Makowski v. Smithamundsen LLC

• Decision Date: 09 November 2011
• Docket Number: No. 10–3330.,10–3330.
• Citation: 94 Empl. Prac. Dec. P 44324,113 Fair Empl.Prac.Cas. (BNA) 1351,86 Fed. R. Evid. Serv. 1467,662 F.3d 818,18 Wage & Hour Cas.2d (BNA) 601
• Parties: Laura A. MAKOWSKI, Plaintiff–Appellant, v. SMITHAMUNDSEN LLC, Glen E. Amundsen and Michael DeLargy, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

113 Fair Empl.Prac.Cas. (BNA) 1351

18 Wage & Hour Cas.2d (BNA) 601

662 F.3d 818

86 Fed. R. Evid. Serv. 1467

94 Empl. Prac. Dec. P 44,324

Laura A. MAKOWSKI, Plaintiff–Appellant,

v.SMITHAMUNDSEN LLC, Glen E. Amundsen and Michael DeLargy, Defendants–Appellees.

No. 10–3330.

United States Court of Appeals, Seventh Circuit.

Argued May 3, 2011.Decided Nov. 9, 2011.

Luke DeGrand, Attorney, DeGrand & Wolfe, P.C., Chicago, IL, for Plaintiff–Appellant.

Jennifer A. Naber, Attorney, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., Chicago, IL, for Defendants–Appellees.

Before ROVNER and WILLIAMS, Circuit Judges, and YOUNG, District Judge.^*YOUNG, District Judge.

Lisa Makowski, an employee of SmithAmundsen, LLC (“SmithAmundsen”), took leave under the Family Medical Leave Act (“FMLA”) beginning just before the birth of her child and continuing after the birth. While Makowski was on leave, her supervisors informed her that her position was eliminated as part of an organizational restructuring and terminated her employment. Makowski filed suit against SmithAmundsen, Glen E. Amundsen, and Michael DeLargy, alleging pregnancy discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”); interference with Makowski's exercise of her rights under the FMLA; retaliation under the FMLA; and a violation of her right to a bonus under the FMLA. The district court granted summary judgment in favor of the defendants. On appeal, Makowski challenges an evidentiary ruling denying the admission of statements allegedly made by the Human Resources Director; the district court's failure to consider all of Makowski's additional evidence in the record; and the district court's grant of summary judgment in favor of the defendants on the pregnancy discrimination claim and FMLA interference and retaliation claims. For the reasons set forth below, we reverse.

I. Background

Makowski was employed as Marketing Director for SmithAmundsen, a law firm, from January 17, 2005, through February 4, 2008. She reported to Glen Amundsen, Chair of the Executive Committee and Marketing Partner, and Michael DeLargy, Chief Operating Officer. During each year of Makowski's employment with SmithAmundsen, she received an annual salary increase, as well as quarterly discretionary merit bonuses “based on individual performance and how the employee's contributions helped Defendant SmithAmundsen meet its objectives” for each quarter of Plaintiff's employment prior to beginning her leave under the FMLA.

In the summer of 2007, Makowski notified SmithAmundsen's management that she was pregnant and due in December. SmithAmundsen granted Makowski leave under the FMLA due to the pregnancy and birth. On November 5, 2007, Makowski's obstetrician placed her on bed rest for the remainder of her pregnancy as a result of a significant increase in her blood pressure. With SmithAmundsen's permission, Makowski worked from home until November 26, 2007, at which point she began FMLA leave. On December 2, 2007, Makowski gave birth.

In January 2008, the Executive Committee, comprised of Amundsen and four other men, conducted its yearly retreat to assess the overall structure of the firm and determine whether staffing changes were necessary. At this time, the Marketing Department consisted of Makowski, Marketing Director; Sarah Goddard, Marketing Project Manager; Lauren Siegel, Marketing Coordinator; and Kristi Fitzgerald, part-time Marketing Assistant. During a conversation before the retreat regarding restructuring of the Marketing Department, Amundsen told DeLargy that “[p]eople enjoyed working with [Goddard] more” and that Goddard would be a stronger lead person in the department than Makowski, which “was really what [SmithAmundsen] needed to focus a lot on.” At the retreat, the Executive Committee ratified Amundsen's recommendation to eliminate Makowski's position and continue with Goddard as the leader of the Marketing Department. The Executive Committee charged DeLargy with the task of conferring with outside labor and employment counsel regarding Makowski's firing.

