Bannon v. University of Chicago

• Decision Date: 01 October 2007
• Docket Number: No. 06-2955.,06-2955.
• Citation: 503 F.3d 623
• Parties: Gloria BANNON and Jacqueline Burton, Plaintiffs-Appellants, v. The UNIVERSITY OF CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

503 F.3d 623

Gloria BANNON and Jacqueline Burton, Plaintiffs-Appellants, v. The UNIVERSITY OF CHICAGO, Defendant-Appellee.

No. 06-2955.

United States Court of Appeals, Seventh Circuit.

Argued May 2, 2007.

Decided October 1, 2007.

Robert J. Trizna (argued), Thomas G. Draths (argued), Schuyler, Roche & Zwirner, Chicago, IL, for Plaintiffs-Appellants.

Susan M. Benton (argued), Winston & Strawn, Chicago, IL, for Defendant-Appellee.

Before EVANS, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge.

Gloria Bannon and Dr. Jacqueline Burton both sued The University of Chicago, operator of the Argonne National Laboratory where both plaintiffs worked. Bannon, a woman of Mexican ancestry, claims her supervisor leveled racial epithets at her and repeatedly blocked her attempts to gain promotion from a secretarial position to a supervisory one because of her national origin. Further, Bannon says that after winning promotion in November 2002, she was "frozen out" of opportunities in retaliation for reporting funding irregularities. Bannon began a medical leave in February 2003, and never returned to work. Instead, she initiated this action, claiming she was: (1) denied promotion because of her national origin, (2) subjected to a hostile work environment, and (3) constructively discharged in violation of Title VII of the Civil Rights Act. Burton, a white female, claims the university violated Title VII by denying her a promotion to senior scientist because of her gender and that she was fired in retaliation for reporting improper billing practices, and not for the reason provided by the school—a failure to report a conflict of interest.

The district court dismissed Bannon's retaliatory constructive discharge claim on the pleadings and granted summary judgment to the defendant on all other claims. We affirm as to Bannon because: (1) she has no timely failure-to-promote claim; (2) she did not establish that she found her workplace subjectively hostile; (3) her IIED claim is partially preempted and she was not the victim of extreme and outrageous conduct; and (4) Illinois does not recognize a cause of action for retaliatory constructive discharge. With respect to Burton, we affirm because she never applied for the promotion and cannot show that the reason given for her termination was pretextual.

I. BACKGROUND

Because this case is at the summary judgment stage, we summarize the facts as related by Bannon and Burton. See Perez v. Illinois, 488 F.3d 773, 776 (7th Cir.2007). Bannon's claims focus on her relationship with her supervisor at Argonne, Christopher Reilly. She began working as Reilly's executive secretary in 1989. Initially the job went smoothly, and Bannon received frequent raises. In the 1990s, however, Reilly started using racial slurs, calling her "wetback" and "brown cow," for instance. A few years later he heard other employees refer to Bannon as a "Mexican terrorist in a miniskirt" and began to call her that too. Bannon told him to "knock it off" when he made some of these remarks. In 2001, when Bannon told Reilly where she thought he might find a document, he told her, "I don't know how that Mexican brain of yours works." He made similar comments to her when she asked him about what she thought were questionable accounting practices, telling her that she couldn't understand figures because of her "Mexican brain." On at least one occasion, this comment was made in the presence of another employee.

Bannon also contends that Reilly blocked her chances for promotion within the lab. In 1997, the lab posted a vacancy for a more senior project analyst position. Bannon wanted to apply, but Reilly refused to recommend her. Bannon needed his recommendation to be considered for the promotion so she did not apply. The same thing happened when the position became available again in 1998. In 2001, when the position became available for the third time, Reilly did not immediately post it. Instead he told Bannon that, if she took on many of the duties of the project analyst position while continuing to work as his secretary, he would create a new position for her that would be at a slightly higher pay grade than the project analyst job. Bannon agreed to do this. When she reiterated her interest in a promotion to Reilly during this time, he asked her if she "swam across the border or walked across the desert."

