Dunn III v. Nordstrom Inc.

• Decision Date: 10 August 2001
• Docket Number: No. 00-2958,00-2958
• Citation: 260 F.3d 778
• Parties: (7th Cir. 2001) Harry C. Dunn, III, Plaintiff-Appellant, v. Nordstrom, Inc., Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 778

260 F.3d 778 (7th Cir. 2001)

Harry C. Dunn, III, Plaintiff-Appellant, v. Nordstrom, Inc., Defendant-Appellee.

No. 00-2958

In the United States Court of Appeals For the Seventh Circuit

Argued April 17, 2001

Decided August 10, 2001

Appeal from the United States District Court for the Southern District of Indiana. No. IP98-1599-C-M/S--Larry J. McKinney, Chief Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Fairchild, Cudahy, and Coffey, Circuit Judges.

Cudahy, Circuit Judge.

Nordstrom fired Harry Dunn, III, an African-American security guard at its Indianapolis retail store, after discovering that Dunn had brought a firearm into the store's employee service area. Dunn subsequently filed suit against Nordstrom, alleging that prior to his termination, Nordstrom demoted him in retaliation for a complaint of discrimination he filed with the Equal Employment Opportunity Commission (EEOC); that Nordstrom promoted a less-qualified individual over him following his second EEOC complaint; and that Nordstrom terminated his employment on the grounds of race, rather than for his violation of the company's weapons policy. The district court granted summary judgment in favor of Nordstrom. We affirm in part, reverse in part and remand for further proceedings.

I.

In June 1995, Nordstrom hired Harry Dunn (an African-American) to serve as a loss prevention agent at its Indianapolis, Indiana retail location. J. Bradley Hanen, the store's loss prevention manager (and thus Dunn's supervisor), informed Dunn on April 5, 1996 that he was being promoted to the position of "internal loss prevention lead."¹ Dunn alleges that this position was equivalent to assistant manager of the loss prevention department, and required him to interview new hires, oversee the department budget, investigate store employees and generally oversee the internal loss prevention department. Dunn also received an increase in salary to accompany his new responsibilities. However, in spite of his raise, Dunn believed that his rate of compensation was not comparable to the salary received by the two (white) individuals who had previously occupied his new position. Thus, in December 1996, Dunn filed a racial discrimination charge against Nordstrom with the EEOC. It appears that the EEOC did not act on this complaint.

Following this initial complaint to the EEOC, Dunn alleges that he was demoted from internal loss prevention lead/assistant manager while participating in a conference phone call with Joseph Maniaci, Nordstrom's regional loss prevention manager, as well as with other "internal leads" from other stores. During this conversation, Maniaci allegedly told Dunn that he should no longer call himself "internal loss prevention lead," but rather "internal investigator." In addition, Dunn alleges he was informed that his duties had been reduced so that he no longer supervised employees, oversaw the department's budget or staffed and trained department employees. Further, Dunn alleges that he was denied a $1 per hour raise as a result of his demotion.

On April 9, 1997, Dunn filed a second complaint with the EEOC, alleging that Nordstrom demoted him in retaliation for filing his initial EEOC complaint. As a result of this second complaint, Dunn alleges that Nordstrom promoted him back to internal lead investigator and provided him with the $11.75 per hour salary allegedly received by the previous white internal loss prevention lead investigators. Dunn was also awarded back pay for the previously incurred salary deficiency.

Following Hanen's departure from the store in November 1996, Dunn became the acting loss prevention manager. However, by January 1997, Patty Sammuli applied for and permanently occupied the manager position; after approximately six months, Sammuli transferred to Connecticut. Although Dunn believed he deserved the promotion to the newly-vacant manager position, Nordstrom instead transferred and promoted Carl Sims, who is also an African-American male. Prior to this promotion, Sims was the manager at a Nordstrom Rack located in Oakbrook, Illinois, where he apparently supervised only one employee.

