Kаrla J. Markel, Plaintiff-Appellant, v. Board of Regents of the University of Wisconsin System, Defendant-Appellee.
No. 01-1513
United States Court of Appeals For the Seventh Circuit
Argued December 4, 2001--Decided January 3, 2002
Before Bauer, Posner, and Easterbrook, Circuit Judges.
Appeal from the United States District Court for the Western District of Wisconsin. No. 00 C 254--Barbara B. Crabb, Chief Judge.
BACKGROUND
In April 1999, Offerman and LaForge were informed that Markel, Richard Schafer, and Jeffery Sledge were involved with a competing company, called Lеarning W@rks, and were trying to recruit UWLI employees to staff it. A meeting occurred at a restaurant among the employees, supposedly to recruit John Ashley and discuss business strategy. Offerman, together with LaForge and Holly Breitkreutz, Associate Dean & Director of UWLI, went to the restaurant and saw four employees there, seated together. After the meeting, when Ashley returned to the office, Offerman confronted him. Ashley told Offerman the business plan and gave him some documents from the new business.
It seems that the employees intended to take advantage of Schafer‘s connection, through his wife, to an existing enterprise called Lеadership Online, which performed services similar to that of UWLI. They also planned to use Sledge‘s involvement with a nonprofit company called Learning Works Group. Learning Works Group, because of its connections to former University regents, appeared to be affiliated with the University. Apparently, Leаdership Online was supposed to take over Learning Works Group and use some of its’ name recognition and inferred associations
In May 1999, armed with this information, Offerman and Breitkreutz confronted Markel. They asked Markel about her involvement with Learning W@rks, and gave her written notice of the charges of dismissal and a сhance to respond. Offerman told her that in order to avoid dismissal she needed to either write out and sign a statement outlining what she knew about the new business or resign. Markel refused to sign a statement and said she would need to consult with an attorney before answering Offerman‘s questions. The meeting ended, and Markel was forced to cease work immediately and return all UWLI property. However, the next step in the process to terminate Markel was not taken, and she was paid in full until the end of her contract on June 30, 1999. Markel later filed an appeal of the dismissal and requested a hearing, but because her contract had already ended and it was nonrenewable, Offerman withdrew the dismissal charges.
ANALYSIS
We review a district court‘s grant of summary judgment de novo, to determine if there is a genuine issue of material fact that would necessitate a trial. Griffin v. City of Milwaukee, 74 F.3d 824, 826-27 (7th Cir. 1996). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
A. Gender Discrimination Claim
A plaintiff in an employment discrimination action may prove discrimination either through direct evidence or indirect evidence, using the
1. Direct Discrimination
As she did in the district court, Markel contеnds that several statements attributed to Offerman and LaForge are evidence of direct discrimination. Offerman, LaForge, and the University deny that the statements were ever made. At oral argument the University contended that these statements are more appropriately considered performance related, and even if they are believed, show an aversion toward age not gender. Either way, the statements are not worth repeating because they fail to show direct discrimination. In order to arrive at the conclusion Markel would have us reach, we would need to infer discriminatory animus into the statements, which we cannot do. See Randle, 876 F.2d at 569-70 (holding that “direct evidence, if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption“) (emphasis added). Moreover, the statements were claimed to have been made between November 1998 and March 1999, and Markel was removed from her position nearly two months later in May 1999. Therefore, these statements were not made contemporaneously to the adverse employment action as required by our case law. See id.; Conley v. Vill. of Bedford Park, 215 F.3d 703, 711 (7th Cir. 2000) (“‘To rise to the level of direct evidence of discrimination, this Court has stated that isolated comments must be contemporaneous with the [adverse action] or causally related to the [applicable] decision-making process.‘“) (citations omitted); Robin v. Espo Eng‘g Corp., 200 F.3d 1081, 1089 (7th Cir. 2000). The district court properly found Markel failed to demonstrate any potential claim of direct discrimination.
