Fischer, Barbara v. Avanade ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1800
BARBARA FISCHER,
Plaintiff-Appellant,
v.
AVANADE, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5594—William J. Hibbler, Judge.
____________
ARGUED OCTOBER 26, 2007—DECIDED MARCH 14, 2008
____________
Before, POSNER, FLAUM, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge. Plaintiff Barbara Fischer was an
employee at Avanade, Inc. from May 2001 until her
resignation in October 2005. During the course of her
employment, Fischer was passed over on multiple occa-
sions for a promotion to Delivery Management Practice
Director (“Director”) at the company. In 2005, Fischer
brought a lawsuit against Avanade under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging
gender discrimination based upon a failure to promote
and retaliation in the form of constructive discharge. On
June 12, 2006, Defendant filed a motion for summary
2 No. 07-1800
judgment, which the district court granted on both claims.
Fischer appeals this decision. For the reasons discussed
below, we reverse with respect to Plaintiff’s failure to
promote claim and affirm on Plaintiff’s retaliation claim.
I. Background
Avanade, Inc. is a global corporation which assists
companies in integrating Microsoft products into their
business. Barbara Fischer, an Iowa resident with over
twelve years of experience in the technology field, was
hired by Avanade in May 2001 as a Program Management
Consultant for Avanade’s Central Region, which was
headquartered in Chicago, Illinois. During Fischer’s first
two years at the company, before she began seeking
Director positions, her performance reviews were mixed.
After being reviewed as meeting the company’s expecta-
tions her first year, in July 2002 Fischer was assigned
to help Avanade break into the government opportu-
nities arena. Although government agencies took note
of Avanade’s entry into the market, Avanade did not
receive any government awards in 2002. This result,
coupled with a negative review from Fischer’s super-
visor concerning a separate billable project, led to Fischer
being rated as “does not meet expectations” for fiscal
year 2002 and being placed on a performance improve-
ment plan to perform at least one billable project success-
fully. Fischer formally disputed this evaluation, but her
rebuttal was not placed in her personnel file. The next
year however, Fischer dramatically improved her per-
formance while serving as a Project Manager (“PM”) on a
billable project for the Federal Home Loan Bank of
Chicago (“Bank”). Fischer managed five to six people on
this project and was given strong reviews, with the
No. 07-1800 3
Central Region General Manager expressing that Fischer
had done a “great job,” and Fischer being rated as “exceeds
expectations” for the 2003 fiscal year.
In September 2003, just before Fischer received her 2003
annual review, Avanade created a new Strategic Accounts
Region designed to service its two largest accounts, one
of which was the Bank. Howard Kilman named Joe
Mendel the General Manager of this new region, which
Fischer elected to join.
A. October 2003 Opening for the Strategic Accounts
Region Director Position
One month later, on October 5, 2003, General Manager
Mendel circulated an email to all employees in the
region informing them of open leadership positions in the
Strategic Accounts Region, including that of Director. The
announcement stated that the Director should be a mem-
ber of the Strategic Accounts Region and have a billable
project with a client of the region. The formal job descrip-
tion, in addition to its general requirements that the
individual be entrepreneurial and possess skills in people
interaction, problem-solving, and leadership, also listed
the minimum requirements for the position:
• Proven track record in leading the delivery of
consulting projects using Microsoft technol-
ogies . . .;
• Proven track record of leadership during opportu-
nity and proposal phases of sales cycle;
• Enterprise experience with Microsoft Operating
Systems or Development Tools;
4 No. 07-1800
• Demonstrated strong customer service with 10+
years experience;
• Established consulting expertise with 10+ years
experience;
• Demonstrated understanding of development
methodologies and tools;
• Interested and able to travel extensively on a
regular basis.
Additionally, Avanade’s general position summary for
Director positions indicated that a university degree
was also required.
Fischer applied for the Director position and apparently
met these minimum qualifications. In addition, Fischer
received the strong recommendation of the Bank’s Assis-
tant Vice President for the post.
Also applying for the position was Joe Sieverding, the
employee ultimately promoted to the position in dispute
in this suit. Sieverding had been hired as a Central
Region PM in March 2003 and possessed thirteen years
experience in the technology field, including ten years in
consulting and success in managing larger technology
projects. Upon being hired at Avanade, Sieverding was
assigned to work on a project for the Bank which, at the
time, was viewed as being largely over budget and de-
layed. Sieverding received an overall performance rating
of “exceptional” for his work in 2003, but an audit of
the project in October 2003 revealed that Sieverding’s
reliance upon a “handshake deal” had resulted in 200
undocumented change requests. In addition to violating
Avanade’s policies and procedures, this “handshake deal”
allegedly contributed to Avanade’s issuance of a rebate
No. 07-1800 5
and uncompensated work to the Bank in 2004 worth
$600,000.
Mendel was in charge of the hiring decision and (after
consulting with Howard Kilman on the matter) decided not
to promote either Fischer or Sieverding to the Director
position. Instead, in October 2003, Mendel decided to have
both Fischer and Sieverding share the responsibilities of
Strategic Accounts Region Director. That same month,
Sieverding was promoted to a performance level of 60 on
the company’s sliding scale, which ranged from 20 to 70,
and received an accompanying salary increase. Fischer
expressed concerns to Mendel that Sieverding’s higher
performance level rating than hers would create diffi-
culties in circumstances where Fischer needed to direct
Sieverding. Mendel accordingly raised Fischer’s status
in late November, but only to Level 55, and did not in-
crease her salary.
Additionally, beginning in 2003 and continuing into 2004,
Fischer spoke to Mendel regarding her concerns about
high cost “morale building” dinners attended by certain
male employees, including Sieverding, that occurred at
a gentleman’s club. Mendel’s response to Fischer was
that, “Everybody is working really, really hard so let
them do that. It was harmless.” According to Fischer,
subsequent to these complaints, Mendel was harsh on
Fischer whenever she was sharp, abrupt, or curt in
an email.
B. March 2004 Re-Opening of the Strategic Accounts
Region Director Position
In March 2004, Mendel reopened the Strategic Accounts
Region Director position, submitting an official email to
6 No. 07-1800
this effect in mid-April. Fischer again expressed interest
in this position and was highly recommended for the
post by David Schmitt, Vice-President of the Bank. Also
applying for the position was Robert Lewis. Statements
made by Mendel as early as February of that year reflect
that Lewis had already been deemed the presumptive
frontrunner to receive the promotion.
