Bilow v. Much Shelist Freed etc., s. 00-2467

• Decision Date: 07 November 2001
• Docket Number: 00-3098,00-2587,Nos. 00-2467,s. 00-2467
• Citation: 277 F.3d 882
• Parties: (7th Cir. 2001) Sharon Swarsensky Bilow, Plaintiff-Appellant, Cross-Appellee, v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C., Defendant-Appellee, Cross-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 882

277 F.3d 882 (7th Cir. 2001)

Sharon Swarsensky Bilow, Plaintiff-Appellant, Cross-Appellee, v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C., Defendant-Appellee, Cross-Appellant.

Nos. 00-2467, 00-2587, 00-3098

In the United States Court of Appeals For the Seventh Circuit

Argued February 21, 2001

Decided November 7, 2001

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 7627--Ruben Castillo, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Posner, Kanne, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

Plaintiff Sharon Swarsensky Bilow, an attorney proceeding pro se, filed this lawsuit against her former employer, the law firm of Much Shelist Freed Denenberg Ament & Rubenstein, P.C. (Much Shelist), alleging violations of the Employee Retirement Income and Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII) and several state laws. Bilow has two principal complaints: first, that Much Shelist owes her money for wrongfully denied employee benefits, and second, that it violated the law when it fired her either because it discriminated on the basis of her sex or because it was impermissibly retaliating against her for certain protected complaints. We agree with the district court that Bilow failed to establish a genuine issue with regard to any material fact, and we therefore affirm the district court's grant of summary judgment for Much Shelist.

I

A. Health Insurance "Gross-Up" Program

Bilow began working as a litigation associate at Much Shelist in 1982. Three years later, she became the first woman to be promoted to income partner at the firm. At that time, the firm provided health insurance for its employees and their dependents. But in 1989, the firm stopped paying the insurance premiums for the dependents of employees and started deducting the premium amounts from the partners' paychecks. In order to make up the difference, the firm increased or "grossed-up" partners' salaries in an amount equal to the premiums for the dependent coverage. At the time of the change, Bilow was affected, because she had purchased health insurance coverage for her husband and children. As it did for all others in her situation, the firm began to deduct the premiums from Bilow's paycheck while increasing her salary in an equal amount.

In 1992, while Bilow was on maternity leave, the firm announced that it would no longer provide a gross-up to partners whose spouses' employers provided free dependent health insurance. For these partners, the gross-up would be phased out over the next two years. According to Bilow, she was never notified of the change, but her gross-up was phased out over the next two years and was completely eliminated by June 1, 1994. At the same time, the firm continued to deduct the dependent insurance premiums from her paycheck.

In March 1998, four years after the gross-up was completely phased out, Bilow noticed that the compensation listed on her W-2 form was less than her salary. Bilow immediately relayed this problem to Steven Schwartz, a member of the firm's Management and Accounting Committees. Schwartz responded that the firm did not pay for health insurance for those partners whose spouses received dependent health insurance from their own employers. According to Bilow, she told Schwartz that her spouse did not receive health insurance from his employer; Schwartz promised to investigate the situation and report back to Bilow.

Bilow waited about six weeks for the problem to be remedied or for someone to discuss the matter with her. When nothing happened, she sent a memo on April 29, 1998, to the firm's Management Committee requesting a response and an accounting:

It has been approximately six weeks since the firm has acknowledged that my salary has never been "grossed up" for the medical insurance deducted from my salary. Given the criminal liability attached to this failure to pay, which dates back to 1986¹ and continues to the present, I do not understand the firm's nonchalance. No one has even discussed the status of the matter with me.

On May 18, 1998, the Management Committee responded to Bilow with a memo explaining that the gross-up had been phased out over the time period between 1992 and 1994. In 1993, her gross-up was $2,000 and thereafter she received no extra pay to compensate for her dependent care coverage. The firm admitted that it had only "assumed" that Bilow's husband, a doctor, had dependent coverage through his employer. The memo concluded: "Please advise for the period 1993 to date whether or not your spouse had dependent coverage at his place of employment."

That same day, Bilow met with Michael Shelist, the head of the Management Committee, and told him that she had never been notified of the change in policy and that no one had ever asked her if her husband's employer provided health insurance for their family. Bilow told Shelist that, in fact, her husband did not receive dependent health insurance coverage from his employer. Shelist demanded that Bilow confirm this in writing and provide him with information about any other health insurance covering Bilow and her family. Although Bilow complained that Shelist had no right to make such a demand, Bilow delivered the requested memo to Shelist on May 27.

B. Staffing of the Brouwer Case

Meanwhile, Bilow's primary responsibility since 1992 had been a large class action lawsuit filed in Indianapolis that was expected to earn a multi-million dollar contingent fee for the firm. The case, Brouwer v. Rochwarger, required the class to prove a complex RICO conspiracy among several ac counting firms, lawyers, and brokerage firms. Christopher Stuart, an associate at the firm, had been assisting Bilow with the litigation.

By the end of 1997, Bilow had billed almost 6,000 hours and Stuart had billed over 5,300 hours to the Brouwer case. In total, the firm had invested approximately $3 million of attorney time in the case but had recovered only about $800,000 in fees after settling with some of the defendants. As the May 1998 trial date approached, the firm's Management Committee became concerned about the likelihood of recovering even a portion of its expenses. The Committee scheduled a meeting with Michael Freed, the head of the firm's litigation department, to discuss the possibility of taking Stuart off the case. Freed told the Committee that he believed Bilow, along with local Indianapolis counsel, Hugh Baker, could adequately try the case alone. Freed based his opinion on several factors: most of the named defendants had settled or had been dismissed; the potential recovery against one of the defendants was minimal and did not warrant any more attorney time; he respected Baker's experience as a seasoned trial lawyer; and he had confidence in Bilow's ability as a litigator. On February 26, 1998, in a memo to Bilow, the Committee announced that when the trial began, she and Baker would litigate the case by themselves in Indianapolis, although Stuart and others would be available in Chicago to provide assistance.

On March 10, 1998, Bilow met with Shelist and voiced her concerns about trying the Brouwer case with only Baker's help. Bilow believed that the case involved complex legal issues and she did not believe Baker to be up to the job. Bilow also informed Shelist that she would not be able to spend each night of the anticipated month-long trial in Indianapolis because her husband worked nights and she did not have alternate child care arrangements. Bilow suggested that she could commute daily to Indianapolis, and although the flight would not arrive in time for the morning session of trial, the Brouwer judge would not object to her being late every day. Shelist refused to permit her proposed commuting arrangement, and he also refused to assign anyone else to help her litigate the case.

Bilow and the firm came to an impasse on the matter: her position was that Shelist was asking her to do the impossible, and that, even if the firm were to fire her, she could not stay in Indianapolis during the trial. She believed that the firm was responsible for arranging child care for its lawyers; the firm disagreed. The May trial date was ultimately continued, but Shelist reported the events of the meeting to the Management Committee, which shared Shelist's view that Bilow was being insubordinate. The Committee instructed Shelist to prepare a memo recording the events of the meeting and the circumstances of the conflict, which he did on April 30, 1998, almost two months after the meeting. (April 30, 1998 also happened to be the day after Bilow wrote the letter to the firm threatening "criminal liability" if it failed to compensate her for the past gross-up amounts.)

C. Partner Survey

Immediately after the March 10 meeting in which Bilow expressed her unhappiness with the Brouwer staffing decision, the firm conducted a non-anonymous survey of its partners. Bilow completed the survey and gave it to Shelist on March 20, 1998. In response to a request to list her "three most significant concerns about the firm," Bilow first complained about her compensation and then stated her opinion that "there is a ruling class at the firm and a ruled class and all the women in the firm are in the ruled class."

D. Termination

In May 1998, during the firm's fiscal year-end review, the Management Committee decided to lay off one senior-level attorney from its litigation department and one from its corporate department. The Committee chose a male from its corporate department and chose Bilow from the litigation department, based mainly on its belief that it could not rely on Bilow to try the Brouwer case, and that without Brouwer, there was not enough work to keep her busy. Freed told the Committee that Bilow's absence would not hamper the...