On June 26, 1997, Dunn (who possessed a weapons permit) brought a handgun and loaded clip into the store's employee service area, storing them in an unlocked box on a shelf. Another loss prevention employee reported this to Sims, who located and disarmed the gun. When confronted by Sims, Dunn admitted to bringing the gun to work. Shortly thereafter, Nordstrom terminated Dunn for violating its express weapons policy, which states, "For your protection and safety of others, do not bring any potentially dangerous items to work, including weapons." When Dunn alerted management to similar conduct by Mark Fritz, a white loss prevention department employee, Nordstrom promptly terminated Fritz's employment. Dunn alleges, however, that the store manager was reluctant to fire Fritz and only did so out of considerations of fairness.

Dunn filed suit against Nordstrom under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec.sec. 2000e et seq., and 42 U.S.C. sec. 1981. In his complaint, Dunn alleged three separate acts of retaliation or discrimination by Nordstrom: (1) his demotion from assistant manager; (2) Sims' promotion to manager; and (3) his termination for violating the weapons policy. The district court disposed of all three claims on summary judgment. Specifically, the district court held that no material issues of fact existed with regard to Dunn's claim of retaliatory demotion from assistant manager because Dunn had failed to prove he had previously been promoted to that position. The district court further held that, even if Dunn had established this advancement, he had not shown any adverse consequences resulting from the less distinguished title he allegedly received following his initial complaint to the EEOC. Next, the district court dismissed Dunn's claim that Nordstrom retaliated against him by promoting Sims to loss prevention manager, noting that Dunn provided no supporting evidence other than self- serving assertions of his superior qualifications for the position. Lastly, the district court found that no material issues of fact existed with regard to Dunn's termination based on his violation of Nordstrom's weapons policy, and that Dunn did not supply evidence that the policy's enforcement was a pretext for discrimination. Dunn appeals.

II.

On appeal, Dunn argues that the district court should not have granted summary judgment on any of his retaliation and discrimination claims because material issues of fact exist with regard to each claim. We review de novo the district court's disposition of this case on summary judgment. See Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1282-83 (7th Cir. 1996). In so doing, we view the record in the light most favorable to Dunn, the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is only proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). On appeal, Dunn argues that the district court erred by granting summary judgment because issues of fact existed with regard to whether: (1) Nordstrom retaliated against him by demoting him following his initial complaint to the EEOC; (2) Nordstrom retaliated against him by promoting Sims following his second EEOC complaint; and (3) Nordstrom behaved in a discriminatory manner by terminating him despite an unofficial policy that, regardless of Nordstrom's official policy to the contrary, permitted employees to store firearms in the employee service area.

Because Dunn presents no direct evidence in support of his claims, he must present sufficient evidence to establish a prima facie case of discrimination under the burden-shifting methodology of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to prove a prima facie case of discrimination, Dunn must show that (1) he was a member of a protected class; (2) he was meeting Nordstrom's legitimate performance expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees outside of his protected class. See Foster v. Arthur Andersen, L.L.P., 168 F.3d 1029, 1035 (7th Cir. 1999).

The standard for establishing a prima facie case of retaliation is slightly different. Due to a "causal connection" requirement, "[t]he McDonnell Douglas standard that we apply in most of our retaliation cases is not really the McDonnell Douglas standard." See Bourbon v. Kmart Corp., 223 F.3d 469, 475 (7th Cir. 2000) (Posner, J., concurring). Rather, a plaintiff must establish that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action subsequent to his participation; and (3) there was a causal link between the adverse action and the protected activity. See Sweeney v. West, 149 F.3d 550, 555 (7th Cir. 1998). To prove a causal link, the plaintiff is required to show that the employer would not have taken the adverse action "but for" the plaintiff's engagement in the protected activity. See McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 483 (7th Cir. 1996).

Even if Dunn successfully establishes a prima facie case of either discrimination or retaliation, Nordstrom may nevertheless escape liability by articulating a "legitimate, nondiscriminatory reason" for its action. See Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). If Nordstrom clears this hurdle, the burden once again shifts to Dunn, who must then provide evidence that Nordstrom's asserted rationale is merely pretextual. See Essex v. United Parcel Serv.,...