Bilow, Sharon v. Much Shelist Freed ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2467, 00-2587, 00-3098
Sharon Swarsensky Bilow,
Plaintiff-Appellant,
Cross-Appellee,
v.
Much Shelist Freed Denenberg
Ament & Rubenstein, P.C.,
Defendant-Appellee,
Cross-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 7627--Ruben Castillo, Judge.
Argued February 21, 2001--Decided November 7, 2001
Before Posner, Kanne, and Diane P. Wood,
Circuit Judges.
Diane P. Wood, Circuit Judge. Plaintiff
Sharon Swarsensky Bilow, an attorney
proceeding pro se, filed this lawsuit
against her former employer, the law firm
of Much Shelist Freed Denenberg Ament &
Rubenstein, P.C. (Much Shelist), alleging
violations of the Employee Retirement
Income and Security Act (ERISA), Title
VII of the Civil Rights Act of 1964
(Title VII) and several state laws. Bilow
has two principal complaints: first, that
Much Shelist owes her money for
wrongfully denied employee benefits, and
second, that it violated the law when it
fired her either because it discriminated
on the basis of her sex or because it was
impermissibly retaliating against her for
certain protected complaints. We agree
with the district court that Bilow failed
to establish a genuine issue with regard
to any material fact, and we therefore
affirm the district court’s grant of
summary judgment for Much Shelist.
I
A. Health Insurance "Gross-Up" Program
Bilow began working as a litigation
associate at Much Shelist in 1982. Three
years later, she became the first woman
to be promoted to income partner at the
firm. At that time, the firm provided
health insurance for its employees and
their dependents. But in 1989, the firm
stopped paying the insurance premiums for
the dependents of employees and started
deducting the premium amounts from the
partners’ paychecks. In order to make up
the difference, the firm increased or
"grossed-up" partners’ salaries in an
amount equal to the premiums for the
dependent coverage. At the time of the
change, Bilow was affected, because she
had purchased health insurance coverage
for her husband and children. As it did
for all others in her situation, the firm
began to deduct the premiums from Bilow’s
paycheck while increasing her salary in
an equal amount.
In 1992, while Bilow was on maternity
leave, the firm announced that it would
no longer provide a gross-up to partners
whose spouses’ employers provided free
dependent health insurance. For these
partners, the gross-up would be phased
out over the next two years. According to
Bilow, she was never notified of the
change, but her gross-up was phased out
over the next two years and was
completely eliminated by June 1, 1994. At
the same time, the firm continued to
deduct the dependent insurance premiums
from her paycheck.
In March 1998, four years after the
gross-up was completely phased out, Bilow
noticed that the compensation listed on
her W-2 form was less than her salary.
Bilow immediately relayed this problem to
Steven Schwartz, a member of the firm’s
Management and Accounting Committees.
Schwartz responded that the firm did not
pay for health insurance for those
partners whose spouses received dependent
health insurance from their own
employers. According to Bilow, she told
Schwartz that her spouse did not receive
health insurance from his employer;
Schwartz promised to investigate the
situation and report back to Bilow.
Bilow waited about six weeks for the
problem to be remedied or for someone to
discuss the matter with her. When nothing
happened, she sent a memo on April 29,
1998, to the firm’s Management Committee
requesting a response and an accounting:
It has been approximately six weeks since
the firm has acknowledged that my salary
has never been "grossed up" for the
medical insurance deducted from my
salary. Given the criminal liability
attached to this failure to pay, which
dates back to 1986/1 and continues to
the present, I do not understand the
firm’s nonchalance. No one has even
discussed the status of the matter with
me.
On May 18, 1998, the Management
Committee responded to Bilow with a memo
explaining that the gross-up had been
phased out over the time period between
1992 and 1994. In 1993, her gross-up was
$2,000 and thereafter she received no
extra pay to compensate for her dependent
care coverage. The firm admitted that it
had only "assumed" that Bilow’s husband,
a doctor, had dependent coverage through
his employer. The memo concluded: "Please
advise for the period 1993 to date
whether or not your spouse had dependent
coverage at his place of employment."
That same day, Bilow met with Michael
Shelist, the head of the Management
Committee, and told him that she had
never been notified of the change in
policy and that no one had ever asked her
if her husband’s employer provided health
insurance for their family. Bilow told
Shelist that, in fact, her husband did
not receive dependent health insurance
coverage from his employer. Shelist
demanded that Bilow confirm this in
writing and provide him with information
about any other health insurance covering
Bilow and her family. Although Bilow
complained that Shelist had no right to
make such a demand, Bilow delivered the
requested memo to Shelist on May 27.
B. Staffing of the Brouwer Case
Meanwhile, Bilow’s primary
responsibility since 1992 had been a
large class action lawsuit filed in
Indianapolis that was expected to earn a
multi-million dollar contingent fee for
the firm. The case, Brouwer v.
Rochwarger, required the class to prove a
complex RICO conspiracy among several ac
counting firms, lawyers, and brokerage
firms. Christopher Stuart, an associate
at the firm, had been assisting Bilow
with the litigation.
By the end of 1997, Bilow had billed
almost 6,000 hours and Stuart had billed
over 5,300 hours to the Brouwer case. In
total, the firm had invested
approximately $3 million of attorney time
in the case but had recovered only about
$800,000 in fees after settling with some
of the defendants. As the May 1998 trial
date approached, the firm’s Management
Committee became concerned about the
likelihood of recovering even a portion
of its expenses. The Committee scheduled
a meeting with Michael Freed, the head of
the firm’s litigation department, to
discuss the possibility of taking Stuart
off the case. Freed told the Committee
that he believed Bilow, along with local
Indianapolis counsel, Hugh Baker, could
adequately try the case alone. Freed
based his opinion on several factors:
most of the named defendants had settled
or had been dismissed; the potential
recovery against one of the defendants
was minimal and did not warrant any more
attorney time; he respected Baker’s
experience as a seasoned trial lawyer;
and he had confidence in Bilow’s ability
as a litigator. On February 26, 1998, in
a memo to Bilow, the Committee announced
that, when the trial began, she and Baker
would litigate the case by themselves in
Indianapolis, although Stuart and others
would be available in Chicago to provide
assistance.
On March 10, 1998, Bilow met with
Shelist and voiced her concerns about
trying the Brouwer case with only Baker’s
help. Bilow believed that the case
involved complex legal issues and she did
not believe Baker to be up to the job.
Bilow also informed Shelist that she
would not be able to spend each night of
the anticipated month-long trial in
Indianapolis because her husband worked
nights and she did not have alternate
child care arrangements. Bilow suggested
that she could commute daily to
Indianapolis, and although the flight
would not arrive in time for the morning
session of trial, the Brouwer judge would
not object to her being late every day.
Shelist refused to permit her proposed
commuting arrangement, and he also
refused to assign anyone else to help her
litigate the case.
Bilow and the firm came to an impasse on
the matter: her position was that Shelist
was asking her to do the impossible, and
that, even if the firm were to fire her,
she could not stay in Indianapolis during
the trial. She believed that the firm was
responsible for arranging child care for
its lawyers; the firm disagreed. The May
trial date was ultimately continued, but
Shelist reported the events of the
meeting to the Management Committee,
which shared Shelist’s view that Bilow
was being insubordinate. The
Committeeinstructed Shelist to prepare a
memo recording the events of the meeting
and the circumstances of the conflict,
which he did on April 30, 1998, almost
two months after the meeting. (April 30,
1998 also happened to be the day after
Bilow wrote the letter to the firm
threatening "criminal liability" if it
failed to compensate her for the past
gross-up amounts.)
C. Partner Survey
Immediately after the March 10 meeting
in which Bilow expressed her unhappiness
with the Brouwer staffing decision, the
firm conducted a non-anonymous survey of
its partners. Bilow completed the survey
and gave it to Shelist on March 20, 1998.
In response to a request to list her
"three most significant concerns about
the firm," Bilow first complained about
her compensation and then stated her
opinion that "there is a ruling class at
the firm and a ruled class and all the
women in the firm are in the ruled
class."
D. Termination
In May 1998, during the firm’s fiscal
year-end review, the Management Committee
decided to lay off one senior-level
attorney from its litigation department
and one from its corporate department.
The Committee chose a male from its
corporate department and chose Bilow from
the litigation department, based mainly
on its belief that it could not rely on
Bilow to try the Brouwer case, and that
without Brouwer, there was not enough
work to keep her busy. Freed told the
Committee that Bilow’s absence would not
hamper the Brouwer proceedings and that
he personally "did not wish to work with
[Bilow] again because [he] found working
with her to be extremely frustrating due
to her obstinate nature and frequent
disregard of his counsel."
