Janet M. Strate v. Midwest Bankcentre

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
____________
No. 03-4039
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Janet M. Strate, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri
*
Midwest Bankcentre, Inc., *
*
Appellee. *
____________
Submitted: September 17, 2004
Filed: February 17, 2005
____________
Before MURPHY, McMILLIAN and BENTON, Circuit Judges.
____________
McMILLIAN, Circuit Judge.
Janet M. Strate appeals from a final order entered in the United States District
Court for the Eastern District of Missouri granting summary judgment in favor of her
former employer, Midwest Bankcentre, Inc., (the Bank), on her claims of unlawful
employment discrimination and retaliation under the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq., the Missouri Human Rights Act (MHRA),
Mo.Rev.Stat. § 213.010 et seq., and the Employment Retirement Income Security Act
(ERISA), 29 U.S.C. § 1000 et seq., among other statutes. Strate v. Midwest
Bankcentre, Inc., No. 4:02-CV-219 (E.D. Mo. Nov. 14, 2003) (hereinafter “slip op.”).
For reversal, Strate argues that the district court erred in: (1) formulating the
applicable legal standard under McDonnell Douglas v. Green, 411 U.S. 792 (1973)
( McDonnell Douglas), without incorporating a “modification” of that standard under
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (Desert Palace), and (2) applying the
law to the evidence in the record on summary judgment. She contends that she
established a genuine issue of material fact as to whether her relationship or
association with her disabled newborn child was a motivating factor in the Bank’s
decision to eliminate her position and effectively terminate her employment. She
argues that summary judgment was therefore improperly granted on several of her
claims.1 For the reasons discussed below, we affirm in part and reverse in part and
remand the case to the district court for further proceedings consistent with this
opinion.
Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331,
1343. Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice
of appeal was timely filed pursuant to Fed. R. App. P. 4(a).
Background
The following is a summary of the background facts as set forth in the district
court’s summary judgment order. Slip op. at 3-8. Strate began working for the Bank
on June 18, 1990. She held the position of auditor until August 1997, when she was
promoted to Senior Vice President (VP) of Operations and Information Systems. In
December 1998, she was promoted to Executive VP of Retail Banking, Trust
Services, and Human Resources. One month later, in January 1999, she became the
Executive VP of Consumer Services and a member of the Bank’s executive
committee. In May of 2000, Strate became the Executive VP of Operations and
1
Strate does not appeal the district court’s order with respect to claims she
brought under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), and the
Family Medical Leave Act, 29 U.S.C. § 2611.
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Information Systems. Afterward, Tom Green and Paul Mahoney, the VPs of the
Operations Department and Information Systems Department, reported directly to
Strate, and Strate reported directly to Frank Ziegler, the Bank President.
In the latter part of 2000, the Bank hired an outside consultant, Tina Cherpes,
to help improve customer services. Cherpes identified several problems at the Bank,
such as unreconciled accounts and customer complaints. After identifying those
problems, Cherpes was engaged by the Bank to help stabilize and reengineer the
Operations Department.
Meanwhile, Strate had become pregnant. In the fall of 2000, she informed
Ziegler and Jack Biggs, the Bank’s Chairman of the Board, of her pregnancy. Strate
was granted permission to take leave under the Family Medical Leave Act (FMLA).
She began her FMLA leave on April 12, 2001. Before Strate went on leave, she
expressed concern to Ziegler about her job. He told her “that she had been a good
employee, that he had no reason to expect her job would not be there, and she should
not be concerned.” Id. at 5.
On April 20, 2001, Strate gave birth to her third child, who was born with
Down’s Syndrome. On April 24, 2001, Strate enrolled her newborn child in the
Bank’s group healthcare plan. On June 3, 2001, she notified Ziegler that she planned
to return to work on July 2, 2001, but that she might require surgery due to her recent
delivery.
On June 11, 2001, while Strate was on maternity leave, Ziegler discharged
Green, purportedly in response to continuing problems within the Operations
Department. Thereafter, the Operations Department was run by three people:
Cherpes, the outside consultant; Sarina Strack, a bank employee; and another bank
employee. The three worked under the direction of an executive steering committee
at the Bank.
