Dandy v. United Parcel Service, Inc., 03-2601.

• Citation: 388 F.3d 263
• Decision Date: 29 October 2004
• Docket Number: No. 03-2601.,03-2601.
• Parties: Brenda DANDY, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

388 F.3d 263

Brenda DANDY, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.

No. 03-2601.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 2004.

Decided October 29, 2004.

Appeal from the United States District Court for the Eastern District of Wisconsin, Rudolph T. Randa, Chief Judge.

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Virginia M. O'Leary (argued), O'Leary & Associates, Oakland City, IN, for Plaintiff-Appellant.

Mary P. Ninneman, Michael John Fischer (argued), Quarles & Brady, Milwaukee, WI, for Defendant-Appellee.

Before FLAUM, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Brenda Dandy, a United Parcel Service (UPS) employee, alleged that her employer discriminated against her on the basis of gender and race by: (1) creating a hostile work environment; (2) failing to promote her; (3) paying her a lower salary than her white counterparts; and (4) retaliating against her. The district court granted UPS summary judgment, dismissing all of Dandy's claims. It found that Dandy failed to establish a prima facie case of hostile work environment and assumed arguendo that Dandy established a prima facie case for her remaining allegations, but reasoned that dismissal was proper because she failed to prove that UPS's business decisions were a pretext for discrimination. Because we find that Dandy failed to establish a prima facie case for any of her claims, we affirm.

I. BACKGROUND

Dandy has worked in the Wisconsin District of UPS for over 25 years. She first held various part-time positions at the company and was eventually promoted to full-time supervisor in 1986, the position she held at the commencement of this action. Nationally, UPS is divided into 59 geographical districts, each headed by one District Manager. In UPS's Wisconsin District, the District Manager oversees all employees in that state. Below the District Manager is the Division Manager, of which there are 14, followed by the Center Manager or Unit 2 Manager, of which there are 77. The lowest level of management is the full-time supervisor, of which there are 205. UPS operations are divided between "hubs," which receive and sort packages, and "packaging centers," which are responsible for deliveries.

In 1993, after an internal investigation, UPS acknowledged a problem with the promotion and advancement of African Americans and women at the company. In an attempt to combat this problem, UPS implemented a new promotion process which involved rating or ranking employees based on their readiness for promotion. Employees rated/ranked "A" were deemed immediately ready for promotion, while employees rated "B" were deemed ready for promotion in one year. To open advancement opportunities, UPS allows, but does not mandate, consideration of "B" ranked employees for immediate promotion.¹

UPS also holds annual Career Development meetings (People's Meetings) to discuss vacancies and promotions. People's Meetings are attended by District and Division Managers. At these meetings, an employee is evaluated based on his or her rating/ranking, Quality Performance Reviews (QPRs),² and experience in operations.³ According to UPS, it predominantly promotes "A" rated employees and only promoted "B" rated employees on two occasions. In January 1999, a male full-time supervisor rated "B" was promoted to Unit 2 Manager, however, Dandy did not apply for that position. Also, in early 2000, "B's" were considered for promotion, however, Dandy was not rated "B" at that time. She concedes that she has not received an "A" rating since 1989.

UPS compensates its employees according to "grades," operational experience, and education. Dandy is a grade 14. Salaries normally increase annually and factor in geographical cost of living differences. However, UPS does not increase an employee's base salary retroactively; therefore, a newly hired full-time supervisor's salary may be higher than a more senior full-time supervisor because the more recent hire may have a higher starting salary. There is also a subjective component to an employee's compensation. Each District Manager is given a "pool" of funds to distribute to the employees whose performance has increased the overall productivity of the district.

II. ANALYSIS

We review the district court's decision to grant UPS summary judgment de novo and draw all reasonable inferences in Dandy's favor. Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir.1999). In order to avoid summary judgment, she must come forward with specific and material facts which create a genuine issue for trial. Patt v. Family Health Sys., Inc., 280 F.3d 749, 752 (7th Cir.2002). Dandy has stated several allegations of discrimination under both 42 U.S.C. § 1981 and Title VII, 42 U.S.C. §§ 2000e et seq. First, we must consider the relevant statute of limitations which will dictate the scope of the evidence we may consider in support of each claim.