At the time the opening was announced, Lewis was a
Project Manager for the Central Region, rated at a Level
55, and had recently been assigned to assist on the same
Bank project Sieverding had been on. Prior to joining
Avanade in 2001, Lewis had compiled over seven years’
experience in information technology and project manage-
ment. In addition. before joining the Bank project, Lewis
had worked on a $25 million project where he had man-
aged 100 consultants. Notwithstanding this experience,
Lewis did not meet all the formal qualifications that
apparently had been required when the position was
first opened in October 2003. In particular, Lewis had not
obtained a university degree, did not hold ten years’
consulting experience, and had not managed a project in
the Strategic Accounts Region or been a member of that
region.
In late April or early May, Mendel interviewed both
Fischer and Lewis for the Director position. Mendel
sought Kilman’s approval on May 20 to offer the position
to Lewis, and Lewis was subsequently awarded the
position on June 1, 2004, resulting in a promotion to
Level 60 and a salary raise.
No. 07-1800 7
C. May 2004 Position as Acting Director for the Central
Region
In May 2004, at approximately the same time Mendel
was hiring for the Strategic Accounts Region Director
position, the same position in the Central Region became
available. Fischer was never given an opportunity to
apply for this position. Gary Gamso, the departing Central
Region Director, and Don Evans, the Central Region
Operations Manager at the time, were in charge of filling
the role. Without posting the opening, Evans and Gamso
approached Sieverding to serve as acting Director. Mendel,
who had earlier expressed interest in moving Sieverding
out of the Strategic Accounts Region, provided feedback on
Sieverding before he was offered the position. That same
month, when Fischer asked Mendel why Sieverding had
not applied for the Strategic Accounts Region Director
position, Mendel replied, “Sieverding is not practice
director material.”
Sieverding was offered the acting position and assumed
the duties of Central Region Director in late May 2004.
Following the announcements that Lewis and Sieverding
had been named to their respective Director positions,
Fischer approached Tracy Spielmann, Human Resources
Generalist about these decisions, asking, “How does—
was this all set up?”, to which Spielmann replied, “Oh, no.”
D. October 2004 Permanent Central Region Director
Position
In October 2004, without posting the position or re-
ceiving an application from Sieverding, Evans perma-
nently appointed Sieverding to the role of Central Region
Director. Fischer, meanwhile, continued to work on the
8 No. 07-1800
Bank project until December 2004 and then stayed on
at Avanade until October 2005.
E. Fischer’s Continued Employment at Avanade
In addition to Fischer’s complaints regarding the din-
ners at the gentleman’s club and inquiry as to whether
Lewis’ and Sieverding’s promotions were “all set up,” she
also joined a number of women in collectively raising
concerns regarding women’s experiences at the company.
On April 11, 2005, Fischer and a number of other senior
level women at Avanade engaged in a conference call
with Mitch Hill, Avanade’s CEO, and Eric Friedman,
Avanade’s Human Resources Director, to address this
issue. This meeting was to be about general women’s
concerns and no specific incidents of unfair treatment or
discrimination were discussed. Fischer identified herself
by name at the meeting after Hill indicated that “anonym-
ity did not work for him,” and that, in order to assist the
women, he would need to know who they were. Although
Avanade failed to hold a follow-up meeting despite
requests by the women’s spokesperson, Avanade did hire
an outside consultant which held a training session on
women’s issues on July 26, 2005, and the company imple-
mented a diversity awareness program for the 2006
fiscal year.
The same month that the meeting with Hill occurred,
Fischer began working on a new project with Francis
Delgado, an Avanade Connected Methods Senior Project
Manager. By mid-June Delgado had relayed to Lewis
that she was considering taking Fischer off the project
due to a lack of communication and activity on Fischer’s
part. By June 20, 2005, Delgado told Lewis that these
No. 07-1800 9
concerns had not been addressed and that she was going
to assign Fischer’s responsibilities to someone else. Lewis
then relayed this information on June 21 to Mick Slattery,
the Strategic Accounts General Manager, who instructed
Human Resources to review Fischer’s time entries for
the week of June 15, a standard practice when issues
involving an employee’s work habits, expense reimburse-
ments, or time entries exist. Slattery’s own concerns
regarding Fischer’s lack of communication, lack of atten-
dance at leadership meetings (although Fischer contends
she was not informed that she needed to attend any
such meetings), and undefined work schedule led him
to inform Lewis and Human Resources Generalist
Spielmann that he intended to record Fischer’s progress
as “does not meet expectations” or “requires improve-
ment.” Moreover, Slattery wanted Human Resources to
monitor Fischer’s time entries for the remainder of the
year, due to his concerns regarding the amount of time
Fischer had taken off that year and the small amount of
billable work she had performed. Although Slattery’s
request was only for Fischer’s time entries, Spielmann also
reviewed Fischer’s expense reimbursement requests,
finding what appeared to be unauthorized reimbursement
requests for cell phone and broadband expenses. Sometime
after July 21, 2005, Fischer was approached about these
expenses, which she claimed had been authorized by
Mendel, although she was unable to produce emails
documenting such authorization at the time.
During this period of time, Avanade was also in the
process of preparing to dismantle and restructure the
Strategic Accounts Region. The decision to go forward
with this restructuring was made in April 2005, with the
Region’s change to the U.S. Delivery Center to be effec-
tive as of October 1, 2005. On July 19, 2005, Slattery told
10 No. 07-1800
Fischer that as part of the restructuring, all U.S. Delivery
Center employees would need to be based full-time in
Chicago. Soon after talking with Fischer, Slattery had a
similar conversation with Dan Egleston, a Strategic Ac-
counts Solutions Developer, informing him that he too
would have to relocate to Chicago if he wished to work in
Avanade’s U.S. Delivery Center. Slattery, however, had
failed to mention any such requirement during an earlier
slide presentation on the restructuring that Fischer had
seen. Fischer replied that she wanted to stay in Iowa,
and Slattery said that in order for her to do so she would
need to transfer to a position in the Central Region or
another region for the upcoming fiscal year.
Two days later, on July 21, 2005, Fischer filed her
first EEOC charge against Avanade. Spielmann received
notice of this charge and relayed this information to
Slattery and Lewis. Following this charge, Director of
Human Resources Friedman contacted Fischer, stating:
“I must admit I am a little speechless. What is it that
you are looking for? Are you looking for a new role
within Avanade, a transfer to another region, money?”