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Around the same time, while Strate was still on leave for the birth of her child,
Ziegler decided to eliminate her position. As the district court explained:
Ziegler concluded that the Operations and Information Systems
Departments’ leaders should report directly to him and become part of
[the Bank’s] Executive Management Team so as to improve
communications. He determined that it was in [the Bank’s] best interest
to eliminate the layer of supervision or management between him and
those two departments’ VPs. As part of the stabilization project, the
Operations Department was renamed “Customer Support Department.”
The VP of Customer Support would report directly to Ziegler. He
decided to eliminate [Strate’s] position and so informed Biggs.
Id. at 6.
Thereafter, following a meeting between Ziegler and Biggs, Biggs’s assistant,
Darla Clenin, overheard Biggs on the telephone saying, among other things, “Frank
was going to handle it,” “there’s no more room in the barn for her,” and “conscious
of the disability.” Id.
On June 25, 2001, the Bank externally advertised that it was looking to hire a
VP of Customer Support.2 The job opening was not posted internally. On June 29,
2001, Biggs sent an e-mail message to one of the Bank’s board members discussing
the management restructuring plan and favorably noting Strack’s interest in the
newly-created VP of Customer Support position. Biggs indicated that promoting
Strack, while eliminating Strate, would result in a net savings for the Bank, even if
Strack were given a raise. He further stated:
2
Because the Operations Department was in the process of being renamed the
Customer Support Department, this newly-created position was interchangeably
referred to as VP of Operations or VP of Customer Support. For the sake of clarity
and consistency, the position is referred to herein as VP of Customer Support.
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Janet Strate will return Monday. Frank is prepared to deal with this
situation and advise Janet that her position is no longer here and that
there is not a role that suits her given the directions now being taken.
We are prepared to give her a fair exit and will counsel her accordingly.
Frank is giving his approach serious thought so that we do not get in a
sticky situation.
Id. at 7 (quoting Plaintiff’s Deposition Exh. 3) (located in Joint Appendix (Vol. II)
at 279).
When Strate returned to work on July 2, 2001, Ziegler told her that her position
had been eliminated due to restructuring. He also told her that she could apply for the
newly-created VP of Customer Support position, but the selection committee did not
view her as a viable candidate for the job. He further stated that, if she did not apply
for the new position, she could have a severance package which included eleven
months of salary plus six months of continued healthcare coverage. Strate did not
apply for the VP of Customer Support position and declined the severance package
offered by Ziegler. Id. at 7-8.
The Bank interviewed two external candidates and one internal candidate,
Strack, for the VP of Customer Support position. On July 18, 2001, Strack was
promoted to that position, and, on November 20, 2001, she was promoted to Senior
VP of Customer Service.
Strate received Right to Sue letters from the EEOC and the Missouri
Commission on Human Rights on January 9, 2002, and February 1, 2002,
respectively. On May 31, 2002, Strate filed the present action in the district court
claiming, among other things, that the Bank’s elimination of her position as Executive
VP of Operations and Information Systems, which effectively terminated her
employment, was motivated by discrimination or retaliation based upon her
relationship or association with a disabled person, her newborn child, in violation of
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the ADA, the MHRA, and ERISA. The Bank moved for summary judgment. Shortly
thereafter, the district court denied the Bank’s summary judgment motion without
prejudice and ordered the parties to file supplemental briefs addressing the impact of
the Supreme Court’s then-recent decision in Desert Palace.
Desert Palace
In Desert Palace, the plaintiff sued her former employer in federal court
alleging gender discrimination and sexual harassment in violation of Title VII. The
action proceeded to trial only on the gender discrimination claim. At trial,
notwithstanding the defendant’s objection based upon the plaintiff’s lack of direct
evidence, the district court gave a mixed motive jury instruction incorporating legal
standards established by Congress in the 1991 Civil Rights Act,3 which had been
3
The Civil Rights Act of 1991 established the following pertinent standards:
Except as otherwise provided in this subchapter, an unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other
factors also motivated the practice.