A Statute of Limitations and Scope of Evidence.

1. Section 1981

In Jones v. R.R. Donnelley & Sons Co., ___ U.S. ___, ___-___, 124 S.Ct. 1836 1845-46, ___ L.Ed.2d ___, ___-___ (2004), rev'g, 305 F.3d 717 (7th Cir.2002), the Supreme Court was presented with the question of whether § 1981 hostile work environment, wrongful termination, and failure-to-transfer claims were governed by Congress's 4-year catch-all statute of limitations, codified in 28 U.S.C. § 1658, or by the most analogous state personal injury statute of limitations. The Court reasoned that § 1658 applies to any claim "arising under" an act of Congress which was enacted after December 1, 1990. It therefore concluded that hostile work environment, wrongful termination, and failure-to-transfer claims under § 1981 were governed by § 1658 because they were in essence "enacted" by the 1991 Civil Rights Act, which "overturned Patterson [v. Avery Dennison Corp., 491 U.S. 164, 171, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)] by defining the key `make and enforce contracts' language in § 1981 to include the `termination of contracts and the enjoyment of benefits, privileges, terms, and conditions of the contractual relationship.'" Jones, ___ U.S. at ___, 124 S.Ct. at 1846 (quoting 42 U.S.C. § 1981(b)).⁴

Dandy alleges the following violations under § 1981:(1) hostile work environment; (2) failure to promote; (3) disparate treatment in terms of compensation; and (4) retaliation. All of Dandy's § 1981 claims are subject to § 1658's 4-year statute of limitations because they are premised on conduct which took place after the formation of her employment contract. Id.; see also White v. BFI Waste Servs., 375 F.3d 288, 291-92 (4th Cir.2004) (finding disparate treatment in compensation claims stated under § 1981 are covered by § 1658). Dandy filed her complaint on September 14, 2001; therefore, we may consider events which occurred as early as September 14, 1997, on her hostile work environment and retaliation claims.

The statute of limitations on Dandy's remaining § 1981 claims alleging a failure to promote and disparate compensation on the basis of race were tolled during the pendency of a proposed class action filed by fellow UPS employees on November 26, 1997.⁵ Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 352-53, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983); Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir.2000). On April 5, 2000, the proposed class voluntarily dismissed its failure to promote claim and on May 10, 2001, the district court denied the proposed class its motion for certification on the remaining disparate compensation claim. Therefore, giving Dandy the benefit of the tolling period, we may review evidence from May 8, 1995 to September 14, 2001, in support of Dandy's failure to promote claim and evidence from April 3, 1994 to September 14, 2001, in support of her disparate compensation claim.

2. Title VII

Under Title VII, a plaintiff is required to exhaust her administrative remedies by filing a complaint with the appropriate federal or state agency. Volovsek v. Wis. Dep't of Agric., Trade & Consumer Prot., 344 F.3d 680, 687 (7th Cir.2003). A plaintiff has 300 days from the alleged discriminatory action to file a complaint with the appropriate state agency. 42 U.S.C. § 2000e-5(e)(1). We review solely those charges "included in [the] EEOC charge, . . . or reasonably related to the allegations of the charge and growing out of such allegations." Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir.2001). Generally, we may solely consider evidence from the 300-day period. Hardin, 167 F.3d at 344. However, as the statute of limitations is not jurisdictional in nature, it is subject to equitable considerations. Volovsek, 344 F.3d at 687.

For example, if a plaintiff alleges "continuing violations," which constitute a pattern and practice of discrimination, we may look outside of the relevant time period. Hardin, 167 F.3d at 344. This doctrine applies to Title VII as well as § 1981 claims. The Supreme Court has explained the continuing violation doctrine as "preclud[ing] recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period," but permitting "consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, . . . for the purpose of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

Dandy filed her first relevant EEOC charge on February 18, 1997 and the second on October 2, 1997. She received her right-to-sue letter for both charges on April 30, 1999. She filed her third EEOC charge on September 5, 2000. As Dandy filed suit in federal court more than 90 days after she received her right-to-sue letter from her first and second EEOC...