Opinion
Cause No. 1:03-CV-21-TS.
February 24, 2004
MEMORANDUM AND ORDER
This matter is before the Court on a Motion for Summary Judgment [DE 17], filed by the Defendant, Dutch Housing, Inc., on October 14, 2003, and Motion to Strike Declarations Submitted by Plaintiff In Opposition to Defendant's Motion for Summary Judgment [DE 30], filed by the Defendant on December 19, 2003.
PROCEDURAL BACKGROUND
On April 16, 2002, the Plaintiff, Cheryl Erwin, filed a Charge of Discrimination with the EEOC. On October 31, 2002, she received her Notice of Right to Sue and on January 10, 2003, filed suit in this Court. The Plaintiff alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and Indiana public policy for actions she believed constituted discrimination based on her gender and her pregnancy, a hostile work environment based on her sex, and retaliation for taking maternity leave and for filing a Charge of discrimination. The Defendant filed its Answer and Affirmative Defenses on February 11, 2003.
On October 14, 2003, the Defendant filed its Motion for Summary Judgment and supporting materials. On November 13, 2002, the Plaintiff filed a Motion for Extension of Time to File a Response to the Motion for Summary Judgment, to which the Defendant objected. On November 21, 2003, the Plaintiff filed a Motion to Strike the Defendant's Motion for Summary Judgment on the grounds that it was not timely filed. On November 21, 2003, the Court Granted the Plaintiff's Motion for Extension and denied the Plaintiff's Motion to Strike. The Court ordered a response to be filed by December 1, 2003, and any reply brief due by December 19, 2003.
On December 1, 2003, the Plaintiff filed a Response to Defendant's Motion for Summary Judgment, supporting brief, statement of genuine issues, and affidavits. On December 19, 2003, the Defendant filed a Motion to Strike Declarations Submitted by Plaintiff in Opposition to Defendant's Motion for Summary Judgment and also filed its Reply. The Plaintiff did not respond to the Defendant's Motion to Strike.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party." Dempsey v. Atchison, Topeka, Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted).
A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party may discharge its "initial responsibility" by simply "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Id. at 325. When the non-moving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials and thereby shift to the non-moving party the burden of showing that an issue of material fact exists. Kaszuk v. Bakery Confectionery Union Indus. Int'l Pension Fund, 791 F.2d 548, 558 (7th Cir. 1986); Bowers v. DeVito, 686 F.2d 616, 617 (7th Cir. 1982).
Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. Fed.R.Civ.P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e) establishes that "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). Thus, to demonstrate a genuine issue of fact, the non-moving party must do more than raise some metaphysical doubt as to the material facts; the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe, 42 F.3d at 443.
There is no separate rule of civil procedure governing summary judgment in employment discrimination cases. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997) (noting, however, that issues of intent, such as in discrimination cases, are often critical issues that are genuinely contestable). Summary judgment in favor of the defendant is hardly unknown, or for that matter rare, in employment discrimination cases. Id.
FACTS
The Defendant hired the Plaintiff as a Sales Representative in December 1997 on the recommendation of Joe Kimmel, the Marketing Manager. Prior to being hired, the Plaintiff had worked at another manufactured housing company from 1994 to 1997. The Plaintiff has a high school education.On January 21, 2000, the Plaintiff was promoted to Sales Manager. The promotion was recommended and authorized by John Elliot, the Director of Sales and Marketing for Dutch Housing and its sister company, Fortune Homes. Gary Alberson, the General Manager, approved the promotion. The Plaintiff and another Sales Manager, Jerry Brown, supervised a sales staff of about twelve people. Alberson contends that the Plaintiff's promotion was a prelude to demoting Brown because the Plaintiff was a better performer. Elliot became the Plaintiff's immediate supervisor and gave her a raise on April 20, 2000.
Kimmel replaced Alberson as the General Manager in May 2001 when Alberson's employment was terminated.
Alberson also states in his Affidavit that he was waiting to demote Brown to allow the Plaintiff time to adjust to the management position and that he again forestalled Brown's demotion because of the Plaintiff's anticipated maternity leave.
Alberson's contentions are the subject of the Defendant's Motion to Strike Declarations. The admissibility and relevance of these statements, along with the other challenged affidavit statements of both Alberson and the Plaintiff filed in Response to the Defendant's Motion for Summary Judgment, are discussed in the argument section of this Memorandum and Order.
On April 2, 2001, the Plaintiff informed Elliot that she was pregnant and would need to take maternity leave at the end of August or early September. The Plaintiff was on maternity leave for twelve weeks from August 10, 2001, to November 5, 2001, pursuant to the FMLA. The leave was authorized by Elliot and approved by Kimmell, who had replaced Alberson as the General Manager.
A. Division of Sales Manager Duties
In 2000, the manufactured housing industry suffered an economic downturn and the Defendant closed plants and consolidated divisions, including the Sales Division. During the Plaintiff's maternity leave in late 2001, the company's economic burdens increased as the entire industry continued to experience a drop in sales. Kimmel decided to assign the Plaintiff the responsibility of bringing in new business and to assign Jerry Brown, the other Sales Manager, the responsibility of servicing existing clients. Kimmel believed that the company would benefit financially from having one person concentrate on developing new business. Previously, the Sales Managers were responsible for servicing existing clients and developing new business. Kimmel determined that Brown was more qualified to service current clients because he had closer relationships and more contact with those clients as a result of his nearly twenty years experience in the industry, including his time as a Sales Manager with Dutch Housing. Kimmel believed that the Plaintiff was a better fit to bring in new business because of her skills in this area and her personality.
