Hill v. Burrell Communications Group, Inc., 95-1658

• Citation: 67 F.3d 665
• Decision Date: 17 October 1995
• Docket Number: No. 95-1658,95-1658
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 207, 67 Empl. Prac. Dec. P 43,750 Sandra L. HILL, Plaintiff-Appellant, v. BURRELL COMMUNICATIONS GROUP, INCORPORATED, formerly known as Burrell Advertising, Incorporated, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 665

67 F.3d 665

69 Fair Empl.Prac.Cas. (BNA) 207,

67 Empl. Prac. Dec. P 43,750

Sandra L. HILL, Plaintiff-Appellant, v. BURRELL COMMUNICATIONS GROUP, INCORPORATED, formerly known as Burrell Advertising, Incorporated, Defendant-Appellee.

No. 95-1658.

United States Court of Appeals Seventh Circuit.

Argued Sept. 19, 1995.

Decided Oct. 17, 1995.

Thomas J. Dillon, Roger J. McFadden, Tyrrel J. Penn (argued), McFadden & Dillon, Chicago, IL, for Plaintiff-Appellant.

Stephen P. Durchslag, Gerald C. Peterson (argued), Vanessa L. Smith, Winston & Strawn, Chicago, IL, for Defendant-Appellee.

Before CUMMINGS, BAUER and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Sandra Hill filed this complaint under Title VII of the Civil Rights Act of 1964 (42 U.S.C. Secs. 2000e, et seq.). Hill, a white female, was discharged from Burrell Communications Group ("Burrell"), a mostly black company, after nine years as the company's Print Production Director. Hill was told that her position was being eliminated as part of a reduction in force. The district court granted Burrell's motion for summary judgment, and Hill now appeals. For the following reasons, we affirm.

Background

Burrell is a marketing communications firm that develops advertising primarily for the African-American community. The company also develops advertising for the general market and offers public relations and consumer promotion programs for a variety of clients. Burrell's personnel is primarily comprised of black employees. Burrell hired Hill in 1982 as its Print Production Manager. At the time she was hired, Stewart Novy was her immediate supervisor. Novy told Hill that if Burrell had been successful in its search for an African-American candidate with the proper qualifications, Hill, a white employee, would not have been hired.

In 1987, Anna Morris, Executive Vice President and Creative Director, assumed responsibility for Burrell's creative functions and thus became Hill's immediate supervisor. Morris soon promoted Hill to the position of Director of Print Production. As Director, Hill was a member of the Operations Committee, and she had authority to incur and approve expenses, to select vendors independently, to negotiate with talent, to serve as a liaison with vendors and clients, to act as producer on a print shoot, to hire, train, and develop print production personnel, and to assure compliance with Burrell's minority vendor program within the Print Production Department.

Burrell suffered a decline in print production volume and revenue when it lost the business of three major clients and a reduction in work from other clients. Print production dropped from 30 ads in 1989 to approximately 15 in 1990. Mr. Burrell informed department heads that personnel cutbacks would be necessary. On February 1, 1991, Morris informed Hill that the position of Print Production Director would be eliminated and her employment therefore terminated effective March 1, 1991. Morris told Hill that her position was eliminated because of overall company downsizing. In 1991, 13 employees other than Hill were terminated--11 black employees and 2 white employees.

In deciding to eliminate Hill's position, Morris considered the declining volume of print production along with the impending move to computerized paper-flow handling and decided that the Director's position along with its $50,000 annual salary was no longer justified. She concluded that the mechanical and technical functions could be performed by a supervisor and the Director's managerial functions could be absorbed by other managers. Thus Morris states that her reasons for terminating Hill were to reduce costs and to restructure print production. Morris also claims that Hill failed to satisfy Burrell's expectations. For example, Junette Smith, who was one of Hill's subordinates and a black employee, complained in 1989 that Hill relegated her to clerical chores and refused to consider her for a higher position. Another employee, Mary Bush, made a similar complaint. Burrell also received complaints that Hill refused to consider minority vendors for print production projects. In dismissing Hill, Morris stated that Hill "only uses minorities under duress."

