Donley v. Stryker Sales Corp.

• Decision Date: 15 October 2018
• Docket Number: No. 17-1195,17-1195
• Parties: Kelley DONLEY, Plaintiff-Appellant, v. STRYKER SALES CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

906 F.3d 635

Kelley DONLEY, Plaintiff-Appellant,

v.STRYKER SALES CORPORATION, Defendant-Appellee.

No. 17-1195

United States Court of Appeals, Seventh Circuit.

Argued February 28, 2018

Decided October 15, 2018

Kathleen Sedey, Attorney, CASE LAW FIRM, LLC, Chicago, IL, for Plaintiff - Appellant.

Tracy M. Billows, Ashley Kircher Laken, Attorneys, SEYFARTH SHAW LLP, Chicago, IL, for Defendant - Appellee.

Before Manion, Sykes, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Kelley Donley sued her former employer, Stryker Sales Corporation, for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3. She argues that Stryker fired her in retaliation for filing an internal complaint against a sales manager who had sexually harassed another employee. The district court granted summary judgment for Stryker, finding that Donley did not offer evidence supporting a causal link between her harassment complaint and Stryker’s decision to fire her. Applying the familiar standard for summary judgment, we must give Donley as the non-moving party the benefit of conflicts in the evidence and any reasonable inferences in her favor. Under that standard, we find a genuine issue of material fact about the reason Stryker fired her. We therefore reverse the judgment and remand for trial.

Our account of the facts here does not vouch for the objective truth of every detail but applies the summary-judgment standard to the evidence, and there are some key disputed facts. In 2010, Donley began working as the corporate-accounts director for Stryker, a medical-equipment manufacturer and retailer. She repeatedly failed to submit her expense reports, however, and was demoted to clinical manager.

In June 2014, Donley learned from co-workers that one of Stryker’s sales managers had sexually harassed a subordinate. Donley filed a formal harassment complaint with Stryker’s director of human resources, Stacie Ferschweiler. Stryker investigated the complaint, resulting in the firing of the manager, though he also received a substantial severance package.

In August 2014, just after that manager was fired, Stryker began investigating Donley herself. The focus was an incident six weeks earlier at a team meeting in Vail, Colorado. One evening, Donley had taken photographs of the female CEO of one of Stryker’s vendors in an intoxicated state. Donley had then shared the photographs with co-workers. During this investigation, Donley denied taking any videos or photographs of the vendor that were "compromising." She maintained that she had escorted the vendor up to her hotel room out of concern for her safety.

The parties dispute precisely when Donley’s photographs first came to the attention of human resources director Ferschweiler and Donley’s supervisor, Jeff Thompson. Donley said that she showed Thompson the photographs at the hotel bar in Vail on the night she took them. Stryker’s written response to Donley’s EEOC charge said that Donley showed the photographs to Thompson, that Thompson was "unamused," and that he told Donley to delete the photographs.

In the lawsuit, however, Thompson has denied seeing the photographs that night in Vail. He testified in his deposition that he recalled hearing about the incident from other employees some time after the team meeting. He also testified that he told Ferschweiler about the photographs before the formal investigation had commenced. If his testimony on that last point is credited, it helps Donley because Ferschweiler testified differently. She testified that she did not learn about the Vail incident until August 2014 when she conducted an exit interview with a departing employee who complained about Donley’s unprofessionalism.

In any event, Ferschweiler conferred with Thompson over the investigation’s results. According to Stryker, they decided that Donley should be fired because taking photographs of a valued partner while intoxicated was unacceptable. The termination letter stated that Donley had engaged in "inappropriate conduct and poor judgment" and that her conduct violated Stryker’s employment policies. Unlike the sales manager she had complained about, she was not offered a severance package.

Donley then sued Stryker under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3, for retaliating against her based on the internal complaint she had filed. In her view, Stryker’s retaliatory motive can be inferred from the suspicious timing of her firing (only six weeks after she filed the complaint); from the more favorable treatment afforded to the manager who was also fired for misconduct; and from evidence of pretext—specifically Stryker’s inability to explain how her conduct violated company policy, and especially Thompson’s and Ferschweiler’s inconsistent recollections of learning about the photographs. From Donley’s point of view, Thompson had originally told her to delete the photographs but had not thought any further response was needed. And Ferschweiler had learned of the Vail incident without taking any action herself. As Donley views the evidence, Ferschweiler and Thompson did not conclude that she should be fired over the Vail incident until after Ferschweiler and/or Thompson had learned that she had engaged in activity protected by Title VII, complaining about another manager’s sexual harassment of another employee

The district court granted summary judgment for Stryker. Applying the standard set forth in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764–65 (7th Cir. 2016), the court found that the evidence as a whole could not lead a reasonable factfinder to conclude that Donley’s internal complaint caused her termination. According to the court, the "undisputed material facts demonstrate that Stryker terminated Donley’s employment because of her own drunken conduct in Vail, Stryker’s policies, and its valued relationship with the CEO." The court deemed irrelevant the dispute over when Thompson learned about the photographs because the decision was made to fire Donley before he knew about her internal complaint. Without knowledge of Donley’s internal complaint, the court reasoned, a desire to retaliate against Donley for her internal complaint could not have motivated his actions. Further, the court concluded, Donley was not directly comparable to the fired manager who had received a severance package; he held a more senior position, reported to a different superior, and was fired for different conduct by different decision-makers.

On appeal, Donley argues that the suspicious timing of the investigation could convince a reasonable factfinder that Thompson and Ferschweiler decided to fire her in retaliation for filing the internal complaint. She has offered evidence that both Thompson and Ferschweiler knew about the photographs before the August 2014 investigation. Neither took any disciplinary action against her until after she reported the other manager for sexual harassment. She points to Stryker’s response to her EEOC charge. Stryker said that Thompson saw the photographs at the team meeting in Vail. That evidence is helpful to Donley, both in contradicting Stryker’s defense in the lawsuit and also in suggesting that Thompson did not think Donley’s actions in Vail warranted her firing, at least initially.

Stryker counters that the EEOC statement should not be admissible as evidence against it. Stryker contends that this court has been "reluctant to give substantial weight to a position taken in adversary proceedings before the Department [of Human Services]." See McCoy v. WGN Cont’l Broadcasting Co ., 957 F.2d 368, 373 (7th Cir. 1992). In McCoy an employer accused of age...