Weiss v. Coca-Cola Bottling Co. of Chicago

• Decision Date: 06 April 1993
• Docket Number: No. 92-2036,COCA-COLA,92-2036
• Citation: 990 F.2d 333
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 773, 61 Empl. Prac. Dec. P 42,190, 125 Lab.Cas. P 35,811, 1 Wage & Hour Cas.2d (BNA) 587 Bonita L. WEISS, Plaintiff-Appellant, v.BOTTLING COMPANY OF CHICAGO and Jerry Lawrence in his individual and corporate capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 333

990 F.2d 333

61 Fair Empl.Prac.Cas. (BNA) 773,

61 Empl. Prac. Dec. P 42,190,

125 Lab.Cas. P 35,811,

1 Wage & Hour Cas.2d (BNA) 587

Bonita L. WEISS, Plaintiff-Appellant, v. COCA-COLA BOTTLING COMPANY OF CHICAGO and Jerry Lawrence in

his individual and corporate capacity, Defendants-Appellees.

No. 92-2036.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 1992.

Decided April 6, 1993.

Carmen Jones Mitchell, Christine L. Jones (argued), Law Office for Equal Justice, Chicago, IL, for plaintiff-appellant.

William R. Sullivan, Jr., Marian C. Haney (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for defendants-appellees.

Before CUDAHY and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Bonita L. Weiss ("Weiss") brought this action against the Coca-Cola Bottling Company of Chicago ("Coca-Cola") and one of its employees, Jerry Lawrence ("Lawrence"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Equal Pay Act, 29 U.S.C. § 206(d). Weiss' complaint alleged claims of gender discrimination with respect to the following: (1) salary, (2) job transfers, (3) training, and (4) discharge, in addition to claims of (5) sexual harassment. All parties consented to resolution of this case by Magistrate Judge Bernard Weisberg, who granted summary judgment in favor of Coca-Cola on all claims. In this appeal, Weiss seeks review of Magistrate Judge Weisberg's summary disposition of each of her claims. We have jurisdiction over this final disposition pursuant to 28 U.S.C. § 1291. We affirm.

I.

Weiss began employment at Coca-Cola on February 21, 1989, while she was on a two week vacation from her position as a shipping and receiving clerk at K-Mart Apparel Corporation. She was hired in the checker/inventory control position at a starting salary of $9.00 per hour.

Weiss describes a number of incidents of employment-related sexual harassment. By her second week, Lawrence, who was warehouse manager and one of Weiss' supervisors, began asking Weiss about her personal life and complimenting her, telling her how beautiful she was. By her fourth week, Lawrence began asking her for dates. Weiss told Lawrence that she would not have a sexual or dating relationship with a co-worker. Lawrence said he understood and went on about his business. Several weeks later, however, Lawrence asked Weiss to a wedding. Weiss also complains that Lawrence would jokingly call her a "dumb blond" when errors in her inventory counts would come out. She treated these statements as jokes, but stated that it bothered her when he called her that in front of other employees.

When Weiss had difficulties with a month-end inventory, she called Lawrence at home for assistance. Lawrence then called later from a bar to check on how the inventory was proceeding. He invited her to come to the bar when she was finished. Weiss went there with a friend and another co-worker. Lawrence bought them a drink, discussed their inventory problem, and they played darts. Lawrence later put his arm around Weiss' chair and tried to kiss her, but she pulled back, said she was leaving and went home. The next week, Lawrence placed "I love you" signs in Weiss' work area. Weiss threatened to report it to their supervisors if it ever happened again, but it did not. Weiss testified that Lawrence put his hand on her shoulder at least six times during her employment. On one occasion she objected, and he took his hand off of her shoulder. Finally, after having testified that Lawrence avoided her in June, Weiss later stated that Lawrence had approached her twice in the front office at Coca-Cola and tried to kiss her. She responded by pulling away and asking him to leave her alone.