Fischer replied, “No, not really. I am just looking for
Avanade to start making things right again.”
In August 2005, Slattery issued a negative assessment
of Fischer on her Personal Contribution Form. Earlier, on
August 6, Lewis had recommended to Slattery that he
not issue the form, since “providing this feedback at this
time would seem like retaliation.” When Slattery formally
issued the Personal Contribution Form later that month,
it included a negative assessment for Fischer’s participa-
tion on a leadership team, although Fischer was not
aware that she had been placed on any such team.
No. 07-1800 11
At the end of August, Mendel offered Fischer a position
in the Central Region after being told by Slattery that
Fischer did not intend to relocate to Chicago. This was
a lateral position working in government opportunities,
with no change in official title, salary, benefits, or primary
responsibilities. Fischer accepted this position in mid-
September. At the end of the month however, on Septem-
ber 30, 2005, Fischer submitted her resignation, effective
October 15, 2005, after being offered a higher paying
position at another company.
F. Procedural History
Fischer filed this suit against Avanade on September 28,
2005, bringing a claim of sex discrimination for failure to
promote, in violation of Title VII of the 1964 Civil Rights
Act, as amended. 42 U.S.C. § 2000e et seq. Fischer later
amended the complaint to include a claim of retaliation
in response to her complaints about sex discrimination.
Avanade then filed a motion for summary judgment on
both counts on June 12, 2006.
Fischer raised certain procedural objections to Avanade’s
summary judgment practice. With respect to information
offered by Avanade in its Statement of Material Facts,
Fischer objected to Avanade’s reliance upon compensa-
tion data and time and expense records provided by
two witnesses, Eric Tuch and Deborah Mitrenga, who
had not been earlier disclosed to Fischer. The district court
ruled in a June 26, 2006 Minute Entry that Avanade would
be permitted to rely on these declarations. Fischer also
argues that the district court erred in considering declara-
tions submitted by already deposed witnesses, claiming
that these declarations contradicted their deposition
12 No. 07-1800
answers. The district court did not expressly rule for
one side or the other on this issue, but seemingly with one
exception, did rely on these declaration statements as
part of the factual record.
The district court, on March 30, 2007, granted Avanade’s
motion for summary judgment on both counts. Fischer
appeals the district court’s decision on the claims of sex
discrimination and retaliation in the form of construc-
tive discharge.
II. Analysis
A. Standard of Review
This court reviews a grant of summary judgment
de novo, examining the record in the light most favorable
to the non-moving party. Lawson v. CSX Transp., Inc., 245
F.3d 916, 922 (7th Cir. 2001). A grant of summary judg-
ment is to be affirmed where “the pleadings, the discovery
and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a mat-
ter of law.” FED. R. CIV. P. 56(c). All facts and reasonable
inferences are to be construed in favor of the nonmoving
party, South v. Ill. EPA, 495 F.3d 747, 751 (7th Cir.
2007), however, “[i]nferences that are supported by only
speculation or conjecture will not defeat a summary
judgment motion.” McDonald v. Vill. of Winnetka, 371 F.3d
992, 1001 (7th Cir. 2004).
B. Sex Discrimination Claim for Failure to Promote
Fischer first appeals the district court’s grant of sum-
mary judgment with respect to her failure to promote
No. 07-1800 13
sex discrimination claim. Fischer argues that sex discrimi-
nation was at the root of her failure to obtain promotions
to the Strategic Accounts Region Director position in
October 2003 and May 2004, as well as to the same posi-
tion in the Central Region in May 2004 and October 2004.
The district court found however, and Fischer concedes
on appeal, that Title VII’s 300-day limitation period for
filing a charge with the EEOC bars Fischer from holding
Defendant liable for any discrete discriminatory acts
occurring before September 24, 2004. See 42 U.S.C. § 2000e-
5(e)(1); see also AMTRAK v. Morgan, 536 U.S. 101, 113 (2002)
(“discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in
timely filed charges”). Thus, Fischer’s only timely failure
to promote claim concerns Sieverding’s permanent ap-
pointment to the role of Central Region Director in
October 2004. This does not mean, however, that these
earlier, time-barred incidents are irrelevant. Rather, “time-
barred acts [are allowed] as support for a timely claim.”
West v. Ortho-McNeil Pharm. Corp., 405 F.3d 578, 581 (7th
Cir. 2005) (citing Davis v. Con-Way Transportation Central
Express, Inc., 368 F.3d 776, 786 n.4 (7th Cir. 2004)); Morgan,
536 U.S. at 113 (Title VII does not “bar an employee from
using the prior acts as background evidence in support
of a timely claim.”)
In light of this 300-day limitations period, we turn to
whether the district court erred in granting summary
judgment on Fischer’s sex discrimination claim with
respect to her failure to be promoted to the permanent
Central Region Director position in October 2004. A fail-
ure to promote claim can be established through either
the direct method of proof or the indirect burden-shifting
method established in McDonnell Douglas Corp. v. Green,
14 No. 07-1800
411 U.S. 792 (1973). Volovsek v. Wis. Dep’t of Agric., Trade,
& Consumer Prot., 344 F.3d 680, 689, 692 (7th Cir. 2003).1
The prima facie case for a failure to promote claim under
the indirect method requires that the plaintiff show:
“1) [s]he belongs to a protected class, 2) [s]he applied
for and was qualified for the position sought, 3) [s]he
was rejected for that position and 4) the employer
granted the promotion to someone outside of the pro-
tected group who was not better qualified than the plain-
tiff.” Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir.
2003). Under this burden-shifting method, once the plain-
tiff has established the prima facie case, the burden
shifts to the defendant to set forth evidence supporting
a finding that the employment decision was made on a
non-discriminatory basis. Emmel v. Coca-Cola Bottling Co.,
95 F.3d 627, 629 (7th Cir. 1996). If the defendant is suc-
cessful in presenting a legitimate, non-discriminatory
basis for not promoting the plaintiff, the burden then
shifts again to the plaintiff to show that the defendant’s
proffered explanation is a pretext for discrimination. Id.At issue between the parties is the fourth prong of the
prima facie case2—whether Fischer was as qualified as
1
Although Fischer claims she is able to offer sufficient evid-
ence under either method, she presents no analysis under the
direct method and proceeds solely under the indirect method of
proof. Accordingly, we similarly limit our analysis to Fischer’s
claim under the indirect method.
