Place, Linda v. Abbott Laboratories ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-2418 & 99-2971
LINDA PLACE,
Plaintiff-Appellee/Cross-Appellant,
v.
ABBOTT LABORATORIES,
Defendant-Appellant/Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 94 C 5491--David H. Coar, Judge.
ARGUED April 21, 2000--DECIDED June 1, 2000
Before BAUER, KANNE, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. We hope this
musty Title VII case is one of the last
we will see in which events straddle the
enactment of the Civil Rights Act of
1991. And we say good riddance to such
cases for they put the district court in
the delicate position of parceling out
what must be decided by the judge and
what may be decided by a jury. A good
deal of this saga preceded the pivotal
date of November 21, 1991, when the new
law for the first time gave Title VII
litigants the right to a jury trial and
allowed plaintiffs to seek punitive and
compensatory damages. 42 U.S.C. sec.
1981a. These changes in the law, of
course, are not retroactive to conduct
that occurred prior to November 21, 1991.
Landgraf v. USI Film Prods., 511 U.S. 244
(1994).
Linda Place began working at Abbott
Laboratories in 1986 as a biology
research associate. In a rather hackneyed
development, she and her supervisor, Dr.
Charles Harrington, got drunk at a
company Christmas party in December 1990
and afterward found their way into the
same hotel bed./1 The details of this
encounter are worth recalling.
The Christmas party, attended by
assorted Abbott scientists, chemists, and
technicians, was at the Princess
restaurant in Libertyville, and the wine
was flowing. After several hours, some of
the revelers, including Place and
Harrington, repaired to the apartment of
fellow worker Peggy Connerty in Evanston.
Place and Harrington drove together in
Place’s Camaro because she had had too
much to drink and Harrington was in
"better shape." More drinking followed at
Connerty’s, but that apparently ended
when the host passed out.
After the Connerty shindig broke up,
Place and Harrington returned to the
restaurant where Harrington had left his
car. Harrington drove Place’s car
because, as she testified, she "wasn’t
capable of driving." During this return
trip, Harrington suggested they go to a
hotel--instead of their separate ways--
after they got to his car. Place said she
had no desire to accept Harrington’s
proposition but, rather inexplicably, she
and Harrington then drove to a motel in
their separate cars. A sexual encounter
followed.
The Christmas party tryst mushroomed
into a sexual affair that lasted around 6
months. Place could not recall the number
of sexual encounters but did remember
some of the locations, including behind a
locked door in an Abbott lab, outside in
a forest preserve, and in a condominium
she owned with her husband (Place was
married, as was Harrington).
Place testified that the relationship
was coercive from start to finish and
that she had sex with Harrington--over a
6-month period--only because he
controlled her performance evaluation.
Harrington said the affair was entirely
consensual and denied telling Place that
she would get a better job evaluation if
she had sex with him. District Judge
David H. Coar, in rejecting Place’s
sexual harassment claim, found her to be
a less than impressive witness. As to the
Christmas party liaison, for example,
Judge Coar found "that neither plaintiff
nor Harrington is credible" but that
Harrington’s testimony was more
believable.
During the spring following the
Christmas party, Abbott promoted Place
from a grade 13 to a grade 15 scientist
and, as part of routine restructuring,
transferred her to a different job where
Harrington no longer was her supervisor,
though she still regularly had to work
with him.
In July 1991, after the affair ended,
Place complained to Abbott that
Harrington was sexually harassing her.
Abbott investigated, warned Harrington,
set up an arrangement where Harrington
and Place could speak to each other only
in the presence of a third party, and in
October 1991 transferred both Harrington
and Place to other jobs where they
wouldn’t have to deal with each other.
Though they retained their same titles,
pay, and benefits, both considered the
moves demotions. Place said she lost her
supervisory responsibilities, her office,
her telephone, and had to do boring
laboratory bench work. Abbott denies that
Place’s transfer was a step down, noting
that in her new position Place performed
duties previously done by a grade 17
scientist and that she needed time to
familiarize herself with her new research
project.