When the Plaintiff returned to work from her leave in November 2001, she returned to the Sales Manager position with the same pay and benefits. Kimmell told the Plaintiff of the division of the Sales Managers' responsibilities, informed her that her job to grow the business was very important, and assured her that the staff had been told to support her in succeeding in her job. As part of her job to develop new business, the Defendant expected the Plaintiff to attend trade shows throughout the country and to work with Derek Farris, the Sales Representative assigned to her.
B. Demotion to Sales Representative
On March 25, 2002, Kimmell informed the Plaintiff that he was dissatisfied that she had only signed four new clients since November 2001 in her position as Sales Manager in charge of new business. The Plaintiff believed that the sales goals the Defendant set for her position were arbitrary and unattainable.
After the Plaintiff failed to meet the set quotas for new business, Kimmell decided that it would be better business practice for all Sales Representatives and Sales Managers to focus on bringing in new business. The company Controller had already informed Kimmell that the Company's poor financial situation necessitated eliminating a Sales Manager position. Kimmell eliminated the Plaintiff's position and offered her a position as a Sales Representative at Fortune, Dutch Housing's sister company. Fortune had several open Sales Representative positions. Kimmell states that he chose to retain Jerry Brown instead of the Plaintiff because Brown had more experience in the industry, more seniority with the company, and because the Plaintiff was performing poorly. The Plaintiff accepted Kimmell's offer and transferred to Fortune on April 1, 2002. Michigan was her assigned sales territory.
C. Derek Farris Receives the Sales Manager Position at Fortune
In September 2002, the Plaintiff and Derek Farris, who were both Sales Representatives, applied and interviewed for a Sales Manager position at Fortune. The Plaintiff had previous Sales Manager experience and more seniority than Farris. Kimmell, however, decided to promote Farris to the position based on Farris's performance as a Sales Representative and his interview. Farris had expanded his clients and was meeting or exceeding all of his goals. He also showed dedication and ingenuity by compiling a plan to make his territory more profitable for the Company. Kimmell stated that Farris's interview was spectacular and that the Plaintiff, in contrast, was ill-prepared, undecided about whether she wanted the position, and did not demonstrate a knowledge of the product or how to expand Fortune's business. Moreover, at the time of the interview, the Plaintiff was the worst performing Sales Representative in the Company.
D. Disciplinary Actions, Corrective Action Plan, and Termination
On July 19, 2002, Chuck Meyer, the Sales Manager at Fortune, gave the Plaintiff an oral warning for poor performance for not traveling enough. On August 19, 2002, Meyer gave the Plaintiff a first written warning for poor performance in her territory for failure to meet performance goals. He noted that "while many reasons exist, [the] bottom line is [that] more is needed." On August 28, 2002, Meyer gave the Plaintiff a second written warning for poor performance after she made costly ordering errors. Kimmell also spoke to the Plaintiff about these sales errors on October 28, 2002, stating that they were extremely costly and avoidable. The errors cost the Company $4200. Kimmell warned Erwin that any further sales errors in excess of $100 within the next three months would result in termination. On October 28, 2002, Kimmell also gave the Plaintiff a third written warning that her sales performance was unacceptable because she had attained only forty-three percent of her goal, which was the lowest percentage in the Company. The Plaintiff was not bringing in enough money to cover her guaranteed salary and she signed only one new client in 2002. Kimmell required the Plaintiff to draft a Performance Action Plan by November 1, 2002, and to significantly improve her performance by December 28, 2002. He stated that she was to meet the average percent of sales goals being met by the other Sales Representatives.
Kimmell worked with the Plaintiff to develop a Corrective Action Plan. On October 29, 2002, he wrote her a memorandum providing specific requirements in structuring the Plan. On October 31, 2002, the Plaintiff responded with a letter stating the various reasons that sales were low in the Michigan territory. The Plaintiff also expressed her sentiment that although Kimmell repeatedly assured her that "failing was failing" and he was not "picking" on her, she felt that the Corrective Action Plan was a "tactic" that had not previously been employed by the Company and was an attempt to make her ultimate termination appear legitimate. Kimmell met with the Plaintiff and wrote another memorandum pointing out deficiencies in the Plan she had prepared and clarifying his requirements. Kimmell informed the Plaintiff that she was to submit another Plan on November 3, 2002. He also stated that whether a Corrective Action Plan had been used in the past was not relevant and that no other Sales Representative's performance had dropped as significantly. He assured her that he would be addressing all the Representatives with declining territory and that he had begun with the worst declining territory. He also explained that he realized that the market was tough, but that other Representatives faced similar problems in their territories that the Plaintiff faced in Michigan and had been more successful in overcoming these obstacles.
The Plaintiff characterized these clarifications as "additional requirements."
The Plaintiff submitted a memorandum on November 4, 2002, which Kimmell believed failed to meet his requests or provide the relevant follow-up information to establish an effective Corrective Action Plan. Plaintiff followed this with memorandum with an email dated November 7, 2002. Kimmell responded with another memorandum identifying six areas that the Plaintiff still needed to address by November 25, 2002. Apparently convinced that the Plaintiff would not draft the Plan timely or adequately, Kimmell required Farris to complete the Plan for the Plaintiff, including a travel schedule.
