MORGAN STANLEY and MORGAN
STANLEY SMITH BARNEY LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 8913 — Thomas M. Durkin, Judge.
____________________
ARGUED SEPTEMBER 12, 2017 — DECIDED DECEMBER 11, 2017
____________________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Kerrie Milligan 1 alleges that Morgan
Stanley Smith Barney (“Morgan Stanley”) fired her on the ba-
sis of her sex and that it allowed her coworkers to create a
hostile work environment. Title VII of the 1964 Civil Rights
1 Plaintiff now goes by Milligan rather than Milligan-Grimstad.
2 No. 16-4224
Act prohibits both. The district court granted summary judg-
ment in Morgan Stanley’s favor, finding that Morgan Stanley
dismissed Milligan for her performance and that the conduct
she alleged did not create a hostile work environment. Milli-
gan now appeals. We affirm.
I. BACKGROUND
This appeal challenges the district court’s grant of sum-
mary judgment in favor of Morgan Stanley. Thus, the follow-
ing facts are either undisputed or disputed but taken in the
light most favorable to Milligan. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986).
A. Milligan’s allegations
Milligan joined Morgan Stanley as a sales associate in
2001. In 2005, after a series of promotions, she partnered with
a senior financial advisor, John Mitchell, on a number of client
accounts. This partnership continued until Morgan Stanley
fired Milligan in 2012.
During her deposition, Milligan testified that she was mis-
treated throughout her career at Morgan Stanley. Broadly, her
allegations describe two periods of abuse. The first period ex-
tended from about 2003 to 2009, though Milligan’s testimony
on the duration was unspecific and conflicting. Milligan al-
leges that coworkers, including a financial advisor named Da-
vid Brendza, harassed, unduly criticized, and made sexual
advances towards her during this period. Milligan never re-
ported this alleged harassment to management.
A second period began in 2011—when Mitchell started to
regularly comment to Milligan about the revealing outfits of
a CNBC anchor—and continued until Morgan Stanley fired
No. 16-4224 3
Milligan the following year. During this second period, Milli-
gan married. Though Milligan never revealed if she had preg-
nancy plans, Mitchell frequently questioned her on the topic.
Ultimately, he asked that Milligan plan her pregnancy to ac-
commodate his work schedule.
Also during this second period, Mitchell began to plan for
retirement and spent more time out of the office. Management
encouraged him and Milligan to bring in other advisors to
help them service their book of business. After Mitchell and
Milligan rejected a number of potential partners, manage-
ment encouraged them to work with Brendza on their ac-
counts. Milligan, however, had no interest in partnering with
him. Nevertheless, Milligan and Mitchell discussed Brendza
at various points in 2011 and 2012. Milligan’s immediate su-
pervisor, Troy Mooyoung, and the manager of the Chicago
branch, Mark Evans, occasionally joined these conversations.
And, on September 19, 2012, Brendza joined Milligan and
Mitchell in a client meeting in which he told the client that
Milligan planned to start a family. Milligan never reported
harassment from this second period either.
B. The fraudulent wire transfer and later investigation
Earlier in 2012, Milligan processed a fraudulent wire
transfer request that led to an investigation. That summer,
Milligan received a series of emails—signed by a longtime cli-
ent and her husband—requesting that Milligan transfer
$36,900 to an account she wasn’t familiar with. After a person
who Milligan recognized as the client’s husband called to con-
firm the transaction, Milligan transferred the funds.
4 No. 16-4224
On August 10, the client contacted Milligan to inform her
that she had been the victim of identity theft and had not au-
thorized the transaction. Over the next few weeks, Evans in-
vestigated the way that Milligan handled the request. He
spoke with Milligan, Mooyoung, fraud prevention and com-
pliance officers, and in-house counsel. He also studied emails
and notes related to the transfer. Finally, he reviewed Milli-
gan’s past disciplinary violations: a suspension for signing a
client’s name to a letter of authorization and a letter of educa-
tion for adding information to a form that had already been
signed by a client.
