Hall, Shellee J. v. Forest River Inc ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2653
SHELLEE J. HALL,
Plaintiff-Appellant,
v.
FOREST RIVER, INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 04 C 0259—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED MAY 14, 2008—DECIDED JULY 30, 2008
____________
Before BAUER, FLAUM, and MANION, Circuit Judges.
MANION, Circuit Judge. Shellee Hall sued her former
employer, Forest River, Inc., for sex discrimination, con-
structive discharge, and retaliation, under Title VII. The
district court granted Forest River summary judgment
on the constructive discharge claim and, following the
close of Hall’s case-in-chief, granted Forest River judg-
ment as a matter of law on the retaliation claim. The
sex discrimination claim was submitted to a jury, which
returned a verdict in favor of Forest River. Hall appeals,
challenging only the district court’s decision granting
2 No. 07-2653
Forest River judgment as a matter of law on her retalia-
tion claim. We affirm.
I.
Forest River manufactures recreational vehicles. Hall
began working for Forest River in January 2000 as a
quality control inspector in the Quality Assurance De-
partment in Forest River’s Goshen, Indiana facility. The
Quality Assurance Department is responsible for ensuring
that Forest River’s products meet certain standards,
including the Recreational Vehicle Industry Association
standards. Inspectors work on a single production line
(or on segments of the line) and are responsible for
spotting defects. In addition to inspectors, the Quality
Assurance Department employs supervisors known as
auditors. Auditors travel from plant to plant and super-
vise multiple inspectors. John Blair was the manager of
Forest River’s Quality Assurance Department.
On several occasions, Hall approached Blair and ex-
pressed an interest in being promoted to the auditor
position. Blair assured Hall that she would be con-
sidered for any vacant position, along with other inspec-
tors. On March 11, 2002, Blair promoted Christopher
Hare from inspector to auditor. After Blair promoted
Hare, Hall “from time to time reaffirm[ed] her desire to
become an auditor,” and Blair assured Hall that Forest
River would consider her for promotion to auditor,
“as well as the other folks that have put their names in.”
In January 2002, Hall transferred to Forest River’s plant
in Topeka, Indiana. While at the Topeka plant, a male co-
worker named John Quake allegedly sexually harassed
Hall and another Forest River employee named Monica
No. 07-2653 3
Horn. On August 7, 2002, Horn resigned from Forest
River. After Horn resigned, Hall called Blair and asked
to be transferred. Blair initially said that he would think
about it, but Hall called Blair back later and again re-
quested a transfer. As she explained in her trial testimony:
I explained to him that [Horn] had been there and
everything that happened to [Horn] and that I told
[Horn] I would support her if she went further
with this, and I told [Blair] that I needed to get out
of that plant because it was going to get heated. I
didn’t know exactly what was going to go down.
In response to Hall’s concerns, Blair allegedly told her
“not to stick [her] neck out for anybody.” Blair then told
Hall he would work on the transfer and within a week,
on August 16, Forest River had processed a transfer for
Hall from the Topeka plant to the Elkhart, Indiana
plant, effective August 19, 2002.
After her transfer to the Elkhart plant, on August 22,
2002, Hall spoke with Forest River’s human resources
director Jeffrey Rowe about Quake’s alleged harassment
of her and Horn. Hall met with Rowe the next day and
during this meeting detailed Quake’s conduct toward
her and Horn. During her conversations with Rowe,
Hall stated that she intended to stand behind and sup-
port Horn. Rowe instructed Hall “not to talk to anybody
about the situation.”
