Simpson v. Borg-Warner Automotive

• Citation: 196 F.3d 873
• Decision Date: 18 November 1999
• Docket Number: BORG-WARNER,No. 99-1048,99-1048
• Parties: (7th Cir. 1999) VIRGINIA SIMPSON, Plaintiff-Appellant, v.AUTOMOTIVE, INC., Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 873

196 F.3d 873 (7th Cir. 1999)

VIRGINIA SIMPSON, Plaintiff-Appellant, v. BORG-WARNER AUTOMOTIVE, INC., Defendant-Appellee.

No. 99-1048

United States Court of Appeals, Seventh Circuit

Argued October 1, 1999

Decided November 18, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97-C-1911--James B. Zagel, Judge.

Before CUDAHY, EASTERBROOK and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

The plaintiff, Virginia Simpson, was hired as a production worker at Borg-Warner Automotive Transmission Systems Corp. (Borg-Warner) in 1972. In 1991, Borg-Warner promoted her to the supervisory position of Production Facilitator. In 1995, Simpson asked to return to a production line position, and her request was eventually granted. Simpson claims that her voluntary downgrade was a constructive demotion, and that this allegedly adverse employment action was prompted by sex discrimination in violation of Title VII of the Civil Rights Act. 42 U.S.C. sec. 2000e et seq. Simpson sued Borg-Warner in 1997; the district judge granted summary judgment in favor of the defendant in 1998. Simpson now appeals, and we affirm.

I. Facts

From 1991 to 1995, Simpson worked as a Production Facilitator supervising the afternoon shift at Borg-Warner's Bellwood Illinois, facility. As a supervisor, her responsibilities included setting production schedules, coordinating workers' days off, monitoring safety and budgets and disciplining workers. Simpson's dissatisfaction with her employment at Borg- Warner apparently began in late 1993, when Ron Ames was appointed as Unit Manager to oversee Simpson and her fellow Production Facilitators. Simpson complains that several subsequent incidents combined to create an intolerable work situation. First, in July 1994, while substituting for another supervisor, Simpson noticed an employee removing "defective material" tags from product parts and putting them back in circulation. Simpson and Borg-Warner disagree whether company policy clearly barred the removal of tags from these parts in these circumstances. Simpson reported the worker to Ames. Ames later asked Simpson to speak with the worker, who was upset about the report. Simpson claimed it was to be an apology and refused, stating that such a conversation would undermine her authority.

A second dispute arose when Simpson reported that a worker under a colleague's supervision had failed to "punch in." The subordinate was suspended, and was told that Simpson had reported her. The employee then made an unspecified threat against Simpson, out of Simpson's presence, but in the presence of two other managers. When Simpson learned of the remark, she reported it to Ames. Verified threats are grounds for discharge at Borg-Warner. Ames did not immediately discharge the worker, claiming he did not think that the threat could be verified. He eventually learned there were witnesses to the threat, and the worker issued a second threat. Ames fired the worker.

Third, Simpson complains that Ames told her she had to take a basic skills test. Simpson had taken and failed the test in 1993. Despite Ames's directive, Borg-Warner did not re-test Simpson. Nevertheless, she protests that she was the only Production Facilitator "singled out" to take the test, which is designed to check a supervisor's basic math and communications skills. It is unclear from the record whether Simpson's male supervisory colleagues had ever taken the test, and if so, whether any or all of them had passed it. Appellee's App. Vol. II, Tab A at 59-66. For whatever reason, none of the male supervisors' personnel files included a notice that they had failed the test, and several of them had been "grandfathered" and therefore excused from taking the test. In 1995 Borg-Warner instituted a new policy of testing all workers at the level just below Production Facilitator. See id. Ames explained that Simpson was asked to take the test when the new policy was instituted because Simpson "needed at least to have the same skills as the people reporting in to her." See id.