C. Milligan’s dismissal and the lawsuit
On September 24—over a month after Evans began his in-
vestigation into Milligan’s handling of the fraudulent wire re-
quest and five days after Brendza had joined the client meet-
ing—Evans fired Milligan.
Milligan sued, alleging that she had been terminated on
the basis of her sex and that her coworkers’ mistreatment of
her over the course of her career had created a hostile work
environment. Morgan Stanley responded that her dismissal
resulted from her disciplinary record and how she handled
the fraudulent transfer. It also argued that most of the allega-
tions related to the hostile work environment claim were un-
timely and, regardless, not severe or pervasive enough to cre-
ate a hostile work environment.
The district court granted summary judgment in favor of
Morgan Stanley on both claims. As to the termination claim,
the district court found that Milligan had failed to provide ev-
idence that Morgan Stanley fired her because of her sex. As to
the hostile work environment claim, the district court found
No. 16-4224 5
that much of the alleged conduct was time barred and that the
conduct that remained did not create a hostile work environ-
ment. Milligan appeals.
II. ANALYSIS
Milligan argues that the district court erred by granting
summary judgment in favor of Morgan Stanley on her dis-
crimination and hostile work environment claims. On review,
we find that summary judgment was appropriate for both. We
address each in turn.
A. Milligan is not entitled to a trial on her discrimination claim.
To survive summary judgment on a Title VII discrimina-
tion claim, a plaintiff must present “evidence [that] would
permit a reasonable factfinder to conclude that the plaintiff’s
race, ethnicity, sex, religion, or other proscribed factor caused
the discharge.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765
(7th Cir. 2016). We review summary judgment in Title VII
cases de novo. Smith v. Chi. Transit Auth., 806 F.3d 900, 904 (7th
Cir. 2015).
Milligan must show that a reasonable factfinder could
conclude that her sex influenced Evans’s decision. In an at-
tempt to do so, Milligan argues that three facts suggest that
Evans fired her because of her sex: Evans’s misapplication of
company policy; the firm’s treatment of other employees; and
the timing of her firing. Alternatively, she argues that Mitchell
and Brendza caused Evans to fire her based on her sex under
a cat’s paw theory of discrimination. None of these arguments
carries the day.
6 No. 16-4224
1. Milligan presents no evidence that her sex influenced Evans’s
decision to fire her.
Milligan first argues that Evans could not have fired her
for her performance because she did not violate firm policy.
Milligan insists that Morgan Stanley had no relevant policy
or, to the extent that it did, her conduct did not violate the
policy. When viewed in this light, she argues, her firing must
have been influenced by her sex.
This argument falls short. At the time Milligan processed
the fraudulent transition, Morgan Stanley had numerous
guidelines in place to help financial advisors avoid fraud. Ev-
ans was familiar with these policies, and they formed the
backdrop of his decision to fire Milligan. It is possible that Ev-
ans misunderstood the firm’s policies regarding fraudulent
transfer requests. It is also possible that he punished her too
harshly given the sophistication of the fraudster who duped
her. But this court does not act as a “superpersonnel depart-
ment.” Blise v. Antaramian, 409 F.3d 861, 867 (7th Cir. 2005)
(quoting Holmes v. Potter, 384 F.3d 356, 361 (7th Cir. 2004)). So
long as Milligan’s sex did not influence Evans’s decision to fire
her, that decision—even if made by misapplying firm pol-
icy—would not violate Title VII.
Next, Milligan points to how Morgan Stanley treated other
employees who processed fraudulent transfers. She notes that
Morgan Stanley did not fire other similarly situated male fi-
nancial advisors after they mishandled fraudulent requests.
Again, she contends that this suggests that her sex must have
motivated her dismissal. Whether an employer’s treatment of
one employee suggests that it discriminated against another
employee depends in large part on whether the two employ-
ees “engaged in similar conduct without such differentiating
No. 16-4224 7
or mitigating circumstances as would distinguish their con-
duct or the employer’s treatment of them.” Coleman v. Do-
nahoe, 667 F.3d 835, 847 (7th Cir. 2012) (quoting Gates v. Cater-
pillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008)).
