Kennedy v. Schoenberg, Fisher & Newman, Ltd.

• Decision Date: 03 April 1998
• Docket Number: No. 97-2347.,97-2347.
• Citation: 140 F.3d 716
• Parties: Denise M. KENNEDY, Plaintiff-Appellant, v. SCHOENBERG, FISHER & NEWMAN, LTD., and Robert C. Goldberg, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

140 F.3d 716

Denise M. KENNEDY, Plaintiff-Appellant, v. SCHOENBERG, FISHER & NEWMAN, LTD., and Robert C. Goldberg, Defendants-Appellees.

No. 97-2347.

United States Court of Appeals, Seventh Circuit.

Argued November 6, 1997.

Decided April 3, 1998.

Dean A. Dickie, D'Ancona & Pflaum, Ruth I. Major, Patrick M. Ouimet (argued), Sarles & Ouimet, Chicago, IL, for Plaintiff-Appellant.

Susan Benton-Powers (argued), Diane I. Smason, Sonnenschein, Nath & Rosenthal, Robert M. Chemers, Edward B. Ruff, Scott L. Howie, Pretzel & Stouffer, Chicago, IL, for Defendants-Appellees.

Before CUMMINGS, MANION and EVANS, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Denise Kennedy, an attorney, was terminated from her employment at defendant Schoenberg, Fisher & Newman ("SF & N"), a small law firm in Chicago, Illinois. Plaintiff filed a complaint against defendants SF & N and its shareholder and partner Robert C. Goldberg ("Goldberg"), alleging wrongful termination under the Pregnancy Discrimination Act ("PDA") (Count I), discrimination under the PDA due to defendant SF & N's disability leave policy (Count II), defamation (Count III), and tortious interference with employment relationship (Count IV). The district court granted summary judgment in favor of defendants on Counts I and II, the federal pregnancy discrimination claims, and declined to exercise supplemental jurisdiction over plaintiff's state law claims (Counts III and IV), dismissing them without prejudice. Plaintiff now appeals the district court's decision to grant summary judgment in favor of defendant SF & N on plaintiff's claim that she was terminated because of her pregnancy in violation of the PDA and the district court's refusal to exercise supplemental jurisdiction over the state law claims.¹ For the following reasons, we affirm.

I.

In November 1988, plaintiff was hired by the National Office Machine Dealers Association ("NOMDA") as a Staff Attorney. Goldberg, a shareholder of SF & N and outside General Counsel to NOMDA, had recommended plaintiff for the position. Plaintiff began earning $25,000 as Staff Attorney at NOMDA, and by January 1991, her Staff Attorney salary had increased to $35,000.

In January 1991, plaintiff informed Goldberg that she was considering leaving NOMDA because she wanted to broaden her legal experience and increase her income. Goldberg recommended to the six other shareholders of defendant SF & N that they hire plaintiff as an associate corporate attorney. During her interview, plaintiff was told that, if hired, she was expected to work for clients of defendant SF & N other than NOMDA. Thereafter plaintiff and defendant SF & N reached an "understanding" regarding her work allocation, plaintiff believing she could delegate approximately thirty to forty percent of her NOMDA work to non-lawyer SF & N employees. Relying on these assurances, defendant SF & N hired plaintiff as an associate attorney. On March 1, 1991, she began work at a salary of $50,000.

In July 1991, defendant SF & N conducted a review of plaintiff's performance which indicated that plaintiff's "overall analytic ability and problem solving skills," her "writing ability," and her "overall contribution to the firm's legal work" needed improvement. Defendant SF & N also voiced concern that plaintiff was not delegating enough of her NOMDA work to other SF & N employees. An SF & N shareholder told plaintiff that she was not performing enough non-NOMDA billable work to justify her salary. In order to help plaintiff shift thirty to forty percent of her NOMDA work to other employees, defendant SF & N agreed to provide plaintiff with assistance from clerical personnel and/or paralegals.

In the beginning of July 1991, plaintiff voiced an interest in drafting an amicus curiae brief to be filed with the United States Supreme Court on behalf of NOMDA in a pending antitrust appeal involving the Eastman Kodak Company. Goldberg, as General Counsel for NOMDA, was responsible for the brief and permitted plaintiff to draft it. Plaintiff had at least two months to complete the brief. In that time, Goldberg set various deadlines for plaintiff to submit drafts, which plaintiff missed. Plaintiff ultimately submitted a draft to Goldberg ten days before the brief was due to which Goldberg responded that he would have liked more time to edit the brief and that he had inadequate time for revisions and additional research. Goldberg was dissatisfied with the final brief and expressed his disappointment to plaintiff. Additionally, plaintiff made mistakes which incurred significant added costs for defendant SF & N. Plaintiff did not have the brief typeset until two days before it was due, which resulted in additional costs for expedited printing. Plaintiff also submitted the brief to the Supreme Court with the wrong color cover, which resulted in rejection of the brief by the Supreme Court and a $1,600 cost for resubmission. The Supreme Court rejected the brief a second time because the brief was submitted again with the wrong color cover. Resubmission another time cost another $260.

