Sublett v. John Wiley & Sons, Inc.

• Citation: 463 F.3d 731
• Decision Date: 13 September 2006
• Docket Number: No. 05-1213.,05-1213.
• Parties: LaTeirra R. SUBLETT, Plaintiff-Appellant, v. JOHN WILEY & SONS, INC. & Wiley Publishing, Inc., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

463 F.3d 731

LaTeirra R. SUBLETT, Plaintiff-Appellant, v. JOHN WILEY & SONS, INC. & Wiley Publishing, Inc., Defendants-Appellees.

No. 05-1213.

United States Court of Appeals, Seventh Circuit.

Argued January 6, 2006.

Decided September 13, 2006.

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Richard L. Darst (argued), Cohen, Garelick & Glazier, Indianapolis, IN, for Plaintiff-Appellant.

Todd M. Nierman, Susan W. Kline (argued), Baker & Daniels, Indianapolis, IN, for Defendants-Appellees.

Before EASTERBROOK, MANION, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

LaTeirra R. Sublett, an African-American woman, sued John Wiley & Sons, Inc., and Wiley Publishing, Inc. (to whom we refer collectively as "Wiley"), alleging that they failed to promote her, gave her unwarranted poor performance reviews, and retaliated against her for filing a complaint about race discrimination in violation of both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The district court granted summary judgment in favor of Wiley. Although some of Sublett's allegations, if true, reflect unfortunate behavior, we conclude that she failed to establish a prima facie case or pretext with respect to any of her claims. We therefore affirm the district court's judgment.

I

On June 1, 1999, Wiley's predecessor, IDG Books Worldwide, Inc. (IDG), hired Sublett as a Customer Care Representative (CCR). Her qualifications for this position included a high school diploma, certification as an administrative assistant based on her completion of an eight-month training course at Midwest Career College, and an employment history including work as a food server, a customer service representative at another company, a telemarketer, and an insurance collector. At the time Sublett was hired, she was the only African-American employee in the Customer Care Department.

In 2000, IDG created four Senior CCR positions. Sublett's supervisor Felicite Pickens, an African-American woman who had been hired after Sublett, encouraged her to apply for one of these positions. Pickens, however, was fired soon thereafter and played no role in determining who was selected. Instead, supervisors Breea Hosier and Linda Perkins interviewed Sublett for one of the available positions. Hosier and Perkins filled three of the slots with white employees. Initially, they did not select Sublett for the fourth available position because they thought that she was insufficiently enthusiastic about the job in her interview and that she had a conflict with another employee, Vicki Bess. Sublett had more seniority at the company than some of the employees who were selected for the promotion.

When Sublett found out that she did not receive the CCR position, she emailed Chad Secrist, an employee in the Human Relations Department, to find out what steps she could take if she thought the reason for her lack of success was racial discrimination. This email triggered a series of events that eventually led to a meeting among Sublett, Hosier, Perkins, and Sherry Marcuson, another employee in the Human Relations Department. At this meeting, Sublett informed Hosier and Perkins that she did not have a conflict with Bess and was in fact enthusiastic about the position. After the meeting, Perkins and Hosier promoted Sublett to a Senior CCR position effective August 21, 2000.

In September 2001, Sublett received her annual performance review. The review covered six categories with four possible ratings for each category: "Outstanding Performance," "Exceeds Performance Expectations," "Proficient," and "Needs Improvement." Sublett, who had been evaluated by Hosier and Perkins, received the "Proficient" rating in each category. Based on this review, Sublett received a 4% merit pay increase. Around the same time, John Wiley & Sons, Inc. acquired IDG (which had since become Hungry Minds) and changed the company's name to Wiley Publishing, Inc.

In February 2002, Wiley restructured its Customer Care Department. As a result of this reconfiguration, two "team leader" supervisory positions became available, a day-shift position and a night-shift position. Hosier asked Sublett which position she preferred, and Sublett replied that she was interested in the day-shift position. Sublett was one of five employees and the only African-American to express interest in the day-shift position. Ultimately, Hosier and Perkins hired Mary Roberts, a white woman, for the job. The reason they gave to Sublett for her lack of success was that they did not think that she was ready to assume the responsibilities of a team leader. Later, in June 2002, another team leader position became available. Hosier and Perkins again considered Sublett for the position, but they eventually hired Michael Shoptaw, a white male from outside the company. On June 17, 2002, after sending several emails to Wiley supervisors complaining about not receiving a promotion, Sublett filed a claim with the Equal Employment Opportunity Commission (EEOC), asserting race discrimination and retaliation.