Place claimed that because of the
affair, the harassment, and the transfer,
her emotional state deteriorated to the
point where, in November 1991, she took a
medical leave of absence. Financially,
this was not too bad a deal because she
received her full salary for 6 months and
lesser benefits for 6 weeks after that.
But Abbott terminates the employment of
anyone who fails to return to work from
disability leave within one year (though
long-term disability payments might
continue thereafter), and in May 1992,
when her 6 months of full-time disability
benefits expired, Place’s psychologist
cleared her to return to work. Abbott
insisted, however, that she first undergo
an independent medical examination and
referred her to an outside psychologist,
John Jochem. Fearing that she was being
set up for failure, Place snapped on her
tape recorder when the session with
Jochem began. When he balked at being
taped, Place walked out. Because Place
refused to undergo the independent
medical examination, Abbott refused to
let her return to work. When Place failed
to return to work within one year, Abbott
terminated her as an employee.
Unable to find another science job,
Place went to law school and now is a
solo practitioner in Waukegan, where she
has--apparently successfully--represented
other former employees who have sued
Abbott. She also filed her own ADA,
ERISA, and Title VII claims against
Abbott. The ADA and ERISA claims were
knocked out on summary judgment, but the
Title VII case went to trial.
Judge Coar was the finder of fact on
Place’s sexual harassment claim
(involving events that occurred prior to
November 21, 1991) and a jury was the
finder of fact on the retaliation claim
(involving events that took place both
before and after November 21, 1991).
Judge Coar found that Place had not been
sexually harassed, a decision that she
does not appeal. A plaintiff whose
underlying discrimination claim fails may
still prevail on a claim that she was
retaliated against for complaining about
discrimination, see Pryor v. Seyfarth,
Shaw, Fairweather & Geraldson, 2000 WL
568330 (7th Cir. May 11, 2000), and Place
did so. The jury found that Abbott
retaliated against Place and awarded her
$389,656 in lost wages and $125,000 in
compensatory damages, for a total of
$514,656. Abbott appeals that outcome.
Judge Coar denied Place front pay and
would not let her pursue punitive
damages. Place cross-appeals those
decisions. (Place had counsel at trial,
but handled her appeal pro se.)
Place’s retaliation claim is founded on
two events: first, her transfer in
October 1991 to a different position at
Abbott, and second, the company’s
insistence in May 1992 that she undergo
an independent medical examination, her
refusal of which led to her dismissal in
December 1992.
To understand Place’s retaliation claim,
the jury obviously needed to hear about
what happened before November 21, 1991.
See Hennessy v. Penril Datacomm Networks,
Inc., 69 F.3d 1344, 1349 (7th Cir. 1996).
Judge Coar, however, allowed in the pre-
November 1991 evidence not just as
explanatory background information, but
also for purposes of liability and
compensatory damages under the continuing
violation theory. As a question of law
made in the context of denying Abbott’s
Rule 50 motion, we review that decision
de novo.
The continuing violation theory allows
a plaintiff to reach back to get relief
for an act of discrimination that
occurred outside the statute of
limitations by linking it as one
continuous act with a discriminatory act
that took place within the limitations
period. See Miller v. American Family
Mut. Ins. Co., 203 F.3d 997, 1003-04 (7th
Cir. 2000); Speer v. Rand McNally & Co.,
123 F.3d 658, 663-64 (7th Cir. 1997);
Selan v. Kiley, 969 F.2d 560, 564-65 (7th
Cir. 1992). "A continuing violation is
one that could not reasonably have been
expected to be made the subject of a
lawsuit when it first occurred because
its character as a violation did not
become clear until it was repeated during
the limitations period." Dasgupta v.
University of Wis. Bd. of Regents, 121
F.3d 1138, 1139 (7th Cir. 1997).
