Harriston v. Chicago Tribune Co.

• Decision Date: 08 July 1993
• Docket Number: No. 91-3319,91-3319
• Citation: 992 F.2d 697
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 319, 61 Empl. Prac. Dec. P 42,221, 25 Fed.R.Serv.3d 1018 Octavia O. HARRISTON, on her behalf and on behalf of the class of other persons similarly situated, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, a corporation, Charles Brumback, President, John Sloan, Vice President, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 697

992 F.2d 697

63 Fair Empl.Prac.Cas. (BNA) 319,

61 Empl. Prac. Dec. P 42,221, 25 Fed.R.Serv.3d 1018

Octavia O. HARRISTON, on her behalf and on behalf of the

class of other persons similarly situated, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, a corporation, Charles Brumback,

President, John Sloan, Vice President, et al.,

Defendants-Appellees.

No. 91-3319.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 22, 1992.

Decided April 29, 1993.

Rehearing and Rehearing En Banc

Denied July 8, 1993.

Hope F. Keefe, Robert J. Leoni (argued), Nicholas B. Svalina, Brunswick, Keefe & Deer, Blue Island, IL, for plaintiff-appellant.

Brenda H. Feis, John W. Powers (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for defendants-appellees.

Before MANION and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

MANION, Circuit Judge.

The Chicago Tribune Company ("Tribune"), an Illinois corporation that publishes and distributes the Chicago Tribune newspaper, employed Octavia Harriston ("Harriston"), a black woman, from 1965 to 1989. Over the years she received a number of promotions and pay increases. After receiving some critical performance appraisals, she brought a discrimination action against the Tribune, Charles Brumback, John Sloan, and Vincent Riordan ("Defendants"). Harriston appeals the district court's grant of the Defendants' motion to dismiss and motion for summary judgment. We affirm.

I. Background

A. Facts

The Tribune hired Harriston in 1965 as a part-time, voluntary advertisement taker. During the next fifteen years of Harriston's career with the Tribune, she was promoted to various positions within the Advertising Department. In 1980, the Tribune elevated her to the position of Display Salesperson in the Retail Advertising Department. The job was a grade nine in the Tribune's job classification system. As a Display Salesperson, Harriston's responsibilities included selling retail merchants advertising space and providing them with various marketing information. The Tribune eventually assigned Harriston to the North Michigan Avenue territory, which included the smaller retail stores along North Michigan Avenue and Oak Street in downtown Chicago. While Harriston worked in the Retail Advertising Department, she received good performance appraisals each year. From 1980 to 1984, she never received a performance appraisal below "satisfactory," and she sometimes received evaluations of "above average" and "exceptional." ¹

In 1984, George Veon, the Tribune's Vice President of Employee Relations, asked Harriston whether she wanted to transfer from the Retail Advertising Department to the Employee Relations Department and become the EEO/Employment Manager. As EEO/Employment Manager, she would be responsible for hiring new employees, on-campus college recruiting, filing EEO (Equal Employment Opportunity) reports, and handling discrimination charges and lawsuits. The new position would be a promotion for Harriston, from a grade nine to a grade thirteen. She would be the first black person to hold the position. The people who held the position before her were white.

Harriston reluctantly accepted the position, which she considered a "great challenge" and a "major opportunity." Her hesitance stemmed from her concern that she was not qualified for the job. She lacked experience in personnel and employee relations and did not have a college degree. She was also concerned because she neither had experience in employee recruiting nor in screening employment applications, and she had no background in preparing EEO reports or in responding to EEO charges. During Harriston's tenure as the EEO/Employment Manager (from December 1984 until June 1987), Veon gave her only one formal performance evaluation, which occurred in June 1986. Even though she received a satisfactory evaluation, Harriston admitted to Veon that the position was a "struggle" for her and that she felt in "over [her] head."

