Doe v. First Nat. Bank of Chicago

• Decision Date: 12 January 1989
• Docket Number: No. 87-2473,87-2473
• Citation: 865 F.2d 864
• Parties: 48 Fair Empl.Prac.Cas. 1305, 48 Empl. Prac. Dec. P 38,616 Jane DOE, Plaintiff-Appellant, v. The FIRST NATIONAL BANK OF CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 864

865 F.2d 864

48 Fair Empl.Prac.Cas. 1305,

48 Empl. Prac. Dec. P 38,616

Jane DOE, Plaintiff-Appellant, v. The FIRST NATIONAL BANK OF CHICAGO, Defendant-Appellee.

No. 87-2473.

United States Court of Appeals Seventh Circuit.

Argued April 12, 1988.

Decided Jan. 12, 1989.

David M. Mattenson, Kanter & Mattenson Ltd., Chicago, Ill., for plaintiff-appellant.

Lynn A. Goldstein, The First Nat. Bank of Chicago, Chicago, Ill., for defendant-appellee.

Before POSNER, COFFEY, and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

This dispute arose when defendant-appellee, First National Bank of Chicago ("FNBC"), terminated the employment of plaintiff-appellant, Jane Doe (a pseudonym, hereinafter "Jane"). Jane believed that FNBC fired her when FNBC became aware of the fact that she had an abortion while in FNBC's employment. She sued FNBC in federal district court, alleging that her discharge constituted impermissible discrimination based on gender, contrary to Title VII, as amended by the Pregnancy Discrimination Act of 1978. See 42 U.S.C. Secs. 2000e(k), 2000e-2(a)(1). Jane also alleged, as a pendent claim under Illinois law, that her discharge constituted a breach of contract. The district judge dismissed Jane's contract claim prior to trial, holding that an FNBC employment memorandum on which she rested her contract claim could not, as a matter of law, be construed as a binding contract of employment. See Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill.2d 482, 106 Ill.Dec. 8, 505 N.E.2d 314 (1987) (an employment manual may constitute a binding contract of employment only in limited circumstances). After a ten-day bench trial, the court ruled in favor of FNBC on the Title VII claim, finding that Jane had failed to bear the burden of demonstrating that FNBC discharged her because of the abortion. Jane appeals the district court's Title VII and contract rulings. We affirm.

I.

The parties agree that FNBC hired Jane as a legal assistant in its probate department on August 8, 1983. Jane had an abortion on Friday, January 4, 1985, and was terminated effective January 7, 1985. The parties agree on little else.

When FNBC hired Jane, it classified her as a Legal Assistant III, in the grade eight salary bracket. Jane had prior experience as a paralegal and was thus qualified to begin service as a Legal Assistant II, with a pay grade of nine. However, FNBC had posted the opening at the grade eight rank and salary and, under its hiring policies was not allowed to offer Jane the pay grade nine position without re-advertising the opening. Jane agreed to begin service as a Legal Assistant III, with the understanding that she would advance to the higher classification and salary grade in the near or not too distant future.

FNBC hired Jane as an assistant to Mary Roe (also a pseudonym, hereinafter "Mary"), a trust officer and probate administrator. Jane's duties included collecting estate assets, preparing investment reviews of assets and liabilities, and making various payments and disbursements from estate accounts. Jane's direct supervisor was Mary, but she was also indirectly supervised by Richard Roe (another pseudonym, hereinafter "Richard"), FNBC's probate department office manager. Richard testified that he only had an opportunity to observe "a small portion of [Jane's] performance," and "did not see the items she was given on a daily basis." Thus, evidence concerning Jane's work performance primarily consisted of observations made by Mary.

When Jane was hired, FNBC required her to sign a memorandum explaining FNBC's standards for its employees' work performance and personal conduct (the "employee memorandum"). The employee memorandum, which provided the foundation for Jane's breach of contract action, notified FNBC's new employees that:

"We think it is also important that you be aware of the standards of performance and personal conduct that are expected of all employees at FCC/FNBC. We believe that providing you with these rules now will reduce the possibility of your inadvertently not meeting these basic standards of conduct.

"The rules outlined below should be reviewed carefully. If you have any questions about them, we encourage you to discuss them thoroughly with your immediate supervisor. It is also possible that there will be more specific rules which pertain to your individual work unit. These will be discussed with you directly by your supervisor."