The travel schedule proved to be one of the most contentious issues. The Plan Farris drafted required the Plaintiff to travel overnight three out of the four weeks between Thanksgiving and Christmas. The Plaintiff did not agree with the travel schedule and suggested alternative travel dates.
On November 27, 2002, Kimmell wrote the Plaintiff a letter terminating her employment. In the letter, Kimmell noted that the Plaintiff stated that she was unwilling to comply with the travel requirements of the Plan and that because such travel was needed for improvement, her employment was terminated.
E. Comments Regarding Pregnancy
The Plaintiff contends that John Elliot made several comments to her regarding her pregnancy. She states that after she announced her pregnancy to him on April 2, 2001, he said the cause of her problems was that she was pregnant and it was not his fault she got pregnant. On returning from maternity leave in November, 2001, Elliot commented that the Plaintiff's "boobs got bigger and her belly got smaller." A few days later he asked, "expensive piece of ass, wasn't it?" On January 11, 2002, while the Plaintiff and Elliot discussed their attendance at a trade show, the Plaintiff told Elliot that her husband would accompany her to care for her newborn child. Elliot responded, "That's not fair; you get to have sex all week and no one else does." The Plaintiff also submits that, in February, Elliot stated that "We need someone who won't be out on maternity leave," and commented about a new sales coordinator, "Her kids are older; no issues there." On February 25, 2002, Elliot requested the Plaintiff to go to Fortune Homes to supervise the sales staff on a temporary basis only because "a woman couldn't handle it." On March 4, 2002, Elliot told Derek Farris and the Plaintiff that they had been "working your balls off, well not Cheryl, working her boobs off, I guess." On March 20, 2002, the Plaintiff learned that Elliot told other male employees at a trade show that he was curious what it would be like to breast feed from the Plaintiff.
The Plaintiff also states that she complained of these comments to Elliot in July 2001, and December 11, 2001, and to Kimmell on August 13, 2001, December 10 or 11, 2001, February 25, 2002, and March 25, 2002.
DISCUSSION
A. Title VII Disparate Treatment and RetaliationTitle VII of the Civil Rights Act of 1964 provides in part:
It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's . . . sex.42 U.S.C. § 2000e-2(a). Title VII also makes it unlawful to discriminate against any employee who opposes a practice made unlawful by Title VII or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a).
In this case, the parties present their arguments under the McDonnell Douglas burden shifting approach. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir. 2003). To establish a prima facie case of sex or pregnancy discrimination under Title VII, the Plaintiff must show that (1) she was a member of a protected class, (2) she was meeting her employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) the employer treated a similarly situated employee not in the protected class more favorably. Johnson v. Zema Sys. Corp., 170 F.3d 734, 742-43 (7th Cir. 1999). To establish a prima facie case of retaliation the Plaintiff must show "that (1) after lodging a complaint about discrimination, (2) only [s]he, and not an otherwise similarly situated employee who did not complain, was (3) subjected to an adverse employment action even though (4) [s]he was performing [her] job in a satisfactory manner." Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 897 (7th Cir. 2003) (citing Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002)). If the Plaintiff fails to establish even a single prong of her prima facie case, her claim cannot survive summary judgment. Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).
Adjusting the prima facie elements to fit the Plaintiff's claim that she was denied a promotion based on her sex, the Plaintiff would have to demonstrate that she belonged to a protected class; she was well-qualified for the position; she was rejected for the position; and the position was given to a male applicant who had similar or lesser qualifications. See Malacara v. City of Madison, 224 F.3d 727, 729 (7th Cir. 2000).
If the Plaintiff establishes a prima facie case of discrimination, a presumption of intentional discrimination arises and the burden shifts to the Defendant to provide legitimate reasons for any disparate treatment. Johnson v. Univ. of Wisc.-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995). If the Defendant provides legitimate reasons, the inference of discrimination disappears and the Plaintiff must establish by a preponderance of the evidence that the proffered reasons are pretextual because they had no basis in fact, did not actually motivate the Defendant's decisions, or were insufficient to motivate its decisions, Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995), or by pointing to a discriminatory reason that was the more likely motivator, Debs v. Northeastern Ill. Univ., 15 F.3d 390, 395 (7th Cir. 1998).
This Court need not march through the entire McDonnell Douglas burden shifting analysis where one issue, such as the lack of pretext, proves to be dispositive. See Lesch v. Crown Cork Seal Co., 282 F.3d 467, 473 (7th Cir. 2002) (lack of pretext was dispostive issue upon which court granted summary judgment on the plaintiff's age discrimination claim); see also Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) ("When the defendant has proffered an explanation for termination that the court determines to be non-pretextual, the court may avoid deciding whether the plaintiff has met his prima facie case and instead decide to dismiss the claim because there is no showing of pretext.").
The Seventh Circuit has also noted that an analysis of an employee's legitimate expectations often "dovetails" with that of pretext. Roberts v. Separators, Inc., 172 F.3d 448, 451 (7th Cir. 1999); see also Gordon v. United Airlines, 246 F.3d 878, 886 (7th Cir. 2001) (The "issue of satisfactory job performance often focuses on the same circumstances as must be scrutinized with respect to the matter of pretext."); Wyinger v. New Venture Gear Inc., 245 F. Supp. 976, 988-89 (S.D. Ind. 2003) ("The employee need not prove at the prima facie stage that she was performing her job satisfactorily, where as here, the employer's explanation for the adverse action is the employee's performance and where the judges of the employee's performance are the same persons accused of discrimination.").
