Brill v. Lante Corp.

• Decision Date: 08 July 1997
• Docket Number: No. 96-3446,96-3446
• Citation: 119 F.3d 1266
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 614, 71 Empl. Prac. Dec. P 44,834 Carol BRILL, Plaintiff-Appellant, v. LANTE CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1266

119 F.3d 1266

74 Fair Empl.Prac.Cas. (BNA) 614,

71 Empl. Prac. Dec. P 44,834

Carol BRILL, Plaintiff-Appellant, v. LANTE CORPORATION, Defendant-Appellee.

No. 96-3446.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1997.

Decided July 8, 1997.

Aaron Benjamin Maduff (argued), Maduff & Maduff, Chicago, IL, for Plaintiff-Appellant.

Steven B. Varick (argued), McBride, Baker & Coles, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and ESCHBACH and MANION, Circuit Judges.

MANION, Circuit Judge.

Carol Brill worked at Lante Corporation, a computer consulting firm, for less than two years. During that period, Lante claims Brill alienated an important client of the company, failed to improve her technical skills, and generally proved to her superiors that she was not cut out to be a computer consultant. After Lante did not promote Brill to the position of senior consultant (promoting instead two men), she brought a sex discrimination claim under Title VII against the company, adding that she was fired and harassed on account of her sex. The district court granted summary judgment in favor of Lante. Brill appeals and we affirm.

I.

Lante hired Carol Brill in September 1991 as an entry-level consultant. Her first job was to administer a computer network at a trade show; Lante hoped that the experience would lead to more high-tech work for its clients. Lante trained Brill to use Lotus "Notes," a software package, and her early evaluations reveal that she did well enough with that. But after a year at the company, she was behind Lante's expectations. Her first annual performance evaluation criticized her "narrow" skill set, and also noted that she was "unpredictable in client situations." She wasn't supposed to get a raise that year, but after complaining to the company president, her salary was raised 10%.

In January 1993, Lante assigned Brill to her first large-scale client project: installing a computer network, complete with electronic mail, at Sega (the video game manufacturer). During the network installation and beyond, Brill had trouble dealing with the lead client contact at Sega, Bill Downs. Brill claims that Downs screamed and once threw a pen at her. Lante claims that Downs was dissatisfied with the pace of Brill's work and that he threatened to cancel the Lante contract on account of Brill. Jean Giovetti, Brill's supervisor at the time, shared Downs' concerns with Brill. According to a March 1993 e-mail from Giovetti to Lante's consulting development manager, Brill told Giovetti that Downs was an "idiot" and an "asshole" and said he should be shot. Brill denies saying that, and also denies Giovetti's characterization of her dealings with Downs as "dripp[ing] with condescension and disrespect."

While Brill's comments concerning Downs are disputed, there is no dispute that after the Sega project Giovetti evaluated Brill's performance in this way: "At the end of the project, Carol's relationship with the client was hindered by her personal intolerance of Bill Downs. Although she did not call Bill an 'idiot' to his face, her intonation projected her disrespect which compromised Lante's ability to satisfy Sega." Giovetti added: "Carol's first reaction to a challenging viewpoint or constructive criticism is defensiveness and intolerance. This attitude makes it very difficult to work with Carol in a team environment."

Brill's next big assignment was a Sears account to develop "client-server" applications. She apparently had a better relationship with that client, but her technical skills again failed to impress. At the end of the assignment, her supervisor, Mary Ann Curvey, gave her a "Technical Ability" grade of "6," which is in between satisfactory (5) and marginal (7). Curvey allowed that Brill had to work in "a very unpredictable development environment," and that she had showed some improvement over the course of the assignment. Nevertheless, Curvey recommended "a structured programming background" before Brill was to try her hand at programming again.

In July 1993, Brill was assigned an internal "Timesheets" project, which required her to construct a system to track time devoted to projects. She worked little on that project and instead devoted much of her time to looking for a new job. On August 18, Brill asked her supervisor at the time, Mark Gusmano, to remove her from the project. When Gusmano discovered that she was looking elsewhere, she was fired (actually, it is uncontested that "Gusmano and Brill agreed that her employment would end"). Brill quickly got a new job paying significantly more.