In August or September of 1991, plaintiff received a request from a NOMDA member to complete a contract analysis. Plaintiff knew that time was of the essence. However, before she left for vacation, plaintiff informed Goldberg that she failed to perform the analysis in time. This inaction on plaintiff's part cost the NOMDA member a business opportunity, and Goldberg had to apologize for plaintiff's incompetence.

In November 1991, plaintiff told Goldberg that she was pregnant. Prior to that time, no SF & N attorney had ever taken a disability leave, and defendant SF & N did not have a paid leave policy in place. After researching the policies of other law firms, in February 1992, defendant SF & N adopted the following paid leave policy:

Attorneys — Less than three years seniority — use of unused vacation (assumed for this purpose to be two weeks) and sick days (assumed for this purpose to be six days) plus four weeks pay at 50 percent of current rate.

Attorneys — Three years or more seniority — use of unused vacation and sick days (same assumed entitlements) plus six weeks pay at 50 percent of current rate.

Plaintiff did not feel that defendant SF & N's paid leave policy was generous enough and would have preferred more in terms of paid leave. Pursuant to the policy, defendant SF & N began keeping track of plaintiff's absences to determine how many paid sick and vacation days she would get during her leave.

Plaintiff began her maternity leave in June 1992. From January 1992 until the time of her leave, plaintiff billed approximately 88% of her time to her NOMDA position. Prior to her leave, plaintiff trained Tamara Kling, a temporary attorney who was hired at the $36,000 Staff Attorney salary to perform only NOMDA Staff Attorney work while plaintiff was on leave.

Before her leave ended, plaintiff informed Goldberg that she wanted to return part-time as NOMDA Staff Attorney. She presented two alternatives: three days a week in the office for NOMDA and available to work out of her home on a fourth day, or a full-day job share with Kling. The Personnel Chairman of NOMDA rejected these options due to the inconvenience and added expense they would cause. Thus Tamara Kling remained as NOMDA Staff Attorney. Plaintiff then asked to work three days per week, and defendant SF & N agreed to accommodate her part-time schedule, cautioning that she must "actively seek work from the Firm" and respond to clients in a timely manner.

During plaintiff's leave of absence, plaintiff requested to attend the NOMDA annual convention in Las Vegas. The parties dispute whether plaintiff was required to prepare the materials for the convention and whether they were prepared sufficiently. After the convention, plaintiff submitted an expense report listing expenses chargeable to NOMDA, including a car rental and a $25.75 dinner expense for July 17, 1992.

Because plaintiff had not received prior approval for the car rental and because she had not rented the car from the company NOMDA had selected, Goldberg questioned the car rental expense. In a memo to Goldberg, plaintiff responded that Goldberg did not notify her as to which rental company had been selected by NOMDA. Plaintiff then modified her expense report, deleting the car rental expense.

Goldberg continued to withhold approval of the expense report, questioning plaintiff's dinner charge of $25.75 on July 17 since plaintiff attended an awards banquet that evening which served dinner. In response to Goldberg's refusal to approve the report, plaintiff submitted an amended expense report which omitted the $25.75 charge and added two dinners of $10 each for July 15, 1992 and July 16, 1992 and a breakfast of $5.75 for July 16, 1992, resulting in a total charge of $25.75. During her deposition, plaintiff admitted that she fabricated the subsequent three meal charges which totaled $25.75 and that the original dinner charge was for a meal eaten by her parents who were at the convention to look after her baby.

Goldberg informed plaintiff that he was submitting the expense report to NOMDA without his approval. In response to NOMDA accounts payable clerk Kay Nedrud's inquiry as to why Goldberg had not approved the expense report, Goldberg sent Nedrud a letter indicating the adjustments necessary in order for the report to pass muster under NOMDA's standards. Goldberg sent copies of the letter to the Executive Director, Personnel Chairman and Accounting Manager of NOMDA. None of these recipients viewed the letter as accusing plaintiff of dishonesty, lacking moral integrity, defrauding NOMDA, or padding or falsifying her expenses.

Upset with Goldberg's letter, plaintiff wrote a memorandum to Goldberg, charging him with making "false" accusations against her in the letter. In response, Goldberg wrote a memorandum addressing plaintiff's claims. Plaintiff responded with another...