On June 1, 1998, two months after Bilow
completed the survey and only four days
after her most recent meeting with
Shelist regarding the gross-up problems,
Shelist informed Bilow that her
employment was going to be terminated,
effective June 8, 1998, because she was
unwilling to try the Brouwer case as
instructed by the firm and because there
was insufficient work otherwise for a
senior trial lawyer in the hourly
litigation department.
On June 25, 1998, Shelist gave Bilow a
letter entitled "Terms of Separation." In
the letter, the firm acknowledged that it
owed Bilow $16,600 in past compensation
for its inaccurate phase-out of her
gross-up. In order to receive the past
due gross-up as well as sixteen weeks’
severance pay, however, it insisted that
Bilow release the firm and all of its
shareholders from any claims arising out
of her employment or termination.
After weeks of negotiation, Bilow
refused to sign the release and on August
12, the firm gave her a check for an
amount equal to the $16,600 past due
gross-up minus the severance pay she had
received since June 8. On August 10,
Stuart settled the Brouwer case against
the remaining defendants.
E. Lawsuit
On November 20, 1998, Bilow filed
discrimination charges with the EEOC
claiming that the firm eliminated her
gross-up as a result of sex
discrimination, that she was terminated
as retaliation for complaining about the
loss of the gross-up, that the firm
required her to try the Brouwer class
alone as a result of sex discrimination,
and that she was terminated in
retaliation for objecting to the staffing
decision. The EEOC issued a right to sue
letter on January 28, 1999.
In the meantime, on November 25, 1998,
Bilow brought her original complaint
alleging violations of ERISA, Title VII,
and state law. This 26-page, 132-
paragraph complaint was dismissed without
prejudice on the district court’s own
initiative on February 26, 1999. The
judge expressed the view that the
complaint was "way overpled" and
encouraged Bilow to "sit back and think
about [pleading] 10 counts." Bilow
ignored this advice, however, and filed
her first amended complaint on March 19,
1999, which had the same 10 counts, but
was even more massive, weighing in at 48
pages, 218 paragraphs, and 27 exhibits.
Again, the district court dismissed the
complaint without prejudice for failure
to comply with Fed. R. Civil P. 8.
Bilow’s effort at a second amended
complaint was again longer, with 10
counts, 52 pages, 223 paragraphs, and 34
attached exhibits.
Counts I and II of the second amended
complaint allege that the firm violated
ERISA by not providing Bilow with a
summary plan description of the gross-up
program, failing to notify her of a
material change in her benefits,
withholding benefits to which she was
entitled under the gross-up plan, and
firing her in retaliation for complaints
about conduct that she believed to be in
violation of ERISA. The rest of the
federal claims arose under Title VII:
Count VII alleged that the firm
discriminated against her on the basis of
sex in assuming that, because she is a
woman, her husband’s employer provided
family health insurance. Count VIII
alleged that the firm discriminated
against her on the basis of sex in
requiring her to try the Brouwer case
alone. Count IX alleged retaliation for
her complaints regarding the
discriminatory administration of the
gross-up program and Count X alleged
retaliation for the comments she made in
the partner survey. Bilow also brought
several claims for salary and bonus
payments under state statutory and common
law.
The firm filed a motion to dismiss,
arguing that the gross-up plan was not an
ERISA plan. It argued that the Title VII
counts were either untimely or failed to
state a claim. Finally, it asked the
court to exercise its discretion to dis
miss the state law claims. After more
procedural skirmishing, the court allowed
Bilow to go forward to the summary
judgment stage on her claim of sex
discrimination related to the staffing of
Brouwer and her claim of retaliation for
her complaint in the partner survey. It
dismissed all the other federal claims.
Bilow later added three more state law
theories related to the gross-up. The
firm filed a motion for summary judgment
on the remainder of the federal claims on
January 28, 2000, which the court granted
on May 2, 2000. It found that Bilow had
not shown that the firm treated males
more favorably in the staffing of cases,
nor did she have evidence that could
establish a causal connection between her
complaints in the survey and her
discharge. The court declined to exercise
supplemental jurisdiction over the state
law claims. On May 17, 2000, the district
court denied Bilow’s Rule 59(e) motion to
alter or amend the summary judgment
ruling.
On June 6, 2000, Bilow filed a notice of
appeal from all of the district court’s
orders. The firm filed a cross-appeal on
June 19, 2000, challenging the district
court’s refusal to exercise supplemental
jurisdiction over the state law claims.
On July 28, 2000, the court granted
judgment in favor of the firm for $2,554
in costs; on August 15, Bilow filed a
notice of appeal from this judgment for
costs.
II
A. Issues on the Pleadings
We consider first the group of claims
the court dismissed for failure to state
a claim. These are the ERISA claims and
the Title VII claim concerning the gross-
up. We review these de novo, accepting
all well-pleaded allegations in the
complaint as true and drawing all
reasonable inferences in favor of the
plaintiff. Hentosh v. Herman M. Finch
University of Health Sciences/The Chicago
Medical School, 167 F.3d 1170, 1173 (7th
Cir. 1999).
1. ERISA Claims
Bilow alleged that the firm violated
ERISA in several ways connected to the
gross-up program and that she was
discharged for complaining about those
violations. The district court dismissed
these claims on the ground that the
gross-up policy was not an ERISA plan.
This was because the gross-ups were paid
from the firm’s general assets as part of
its compensation plan. Although Bilow
tried to challenge this finding for the
first time in her reply brief, she
conceded at oral argument that she had
waived this challenge.
Based on this first finding, the
district court also dismissed the claim
that the firm retaliated against Bilow
for exercising her rights under ERISA.
The court ruled that the existence of an
ERISA-governed plan was a prerequisite to
an ERISA retaliation claim. This second
finding is properly before us on appeal.
Section 510 of ERISA makes it unlawful
for an employer to discharge "a
participant or beneficiary for exercising
any right to which he is entitled under
the provisions of an employee benefit
plan." 29 U.S.C. sec. 1140. Bilow argues
that even if the gross-up program was not
an ERISA plan, sec. 510 should still
apply as long as she made a reasonable,
good-faith claim that the program was
covered by ERISA and that an ERISA
violation had occurred. In making this
argument, Bilow asks us to borrow from
Title VII’s-anti-retaliation provision,
which has been interpreted to prohibit
retaliation against an employee who makes
a reasonable good-faith claim that
wrongful discrimination has occurred,
even if the claim ends up being
meritless. See Sweeney v. West, 149 F.3d
550, 554 (7th Cir. 1998). For purposes of
argument, we will assume that she did
have a good-faith claim that the gross-up
program was governed by ERISA and that an
ERISA violation had occurred.
Under some circumstances, courts do
borrow aspects of Title VII law to use in
interpreting ERISA. See, e.g., Fairchild
v. Forma Scientific, Inc., 147 F.3d 567,
576 (7th Cir. 1998) (utilizing McDonnell
Douglas in the ERISA context).
Nonetheless, this must be done with
caution, as there are significant
differences between ERISA and Title VII,
and there are even differences between
the anti-retaliation provisions of the
two statutes. The most important of these
is the fact that, unlike a Title VII
retaliation plaintiff, an ERISA
retaliation plaintiff must demonstrate
that the employer had the specific intent
to violate the statute and to interfere
with an employee’s ERISA rights. See
Lindemann v. Mobil Oil Corp., 141 F.3d
290, 295 (7th Cir. 1998). With such a
requirement, it is logical to infer that
an ERISA plan is a condition precedent to
an ERISA retaliation claim. Without an
actual ERISA plan, it would be rather
difficult to find that an employer
specifically intended to violate an
employee’s rights under something that
only arguably existed.
Other ERISA language also counsels
against use of the Title VII analogy
here. Under both Title VII and ERISA, a
retaliation plaintiff must show that she
belongs to "a protected class." See
Little v. Cox’s Supermarkets, 71 F.3d
637, 642 (7th Cir. 1995). Title VII
protects the broad category of
"individuals," see 42 U.S.C. sec. 2000e-
3, but ERISA protects only employees who
are "participants" and "beneficiaries" of
ERISA-governed plans, see 29 U.S.C. sec.
1140. Without a plan, Bilow can be
neither a participant nor a beneficiary.
She thus stands outside the class of
individuals ERISA protects.
Bilow has not cited any case in which a
court allowed a sec. 510 retaliation
claim to proceed in the face of a finding
that there was no underlying ERISA plan.
We agree with the district court that a
plan must exist before a retaliation case
is possible, which spells the end of this
part of Bilow’s case.
