Goodman v. Nat'l Sec. Agency Inc.

• Decision Date: 03 September 2010
• Docket Number: No. 09-2043.,09-2043.
• Parties: Claudette GOODMAN, Plaintiff-Appellant, v. NATIONAL SECURITY AGENCY, INC., Ibrihim A. Kiswani and Abdul S. Kiswani, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

621 F.3d 651

Claudette GOODMAN, Plaintiff-Appellant,

v.NATIONAL SECURITY AGENCY, INC., Ibrihim A. Kiswani and Abdul S. Kiswani, Defendants-Appellees.

No. 09-2043.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 17, 2009.

Decided Sept. 3, 2010.

Steven C. Fuoco, Attorney (argued), Highland Park, IL, for Plaintiff-Appellant.

Mark Hansen, Attorney (argued), Chicago, IL, for Defendants-Appellees.

Before ROVNER, SYKES, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

National Security Agency, Inc. (a Chicago-based private security company, not the secretive intelligence-gathering arm of the federal government) hired Claudette Goodman at a job fair at the end of August 2004. National was ramping up its operations and needed to staff at least two locations for which it had contracted to provide security. Goodman was hired at an initial rate of $8.25 per hour and began a shift at a North Town housing complex. The shift at the North Town complex was from 6:00 p.m. to 4:00 a.m.

Because she was caring for a teen-aged child, Goodman sought a more favorable shift and transferred to the National operation at Hilliard Homes. Working at National, according to Goodman, was fraught with difficulties. She sensed that she was being overcharged for her uniform. She was sometimes not paid on time. She was often paid less than she was owed. Her checks from National sometimes bounced. But, early on in her time at National, Goodman was promoted to a supervisor position and got a raise to $8.75 an hour.

Goodman was in regular contact with Ibrihim Kiswani, National's owner-operator, about the problems she faced working at his company. (The other defendant, Abdul, is Ibrihim's brother. For all intents and purposes, he is irrelevant to the case.) In August 2005, Goodman suspected that male employees were being paid more than she was. She confronted Kiswani about the suspected pay disparity. He denied it. In October 2005, she got a job at Titan Security. She quit National and started at Titan the next day for $10 an hour.

We have recounted the facts above as the parties have agreed they happened, with deference to the plaintiff's version of events. At issue in this case is whether Goodman was discriminated against in violation of either the Equal Pay Act, 29 U.S.C. § 206(d), or Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1). The district court found that Goodman had not offered evidence sufficient to defeat National's motion for summary judgment on either claim. Specifically, the district court found that Goodman had offered insufficient evidence to prove that there was a discriminatory deficiency in pay or that she was retaliated against as a result of her pay complaints. Goodman appeals the grant of summary judgment.

The disputed issues in the case surround Goodman's departure from National and the rate at which other National employees were paid. Goodman claims that, because of her complaints, her hours at the Hilliard Homes site were changed and that, ultimately, she was scheduled to be transferred back to the North Town complex (a more dangerous location) for the night shift, which would make it difficult to care for her daughter. This impending transfer, she argues, was sufficient to create the adverse employment action required under the retaliation provisions of both the Equal Pay Act and Title VII. She also claims that she offered sufficient evidence that similarly situated male employees at National were paid more than she was.

We review the summary judgment grant de novo and construe all facts and reasonable inferences in favor of the non-moving party (the plaintiff, in this case). Poer v. Astrue, 606 F.3d 433, 438-39 (7th Cir.2010). Summary judgment is only appropriate if the evidence submitted below reveals no genuine issue as to any material fact and the moving party (the defendant) is entitled to judgment as a matter of law. Id. at 439. We often call summary judgment, the “put up or shut up” moment in litigation, see, e.g., Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 476 (7th Cir.2010); Eberts v. Goderstad, 569 F.3d 757, 767 (7th Cir.2009), by which we mean that the non-moving party is required to marshal and present the court with the evidence she contends will prove her case. And by evidence, we mean evidence on which a reasonable jury could rely. See AA Sales & Assocs., Inc. v. Coni-Seal, Inc., 550 F.3d 605, 613 (7th Cir.2008).