On August 8, 2002, the Director of Human Resources, along with Marcuson, Hosier, and Perkins, held a meeting with Sublett to discuss her complaints. At this meeting, Sublett expressed her belief that she had been passed over for the available promotions because of her race. Perkins disagreed, claiming instead that she had not been selected because she lacked the requisite leadership skills and was not as qualified for the position as the applicants that were hired. As a result of this meeting, Sublett received a Development Plan, which detailed the areas in which she would need to improve in order to qualify for future promotions.

In September 2002, Sublett received her 2002 annual performance review, which also used four possible ratings: "Substantially Exceeded," "Fully Met," "Acceptable w/Qualifications," and "Less Than Acceptable." Sublett received two "Fully Met" ratings, four "Acceptable w/Qualifications" ratings, and a 3% merit pay increase.

On October 23, 2002, Sublett filed a second EEOC charge for race discrimination and retaliation. In addition to complaining about the 2000 and 2002 promotion decisions, she alleged that Wiley retaliated against her by giving her poor performance reviews in 2001 and 2002. Shortly after Sublett filed this claim, Hosier and Perkins promoted her to a team leader position that had recently become available.

On December 12, 2002, the EEOC issued Sublett a right-to-sue letter; Sublett filed her complaint in federal district court on March 7, 2003. When the time came for the district court to consider Wiley's motion for summary judgment, Sublett responded with evidence of Wiley's failure to promote her in 2000 and 2002 and her negative performance reviews in 2001 and 2002. She also submitted the testimony of Felicite Pickens, her former supervisor. Pickens testified that supervisors Hosier and Perkins rarely talked to African-American employees. In addition, Pickens claimed that on at least one occasion, Perkins asked her to change the performance evaluation of a white employee to reflect a more positive rating than Pickens believed the employee actually deserved. Additionally, Sublett submitted testimony from Secrist, the Human Relations employee to whom she initially complained. Secrist alleged that another Human Relations employee (who had some role in the company's promotion decisions) commented that she "did not like black people." On a separate occasion, according to Secrist, Wiley's Vice President of Operations told Secrist that he would never accept anyone for a position at the company that did not have an "ethnically neutral voice." Sublett claimed generally that while supervisors Hosier and Perkins fired a number of African-American employees during her tenure at Wiley, including Felicite Pickens, they hired and promoted only white employees. She also accused Marcuson of treating white people more favorably than minorities; in fact, Sublett claimed, Marcuson treated African-American employees at the company with "disgust."

Sorting through this evidence and correlating it to Sublett's specific claims, the district court concluded that Sublett had failed to establish a prima facie case with respect to any of her discrimination or retaliation claims. The court accordingly granted Wiley's motion for summary judgment. We review the district court's order de novo, construing all facts and drawing all reasonable inferences from those facts in favor of Sublett. See Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1107 (7th Cir.2004).

II

As a preliminary matter, we briefly address certain alleged procedural errors that Sublett claims prejudiced her. First, she argues that the district court improperly based its decision on an issue that Wiley failed to raise in its motion for summary judgment, namely, that Sublett had not presented evidence supporting a finding that Wiley's proffered reasons for failing to promote her in 2000 were pretextual. Sublett asserts that Wiley raised only a statute of limitations defense with regard to this claim. This switch in grounds, Sublett argues, deprived her of the opportunity to argue the issue of pretext before the district court.

It is true that in its motion for summary judgment, Wiley argued only that Sublett's claim based on the 2000 promotion was untimely because she filed her EEOC claim outside the 300-day period specified by Title VII and her § 1981 claim after the two years permitted under Indiana's statute of limitations. (In an intervening decision, the Supreme Court held that § 1981 claims are subject to a four-year statute of limitations, see Jones v. R.R. Donnelley & Sons, Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004); this change does not affect our decision.) As a general matter, if the moving party does not raise an issue in support of its motion for summary judgment, the nonmoving party is not required to present evidence on that...