Johnson v. Nordstrom Inc., 00-3827

Citation260 F.3d 727
Decision Date20 July 2001
Docket NumberNo. 00-3827,00-3827
Parties(7th Cir. 2001) Gail Johnson, Plaintiff-Appellant, v. Nordstrom, Inc., James M. Johansson and Richard J. Archer, Defendants-Appellees
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 97-C-1673--Richard L. Young, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] William N. Ivers (argued), Stewart & Irwin, Indianapolis, IN, for Plaintiff-Appellant.

Peter J. Rusthoven (argued), Michael Moffatt, Barnes & Thornburg, Indianapolis, IN, for Defendants-Appellees.

Before Bauer, Cudahy, and Easterbrook, Circuit Judges.

Cudahy, Circuit Judge.

Gail Johnson appeals a grant of summary judgment to Nordstrom, Inc. on her Title VII claims of employment discrimination, retaliation and constructive discharge. We affirm.

I.

Johnson was hired in 1995 to work as a salesperson in the cosmetics department at Nordstrom's retail department store in downtown Indianapolis. Six months after she was hired, Johnson was transferred to the men's fragrance counter to work as a fragrance counter manager. In February 1997, Johnson sought a promotion to the intriguing position of beauty director. At the time, she had more than 13 years of cosmetics experience. Richard Archer, who was then the manager of the cosmetics department, was responsible for filling the beauty director position. Archer interviewed Johnson and was aware of her experience and qualifications for the job. But he selected another employee for the position--one who, Johnson alleges, had only two years of cosmetics experience. When Johnson questioned Archer about his decision, he told her he had selected the other employee because she had more seniority at Nordstrom and she had a "better feel for the Nordstrom customer."

Johnson, an African-American, filed a charge of race discrimination against Nordstrom with the Equal Employment Opportunity Commission (EEOC). In response, Nordstrom indicated that Johnson was not qualified for the beauty director position, and that Deanne Bennett, the (white) person who got the job, was more qualified. Nordstrom claimed that Johnson, during her interview for the job, said she believed the most important part of the job was "sales," although that was incorrect because the position primarily involved training and other interaction with co- workers. Nordstrom did not believe Johnson would be qualified for this aspect of the job because she was perceived by her co-workers as a "shark"- -apparently a retail term for a sales employee who serves more than one customer at a time, thereby depriving co- workers of commission opportunities. This perception was a source of tension between Johnson and her co-workers. And Bennett had superior Nordstrom experience: Johnson at the time had six months experience with Nordstrom, while Bennett had worked there for three years. In April 1997, another white employee was promoted, this time to the position of assistant manager. Archer, without considering Johnson for the position, gave the job to Lynette Irwin, who had two months of part-time experience at Nordstrom. But unlike Johnson, Irwin had management experience at Nordstrom; in fact, she had served as Johnson's supervisor. Johnson filed another charge of discrimination with the EEOC. Nordstrom responded that Johnson was not considered for the position because Archer believed she was not interested in it. Nordstrom later indicated that Johnson did not exhibit the leadership and team-playing skills Archer was seeking for the position.

Johnson's retaliation claim is two-fold. First, she claims that Nordstrom retaliated against her for filing the first EEOC charge by failing to promote her to the assistant manager position. Second, she claims that Archer and Irwin took specific retaliatory actions against her: they "saved stock work" for her and they wrongly accused her of stealing customers from other salespersons. Further, Johnson alleges that Irwin allowed other employees to falsely accuse her, gave sales leads to other employees and advised them to come to work early to do stock work so they would not lose time off the sales floor. Archer and Irwin apparently also monitored Johnson to determine whether she was in fact stealing customers. In November 1997, Johnson resigned.