2
At first blush, Fischer apparently fails to meet the second
element of the prima facie case, since she did not apply for the
Central Region Director position. In cases such as this, how-
ever, where the plaintiff alleges that there were discriminatory
motives behind not announcing the position to her, Fischer
(continued...)
No. 07-1800 15
Sieverding for the Central Region Director position.
Defendant claims Sieverding was made the permanent
Central Region Director based upon the fact that he
successfully demonstrated, while serving in the acting
capacity, that he had the ability and willingness to meet
the responsibilities of the permanent post. Accordingly,
Defendant argues that Fischer cannot show that she
was similarly qualified for the position, since she had
never served as acting Central Region Director. This
argument alone, however, cannot carry the day. While
Sieverding’s appointment to the permanent Central
Region Director position is Fischer’s only timely claim,
Avanade’s time-barred acts may still be used to support
her timely claim. See West v. Ortho-McNeil Pharm. Corp.,
405 F.3d at 581. This is particularly true in a circum-
stance like this, where Sieverding’s appointment to the
acting Central Region Director position, which Fischer
claims was made on a discriminatory basis, is the sole
reason offered by Defendant for Sieverding’s subse-
quent promotion to the permanent post.
Looking then to Fischer’s and Sieverding’s respective
qualifications when Sieverding was named acting Central
Region Director in May 2004, we find that these two
individuals were similarly situated, thus satisfying the
fourth prong of the prima facie case. Both Fischer and
Sieverding came to Avanade with over ten years’ ex-
perience in the technology field, and both entered at a
2
(...continued)
only needs to show that, “had [Avanade] approached her,
she would have accepted the offered position,” which De-
fendant does not contest. Loyd v. Phillips Bros., Inc., 25 F.3d
518, 523 (7th Cir. 1994).
16 No. 07-1800
Level 3 skill level. Furthermore, Fischer and Sieverding
had both worked on projects for the Bank prior to the
two jointly sharing the responsibilities of Strategic Ac-
counts Region Director in October 2003. As for Fischer,
she had managed three to four concurrent projects for
the Bank and received the strong recommendation of the
Bank’s Assistant Vice President for the Strategic Accounts
Region Director position in October 2003 and the high
recommendation of the Bank’s Vice President when the
position re-opened in 2004. With respect to Sieverding,
he was brought on to lead a project that was facing nu-
merous problems, particularly with respect to its orig-
inal budget and release date, when he was brought on
board. Although Sieverding oversaw a group ranging in
size from twenty to ninety while at the Bank, the parties
dispute Sieverding’s success on the project. Fischer in
particular points to the fact that Sieverding’s reliance upon
a “handshake deal” for 200 undocumented change requests
apparently led Avanade to have to issue a rebate and
provide uncompensated work to the Bank totaling
$600,000. Avanade’s reference to Sieverding’s “excep-
tional” rating in 2003 and promotion to Level 60, compared
to Fischer’s “exceeds expectations” rating and promotion
to Level 55, is insufficient to disprove that the individuals
were similarly situated, particularly when the promotion
level disparity is allegedly the result of discrimination.
For these reasons, we find that Fischer has offered suf-
ficient evidence to meet this fourth prong and show a
prima facie case against Avanade.
Having shown sufficient evidence to make a prima facie
case of discrimination under the indirect method, the
burden then shifts to Avanade to show a legitimate, non-
discriminatory basis for hiring Sieverding to the Central
Region Director position. See Debs v. Northeastern Ill. Univ.,
No. 07-1800 17
153 F.3d 390, 395 (7th Cir. 1998) (“Once the plaintiff
establishes this prima facie case, there is a presumption of
discrimination that obligates the employer to produce a
legitimate nondiscriminatory reason for its decision.”).
Defendant claims that Evans promoted Sieverding to the
permanent Central Region Director position based upon
the fact that while serving in the acting role, Sieverding had
performed well and displayed his ability to fulfill the
position’s responsibilities. While we recognize that
Sieverding’s promotion to the permanent Central Region
Director position is Fischer’s only timely claim, we note
that with respect to Sieverding’s promotion to the acting
position, Avanade offers that this decision was based on
Sieverding’s present availability, interest in the Central
Region, experience managing a large project, and ability
to handle the position. Having offered these legitimate,
non-discriminatory reasons for hiring Sieverding, the
burden shifts back to Fischer to show that this proffered
explanation is pretextual.
“Pretext is a ‘lie, specifically a phony reason for some
action,’ ” Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 737
(7th Cir. 2006) (quoting Russell v. Acme-Evans, Co., 51 F.3d
64, 68 (7th Cir. 1995)), and thus, “[t]o show pretext, ‘a
plaintiff must show that [(1)] the employer’s nondiscrimi-
natory reason was dishonest; and [(2)] the employer’s true
reason was based on a discriminatory intent.’ ” Brown v. Ill.
Dep’t of Natural Res., 499 F.3d 675, 683 (7th Cir. 2007)
(quoting Perez v. Illinois, 488 F.3d 773, 777 (7th Cir. 2007)).
This can be done with either direct or indirect evidence. If
the plaintiff proceeds to offer indirect evidence, “the
plaintiff must show that the employer’s reason is not
credible or that the reason is factually baseless.” Id. (quot-
ing Perez, 488 F.3d 777-78). In addition, “ ’[the plaintiff]
18 No. 07-1800
must also provide evidence of at least an inference that the
real reason for [the adverse employment action] was
discriminatory.’ ” Id. (quoting Perez, 488 F.3d 777-78).
Furthermore, when a defendant has offered multiple non-
discriminatory reasons for its hiring decision, showing
that one of these reasons is pretextual is not enough,
although there may be circumstances where “multiple
grounds offered by the defendant . . . are so intertwined,
or the pretextual character of one of them so fishy and
suspicious, that the plaintiff could withstand summary
judgment.” Russell, 51 F.3d at 69-70. As part of her offer
of evidence of pretext, Fischer is permitted to look to
events occurring prior to the 300-day limitations date.
Davis, 368 F.3d at 786 n.4. Thus, Fischer’s time-barred
claims regarding Lewis’ and Sieverding’s promotions in
May 2004 to Directors of the Strategic Accounts and Central
Regions, respectively, are relevant.