Whether the theory may be applied to the
situation at hand is unsettled. Landgraf,
511 U.S. 244, which held that the changes
brought about by the Civil Rights Act of
1991 were not retroactive, did not
involve a claim that straddled November
21, 1991, but rather was a case in which
the conduct already had taken place and
the case already was pending when the new
law took effect. On the one hand,
Landgraf seems to dig a moat between
plaintiffs seeking compensatory and
punitive damages and anything that
occurred before November 21, 1991. On the
other hand, the logic of the continuing
violation theory that stitches old and
new conduct together into one seamless
violation for statute of limitation
purposes would seem to apply with equal
force to the nonretroactivity of a new
law. See Leonard Charles Presberg, The
Civil Rights Act of 1991, Retroactivity,
and Continuing Violations, 28 U. Richmond
L. Rev. 1363, 1402-04 (1994). We have
suggested that the continuing violation
theory "is utilized only in the context
of a challenge to the timeliness of a
cause of action," Taylor v. Western and
S. Life Ins. Co., 966 F.2d 1188, 1196
(7th Cir. 1992), but this single sentence
made in a different context is hardly
dispositive. The circuits that have
tackled this issue head-on have split.
Compare Tomasello v. Rubin, 167 F.3d 612,
620 (D.C. Cir. 1999) ("an award of
compensatory damages for preenactment
conduct would have an impermissible
effect"), and Caviness v. Nucor-Yamato
Steel Co., 105 F.3d 1216, 1220 n.1 (8th
Cir. 1997) ("[w]e are not familiar with
any Eighth Circuit law where the concept
of continuing violation, ordinarily
associated with statutes of limitations
issues, has been employed to overcome a
non-retroactivity rule") with DeNovellis
v. Shalala, 124 F.3d 298, 307 n.4 (1st
Cir. 1997) ("a continuing violation
theory could be applied to any time
requirement imposed by Title VII, whether
it be the effective date of an amending
statute, as here, or a statute of
limitations"). Resolving this nettlesome
legal issue is unnecessary to resolving
this appeal, however, because the two
alleged acts of retaliation against Place
simply do not fit the continuing
violation mold.
We have recognized three types of
continuing violations: where the exact
day of the violation is difficult to
pinpoint because the employer’s
decisionmaking process takes place over a
period of time; where the employer has a
systematic, openly espoused policy
alleged to be discriminatory; and where
the employer’s discriminatory conduct is
so covert that its discriminatory
character is not immediately apparent.
Selan, 969 F.2d at 565. The first two
scenarios clearly do not apply to this
situation and the third does not fit,
either. The covert variant applies to
plaintiffs who realize only with the
benefit of hindsight that they were
discriminated against. Moskowitz v.
Trustees of Purdue Univ., 5 F.3d 279,
281-82 (7th Cir. 1993). If, however, the
plaintiff "knows or with the exercise of
reasonable diligence would have known
after each act that it was discriminatory
and had harmed" her, the plaintiff must
sue over that act within the regular
statute of limitations. Id. at 282.
Applying the continuing violation theory
to this situation would require the
retaliatory nature of Place’s (pre-Novem
ber 1991) internal job transfer to be so
subtle that she did not recognize it as
retaliatory until the (post-November
1991) independent medical examination
demand. The continuing violation scenario
makes most sense in a sexual harassment
case, where the first offensive comment
or inappropriate touch may not alert the
victim to the harassing quality of the
conduct. See Galloway v. General Motors
Serv. Parts Operations, 78 F.3d 1164,
1166 (7th Cir. 1996). A job transfer is
quite different. Like being fired,
demoted, or not promoted, a job transfer
is a single, significant event, not a
continuing act. See Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 907 (2d Cir.
1997). Unlike low-level harassment that
over time grows in intensity or in
cumulative effect, a job transfer is a
concrete, discrete development. If
Place’s transfer into a different job
where she held the same title and
received the same pay was retaliatory at
all, its retaliatory nature was
immediately palpable. Because Place could
have known at the time that the transfer
was retaliatory--if indeed it was
retaliatory--she cannot through the
continuing violation theory link her
transfer to Abbott’s independent medical
examination requirement some 8 months
later.
Consequently, the district court erred
in allowing the jury to consider Place’s
October 1991 transfer for purposes of
liability and damages. The jury’s
retaliation decision should have been
based only on the company’s demand in May
1992 that she undergo an independent
medical examination, a demand that when
defied led to Place’s termination.
Place argues, however, that this error
was harmless. The jury answered "yes" to
a special interrogatory that asked: "Was
Abbott’s refusal to reinstate Place
without an independent medical
examination an act of retaliation?"
Because the independent medical
examination issue was properly within the
jury’s bailiwick, and because the jury
explicitly found the examination
requirement retaliatory, Place believes
that part of the verdict is valid. As a
result, she says that at least the
$389,656 she was awarded in back pay
should stand, since that part of the
award stemmed from her termination that
resulted from her refusal to undergo an
unrecorded independent medical
examination.
We disagree, for two reasons. First, the
jury’s finding of liability might have
been improperly influenced by Place’s
effort to prove that her transfer was
retaliatory. As we mentioned earlier, the
jury would have heard this evidence in
any event. Because the jury was not
instructed that this evidence could not
be taken into account in determining
liability and damages, however, what
should have been outside the jury’s
purview might have seeped into the jury’s
decision regarding liability. We will
never know whether the jury thought the
job transfer was retaliatory because no
interrogatory was given on that question,
and we cannot speculate on whether the
jury’s decision was rooted solely on a
permissible ground or on both permissible
and impermissible grounds.
Second, no reasonable jury could have
found Abbott’s independent medical
examination requirement retaliatory. We
review de novo a trial court’s grant or
denial of judgment as a matter of law
under Federal Rule of Civil Procedure 50.
Mathur v. Board of Trustees of S. Ill.
Univ., 2000 WL 307119, *2 (7th Cir.
2000). The question is whether a rational
jury could have reached the result this
jury reached. Id. In deciding this
question, we may not substitute our view
of contested evidence for the jury’s. Id.
The record does not support an
inference that Abbott was retaliating for
Place’s earlier complaints of sexual
harassment by requiring her to take an
independent medical examination before
returning to work from a long disability
leave. Abbott required any employee who
had been out on disability leave for at
least 5 days to coordinate their return
to work with the company’s health
department. The company did not require
an independent medical evaluation of
every employee who wished to return to
work from disability leave, but requiring
such an examination was not unusual.
Every year, several employees coming back
from disability leave were first sent to
independent medical evaluations that
involved psychological evaluation,
according to Brockton Weisenberger, at
the time Abbott’s director of corporate
employee health. Place introduced no
evidence that similarly situated
individuals were treated differently. She
pointed to records indicating that one
unidentified Abbott employee was allowed
to continue to work despite refusing a
psychological evaluation, but in that
case the evaluation had been recommended
after the employee had been voluntarily
involved in Abbott’s employee assistance
program. By contrast, Place had been out
on disability leave and was required to
undergo an independent medical
examination by the company’s health
department.
While working at Abbott, Place appears
to have been a tempestuous, high-
maintenance employee who did good
scientific work but had regular run-ins
with her supervisors and co-workers. When
one of Place’s supervisors, Meta
Franklin, made a decision Place didn’t
like, Place angrily leaned forward and
threatened: "You’ll pay for that." Frank
lin also testified that on another
occasion she saw Place threaten a co-
worker, Ms. Connerty (the host, you’ll
recall, of the post-Christmas party get-
together), with whom she wasn’t getting
along. Weisenberger said he was concerned
that Place was so angry at the company
that she might do harm if returned to the
workplace. Even Place’s own psychologist,
Katie Gienapp, who believed Place was
ready to return to work and posed no
danger, testified that she could
understand why an employer might want a
second opinion.