42 U.S.C. § 2000e-2(m).
(B) On a claim in which an individual proves a violation under section
2000e-2(m) of this title and a respondent demonstrates that the
respondent would have taken the same action in the absence of the
impermissible factor, the court –
(i) may grant declaratory relief, injunctive relief (except as
provided in clause (ii)), and attorney’s fees and costs
demonstrated to be directly attributable only to the pursuit of a
claim under section 2000e-2(m) of this title; and
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enacted in response to the Supreme Court’s decision in Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) (Price Waterhouse). Regarding liability, the district court noted
that the jury had heard evidence of both lawful and unlawful motives for the
defendant’s adverse employment action and instructed the jury that the plaintiff was
entitled to a favorable verdict on liability if the protected characteristic (gender) was
a motivating factor in the adverse employment action, regardless of whether other
lawful motives also played a role. On damages, the district court instructed the jury
that the plaintiff was entitled to damages even if the adverse action was motivated by
both gender and a lawful reason, unless the defendant had proven by a preponderance
of the evidence that it would have taken the same adverse action if plaintiff’s gender
had played no role in the employment decision. Desert Palace, 539 U.S. at 96-97.
The jury rendered a verdict for the plaintiff and awarded her back pay, compensatory
damages, and punitive damages. Judgment was entered accordingly. After the
district court’s judgment was affirmed by the Ninth Circuit en banc, the Supreme
Court granted review to consider the following limited issue: “whether a plaintiff
must present direct evidence of discrimination in order to obtain a mixed motive
instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil
Rights Act of 1991.” Id. at 92. The Supreme Court held that direct evidence is not
required in order for a mixed motive jury instruction to be given.4 The Court noted,
(ii) shall not award damages or issue an order requiring any
admission, reinstatement, hiring, promotion, or payment,
described in subparagraph (A).
Id. § 2000e-5(g)(2)(B).
4
Historically, a plaintiff could prove unlawful employment discrimination at
trial indirectly using circumstantial evidence under the pretext analysis of McDonell
Douglas v. Green, 411 U.S. 792 (1973) (McDonnell Douglas), or directly using direct
evidence under the mixed motive analysis of Price Waterhouse v. Hopkins, 490 U.S.
228 (1989) (Price Waterhouse). In other words, before the Supreme Court rendered
its decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (Desert Palace),
McDonnell Douglas and Price Waterhouse were viewed as providing alternative
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among other things, that “Section 2000e-2(m) unambiguously states that a plaintiff
need only ‘demonstrat[e]’ that an employer used a forbidden consideration with
respect to ‘any employment practice.’ On its face, the statute does not mention, much
less require, that a plaintiff make a heightened showing through direct evidence.” Id.
at 98-99.
Application of Desert Palace
In the present case, the parties addressed the impact of Desert Palace in legal
memoranda submitted in connection with a “renewed and supplemental” motion for
summary judgment filed by the Bank. The Bank’s renewed motion asserted that,
notwithstanding the Supreme Court’s decision in Desert Palace, the burden-shifting
analysis set forth in McDonnell Douglas, 411 U.S. at 802-05, continued to apply to
Strate’s employment discrimination claims, and that, upon application of that
analysis, the Bank was entitled to judgment as a matter of law because Strate had
failed to create a genuine issue of fact as to whether a protected characteristic or
activity, such as her association with her disabled newborn child or her enrollment
of the child in the Bank’s group healthcare plan, motivated the Bank’s decision to
eliminate her position.
Upon consideration of the Bank’s renewed motion for summary judgment, the
district court correctly noted that the Eighth Circuit, in the aftermath of Desert Palace,
methods for proving discrimination, depending on the nature of the plaintiff’s
evidence. See, e.g., Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.) (en
banc) (“We have interpreted [Price Waterhouse] to require a plaintiff to present, at
a minimum, some direct evidence of discriminatory motive. Because [the plaintiff]
relied entirely on circumstantial evidence to establish the existence of a
discriminatory motive . . ., the district court was correct in reviewing [the plaintiff’s]
claim solely under the McDonnell Douglas framework.”) (internal citations omitted),
cert. denied, 528 U.S. 818 (1999).