With these governing principles in mind, we turn to
Fischer’s evidence of pretext. First, Fischer argues that
not only was she as qualified as Sieverding for the perma-
nent Central Region Director position, but that she was
in fact more qualified than Sieverding for this post. Fischer,
however, is unable to support this argument with respect
to the permanent Central Region Director position and
is only able to offer reasons why she was more qualified
than Lewis for the Strategic Accounts Region Director
position and more qualified than Sieverding for the acting
Central Region Director post. Defendant claims that
Sieverding was named to the permanent post based upon
his demonstrated ability and enthusiasm while serving
in the acting Director capacity. Regardless of whether
Fischer’s performance was superior to Sieverding’s at
the Bank, or whether Fischer was the superior candidate
No. 07-1800 19
for the acting Director position, Fischer has offered no
evidence to directly contest Sieverding’s performance while
serving in the acting capacity aside from Laura Rafferty’s
testimony that upon coming to the acting Director position,
Gamso described Sieverding as “practically clueless.” By
failing to offer any evidence beyond this, Fischer falls short
of clearing the high hurdle necessary to establish pretext
through reference to her own superior qualifications for the
position. As this Court has stated, “evidence of the appli-
cants’ competing qualifications does not constitute evi-
dence of pretext unless those differences are so favorable to
the plaintiff that there can be no dispute among reasonable
persons of impartial judgment that the plaintiff was clearly
better qualified for the position at issue.” Mlynczak v.
Bodman, 442 F.3d 1050, 1059-60 (7th Cir. 2006) (citing
Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002)).
Despite Fischer’s arguably superior qualifications to
Sieverding’s for the acting Director position, Fischer has
failed to establish that “no reasonable person” could have
chosen Sieverding over Fischer for his subsequent perma-
nent appointment to the post. This, however, does not end
the inquiry into pretext. The district court erred in appear-
ing to make such a showing mandatory, stating that Fischer
“must establish” the superiority of her credentials accord-
ing to this standard in order to show pretext, rather than
fully acknowledging that Fischer can establish pretext
through other direct or indirect evidence as well. We
thus turn to Fischer’s other arguments of pretext.
The most compelling evidence of pretext involves
Joseph Mendel’s role in the entire promotion process.
20 No. 07-1800
Fischer has offered testimony by Laura Rafferty3 that, if
found credible by a jury, would show that as early as
February 2004, Mendel had pre-ordained that Lewis
would have fast-track status to the Strategic Accounts
Director position and Sieverding was to be moved to the
Central Region. According to Rafferty, in February or
March 2004, before Lewis came to the Strategic Accounts
Region, Gary Gamso, the Central Region Director at the
time, informed her of Mendel’s intention to move
Sieverding out of the Strategic Accounts Region and
bring in Lewis to fill the Director position. According
to Rafferty, Gamso related to her that Mendel had re-
quested Sieverding be removed from the Strategic Ac-
counts Region, apparently due to performance concerns,
and that, since they had no other place to put him, were
going to move him into the Central Region. Gamso then
relayed to Rafferty that Mendel desired to bring Lewis
into the Strategic Accounts Region for 90 days, after
which, if he had a good relationship with the Bank, he
would be promoted to Director.4 Lewis’ streamlined path
3
Rafferty also served as the women’s spokesperson during
their meeting with Avanade’s CEO on April 11, 2005.
4
Defendant lodges a general hearsay objection to this evid-
ence being considered. Despite the double hearsay flavor of this
testimony, “[a] statement is not hearsay if . . . the statement is
offered against a party and is . . . a statement by the party’s
agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the
relationship.” Williams v. Pharmacia, Inc., 137 F.3d 944, 950 (7th
Cir. 1998) (quoting FED. R. EVID. 801(d)(2)(D)). We find that both
Mendel’s and Gamso’s statements appear to be related to
matters within the scope of their agency or employment, since
Mendel made the determination to hire Lewis (albeit with
(continued...)
No. 07-1800 21
to the Strategic Accounts Region Director position prior
to its posting is corroborated by the fact that in February,
Howard Kilman documented that Lewis was a “potential
[Director] for Joe [Mendel],” and that he needed to help
Lewis “understand the [opportunity].” Similarly, Mendel’s
alleged displeasure with Sieverding’s performance is cor-
roborated by Mendel’s statement to Fischer on May 26,
2004 that “Sieverding is not practice director material.”
Fischer is also able to offer evidence creating an inference
that Mendel’s actions were based on sex discrimination.
Defendant does not dispute that in both 2003 and 2004,
Mendel was dismissive of Fischer when she raised con-
cerns regarding male employees enjoying company-paid
dinners at a gentleman’s club. Fischer further asserts that
it was after raising this complaint that Mendel began
criticizing her people skills. In addition, according to
Fischer, when Mendel determined that Fischer and
Sieverding would share the duties of Strategic Accounts
Region Director, Mendel promoted Sieverding to a
Level 60, but after Fischer expressed concerns about this
inequality, only raised Fischer’s status to Level 55.
The degree to which this evidence regarding Mendel is
material to Fischer’s timely claim, however, depends upon
whether Fischer can establish that Mendel’s allegedly
4
(...continued)
Kiman’s approval) and Gamso, along with Evans, was respon-
sible for hiring Sieverding to the acting Central Region Director
position. As a result, we will consider this evidence on this
appeal. See Schindler v. Joseph C. Seiler & Synthes Spine Co., L.P.,
474 F.3d 1008, 1010 (7th Cir. 2007) (“In order to defeat a mo-
tion for summary judgment, a plaintiff must present admissible
evidence that raises a genuine issue of material fact.”).
22 No. 07-1800
discriminatory actions implicate the reasons proffered by
Defendant as to why Gamso and Evans named Sieverding
to the acting and permanent Central Region Director
positions. We find Fischer has provided sufficient evid-
ence such that a reasonable jury could find that Defen-
dant’s legitimate, non-discriminatory reasons for hiring
Sieverding over Fischer were pretextual. First, Gamso
and Evans jointly engaged in soliciting Sieverding and
determining that he should be appointed to the acting
Director role, and based on Rafferty’s testimony, Gamso
was aware of Mendel’s desire to move Sieverding to the
Central Region due to performance concerns. Thus,
Gamso’s awareness of Mendel’s concerns and motiva-
tions regarding Sieverding is sufficient to raise a material
question of fact as to whether Defendant’s proffered
reason for soliciting Sieverding for the acting
position—that they felt he was qualified and capable of ful-
filling the Director responsibilities—was pretextual.