Simpson's remaining complaints are comparatively minor. She alleges that a fellow supervisor told employees about her complaints about them; that this supervisor advised his team not to seek Simpson's help; and that Ames's informal reprimands to that supervisor did not correct the situation. Simpson alleges that Ames refused to assign new employees to her shift. Simpson charges that Ames gave her an "inaccurate" negative review. Finally, Simpson charges that Ames scratched his genitals while speaking with her.¹

II. Analysis

We, of course, review the grant of summary judgment de novo, considering all facts in the light most favorable to Simpson, the non-movant, and resolving all inferences in her favor. Vitug v. Multistate Tax Commission, 88 F.3d 506, 511 (7th Cir. 1995). Simpson has presented no direct evidence of sex discrimination; therefore, in order to succeed in her Title VII claim, she must prevail in the burden-shifting test laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Bragg v. Navistar Int'l Trans. Corp., 164 F.3d 373, 376 (7th Cir. 1998). Simpson must show that: (1) she was a member of a protected class; (2) she was qualified for the job in question or was meeting her employer's legitimate performance expectations; (3) she suffered an adverse employment action; and (4) the employer treated similarly situated persons not in the protected class more favorably. Bragg, 164 F.3d at 376 (citing Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995)). If Simpson establishes a prima facie case, Borg-Warner must articulate a legitimate, non-discriminatory reason for the adverse employment decision. Debs v. Northeastern Illinois Univ., 153 F.3d 390, 395 (7th Cir. 1998). Simpson may then present evidence that Borg-Warner's proffered reason was pretextual. Id.

Simpson's most obvious obstacle--one she cannot clear--is the requirement of an adverse employment action. Simpson requested reassignment to a non-supervisory position in 1995; she contends this request was essentially a constructive demotion and therefore amounts to an adverse employment action satisfying the demands of Title VII. We disagree.

There is no question that demotion may be a materially adverse employment decision, whether that demotion is manifested by formal downgrade or by informal actions such as "a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). However, in the situation before us Borg-Warner did not demote Simpson either overtly or covertly. She sought her downgrade; indeed, she turned down Borg-Warner's offer of transfer to another (and hopefully more congenial) supervisory position. Simpson contends that although she sought the downgrade, Borg-Warner had created an environment so inhospitable to her as a supervisor that she had no choice but to return to the non-managerial ranks. She describes this process as constructive demotion. Simpson cites no Seventh Circuit cases recognizing constructive demotion, and we find none to date. Other circuits have, however, recognized the concept. See, e.g., Sharp v. City of Houston, 164 F.3d 923, 933-34 (5th Cir. 1999). Simpson analogizes her claim to one for constructive discharge. Appellant's Br. at 12. Borg-Warner follows suit. Appellee's Br. at 17 n.4. We agree that a constructive demotion analysis should have the same structure as that for constructive discharge.²

Establishing constructive discharge is a two- step process. First, "a plaintiff needs to show that his working conditions were so intolerable that a reasonable person would have been compelled to resign." Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996). Second, the conditions "must be intolerable because of unlawful discrimination." Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998). We have characterized as intolerable working conditions that involved a series of escalating sexual remarks culminating in a physical assault and death threat. Brooms v. Regal Tube Co., 881 F.2d 412, 423-24 (7th Cir. 1989). Also intolerable was a work environment in which a manager held a gun to his subordinate's temple, took a picture and then circulated the picture at a company meeting, stating "this is what a nigger looks like with a gun to his head." Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188, 1191, 1199 (7th Cir. 1992). Intolerable, too, was a work environment where a subordinate's disputed sexual relationship with her supervisor led to a suicide attempt. Snider v. Consolidation Coal Co., 973 F.2d 555, 557, 561 (7th Cir. 1992).

In contrast, this Court has found a range of unpleasant and even embarrassing employer actions tolerable and therefore insufficient to effect a constructive discharge. For instance, an arbitrary reprimand, exclusion from office activities, assignment to a fallow sales territory and lack of supervisor support were found tolerable in Harriston v. Chicago Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993). Similarly, a series of work restrictions including limited secretarial access, denial of a flex-time request, a bar on speaking to colleagues about non-work matters and truncated breaks were deemed tolerable in Rabinovitz, 89 F.3d at 489. Again, a work environment in which husband and wife plaintiffs were shunned, received harassing phone calls, discovered that someone had gone through papers in their work locker and were told once that their safety might be in jeopardy was found "unpleasant," but not intolerable. Drake, 134 F.3d at 886-87.

Most of Simpson's complaints fall into the relatively benign genre held insufficient to amount to constructive discharge in Harriston: a lack...