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has continued to apply the burden-shifting framework established in McDonnell
Douglas to determine whether or not a claim of unlawful employment discrimination
can survive a defendant’s motion for summary judgment. Slip op. at 16. The district
court concluded that the McDonnell Douglas analysis “governs [Strate’s] various
claims,” and proceeded to analyze Strate’s claims accordingly. Id. at 19.
The Bank did not dispute, and the district court assumed, that Strate had made
a prima facie case on each of her claims. To meet its sequential burden of
production, the Bank asserted that it had eliminated Strate’s position as part of a
reorganization of its management structure. The district court then proceeded to
consider whether that stated explanation was a pretext for unlawful discrimination or
retaliation. The district court concluded that the evidence in the record, whether
direct or circumstantial, did not create any genuine issue of fact as to whether Strate
was terminated as a result of her association with her disabled child or the impact of
the child’s birth on her healthcare benefits. Slip op. at 23. Accordingly, the district
court, without reaching the Bank’s other arguments,5 granted the Bank’s motion for
summary judgment and dismissed the action with prejudice. This appeal followed.
5
In its renewed motion for summary judgment, the Bank also maintained that,
even if there were a genuine issue of fact regarding unlawful discrimination, it was
nevertheless beyond genuine dispute that Ziegler would have made the “same
decision” for lawful reasons, irrespective of any unlawful motivation. The Bank thus
argued in the alternative that it was at least entitled to summary judgment on the
issues of back pay, emotional distress, and punitive damages, under 42 U.S.C.
§§ 2000e-2(m) and 2000e-5(g)(2)(b). The Bank additionally disputed the
applicability of §§ 2000e-2(m) and 2000e-5(g)(2)(b) to Strate’s ERISA claim. See
District Court Record (Filing #47) (Memorandum in Support of Defendant’s
Renewed and Supplemental Motion for Summary Judgment at 20-21, 15 & n.3, 16).
These issues are not before us in the present appeal.
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Discussion
Strate first argues that “[t]he district court’s fundamental error was its failure
to recognize that Desert Palace modified the familiar three-stage test announced in
McDonnell Douglas v. Green, 411 U.S. 792 (1973).” Brief for Appellant at 12
(emphasis original). She explains her argument as follows:
The district court held that, to avoid summary judgment, plaintiff
had to prove that the Bank’s “proffered explanation is both incorrect and
that discrimination is the true explanation for the adverse employment
action.” The district court also held that plaintiff had failed to prove that
the Bank’s proffered reason “was pretextual.”
Under Desert Palace, plaintiff only needs to offer evidence that
discrimination was “a” motivating factor. She does not need to prove
that the Bank’s proffered reason was entirely untrue, merely that it was
not the sole motivating factor in her discharge.
Id. at 15-16 (citations to the district court order omitted).
At the outset, we note that, in the context of the McDonnell Douglas analytical
framework, a court’s use of the words “pretext,” “pretextual” or similar terminology,
often must be read as shorthand for indicating that a defendant’s proffered
discriminatory explanation for adverse employment action is a pretext for unlawful
discrimination, not that it is merely false in some way. See, e.g., St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 516 (1993) (“in our view ‘pretext’ means ‘pretext for
discrimination’”). With that assumption in mind, we perceive no error in the district
court’s statement of the basic McDonnell Douglas burden-shifting framework. We
also note, at the outset, that the district court was correct in assuming that this burden-
shifting approach may be applied to claims under the ADA, the MHRA, and ERISA.
See, e.g. Epps v. City of Pine Lawn, 353 F.3d 588, 591 (8th Cir. 2003) (applying
McDonnell Douglas burden-shifting analysis to claims under the ADA and the
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MHRA); Rath v. Selection Research, Inc., 978 F.2d 1087, 1089-90 (8th Cir. 1992)
(applying McDonnell Douglas burden-shifting analysis to claim under ERISA).
Moreover, as explained below, the district court did not err in concluding that Desert
Palace has not changed our summary judgment standards under the McDonnell
Douglas paradigm.