The Plaintiff contends that she suffered adverse employment actions based on illegal motives when the Defendant (1) demoted her from Sales Manager to Sales Representative on March 25, 2002, (2) promoted Derek Farris, not she, to Sales Manager at Fortune on September 9, 2002, and (3) terminated her employment on November 27, 2002. The Court will address each of these employment actions in turn.
This Court assumes, without deciding, that the Plaintiff has established prima facie cases of discrimination based on sex and of retaliation for the three complained of employment actions. The Court must now address whether the Defendant has stated a legitimate business reason for each of the challenged actions that is not pretext.
Pretext "means a dishonest explanation, a lie rather than an oddity or an error." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000). Pretext is more than a business error, it is deceit used to cover one's tracks. Id. at 684. If an employer honestly believed its reasons, pretext has not been shown even if those reasons were "mistaken, ill considered or foolish." Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000). It is not the Court's "province to decide whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the [adverse employment action]." Giannapoulos v. Brach Brock Confections, Inc., 109 F.3d 406, 411 (7th Cir. 1997). Where an employer offers multiple reasons for its adverse employment decision, the plaintiff must demonstrate that each reason is pretextual to survive summary judgment. Ghosh v. Ind. Dep't of Env'l Mgmt., 192 F.3d 1087, 1092-93 (7th Cir. 1999).
1. Demotion from Sales Manager to Sales Representative
The Defendant states that an economic downturn necessitated eliminating one of the Sales Manager positions in March 2002. Kimmell submits that Brown was the logical choice to retain because he had longer tenure, more experience in the industry and in management with Dutch, and longer client relationships. The Defendant also adds that the Plaintiff was not performing as expected in generating new business.
The Plaintiff does not dispute that the decision to eliminate one of the Sales Manager positions was due to economic conditions, and in fact, admits that the Defendant was struggling economically, as was the entire manufactured housing industry. Instead, she argues that certain factors mitigated against Brown's experience. She contends that she outperformed Brown and that previously, Gary Alberson had determined that Brown would be demoted and that she would be retained as Sales Manager. She also submits that her failure to meet the Defendant's goals for new business is "misleading" because the goals were arbitrary and were not based on any prior experience since she was the first person to hold a position dedicated solely to securing new business. The Plaintiff also attempts to discredit the Defendant's reasons for demoting her, as well as its other employment decisions concerning her, by asserting that management was pressured to terminate women in management and sales positions.
The Plaintiff actually provides this argument as part of her prima facie case to establish that she was similarly situated to Brown. However, since the Court assumes that the requirements of a prima facie case have been met, and the argument is couched in such a way to cast doubt on the Defendant's employment decision, the Court addresses this argument in the pretext analysis.
The Plaintiff's arguments do not establish that the Defendant's legitimate reasons had no basis in fact, did not actually motivate the Defendant's decisions, were insufficient to motivate its decisions, or that a discriminatory reason was the more likely motivator. The Plaintiff does not challenge that Brown had substantially more experience than she. Her argument that she outperformed Brown is substantiated only by the affidavit of Gary Alberson, who was general manager from May 1998 until his termination in May 2001. Alberson stated that Brown underperformed and let another employee do the work and that he also observed the Plaintiff's performance as a sales representative. Upon this observation, he, along with John Elliot, decided in late March 2001 to promote the Plaintiff to co-sales manager with Brown as a prelude to demoting Brown to Sales Representative.
Alberson's personal knowledge does not extend beyond May 2001, almost a full year before the Plaintiff was demoted. His observations are not relevant because there is no dispute between the parties regarding the Plaintiff's performance prior to May 2001. In fact, she was promoted during this time. The Plaintiff's 2001 performance does not bear significance on the March 2002 decision. The Defendant was not obligated to "exhalt an assessment of past conduct over a prediction of future performance," Cerutti v. BASF Corp., 349 F.3d 1055, 1064 (7th Cir. 2003) (quoting Scott v. Parkview Mem'l Hosp., 175 F.3d 523, 525 (7th Cir. 1999)). Moreover, the Plaintiff's performance had dropped. See Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 336 (7th Cir. 1991) ("The fact than an individual may have been qualified in the past does not mean that he is qualified at a later time."). In addition, Kimmel, not Alberson was the decision maker in March 2002. Alberson's beliefs in March 2001 do not bear on Kimmel's decision a year later to demote the Plaintiff instead of Brown. Alberson's affidavit does not create a genuine issue of fact, based on "significantly probative admissible evidence," Jones v. Union Pacific R.R. Co., 302 F.3d 735, 742-43 (7th Cir. 2002), as to whether Kimmel honestly believed that Brown, and not the Plaintiff, should have been retained as the Sales Manager in March 2002, based on an assessment of qualifications, experience, and performance. See Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 557 (7th Cir. 2001) (citing the Seventh Circuit's admonition that courts "deal with small gradations, with an employers' subjective comparison of one employee to another, and it is incumbent on [the courts] to remember that what is at issue is not he wisdom of an employer's decision, but the genuineness of the employer's motives") (citing Testerman v. EDS Tech. Prods. Corp., 98 F.3d 297, 304 (7th Cir. 1996)).
The Plaintiff challenges the Defendant's assessment of her performance. The Court will address this issue in the following paragraph.