Around the same time that Forest River was investigating
Horn and Hall’s complaints, Forest River processed a
payroll-change notice form by which Forest River pro-
moted Leo Akins to the position of auditor. The payroll
change form was dated August 23, 2002, and was ef-
fective August 26, 2002. Rowe had stated in a letter to the
4 No. 07-2653
EEOC that “Leo Akins was promoted from quality con-
trol inspector to auditor on 8/26/02.” At trial, Rowe
testified that Forest River had actually decided to
promote Akins in late July or early August, when it
learned that one of its current auditors intended to re-
turn to military service in the fall, but the promotion
was not official until August 26, 2002. Rowe explained at
trial that he had listed August 26, 2002, as the date Leo
Akins was promoted because “the EEOC specifically
[said] they wanted to know when they began working as
an auditor.” Rowe, the HR director, testified about the
timing of the promotion. But Blair, not Rowe, was the
decision-maker in promoting Akins.
At trial, Blair explained the qualities he believed impor-
tant for auditors and why he chose Akins over Hall.
Specifically, Blair testified that auditors would have to
be “self-starter[s]”; they would have to “move from plant
to plant”; and would “have to be very conscientious of
their work.” Also, auditors must “be able to inspect and
document.” Blair added that
[t]hey have to be able to keep production and quality
separated, and they have to be able to . . . disarm
confrontation. They have to be able to talk to plant
managers. If there’s a heated discussion, they need
to calm that down and find the root cause and cor-
rect . . . the problem, among other things.
Blair then testified that he promoted Akins because “[h]e
could diffuse conflict in a heartbeat. He was very good
at that. He came from another corporation that he was a
leader in inspection. He had the background and he had
the ability, and I felt he was the best person for the job at
the time.” Blair added that he believed Akins was best-
qualified for the auditor position because Akins
No. 07-2653 5
was a leader . . . a self-starter. I could trust him to be
where he said he would be or do what he said he
was going to do or what I needed done. He was very
good at resolving conflict, which I believe that’s a big
part of an auditor’s job. Very technically sound, and
I believed he was the best person for the job at the time.
Blair further testified that while Hall was a very good
inspector, she failed to separate “production” from
“quality” and there were a number of times when she
worked on the units she was inspecting. Blair explained
that Forest River “need[ed] a separation between produc-
tion and quality” and that failure to keep the two sepa-
rate “hinders your objectivity towards the job you’re
hired to do” as an inspector. Blair also testified that an
auditor needed to keep production and quality separate.
In early October, Hall heard a rumor that one of the
auditors was leaving Forest River for the military. Hall
called Blair and expressed interest in this soon-to-be
vacant auditor position. According to Hall, Blair told her
he would consider her for the position and did not tell
her that he had already promoted Akins. Throughout
the rest of October, Hall claimed that she spoke with
Blair at least two times per week about the auditor’s
position and each time Blair told Hall he had not made
up his mind. In late October or early November, Hall
learned from Akins that he had been promoted when
Akins showed up at Hall’s facility to help her with a
quality control problem. Hall claims that Blair told her
that Akins was selected because Hall was a woman, but
as noted above, the jury rejected Hall’s sex discrimina-
tion claim.
After being passed over for a promotion, Hall quit and
then sued Forest River under Title VII, alleging sex dis-
6 No. 07-2653
crimination in Forest River’s failure to promote her,
constructive discharge, and retaliation for complaining
about Quake’s sexual harassment of her and Horn. The
district court granted Forest River summary judgment on
Hall’s constructive discharge claim and the remaining
claims proceeded to trial. After the close of Hall’s case-in-
chief, Forest River moved for judgment as a matter of law
on the sex discrimination and retaliation claims. The
district court granted Forest River judgment as a matter
of law on Hall’s retaliation claim, but denied Forest
River’s motion on her sex discrimination claim. A jury
then returned a verdict in favor of Forest River on Hall’s
sex discrimination claim. Hall appeals, challenging
only the district court’s decision granting Forest River
judgment as a matter of law on her retaliation claim.
II.
On appeal, Hall argues that the district court erred in
granting Forest River judgment as a matter law on her
retaliation claim. “This court reviews de novo a district
court’s grant of judgment as a matter of law.” Staples v.