In an email sent at the conclusion of the retreat from DeLargy to Molly O'Gara, Director of Human Resources, DeLargy said that Makowski “doesn't fit into our culture.” As the Director of Human Resources, O'Gara by her own admission was responsible for implementing and monitoring SmithAmundsen's compliance with human resources policies, as well as monitoring the firm's compliance with anti-discrimination laws. She is consulted regularly regarding decisions to eliminate positions and terminate employees, and considers herself “the boss” with respect to human resources policies and compliance. Fittingly, DeLargy delegated to O'Gara the task of consulting with outside counsel to discuss Makowski's firing, which she did prior to Makowski's termination.

On February 4, 2008, while Makowski was on maternity leave, Amundsen and DeLargy terminated her over the telephone, explaining that her position was being eliminated as part of an organizational restructuring. That same day, O'Gara fired the IT Director, Tuan Hoang. Additionally, Amundsen sent an email to all equity and non-equity members of SmithAmundsen informing them of the Executive Committee's decision to eliminate the IT Director and Director of Marketing positions and Hoang's and Makowski's terminations.

Later that day, Makowski came to the office to retrieve her belongings. As she was leaving, O'Gara met her in the elevator lobby. O'Gara told her that she (Makowski) “was let go because of the fact that [Makowski] was pregnant and ... took medical leave.” Furthermore, O'Gara “believed that there were [sic] a group of people that were discriminated against because they were pregnant or because they took medical leave” and specifically mentioned Carrie Von Hoff, a former associate at the firm, as one of the victims of discrimination. O'Gara also advised Makowski that “it might be a good idea to speak with a lawyer [as there] might be a possibility of a class action.” Regarding Hoang, O'Gara said that “they were working to let Tuan [Hoang] go for performance-based reasons,” but because Makowski was pregnant and on FMLA leave, outside counsel suggested labeling both Makowski's and Hoang's terminations as part of a reduction in force.

The day after Makowski's termination, Goddard resigned and accepted a position at another firm. Two days later, the Firm advertised for a position as Business Development and Marketing Manager, a role the Firm envisioned would have been filled by Goddard. In May 2008, the Firm rehired Goddard for the position.

Makowski filed this lawsuit on December 2, 2008, alleging violations under Title VII, as amended by the PDA, and the FMLA. The defendants moved for summary judgment on all of Makowski's claims. The district court granted the defendants' motion with respect to Makowski's termination. The court first ruled that because O'Gara's job responsibilities were not related to the decision to terminate Makowski, and because O'Gara was not involved in the decision-making process, O'Gara's statements concerning Makowski's termination were not admissible as an admission by a party-opponent. Without those statements, the court found that Makowski had no evidence of a direct connection between her protected activity and her termination; therefore, her Title VII discrimination claims and FMLA interference and retaliation claims failed under the direct method of proof.

II. Analysis

We review a district court's grant of summary judgment de novo, construing all facts in the light most favorable to Makowski and drawing all reasonable inferences in her favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.2010). Summary judgment is appropriate where the admissible evidence shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Makowski first contends that the district court erred in excluding O'Gara's statements to Makowski concerning her termination and in failing to consider other evidence provided by Makowski. Second, Makowski argues that this evidence creates a genuine issue of material fact as to whether Makowski was terminated due to her pregnancy and her taking medical leave. Finally, Makowski alleges that the district court erred in failing to address her FMLA interference claim independently of her FMLA retaliation and discrimination claims.

A. O'Gara's Statements

As we noted above, Makowski alleges that O'Gara told her that Makowski was terminated because she was pregnant and took medical leave, and informed her of the Firm's discriminatory treatment toward other pregnant employees. The district court ruled that O'Gara's statements were not admissions and excluded them as inadmissible hearsay. Makowski contends on appeal that O'Gara's statements were admissions and therefore should be admitted as evidence of discrimination. We review a district court's evidentiary ruling for abuse of discretion. United States v. Owens, 424 F.3d 649, 653 (7th Cir.2005).

O'Gara's statements fall under the definition of hearsay, because they were made out of court and are being offered for their truth. See Fed.R.Evid. 801(c). To be admissible, Makowski must establish that an exception to the hearsay rule applies or that the statements are not hearsay. See id. at 801(d), 803. Rule 801(d)(2)(D) of the Federal Rules of Evidence provides that “[a] statement is not hearsay if ... the statement is offered against a party and is ... (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence...