Fane, Marcella v. Locke Reynolds, LLP ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2200
MARCELLA FANE,
Plaintiff-Appellant,
v.
LOCKE REYNOLDS, LLP,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:04-CV-01010—John Daniel Tinder, Judge.
____________
ARGUED JANUARY 5, 2007—DECIDED MARCH 14, 2007
____________
Before FLAUM, MANION, and SYKES, Circuit Judges.
FLAUM, Circuit Judge. From July 2001 until August
2003, Marcella Fane worked as a paralegal at Locke
Reynolds, LLP. After she was terminated, Fane filed
suit against Locke Reynolds, alleging racial discrimina-
tion in relation to her pay, workload, and termination, in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2 as well as 42 U.S.C. § 1981. Finding that
Fane had failed to establish a prima facie case of dis-
crimination, the district court granted summary judgment
in favor of Locke Reynolds, and Fane appeals. For the
following reasons, we affirm.
2 No. 06-2200
I. BACKGROUND
Locke Reynolds hired Fane as a paralegal in its toxic
tort/asbestos practice group (“asbestos practice group”) on
July 9, 2001.1 She continued in that position until Locke
Reynolds terminated her employment on August 19, 2003.
During Fane’s tenure, four other paralegals worked for
the asbestos practice group: Linda Sears, Melissa Hopper,
Pamela Badger, and Christine Christian. Sears left the
firm on January 31, 2003, and Christian and Badger were
hired as paralegals on January 6, 2003, and March 10,
2003, respectively. All paralegals in the asbestos practice
group reported to Michael Bergin, a senior partner. Fane
was the only African-American paralegal in the practice
group.
When Locke Reynolds hired Fane, an outside placement
service negotiated her salary. Fane’s starting salary was
$36,000, which, although at the low end of the scale for
paralegals, was significantly higher than the $27,500
she received from her prior employer. Locke Reynolds
determined starting salaries based on relevant education
and experience, previous salary, and litigation experience.
Fane had a Bachelor of Science as well as a paralegal
certificate. However, she lacked litigation experience, and
Locke Reynolds envisioned that she would face a steep
learning curve in her new position.
Soon after Fane began working for Locke Reynolds, the
asbestos practice group paralegals divided tasks among
themselves, and Fane agreed to assume responsibility
for doing discovery and drafting pleadings. Fane believed
1
Fane first applied for employment with the firm in 1996, but
was told that she needed a four-year degree to work there.
Shortly thereafter, the firm hired a white female paralegal
who did not have a college degree.
No. 06-2200 3
her workload was greater than that of her colleagues, but
payroll records suggest otherwise.2
During Fane’s tenure, Locke Reynolds used a five point
scale to evaluate its paralegals, with one point equaling
an unsatisfactory rating and five reflecting superior per-
formance. In her 2001 review, Fane received a 3.60 rating,
the lowest score among the three paralegals assigned
to the asbestos practice group at the time. In 2002, she
received a rating of 2.85, while the group’s two other
paralegals were rated 4.21 and 4.69. Fane’s low 2002
evaluation score related, in part, to an April 2002 in-
cident in which a firm client complained to Bergin that
Fane had addressed two of its staff in an arrogant and
improper tone. In response to this complaint, Locke
Reynolds assigned an attorney to supervise Fane closely
to avoid further client relations problems. Fane’s 2002
performance evaluation also contained the following
comments from evaluating attorneys:
We have also had some problems with the ‘tone’ of oral
and written communications to a couple of clients.
Marcella, no doubt, was attempting a businesslike or
professional tone which the client felt was hostile or
rude. (Comment submitted by Michael Bergin.)
Communication skills may be a matter of style, but
Marcella can be unintentionally blunt to the point of
appearing either rude or condescending. An awareness
2
From July 1 to December 31, 2001, paralegal overtime hours
were as follows: Melissa Hopper worked 86.7 hours, Linda Sears
worked 41.0 hours, and Marcella Fane worked 30.5 hours. During
2002, Melissa Hopper worked 353.8 hours, Marcella Fane
worked 89.2 hours, and Linda Sears worked 29.0 hours. From
January 1 to August 31, 2003 Melissa Hopper worked 178.5
hours, Christine Christian worked 170.2 hours, Marcella Fane
worked 17.0 hours, and Pamela Badger worked 5.0 hours.
4 No. 06-2200
of appearances should foster improvement. (Comment
submitted by Karl Koons.)
Fane disagreed with the comments, telling the firm’s
paralegal liaison that she “did not understand how one
could misconstrue oral and written communication[s] that
were businesslike or professional in any other manner
than being appropriate.”
Around May 2003, the asbestos practice group met to
discuss file reorganization and the processing and comple-
tion of pending discovery work. At the meeting, Bergin
added some tasks to Fane’s file reorganization project, and
Fane stated that the additional work would require more
people. At Bergin’s suggestion, the four asbestos group
paralegals (Fane, Hopper, Christian and Badger) divided
the extra work among themselves. A few days later, Bergin
spoke with Fane about having Badger assist with discovery
responses, and Fane suggested that Badger and Christian
help with the task. Soon after, Fane assigned Badger and
Christian four cases each, keeping twelve for herself.
On August 14, 2003, one month after assigning the
discovery responses to Badger and Christian, Fane sent
them an e-mail inquiring about the status of the responses.
Christian responded by e-mail, saying, “I have one draft
done that [a supervising attorney] approved—he told me to
work on the others when I could fit them into my schedule.
I have been working on a National Starch production
project that had to come first.”
Fane replied by e-mail to both Christian and Badger,
saying, “National Starch may come first, but it takes
no one a whole month to draft 4 discovery responses.
When will you have the remaining 3 complete? Thanks.”
Badger responded with an email letting Fane know that
if she had a problem, she should, “try to be less rude
about it!”
No. 06-2200 5
After receiving a copy of Fane’s second e-mail, Bergin
went to Fane’s office to discuss how she was speaking
to her co-workers. Fane directed Bergin to come in, have
a seat, and shut the door. Fane did not think it was
inappropriate to address a senior partner in this fash-
ion. Bergin told Fane that her first e-mail was accept-
able, but the second was inappropriate, that the re-
cipients were upset, and that he, too, was offended by
the message. Fane disagreed, telling Bergin that her
communication was direct but not rude. She would not
acknowledge that her second e-mail could be perceived as
aggressive, rude, or offensive.
After Bergin left her office, Fane went into Christian’s
office, shut the door, and told Christian that her e-mails
were not intended to be rude or to make Christian feel
that Fane was trying to be her boss. Fane also went to
see Badger, but Badger was not in her office.
Bergin concluded that he could no longer tolerate Fane’s
communication style and the disruption it was causing
with staff members. The following Monday, the paralegal
liaison met with Fane and asked for her side of the story.
Again, Fane said that her communications to Christian,
Badger, and Bergin were not improper, rude, insubordi-
nate, or offensive. On August 19, 2003, Locke Reynolds
terminated Fane’s employment, citing her conduct to-
ward her colleagues and insubordination toward Bergin.
On October 15, 2003, Fane filed a charge of discrimina-
tion with the EEOC, alleging that she was terminated on
the basis of race. Fane did not specifically charge dis-
crimination related to salary or workload, although she
mentioned those issues in her EEOC questionnaire. On
June 4, 2004, after the EEOC concluded its investigation,
Fane filed her complaint in the district court, alleging
that Locke Reynolds violated Title VII and § 1981 by
discriminating against her in relation to workload, pay,
6 No. 06-2200
and termination. The district court granted summary
judgment in favor of Locke Reynolds, and Fane appeals.