Furthermore, Mendel’s prior statement to Gamso, as well
as his statement to Plaintiff that “Sieverding is not practice
director material,” is at odds with the allegedly good
review Mendel gave regarding Sieverding as part of the
hiring process for the acting Director position. Further-
more, Mendel’s influence went beyond Sieverding’s
initial transfer to the Central Region and extended to
Sieverding’s appointment to the permanent Central
Region Director role, since Evans sought Mendel’s ap-
proval of this promotion.
As an additional matter, Evans’ proffered reason for
naming Sieverding rather than Fischer to the Central
Region Director position also demands scrutiny. On
appeal, Fischer launches a broad attack at declarations
offered by seven witnesses who had been previously
No. 07-1800 23
deposed by Fischer’s counsel.5 Fischer claims that these
declarations included statements that were new, contra-
dictory, and beyond the testimony given at the deposi-
tions and thus reveal a concocted sham defense on
Avanade’s part requiring reversal of summary judgment.
This includes a specific charge against Evans’ testimony.
At his deposition on April 14, 2006, Evans was asked
why Fischer had not received the acting Central Region
Director position. Evans simply replied, “I appointed
Joe Sieverding to the role.” Then, on June 12, 2006, the same
date Avanade filed its motion for summary judgment,
Evans submitted a new declaration, purporting to explain
why Fischer would not have received the acting Director
position even if she had expressed interest in it. In the
declaration, Evans stated that he did not know if Fischer
was interested, or if her workload would allow a transition
to the Central Region. Additionally, Evans declared that it
was his understanding that Sieverding had more experi-
ence in managing large projects.
5
Fischer also raises other procedural concerns with respect to
Defendant’s motion for summary judgment that do not carry
the day. First, Fischer fails to develop any argument or cite
any authority regarding her throwaway charge that De-
fendant misguided the district court by presenting a Statement
of Material Facts on summary judgment which purported to
represent the entire record. Fischer’s second claim, that De-
fendant was improperly permitted to rely upon two declarations
from witnesses who had not been disclosed during discovery
also fails, since Fischer has failed to show how the district
court’s decision that Defendant could rely on these declara-
tions amounted to an abuse of discretion. See Searls v. Glasser,
64 F.3d 1061, 1068 (7th Cir. 1995) (“Because the district court is
far better situated to pass on discovery matters, we review its
discovery decisions for an abuse of discretion.”).
24 No. 07-1800
This Court has stated that “[a]ffidavits, . . . when offered
to contradict the affiant’s deposition are so lacking in
credibility as to be entitled to zero weight in sum-
mary judgment proceedings unless the affiant gives a
plausible explanation for the discrepancy.” Beckel v. Wal-
Mart Assocs., Inc., 301 F.3d 621, 623 (7th Cir. 2002). Accord-
ingly, Fischer argues that Evans’ declaration contradicts his
earlier deposition testimony on this issue. Defendant in
contrast, argues that these statements are not contra-
dictory, and observes that “where the deposition testi-
mony is ambiguous or incomplete, . . . the witness may
legitimately clarify or expand upon that testimony by
way of an affidavit.” Shepherd v. Slater Steels Corp., 168
F.3d 998, 1007 (7th Cir. 1999). According to Defendant,
Evans’ declaration statement answers a hypothetical
question not asked at the deposition—whether Fischer or
Sieverding would have been more qualified for the acting
Director position, had Fischer in fact applied for the job.
We find that Evans’ more fulsome testimony in his
declaration cannot be said to contradict his earlier, curt
response at his deposition.6 However, Defendant’s fail-
ure to fully address until Evans’ declaration why Fischer
would not have received the position does raise credi-
bility concerns. See Wilson v. AM General Corp, 167 F.3d
1114, 1121 (7th Cir. 1999) (affirming denial of judgment
notwithstanding the verdict with respect to jury’s finding
of pretext, based in part on jury’s credibility determina-
6
Fischer lodges this same argument with respect to two mat-
ters to which Mendel testified in both his deposition and
subsequent declaration. Because there is already compelling
evidence of pretext as it relates to Mendel, we do not address
this charge in greater detail.
No. 07-1800 25
tion regarding Defendant’s failure to disclose reason for
termination until discovery, despite being directly asked
at time of termination); see also Lindahl v. Air France, 930
F.2d 1434, 1438 (9th Cir. 1991) (genuine issue of material
fact with respect to pretext exists when specific reason
for promoting one employee over the plaintiff was not
disclosed until after litigation, which “might suggest … a
later fabrication”). Fischer provided Defendant with at least
two opportunities prior to the submission of Evans’
declaration to explain why she was not named to the acting
Director position. In late May, following Lewis’ and
Sieverding’s moves to their respective Director positions,
Fischer approached Human Resources Generalist Tracy
Spielmann about whether these promotion decisions
were “all set up.” Spielmann simply responded, “Oh, no,”
failing to provide Fischer with any further clarification
regarding Defendant’s hiring decisions. Then, at Evans’
deposition, although he provided reasons for selecting
Sieverding, his only response when directly asked why
Fischer did not receive the acting Director position was,
“I appointed Joe Sieverding to the role.” While Evans’
more complete declaration statement is not inconsistent
with Defendant’s prior responses, this late justification
for why Fischer would not have been hired, provided
at the eleventh hour in conjunction with Defendant’s
motion for summary judgment, raises a genuine issue of
material fact as to whether this justification is a later
fabrication on Defendant’s part. Furthermore, the first
reason Evans offers in his declaration for not hiring
Fischer—that Evans did not know if she was interested
in leaving her current position—borders on the illogical
if Evans is answering, as Defendant maintains, why he
would not have hired Fischer even if she had in fact
expressed interest in the position.