Milligan points to how Morgan Stanley treated Vipul Shah
to argue that the firm treated male employees better than their
female coworkers. Her comparison falls short. Like Milligan,
Shah oversaw a fraudulent wire transfer. But Shah had no sig-
nificant disciplinary actions on his record, whereas Milligan
had two. Morgan Stanley’s decision not to fire Shah, therefore,
sheds little light on why it fired Milligan.
By contrast, Morgan Stanley relies on how it treated Pat-
rick Lauderdale. Like Milligan, Lauderdale had a checkered
disciplinary record. And like with Milligan, Morgan Stanley
fired him after he processed a fraudulent request. If anything,
Morgan Stanley’s treatment of Milligan’s coworkers suggests
that the firm fired her for her job performance rather than her
sex.
Finally, Milligan argues that the timing of her firing
evinces discriminatory intent on Evans’s part. In some circum-
stances, suspicious timing may reveal discriminatory intent.
Castro v. DeVry Univ., Inc., 786 F.3d 559, 565 (7th Cir. 2015). As
Milligan highlights, Evans fired Milligan only days after Bren-
dza joined her for the client meeting. But “suspicious timing
alone is rarely enough to survive summary judgment” partic-
ularly when “there are reasonable, non-suspicious explana-
tions for the timing of [the] termination.” Morgan v. SVT, LLC,
724 F.3d 990, 998 (7th Cir. 2013). Here, there is a reasonable,
non-suspicious explanation: Evans fired Milligan at the con-
clusion of his investigation into how she handled the fraud.
8 No. 16-4224
2. Milligan presents no evidence of discrimination based on
Cat’s Paw.
Milligan next insists that, even if Evans himself did not fire
her on the basis of her sex, Mitchell and Brendza caused him
to do so by way of cat’s paw, a theory that applies “when a
biased subordinate who lacks decision-making power uses
the formal decision-maker as a dupe in a deliberate scheme to
trigger a discriminatory employment action.” Woods v. City of
Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). To survive summary
judgment on such a theory, the plaintiff must provide “evi-
dence that the biased subordinate actually harbored discrim-
inatory animus against the victim of the subject employment
action, and evidence that the biased subordinate’s scheme was
the proximate cause of the adverse employment action.” John-
son v. Koppers, Inc., 726 F.3d 910, 914 (7th Cir. 2013).
Milligan’s cat’s paw theory goes as follows. Mitchell and
Brendza wanted Milligan fired either because they disliked
women or worried that she might become pregnant. Then, be-
tween her mishandling of the fraudulent wire request and her
dismissal, Mitchell and Brendza told Evans to fire Milligan.
Finally, Evans fired Milligan in part due to Mitchell and Bren-
dza’s influence.
Even assuming Mitchell and Brendza wanted Milligan
fired, Milligan presents scant evidence to show that they in-
fluenced Evans’s decision. At worst, Milligan suggests that
Evans, Mitchell, and Brendza could have met between the
fraud and the firing and that the pair could have passed their
views to Evans at such a meeting. This type of speculation,
however, is insufficient for any reasonable factfinder to deter-
mine that Evans “merely serve[d] as the conduit … by which
[Mitchell and Brendza] achieve[d] [their] unlawful design.”
No. 16-4224 9
Hill v. Potter, 625 F.3d 998, 1002 (7th Cir. 2010) (quoting Ded-
mon v. Staley, 315 F.3d 948, 949 n.2 (8th Cir. 2003)). Because
Milligan presents no evidence that would allow a reasonable
factfinder to find that Mitchell and Brendza influenced Ev-
ans’s termination decision, her cat’s paw theory fails.
B. Milligan is not entitled to a trial on her hostile work environ-
ment claim.
Because some of Milligan’s hostile work environment alle-
gations fall outside of the statute of limitations, our analysis
proceeds in two parts. First, we determine which allegations
survive the statute of limitations. Second, we ask whether the
allegations that survive could prove a hostile work environ-
ment. Here, most of Milligan’s allegations do not survive the
statute of limitations and those that do are insufficient to
show a hostile work environment.