On March 13, 1995, Brill sued Lante, claiming sex discrimination under Title VII. Count I of Brill's complaint related to Lante's failure to promote her to the position of senior consultant (she held the title "consultant" throughout her employment at Lante). Brill claimed that the company promoted two men (Michael Gitre and Thomas O'Hara) to the senior consultant position rather than her because she is a woman. Lante responded that Gitre and O'Hara were better qualified than Brill. Count II claimed that she had been fired on account of her sex. According to Lante, Brill was fired because she could not get along with clients, she failed to improve her technical skills, and she was looking for employment elsewhere.

Count III claimed she was the victim of sexual harassment while at Lante. That claim principally is based on four events. The first occurred in July 1992 while Brill was attending a trade show in San Jose, California with the company president, consultant Mike Gitre, and others. Brill and her coworkers stayed at a hotel where a women's swimming suit photo shoot was being held. Her male coworkers told Gitre that the women were "beautiful" and that he should consider dating one of them; Brill characterized the scene as resembling a "locker room," but did not describe the comments in any more detail. On another occasion, at dinner late one night, Lante's president described to Gitre the breasts and face of a woman sitting nearby but out of Gitre's sight. The third event occurred in November 1992. Upon learning that Brill was pregnant but unmarried, Ed Kennedy, then Lante's director of consulting, shared his religious belief with her that premarital sex was wrong. The fourth incident occurred in summer, 1993, when a male consulting manager yelled at Brill while "towering" over her after he "misunderstood" (according to Brill) a comment she had made about a client.

General discovery closed in this case on December 15, 1995, but in a hearing before the district court held on that date Brill's lawyer intimated that a motion to compel responses to discovery would be forthcoming. The district court suggested that the parties resolve their discovery disputes "within the next week" and file any motions to compel "shortly thereafter." On January 23, 1996, Lante moved for summary judgment; on the same day, Brill's counsel sought leave to withdraw as plaintiff's counsel. Nearly three weeks later, Brill's original attorney filed a motion to compel compliance with discovery. ¹ The court granted the motion to withdraw (by that point Brill had secured new counsel, her same counsel on appeal), denied plaintiff's motion to compel, and set a briefing schedule on Lante's summary judgment motion. After the motion for summary judgment was fully briefed, the court dismissed Brill's case in its entirety.

II.

There are two primary ways a plaintiff claiming discrimination under Title VII can overcome an employer's motion for summary judgment. The first is by putting in enough evidence (whether direct or circumstantial) to raise a genuine issue concerning the employer's motivation in carrying out the challenged employment action. See, e.g., Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir.1994) . The second is the so-called McDonnell Douglas method, the frequently used burden-shifting framework first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). See Hunt-Golliday v. Metropolitan Water Reclamation District, 104 F.3d 1004, 1006-07 (7th Cir.1997) (collecting cases published in the last year that applied the burden-shifting approach).

The district court approached this case under the McDonnell Douglas framework, and the parties appear to agree that this is the approach we should use. Absent some direct evidence of discrimination, this methodology allows a plaintiff to prove her case through "indirect" evidence, McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. at 1824-25, which basically means that she may rely on inferences. She (or he) does this by establishing the well-known prima facie case, which was meant to be flexible and to fit the facts of virtually any type of claim. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252 n. 5, 101 S.Ct. 1089, 1093 n. 5, 67 L.Ed.2d 207 (1981). In a discharge case, the plaintiff must show that (1) she is a member of a protected group (which of course all men and women are in sex discrimination cases); (2) she was meeting the employer's legitimate job expectations; (3) she was discharged; and (4) her employer sought a replacement for her. ² See Sample v. Aldi Inc., 61 F.3d 544, 548 (7th Cir.1995). In a failure to promote case, the plaintiff must demonstrate that (1) she was a member of a protected group; (2) she applied for and was qualified for the position sought; (3) she was rejected for the position; and (4) those that were promoted had similar or lesser qualifications for the job, or, in other words, they were not more qualified than she. Id.

If the plaintiff can do all of this, then the defendant may explain why it failed to promote her (or why it fired her), and if those reasons are nondiscriminatory on their face, the ball returns to the plaintiff's court. She must demonstrate that those reasons (each of them, if a reason standing alone was...