26 No. 07-1800
For these reasons, we find that Fischer has presented
sufficient evidence to raise a genuine issue of material
fact as to whether Defendant’s promotion of Sieverding
to the acting Central Region Director position was
pretextual. Furthermore, with respect to Sieverding’s
appointment to the permanent Central Region Director
post, the individuals with authority over this decision
were largely the same, seeing as Evans made the decision,
with Mendel’s approval, to name Sieverding to the perma-
nent post. Additionally, here too, when Evans was asked
at his deposition why Fischer was not awarded the perma-
nent position, Evans responded, “Joe Sieverding was
appointed to the role.” It was not until Evans’ declaration
that Defendant disclosed its justification for naming
Sieverding to the permanent position, namely, Sieverding’s
performance in the acting capacity. Based on the evidence
offered by Defendant, Sieverding’s appointment to the
permanent position can be seen as the last step in a scheme
to fast-track Lewis into the Strategic Accounts Region’s
Director position and switch Sieverding into the Central
Region, leaving Fischer without a Director role. While
this theory largely depends upon credibility determina-
tions, most notably regarding Laura Rafferty’s testimony
and Defendant’s eleventh hour justifications, credibility
is not an issue to be resolved at summary judgment, but
is one reserved for the jury. See Payne v. Pauley, 337 F.3d
767, 770 (7th Cir. 2003) (“On summary judgment a court
may not make credibility determinations”). If Fischer’s
evidence is deemed credible by a jury, Sieverding’s ap-
pointment to the permanent Central Region Director
position becomes sufficiently intertwined with the
earlier promotions of Lewis and Sieverding that the
evidence of pretext from Fischer’s time-barred claims
would similarly support a finding that the reason offered
No. 07-1800 27
for Sieverding’s promotion to the permanent post was
also pretextual. See Russell, 51 F.3d at 70 (“There may be
cases in which the multiple grounds offered by the defen-
dant for the adverse action of which the plaintiff com-
plains are so intertwined, or the pretextual character of
one of them so fishy and suspicious, that the plaintiff
could withstand summary judgment.”). Accordingly,
because Fischer has raised a genuine issue of material fact
as to whether Defendant’s proffered non-discriminatory
reason for naming Sieverding to the permanent Central
Region Director position was pretextual, we reverse the
grant of summary judgment on this claim.
C. Retaliation in the Form of Constructive Discharge
Fischer also appeals the district court’s grant of sum-
mary judgment on her claim that Defendant, in violation
of Title VII, constructively discharged her in retaliation
for her complaints of sex discrimination. See Sitar v. Ind.
DOT, 344 F.3d 720, 727 (7th Cir. 2003) (citing 42 U.S.C.
§ 2000e-3(a)); see also Williams v. Waste Mgmt. of Ill., Inc.,
361 F.3d 1021, 1032 (7th Cir. 2004) (discussing how con-
structive discharge can serve as the adverse employment
action in a retaliation claim). This too can be proved
through either a “direct method” or “indirect method.” See
Phelan v. Cook County, 463 F.3d 773, 787-88 (7th Cir. 2006).
Unlike Fischer’s failure to promote claim, here she pro-
ceeds under the direct method. Under this approach,
summary judgment must be denied if Fischer presents
“direct evidence . . . that [s]he engaged in protected
activity . . . and as a result suffered the adverse employ-
ment action of which [s]he complains.” Id. at 787 (quoting
Stone v. City of Indianapolis Public Utilities Division, 281 F.3d
640, 644 (7th Cir. 2002)). Summary judgment may still be
28 No. 07-1800
granted however, if Defendant then “presents unrebutted
evidence that he would have taken the adverse employ-
ment action against the plaintiff even if he had no retalia-
tory motive.” Id. at 787-88 (quoting Stone, 281 F.3d at 644).
In order to show a retaliatory motive on Defendant’s part
under the direct method, Plaintiff can “present[ ] sufficient
circumstantial evidence such that a jury could infer
retaliation.” Id. at 788 (citing Culver v. Gorman & Co., 416
F.3d 540, 546 (2005)).
Here, Fischer claims that she engaged in protected
activity that led to her being constructively discharged
from Avanade.7 Constructive discharge does constitute
an adverse employment action and is deemed to have
occurred when “the plaintiff . . . show[s] that she was
7
In its brief, Defendant also addresses whether its specific,
allegedly retaliatory acts against Fischer, each taken on its own,
merit a separate finding of retaliation. Fischer’s brief however,
is clear that she is appealing the lower court’s grant of summary
judgment only on Fischer’s claim that Defendant retaliated
against her in the form of constructive discharge. For example,
Fischer’s “Statement of Issues Presented for Review” is specifi-
cally limited to the already discussed sex discrimination claim
and her claim “that Defendant constructively discharged
Fischer in retaliation for complaining of sex discrimination.”
Similarly, the “Conclusion” of Fischer’s brief, with respect to her
retaliation claim, states only that, “A reasonable jury could
also find that Avanade retaliated against Fischer in response
to her complaints of sex discrimination by impairing her terms
and conditions of employment in a manner that compelled
her to resign.” Because Fischer has declined to argue on appeal
that any of these individual incidents constitute discrete,
cognizable, incidents of unlawful retaliation, we decline to
take up that argument sua sponte.
No. 07-1800 29
forced to resign because her working conditions, from the
standpoint of the reasonable employee, had become
unbearable.” EEOC v. Univ. of Chicago Hosps., 276 F.3d 326,
331 (7th Cir. 2002). Constructive discharge can take on
two different forms. The district court analyzed Fischer’s
claim under the first form, where an employee resigns
due to alleged discriminatory harassment. Id. Under this
approach, “we require the plaintiff to demonstrate a
discriminatory work environment ‘even more egregious
than the high standard for hostile work environment.’ ”
Id. at 331-32 (quoting Tutman v. WBBM-TV, Inc., 209 F.3d
1044, 1050 (7th Cir. 2000), cert. denied, 531 U.S. 1078, 148
L. Ed. 2d 675, 121 S. Ct. 777 (2001)). Fischer contends that
the second form is more fitting to her claim—that, “[w]hen
an employer acts in a manner so as to have com-
municated to a reasonable employee that she will be
terminated, and the plaintiff employee resigns, the em-
ployer’s conduct may amount to constructive discharge.”
Id. at 332. In other words, constructive discharge also
occurs where, based on an employers actions, “ ’the
handwriting [was] on the wall’ and the axe was about to
fall.” Id. (quoting Lindale v. Tokheim Corp., 145 F.3d 953, 956
(7th Cir. 1998)).