In February 1991, Morris allegedly advised Glad Ball, Burrell's personnel administrator, that she had found a minority candidate to replace Hill. Ball apparently expressed surprise and told Morris that she was unaware of any problem with plaintiff. Morris interviewed Roxanne Hubbard, a black candidate, for the position of Print Production Supervisor in February 1991. Hubbard was offered the job and began work in April 1991 for $35,000 annually. Hill alleges that Hubbard had no prior agency print production experience and that her duties were substantially the same as Hill's duties. Morris claims that her first choice for the position was Anna Brown, a white candidate, but that Brown had already accepted other employment.

In October 1994, the district court granted defendant's motion for summary judgment on the ground that plaintiff's position was eliminated and her employment was terminated because of a steady decline in print production business. Upon reconsideration in February 1995, again granting defendant's motion for summary judgment, the district judge stated that Hill had not presented sufficient evidence to demonstrate that Burrell's proffered legitimate reason for firing her was pretextual.

Discussion

This Court reviews the grant or denial of summary judgment de novo. East Food & Liquor, Inc. v. United States, 50 F.3d 1405, 1410 (7th Cir.1995). In so doing, all evidence submitted and the legitimate inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Id.; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142.

Plaintiff can create a triable issue of discrimination through direct or circumstantial evidence. Direct evidence of discrimination is "evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant or its agents.... [A]nd since intent to discriminate is a mental state and mind reading not an accepted tool of judicial inquiry, it may be the only truly direct evidence of intent that will ever be available." Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir.1994). Plaintiff argues that Morris's alleged statement to Ball--"I believe I found a minority candidate to replace Sandra"--constitutes direct evidence of discriminatory intent. Morris's statement does not amount to an acknowledgment of discriminatory intent. Morris did not say that she sought to terminate Hill because she was white, nor does the statement in any way demonstrate that Morris sought to hire a new supervisor from a minority group. In Troupe, we cited Mojica v. Gannett Co., 7 F.3d 552 (7th Cir.1993) (en banc), certiorari denied, --- U.S. ----, 114 S.Ct. 1643, 128 L.Ed.2d 363, as an example of direct evidence. In Mojica, the plaintiff was told that she was not promoted because she was not a black male. Id. at 561. Morris's alleged statement to a third party is far from the acknowledgment of discrimination that was direct evidence in Mojica.

In the absence of direct evidence, a Title VII plaintiff must meet the standard established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, for proving discrimination by circumstantial or indirect evidence. Pilditch v. Board of Educ. of City of Chicago, 3 F.3d 1113, 1116 (7th Cir.1993), certiorari denied, --- U.S. ----, 114 S.Ct. 1065, 127 L.Ed.2d 385. First, the plaintiff must establish a prima facie case of race discrimination. Once established, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action. ¹ If defendant meets the burden, plaintiff must demonstrate that the employer's proffered reason is pretextual and that the employer's real reason for the adverse action was discriminatory. 411 U.S. at 802-805, 93 S.Ct. at 1824-26, 3 F.3d at 1116. This framework is such that once the defendant offers a legitimate, nondiscriminatory reason, the McDonnell Douglas framework "simply drops out of the picture," leaving the plaintiff with the ultimate burden of proving discrimination. 3 F.3d at 1116 (citing Hicks, --- U.S. at ----, 113 S.Ct. at 2749).

A prima facie case is made out under McDonnell Douglas by showing that the plaintiff is a member of a racial minority group, that he applied for and was qualified for a job for which the employer was seeking applicants, that he was rejected, and that afterward the position remained open to others with plaintiff's qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. Hill is not a member of a racial minority group. Thus applying the McDonnell Douglas standard literally in reverse discrimination cases such as this would prevent any plaintiff from making out a prima facie case. The standard, however, was never meant to be applied rigidly. Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Therefore, in cases alleging reverse discrimination, assuming the McDonnell Douglas standard applies, ² we have reasoned that the proper standard would require plaintiff to prove that she was meeting the employer's legitimate expectations, was adequately qualified for the job, was fired or not hired, and that the employer found a replacement of a different race. Pilditch, 3 F.3d at 1116 (citing Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir.1993), certiorari denied, --- U.S. ----, 114 S.Ct. 1372, 128 L.Ed.2d 48; Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 336 (7th Cir.1993); Fisher v. Transco Serv.-Milwaukee, Inc., 979 F.2d 1239, 1243 (7th Cir.1992)).

Plaintiff has established a prima facie case. It is clear that Hill was meeting Burrell's legitimate expectations. Nowhere in the record is it alleged that Hill failed to perform her responsibilities as Director....