Reilly was unable to create a new position for Bannon, apparently because the human resources department would not authorize it. However, Bannon did receive another raise as compensation for the extra work she had done. In August 2002, after over a year's delay, Reilly posted the project analyst position. Bannon applied for it in early September 2002, and when she informed Reilly that she had done so, he became very angry, screamed at her, and called her a "stupid Mexican." Nonetheless, this time Reilly did not block Bannon's promotion. In mid-September, Jacqueline Burton, who would be supervising the new project analyst and had been reviewing the applications for the position, told Reilly she wanted Bannon to have the job. At the end of the month, Reilly sent a letter to human resources asking them to give the job to Bannon.¹ Bannon received the promotion in October, and it became effective on November 1, 2002.

Bannon did not report Reilly's behavior to his superiors, and in spite of all the problems she was having with him, she admits that they socialized together outside of work and that she "did not mind, and even enjoyed" some of these events. She and her husband even went on a weeklong trip with Reilly and his wife in 1998. She also admits sending him a card in October 2002 in which she referred to him as a "great boss" and invited him to lunch.

After her promotion, Burton became Bannon's immediate supervisor, but Burton was fired by Argonne in January 2003. Lorraine LaFreniere replaced her, and at this point Bannon began having trouble at work again. She was excluded from meetings that she used to participate in and was no longer allowed to organize and coordinate meetings although that had previously been one of her job duties. She felt that she was being "frozen out" of her department after Burton's termination. She was also deeply upset by two incidents in which she was accused of wrongdoing by Mark Jones, Argonne's general counsel. In October of 2002, he accused her of falsifying her overtime. Bannon's lawyers told Jones that any further questions about her overtime should be directed to them, and that was the last she heard about the issue. Then in January 2003, Jones accused her of removing boxes of Argonne property without permission. She told him that she only removed personal items, and nothing more came of this accusation. Bannon was so upset by her treatment at Argonne that she took extended leave in February 2003 and resigned a few months later.

Jacqueline Burton's claims arise out of two incidents. The first occurred in 2001, when she expressed interest in being promoted to a senior scientist. Reilly, as Burton's immediate supervisor, was responsible for submitting her application materials to the Associate Lab Director, Harvey Drucker, who would ultimately decide whether to promote her. Reilly did not submit Burton's materials because, he says, she did not give him everything that was needed to complete her application. Specifically, he says that she did not give him a list of scientific peers who would be willing to write reference letters. Burton does not deny that she failed to submit the list, but contends that it was Reilly's responsibility to ask for it, and he never did. She asserts that he failed to collect all the information he needed from her because he was biased against her because of her gender. She points out that in September 2002, he told Bannon that Burton was a "dyke" and a "bitch" and that her marriage was a "sham."

The second incident involves Burton's termination from Argonne. In 2002, Argonne discovered that Burton's husband, John Walker, who also worked for Argonne, had been doing consulting work on the side for an Argonne vendor named Air, Soil, & Water (ASW). After investigating, Argonne discovered that Walker had earned a total of $56,000 from ASW while he was still employed by Argonne. Drucker believed that this was a significant conflict of interest for both Burton and Walker and was upset that neither one had reported it to the company. He terminated Burton and Walker on account of this conflict in January 2003. Burton believes that she was really terminated because she expressed concerns about questionable accounting practices to Reilly, and she appealed her termination to both Drucker and an independent review committee. The termination was upheld, and the FBI ultimately investigated Burton's and Walker's relationship with ASW. As far as we know this investigation is still ongoing.

II. ANALYSIS

We review the district court's grant of summary judgment de novo, drawing all reasonable inferences in favor of the nonmoving parties. Perez, 488 F.3d at 776. Summary judgment is appropriate if there are no disputed material facts and the moving party is entitled to judgment as a matter of law. Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 914-15 (7th Cir.2007), petition for cert. filed, 76 U.S.L.W. 3001 (U.S. June 19, 2007) (No. 06-1694).

Likewise, our review of a district court's grant of judgment on the pleadings, see Federal Rule of Civil Procedure 12(c), is de novo. Moss v. Martin, 473 F.3d 694, 698 (7th Cir.2007). "Only when it appears beyond a doubt that the plaintiff cannot prove any facts to support a claim for relief and the moving party demonstrates that there are no material issues of fact to be resolved will a court grant a Rule 12(c) motion." Id. With these standards in mind, we begin with Bannon's Title VII and state-law claims.

A. Bannon's Title VII Claims

1. Failure to Promote

The defendant argues that Bannon has not...