In re Johnson

• Decision Date: 21 October 2013
• Docket Number: No. 12–1699.,12–1699.
• Citation: 733 F.3d 722
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Merdelin V. JOHNSON, Plaintiff–Appellant, v. GENERAL BOARD OF PENSION & HEALTH BENEFITS OF the UNITED METHODIST CHURCH and Alexandra Jung, Defendants–Appellees.

733 F.3d 722

Merdelin V. JOHNSON, Plaintiff–Appellant,

v.GENERAL BOARD OF PENSION & HEALTH BENEFITS OF the UNITED METHODIST CHURCH and Alexandra Jung, Defendants–Appellees.

No. 12–1699.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2013.

Decided Oct. 21, 2013.

Merdelin V. Johnson, Evanston, IL, pro se.

Carla J. Rozycki, Jenner & Block LLP, Chicago, IL, for Defendants–Appellees.

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Plaintiff Merdelin Johnson sued her former employer, the General Board of Pension & Health Benefits of the United Methodist Church (“General Board”), alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, as well as sexual harassment in violation of Title VII. On her § 1981 claims, Johnson also named as a defendant Alexandra Jung, a General Board employee involved in selecting candidates for open positions. Most of Johnson's claims were dismissed on defendants' motion for summary judgment. Two remaining claims for retaliation were then tried to a jury, which returned a verdict for the defendants. Johnson has appealed the grant of partial summary judgment and the denial of her post-trial motions for a new trial and for relief from judgment.

We affirm. The district court properly granted summary judgment on most claims. In the trial of the two remaining claims, we see no abuse of discretion in the many evidentiary rulings that Johnson challenges. Johnson has raised several procedural and substantive objections to the final jury instructions. The district court failed to comply with Federal Rule of Civil Procedure 51(b), which requires the court to decide the content of final jury instructions and give the parties an opportunity to object before the instructions and final arguments are delivered. That procedural error was ultimately harmless, though. We find no substantive error in the instructions actually given, and Johnson has not shown that she was otherwise prejudiced by the procedural error. We therefore affirm the judgment for defendants.

I. Factual and Procedural Background

Defendant General Board administers pensions, health benefits, and other employee benefits for employees of the United Methodist Church. The General Board is headquartered in Evanston, Illinois. Plaintiff Johnson worked for the General Board as a team member from 1999 to 2004, assigned to the benefits determination team. Defendant Jung was the director of benefits administration during that time.

Johnson filed her first discrimination complaint with the General Board's human resources office in the summer of 1999. During the years she worked for the General Board, she unsuccessfully sought four promotions that are the principal focus of her case. First, in March 2001, Johnson applied for a promotion to team leader, but the hiring officials, including defendant Jung, selected another candidate. Johnson testified that a hiring official told her that her tendency to complain about discrimination might have contributed to the decision not to promote her. Johnson filed a charge with the Equal Employment Opportunity Commission in December 2001 based on these events. Next, in August 2002, Johnson applied for a promotion to plan sponsor manager, but again another candidate was selected. Johnson claims that her application was timely, while the General Board maintains that the position had been filled by the time she applied. In December 2002, Johnson considered applying for another promotion to plan sponsor manager, but she did not actually apply. Johnson claims that Jung discouraged her from applying. Finally, Johnson applied for a promotion to team leader in January 2003, but was again unsuccessful. She then filed two EEOC charges alleging discrimination and retaliation.

Johnson's employment with the General Board ended in March 2004, when the General Board learned that Johnson had been recording her conversations with co-workers without their consent. The General Board concluded that Johnson's behavior violated the General Board's policies and the Illinois Eavesdropping Act, 720 ILCS 5/14 et seq., and decided to terminate her. After her termination, Johnson filed a final EEOC charge alleging that she was sexually harassed in January 2004, when a team leader showed her a supposedly humorous video on his computer that included a brief display of male nudity.