The Plaintiff attempts to call into question the Defendant's evaluation of her performance by attacking the employer's performance goals as arbitrary. The Plaintiff argues that the Defendant had no experience setting goals for new sales. The Defendant maintains that its goals were not arbitrary because although no one person was previously responsible for new business, this responsibility was not new to the Sales Manager position and setting sales targets and goals for Sales Managers was not new or arbitrary. Even if the goals were arbitrary, this does not establish that the Defendant did not actually rely on these goals or that they were insincere. Cf. Diettrich v. Northwest Airlines, Inc., 168 F.3d 961, 966 (7th Cir. 1999) (holding that "a subjective, even arbitrary, selection process is not proof of discrimination").
The Plaintiff argues that in addition to being arbitrary, the goals were not attainable in the struggling economy. Again, the Plaintiff has no evidence that the Defendant did not actually believe the goals were attainable and thus were an insufficient basis upon which to demote the Plaintiff, or that they were insincere and thus were not actually relied upon in considering the Plaintiff's performance. Even assuming the goals were unfair, the Plaintiff does not refute the fact that she only secured four new customer during the six months she held the position. The Plaintiff's general assertion that the goals were unrealistic during hard economic times fails to address whether the Defendant honestly believed that the Plaintiff should have, in any event, secured more than four new clients.
Likewise, the Plaintiff's argument that her inability to meet the sales goals or to secure more than four clients was not her fault, but was the result of outside economic forces, does not go to pretext. The issue is not whether the Plaintiff can explain her failure, but whether the Defendant used it as a pretext for discrimination. See, e.g., Ward v. First Fed. Savs. Bank, 173 F.3d 611, 618 (7th Cir. 1999) (supervisor terminated for poor performance could not demonstrate pretext merely because errors by her department were allegedly attributable to high turnover rate and lag time in recruiting and training new employees). That the Defendant held the Plaintiff responsible for not securing enough new accounts in a tough market, even if it did so unfairly, does not establish pretext. See id.
Although the Plaintiff invites the Court to review the merits of the sales goals, Kimmell's evaluation of her performance, and his decision to retain Brown, "this Court does not sit as a super-personnel department that reexamines an entity's business decisions." Balderston v. Fairbanks Morese Engine Div. of Coltec Indus., 328 F.3d 309, 324 (7th Cir. 2003) (citing Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)).
The Plaintiff also attempts to cast suspicion on the Defendant's employment decisions with the assertion that there was an express directive from the owners to replace women in management positions and in the sales department with men. Again, the Plaintiff relies on the Affidavit of Alberson. Alberson states that from May 1998 to, presumably, May 2001 when he was terminated, he was "strongly urged" by a superior, Brian Lapelle, to remove all females from management positions and replace all females in the sales department. Even if the Court assumes that this anti-female sentiment was expressed by an agent of the Defendant, there is no evidence that these statement were ever made to, or by, Kimmel, the decision-maker in March 2002. See Balderston, 328 F.3d at 324 (citing cases for proposition that a statement of discriminatory animus must be made by a decision-maker around the time of and in relation to the action at issue to establish pretext). The purported directive has even less force when the Court considers the fact that in January 2000 the Plaintiff replaced a male manager when she was promoted to Sales Manager.
The Plaintiff has failed to present evidence from which a finder of fact could reasonably infer that the Defendant's legitimate business reasons for demoting the Plaintiff were a pretext for discrimination based on sex. The March 2002 demotion cannot form the basis of a claim for retaliation for filing a charge of discrimination with the EEOC in April 2002.
2. Not Selected for Sales Manager Position at Fortune
In September 2002, Kimmell selected Farris to fill a newly opened Sales Manager position at Fortune. Kimmell made his selection after interviewing both Farris and the Plaintiff, who were Sales Representatives at the time. Kimmell stated that Farris's interview was spectacular because he was prepared and demonstrated interest and dedication commensurate with the position. Kimmell also noted that Farris had shown dedication and ingenuity in his sales position by compiling a plan to make the territory more profitable. By comparison, the Plaintiff was not meeting her goals, was not enthusiastic about the position during her interview, and did not show the same level of product knowledge.
The Plaintiff counters that she had more experience than Farris, had been his supervisor in the past, and that her low sales for the Michigan territory was not a performance issue, but an economic issue.
The Plaintiff does not address Farris's recent performance as a Sales Representative, his strong interview, and the Plaintiff's lack of knowledge of the product and enthusiasm for the position. Kimmell stated that he relied on all these factors in choosing Farris for the management position. The Plaintiff's failure to address all of the Defendant's reasons for selecting Farris for the promotion is fatal to her attempt to establish pretext. See Lesch v. Crown Cork Seal Co., 282 F.3d 467, 473 (7th Cir. 2002) ("Where an employer offers multiple independently sufficient justifications for an adverse employment action, the plaintiff-employee must cast doubt on each of them.") (citations omitted). The Plaintiff has not presented evidence that Kimmell did not honestly believe he chose the candidate who would best perform in the position, even if his belief was based, in part, on subjective perceptions from the candidates' interviews. See, e.g., Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999) (finding that a poor interview was a legitimate reason for failure to promote employee). The Plaintiff's own belief that she was the best candidate is irrelevant to the question of pretext. Balderston, 328 F.3d at 323; Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1460 (7th Cir. 1994) (finding that an employee's self-interested assessment of her own job abilities is insufficient to raise an issue of fact). Further, as the Court stated above, the Plaintiff's contention that her lack of performance was not her fault does not establish that the Defendant used her performance as a pretext for discrimination.
