Sweeney v. West

• Decision Date: 29 June 1998
• Docket Number: No. 97-2495,97-2495
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 890, 74 Empl. Prac. Dec. P 45,496 Nancy R. SWEENEY, Plaintiff-Appellant, v. Togo D. WEST, Jr., Secretary, Dept. of the Army, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 550

149 F.3d 550

77 Fair Empl.Prac.Cas. (BNA) 890,

74 Empl. Prac. Dec. P 45,496

Nancy R. SWEENEY, Plaintiff-Appellant, v. Togo D. WEST, Jr., Secretary, Dept. of the Army, Defendant-Appellee.

No. 97-2495.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 13, 1998.

Decided June 29, 1998.

Stephanie J. Hahn, Indianapolis, IN, for Plaintiff-Appellant.

Judith A. Stewart, Office of the U.S. Atty., Indianapolis, IN, for Defendant-Appellee.

Before POSNER, Chief Judge, and MANION and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Nancy Sweeney claims that her superiors in the United States Army discriminated against her on the basis of her sex and retaliated against her for complaining about her treatment. The Army's EEO officer sided with Sweeney on the retaliation issue, but the Army--as it is entitled to do under the law--reversed that decision. Sweeney then filed suit in the district court, which discounted much of her evidence of discrimination because it fell outside the 30-day time limit imposed by the regulations accompanying Title VII. The court granted summary judgment to the Army with respect to each of Sweeney's claims. We affirm.

I.

Nancy Sweeney began her career as a civilian employee with the Department of the Army in 1973. We do not know her entry-level position because neither party has chronicled her career path. What we do know is that in 1986 the Army appointed her to the position of reserve technician (and Unit Administrator) in its Camp Atterbury, Indiana facility. In 1988, Sweeney filed a complaint with the Army's EEO office (every government agency must have an EEO officer on duty to handle charges of discrimination, see 29 C.F.R. § 1614.104-05). Sweeney complained that one of her superiors, Lieutenant Colonel Gordon Satkowiak, had invaded her personal locker, thereby discriminating against her on the basis of her sex. The parties settled the case in 1990, though again neither side has disclosed the exact terms of the settlement, ¹ or whether they settled the case at the agency level as opposed to the EEOC (a complainant may appeal an agency's final decision to the Commission, see 29 C.F.R. § 1614.401). The 1988 complaint and subsequent settlement are important because Sweeney claims that in later years the Army retaliated against her for raising her claim in the first place.

In September 1990 (around the same time the parties settled Sweeney's initial charge of discrimination), the Army hired Jennifer Swanson as a Staff Operations Training Specialist at Camp Atterbury. Swanson became Sweeney's supervisor. Sweeney had applied for the position but was not hired. Everything apparently was going all right until February 1991; Sweeney claims that Satkowiak went into her office while she was on leave. Sweeney wrote to the Major General in command about the incident, and a meeting took place in which Sweeney was reprimanded for not going through the proper chain of command. Sweeney claims that after the meeting Swanson approached her in the ladies' room and commented on Sweeney's 1988 EEO complaint involving Satkowiak; Swanson purportedly added that no one liked Sweeney.

Between late July and mid-September 1991, Sweeney contacted the Department of the Army's Inspector General's office and alleged time card fraud on the part of her supervisor, Swanson. The record is not clear but the IG apparently found no wrongdoing on the part of Swanson. According to Swanson, Sweeney had her own pay problems. Swanson issued two counseling statements to Sweeney relating to double pay Sweeney purportedly had received, unsatisfactory job performance in failing to correct a payroll problem of an officer, and "behavior [that] is unbecoming of a civilian employee of the federal government." This last charge related to an incident in which Sweeney allegedly bragged that she could get Satkowiak fired.

Sweeney viewed the counseling statements as retaliation for her earlier complaints about Satkowiak and Swanson. On October 11, 1991, she contacted the appropriate EEO officer and after interviewing and counseling followed up in February 1992 with a formal charge of discrimination against the Army. In that complaint, Sweeney claimed several acts of retaliation, including the incident in February 1991 in which Satkowiak went into her office, a separate incident in which Sweeney had been accused of making a racial comment about a black major, and the counseling statements issued by Swanson. The EEO officer referred Sweeney's case to the Army's Appellate Review Agency, which found that Swanson's two counseling statements constituted reprisal and retaliation. The Army reversed that decision and issued a final agency decision of no discrimination, and the EEOC (acting upon Sweeney's appeal) affirmed. Sweeney then filed her suit in the district court, claiming sex discrimination, retaliation, and constructive discharge (as well as one pendent state common law claim). The constructive discharge claim relates to her resignation from the Department of the Army in 1993; Sweeney claims that the Army forced her to resign in the face of a hostile work environment.