Much of the difficulty in resolving this case stems from the state of the evidence. There is little extrinsic evidence supporting Goodman's claims, so Goodman's task was to demonstrate that her testimony and the testimony of a coworker, Michael Moore, was sufficient to create a triable issue of fact. Goodman has pointed to several inconsistencies in this testimony that, she argues, reveal genuine issues of fact that merit consideration by a jury. To survive summary judgment on her retaliation claim, Goodman needed to offer evidence to prove the existence of an adverse employment action after she complained about her pay rate. To survive on the discrimination claim, Goodman needed to offer evidence of a discriminatory pay disparity. See Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787 (7th Cir.2007) (“To survive summary judgment, [the plaintiff] must make a sufficient showing of evidence for each element of her case that she bears the burden of proving at trial.”).

I. Retaliation

Goodman alleges that two acts support her Title VII and Equal Pay Act retaliation claims. Most of the evidence Goodman offers regarding these alleged adverse employment actions comes from her own testimony. And, reading her deposition, we are convinced that her testimony is insufficient to create a triable issue of fact on the issue. “[E]vidence establishing that an adverse employment action has actually taken place is an essential element of [a retaliation] claim.” Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1029 (7th Cir.2004). This is true for both Title VII and Equal Pay Act retaliation claims. See Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir.2005).

Her first allegation is that National changed her hours in mid-2005 and demoted her from site to shift supervisor. The plaintiff's own testimony does not support her claim. Goodman testified in her deposition that her hours never changed at Hilliard Homes and that she worked the day shift until she quit. Her lawyers are now relying on Ibrihim Kiswani's deposition testimony that he changed Goodman's hours. Even assuming that we disregard the plaintiff's own testimony on the issue, we would need something more than Kiswani's testimony about a change in hours to make out a materially adverse employment action. Goodman needed to provide evidence of harm. See Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”). Her lawyers claim that Goodman's childcare situation made the hours unworkable, but there is absolutely no testimony in the record that this alleged shift change affected her childcare arrangements. Furthermore, it appears that if her hours changed, they changed in July 2005 (as with all the evidence in the case, the evidence of timing is unclear). She did not quit until that October. Considering that Goodman is silent about the change in hours, she certainly has not offered any evidence of harm. Accordingly, the evidence she offers on the hour change fails to establish a genuine issue of material fact.

The same thing goes for the argument that she was demoted from her position as site supervisor to shift supervisor after her complaint. As plaintiff concedes, however, “reassignment of job duties is not automatically actionable.” Id. at 71, 126 S.Ct. 2405. Here, Goodman's pay and benefits did not change and Goodman does not even allege that the job change affected her responsibilities, or moreover, that it affected her in any way, except for having to report to the new site supervisor, Michael Moore. Goodman makes no allegation that reporting to him was itself an adverse employment action. Accordingly, Goodman has once again failed to show that she was harmed by the change.

Finally, we come to the end of her employment. Goodman says she was reassigned to a shift she could not work, which was in essence a type of constructive discharge because the reassignment forced her to look for a new job. Her chief problem with this claim is factual; she was never reassigned. At her deposition she first testified, under examination from the defendant's lawyer, that she quit her job because National wasn't paying her as much as the other supervisors and that a paycheck had bounced. When pressed as to whether she had listed all the reasons for leaving National, Goodman offered more: “not getting paid on time; waiting two weeks for a check ...; getting cheated out of overtime; paying for unnecessary uniforms;” and being treated poorly by management when she complained that she hadn't been paid. All of these are great reasons to quit a job, but notably Goodman omitted the impending shift change that she now alleges was retaliatory.

So Goodman's counsel later in the deposition asked her whether the North Town work site was “sometimes used as punishment” by National. She testified that it was “[b]ecause I do recall when I had questioned Abraham [Ibrihim, her boss,] regarding my pay, he had mentioned that he was going to send me back to North Town. And he knew I couldn't work those hours.” Her lawyers point to this statement as establishing an adverse employment action. And to make it more clear, plaintiff's counsel reminded her of when defendant's counsel asked her to list “all the reasons” why she left National and whether the shift change to North Town was one of the reasons. “Yes it was,” she says, “but there's so many reasons why I...