1. The statute of limitations restricts the allegations the court
may consider as part of Milligan’s hostile work environment
claim.
Milligan filed her claim with the Illinois Department of
Human Rights on March 6, 2013. Thus, only conduct that oc-
curred after May 10, 2012, falls within the statute of limita-
tions. See 42 U.S.C. § 2000e-5(e)(1). The majority of the conduct
that Milligan alleges falls outside of this window. The Su-
preme Court, however, has emphasized that hostile work en-
vironment claims by “[t]heir very nature involve[] repeated
conduct” and “occur[] over a series of days or perhaps years.”
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
Thus, if the alleged conduct forms a single unlawful employ-
ment practice falling at least in part within the statutory pe-
riod, the court may consider conduct outside the statute of
10 No. 16-4224
limitations as part of the hostile work environment claim. Id.at 117–19.
As a result, this statute of limitations does not bar the court
from considering conduct that occurred “10, 15, or 20 years
ago,” so long as it formed a single unlawful employment
practice that reached into the statutory period. See Pruitt v.
City of Chicago, 472 F.3d 925, 928 (7th Cir. 2006). Moreover,
facts such as the harassers’ identities, whether they acted in
concert or isolation, and whether they harassed in distinct or
similar fashions are irrelevant to whether the allegations form
a single unlawful practice. See Isaacs v. Hill's Pet Nutrition, Inc.,
485 F.3d 383, 386 (7th Cir. 2007). This is because the em-
ployer—not its employees—must comply with Title VII, so
we look to the employer’s response to allegations of miscon-
duct rather than the contours of the misconduct itself. See id.Even though the statute of limitations allows plaintiffs “to
drag up ancient history, to the employer’s prejudice,” Pruitt,
472 F.3d at 927 (discussing Morgan, 536 U.S. 101), the length of
time between incidents has been a consistent limiting factor.
In Tinner v. United Insurance Co. of America, for instance, we
refused to consider conduct that occurred outside the statute
of limitations. 308 F.3d 697, 709 (7th Cir. 2002). There, the alle-
gations described isolated incidents—some occurring more
than two years apart from others—rather than continuous
conduct. Id. We held that the large gaps between incidents
prevented the allegations from forming a single employment
practice. Id.; see also Selan v. Kiley, 969 F.2d 560, 567 (7th Cir.
1992).
When determining whether gaps in the alleged conduct
prevent it from forming a single employment practice, we
have demanded that plaintiffs provide more than speculative,
No. 16-4224 11
unspecific assertions. Lucas v. Chi. Transit Auth., 367 F.3d 714,
726–727 (2004).
Here, Milligan’s allegations create two broad periods of
conduct: one lasting from 2003 to some point in 2009 and an-
other lasting from some point in 2011 until Milligan’s firing
the following year. Milligan alleges that, during the earlier pe-
riod, her coworkers harassed, criticized, and made unwanted
advances towards her. Then during the later period, Mitchell
commented on the revealing outfits of a CNBC anchor and
Mitchell and Brendza commented on Milligan’s potential
pregnancy to her and her clients.
Some of these allegations fall within the statute of limita-
tions, but most do not. Nevertheless, Milligan asks that we re-
view all of the conduct—including what falls outside the stat-
ute of limitations—to decide her hostile work environment
claim. To do so, we must find that the series of allegations de-
scribe continuous conduct rather than isolated incidents.
Milligan insists that the allegations from the earlier and
later periods join to form a single employment practice be-
cause very little time separates the periods. To that end, Mil-
ligan testified that the later conduct—starting with Mitchell’s
comments—probably began in 2011. As for earlier conduct,
Milligan testified that it probably occurred from 2003 to 2009
or 2010, though her other statements in her deposition sug-
gest it could have ended as early as 2008.