The district court granted summary judgment in favor of the Army. The court noted that most of Sweeney's evidence in support of her claims occurred outside the 30-day period prescribed by Title VII and the regulations supporting that law. In particular, Sweeney did not comply with the requirement that she consult her agency's EEO officer within 30 days of the alleged discrimination. ^{2 2} The counseling statements occurred within the 30-day window, but the court considered them neither retaliatory nor capable of being labeled a "constructive discharge." On appeal, Sweeney argues that much of her evidence of a hostile work environment, while outside the 30-day cutoff imposed under the law, was accumulating before she was put on notice that she had a viable claim of discrimination. According to Sweeney, she had no reason to believe she had a potential claim until the Army issued its counseling statements.

II.

To determine whether a plaintiff can survive a motion for summary judgment in an employment discrimination case, courts apply certain time-tested formulas. No admission of guilt by the defendant is necessary, Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir.1994), but the plaintiff must at least raise an "inference of discrimination." Kariotis v. Navistar, 131 F.3d 672, 676 (7th Cir.1997). It is not unusual for any employee to have been treated differently in some fashion. The real issues are (1) what prompted the purported difference in treatment (was it the individual's sex or--in the case of retaliation-protected activity of some sort?), and (2) did the difference in treatment affect the employee's "compensation, terms, conditions or privileges of employment." See 42 U.S.C. § 2000e-5(g). If there is enough evidence for a reasonable jury to conclude that the plaintiff's sex or protected activity prompted the disparate treatment (and that the treatment affected the plaintiff's employment in a tangible way), then the case is suited for trial, not summary judgment.

In this case Sweeney claims both sex discrimination and retaliation. As a rule we consider them separately because under Title VII it is unlawful to retaliate against an employee even if the employee's complaints of sex discrimination (giving rise to the retaliation) are unfounded. The complaints themselves are protected speech under Title VII's terms, see 42 U.S.C. § 2000e-3(a), meaning an employee may complain (in good faith) without the added burden of having to be right. But in this case Sweeney makes almost no effort to distinguish her claims of discrimination and retaliation. For example, in support of her discrimination claim, Sweeney alludes to a "hostile work environment," but she uses that same term to describe how the Army acted once she complained about its discrimination. Indeed, nearly her entire appellate brief is devoted to documenting the Army's retaliation rather than the underlying discriminatory acts giving rise to her complaints in the first place. Now we are left to parse out a sex discrimination claim from what in all respects looks like a simple case of alleged retaliation.

Identifying Sweeney's claim of sex discrimination itself is perplexing. At one point in her appellate brief she ties her claim to her non-promotion and early retirement, but in most of her argument (and throughout her representations to the district court) she bases her claim on an "impermissible hostile work environment." Any challenge to the Army's 1990 decision to hire Swanson instead of promoting Sweeney clearly is time-barred; at the time, the Regulations gave an employee only 30 days to complain about discriminatory conduct, and Sweeney allowed years to pass by without formal comment. The hostile work environment claim is unusual because it is a term of art typically associated with sexual harassment. Sweeney appears not to be claiming that she was sexually harassed; indeed, no sexual comments (either overt or covert) were directed at her. She nevertheless relies on sexual harassment cases, at one point citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), apparently in order to draw an analogy between herself and the plaintiff in that case: "Like the Plaintiff in Harris, Ms. Sweeney is a victim of a hostile work environment that is less easily detectable when compared to outright sexual harassment." Unlike Sweeney, however, Harris claimed to be a victim of actual sexual harassment (there is no legal distinction between "outright" harassment and some other form). The president of Harris' company often insulted her because of her sex and made her the target of unwelcome sexual innuendos. 510 U.S. at 19, 114 S.Ct. 367. At one point he suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise." Id. On other...