Diana Everrd. v. Scott Truck Sys. Inc

• Decision Date: 10 May 2010
• Docket Number: No. 08-3311.,08-3311.
• Citation: 604 F.3d 471
• Parties: Diana EVERROAD, Plaintiff-Appellant,v.SCOTT TRUCK SYSTEMS, INC. and Sherry Hantzis, in her individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

604 F.3d 471

Diana EVERROAD, Plaintiff-Appellant,v.SCOTT TRUCK SYSTEMS, INC. and Sherry Hantzis, in her individual capacity, Defendants-Appellees.

No. 08-3311.

United States Court of Appeals Seventh Circuit.

Argued Sept. 22, 2009.

Decided May 10, 2010.

Joel S. Paul (argued), Indianapolis, IN, for Plaintiff-Appellant.

Susan M. Zoeller (argued), Barnes & Thornburg LLP, Indianapolis, IN, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and BAUER and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Diana Everroad sued her former employer, Scott Truck Systems, Inc. (“Scott Truck”), and Sherry Hantzis, the company's general manager, for gender and age discrimination, and for retaliation for reporting gender and age discrimination. The district court granted summary judgment in favor of the defendants, and Everroad appeals. We affirm.

I.

Scott Truck is a family-owned commercial trucking business. David Scott (“Scott”) is the owner and president of the company, and his wife, Sherry Hantzis (“Hantzis”), is the general manager. In the spring of 2004, Everroad, who was fifty-one years old at the time, applied for a job as a dispatcher at Scott Truck. On Hantzis' recommendation, Scott hired Everroad, selecting her over three other candidates. The other applicants included Tim Wilson, age forty; Dennis Wilder, age fifty; and Tina Skadra, age twenty-four. The dispatcher job entailed pairing customer loads with trucks and drivers, ensuring that drivers turned in their required paperwork, and helping the drivers. The dispatcher had extensive contact with both drivers and customers.

Jim Moore was Everroad's direct supervisor. Although he was responsible for training Everroad, he failed to do so over a two-month period, and Scott was forced to train her while Moore was on vacation for two weeks. Moore complained that Everroad did not understand her job, and two of Scott Truck's largest customers also complained about their encounters with Everroad. Everroad also experienced conflicts with other Scott Truck employees. Tim Wilson, who had been passed over for the dispatcher job, told Everroad that she was not a good dispatcher and should not have been hired. Wilson also told Everroad that he was unhappy that more women were being hired at the company, and that the male employees preferred the company when it was all men. Wilson repeated that he did not think Everroad should be working at the company within the hearing of Moore, who simply told Everroad to “let it go.” Everroad points to no evidence that Moore, Scott or Hantzis were aware that Wilson had expressed any gender-based comments to Everroad. Scott and Hantzis, in fact, heard raised voices and asked Wilson and Everroad what had happened. Everroad told them that Wilson said she could not do her job and he did not want her to perform the dispatch job. Scott and Hantzis told Wilson that he was required to work with Everroad as long as she was the dispatcher. During this meeting, Wilson asked several times if he could leave, and Hantzis insisted that he stay until the meeting was concluded.

Everroad had four run-ins with John Mulligan, a driver for Scott Truck. The first two encounters were on the telephone, and on each occasion, Mulligan yelled at Everroad and insisted that he talk to either Moore or Scott, declining to talk to Everroad about dispatch matters. After those first two calls, Everroad left Mulligan a voice mail asking to speak with him about his manner on the phone and telling him she would not allow him to scream at her again. The next time Mulligan came into the office, he pounded on the office door, which Everroad had locked because she was alone in the office. When she unlocked the office door, he slammed the door open in a manner she found physically intimidating. Everroad secretly recorded her fourth confrontation with Mulligan. At that time, he made a derogatory remark to Everroad that was gender-based, attributing her demeanor to “PMS,” presumably meaning premenstrual syndrome. Everroad told Scott and Hantzis about this remark, but Everroad did not know whether they did anything about it. Mulligan's brusque manner extended to his employer as well. Everroad's husband, who was a truck driver for Scott Truck, saw Mulligan “verbally screaming at Dave Scott in a loud and humiliating manner while employed at STS.” R. 72, Ex. C. Hantzis acknowledged that Mulligan was a large man with a booming voice and a sarcastic wit, who liked to “tease” people. Hantzis also conceded that Mulligan sometimes did not control his anger well. But Hantzis and Scott both denied that Mulligan, whom they considered a friend, ever was insubordinate with them.