Throughout her employment, Weiss had difficulty performing the inventory counts for which she was responsible. Weiss blames her performance problems on inadequate training, alleging that she had been promised eight weeks of training when she took the job but that she never received it. When Terry McCord ("McCord") was terminated for being absent without calling, Weiss attempted to transfer to the inbound checker/supervisor position that he had held, because she felt that her performance might be better there. Weiss alleges that she was turned down on account of gender. Weiss' continued performance problems eventually prompted her supervisors to compare one of her inventory counts with one they would perform. They warned Weiss that they would do this, telling her the exact date on which it would occur. Even with the advance notice, Weiss was unable to perform an accurate inventory count. For this reason, she was discharged. Weiss claims that this explanation for her discharge was a pretext for gender discrimination. After her discharge, Tim Bailey ("Bailey") assumed her duties along with those of warehouse supervisor.

After her discharge, Weiss filed two charges of discrimination with the Illinois Department of Human Rights ("IDHR"), one against Coca-Cola and one against Lawrence. Weiss then filed her complaint after receiving the second of two notices of right to sue. Coca-Cola claims that the Title VII claims contained in Weiss' complaint were time-barred and should not have been considered by Magistrate Judge Weisberg. We will not address this claim. ¹ After Magistrate Judge Weisberg granted summary judgment in favor of Coca-Cola on all counts, Weiss commenced this appeal. Coca-Cola moved for an award of attorney's fees and costs as a sanction against Weiss, alleging that this appeal is frivolous and that sanctions are appropriate because Weiss misstated the record in her brief. We deny the motion for sanctions. ²

II.

We review a grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Williams v. Anderson, 959 F.2d 1411, 1413 (7th Cir.1992). We will uphold the entry of summary judgment "if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Mindful of these standards, we address each of Weiss' claims separately.

A. Title VII Claims

1. Training Claim

Weiss claims that during her interview for the checker/inventory control position with Coca-Cola, she was promised eight weeks of training which she never received. She further claims that she was discriminated against because her training did not amount to the two weeks of training ordinarily given to male employees. In contrast, Weiss testified at her deposition that "the last week of April I was left on my own, I started on my own. I was told by Scott Fosbinder and Jerry Lawrence that starting on my own if I needed any help, to call them." (R. 74-1 at 59.) Since Weiss began on February 21, she received almost nine weeks of training by the last week of April. ³

Weiss' contradictory claims that she did not receive nine weeks of training are insufficient to create an issue of material fact that would preclude summary judgment. "We have consistently held that a genuine issue of material fact cannot be established by a party contradicting [her] own earlier statements unless there is a plausible explanation for the incongruity." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 237 (7th Cir.1991). Weiss has attempted to make no such explanation for the inconsistency. Therefore, because Weiss' allegations of discrimination with respect to training cannot withstand a reading of her own deposition testimony, the magistrate judge correctly granted summary judgment on this claim.

2. Discharge Claim

Weiss offered no direct evidence that her discharge was discriminatory. Therefore, we must analyze her claim under the indirect, burden-shifting method of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The McDonnell Douglas burden-shifting method first requires a discharged plaintiff to prove a prima facie case of discrimination, by showing: (1) that she was a member of the protected class, (2) that her job performance was sufficient to meet her employer's legitimate expectations, (3) that she was discharged, and (4) that her employer sought a replacement for her. Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 570-71 (7th Cir.1989); Oxman v. WLS-TV, 846 F.2d 448, 452-53 (7th Cir.1988). Satisfaction of these elements creates a rebuttable presumption of discrimination. The burden of production then shifts to the defendant who must articulate a legitimate reason for the discharge. Oxman, 846 F.2d at 453.

The magistrate judge assumed, without deciding, that Weiss had made out a prima facie case of discrimination. Our review of the evidence, however, reveals that Weiss failed to make out a prima facie case because her job performance failed to meet Coca-Cola's legitimate expectations. One of Weiss' primary responsibilities was to perform inventory counts. In her deposition testimony, Weiss admits that she had difficulties with her inventory counts throughout the period of her employment. Many of these difficulties necessitated calling her supervisors for assistance. Furthermore, Weiss admits that Coca-Cola decided to discharge her only after comparing her inventory with one her supervisors did the same day. (R. 74-1 at 94, 96-98.) Because Weiss cannot show that her job performance met Coca-Cola's legitimate expectations, we hold that she has not made out a prima facie case of discriminatory discharge. ⁴ Therefore, Weiss' discharge claim cannot survive a summary judgment motion.

3. Sexual Harassment Claim

For Weiss' claim of sexual harassment to be actionable, the harassment "must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399,...