Barricks v. Eli Lilly and Co.

• Decision Date: 04 April 2007
• Docket Number: No. 05-3771.,05-3771.
• Citation: 481 F.3d 556
• Parties: Lena C. BARRICKS, Plaintiff-Appellant, v. ELI LILLY AND COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

481 F.3d 556

Lena C. BARRICKS, Plaintiff-Appellant, v. ELI LILLY AND COMPANY, Defendant-Appellee.

No. 05-3771.

United States Court of Appeals, Seventh Circuit.

Argued December 11, 2006.

Decided April 4, 2007.

Michael C. Kendall (argued), Kendall-Hahn & Associates, Carmel, IN, for Plaintiff-Appellant.

Ellen E. Boshkoff (argued), Craig M. Borowski, Baker & Daniels, Indianapolis, IN, for Defendant-Appellee.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Alone among the thirty or so employees in her department, Lena Barricks did not receive a raise in 2003. Barricks, who had worked as a chemical operator at Eli Lilly and Company ("Lilly") since 1977, thought that discrimination was behind this, so after retiring in 2004 she sued her former employer for age and gender discrimination. The district court granted summary judgment to Lilly and Barricks appeals. Because Barricks cannot show that Lilly's stated reason for declining to give the raise — her performance — is a pretext for discrimination, we affirm the judgment of the district court.

I. BACKGROUND

Lilly employs a somewhat involved methodology to determine which employees in Barricks's department should receive raises (or "merit increases" as Lilly calls them). In response to interrogatories and through the testimony of the department's human resources representative, Lilly explained that the process begins with the employee's performance evaluation from the previous year, which is determined by the shift supervisor with limited input from other members of management. The evaluation includes a number from one (lowest) to five, which is fed into a computer algorithm along with information about the employee's current salary level and the overall budget for raises. The computer produces for each employee a "range of allowable merit increases" — for instance, between $50 and $100 per month — from which the shift supervisor, the human resources manager, and the department head decide on a raise. They begin with the range midpoint — $75 in the above example — and give exemplary employees raises toward the high end of the range, and weaker employees raises toward the low end, offsetting any dollar amounts above the midpoint with lower-than-midpoint raises. In other words, if the hypothetical employee with a midpoint of $75 received a raise of $80 per month, the $5 per month "deficit" above the midpoint would be offset by giving another employee a raise $5 below that employee's midpoint. Beginning in 2002, the department also instituted an unwritten policy of declining to give raises of $20 per month or less, because of what the human resources manager called an "insult factor" — an employee might prefer no raise at all to a very small one.

The present lawsuit is confined to Lilly's decision not to give Barricks a raise in 2003. In her performance evaluation for 2002, upon which the decision was largely based, she received an overall rating of two out of five. (Lilly stated in response to Barricks's administrative complaint that it was "a low level 2 performance" — in other words, just above a one.) The evaluation summary notes four "hits," such as the fact that she had no infractions during the year and trained new chemical operators, and four "misses," including a need to focus on computer and communication skills. The evaluation also listed three satisfactory "performance behaviors," but four where improvement was needed, including "create external focus," "anticipate changes and prepare for the future," and "achieve results with people." The evaluation noted that based on her review, Barricks was eligible for a raise but a disclaimer stated that she was not guaranteed one.

The computer produced a range between $0 and $30 per month for Barricks's raise. Based on her low evaluation, her high pay grade level (34 out of a possible 36 for her position), the need to offset other raises above employees' midpoints, and the $20 de minimis policy, Barricks's supervisors did not give her a raise for 2003. Barricks testified in a deposition that in her twelve years as a senior chemical operator, she had received a raise six times. She filed suit but the district court granted summary judgment to Lilly on unspecified grounds, and this appeal followed.

II. ANALYSIS

It is said that you can find a statistic to prove anything. In Lilly's view of the case, four of the five women in Barricks's department received raises for 2003, as did ten of the eleven employees over age fifty. But Barricks points out that none of the four women received raises above their midpoints, while many of the male employees did. On the other hand, the four women received performance ratings of three, and a raise below the midpoint was common for the men with threes. Depending on the statistic under consideration, discrimination was either perfectly obvious or utterly nonexistent.

We have frequently discussed the dangers of relying on raw data without further analysis or context in employment discrimination disputes. See Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491-92 (7th Cir.2007); Hull v. Stoughton Trailers, LLC, 445 F.3d 949, 951-52 (7th Cir.2006); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616, 619 (7th Cir. 2000). So, rather than play the numbers game, we review the district court's decision within the McDonnell Douglas burden-shifting framework, by which Barricks has elected to attempt to prove discrimination indirectly. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this familiar approach, Barricks must first make out a prima facie case of discrimination by showing that (1) she is a member of a protected class; (2) her performance met her employer's legitimate expectations; (3) despite this performance, she was subjected to an adverse employment action; and (4) her employer treated similarly situated employees outside of the protected class more favorably. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir.2006). If she succeeds, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decision, which the plaintiff can then attack as a pretext for discrimination. Id. This approach applies to claims of gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), as well as claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623. Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir.2006). We review the district court's grant of summary judgment de novo. Jackson v. County of Racine, 474 F.3d 493, 498 (7th Cir.2007).

Lilly concedes that as a woman over the age of forty, Barricks is a member of protected classes, and that she was meeting the company's expectations. (Her ratings were low, but they were not unacceptable, it says.) Lilly also does not dispute that the denial of a raise — as opposed to missing out on something more transient, like a bonus — qualifies as an adverse employment action. See Farrell v. Butler Univ., 421 F.3d 609, 614 (7th Cir.2005); Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014, 1030 (7th Cir.2003); Hunt v. City of Markham, 219 F.3d 649, 654 (7th Cir.2000). That leaves the fourth factor, whether similarly situated employees who were not members of the protected class were treated more favorably. The "similarly situated" test is a flexible, commonsense inquiry whose requirements vary from case to case. Humphries v. CBOCS West, Inc., 474 F.3d 387, 404-05 (7th Cir. 2007). Its purpose is to determine whether there are enough common factors between a plaintiff and a comparator — and few enough confounding ones — to allow for a meaningful comparison in order to divine whether discrimination was at play. Id. at 406; see also Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 644 (7th Cir.2006) (plaintiff must demonstrate that there is someone directly comparable in all material respects).

Barricks's claim of age discrimination fails at this point in the analysis. She makes no attempt to point to a younger employee who was similarly situated and received more favorable treatment, and instead relies on the fact that everyone besides her got a raise. The record does not disclose the age of most of the other employees, so it is impossible to know whether or not they are members of her protected class. Barricks mentions the age of a handful of employees in passing, but they were not supervised by Platt, who, Barricks concedes, played the decisive role in giving performance evaluations and determining raise amounts. See Radue, 219 F.3d at 618 (noting importance of showing common supervisor, because different supervisors make employment decisions in different ways).

On her claim of gender discrimination, Barricks identifies one potential comparator, Lawrence Swick, who was also a senior chemical operator, shared Barricks's pay grade and level of experience, and was supervised by Platt. Lilly notes that in 2002 Swick received a performance rating of three compared to...