We do not hold, as Abbott suggests, that
requiring an independent medical
examination could never constitute an
adverse employment action. For example,
an employer that never required men, but
always required women, to undergo
independent medical examinations before
returning to work from disability leave
would almost certainly be discriminating.
In this case, however, the evidence does
not support the inference that Place was
being singled out. There also is no
evidence that the independent evaluation
had been rigged against her or that
Abbott played any role in Jochem’s
refusal to let Place tape-record their
session. Abbott had a discretionary
policy to require independent medical
examinations when its health department
thought they were warranted. Place’s
previous threats to other Abbott
employees, the emotional problems that
prompted her disability leave, and her
continuing anger at the company all
raised warning flags. In a business where
the destruction of equipment and research
records could do great damage, and in an
era when disgruntled workers all too
regularly take out their frustrations
with a gun, Abbott’s desire to get a
second opinion before welcoming Place
back to work hardly seems unreasonable.
All Place had to do was spend a short
amount of time, at Abbott’s expense, with
a psychologist. If she had done that, she
probably would have gotten her job back.
If Abbott still had barred the door after
the evaluation showed she was fit to
return to work, then she would have a
strong case for retaliation. But under
these circumstances no reasonable jury
could have concluded that the company’s
requirement for an independent
psychological evaluation was payback for
Place’s complaints of sexual harassment
nearly a year before.
The question that remains is whether
Place’s claim that her pre-November 1991
internal transfer constituted
retaliation, which was erroneously
considered by the jury the first time,
must now be remanded to Judge Coar. We
think not, again because for two reasons
no reasonable finder of fact could find
that the transfer was retaliatory.
First, whether the transfer constituted
an adverse employment action is dubious.
The fact that Place received the same pay
and benefits and held the same title in
her new position does not necessarily
preclude her retaliation claim, for
"adverse actions can come in many shapes
and sizes." Knox v. Indiana, 93 F.3d
1327, 1334 (7th Cir. 1996) ("[n]o one
would question the retaliatory effect of
many actions that put the complainant in
a more unfriendly working environment:
actions like moving the person from a
spacious, brightly lit office to a dingy
closet"). On the other hand, being
shifted to an essentially equivalent job
that Place did not happen to like as much
does not a Title VII claim create.
Williams v. Bristol-Myers Squibb Co., 85
F.3d 270, 274 (7th Cir. 1996)
("[o]therwise every trivial personnel
action that an irritable, chip-on-the-
shoulder employee did not like would form
the basis of a discrimination suit").
Place’s beef is that she was moved from
an interesting job she liked that
involved overseeing several other people
to a boring job she didn’t like and that
lacked any supervisory duties. Some of
her complaints--losing her telephone and
cubicle--are too trivial to amount to an
adverse employment action. Maybe her new
working quarters were not as nice, but
there is no indication they were shabby
or unpleasant. Being moved from one job
to another also does not meet the test.
There was no guarantee that Place would
remain forever in the job she held before
her transfer. Researching, creating, and
preparing for mass production
pharmaceutical products is a dynamic
business that involves regularly shifting
people from one job to another, as one
project is completed and another is
begun. Her most viable complaint is that
she had diminished responsibilities.
However, Place’s predecessor in the job
she found so dull held a higher grade
level. Place could not expect to jump
into a new project at the top. As she
became more familiar with her new work
she might have enjoyed it more and might
over time have gained more
responsibilities. But she only lasted a
month before going on disability leave.
Place did not have supervisory
responsibilities in her new job, but some
grade 15 positions at Abbott involve
supervisory duties and others do not.
Supervising other workers in one capacity
did not mean that person would always
have supervisory duties thereafter.
Second, even if the new position was a
step down, there is no evidence that the
decision to move Place was retaliatory.