The employee memorandum then listed two classifications of employee misconduct, "major offenses" and "minor offenses." According to the memorandum, commission of a major offense "is cause for immediate dismissal," while commission of a minor offense provides cause for "disciplinary action." At trial, FNBC maintained that it discharged Jane for a major offense: "Performing job assignments in a grossly negligent manner which results in significant loss of Corporate or customer assets or significant embarrassment to the Corporation." Jane disagreed, contending that the alleged errors FNBC considered in its discharge decision constituted only minor offenses.

In addition to the employee memorandum FNBC also published a more detailed "policy manual." The 254 page policy manual explained a broad range of FNBC employee concerns, including pay and benefits; job evaluations; and most important to the problem before us, provided more specific disciplinary and termination procedures for both major and minor offenses. Jane did not cite the policy manual as a part of the contract she alleges FNBC breached. Instead, in Count II of her amended complaint, she specifically contended that the employee memorandum constituted the agreement between the parties, and she relied on no other document or agreement.

Once hired (on August 8, 1983), Jane began the ninety-day probationary period required of new FNBC employees. Jane was retained for full time employment after completing the probationary period. Later, on February 16, 1984, FNBC gave Jane a six-month performance evaluation that concluded that Jane's work "consistently met position requirements/objectives." Some two and a half months thereafter, on May 7, 1984, FNBC promoted Jane to the position of Legal Assistant II and raised her pay to grade nine. Jane interprets these events as clear evidence that her work satisfied FNBC standards during her early months with the bank. FNBC disagrees. The record provides some support for both interpretations.

Jane argues that FNBC clearly considered her a good employee, or it would not have retained and promoted her. For example, Jane cites Richard's testimony regarding her six-month evaluation. Richard testified that he considered the evaluation report to be "a pretty good recommendation." Similarly, Mary testified that Jane had done a "terrific job" during the last six weeks of the six-month evaluation period. Moreover, Jane's raise and promotion was an exception to FNBC's general rule that a full year of service was required before advancement. ¹ Richard wrote a memorandum in support of Jane's promotion, describing her as "bright, congenial, a good worker, and the type of person who is willing to handle more difficult and complex responsibilities." Richard also commended Jane for her communication skills and her attention to detail. (As we will discuss below, Jane's attention or inattention to detail became very important to the disposition of this case.)

FNBC agrees that it decided to retain Jane after her probationary period, but disagrees that this implies that Jane's work was particularly good. Mary testified that Jane was often inattentive to detail and took excessively long lunch breaks during the probationary period, according to Mary, she (Mary) warned Jane about the long lunch breaks and had doubts about retaining Jane. However, Mary attributed Jane's problems to personal difficulties and decided to keep her because she demonstrated the potential of becoming a good employee.

FNBC also contends that Jane's six-month evaluation does not imply that her work record was particularly strong, because there were problems with her work habits not reflected in the written report. FNBC introduced evidence that Jane failed to make a tax payment for an estate, requiring FNBC not only to pay a penalty but also interest. Richard testified that Mary brought this matter to his attention, and that he had also received complaints that Jane made too many personal telephone calls and was absent from her desk an inordinate amount of time. Because Mary had on previous occasions given Jane informal verbal warnings about her performance (the first step in FNBC's disciplinary and discharge policy), Richard issued Jane a formal verbal warning on December 21, 1983 (the second step in the disciplinary process). Richard also told Jane that she would be given a final, written warning if her work did not improve within two weeks. After the formal warning, Jane's work improved dramatically. Based on that turnaround, Mary and Richard gave Jane the positive six-month probationary period evaluation discussed above. However, FNBC points out that the evaluation report was not unqualified, for in fact it noted Jane's occasional inattention to detail. FNBC thus characterizes the overall evaluation as, at best, "average."

FNBC also contests Jane's claim that her promotion and raise necessarily imply a strong endorsement of the quality of Jane's work. Richard testified that the promotion simply indicates that FNBC was willing to make good on its earlier promise to elevate Jane to the position for which she was originally qualified. Thus, the promotion was spurred by the administrative efficiency gained in avoiding re-advertising the position by hiring Jane at the originally posted position and then advancing her to the position for which she was qualified. FNBC contends that the promotion, and the six-month review, when considered in the context of Jane's absences from her desk, errors in...