2. Title VII Claims Related to Gross-Up
Mistake
Bilow alleged that the firm
discriminated against her in the
administration of the gross-up program by
assuming, because she is a woman, that
her spouse provided the health insurance
for their family, and by not making the
same assumption for married male
partners. This assumption, she claims,
was a violation of 42 U.S.C. sec. 2000e-
2(a). She also claimed that the firm
fired her in retaliation for complaining
about the gross-up discrimination, in
violation of 42 U.S.C. sec. 2000e-3(a).
The district court dismissed the
retaliation claim because Bilow never
asserted that the gross-up mistake
resulted from sex discrimination, rather
than just inadvertence or ignorance, when
she complained about it. She has not ap
pealed from this ruling. It dismissed the
underlying sex discrimination claim about
the gross-up as untimely, since Bilow’s
complaint to the EEOC was filed more than
300 days after she reasonably should have
discovered the change in her pay. This
decision is the focus of her appeal on
this part of her case.
In Illinois, a Title VII plaintiff must
file a charge with the EEOC within 300
days of the alleged discrimination. See
Snider v. Belvidere Township, 216 F.3d
616, 618 (7th Cir. 2000). Bilow states
that her discrimination claim is based on
the firm’s stereotypical assumption that
her husband was responsible for her
family’s health insurance coverage. This
assumption was clearly made no later than
1993. Thus, on the face of things, Bilow
filed her November 1998 EEOC charges well
after the 300-day limitation period had
passed.
Indeed, without belaboring the point, we
find that not only on the face of the
matter, but in all other ways, Bilow’s
charges were late. Equitable tolling does
not apply here, as a reasonable person
exercising due diligence would have
discovered long before five years had
elapsed that she was not receiving almost
$5,000 a year and almost $200 a paycheck
to which she was entitled. We also reject
Bilow’s argument that the firm should be
equitably estopped from claiming
untimeliness. She has not pointed to any
active steps that the firm took to keep
her from discovering its mistake;
instead, she relies only on the fact that
the firm never told her about the phase
out of the gross-up. This is not enough,
particularly since it was giving her
monthly and yearly pay statements that
revealed all relevant information. See
Chakonas v. City of Chicago, 42 F.3d
1132, 1135-36 (7th Cir. 1994). Finally,
this was not a "continuing violation,"
beginning in 1993 and repeating itself
with every paycheck. See United Air
Lines, Inc. v. Evans, 431 U.S. 553, 558
(1977); Dasgupta v. Univ. of Wis. Bd. of
Regents, 121 F.3d 1138, 1139 (7th Cir.
1997). There was one discrete act--the
decision to phase out the gross-up--which
occurred in 1992. The Supreme Court has
held that Title VII’s statute of
limitations begins to run when an
employer implements a discriminatory
policy, even if its effects are not felt
until many years later. See Lorance v.
AT&T Tech., Inc., 490 U.S. 900 (1989);
see also Dasgupta, 121 F.3d at 1140. The
later events on which Bilow relies in
part, such as the requests for her to
turn over all insurance information and
to sign a release--were merely lingering
effects of the discriminatory assumption
made in 1993.
The district court correctly found that
these claims were barred by the Title VII
statute of limitations. Because this is
so clear, we can address it on the
pleadings (technically under Rule 12(c),
as it relates to an affirmative defense),
and we need not address the question
whether the gross-up claim is moot in
light of the firm’s eventual payment of
the full $16,600 (but perhaps not with
interest) to which she was entitled.
B. Summary Judgment Issues
After the district court’s partial grant
of the motion to dismiss, the only
remaining federal claims were the Title
VII claims of sex discrimination in the
staffing of the Brouwer case and
retaliation for complaining in the
partner survey about sex discrimination
at the firm. Both were dismissed at the
summary judgment stage. We review the
district court’s grant of summary
judgment de novo, and we draw all
reasonable inferences from the record in
the light most favorable to Bilow. See
Ryan v. Wersi Elec. GmbH & Co., 59 F.3d
52, 53 (7th Cir. 1995). The non-moving
party, however, cannot rest on the
pleadings alone, but instead must
identify specific facts to establish that
there is a genuine triable issue. Id.
