Oscar Taylor v. Eli Lilly & Company , 528 F. App'x 606 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 26, 2013*
Decided June 26, 2013
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-3499
OSCAR TAYLOR, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:10-cv-01611-TWP-DML
ELI LILLY & COMPANY,
Defendant-Appellee. Tanya Walton Pratt,
Judge.
ORDER
Oscar Taylor, an African American, has sued his former employer Eli Lilly &
Company (“Lilly”), alleging that it denied him two merit pay increases and pressured him
to transfer to an inferior position in the company because of his race. The district court
granted summary judgment for Lilly, ruling that Taylor had not identified any similarly
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12-3499 Page 2
situated coworkers for his disparate-pay claims and that his transfer to a new position did
not constitute a materially adverse employment action. We affirm the judgment.
Because we are reviewing a grant of summary judgment against Taylor, we view the
record in his favor. See Smiley v. Columbia Coll. Chi., 714 F.3d 998, 1001 (7th Cir. 2013). Taylor
joined Lilly in 2001 as a sales representative. He specialized in marketing pharmaceutical
drugs to psychiatrists in prison facilities, particularly in Texas. Two of Lilly’s most
important drugs—Zyprexa and Cymbalta—treat schizophrenia and depression, making
prisons a target market for Lilly. To better direct its products to prison markets, in late 2004
Lilly created within its new “Business to Business” or “B2B” sales group, a sub-group
called the B2B Corrections group.
Taylor and three others joined the newly formed B2B Corrections group as “account
managers” charged with enlarging Lilly’s prison accounts throughout the country. Not
only did Taylor receive a substantial salary boost when he joined the group—from $62,760
in 2004 to $96,820 in 2005—but he also took over accounts covering an eight-state region.
Beyond maximizing sales, Taylor’s chief responsibility as an account manager was to
increase Lilly’s “access” to the correctional facilities of his region by convincing corrections
officials to put Lilly’s drugs in their inventories of approved pharmaceutical products and
thereby make it easy for prison physicians to prescribe them to patients. That job, however,
lasted only until July of 2006, when Taylor transferred back to a sales position. Lilly
disbanded the B2B Corrections group that same year. Taylor’s problems at Lilly, and the
events that triggered this suit, occurred during his year-and-a-half stint in the B2B
Corrections group.
Taylor’s first problem concerned raises. His performance evaluation for 2005,
completed by his manager Mark Russom, noted that Taylor’s “[o]verall Sales and Access
performance was significantly below expectations and below peer group at 89% to quota.”
Also, the evaluation identified success in only four out of seven “leadership behaviors,” the
remaining three “need[ing] improvement.” Consequently, although Taylor was eligible for
a merit pay increase based on his 2005 performance, he did not receive one.
The second problem was his transfer out of B2B. Before B2B disbanded, Russom
urged Taylor to transfer to a position that focused more exclusively on sales, where the
manager perceived that Taylor’s true strengths lay. He issued Taylor a formal warning in
2006 cataloguing Taylor’s “overall lack of account progress in achieving your access and
sales targets in your key validated accounts from Jan 05 to June 2006.” He also admonished
that “you are behind your peers and significantly below expectations with regards [sic] to
your development in strategic account planning.” Although initially reluctant to transfer,
Taylor eventually took a position as a senior sales representative in the diabetes health
No. 12-3499 Page 3
group, where he had a different manager for the second half of 2006 and focused on sales
and clients rather than managing accounts.
Although his salary and “pay grade” (Lilly’s term for a salary range) remained the
same in his new position, he moved to a lower “pay scale group” (a group of salary
ranges). While in B2B, Taylor and his colleagues were in “pay scale group 4,” the highest
group in the sales division, with the greatest potential for raises. When the B2B group
disbanded, one of his colleagues stayed in group 4, while the other two moved to sales
positions in group 2. Taylor’s new sales position was in group 1. Taylor’s salary in group 1
was now near the top of his pay grade. This proximity to his salary cap constrained future
raises because, as Lilly explained, “only exemplary or very high performance ratings would
have triggered a significant increase under the merit pay system.” His performance
evaluation at the end of 2006—compiled with input from both Russom and his new
manager—described his “overall performance to quota” as “below expectations driven by
our key function—the access metric.” Taylor again did not get a raise.