Pepsi-Cola Gen. Bottlers, Inc., 312 F.3d 294, 299 (7th Cir.
2002). Judgment as a matter of law is appropriate if
“there is no legally sufficient evidentiary basis for a
reasonable jury to find for [a] party on [an] issue . . . .” Fed.
R. Civ. P. 50(a)(1). In other words, the question is
simply whether the evidence as a whole, when com-
bined with all reasonable inferences permissibly drawn
from that evidence, is sufficient to allow a reasonable
jury to find in favor of the plaintiff. Hossack v. Floor Cover-
ing Assoc. of Joliet, Inc., 492 F.3d 853, 859 (7th Cir. 2007).
“[A] mere scintilla” of evidence, however, will not
No. 07-2653 7
suffice. Walker v. Bd. of Regents of the Univ. of Wisc. Sys., 410
F.3d 387, 393 (7th Cir. 2005).
Hall claims that the totality of the evidence she pre-
sented at trial was sufficient to avoid judgment as a matter
of law on her retaliation claim. To succeed on a retaliation
claim, Hall must present sufficient evidence “(1) that she
opposed an unlawful employment practice; (2) that she
suffered an adverse employment action; and (3) that the
adverse employment action was caused by her opposi-
tion to the unlawful employment practice.” David v.
Caterpillar, Inc., 324 F.3d 851, 858 (7th Cir. 2003).
The parties agree that Hall stated her opposition to
an unlawful employment practice by complaining about
Quake’s alleged harassment of her and Horn. Likewise,
the parties agree that Forest River’s decision not to
promote Hall constitutes an adverse employment action.
The only issue then is whether Hall presented suf-
ficient evidence of causation to reach a jury.
Hall claims she did. In support of her position, Hall
points to the fact that she had worked as an inspector
for thirty-two months, while Akins, who had received
the promotion and who had not complained about
sexual harassment, had only worked as an inspector for
sixteen months. Years of experience, however, are not
necessarily determinative of qualifications for a promo-
tion. See Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1141-
42 (7th Cir. 1998) (upholding grant of summary judg-
ment to an employer on plaintiff’s discrimination claim
where the plaintiff had more seniority but was passed over
for a position because the less-senior employee had
superior qualifications for the position). In this case,
Hall did not present any evidence that longevity equates
to superior qualifications or that Forest River promotes on
a basis of seniority. In fact, the record indicates that
8 No. 07-2653
longevity was not a factor in promotions. Specifically,
the record shows that Hall began working for Forest
River in January 2000, and in March 2002 Forest River
promoted Chris Hare to the auditor position over Hall,
even though Hare had only been working as an inspector
since November 2001. Hare’s promotion in March 2002
occurred months before Hall complained in August 2002
about Quake’s alleged sexual harassment and thus
could not be retaliatory. Rather, Hall’s failure to be pro-
moted in March 2002, at time when she had approx-
imately twenty-six months of experience to Hare’s four
months of experience, negates any possible inference that
the company believed that Hall’s longevity with the
company made her more qualified for a promotion than
other inspectors. See Hancock v. Potter, 07-1589, *2, 4-5 (7th
Cir. 2008) (holding that the plaintiff did not present
sufficient evidence that her employer had retaliated
against her by not recommending her for a management
training program, where the employer had also not recom-
mended the plaintiff for the training program several
months before the plaintiff had expressed opposition to
an unlawful employment practice). Federal anti-discrimi-
nation laws also were “not intended to legislate sen-
iority rights where none exist in the contract of employ-
ment.” Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1217
(7th Cir. 1985). Accordingly, the fact that Hall had six-
teen more months of experience than Akins is insuf-
ficient to support a jury finding of retaliation.
Moreover, at trial, when asked on cross-examination
whether Akins was less qualified, Hall responded “No,
I can’t say that.” And when asked whether she could
say that she was as qualified as Akins, Hall replied: “No.”