Johnson filed a complaint against Nordstrom, James Johansson (the store manager) and Archer under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. sec. 1981. She alleged race discrimination in the failure to promote her, retaliation and constructive discharge. As noted, her retaliation claim consisted of, inter alia, Nordstrom's failure to promote her to the assistant manager position and Irwin's and Archer's retaliatory conduct. Johnson also alleged a state claim for intentional infliction of emotional distress. In response, Nordstrom filed a motion for summary judgment and a motion to strike certain portions of affidavits filed by Johnson. Johnson filed a motion in opposition to summary judgment and a motion to strike affidavits submitted by Nordstrom. The district court denied Johnson's motion to strike, granted in part Nordstrom's motion to strike and granted Nordstrom's motion for summary judgment on all counts. It concluded that Johnson had not demonstrated a prima facie case on her failure to promote claim. The court also found that Johnson did not show that Nordstrom's reasons for failing to promote her were retaliatory; she could not prove that Nordstrom's stated reasons were pretextual. As to Archer's and Irwin's retaliatory conduct, the court concluded that Johnson failed to make a prima facie case. It also concluded that the conduct was not extreme or outrageous, such that would support Johnson's claim for intentional infliction of emotional distress. Johnson appeals.

II.

As everyone should know, we review a grant of summary judgment de novo, viewing all the facts and inferences in the light most favorable to the non- moving party. See Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998). "Summary judgment may be granted only when 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Pafford, 148 F.3d at 665.

To defeat a motion for summary judgment in a Title VII case, a plaintiff who cannot provide direct evidence of discrimination may use the "burden- shifting" method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this indirect method of proof, the plaintiff first may raise an inference of discrimination by offering sufficient evidence to establish a prima facie case. See id. at 802-05. If the plaintiff succeeds, the burden then shifts to the employer, who must articulate a "legitimate, nondiscriminatory reason" for the adverse action. See Pafford, 148 F.3d at 665 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). "If the employer carries this burden, then the burden shifts back to the plaintiff to produce 'evidence that would, if believed by a trier of fact, show that the true reason for the employment action was discriminatory.'" Pafford, 148 F.3d at 665 (quoting Sattar v. Motorola, Inc., 138 F.3d 1164, 1169 (7th Cir. 1998) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993))).

To establish a prima facie case of race discrimination in a failure to promote context, the plaintiff must show: 1) she is a member of a protected group; 2) she was qualified for the position sought; 3) she was rejected for the position; and 4) the employee promoted was not a member of the protected group and was not better qualified than the plaintiff. See Payne v. Milwaukee Cty., 146 F.3d 430, 434 (7th Cir. 1998). It is undisputed that Johnson satisfies the first criterion. But the district court found that she failed to meet other elements of the prima facie case.

A.

The district court first concluded that Johnson had failed to make out her prima facie case of discrimination because she had not met her burden of showing that she was qualified for the beauty director position. The court found that the job consisted of training staff; directing the Nordstrom make-up team; overseeing promotional events and addressing staff questions and concerns. Entry on Plaintiff's Motion to Strike, Defendants' Motion to Strike, and Defendants' Motion for Summary Judgment at 36 (Sept. 26, 2000). The court concluded that Johnson was not qualified for this position because of 1) Johnson's interview answer (misstating the most important element of the position); 2) Johnson's tension with her co-workers; and 3) Johnson's failure to observe certain work policies. These factors do not appear to establish that Johnson was not qualified for the job. But we need not decide that issue; rather, we conclude that these are the reasons proffered by Nordstrom for failing to promote Johnson, and that Johnson has failed to demonstrate that these reasons are pretextual. See EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F.3d 145, 150 (7th Cir. 1996) ("To expedite the process it may be preferable to get past the prima facie case and examine the pertinent issue of whether there was discrimination in a job action."); see also Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1391 (7th Cir. 1990) (where the plaintiff had not met the burden of showing pretext, it was not necessary to decide whether the plaintiff established a prima facie case).

To demonstrate pretext, "a plaintiff must show more than that the employer's decision was incorrect; the plaintiff must also show the employer lied about its proffered explanation." Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) (citing Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995)). Without...

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