The Plaintiff has not established that the Defendant's stated reasons for selecting Farris for the Sales Manager position was a pretext for discrimination based on sex or for unlawful retaliation.
3. Termination
The Defendant terminated the Plaintiff's employment in November 2002 after she received numerous disciplinary warnings regarding poor sales performance, costly ordering errors, and inadequate travel and failed to follow a Corrective Action Plan to increase her sales.
The Plaintiff counters that Kimmell frustrated her attempts to remedy her sales shortfalls by increasing burdens on her when he added requirements to her Corrective Action Plan and failed to assign her an assistant as promised to help with the workload. The Plaintiff also argues that the two sales errors that she made were not unusual or costly and thus did not warrant discipline. The Plaintiff maintains that she never refused to comply with any travel schedule despite it being unfair and unprecedented, but instead offered alternative travel arrangements.
a. Ordering Errors
The Plaintiff points to the Affidavit of Alberson as creating a triable issue of fact whether her ordering errors warranted discipline. Alberson's Affidavit provides the percentage of the Company's gross sales that was budgeted for "service costs," including sales representatives' mistakes, in 2000. Based on this information, the Plaintiff argues that the errors she made were neither unusual or costly, but were factored into the budget because they were common and expected.
The Plaintiff's argument falsely assumes that the budget for 2000 is proof of the errors the Company anticipated and allowed for in 2002. The 2000 budget, however, did not dictate Kimmell's response to $4500 worth of errors in a year of admitted financial adversity and economic decline. The comparison is furthered weakened by the fact that there is no evidence that Kimmell was the person responsible for handling ordering error discipline in 2000. Also absent from the Plaintiff's evidence is any proof that she made such mistakes previously, i.e., in 2000, that were not disciplined or otherwise addressed, or that any other employee made comparable errors in 2002 and was not disciplined.
b. Corrective Action Plan
The Plaintiff does not dispute that she was the lowest performing Sales Representative in the Company. Instead, she attacks the method the Defendant used to attempt to improve her performance. But again, the Plaintiff's arguments do not address whether the Defendant honestly believed that the Corrective Action Plan was a legitimate and reasonable means to accomplish this task. Her statement that other employees were not required to draft a Plan is not proof that the Defendant did not think it an appropriate requirement for the Plaintiff given that her sales territory had declined the most. Kimmell informed the Plaintiff that her territory was the first to be addressed, but that others would follow. The Defendant, responding to the Plaintiff's excuses for her poor performance, acknowledged the outside economic factors that made her job difficult. The Company wanted the Plaintiff to overcome these obstacles as its other Sales Representatives had. The numerous meetings and memoranda were the Defendant's attempt to help the Plaintiff accomplish this legitimate request. That the Plaintiff chose to characterize Kimmell's effort as "picking" on her is not sufficient to create a genuine issue of material fact. See Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997) ("Facts, not an employee's perception and feelings, are required to support a discrimination claim."). The Corrective Action Plan did not cause or contribute to the Plaintiff's poor performance, as suggested by her argument that Kimmell frustrated her attempt to improve, but merely highlighted the areas the Plaintiff needed to improve.
None of the Plaintiff's evidence indicates that the Defendant did not honestly believe that the Plaintiff's performance warranted a Corrective Action Plan and that the Plan would help improve the Plaintiff's performance. She has failed to establish that the Plan was pretext for discrimination or retaliation.
c. Travel Requirements
The Plaintiff's primary complaint against the travel schedule was that it was too onerous because she was required to be away from home for three of the four weeks between Thanksgiving and Christmas. She submits the Affidavit of Alberson in support of her claim that the travel requirement was unreasonable. Alberson states that he is familiar with the travel policies for sales representatives of the various manufactured housing companies. He submits that no manufacturer requires sales representatives to travel three consecutive weeks and that Liberty Homes' policy, which was the most severe, only required two non-consecutive weeks per month of travel.
Again, Alberson's Affidavit has limited use. The Defendant has not suggested that the travel requirements at issue, which were set forth in the Corrective Action Plan to specifically address the Plaintiff's shortcomings, were in accordance with any policy. The Plaintiff had already received discipline on July 19, 2002, warning her to increase road travel and she was expressly directed to formulate a "definitive plan of action to reverse [her] unacceptable sales effort." (Def.'s Ex. 26.) This Plan was to include a travel schedule to visit prospects and retailers. ( Id.) It is not evidence of pretext to require an employee who was underperforming to travel beyond the requirements set forth in a travel policy that applies in normal situations — to employee who are meeting sales goals.
The Plaintiff also argues that she did not refuse to comply with the Corrective Action Plan travel requirements, but merely suggested alternative travel dates. The Court finds no evidence of pretext or a phony reason in the Defendant interpreting the Plaintiff's offer of "alternative" travel arrangements as a "refusal" to comply with its directives. Indeed, in the literal sense, offering alternatives was a refusal to comply with the requirements as they were presented by the Defendant. The Plaintiff would apparently have the Court believe that the Corrective Action Plan contained flexible suggestions, and that if it in fact contained requirements for improvement, was unreasonable and a pretext for discrimination. Even if the Plaintiff had established that the expectations were unreasonably high, which she has not, the issue is whether they were legitimate. See, e.g., Perkins v. G.E. Capital Auto Fin. Servs., 6 Fed. Appx. 320, 2001 WL 278171, at *7 (7th Cir. Mar. 19, 2001) (finding that employer's expectations were legitimate even if they may have been "unreasonably high, foolish, or trivial").