Hall points out that she had also stated that she believed
No. 07-2653 9
that she was just as qualified as Mr. Akins. However, an
employee’s own subjective belief that she is as qualified
or more qualified than another applicant is insufficient.
Nichols v. Southern Ill. Univ.-Edwardsville, 510 F.3d 772,
784 (7th Cir. 2007). “We have repeatedly stated . . . that
plaintiffs must offer more than mere self-serving ap-
praisals.” Id. See also, Dunn v. Nordstrom, Inc., 260 F.3d 778,
787 (7th Cir. 2001) (stating that the plaintiff “must present
more than his own, subjective self-appraisal to create a
genuine issue of fact”). Thus, Hall’s testimony is insuf-
ficient to create an inference of retaliation.
Forest River believes this testimony ends the case,
arguing that to reach the jury, Hall needed to present
evidence that Akins “was not better qualified.” Without
such evidence, Forest River posits, Hall could not pre-
sent a prima facie case of retaliation.
This court has held in the failure-to-promote context
that to establish a prima facie case of discrimination
under the indirect method of proof, i.e., the McDonnell
Douglas method, that, among other things, a plaintiff
must establish “the employer granted the promotion to
someone outside of the protected group who was not
better qualified than the plaintiff.” Grayson v. City of
Chicago, 317 F.3d 745, 748 (7th Cir. 2003). However, as
we have explained on several occasions, once evidence
has been presented at trial, the burden-shifting of the
McDonnell Douglas method falls away, and the question is
simply whether that evidence is sufficient to allow a
reasonable jury to find in favor of the plaintiff. Shank v.
Kelly-Springfield Tire Co., 128 F.3d 474, 478 (7th Cir. 1997)
(“We must assess the evidence in its entirety. After com-
pletion of trial, the prima facie case requirement falls
away and the sole remaining issue is whether age was a
10 No. 07-2653
determining factor in the termination.”). Thus, at this
stage, Hall’s failure to establish the prima facie case
required under the indirect method is not dispositive.1
Of course, Hall must still present sufficient evidence
of retaliation to reach a jury, but, as noted above, this
requires Hall to present sufficient evidence “(1) that she
opposed an unlawful employment practice; (2) that she
suffered an adverse employment action; and (3) that the
adverse employment action was caused by her opposi-
tion to the unlawful employment practice.” David v.
Caterpillar, Inc., 324 F.3d 851, 858 (7th Cir. 2003). Hall
need not establish that Akins was not better qualified to
succeed on a retaliation claim.
1
In arguing that Hall cannot reach the jury without estab-
lishing a “prima facie case,” Forest River wrongly equates two
distinct meanings of “prima facie case.” On the one hand,
“prima facie case” means those elements of a cause of action a
plaintiff must establish to prevail. However, in the discrimina-
tion context, the phrase “prima facie case” is more typically
used to mean the initial burden the plaintiff must satisfy
under the McDonnell Douglas indirect burden-shifting method
of proof. It is in the latter context that our case law has stated
a plaintiff in a failure to promote case must present evidence
that the employer granted the promotion to someone outside
the protected group who was not better qualified. Absent
such proof, however, a plaintiff may still establish a “prima
facie case” of retaliation under the direct method. In other
words, a “prima facie case” of retaliation (meaning the ele-
ments of a cause of action a plaintiff must establish to prevail)
may be proven by either the direct or the indirect (i.e.,
McDonnell Douglas) method, and each method has its own
prima facie case. See Sylvester v. SOS Children’s Villages Ill., Inc.,
453 F.3d 900, 902 (7th Cir. 2006).
No. 07-2653 11
Forest River responds that Title VII only prohibits
discrimination and retaliation and does not give those
who oppose an unlawful employment practice better
rights, which would be the case if employees have a
right to be promoted over someone who is better quali-
fied. See Appellee’s Br. at 9. We are not saying, however,
that Forest River must promote someone because they
opposed unlawful employment practices; what we are
saying, though, is that Forest River cannot deny some-
one a promotion because they opposed an unlawful em-
ployment practice. In most cases, employers promote the
best qualified employee, and if that practice results in
someone being promoted over an individual who had
objected to an unlawful employment practice, there is
no basis for a retaliation claim. However, if an employee
could show that he would have been promoted even
though another candidate was better qualified, but that
the employer did not promote him because he opposed
an unlawful employment practice, the employee can
establish a retaliation claim.