When Harriston became the EEO/Employment Manager, the position was not eligible for participation in the Tribune's Management Incentive Fund ("Incentive Fund"), nor had it been prior to her arrival. The Incentive Fund is a discretionary bonus program that provides additional money each year to eligible members of management. Eligibility for the Incentive Fund does not depend on job grade level or personal performance; it depends on the nature of the position the employee holds. According to the terms of the Incentive Fund Plan, to participate an employee must hold a position that has direct or indirect material influence on profitability, authority to supervise subordinate personnel, or administrative control over major company programs of revenue development or cost controlling significance. Eligibility in the Incentive Fund also assumes no right to participate in any sales incentive programs. The Tribune employs an outside consultant to assess the overall contribution a position makes to the Tribune's profitability.

In April 1987, John Sloan replaced Veon as the Vice President of Employee Relations. Sloan found Harriston's work performance as EEO/Employment Manager unsatisfactory, mainly because she lacked the skills a human resources manager needed. Sloan thought Harriston better suited for the work done in the Advertising Department, and he contacted Robert Holzkamp, the Vice President of Advertising, to determine the availability of any positions suitable for Harriston. Sloan later learned that an opening would be occurring for a Senior Sales Representative for the Michigan Avenue territory.

Sloan informed Harriston about the opening. He told her the position was a job grade level fourteen, one level above her position as the EEO/Employment Manager. He also told her that he might be restructuring the Employee Relations Department because of what the Tribune was now requiring the Department to accomplish. Harriston then spoke with Vincent Riordan, the Manager of the Central Division of Retail Advertising, who was in charge of the position. Riordan informed her that as Senior Sales Representative she would be responsible for the territory made up of North Michigan Avenue retail stores, an area similar to the one she had worked before she became the EEO/Employment Manager. Along with dealing with retailers, Harriston would be required to coordinate a new program in the area of cooperative advertising ("the RECAS project"). As Senior Sales Representative, Harriston would be eligible for certain bonus programs, excluding the Incentive Fund.

Harriston accepted the position, effective June 1987. Her new salary was $51,500.00 per year, which was $2,000.00 more than she had made as the EEO/Employment Manager. Ronald Williams, a black man, replaced Harriston as the EEO/Employment Manager. Unlike Harriston, Williams had considerable experience in the area of human resources, something that was needed in light of the change in the Employee Relations Department. Sloan thereafter restructured the EEO/Employment Manager position, making it eligible for participation in the Incentive Fund.

In June 1988, after working as a Senior Sales Representative for one year, Harriston received her first performance appraisal. Riordan gave her a "satisfactory" rating, but criticized her sales level. Owing to her "satisfactory" evaluation, Harriston received a $2,060.00 salary increase, which brought her annual salary to $53,560.00. Still, throughout the remainder of 1988 Riordan continued to observe problems with Harriston's work. She failed to serve properly some of her advertising accounts, and the annual revenue in her territory had declined approximately $257,000.00 from the previous year.

To help Harriston increase her sales performance, Riordan removed her from the RECAS project in January 1989. Her sales did not improve. Revenue in her territory for the first four months of 1989 was down nearly $75,000.00. In May 1989, Riordan sent Harriston a memorandum expressing his displeasure with her sales performance and requested her to inform him how she planned to improve. Riordan did not threaten to fire Harriston. Harriston, however, failed to respond to the memorandum. Instead, she submitted a letter of resignation in June 1989. In the letter, she alleged age and race discrimination as well as retaliation against her both because she had filed complaints with the Equal Employment Opportunity Commission in the past concerning employment discrimination against her and because she had an employment discrimination lawsuit against the Defendants pending in a federal district court.

B. District Court Proceedings

In October 1987, Harriston filed her initial complaint in the United States District Court for the Northern District of Illinois against the Tribune, Brumback, and Sloan. She raised a race discrimination claim under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and she included class allegations in the complaint about the Tribune's hiring and promotion practices regarding blacks. She did not move for class certification. In June 1988, Harriston amended her initial complaint to include age and race discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. In June 1989, Harriston filed a second amended complaint, adding Riordan as a Defendant, and raising a constructive discharge claim under Title VII, she also raised a pendent state-law claim for intentional infliction of emotional distress.

The Defendants moved the district court to dismiss the section 1981 claim and the intentional infliction of emotional distress claim from Harriston's second amended complaint. In her section 1981 claim, Harriston alleged, in part, that Sloan had promised her a promotion if she left the EEO/Employment Manager position and accepted a position in the Advertising Department. She claimed the...