No reasonable jury could conclude, based on the evidence before the Court, that the Defendant's decision to terminate the Plaintiff after she failed to implement a Plan to improve her poor performance was a pretext for discrimination or retaliation. The Defendant is entitled to summary judgment on the Plaintiff's claims that she was discriminated and retaliated against in violation of Title VII.
B. Hostile Work Environment
The phrase "because of sex" has been defined by the Pregnancy Discrimination Act (PDA), through which Congress amended Title VII in 1978, to mean "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k); See Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001) (noting that Pregnancy Discrimination Act clarified that pregnancy discrimination is included in Title VII's prohibition on sex discrimination).
"In order to survive summary judgment on a hostile work environment claim, a plaintiff must present evidence that would establish that the allegedly hostile conduct was so severe or pervasive as to create an abusive working environment in violation of Title VII." Russell v. Bd. Of Trs. of the Univ. of Ill. at Chicago, 243 F.3d 336, 342-43 (7th Cir. 2001); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Adusumilli v. City of Chicago, 164 F.3d 353, 357 n. 1 (7th Cir. 1998); Venters v. City of Delphi, 123 F.3d 956, 975 (7th Cir. 1997); Saxton v. Am. Tel. Tel. Co., 10 F.3d 526 (7th Cir. 1992). In order to be actionable under Title VII, a hostile work environment must be both objectively and subjectively offensive, "such that a reasonable person would find the environment hostile or abusive, and . . . that the victim in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Conduct that does not satisfy these standards is not within the purview of Title VII. Saxton, 10 F.3d at 534.
In determining whether a work environment is hostile or abusive, a court will consider the totality of the circumstances and the following factors: "the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with an employee's work performance." Faragher, 524 U.S. at 788; Harris, 510 U.S. at 22-23; Russell, 243 F.3d at 343. However, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 524 U.S. at 788. "[R]elatively isolated instances of non-severe misconduct" will not support a hostile environment claim. North v. Madison Area Ass'n for Retarded Citizens, 844 F.2d 401, 409 (7th Cir. 1988). See also Adusumilli, 164 F.3d at 361 (stating that "[i]t is well established in this Circuit that there is a safe harbor for employers in cases in which the alleged harassing conduct is too tepid or intermittent or equivocal to make a reasonable person believe that she has been discriminated against on the basis of her sex" and affirming grant of summary judgment in favor of employer despite the fact that plaintiff's co-worker poked plaintiff in the buttocks, stared at plaintiff's breasts rather than making eye contact with her, and touched her arm between the elbow and the shoulder); Parkins v. Civil Constrs. of Ill., Inc., 163 F.3d 1027, 1031 (7th Cir. 1998) (affirming grant of summary judgment in favor of employer even though co-workers harassed plaintiff by bringing pornographic picture to work, made sexually suggestive comments to her, and grabbed plaintiff on two occasions); Saxton, 10 F.3d 526 (holding that incidents of sexual harassment in which, inter alia, plaintiff's co-worker touched plaintiff's knee and thigh, kissed her, and lunged at her as if to grab her were not actionable as hostile work environment); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (incidents involving superior calling plaintiff "dumb blonde," placing "I Love You" signs in her work area, and attempting to kiss her at a bar did not constitute actionable sexual harassment).
Drawing the line between actionable and nonactionable sexual harassment "is not always easy." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995).
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express of implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. . . . It is not a bright line, obviously, this line between a merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other.Id. at 430-31.
The comments made to the Plaintiff in this case do not fall on the side of the line that is actionable conduct under Title VII. None of the comments were physically threatening, hostile, or intimidating. Although some of the comments were objectionably offensive or akin to vulgar banter (e.g., expensive piece of ass, boobs bigger than belly), they were not so severe or pervasive as to rise to the level of a hostile work environment. Moreover, the comment that it was unfair she would get to have sex all week because her husband was accompanying her to a trade show was not based on the Plaintiff's sex. Elliot's comment that the Plaintiff had been working her boobs off was not because of the Plaintiff's sex because he also stated that a male employee had been working his balls off. "[I]nappropriate conduct that is inflicted on both sexes, or is inflicted regardless of sex, is outside [Title VII's] ambit." Holman v. Indiana, 211 F.3d 399, 403 (7th Cir. 2000) (explaining that conduct directed at both sexes is not discrimination because of sex). Elliot's comment regarding breast-feeding is less severe because the Plaintiff heard it second-hand. See Mason v. South. Ill. Univ. at Carbondale, 233 F.3d 1036, 1047 (7th Cir. 2000); Savino v. C.P. Hall Co., 199 F.3d 925, 933 (7th Cir. 1999); Adusumilli, 164 F.3d at 362. Likewise, the comment regarding the ages of another employee's children was not directed at the Plaintiff.
In addition to Elliot's comments, the Plaintiff argues that the following harassing conduct contributed to the hostile work environment: her management duties changed after she returned from maternity leave, she received a succession of disciplinary warnings, and she was directed to prepare a Corrective Action Plan to which Kimmell repeatedly added requirements. The Plaintiff has not demonstrated that these actions were based on her sex and thus they cannot form the basis of her hostile work environment claim.
The Defendant is entitled to summary judgment on the Plaintiff's hostile work environment claim.
C. Family Medical Leave Act
The Plaintiff contends that the Defendant violated 29 U.S.C. § 2614(a) when it did not restore her to the same position she occupied prior to her leave, or to an "equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." The Plaintiff submits that her duties changed substantially. The Defendant argues that although the responsibilities were divided differently among the Plaintiff and the other Sales Manager, the Plaintiff returned to the same position at the same location and received the same benefits and pay. Both parties cite 29 C.F.R. § 825.215(a) as a relevant definition of an equivalent position:
The Court notes that the Plaintiff does not contend that she was retaliated against for taking FMLA leave, does not specifically refer to the changes in her position as an "adverse employment action," and does not cite the discrimination provision of the FMLA, § 2615(a)(1). Thus, the Court assumes that her sole claim under the FMLA is that she was denied the substantive right, found in § 2614(a), to be reinstated to the same or equivalent position upon return from her FMLA leave.
An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, prerequisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
The regulations further provide that "[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimus or intangible, unmeasurable aspects of the job." 29 C.F.R. § 825.215(f).
The FMLA's requirement that an eligible employee be reinstated to her original position or to an equivalent position upon return from leave is commonly called an FMLA "substantive right." To insure the availability of its substantive rights, the FMLA makes it "unlawful for an employer to interfere with, restrain, of deny the exercise of or the attempt to exercise, any [FMLA] right." 29 U.S.C. § 2617(a)(1).
The parties disagree whether the Plaintiff's post-leave position was an equivalent job. The Defendant argues that it was equivalent because the only difference was the division of responsibility for new business and existing business and the Plaintiff already had responsibility for both before she took leave. The sole change was that she was given complete responsibility for new business and Jerry Brown, the other sales manager, was given complete responsibility for existing business. The Plaintiff compares her duties and responsibilities both before and after her leave and argues that the differences are more than the "de minimus, intangible, and unmeasurable aspects" referred to in the case cited by the Defendant, Montgomery v. Maryland, 266 F.3d 334 (4th Cir. 2001). See also 29 C.F.R. § 825.215(f).
The Court need not decide whether an issue of material fact exists regarding whether the Plaintiff's post-leave position was equivalent because the right to reinstatement is not absolute. When an employee alleges a deprivation of a substantive right under the FMLA, she must demonstrate entitlement to the right by a preponderance of the evidence. See Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 804 (7th Cir. 2001); Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir. 2000), cert. denied, 531 U.S. 1012 (2000); King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999); Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997). The substantive rights provided in the FMLA do not entitle an employee to "any right, benefit, or position of employment other than [that] to which the employee would have been entitled had the employee not taken leave." 29 U.S.C. § 2614(3); Phelan v. City of Chicago, 347 F.3d 679, 683 (7th Cir. 2003). "An employee is not afforded greater rights than he would otherwise have merely because he takes FMLA leave." Phelan, 347 F.3d at 683 (finding that employer did not violate FMLA when it made decision to terminate employee for poor performance while employee was on leave). Thus, the right to reinstatement is not absolute. Kohls, 259 F.3d at 804.
The pivotal question is whether the decision to change the Plaintiff's duties was because she took leave and was, therefore, not without regard for her leave status. In other words, the Plaintiff must prove that she was entitled to be reinstated to her position as Sales Manager unchanged, which means she must prove that the Defendant would not have divided the Sales Manager responsibilities if she had not taken FMLA leave. See Kohls, 259 F.3d at 804-05.
The Defendant contends that Kimmel made the decision to divide the responsibility for existing customers and new business based on the skills and personalities of the individuals involved and the desire to have one person concentrate on generating new business in a lagging economy. The Court finds that the Defendant has presented sufficient evidence to support its assertion that it altered the Plaintiff's job responsibilities for the stated reasons. The Plaintiff does not present any evidence to suggest that these stated reasons were not true or that she was nonetheless entitled to her former position without any changes. She does not refute that the Defendant believed the responsibilities should be divided and that she, not Jerry Brown, was more suited for generating new business.
The Plaintiff points to factors that she believes counter Brown's experience, but these do not refute Kimmell's claims that he believed the Plaintiff was better suited to bring in new business and certainly do not prove that the Defendant divided the management duties as it did because the Plaintiff took FMLA leave. Although the Court reviews whether an employer's description of its reasons is honest, it is the employee's burden to prove a violation of the FMLA. Kohls, 259 F.3d at 806. "Thus, pretext may have evidentiary value, but showing pretext does not necessarily satisfy the employee's burden." Id. (citing Diaz, 131 F.3d at 713 (comparing use of pretext in the FMLA context with the use of pretext in the McDonnell Douglas burden-shifting scheme)).
The Plaintiff has not met her burden and the Defendant is entitled to summary judgment on the Plaintiff's FMLA claim.
D. Wrongful Termination — Indiana Public Policy
In response to the Defendant's Motion for Summary Judgment, the Plaintiff states that she is "abandoning the wrongful termination count." (Pf.'s Resp., ¶ 1). Thus, the Court grants the Defendant summary judgment on this count.
CONCLUSION
For the foregoing reasons, the Defendant's Motion for Summary Judgment [DE 17] is GRANTED and the Defendant's Motion to Strike Declarations Submitted by Plaintiff In Opposition to Defendant's Motion for Summary Judgment [DE 30] is DENIED as MOOT. JUDGMENT is ENTERED in favor of the Defendant, Dutch Housing, Inc., and against the Plaintiff, Cheryl Erwin.SO ORDERED.