Weber v. Universities Research Ass'n Inc.

• Decision Date: 02 September 2010
• Docket Number: No. 08-1957.,08-1957.
• Citation: 621 F.3d 589
• Parties: Katherine WEBER, Plaintiff-Appellant, v. UNIVERSITIES RESEARCH ASSOCIATION, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

621 F.3d 589

Katherine WEBER, Plaintiff-Appellant,

v.UNIVERSITIES RESEARCH ASSOCIATION, INC., Defendant-Appellee.

No. 08-1957.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 2, 2009.

Decided Sept. 2, 2010.

Robert M. Baker, IV, Attorney (argued), Lewis & Wagner, Indianapolis, IN, for Plaintiff-Appellant.

William F. Dugan, Attorney, Karen M. Osgood, Attorney (argued), Seyfarth Shaw LLP, Chicago, IL, for Defendant-Appellee.

Before BAUER, KANNE, and TINDER, Circuit Judges.

KANNE, Circuit Judge.

Katherine Weber sued her former employer, Universities Research Association, Inc. (“URA”), for sex discrimination and retaliation in violation of Title VII. The district court granted URA's motion for summary judgment on both claims. We affirm.

I. Background

URA hired Weber as a mechanical engineer in 1986. During the early 1990s Weber was the target of sexual harassment. The perpetrators of the harassment were never identified, and the harassment stopped when she was transferred to a new department where she no longer worked as an engineer. In 1996, Weber returned to the department where she had been harassed, this time as group leader of a computerized maintenance system called CMMS. She told Dianne Engram, URA's Equal Employment Opportunity Officer, that she was reluctant to return to the department. Fritz Lange, who at the time of the earlier harassment was Weber's peer, was now her boss. He told her that she had “better be good” and that he did not want any trouble from her. Later, Weber started reporting to Dave Augustine, a technician, who had previously been one of Weber's subordinates. The chain of command at this time was as follows: Weber reported to Augustine, who reported to Lange, who reported to Paul Czarapata, who reported to Roger Dixon.

In 2003 Augustine gave Weber a negative performance review. She complained to Engram because she believed Augustine had failed to properly fill out the goals section of her review. Engram suggested Weber file a grievance. Weber filed a level 2 grievance with Dixon, who forwarded the grievance to Czarapata. Czarapata twice told Weber to file a level 1 grievance directly with her supervisor, as required by URA policy. Weber did not allege in any of her grievances that Augustine's review of her performance was discriminatory. Weber won her grievance in February 2004, and the negative review was removed from her file. Her final performance review for 2003 was “satisfactory.”

After she filed her grievances, Weber alleges that a number of bad things started to happen to her at work. Augustine sought to reclassify Weber as a computer specialist rather than as a mechanical engineer-she had in fact done no engineering work since 1996 when she took over CMMS. Czarapata and Juanita Frazier, Employee Relations Manager, started investigating the viability of CMMS. Czarapata says that he began to consider shutting down CMMS due to budget issues some time after approving the contract for 2004 but before learning about Weber's filed grievances. The log book for CMMS showed that Weber only accessed CMMS once per week. Czarapata eventually decided to stop using CMMS and eliminate Weber's position. It appears from the record that Frazier was responsible for getting clearance from the Department of Energy to lay off Weber. Lange and Czarapata informed Weber that URA was discontinuing the use of CMMS and that her position was being eliminated.

Rather than fire Weber, Czarapata and Lange offered Weber a choice of two positions: one working in building management, which could have required shift work, and the other working as an Engineer II and reporting to Christine Ader, who was also an Engineer II. Weber told Czarapata that she would take the engineer job with Ader because she could not do shift work. Weber looked for other positions within URA, but never found another position to which she could transfer.

Ader and Weber's relationship got off to a rocky start. According to Ader, the two met on March 8, 2004, to discuss Weber's first job assignment: to replace and motorize a kick stand. On March 15, Ader went with Weber to the P-bar area of the accelerator to give her further instructions on the assignment. Weber took approved sick leave from March 17 through March 19. Weber did not complete the assignment on time, and Ader did it herself. When Weber returned from her sick leave, Ader gave Weber an official reprimand for insubordination for having failed to complete the assignment given to her. Weber denies that Ader ever gave her the assignment. Ader had in fact submitted a request on March 10 for a drafter to work on the same assignment.