These assertions lack the specificity necessary to show that
her allegations form a single employment practice. Indeed,
Milligan’s own testimony suggests that the gaps between
Mitchell’s later comments and the earlier harassment that she
faced could be as large as two or three years. Such unspecific,
12 No. 16-4224
speculative allegations cannot connect otherwise distant alle-
gations into a single employment practice. See Tinner, 308 F.3d
at 709; Selan, 969 F.2d at 567. Thus, we will not consider Milli-
gan’s allegations from the earlier period.
Most of Milligan’s remaining allegations occurred within
the May 10, 2012 statutory cutoff. Mitchell’s request that Mil-
ligan plan her pregnancy around his work schedule falls
within this period. The same is true for most of Mitchell’s
comments about the CNBC anchor and Brendza’s comment at
the client meeting. Mitchell’s additional comments about the
CNBC anchor fall outside the statute of limitations. But we
consider them as well because they form a single employment
practice with the other later allegations.
2. The remaining conduct does not create a hostile work envi-
ronment.
The only allegations that survive the statute of limitations
are Mitchell’s comments about the news anchor, his questions
and requests about Milligan’s pregnancy, and Brendza’s com-
ments at the client meeting. These allegations form the chal-
lenged employment practice. And it is these allegations that
the court reviews to determine if Morgan Stanley allowed
Milligan’s coworkers to create a hostile work environment.
To survive summary judgment on a hostile work environ-
ment claim, a plaintiff must prove four elements: “(1) the
plaintiff's workplace was both subjectively and objectively of-
fensive; (2) the plaintiff's sex was the cause of the harassment;
(3) the harassment was severe or pervasive; and (4) there is a
basis for employer liability.” Lord v. High Voltage Software, Inc.,
839 F.3d 556, 561 (7th Cir. 2016).
No. 16-4224 13
Morgan Stanley contends that the conduct did not create
a hostile work environment because it did not make Milligan’s
work environment “hellish.” Ten years ago, we told litigants
loud and clear that “hellishness” is not the touchstone of a
hostile work environment. Jackson v. Cty. of Racine, 474 F.3d
493, 500 (7th Cir. 2007). Morgan Stanley’s assertion to the con-
trary flatly ignores our case law on this point.
That said, summary judgment is appropriate here. To cre-
ate a hostile work environment, the conduct alleged must be
“sufficiently severe or pervasive to alter the conditions of em-
ployment.” Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir.
2009). Whether conduct meets this bar depends on “the sever-
ity of the allegedly discriminatory conduct, its frequency,
whether it is physically threatening or humiliating or merely
offensive, and whether it unreasonably interferes with an em-
ployee's work performance.” Id.Mitchell’s and Brendza’s comments fall short of this bar.
See Overly v. KeyBank Nat’l Ass'n, 662 F.3d 856, 862–863 (7th
Cir. 2011) (allegations that supervisor regularly called em-
ployee “cutie” and in one instance commented on her “pretty
face” did not create a hostile work environment); Scruggs, 587
F.3d at 841 (allegations that supervisor told employee that she
was “made for the back seat of a car” and looked like a “dyke”
in combination with other statements did not create a hostile
work environment). Milligan’s allegations regarding Mitch-
ell’s conduct were her most serious. Though his conduct was
pervasive, it was not physically threatening, nor did it inter-
fere with Milligan’s work performance. Milligan admitted as
much in her deposition. (R. 54-1 at 176.) Milligan’s allegation
that Brendza made a single comment about her plans for a
family does not push the conduct as a whole over that line.
14 No. 16-4224
Thus, no reasonable factfinder could conclude that the con-
duct Milligan alleged created a hostile work environment.
III. CONCLUSION
Summary judgment is appropriate for Milligan’s discrim-
ination and hostile work environment claims. As to her dis-
crimination claim, Milligan offers mere speculation. From
that, no reasonable factfinder could find that Morgan Stanley
fired her because of her sex. Milligan’s hostile work environ-
ment claim fails as well. Her testimony lacks the specificity
that would allow this court to consider her serious—but time-
barred—allegations. And the allegations that fall within the
statute of limitations are not severe or pervasive enough to
create a hostile work environment.
AFFIRMED.