In August 2004, Scott and Hantzis moved Everroad from the dispatcher position to a newly created “data administrator” job. Everroad's new duties included filing, tracking information for payroll purposes, performing data entry, and screening the public. Everroad received the same pay and worked the same number of hours as in the dispatch job. Hantzis told Everroad that she could pick her own start time as long as she worked a full day, and so the job was more flexible than the dispatcher position. As data administrator, Everroad shared an office with Jennifer Sasser. Sasser, a twenty-eight year old hourly-wage employee, was responsible for copying audiobooks onto compact disks for the company's drivers to use on long trips. The shared office had only one telephone and it was placed on Sasser's desk. Sasser had health and family issues and made personal calls at work to address some of these problems. Everroad found the calls distracting and disturbing, and eventually complained to Hantzis about this issue. Hantzis counseled Sasser to use a lobby phone or her cell phone for extended calls, but Sasser fell back into her old pattern after a few days of compliance with Hantzis' request.

Everroad found it especially difficult to listen to Sasser's health-related calls after the long-time boyfriend of Everroad's sister suffered a heart attack. When she again complained to Scott and Hantzis about Sasser's excessive telephone use and the disturbing content of the calls, Hantzis suggested that Everroad take time off from work to address issues in her personal life. Everroad took offense at this suggestion and later compiled a written list of complaints about Sasser. She presented this list to Hantzis and Scott, who then called a meeting with Everroad and Sasser to resolve the conflict. The meeting did not go well. Everroad surreptitiously recorded the first hour and a half of the meeting. Both Everroad and Sasser denied there was a conflict. Sasser was asked to leave the meeting at some point and then rejoined it much later. By all accounts it was a lengthy and tense meeting. Voices were raised, accusations were exchanged, tears were shed, and eyes were rolled. By the end of the meeting, the group compiled proposals that might allow Everroad and Sasser to work peacefully in the same office. Plans were made to reconvene the next day to discuss the proposals. Hantzis and Scott, however, were disturbed by Everroad's conduct during the meeting and discussed that evening whether she had been insubordinate. They concluded she had been and began considering their options. The next morning, when they arrived at work, Everroad ignored Hantzis' morning greeting, but acknowledged Scott's greeting in an exaggerated manner. Irritated that Everroad had pointedly ignored Hantzis, and given the previous days' events, they decided to terminate her for insubordination. After consulting their attorney, Scott gave Everroad a termination letter and her final paycheck at the end of the workday, and waited while she gathered her belongings to leave. Everroad asked Scott why she was being fired and he replied, “You winked at Sherry.” Everroad took the opportunity to tell Scott that Hantzis had been saying unflattering things about him behind his back. By her own account, she also told Scott that he and his wife were “nuts, crazy, insane” and “sick.” Hantzis appeared a short while later and told Everroad that they cared about her. Everroad, by her own account, replied by telling Hantzis to “fuck herself” and also called her a “fucking bitch.” That evening, Everroad called Scott and asked for severance pay. Scott declined.

Everroad sued Scott Truck and Hantzis under federal and state law. She contended that Scott Truck violated Title VII by treating similarly situated male employees more favorably and by retaliating against her when she voiced opposition to this practice. She also alleged that Scott Truck violated the Age Discrimination in Employment Act (“ADEA”) by treating younger employees more favorably and by retaliating against her when she objected to this practice. Everroad brought state law claims against Scott Truck for wrongful termination and negligent retention, and against Hantzis for assault and intentional infliction of emotional distress. The district court granted summary judgment in favor of the defendants on Everroad's federal claims and declined to exercise supplemental jurisdiction over the remaining state law claims. Everroad appeals.

II.

On appeal, Everroad complains that the district court improperly refused to consider certified transcripts of the two secretly recorded conversations. She also asserts that the court erred in finding that she was not similarly situated to Tim Wilson and John Mulligan for the purposes of her Title VII claims. She maintains that the court erred again when it found Everroad was not similarly situated to Jennifer Sasser for the purpose of her ADEA claims. She contends that she adequately established that the non-discriminatory reason given by Scott Truck for her termination was pretextual, and that she also provided sufficient evidence to establish a causal link between her protected activity and adverse employment actions for the purpose of her retaliation claims. Our review of the evidentiary...