The first matter to address is whether Fischer engaged
in “statutorily protected activity.” An employer cannot
discriminate against an employee for voicing opposition
to employment practices deemed unlawful under
Title VII, Worth v. Tyer, 276 F.3d 249, 265 (7th Cir. 2001),
but at the same time, “the [employee’s] complaint must
indicate the discrimination occurred because of sex, race,
national origin, or some other protected class.” Tomanovich
v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006);
Sitar, 344 F.3d at 727 (“Although an employee need not
30 No. 07-1800
use the magic words ‘sex’ or ‘gender discrimination’ to
bring her speech within Title VII’s retaliation protec-
tions, ‘she has to at least say something to indicate her
[gender] is an issue.’ ”) (quoting Miller v. Am. Family
Mutual Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000)). Here,
Defendant concedes that Fischer’s participation in the
April 11, 2005 conference call with Avanade’s CEO and
her filing of an EEOC charge on July 21, 2005 con-
stituted “protected activity.” Fischer contends however,
that her complaints in 2003 and 2004 to Mendel regarding
“morale building” dinners at a gentleman’s club, as well
as her questioning Human Resources Specialist Spielmann
as to whether Lewis’ and Sieverding’s promotions were
“all set up,” also constitute statutorily protected activity.
We need not decide this issue, because regardless of
whether Fischer’s first statutorily protected act occurred
in 2003 or April 11, 2005, Fischer has not shown that
Defendant’s alleged response to these actions indicated that
the “axe was about to fall” when Fischer submitted
her resignation on September 30, 2005.
Fischer points to a series of events that she claims reflect
that “the handwriting was on the wall” regarding
Avanade’s intent to terminate her: 1) the audit of her
cellular and broadband expenses following the filing of
her EEOC charge; 2) Director of Human Resources
Friendman asking Fischer, after she filed her EEOC charge,
“What is it that you are looking for . . . a new role within
Avanade, a transfer to another region, money?”; 3) General
Manager Slattery’s August 2005 negative assessment of
Fischer’s participation on a leadership team; 4) what
Fischer expected to be a forthcoming, negative annual
review from Practice Director Lewis; 5) Defendant requir-
ing Fischer to either move to Chicago to maintain her
current position, or else transfer to another region; and
No. 07-1800 31
6) only offering Fischer one transfer option—to government
opportunities, a historically difficult line of work. Fischer
then places these incidents against the backdrop of an
alleged environment at Avanade where women are dis-
criminated against.
Although Fischer has set forth a long list of incidents
which she claims support a finding of constructive dis-
charge, we cannot say that these incidents, when viewed
in the aggregate, would cause a reasonable person to
believe that the writing was on the wall regarding
Fischer’s future at Avanade. We reach this conclusion
despite the fact that, as Fischer correctly points out, the
Supreme Court in Burlington N. & Santa Fe Ry. Co. v.
White, 126 S.Ct. 2405, 2415-16 (2006), did not limit what
constitutes a materially adverse employment action to a
specified list of actions, as the district court did below.
Instead, under Burlington Northern, the question is
whether, when considering the particular circumstances
and context of this case, a reasonable person in the plain-
tiff’s position would have found the action materially
adverse. Id. The fact however, that under such a stand-
ard this Court may consider an employer’s exploitation
of a particular employee’s vulnerabilities, see Washington
v. Ill. Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir. 2005),
does not mean that exploitation of that kind has occurred
here. Fischer fails to point to any details, aside from
perhaps her prior negative experience working in gov-
ernment opportunities, that make any of the incidents
she references particularly unique or egregious to her
circumstances. Even with respect to her transfer how-
ever, this cannot be said to be materially adverse when
the government opportunities position was offered as an
alternative to participation in a department-wide restruc-
32 No. 07-1800
turing, and the new position allowed Fischer to maintain
her current title, salary, benefits, and primary responsi-
bilities.
We are mindful of the fact that the incidents described
by Fischer—an audit, negative performance reviews, and
a requirement to either relocate or transfer departments—
are not circumstances an employee would wish upon
herself. A look at cases where evidence of construc-
tive discharge has been found to exist however, reveals
that the incidents Fischer references are insufficient to
establish that her “working conditions . . . had become
unbearable.” In University of Chicago Hospitals for ex-
ample, this Court found that “the writing was on the
wall” when, after the employee had been warned of
her employer’s intention to terminate her and having
been told that a mistake on her part was “the last straw,”
the employee arrived at work after vacation only to find
her desk packed up, boxes piled up, and her office being
used for storage. 276 F.3d at 332. Similarly, in Neal v.
Honeywell, Inc., this Court affirmed a jury’s finding of
constructive discharge when the plaintiff suffered a
drastic reduction in duties following her whistle-
blowing action, was made to feel like a “traitor” by her
supervisor for this action, and could not be assured that she
would be kept safe at work from the person she had ratted
out. 191 F.3d 827, 830-31 (7th Cir. 1999). Here, despite the
audit and the negative assessment by Slattery, unlike
University of Chicago Hospitals, Fischer has not pointed to
any evidence indicating that there had even been so much
as a whisper on Avanade’s part of a desire to terminate her.
To the contrary, when Fischer decided to opt out of the
relocation requirement for the restructured U.S. Delivery
Center, Slattery and Lewis assisted Fischer in locating an
No. 07-1800 33
alternative PM position. Moreover, unlike Neal, no reduc-
tion in duties occurred. Rather, Fischer, after declining to
relocate, was given a parallel position in a different depart-
ment where she maintained the same title, salary, benefits,
and primary responsibilities.
That being said, Fischer could perhaps defeat summary
judgment on this claim if she were able to show that,
despite seemingly maintaining her compensation, posi-
tion, and responsibilities on paper, her transfer did in fact
set her on a dead-end path towards termination. This
indeed is what Fischer argues, contending that working
in government opportunities would prevent her from
meeting her performance goals and thus lead to her
discharge. There is insufficient evidence however, to
support Fischer’s contention. All Fischer points to is
Avanade’s struggle in government engagements in 2002,
without any evidence concerning Avanade’s status in
this area in 2005. Furthermore, Fischer did not provide
ample time to test her hypothesis regarding the dead-end
nature of her new position, since she tendered her resigna-
tion on September 30, 2005, merely a few weeks after
accepting the transfer. Because Fischer is unable to
show that she was constructively discharged, there is no
need for this Court to address the issue of retaliatory
motive, and we affirm the grant of summary judgment
for Defendant on this claim.
III. Conclusion
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment on Plaintiff’s sex
discrimination claim, and AFFIRM the grant of summary
judgment for Plaintiff’s claim of retaliation in the form of
34 No. 07-1800
constructive discharge. Accordingly, we REMAND to the
district court for further proceedings consistent with
this opinion.
USCA-02-C-0072—3-14-08