As described above, Desert Palace was a post-trial appeal. It addressed issues
that arose in proceedings occurring after the plaintiff had presumably already
established genuine controversy as to whether the adverse employment action was
motivated, at least in part, by discrimination based on a protected characteristic. By
contrast, at the summary judgment stage, the controlling issue ordinarily is whether
or not there exists a genuine issue of fact regarding any discriminatory motive. In
that sense, Desert Palace really has no direct impact in the summary judgment
context. See, e.g., Griffith v. City of Des Moines, 387 F.3d 733, 735-36 & n.2 (8th
Cir. 2004) (“Desert Palace had no impact on prior Eighth Circuit summary judgment
decisions.”).
In any event, our cases utilizing the McDonnell Douglas methodology at the
summary judgment stage are, in principle, consistent with Desert Palace. Contrary
to Strate’s apparent understanding of the law, we have long recognized that a genuine
issue of fact regarding unlawful employment discrimination may exist
notwithstanding the plaintiff’s inability to directly disprove the defendant’s proffered
reason for the adverse employment action. See, e.g., O’Bryan v. KTIV Television,
64 F.3d 1188, 1192 (8th Cir. 1995) (“It appears that the district court was under the
impression that, in order to survive defendants’ motion for summary judgment,
plaintiff could only rely upon evidence that directly tended to disprove the exact
reason stated by defendants for terminating him. . . . We have specifically rejected
such a narrow approach to the plaintiff’s burden of proof, when resisting a
defendant’s motion for summary judgment, in order to establish a genuine issue of
fact as to pretext and the ultimate issue of intentional discrimination.”); Davenport
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v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 n.8 (8th Cir. 1994) (Davenport)
(“[T]he standard for plaintiff to survive summary judgment required only that plaintiff
adduce enough admissible evidence to raise genuine doubt as to the legitimacy of the
defendant’s motive, even if that evidence did not directly contradict or disprove
defendant’s articulated reasons for its actions.”).
As we have often stated, the focus of inquiry at the summary judgment stage
“always remains on the ultimate question of law: whether the evidence is sufficient
to create a genuine issue of fact as to whether the employer intentionally
discriminated against the plaintiff because of [the protected characteristic].”
Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996). This
approach “is consistent with the Supreme Court’s . . . decision in St. Mary’s Honor
Ctr. v. Hicks, [509 U.S. 502] (1993), where the Supreme Court held that a plaintiff’s
proof of pretext is relevant to, but not dispositive of, the ultimate issue of intentional
discrimination.” Davenport, 30 F.3d at 945 n.8; accord McDonnell Douglas, 411
U.S. at 805 (holding that, at the pretext stage, the plaintiff “must be given a full and
fair opportunity to demonstrate by competent evidence that the presumptively valid
reasons for his rejection were in fact a coverup for a racially discriminatory
decision”) (emphasis added). Thus, the Supreme Court’s decision in Desert Palace,
to the extent relevant, merely reaffirms our prior holdings by indicating that a plaintiff
bringing an employment discrimination claim may succeed in resisting a motion for
summary judgment where the evidence, direct or circumstantial, establishes a genuine
issue of fact regarding an unlawful motivation for the adverse employment action
(i.e., a motivation based upon a protected characteristic), even though the plaintiff
may not be able to create genuine doubt as to the truthfulness of a different, yet
lawful, motivation.6
6
See generally Julie Tang & Hon. Theodore McMillian, Eighth Circuit
Employment Discrimination Law: Hicks and Its Impact on Summary Judgment, 42
St. Louis U. L.J. 519, 527-29 (1997) (discussing the Eighth Circuit summary
judgment standard).
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In the present case, the district court did not ultimately focus on the
truthfulness of the Bank’s claim that it was undergoing a bona fide reorganization.
Rather, the district court ultimately focused on whether the evidence in the record
created a genuine issue of fact concerning unlawful discrimination based upon a
protected characteristic. See slip op. at 23. Therefore, contrary to Strate’s first
argument on appeal, we hold that the district court did not apply an incorrect legal
standard in the present case.