The question then remains whether Hall presented
sufficient evidence of retaliation, or more specifically,
causation, to reach a jury. We have already rejected
Hall’s claim that her greater seniority as an inspector,
when compared to Akins, is evidence of retaliation be-
cause there is no evidence that Forest River promotes
based on longevity as an inspector. See supra at 7-8. Hall
also claims the timing of the promotion decision is suffi-
cient evidence of causation to reach a jury. Forest River
promoted Akins on August 26, 2002, and several times
shortly before then (August 16, 22, and 23), Hall had told
Rowe and Blair she would support Horn in her sexual
harassment complaint. However, the mere fact that one
12 No. 07-2653
event preceded another does not prove causation. Burks
v. Wisconsin Dept. of Trans., 464 F.3d 744, 758-59 (7th Cir.
2006). This general principle is especially true when the
claimed retaliation is the failure to promote, because the
timing of a promotion is controlled by current or forth-
coming vacancies which are beyond an employer’s con-
trol, unlike firing or other types of retaliatory actions
where the timing is in the hands of the employer. Thus,
a plaintiff must do more than merely point to the
temporal link; rather, the plaintiff must put forth other
evidence that suggests that the protected activities were
related to the employer’s decision. Id.Hall fails in this regard as well. None of the evidence to
which Hall points indicates that Hall’s complaints about
Quake and her support of Horn were related to Forest
River’s promotion of Akins. For instance, Hall claims
that “Blair and Rowe’s repeated inquiries to Hall (four
times between them) about whether she intended to
support Horn” are evidence of causation. Appellant’s
Reply Br. at 5. While Hall testified that Rowe had asked
her if she would stand behind Horn, Rowe was not a
decision-maker and therefore his inquiry about whether
Hall intended to support Horn is irrelevant to the ques-
tion of whether Blair retaliated against Hall. See Sembos v.
Philips Comp., 376 F.3d 696, 703 n.6 (7th Cir. 2004). Re-
garding Blair, Hall fails to cite any record evidence in-
dicating that Blair likewise asked her if she intended to
support Horn. Specifically, while Hall cites her own trial
testimony about Blair’s involvement in the investigation,
in that testimony she did not claim that Blair had asked
her whether she intended to support Horn. See Appel-
lant’s Br. at 9-10. Rather, the record citations Hall points to
merely have her testifying that Blair told her that Rowe
No. 07-2653 13
would be contacting her about the Horn incident and then
asking her what she intended to tell Rowe. Then, after the
meeting with Rowe, Hall testified that Blair asked her
what the meeting was and what she had told Rowe.2
There is nothing impermissible or suspicious about a
supervisor asking an employee for details about a claimed
incident of sexual harassment that occurred within his
department, and this testimony does not indicate that
Blair was questioning or challenging Hall about her
intent to support Horn.
Hall next points to Rowe meeting with her off-site to
discuss the harassment complaints, Rowe asking her
which co-workers may have overheard her conversation
with Horn, and directing Hall not to discuss the alleged
harassment with anyone else. Again, because Rowe
was not involved in the decision to promote Akins, his
conduct is completely irrelevant. Sembos, 376 F.3d at 703
n.6. However, even if Rowe were a decision-maker, none
of these facts indicates a retaliatory motive, but rather is
a typical investigative technique properly employed by
a human resource department in investigating a com-
plaint of sexual harassment.