II. DISCUSSION
This Court reviews a district court’s grant of summary
judgment de novo. Gordon v. United Airlines, Inc., 246
F.3d 878, 885 (7th Cir. 2001). In deciding the appeal, we
make all reasonable factual inferences in favor of Fane,
and will uphold summary judgment only if there is no
genuine issue of material fact and Locke Reynolds is
entitled to judgment as a matter of law. Id. See also Fed.
R. Civ. P. 56(c).
Fane proceeds under the indirect, burden-shifting
method articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The McDonnell Douglas approach
requires that a plaintiff first establish certain prima
facie elements suggesting race discrimination. To success-
fully set forth a prima facie case of racial discrimination,
Fane must show that: 1) she is a member of a protected
class; 2) she was meeting her employer’s legitimate
performance expectations; 3) she suffered an adverse
employment action; and 4) other similarly situated em-
ployees who were not members of the protected class
were treated more favorably. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). We
generally have applied the same prima facie requirements
to both Title VII and § 1981 discrimination claims. See
Humphries v. CBOCS West, Inc., 474 F.3d 387, 403 (7th
Cir. 2007).
If Fane succeeds in establishing a prima facie case, the
burden of production shifts to Locke Reynolds to offer a
permissible, nondiscriminatory reason for the adverse
employment action. Id. If Locke Reynolds meets this
burden, Fane must demonstrate that the firm’s pur-
No. 06-2200 7
ported reasons are a pretext for discrimination or that
the decision was tainted by impermissible, race-based
motives. Id. at 143. “ ‘The ultimate burden of persuading
the trier of fact that the defendant intentionally dis-
criminated against the plaintiff remains at all times
with the plaintiff.’ ” Id. (quoting Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
A. Unequal Pay and Workload Claims
The district court held that Fane’s workload and pay
claims were barred because they were not set forth in her
EEOC charge. See Cheek v. W. & S. Life Ins. Co., 31 F.3d
497, 500 (7th Cir. 1994) (noting that claims must gen-
erally be set forth in an EEOC charge to give notice to the
party charged with discrimination, to permit the agency
to investigate the charge, and to facilitate a resolution if
possible). Whether Fane exhausted her Title VII claims
is immaterial, however, because Fane also sued under
§ 1981, which does not require a plaintiff to bring an
EEOC charge before filing a claim in federal court. See,
e.g., Walker v. Abbott Labs., 340 F.3d 471, 474 (7th Cir.
2003). Accordingly, Fane can proceed with her unequal pay
and workload claims under § 1981.
On the merits, Fane’s workload claim fails for two
reasons. First, she has not produced any evidence from
which a jury reasonably could conclude that her work-
load was heavier than that of other paralegals in the
asbestos practice group. Instead, Fane emphasizes her
subjective belief that she worked more than other
paralegals, which is not enough to survive summary
judgment. See Mills v. First Fed. Sav. & Loan Ass’n
of Belvidere, 83 F.3d 833, 841-42 (7th Cir. 1996). Indeed,
Fane’s belief is belied by the firm’s overtime records.
Second, even if Fane had direct evidence of a heavier
workload, harder work assignments do not constitute
8 No. 06-2200
an adverse employment action. Johnson v. Cambridge
Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (noting
that plaintiff ’s claim that he was given harder work
assignments failed to “show some quantitative or qualita-
tive change in the terms or conditions of his employment
that [was] more than a mere subjective preference”).
Absent any evidence suggesting that discrimination
motivated work distributions, the mere fact that an
employee (particularly one eligible for overtime pay) had
a heavier workload than her co-workers does not amount
to an adverse employment action.
With regard to her unequal pay claim, Fane has offered
no evidence that Locke Reynolds’s explanation of her
lower starting salary and lower raises relative to other
employees was pretextual. Locke Reynolds, in justifying
Fane’s starting pay, explained that it based employees’
starting salaries on previous salaries and work experience.
Indeed, Fane’s $36,000 starting salary was 31% higher
than her previous salary, which Fane does not dispute.