We now review de novo the district court’s summary judgment decision within
the McDonnell Douglas burden-shifting framework. On summary judgment, the
question before the district court, and this court on appeal, is whether the record,
when viewed in the light most favorable to the non-moving party, shows that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986).
The district court assumed, and the Bank did not dispute, that Strate had made
a prima facie case of discrimination based upon her association with her disabled
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child, in violation of the ADA, the MHRA, and ERISA.7 Upon de novo review, we
7
The ADA provides in relevant part:
As used in subsection (a) of this section, the term “discriminate”
includes–
....
(4) excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an individual
with whom the qualified individual is known to have a relationship or
association[.]
42 U.S.C. § 12112(b)(4).
The MHRA provides in relevant part:
It shall be an unlawful practice:
....
(1) To discriminate in any manner against any other person because of
such person’s association with any person protected by this chapter.
Mo.Rev.Stat. § 213.070(4).
ERISA provides in relevant part:
It shall be unlawful for any person to discharge, fine, suspend, expel,
discipline, or discriminate against a participant or beneficiary for
exercising any right to which he is entitled under the provisions of an
employee benefit plan . . . or for the purpose of interfering with the
attainment of any right to which such participant may become entitled
under the plan[.]
29 U.S.C. § 1140.
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conclude that Strate met her prima facie burden on each of these claims.8
The Bank came forward with a nondiscriminatory reason for terminating Strate:
her position was eliminated as part of a reorganization of the Bank’s management
structure. Therefore, we now address de novo whether, in consideration of this
explanation, and viewing all the evidence in the light most favorable to Strate, there
is a genuine issue of material fact concerning the Bank’s motivation for eliminating
Strate’s position and effectively terminating her. If there is genuine factual
controversy regarding whether the Bank was motivated, in whole or in part, by
Strate’s association with her disabled newborn child, then summary judgment was
improperly granted for the Bank.
The evidence establishes that Strate gave birth to her disabled child on
April 20, 2001, enrolled the child in the Bank’s group healthcare plan on April 24,
2001, and was notified that her job had been eliminated on July 2, 2001,
approximately two months later. It is undisputed that Ziegler knew about the child’s
disability when he made the decision to eliminate her job. On rare occasions, a close
temporal connection between a protected activity and an adverse employment action
may be sufficient to create an inference of retaliation. See,e.g., Bassett v. City of
Minneapolis, 211 F.3d 1097, 1105-06 (8th Cir. 2000) (holding that a temporal link
between protected activity and an adverse employment action may, in some cases, be
8
Regarding the prima facie requirement of an adverse employment action, we
note that Strate was effectively terminated on July 2, 2002, when she was told that her
position had been eliminated. Strate was no less terminated merely because she was
also told that she could apply for the newly-created VP of Customer Support position.
As a general matter, such a gesture is materially different from a change in position
or reappointment in which the same terms and conditions of employment are retained.
Moreover, in this particular case, the evidence indicates that this was an empty
gesture – at the same time that Ziegler told her she could apply for the VP of
Customer Support position, he also told her that she was not considered to be a viable
candidate for the job.
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sufficient to create an inference of retaliation) (citing cases). It follows that close
temporal proximity between an employer’s discovery of a protected characteristic and
an adverse employment action may, on rare occasions, suffice to create an inference
of discrimination. However, “[g]enerally, more than a temporal connection between
the protected conduct and the adverse employment action is required to present a
genuine factual issue.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.)
(en banc), cert. denied, 528 U.S. 818 (1999).
In the present case, there is more than mere temporal proximity between the
birth of Strate’s disabled child (and Ziegler’s knowledge thereof) and the decision to
eliminate her position within the Bank. In the present case, Strate had an eleven-year
employment history with the Bank, during which she was promoted several times and
received numerous salary increases. She received consistently favorable evaluations
over the years, showing no employment problems whatsoever. Ziegler admitted in
his deposition that, shortly before Strate went on leave in April 2001, he indicated to
her that he was pleased with her work for the Bank and that she had no reason to
worry about her job security. Joint Appendix (Vol. I) at 180-81 (Deposition of Frank
Ziegler). Ziegler also testified in his deposition that, at the time he made the decision
to eliminate Strate’s position, he had no job performance issues related strictly to
Strate. Id. at 151.