Johnson filed two lawsuits that have been consolidated into this one. She alleged that the General Board discriminated and retaliated against her based on her race and national origin when it failed to promote her on the four occasions listed above and when it terminated her employment. She also claimed that Jung individually had discriminated against her in failing to promote her on those four occasions. (Section 1981 permits suits against individual agents of an employer, while Title VII does not. See Smith v. Bray, 681 F.3d 888, 896 n. 2 (7th Cir.2012).) Johnson also alleged sexual harassment based on the video incident.

The district court granted summary judgment for the General Board on all of Johnson's discrimination claims, as well as on her termination-related claims and her sexual harassment claim. The court also granted summary judgment for the General Board on Johnson's retaliation claims regarding the August 2002 and December 2002 promotions because she had not actually submitted timely applications. Jung was dismissed as a defendant because no claims against her remained in the lawsuit.

The summary judgment decision left for trial only Johnson's retaliation claims against the General Board for denial of the March 2001 and January 2003 promotions. The jury returned a verdict for the General Board on both claims. Johnson filed a post-trial motion seeking a new trial and other relief and a later motion for relief from judgment. The district court denied both. Johnson now appeals the district court's grant of partial summary judgment and the denial of her posttrial motions.

II. Summary Judgment

Johnson challenges the district court's grant of summary judgment on her discrimination claims, her retaliation claims regarding the August 2002 and December 2002 promotions, her termination-related claims, and her sexual harassment claim. We review de novo the district court's grant of summary judgment, construing all evidence in the light most favorable to Johnson and drawing all reasonable inferences in her favor. Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 449 (7th Cir.2013). Summary judgment is appropriate when no genuine issue of material fact exists and a party is entitled to judgment as a matter of law. Hester v. Indiana State Dep't of Health, 726 F.3d 942, 946 (7th Cir.2013).

A plaintiff can establish discrimination or retaliation in violation of Title VII using either the direct or indirect method of proof. ¹ The direct method requires that the plaintiff provide direct or circumstantial evidence of the employer's discriminatory animus or retaliatory behavior.Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir.2012); Hudson v. Chicago Transit Auth., 375 F.3d 552, 559 (7th Cir.2004). The indirect method, by contrast, requires the plaintiff to follow the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, after the plaintiff makes a prima facie case of discrimination or retaliation, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for its action. Doing so shifts the burden back to the plaintiff to show that the employer's proffered reason is pretext, which then permits an inference that the employer's real reason was unlawful. Id.;Coleman, 667 F.3d at 845;Nichols v. Southern Illinois Univ.-Edwardsville, 510 F.3d 772, 785 (7th Cir.2007). The substantive standards and methods that apply to Title VII also apply to 42 U.S.C. § 1981. Smith, 681 F.3d at 896.

Johnson has offered no direct evidence that her race or national origin motivated any decision by the General Board. (In fact, on appeal she has not argued her national origin claims at all.) The district court correctly held that Johnson had not offered circumstantial evidence that would have allowed a reasonable jury to find racially discriminatory intent as to any of her claims, whether under the indirect method or the more flexible “convincing mosaic” method of proof. Summary judgment was also proper on Johnson's sexual harassment claim because the single incident that Johnson described was not severe enough to support liability under Title VII.

A. The August 2002 and December 2002 Promotions

The district court granted summary judgment to the General Board on all of Johnson's claims regarding the August 2002 and December 2002 promotions because Johnson did not file a timely application to either position, meaning that she could not make a prima facie case of either discrimination or retaliation under Title VII. “[T]he prima facie case for a failure to promote claim ... requires that the plaintiff show ... she applied for and was qualified for the position sought [and] she was rejected for that position.” Fischer v. Avanade, Inc., 519 F.3d 393, 402 (7th Cir.2008) (internal quotation omitted); see also Hudson, 375 F.3d at 558–59 (affirming summary judgment for employer where employee did not apply for the position at issue). Johnson admits that she did not apply for the December 2002 position (allegedly because she was discouraged from doing so), but asserts that the timeliness of her application to the August 2002 position was in dispute. We agree with the district court, however, that the record shows beyond reasonable dispute that the position had been filled before August 30, 2002, when Johnson submitted her application. Regardless of the method of proof used, the defendants were entitled to summary judgment on...