By contrast, Badger, who had a significantly higher
starting salary than Fane, was earning $45,000 a year at
her previous job. Locke Reynolds also points to Fane’s lack
of litigation experience as justifying the lower starting
salary, highlighting significant experiential differences
among Fane, Badger, and Christian. Other than a general
assertion that her experience and education equaled or
exceeded that of her colleagues, Fane offers no evidence
from which a jury could conclude that Locke Reynolds’s
cited reasons for the pay differentials were pretextual.
Likewise, Fane has produced no evidence suggesting
that Locke Reynolds’s stated reasons for giving her
smaller raises than her colleagues were pretextual. Fane
did receive pay increases throughout her employment,
and Locke Reynolds cites her low evaluation scores as a
legitimate reason for the disparity compared to her higher
scoring co-workers. Fane asserts that the evaluators
No. 06-2200 9
were “more forgiving in their evaluation of other para-
legals,” but her assertion alone cannot create a genuine
issue of material fact sufficient to survive summary
judgment. Mills, 83 F.3d at 841-42.
B. Termination Claim
Fane next claims that material factual issues preclude
summary judgment on her claim that she was terminated
because of race. The parties agree that Fane is a member
of a protected class and suffered an adverse employment
action. They disagree about whether she was meeting
the firm’s legitimate expectations and whether she has
identified similarly situated individuals.
1. Legitimate Expectations
Fane argues that she was meeting Locke Reynolds’s
legitimate expectations. She notes that she completed her
assignments and, prior to the incident culminating in
her termination, received no disciplinary warnings other
than the comments in her 2002 annual performance
evaluation. She also points to her pay increases (based, at
least in part, on merit) as evidence that she was meeting
her employer’s expectations. In response, Locke Reynolds
cites Fane’s low evaluation scores as well as the two
incidents of interpersonal conflicts to show that she was
not meeting the firm’s expectations.
Fane’s evidence is insufficient to demonstrate she was
meeting the firm’s legitimate expectations.3 The client’s
3
Fane also contends that her lack of notice about her abrasive-
ness and insubordination somehow affects whether she was
meeting the firm’s expectations. Whether Fane had notice of
(continued...)
10 No. 06-2200
complaint about Fane’s communication style coupled
with the abrasive e-mail she sent to her co-workers
demonstrate that she was not behaving in the manner
Locke Reynolds expected. Fane’s failure to live up to the
firm’s expectations was amplified by her inability to
evaluate her own behavior, including the manner in which
she addressed a senior partner. The fact that Fane com-
pleted her assignments has no bearing on whether she
met Locke Reynolds’s expectations regarding employee
conduct. See Herron v. Daimler-Chrysler Corp., 388 F.3d
293, 300 (7th Cir. 2004) (holding that plaintiff who per-
formed some aspects of his job well, but had a confronta-
tional and disrespectful attitude, could not show that he
was meeting his employer’s legitimate expectations).
2. Similarly Situated Individuals
Fane identifies two white employees that she claims
were similarly situated and better treated: Donna West,
a paralegal in the asbestos practice group, and Melissa
Hopper, a secretary for the asbestos practice group. An
employee is similarly situated to a plaintiff if the two
employees deal with the same supervisor, are subject
to the same standards, and have engaged in similar
conduct without such differentiating or mitigating cir-
cumstances as would distinguish their conduct or the
employer’s treatment of them. Snipes v. Ill. Dep’t of Corrs.,
291 F.3d 460, 463 (7th Cir. 2002).
3
(...continued)
her transgressions, whether termination was an extreme
response to them, and whether Locke Reynolds followed its
own progressive disciplinary procedures are irrelevant to the
issue of whether Fane was meeting the firm’s legitimate ex-
pectations. We address these arguments further in our dis-
cussion of pretext.