His three non-black colleagues in B2B—Dana Roberts, Brenda Vickery, and Vince
Visingardi—each received pay increases for their performances in 2005 and 2006. Vickery
and Visingardi (Taylor ignores Roberts) scored above 95% relative to the quota for their
overall access and sales (compared to Taylor’s 89%), and they succeeded in five or more
leadership categories (compared to Taylor’s four). Also, Vickery’s raise in 2005 brought her
salary up to Taylor’s level, but not beyond. Vickery received another raise in 2006, but she
and Taylor shared a manager for only the first three months of the year and after that
worked in different positions with different responsibilities and supervisors. Taylor left the
company in 2007.
Taylor sued under 42 U.S.C. § 1981, alleging race discrimination in the two denied
pay raises and the “demotion” from his account-manager position. The court ruled that
Taylor failed to make a prima facie case for discrimination on the basis of disparate pay
because Vickery and Visingardi were not comparable, and it therefore granted summary
judgment on those claims. The court also held that Taylor’s transfer to a position as a senior
sales representative was not an adverse employment action because his salary remained
unchanged and any impact on his potential future compensation was only “minor.” The
court thus granted summary judgment on that claim as well.
On appeal Taylor first argues that his performance evaluations were similar enough
to those of Vickery and Visingardi that the district court should have considered them to be
similarly situated. But we agree with the district court that Taylor’s evidence for 2005 did
not show that he and his two pay-raise comparators were similar in all material respects.
See Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012) (explaining that analysis
No. 12-3499 Page 4
of comparators is designed to eliminate any possible explanatory variables for differing
treatment other than illegal discrimination); Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir.
2012). Specifically, Taylor’s performance evaluation from 2005 was noticeably different
from Vickery’s and Visingardi’s ratings—Taylor lagged behind his peers both in overall
access and sales performance relative to quota (he was below 90% and they were above
95%) and in leadership behaviors (he succeeded in only four categories, they in five or
more). Although Taylor views these differences as trivial, he does not dispute that Lilly has
a limited budget for pay increases and that not every employee who is deemed eligible for
a raise in a given year will get one. Finally, Vickery’s pay raise based on 2005 performance
merely brought her salary up to Taylor’s level, even though she scored better than Taylor
on all metrics. The record therefore does not support Taylor’s assertion that in 2005 he was
treated less favorably than his two comparators on account of his race.
For 2006, the differences are even starker. Vickery is the only proposed comparator
that Taylor identifies, but she and Taylor shared a supervisor for only the first three months
of the year, making a valid comparison difficult. See Radue v. Kimberly-Clark Corp., 219 F.3d
612, 618 (7th Cir. 2000) (“[W]hen different decision-makers are involved, two decisions are
rarely similarly situated in all relevant respects.”) (internal quotation marks omitted).
Beyond that, Vickery was on leave from May through December and received only positive
comments for her performance during the first half of the year, including a “successful”
rating in all seven “leadership behavior” categories. And Vickery never received a warning
from Russom for poor performance, as Taylor did. Together these differences make Vickery
an inappropriate comparator. See Fane v. Locke Reynolds, LLP, 480 F.3d 534, 540 (7th Cir.
2007) (“An employee is similarly situated to a plaintiff if the two employees dealt with the
same supervisor, are subject to the same standards, and have engaged in similar conduct
without such differentiating or mitigating circumstances as would distinguish their
conduct or the employer’s treatment of them.”) Thus the district court correctly ruled that
Taylor could not establish a prima facie case on the basis of disparate pay.