2. Indirect Discrimination
Markel meets the first prong of the test because she is a member of a protected class. However, the district court found that Markel did not meet the second prong because she violated the non-compete clause in her contract. Thus, the district court did not reach the third prong of the test. Nevertheless, on appeal, Markel used a considerable portion of her brief to contend that she suffered an adverse employment action. This is an interesting legal question because Markel was not technically dismissed from her job; she was paid in full until the end of her contract, and her contract was nonrenewable. Typically, adverse employment actions are economic injuries such as dismissal, suspension, failure to promote, or diminution in pay. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998) (“A tangible employment action in most cases inflicts direct economic harm.“); Hunt-Golliday v. Metro. Water Reclamation Dist. of Greater Chicago, 104 F.3d 1004, 1014-15 (7th Cir. 1997) (suspension and suspension pending termination); Hunt v. City of Markham, Illinois, 219 F.3d 649, 654-55 (7th Cir. 2000) (denial of a raise); Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999) (denial of a promotion). Markel could be considered to have been constructively discharged, though not in the traditional sense, or suspended pending termination. See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) (a constructive discharge normally occurs where an employer drives the employee to quit by making working conditions miserable); Hunt-Golliday, 104 F.3d at 1014-15. Even though a resolution of this issue might create some new insights in this area of the law, we need
Markel also complains that she was treated adversely because she was denied “better” equipment, the ability to travel and make presentations, and removed from certain accounts that caused her not to receive bonuses. Even if believed, thеse complaints do not amount to actionable adverse employment actions. “While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); see also Stutler v. Illinois Dept. of Corr., 263 F.3d 698, 702-03 (7th Cir. 2001) (holding that “a lateral transfer without a lоss in benefits does not constitute an adverse employment action.“); Fyfe v. City of Fort Wayne, 241 F.3d 597, 602 (7th Cir. 2001) (holding that denial of a request for reimbursement for travel expenses did not constitute an adverse employment action); Murray v. Chicago Transit Authority, 252 F.3d 880, 887-88 (7th Cir. 2001) (same); Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000) (holding that denial of a bonus was not an adverse employment action); Place v. Abbott Lab., 215 F.3d 803, 810 (7th Cir. 2000) (holding that the loss of a telephone and cubicle were “too trivial to amount to an adverse employment action“); Conley, 215 F.3d at 712 (requiring village maintenance worker plaintiff to paint water department pump room was not an adverse employment action). When combined with other actions, differences in office aesthetics between employees might aid the plaintiff in showing discriminatory treatment, however, standing alone they are not readily quantifiable losses Title VII was meant to redress. See, e.g., Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (noting that “the loss of these services [office and telephone], standing alone, has never been held adverse action.” (citing Collins v. State of Illinois, 830 F.2d 692, 703-04 (7th Cir. 1987))).
Markel contends shе was terminated because of her gender, and that her contract was “renewable on an annual basis.” In order to stave off summary judgment a fact would need to be in
Markel‘s counsel also filed an affidavit purporting to be that of Jeffery Sledge. Though this affidavit adds no evidence beneficial to Markel‘s case, its unusual nature calls for a momentary digression. Pursuant to Rule 56(e) affidavits are only to be “made on personal knowledge.”
After our own review of the facts, we
B. Unequal Pay Claim
To demonstrate a prima facie case for a violation of the Equal Pay Act, a plaintiff must establish: “(1) that different wages are рaid to employees of the opposite sex; (2) that the employees do equal work which requires equal skill, effort, and responsibility; and (3) that the employees have similar working conditions.” Fallon v. State of Illinois, 882 F.2d 1206, 1208-09 (7th Cir. 1989). The plaintiff would have to show that the jobs compared are substantially equal, “based upon ‘actual job perfоrmance and content--not job titles, classifications or descriptions.‘” EEOC v. Mercy Hosp. and Med. Ctr., 709 F.2d 1195, 1197 (7th Cir. 1983) (citations omitted). After a plaintiff has demonstrated a prima facie case, the employer may respond with affirmative defenses to show the pay differential is due to: “(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity оr quality of production; or (4) any other factor other than sex.” Fallon, 882 F.2d at 1211.
Markel compared her position to that of Brent Parks and Richard Schafer, both of whom were paid more than Markel. Thus, the first part of the test was met, and we move on to consider the second and third parts. Parks was a consultant who did not reсeive benefits, and there was no evidence demonstrating he performed work that was substantially equal to Markel‘s work. Schafer, however, was part of the marketing team and was an account manager like Markel. Thus, Markel demonstrated a prima facie case as to the pay disparity between her and Schafer.
The burden then shifted to the University to explain the pay disparity. The University explained that Schafer was justifiably paid more than Markel based on the number of years he had worked for the University and the fact he had been a program director. The district court found that these reasons showed the рay disparity was based on factors “other than sex.” In their affidavits, Markel and Schafer averred that there were no
Markel further asserts that Sсhafer was not entitled to notice prior to termination and severance pay. The University demonstrated and district court found that because of his length of tenure at UWLI, Schafer was entitled to notice under the applicable administrative code. Our reading of the code comports with that of the district court, and Markel never provided any evidence to contradict this basic reading of the text. Based on the applicable rules, UWLI was required to give notice and severance pay to Schafer, but was not required to do so for Markel.
CONCLUSION
Applying the relevant legal principles to the facts of this case led us to the same conclusion as the district court: no reasonable jury could find that the employer discriminated against the plaintiff. Affirmed.