We recognize that evidence of a strong employment history will not alone
create a genuine issue of fact regarding pretext and discrimination. However, such
circumstantial evidence can be relevant when considering whether the record as a
whole establishes a genuine issue of material fact. Cf. Hase v. Missouri Div. of
Employment Sec., 972 F.2d 893, 897 (8th Cir. 1992) (“Evidence of Plaintiff’s rank,
her higher examination and performance ratings, and her years of experience, when
compared with [the hiree’s] supervisory experience and job recommendations, could
reasonably lead a trier of fact to infer that Defendants’ proffered reasons were
pretextual.”), cert. denied, 508 U.S. 906 (1993). In the present case, Strate’s
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apparently unblemished employment history with the Bank, spanning more than a
decade of work, casts genuine doubt upon the Bank’s stated reason for terminating
her.
Moreover, evidence concerning Strate’s objective qualifications for the VP of
Customer Support position and the manner in which the Bank filled that new position
is also relevant to our analysis. According to the Bank itself, the reorganization on
which it justifies the elimination of Strate’s job as Executive VP of Consumer
Services simultaneously involved the creation of the new VP of Customer Support
position. Strate admittedly did not apply for the new position, but the evidence
indicates that, when Ziegler informed her that she could apply, he also told her that
she was considered not to be a viable candidate. Strate’s evidence further establishes
that, while she may not have been viewed as the best candidate for the VP of
Customer Support position, she certainly was qualified for the job, having already
performed all or most of the very same tasks that the new position entailed.
Nevertheless, she was told that she was viewed as a non-viable candidate, and no
explanation for that view was given.
On appeal, the Bank argues that evidence related to the new VP of Customer
Support position is irrelevant to the issue of pretext because its articulated business
reason for terminating Strate referred only to the elimination of her old position, not
the denial of the new position. The Bank argues: “Casting doubt on some collateral
action of an employer does not prove pretext. The articulated business reason must
be the subject of the attack if pretext is to be shown. Strate’s pretext burden is to
‘squarely rebut the articulated reason for [the elimination of her position].’” Brief for
Appellee at 38 (quoting Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 349 (7th Cir.
1997)). The Bank continues: “She must present facts to rebut each and every
legitimate, non-discriminatory reason advanced to survive summary judgment.” Id.
(citing Clay v. Holy Cross Hosp., 253 F.3d 1000, 1007 (7th Cir. 2001)).
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Contrary to the Bank’s argument, which is based upon Seventh Circuit case
law, the applicable standard in our circuit on summary judgment (as discussed above)
“require[s] only that [the] plaintiff adduce enough admissible evidence to raise a
genuine doubt as to the legitimacy of the defendant’s motive, even if that evidence
[does] not directly contradict or disprove [the] defendant’s articulated reasons for
its actions.” Davenport, 30 F.3d at 945 n.8 (emphasis added). In the present case, the
evidence showing that Strate was objectively qualified for the new VP of Customer
Support position, but was written off from the start as a non-viable candidate for the
job, certainly adds doubt regarding to the legitimacy of the Bank’s motives for its
actions.
In view of the evidence establishing a close temporal proximity between the
birth of Strate’s disabled child and her termination, combined with the evidence
indicating that she maintained a stellar employment record at the Bank over an
eleven-year period leading up to the child’s birth and was objectively qualified for the
new the VP of Customer Support position but was dismissed from the start as a non-
viable candidate, we hold that a reasonable fact finder could conclude that Strate’s
association with her disabled newborn child was a motivating factor in the decision
to terminate her.9 Insofar as the district court’s summary judgment order is contrary
to our holding, it is reversed.
9
We do not base this holding on evidence in the record merely showing that
decision makers at the Bank were aware of the child’s disability or that they desired
to handle Strate’s termination carefully.
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Conclusion
For the reasons stated, the order of the district court granting summary
judgment for the Bank is affirmed in part and reversed in part. The case is remanded
to the district court for further proceedings consistent with this opinion.
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