After Weber's return to work, Ader asked her about her sick leave, told Weber to turn off her lights when she left for the day, requested her work and lunch schedules, and asked to know the layout of the furniture in her office, which she shared with another employee. Weber sent a note to Engram complaining that she was being retaliated against, but Engram did not interpret the note as lodging a formal complaint of retaliation. Weber also sent an email to Engram complaining that Ader did not “check up” on other employees like she did on Weber. On one occasion Ader denied Weber's request for sick leave. Later, when Weber again requested sick leave, Ader sent an email to Czarapata in which she said she was “ready for the next round.”

Ader noticed that Weber spent a great deal of time at her computer but still did not finish all of the work assigned to her. Ader told this to Czarapata, and Czarapata decided to trace Weber's Internet usage for five workdays. The results of the trace show that Weber spent more than 16 hours in one week on the Internet visiting websites unrelated to her job, including accessing two personal email accounts and a number of dog-related sites.

URA did not produce the actual amount of time spent on non-work-related websites during discovery, but the total time was before the district court when it ruled on URA's motion for summary judgment. Based on the results of the trace the network manager for the accelerator division concluded that Weber was using her work computer for personal business matters. Ader investigated further and discovered a number of advertisements for Weber's dog training business in which Weber listed her two personal email accounts as contacts. Ader also found another listing for Weber's business that listed Weber's URA work phone number as the contact number.

Weber does not deny that she accessed her personal email accounts or visited the dog-related sites, but she claims that she did so for personal reasons. Weber also says that the amount of time spent on the websites can be explained by her leaving a browser open to a website while she worked, though the trace did show that Weber's use of the websites was interactive.

URA has a policy that requires those employees who have outside employment to file a form with URA and get authorization for the outside employment. The policy says that unauthorized outside employment may be grounds for firing the violating employee. URA's policy on computing specifically forbids conducting outside employment on URA equipment. The computing policy does allow for some personal use of the Internet by its employees. Weber did not file an outside employment form.

Ader and Frazier concluded that Weber had used URA's computers to conduct her personal outside business in violation of URA policy and that she should therefore be fired. Lange drafted a letter of termination for Dixon's approval, and Weber was suspended pending Dixon's decision. Weber responded in writing to Dixon alleging that her dog-training business was in fact a hobby rather than a business. She denied conducting any personal business on URA time, and alleged that a number of male employees also conducted outside business while at URA but were not disciplined.

Weber identified eight men who she alleges conducted outside business at URA. Further, two men had viewed pornography on URA computers; one was officially reprimanded, but neither was fired. Weber identified several others who had outside employment but had not filled out the required outside employment form. Based on Weber's allegations, URA investigated a number of male employees, including tracing the Internet activities of several men. Two men accessed websites that could relate to their outside employment; for example, a musician accessed a music-related website. None of the men identified by Weber were disciplined or terminated. Weber challenges the adequacy of URA's investigation.

On July 2, 2004, Dixon decided to terminate Weber for conducting an outside business without authorization and for using URA computers in furtherance of that business in violation of URA policy. Weber sued URA under Title VII for discrimination and retaliation. The district court granted URA's motion for summary judgment on all claims, and Weber appealed.

II. Analysis

We review the district court's grant of summary judgment de novo. Tindle v. Pulte Home Corp., 607 F.3d 494, 496 (7th Cir.2010). We view the evidence in the light most favorable to Weber, the non-moving party, and give her the benefit of all reasonable inferences from the evidence. Id.

A. Waiver

A plaintiff asserting a claim of discrimination or retaliation under Title VII may choose to prove her case under either the direct or indirect method. Poer v. Astrue, 606 F.3d 433, 439 (7th Cir.2010). The district court found that Weber did not attempt to present any direct evidence of discrimination or retaliation, so the court analyzed the sufficiency of Weber's evidence only under the indirect method of proof. Weber v. Univ. Research Ass'n, Inc., No. 05 C 5607, 2008 WL 818268, at *2-3 (N.D.Ill. Mar.20, 2008).

Weber argues on appeal, however, that she did in fact produce evidence sufficient to survive summary judgment under both the direct and indirect methods. URA for its part sides...