No. 06-2200 11
Fane argues that she and West were similarly situated
because both paralegals and legal secretaries were “non-
exempt” employees eligible for the same benefits and both
reported to the Director of Human Resources for work
assignments, transfers, and disciplinary problems. Locke
Reynolds responds that Fane reported directly to Bergin—
not the Director of Human Resources.4 Moreover, the
firm contends, the employee handbook identifies five
categories of employees in detail, distinguishing para-
legals from support staff employees, which includes
secretaries.
Although Fane identifies several examples of West
behaving inappropriately towards her co-workers, Fane
has failed to demonstrate that she and West are sim-
ilarly situated. They perform different jobs altogether and
report to different supervisors. Moreover, Fane’s job
involved significant client contact while the record is
unclear on the extent of West’s contact with clients, if any.
Hopper, unlike West, reported to the same direct super-
visor as Fane and performed the same job functions.
Nonetheless, Fane has failed to identify behavior on
Hopper’s part sufficient to satisfy the fourth McDonnell
Douglas prong. Fane notes that Hopper’s 2002 annual
performance evaluation contained a comment that “Me-
lissa seems irritated by clarifying questions,” and her
November 2003 evaluation stated that Hopper had
“conflicts with past staff.” These two vague comments,
without more, do not demonstrate that Hopper’s behavior
4
The handbook states that the Director of Human Resources
has general supervisory authority for all support personnel, but
“[i]n the case of paralegals, the paralegal supervisor or the
lawyer from who the paralegal receives the majority of his/her
work may be the individual who has discussion with a paralegal
regarding work performance problems.”
12 No. 06-2200
was as severe as Fane’s, particularly absent evidence of
client complaints or Hopper failing to appreciate the
wrongfulness of her conduct.
3. Pretext Analysis
Even if Fane could establish a prima facie case of
discrimination, she has failed to provide evidence from
which a jury reasonably could conclude that the firm’s
proffered reasons for terminating her were pretextual. To
show pretext, Fane must identify such weaknesses,
implausibilities, inconsistencies, or contradictions in the
purported reasons that a jury could find them unworthy
of credence and hence infer that Locke Reynolds did not
act for the asserted non-discriminatory reasons. Reeves,
530 U.S. 133 at 143. If Locke Reynolds honestly believed
the reasons it gave, Fane loses even if the reasons are
foolish, trivial or baseless. McCoy v. WGN Cont’l Broad.
Co., 957 F.2d 368, 373 (7th Cir. 1992) (“[T]he issue of
pretext does not address the correctness or desirability
of reasons offered for employment decisions. Rather, it
addresses the issue of whether the employer honestly
believes in the reasons it offers.”).
Fane argues that Locke Reynolds’s reasons for ter-
minating her—rude behavior, insubordination, and not
recognizing her own inappropriate behavior—were incon-
sistent and in violation of the firm’s own progressive
discipline procedures. It is difficult to see how these three
reasons are inconsistent, given that they all could de-
scribe the August 2003 e-mail incident. Additionally,
Locke Reynolds could have relied on all three reasons
simultaneously, regardless of whether it emphasized one
over the others at a given time.
Moreover, no reasonable jury could conclude that the
firm’s failure to follow progressive discipline procedures
No. 06-2200 13
suggested discrimination. Fane offers no evidence that
the progressive discipline policy was rigorously enforced,
and the policy warns that “some situations may be so
serious as to warrant immediate discharge. The firm shall
be the sole judge of the seriousness of any situation. The
firm reserves the right to terminate any employment
relationship at any time, with or without cause.” See
Hague v. Thompson Distrib. Co., 436 F.3d 816, 828 (7th
Cir. 2006) (finding no evidence of pretext where em-
ployer’s progressive discipline policy permitted discharge
for certain first time offenses). Essentially, Fane’s pro-
gressive discipline argument is a claim that her employer
overreacted to her behavior—not that the firm fired her
under false pretenses. Accordingly, we affirm the dis-
trict court’s ruling.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of Locke Reynolds.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-14-07