1. Sex Discrimination in Staffing of
Brouwer Case
Bilow claims that the firm discriminated
against her by requiring her to try the
Brouwer case with only the help of local
counsel. Male employees, she asserted,
were never required to try similarly
complex cases without substantial
assistance. Both parties concede, and we
agree, that there is no direct evidence
of discrimination with regard to the
Brouwer staffing decision. That leaves
Bilow with the familiar indirect method
of proof established for Title VII cases
in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). First, the plaintiff
must state a prima facie case of sex
discrimination. Id. at 802. To establish
this prima facie case, she must prove,
among other things, that similarly
situated male employees were treated more
favorably than she was treated. Id.Bilow has not pointed to any cases at
the firm similar to Brouwer in which male
attorneys received more staffing
assistance. The cases on which male
attorneys seemingly received more
assistance were cases that were either
more complex, or were not contingent fee
cases, or took place in Chicago and
therefore did not entail the same travel
expenses. Bilow did not have a problem
when the only help she was receiving came
from Stuart and she has not established
that sex discrimination had anything to
do with the firm’s assessment that Baker
was as competent as Stuart for the task
at hand. To the contrary, Freed told the
Management Committee that Baker was a
seasoned trial lawyer who was chosen by
the Brouwer judge as lead counsel for the
class. Finally, Bilow was only required
to try the case alone (in the sense of
having no help from Much Shelist); prior
to trial and during trial she still had
the opportunity to obtain assistance from
firm lawyers in Chicago.
Even if Bilow had established her prima
facie case, the firm’s decision was
justified by legitimate,
nondiscriminatory reasons. See McDonnell
Douglas, 411 U.S. at 802. The firm had
already invested $3 million of its
services in the case, and so far, after
the dismissal of several defendants, had
recouped only $800,000. In order to cut
costs, it needed to reduce staffing on
the case. Freed told the Management
Committee that Bilow, with the help of
local counsel, could adequately try the
case since most of the defendants had
been dismissed and the case against one
of the defendants did not warrant any
more time. A need or desire to cut costs
is a legitimate nondiscriminatory
justification for an adverse employment
action. See Aviles v. Cornell Forge Co.,
183 F.3d 598, 604 (7th Cir. 1999).
Additionally, Freed told the Management
Committee that he believed that the
remaining issues were not complex and
that Bilow and Baker could handle the
case alone.
Once the firm articulated a legitimate,
nondiscriminatory reason for the staffing
decision, the burden shifted to Bilow to
show that the given reason was a pretext
for discrimination. See McDonnell
Douglas, 411 U.S. at 804. That she has
not done. Her disagreement with Freed’s
analysis of the staffing demands on the
case in no way indicates that Freed
himself did not honestly believe that two
lawyers were enough. See Crim v. Bd. of
Educ. of Cairo Sch. Dist. No. 1, 147 F.3d
535, 541 (7th Cir. 1998) (employee must
show that reason for discharge was a lie
or not grounded in fact, not just that it
was mistaken). She also points to a voice
mail tape, made a year before the
staffing decision, in which Freed said
that Brouwer was a "long, hard case." But
this vague statement is not only
unhelpful, it is completely irrelevant to
the state of the case a year after the
statement was made and after several
defendants were dismissed.
2. Retaliation for Survey Response
Bilow also argued that the firm fired
her in retaliation for her statement on
the firm survey to the effect that "there
is a ruling class at the firm and a ruled
class and all the women in the firm are
in the ruled class." This survey was
returned on March 20, 1998, and she was
discharged a little over two months
later. Her theory appears to be that her
statement was a protected accusation of
sex discrimination against the firm.
Bilow contends that this two-month period
between the receipt of the survey and her
discharge establishes a "causal
connection" between the two events.
We question whether a time lag of more
than two months is suspicious on the
facts presented here for the purpose of
establishing retaliation, assuming for
now that the statement was the kind of
protected complaint to which the
retaliation statute applies. See
McClendon v. Ind. Sugars, Inc., 108 F.3d
789, 797 & nn. 5-6 (7th Cir. 1997)
(citing cases in which causal connection
was shown when time lag was a day or a
week). Furthermore, Bilow needs more than
a coincidence of timing to create a
reasonable inference of retaliation: "The
mere fact that one event preceded another
does nothing to prove that the first
event caused the second." Sauzek v. Exxon
Coal USA, Inc., 202 F.3d 913, 918 (7th
Cir. 2000) (three month gap alone could
not establish causal connection).
"Rather, other circumstances must also be
present which reasonably suggest that the
two events are somehow related to one
another." Id. Bilow has not presented any
evidence from which a trier of fact could
determine that there was a causal
connection between her survey response
and her termination.
