Hossack v. Floor Covering Associates of Joliet

• Decision Date: 05 July 2007
• Docket Number: No. 04-3990.,04-3990.
• Citation: 492 F.3d 853
• Parties: Vicki HOSSACK, Plaintiff-Appellant, v. FLOOR COVERING ASSOCIATES OF JOLIET, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

492 F.3d 853

Vicki HOSSACK, Plaintiff-Appellant, v. FLOOR COVERING ASSOCIATES OF JOLIET, INC., Defendant-Appellee.

No. 04-3990.

United States Court of Appeals, Seventh Circuit.

Argued April 13, 2006.

Decided July 5, 2007.

Ernest T. Rossiello (argued), Rossiello & Associates, Chicago, IL, for Plaintiff-Appellant.

Linda M. Doyle (argued), McDermott, Will & Emery, Chicago, IL, for Defendant-Appellee.

Before COFFEY, KANNE and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff Vicki Hossack had an extramarital affair with a fellow employee, Nick Cladis, while working for Floor Covering Associates of Joliet, Inc. Subsequently, Hossack was terminated, but the employer did not discharge Cladis. Hossack claimed sex discrimination and sued for relief under Title VII, see 42 U.S.C. §§ 2000e-2(a), et seq. The jury returned a verdict in her favor, but the trial court, after a hearing, set aside the verdict and entered judgment as a matter of law in favor of the defendant. See Federal Rule of Civil Procedure 50(b). Hossack appeals, and on review we are convinced that no reasonable jury could have concluded that Hossack was a victim of intentional sex discrimination. WE AFFIRM.

I. BACKGROUND

Floor Covering Associates hired Vicki Hossack in October of 1997, and she was promoted to the position of office manager at the Joliet store in June of 2000.¹ The Joliet store was co-managed by Nick Cladis and Dave Lenz, Hossack's immediate supervisor. Lenz reported directly to Floor Covering Associates's president and owner, Robert Hill.

At trial, Hill testified that he was the sole owner of the parent company Floor Covering Associates, Inc. (FCA), located in Shorewood, Illinois.² The company manages the purchasing of inventory and distribution of products to its affiliated retail stores as well as providing support services such as payroll, human resources, and bookkeeping to its retail stores. Hill is the sole owner of three of the retail stores: Floor Covering Associates of Joliet, Inc.³, Floor Covering Associates of Merrillville, Inc., and Floor Covering Associates of Naperville, Inc. Each of the three stores is separately incorporated, while Hill is the part owner of a store in Kankakee, which is also separately incorporated. When the events relative to this trial occurred, FCA, the parent company, employed twenty-seven people, the Joliet store employed thirty, the Naperville store employed fifty-four, and the Kankakee store employed nineteen. Each store is responsible for invoicing and for collecting all of the receivables, but the stores share neither inventory nor warehousing.

Hill referred to Hossack as the "head bookkeeper, the office manager" at the Joliet store. He testified that her duties included collecting all receivables, invoicing customers, preparing lien waivers, managing the inventory, counting the inventory on a monthly basis, answering questions for everybody, and issuing credit. As noted above, Cladis was employed by the Joliet store as a co-general manager with David Lenz. Cladis primarily concentrated on sales to builders.

In early 2001, Hossack and Cladis, both of whom were married and living with their respective spouses, as stated earlier, engaged in an extramarital affair. The affair lasted approximately eighteen months, until June 11, 2002, when Hossack's husband, Joseph Zastrow,⁴ became aware of the affair upon discovery of letters from Cladis to Hossack, which she had secreted in her dresser drawer. He confronted his wife with the information and she, in turn, called the Joliet store the following morning and informed them that she was taking a personal day off. The following day, on June 13, 2002, Hossack again called the Joliet store and spoke with her supervisor, David Lenz, and requested permission to take her remaining eight vacation days in order to resolve her personal issues at home. Lenz approved her request for vacation time. At this point in time, no one employed by FCA or the stores other than Hossack and Cladis had any knowledge of the affair.

On June 17, 2002, Hossack returned to the Joliet store during her time off to fill out her time sheet and to complete the company's vacation request forms. While there, Hossack spoke with Lenz. She told him that she had been having an affair with Cladis, that after her husband found out about the affair he became emotionally upset, and that their daughter feared he might be suicidal. She explained that she was requesting the vacation time to deal with her marital problems and also informed Lenz that her husband did not want her to continue to work and be in contact with Cladis.