Taylor next challenges the district court’s conclusion that his transfer out of B2B did
not constitute an adverse employment action. He argues that, compared to his former
account-manager position, his new job was less prestigious, offered fewer responsibilities,
and made it more difficult for him to get a raise because he was in pay scale group 1. The
district court reasoned that the new raise restriction had only a “minor” effect on his
potential future compensation and that his job responsibilities did not change significantly,
but its reasoning is too narrow. True, a lateral transfer that does not affect pay or
significantly affect working conditions is not an adverse employment action, Washington v.
Ill. Dep’t of Revenue, 420 F.3d 658, 661–62 (7th Cir. 2005); Williams v. Bristol-Myers Squibb Co.,
85 F.3d 270, 274 (7th Cir. 1996), and Taylor’s salary remained the same. But neither party
disputes that his new job involved fewer responsibilities, focusing on sales and clients
No. 12-3499 Page 5
without the regional account management of his B2B job. See Herrnreiter v. Chi. Hous. Auth.,
315 F.3d 742, 744 (7th Cir. 2002) (categorizing employment actions as adverse where “a
nominally lateral transfer with no change in financial terms significantly reduces the
employee’s career prospects by preventing him from using the skills in which he is trained
and experience, so that the skills are likely to atrophy and his career is likely to be
stunted”). Furthermore, Taylor’s drop from pay scale group 4 to group 1 made him less
likely to receive discretionary merit-based pay raises because his relatively high salary
required that he demonstrate “very high performance” in order to be considered for any
substantial raise. This new restriction on pay raises was an adverse change. See Chaudhry v.
Nucor Steel–Ind., 546 F.3d 832, 838 (7th Cir. 2008); Lewis v. City of Chicago, 496 F.3d 645, 654
(7th Cir. 2007).
We nevertheless conclude that Taylor failed to make a prima facie case of
discrimination because he cannot identify a similarly situated employee who received more
favorable treatment. Beyond the evidence that Taylor’s performance was worse than
Vickery’s and Visingardi’s (his proposed comparators), the record also shows that their
transfers were comparable in all material respects to Taylor’s. Vickery and Visingardi
transferred into positions at pay scale group 2. Taylor believes this fact materially
distinguishes their treatment from his, but it does not. All three remained at the same pay
grade after their transfers out of B2B, and groups 1 and 2 imposed the same salary cap on
that pay grade. This means all three faced comparable restrictions on future raises. And like
Taylor, Vickery and Visingardi shed many of their former responsibilities to focus more
exclusively on sales in their new positions. Finally, Taylor submitted no evidence
suggesting that Vickery’s and Visingardi’s new jobs were substantially superior to his in
terms of rank, prestige, or opportunities for advancement. Accordingly, his two
comparators did not receive better treatment.
Taylor responds with two arguments, neither of which supports an inference of
discrimination. First, he contends that Russom was unwilling to support his move to a job
at pay scale group 2. But Taylor’s deposition testimony refutes that charge. He testified that
Russom had asked him “to go back to level one or two.” “[I]nstead of posting for these
level ones and twos,” he asked Russom to support his move into a level-three job, but
Russom declined. Therefore, in supporting a transfer to a position in group 2, Russom did
not treat Vickery and Visingardi differently than Taylor. Second, Taylor observes that years
after he transferred out of B2B Russom remarked to colleagues, about a position unrelated
to Taylor’s, that “I was able to fill it with a white man” and that “[i]t is a difficult time for a
white man due to the hurdles the company gives.” Taylor construes the comment as an
anti-black sentiment. But this isolated comment is too ambiguous and disconnected from
Taylor’s transfer to support an inference of discrimination. See Overly v. KeyBank Nat’l
No. 12-3499 Page 6
Ass’n, 662 F.3d 856, 865 (7th Cir. 2011); Davis v. Time Warner Cable of Se. Wis., LP, 651 F.3d
664, 672 (7th Cir. 2011). Thus we conclude that summary judgment was proper.
AFFIRMED.