The sequence of events was: (1) Place
and Harrington have an affair, (2) Place
moves to a new position where she still
works with Harrington but he no longer is
her supervisor, (3) the relationship
sours, (4) Harrington is a pain in the
neck for Place to deal with and Place’s
project suffers as a result, (5) Place
complains that Harrington is sexually
harassing her, (6) Abbott warns
Harrington, (7) Abbott creates an
arrangement where Place and Harrington
may interact only in the presence of a
third party, (8) the project still is
suffering because of the Place-Harrington
friction, and (9) Abbott moves both Place
and Harrington into different jobs. The
fact that two people do not get along
after their office romance sours is not
sexual harassment, and an employer’s
decision to split up two workers whose
interpersonal problems are impeding the
company’s progress is not retaliation.
One view of the evidence might suggest
that Harrington was the bigger problem
and Abbott might have acted unwisely and
unfairly in taking Place off the project.
Title VII, though, doesn’t guard against
unwise or unfair decisions unless those
decisions also were discriminatory or
retaliatory. The end of the affair led to
the problems between Place and
Harrington. It was those problems--not
Place’s complaint of sexual harassment--
that in turn led Abbott to transfer them
both elsewhere.
The judgment in favor of Ms. Place is
REVERSED. The case is Remanded to the
District Court for the entry of judgment
in favor of Abbott Laboratories.
/1 The district court found that the post-Christmas
party rendezvous was consensual. At the risk of
playing the Grinch, however, we note that office
Christmas parties also seem to be fertile ground
for unwanted sexual overtures that lead to Title
VII complaints. See, e.g., Marshall v. Cascade
Utils., 1999 WL 893578, *1 (9th Cir. 1999); Pesso
v. Montgomery Gen. Hosp., 1999 WL 326090, *1 (4th
Cir. 1999); Bryson v. Chicago State Univ., 96
F.3d 912, 914 (7th Cir. 1996); Hennessy v. Penril
Datacomm Networks, Inc., 69 F.3d 1344, 1347-48
(7th Cir. 1995); Morgan v. Massachusetts Gen.
Hosp., 901 F.2d 186, 188 (1st Cir. 1990); King v.
Board of Regents of the Univ. of Wis. Sys., 898
F.2d 533, 535 (7th Cir. 1990); Duchon v. Cajon
Co., 1988 WL 12800, *1 (6th Cir. 1988); Jones v.
Flagship Int’l, 793 F.2d 714, 716-17 (5th Cir.
1986); Afrassiabian v. ProCredit Holdings, Inc.,
1999 WL 605589 (E.D. Pa. 1999); Mills v. Wex-Tex
Indus., Inc., 991 F. Supp. 1370, 1377 (M.D. Ala.
1997); Simpson v. Martin, Ryan, Andrada & Lifter,
1997 WL 542701, *1 (N.D. Cal. 1997); Rivera v.
City of New York, 1997 WL 539776, *1 (S.D.N.Y.
1997); Corrigan v. Labrum & Doak, 1997 WL 76524,
*2 (S.D.N.Y. 1997); Alvey v. Rayovac Corp., 922
F. Supp. 1315, 1318 (W.D. Wis. 1996); Webb v. J.
Merle Jones & Sons., Inc., 1995 WL 573432, *3
(N.D. Ill. 1995); Schaffer v. Ames Dep’t Stores,
Inc., 889 F. Supp. 41, 42 (D. Conn. 1995); Henry
v. Gehl Corp., 867 F. Supp. 960, 966 (D. Kan.
1994); Richardson v. Great Plains Mfg., Inc.,
1994 WL 324553, *3 (D. Kan. 1994); Johnson v.
Indopco, Inc., 834 F. Supp. 1039, 1045 (N.D. Ill.
1993); Babcock v. Frank, 783 F. Supp. 800, 806-07
(S.D.N.Y. 1992); Showalter v. Allison Reed Group,
Inc., 767 F. Supp. 1205, 1208, 1210 (D. R.I.
1991); Christoforou v. Ryder Truck Rental, Inc.,
668 F. Supp. 294, 299 (S.D.N.Y. 1987).