Even if Bilow had established the
required causal connection, the firm has
once again submitted legitimate
nondiscriminatory reasons for the
discharge--Bilow’s inflexibility and the
lack of work in her department--and Bilow
has failed to give us any evidence that
would show these reasons to be
pretextual.
C. Motion to Compel Production of
Documents
During discovery, Bilow filed a Rule 34
motion to compel production of certain
documents, including, among other things:
(1) documents relating to the financial
status of the firm, including attorney
salaries and billing reports and (2) a
letter written by Joseph Ament, the head
of the Accounting Committee, to members
of his synagogue, objecting to women
leading religious services. On January
25, 2000, the court denied the motion
with regard to these two types of
documents, and Bilow now argues that this
was an error. We review a decision of a
district court denying a motion to compel
for abuse of discretion. See Gile v.
United Airlines Inc., 95 F.3d 492, 495
(7th Cir. 1996).
Although we realize that an employee can
be at a disadvantage when it comes to the
collection of information, insofar as the
relevant data is in the hands of the
employer, we nevertheless find no abuse
of discretion here. Bilow argued that the
documents relating to the firm’s earnings
and expenses would have helped her show
that its cost justification for its
staffing decision in the Brouwer case was
pretextual. But the judge did require
that the firm produce all records
regarding the Brouwer case and the cases
that Bilow argued were most analogous to
Brouwer. Any other evidence of billing
and costs was irrelevant to the firm’s
justification for its staffing decision
in the Brouwer case.
We similarly see no abuse of discretion
(indeed, no error) in the court’s refusal
to compel production of the Ament letter.
Indeed, it is hard to see how the letter
is relevant to the issues in this
litigation. Ament’s feelings regarding
women leading religious services in his
synagogue tell one little or nothing
about his views on the role of women in
the workplace. Furthermore, it is unclear
what part Ament played in the staffing
and gross-up decisions. Given that Bilow
failed to take a single deposition during
discovery, it seems disingenuous for her
now to complain that the district court
did not require the firm to give her
access to some marginally (at best)
relevant documents.
D. Cross-Appeal: Supplemental
Jurisdiction
After the district court dismissed all
of the federal claims, it declined to
exercise supplemental jurisdiction over
the state law claims, finding that the
state law claims presented "complex" and
"undecided legal issues, best resolved by
the Illinois state courts." See 28 U.S.C.
sec. 1367. The firm has appealed from
that decision, which we review for abuse
of discretion. Groce v. Eli Lilly & Co.,
193 F.3d 496, 499-500 (7th Cir. 1999). We
recognize that the court could have
chosen to decide the merits of the state
law claims, had it thought the
appropriate disposition of the claims was
crystal clear and it was otherwise
efficient to do so. See Centres, Inc. v.
Town of Brookfield, 148 F.3d 699, 704
(7th Cir. 1998). This does not mean,
however, that the court is required to
exercise supplemental jurisdiction; to
the contrary, it may decline to do so if
it "has dismissed all claims over which
it had original jurisdiction," as it did
in this case. 28 U.S.C. sec. 1367(c)(3).
See also Van Harken v. City of Chicago,
103 F.3d 1346, 1354 (7th Cir. 1997).
Bilow’s state claims would have required
the court to undertake a complex analysis
of the salary and bonus structure of the
firm and the interplay between the firm’s
system and various state common law and
statutory rules. See Centres, 148 F.3d at
704 ("[C]ases involving difficult and
unresolved issues of state law . . . may
well be adjudicated more accurately and
more expeditiously in a state court.").
There was little enough overlap between
these issues and the ones the court had
already considered for the federal claims
to make its decision to dismiss a
perfectly sensible one--easily one within
its discretion.
III
Whatever problems Bilow had with the
firm--perhaps a lack of sensitivity to
the problems of working mothers, perhaps
bad communication about staffing
decisions--we agree with the district
court that she did not state a claim
under any section of ERISA, nor did she
present a Title VII claim that was
entitled to go to trial. We therefore
Affirm the district court’s judgment on
her federal claims and its dismissal of
the supplemental state claims. Finally,
we see no error or abuse of discretion in
the district court’s judgment of costs in
favor of the defendant, which we also
Affirm.
FOOTNOTE
/1 We are not sure why Bilow believes the problem
began in 1986. The gross-up did not begin to be
phased out until 1992 at the earliest.