Troupe v. May Dept. Stores Co.

• Decision Date: 31 March 1994
• Docket Number: No. 93-2523,93-2523
• Citation: 20 F.3d 734
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 512, 64 Empl. Prac. Dec. P 42,920, 62 USLW 2632 Kimberly Hern TROUPE, Plaintiff-Appellant, v. The MAY DEPARTMENT STORES COMPANY, doing business as Lord & Taylor, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 734

20 F.3d 734

64 Fair Empl.Prac.Cas. (BNA) 512,

64 Empl. Prac. Dec. P 42,920, 62 USLW 2632

Kimberly Hern TROUPE, Plaintiff-Appellant, v. The MAY DEPARTMENT STORES COMPANY, doing business as Lord &

Taylor, Defendant-Appellee.

No. 93-2523.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 18, 1994.

Decided March 31, 1994.

Ernest T. Rossiello (argued), Margaret A. Zuleger, Rossiello & Associates, Chicago, IL, for plaintiff-appellant.

William M. Walsh, Sonnenschein, Nath & Rosenthal, Chicago, IL, Ronald J. Dolan, Lori Kay Cochran, Betty L. Thorne (argued), May Dept. Stores, St. Louis, MO, for defendant-appellee.

Before POSNER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

In 1978, Congress amended Title VII of the Civil Rights Act of 1964 to prohibit discrimination on account of pregnancy: "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. Sec. 2000e(k). The Supreme Court had held in the Gilbert case that discrimination on account of sex did not include discrimination on account of pregnancy, so employers were free to exclude medical expenses relating to pregnancy and childbirth from their medical-benefits plans. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). The pregnancy-discrimination amendment overruled Gilbert, see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678, 103 S.Ct. 2622, 2628, 77 L.Ed.2d 89 (1983), but, as the text we have quoted makes clear, goes further. See, e.g., International Union, United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 198-99, 111 S.Ct. 1196, 1203-04, 113 L.Ed.2d 158 (1991). How much further is the issue in this case.

The plaintiff, Kimberly Hern Troupe, was employed by the Lord & Taylor department store in Chicago as a saleswoman in the women's accessories department. She had begun working there in 1987, initially working part time but from July 1990 full time. Until the end of 1990 her work was entirely satisfactory. In December of that year, in the first trimester of a pregnancy, she began experiencing morning sickness of unusual severity. The following month she requested and was granted a return to part-time status, working from noon to 5:00 p.m. Partly it seems because she slept later under the new schedule, so that noon was "morning" for her, she continued to experience severe morning sickness at work, causing what her lawyer describes with understatement as "slight" or "occasional" tardiness. In the month that ended with a warning from her immediate supervisor, Jennifer Rauch, on February 18, she reported late to work, or left early, on nine out of the 21 working days. The day after the warning she was late again and this time received a written warning. After she was tardy three days in a row late in March, the company on March 29 placed her on probation for 60 days. During the probationary period Troupe was late eleven more days; and she was fired on June 7, shortly after the end of the probationary period. She testified at her deposition that on the way to the meeting with the defendant's human resources manager at which she was fired, Rauch told her that "I [Troupe] was going to be terminated because she [Rauch] didn't think I was coming back to work after I had my baby." Troupe was due to begin her maternity leave the next day. We do not know whether it was to be a paid maternity leave but at argument Lord & Taylor's counsel said that employees of Lord & Taylor are entitled to maternity leave with half pay. We must assume that after Troupe was fired she received no medical benefits from Lord & Taylor in connection with her pregnancy and the birth of her child; for she testified without contradiction that she received no monetary benefits of any kind, other than unemployment benefits, after June 7, 1991. We do not know whether Lord & Taylor was less tolerant of Troupe's tardiness than it would have been had the cause not been a medical condition related to pregnancy. There is no evidence on this question, vital as it is.

In granting Lord & Taylor's motion for summary judgment, the district judge said that there is a "direct" and an "indirect" method of proving pregnancy discrimination, that the plaintiff used the direct method, that that method requires "direct evidence" of discrimination, meaning evidence that proves discrimination "without the need for inference or presumption," and that Troupe failed to produce any such evidence. Although language in some of our opinions, such as Aungst v. Westinghouse Electric Corp., 937 F.2d 1216, 1221 (7th Cir.1991), and McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 372 (7th Cir.1992), could be read to support this way of framing and resolving the issue, we acknowledge the potential for confusion and will take this opportunity to try to clarify the circuit's position.

Different kinds and combinations of evidence can create a triable issue of intentional discrimination ("disparate treatment," in the jargon of discrimination law), the only kind of discrimination alleged in this case. One kind is evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant or its agents, as in Mojica v. Gannett Co., 7 F.3d 552, 561 (7th Cir.1993) (en banc). Such evidence is indeed direct evidence as distinct from circumstantial; and since intent to discriminate is a mental state and mind reading not an accepted tool of judicial inquiry, it may be the only truly direct evidence of intent that will ever be available. But circumstantial evidence is admissible too, to provide a basis for drawing an inference of intentional discrimination.

Three types of circumstantial evidence of intentional discrimination can be distinguished. The first consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn. Giacoletto v. Amax Zinc Co., 954 F.2d 424 (7th Cir.1992); Holland v. Jefferson National Life Ins. Co., 883 F.2d 1307, 1314-15 (7th Cir.1989). This is the most common type of evidence in an intentional discrimination case, now that employers have taught their supervisory employees not to put discriminatory beliefs or attitudes into words oral or written. Second is evidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic (pregnancy, sex, race, or whatever) on which an employer is forbidden to base a difference in treatment received systematically better treatment. American Nurses' Ass'n v. Illinois, 783 F.2d 716, 728 (7th Cir.1986). And third is evidence that the plaintiff was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination. St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993); Ayala v. Mayfair Molded Products Corp., 831 F.2d 1314, 1318 (7th Cir.1987). Each type of evidence is sufficient by itself (depending of course on its strength in relation to whatever other evidence is in the case) to support a judgment for the plaintiff; or they can be used together.

The plaintiff in this case did not present any circumstantial evidence of the second or third type--that is, either comparative or pretext. She presented no evidence about the treatment of other employees; and because of her tardiness she could not show that she met the employer's requirements for her job, and thus she could not raise an issue of pretext. So, the defendant argues, the plaintiff was required to present evidence that the defendant had acknowledged that it discriminates against pregnant women. This is wrong. It merges what we called direct evidence of discriminatory intent with the first kind of circumstantial evidence, the kind that consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff. For it is not true that to get over the hurdle of summary judgment a plaintiff must produce the equivalent of an admission of guilt by the defendant. All that is required is evidence from which a rational trier of fact could reasonably infer that the defendant had fired the plaintiff because the latter was a member of a protected class, in this case the class of pregnant women. Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 658 (7th Cir.1991) (en banc); cf. Perfetti v. First National Bank, 950 F.2d 449, 450 (7th Cir.1991); Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1364 (7th Cir.1988); but cf. Hughes v. Matthews, 986 F.2d 1168, 1170 (8th Cir.1992) (per curiam).

We must examine the record in the light of these principles. The great, the undeniable fact is the plaintiff's tardiness. Her...