Lenz testified at trial that he interpreted Hossack's statements during this conversation as a resignation, but when Hossack took the stand, she disagreed and made it clear that she had not resigned. On direct examination, Lenz stated that:

Lenz: She (Hossack) came to my office first thing in the morning to speak to me. She walked in the office, closed the door behind her and told me that she was going to have to quit. I didn't understand exactly why at that point in time and with just a very little bit of questioning, she came forward and she said, "Well, you're going to find out soon enough that I'm quitting because Joe's found out that I've been having an affair with Nick Clavis [sic]."

Transcript at 139-40. After meeting with Hossack, Lenz met with FCA's owner and president, Robert Hill, and informed him of his conversation with Hossack and said that she had resigned. Hill asked Lenz to arrange a meeting with Hossack the following day.

At Lenz's request, on June 18, 2002, Hossack met with Hill and Mary Gallup, FCA's director of human resources. Hossack did admit that, at the meeting, she told Hill and Gallup that it might be in the best interest of the company for her to quit because her husband did not want her to work with Cladis anymore. Hill, in reply, advised Hossack that she was a valued employee, that FCA wanted to retain her as an employee, and that he hoped he would be able to resolve the problem in a way that would be to everyone's satisfaction. Hill proposed three possible options: (1) Hossack and Cladis could continue to work together at the Joliet store; (2) Hossack could resign; or (3) Cladis could be transferred to the Naperville store. Hossack told Hill that she preferred the option of Cladis transferring to another store, but admitted at trial that Hill had made it clear that this option was not guaranteed because it had yet to be discussed with Cladis and Lenz. At the close of the meeting, Hill assured Hossack that management would remain in contact with her in the coming days while it reached a decision.

While Hossack was still on leave, her husband called Cladis on two separate occasions and warned him on each occasion to stay away from his wife. Furthermore, during one of these calls, Zastrow told Cladis that he "was going to make [Cladis's] life as miserable as he had made his" and that he would tell Cladis's wife of the affair. Cladis reported the telephone calls to Lenz.

On June 20, 2002, Gallup, Lenz, and Dan Majetich, FCA's executive vice president, met and discussed the problem in an attempt to help resolve the situation. Hossack's supervisors determined that transferring Cladis to the Naperville store was not in the best interest of the Joliet store because Cladis was the best-producing salesman at the Joliet store and that, based on the concerns that he had about Zastrow's behavior and threats, Hossack's continued employment at the Joliet store would be disruptive. Cladis, who arrived several minutes after the meeting began, told the group that he had just spoken with Hossack and that she had indicated that she would not be returning to work. Thus, the assembled group decided to accept Hossack's resignation.

That evening, Hossack telephoned Lenz to inform him that she and her husband had reconciled and that he no longer objected to her working with Cladis at the Joliet store. According to Hossack, she was surprised when Lenz told her that the store had decided to accept her statement of resignation because of her husband's threatening behavior.

The following day, when Hossack went to the Joliet store to pick up her paycheck, she met with Lenz, who told her that Cladis was simply a better choice for the company because, in addition to his duties as co-manager, he was the top salesman and revenue generator at the Joliet store at this time. Lenz then asked Hossack to sign a voluntary resignation form, but she refused.

Later that morning, FCA sent a letter to Hossack, authored and signed by Gallup (FCA's director of human resources), confirming that, based on her statements of resignation to both Lenz and Hill, Hossack was terminated as of that date. The letter also stated that FCA did not plan to rehire Hossack because "it would be most disruptive to bring [her] back into this operation."

Cladis was neither discharged nor disciplined by the defendant for his role in the consensual affair with Hossack. Thereafter, on July 3, 2002, Hossack filed a charge of sex discrimination with the Illinois Department of Human Rights and with the federal Equal Employment Opportunity Commission (EEOC). Sometime later, Cladis was transferred to the Naperville store. The defendant claims that it transferred Cladis due to the negative reaction of his fellow Joliet employees, who blamed him for Hossack's termination. In October of 2002, Cladis and Lenz left FCA's employment to work for a competitor.

After 180 days passed without any proceedings or resolution of the dismissal, the EEOC issued Hossack a Notice of Right to Sue. She filed suit in federal court against Floor Covering Associates of Joliet, seeking relief for sex discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. §§ 2000e-2(a), et seq. The case proceeded to trial, and the defendant moved for judgment as a matter of law at the close...