52 F.3d 329 (7th Cir. 1995), 94-2448, White v. Dial Corp.

• Docket Number: 94-2448.
• Date: 06 April 1995
• Parties: Shirley Ann WHITE, Plaintiff-Appellant, v. The DIAL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 329

52 F.3d 329 (7th Cir. 1995)

Shirley Ann WHITE, Plaintiff-Appellant,

v.

The DIAL CORPORATION, Defendant-Appellee.

No. 94-2448.

United States Court of Appeals, Seventh Circuit

April 6, 1995

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Argued Feb. 22, 1995.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 91 C 6058; Milton I. Shadur, Judge.

N.D.Ill.

AFFIRMED.

Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.

ORDER

Shirley Ann White sued her employer, the Dial Corporation, contending that she had been subjected to sexual discrimination in the form of a hostile working environment that forced her to transfer to another position within the company offering inferior pay opportunities. ¹ The district court entered summary judgment in favor of Dial, from which White appeals. Our review is of course de novo. Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir.1994). Because we conclude that the record was insufficient to establish that White was "constructively transferred" from her former position, we agree that summary judgment in favor of the defendant was required.

I.

White has worked at Dial's plant in Montgomery, Illinois for just over twenty years. During the majority of her employment at Dial, White has worked in the Soap Finishing Department. However, for a period of about ten weeks in 1989, White worked in the Chemical Processing Department. It is White's brief tenure in this department that gave rise to this suit.

White successfully bid for the job of Process Material Handler or "A-5 Operator" in January 1989 and began work in Chemical Processing the following month. The principal duties of an A-5 Operator include unloading raw materials from railroad cars, pretreating them, and storing them for processing. We are told this is considered a "plum" position among Dial employees: the pay is superior to most other jobs within the plant and A-5 operators enjoy greater opportunities for advancement.

Throughout most of her tenure as an A-5 operator, White was the sole woman to hold the position. She alleges, in fact, that her supervisors and co-workers in Chemical Processing were averse to women in that job, and that their hostility manifested itself in the following discriminatory practices:

1) White was denied salary increases reflecting the knowledge and skills she acquired with training;

2) supervisors and fellow workers commented repeatedly that the A-5 position was "not a woman's job";

3) she was given inadequate safety instruction;

4) she was berated and cursed by her co-workers, despite their knowledge that she is deeply religious;

5) she was denied breaks during her eight-hour shifts that her male co-workers were permitted to take;

6) she was not, unlike males, permitted to work overtime; and

7) she was followed and monitored by her supervisors to a degree that men were not.

Ultimately, White decided to transfer back to the Soap Finishing Department, effective April 17, 1989. When she resumed work in Soap Finishing, White appears to have earned an hourly wage higher than her compensation as an A-5 trainee. However, had she completed that training and remained in Chemical training, her base pay as an A-5 operator would have been greater than her base pay in Soap Finishing. ²

II.

Dial did not order White transferred from the Chemical Process Department to the Soap Finishing Department; she did so on her own. When a plaintiff has elected to resign from employment with the defendant, she normally cannot obtain reinstatement and back pay (the two remedies that White seeks ³) unless she succeeds in proving that she was constructively discharged--that is, that her employer made her working conditions so intolerable that a reasonable person would have felt she had no real choice but to quit. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir.), cert. denied, 115 S.Ct. 1512 (1994); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 536-37 (7th Cir.1993); see also, e.g., Landgraf v. USI Film Prod., Inc., 968 F.2d 427, 429 (5th Cir.1992), aff'd on other grounds, 114 S.Ct. 1483 (1994); Maney v. Brinkley Mun. Waterworks & Sewer Dep't, 802 F.2d 1073, 1075 (8th Cir.1986). ⁴ Whether an employee can secure reinstatement and backpay by showing that she was constructively transferred is a question we have not previously decided, but for present purposes we shall assume that the answer is yes. Even so, our review of the record ⁵ leads us to conclude that a reasonable factfinder could not find that White's working conditions were so intolerable as to force a reasonable person to quit or transfer. ⁶ On that basis alone, we believe the district court was correct to enter summary judgment in favor of Dial.

White's underlying theory of Title VII theory is that of the hostile work environment, defined as a "workplace [which] is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " Harris v. Forklift Sys., Inc., 114 S.Ct. 367, 370 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 2405 (1986)). Circumstances that might be adequate to establish a hostile working environment for purposes of Title VII will not necessarily suffice to establish a constructive discharge. Landgraf, 968 F.2d at 430; Miller v. Illinois, 681 F.Supp. 538, 544 (N.D.Ill.1988). Conduct that detracts from an individual's work performance, hinders her advancement, or discourages her from remaining on the job can suffice to establish a hostile environment, Harris, 114 S.Ct. at 370-71; but in order to establish a constructive discharge, the severity or pervasiveness of the abuse must be so great as to compel the reasonable person to resign. Saxton, 10 F.3d at 536-37.

The district court found the record wanting in support even for a claim of hostile environment, and we share many of its reservations. In a number of instances, White has proffered evidence that she may have been treated unfairly, but the evidence does not necessarily suggest that she was so treated based on her gender. For example, one of White's principal claims is that she was denied interim pay raises based on the skills she acquired as an A-5 trainee. Dial had a written guide outlining the raises A-5 trainees were to receive based on the acquisition of particular skills (R. 68, Def.Ex. B at 51); other employees did receive such raises (id. at 136-150); and, according to White, one of her superiors acknowledged that she should have been given an interim raise (White Tr. 149, 249, 413, 415). Yet, at least two male A-5 operators testified that they did not receive raises until they completed their training and were proficient in all aspects of the job (Martinez Tr. 18, Beach Tr. 23), a point that White never reached (see White Tr. 253, acknowledging that she had not yet been trained to operate centrifuge). Indeed, one of them noted resentment among A-5 operators about the fact that other employees (both male and female) were qualified for pay raises far more quickly than they had been. Beach Tr. 21, 64. Consequently, there is no direct basis, at least, for inferring that White was denied interim raises because of her gender.

White also contends that she was denied work breaks, and at her deposition, she recounted a statement purportedly made by supervisor Don Huber to the effect that the A-5 operator position was an eight-hour job that did not permit breaks. White Tr. 64, 66. White also recalls co-worker and trainer Juan Martinez admonishing her on her first day as an A-5 trainee not to take a break, although he later seems to have relented and told her she could take a break when the task he assigned her was completed. White Tr. 63. White concedes that she was able to take a 30-minute break when she worked the 8 a.m. to 4 p.m. shift, but contends that she never was permitted to take "full" breaks or to take breaks at her own discretion. White Tr. 74. But it is not clear that she was singled out as a woman in this respect. Carl Cox testified that breaks did sometimes require supervisor approval and were contingent on the nature of the work an employee was performing. Cox Tr. 23. John Stathis confirmed that the A-5 job was a relatively demanding job that was not amenable to regular breaks, and he appeared to suggest that A-5 operators had to take their breaks at their own peril. See Stathis Tr. 38, see also Huber Tr. vol. II at 51-57.

White also contends that she was excessively supervised, to the extent that supervisor Huber even followed her to the restroom (although not into it), or was waiting for her outside when she emerged, on a number of occasions. White Tr. 76-82, 301, 357-58. Huber acknowledged that he monitored employees under his supervision closely, and he appears to have acknowledged that he might inadvertently have followed an employee...