2
In her trial testimony Hall said that Blair told her that Rowe
“wanted to speak to me about the [Horn] incident and he
wanted to know what I was going to tell [Rowe], and I told
him that I was going to tell him everything I knew and I was
going to stand behind [Horn].” Hall further testified that
after the meeting Blair “asked me what the meeting [with
Rowe] was, and I basically told him what was going on. And
he asked me what I told Jeff Rowe, and I told him that I was
going to support [Horn] in any decision that she made
with this.”
14 No. 07-2653
Additionally, Hall points to the contradiction between
Rowe’s letter to the EEOC that Forest River promoted
Akins on August 26, 2002, and discovery responses and
trial testimony that Forest River had decided to promote
Akins in late July/early August 2002. Rowe explained
this contradiction at trial, but even disregarding
Rowe’s explanation, this contradiction does not bear on
the question of causation. Whether Forest River contra-
dicted itself about the timing of the promotion does not
indicate that Blair rejected Hall because of her protected
activity. Hall also claims Blair’s failure to tell her that
he had already promoted Akins was circumstantial evi-
dence of retaliation. Again, this fact does not speak to
Blair’s motivation in promoting Akins. Finally, Hall
points to Blair’s alleged statement that she should not
stick her neck out. Blair’s comment, however, was
made during a conversation in which Hall requested a
transfer, stating that she was going to support Horn
and “needed to get out of that plant because it was going
to get heated. I didn’t know exactly what was going to
go down.” Blair’s response that Hall should not stick
her neck out was coupled with prompt action to secure
Hall the requested transfer. In this context (a context
provided by Hall herself in her trial testimony), this
comment did not project that Forest Hill intended to
retaliate against her.
We stress that in considering the propriety of judg-
ment as a matter of law, we must consider the totality
of the record. The record, as a whole, includes undis-
puted evidence that Forest River considered Akins the
most qualified candidate for the promotion. Blair testi-
fied that he chose Akins for the auditor position because
he “could diffuse conflict in a heartbeat,” was a “self-
No. 07-2653 15
starter,” and followed through on his assignments. Blair
also testified that auditors needed “to be able to keep
production and quality separated,” and that on several
occasions, while working as an inspector, Hall improp-
erly took over production work as opposed to focusing
on quality, and this could impair objectivity. Hall did
not present any evidence calling into question Akins’
superior qualifications or Blair’s relative assessment of
Akins and Hall’s qualifications. Without some evidence
of pretext or evidence that Forest River retaliated against
her, Hall cannot prevail as a matter of law. See Hall v. Gary
Comm. Sch. Corp., 298 F.3d 672, 675 (2002) (holding that
district court properly granted employer judgment as a
matter of law following jury’s verdict in plaintiff’s favor
where plaintiff did not offer evidence showing the rea-
sons given by his employer were not worthy of credence
or other evidence showing retaliation). See also Hossack
v. Floor Covering Assoc. of Joliet, Inc., 492 F.3d 853, 863 (7th
Cir. 2007) (holding that district court properly granted
employer judgment as a matter of law on plaintiff’s
sex discrimination claim because there was no direct
evidence that the employer’s reasons for firing her “were
pretexts unworthy of belief”); Staples, 312 F.3d at 299(holding that district court properly granted employer
judgment as a matter of law because the evidence was
not sufficient to permit the jury to conclude that the
termination was racially motivated or that the employer’s
reason for the discharge was unworthy of credence);
Accordingly, the district court properly granted Forest
River judgment as a matter of law on Hall’s retaliation
claim.
16 No. 07-2653
III.
In order to avoid judgment as a matter of law, Hall
needed to present sufficient evidence of causation to
support a jury’s verdict of retaliation. Hall failed to do
so, however, pointing instead to evidence irrelevant to
the issue of causation or insufficient as a matter of law
to support a jury verdict in light of the undisputed evi-
dence that Forest River believed another candidate was
better qualified for a promotion. For these and the fore-
going reasons, we AFFIRM.
USCA-02-C-0072—7-30-08