Fyfe, Patrick J. v. City Fort Wayne IN

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1396

PATRICK J. FYFE,

Plaintiff-Appellant,

v.

CITY OF FORT WAYNE, INDIANA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 98-CV-0353--Roger B. Cosbey, Magistrate Judge.

Submitted January 22, 2001--Decided February 22, 2001

Before BAUER, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Patrick Fyfe is no

shrinking violet. Over the course of his 20-year

career with the City of Fort Wayne Parks and

Recreation Department, Fyfe has filed numerous

lawsuits and administrative agency complaints

against his employer. Not surprisingly, he is not

particularly popular with his supervisors. In

this case, Fyfe contends that those supervisors

refused his request for reimbursement of expenses

(only $156, hardly a sum worthy of making a

federal case out of) associated with a work-

related seminar in retaliation for his earlier

complaints, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et

seq. In addition, Fyfe alleges that the City

violated the Equal Pay Act, 29 U.S.C. sec.

206(d), by making certain overtime payments to a

female employee who held the same job he did, but

refused to make similar payments to him. The

district court granted the City’s motion for

summary judgment, and we review that decision de

novo, drawing all reasonable inferences in favor

of Fyfe. Snider v. Belvidere Township, 216 F.3d

616, 618 (7th Cir. 2000)./1

Fyfe began working for the City’s parks

department in 1979, and at all times relevant to

this case held the position of gardener at the

Lawton Park greenhouse. Part of Fyfe’s

responsibilities at the greenhouse involved

spraying pesticides containing toxic chemicals,

some of which required quarantine. Accordingly,

for a period of time Fyfe was required to clock-

out of work several hours early and then return

in the evening to perform spraying after other

employees had left. The City’s obvious motivation

for utilizing this system was to limit exposure

to dangerous chemicals by completing pesticide

spraying after hours, but at the same time avoid

paying overtime to Fyfe. When Superintendent of

Conservatory and Horticulture Dennis Noak learned

of the split-shift arrangement in spring of 1998,

he directed Andy Force, Fyfe’s immediate

supervisor, to put an end to the practice unless

Fyfe obtained union approval. On the advice of

his union, Fyfe refused to sign an agreement

consenting to the split-shift work schedule and

foregoing overtime pay. Thereafter, the split-

shift arrangement was discontinued, and Fyfe was

required to complete pesticide spraying during

his regular 8-hour shift.

The parks department employed one other gardener

during the relevant time period, a woman named

Sharon Zettle. Zettle was the gardener at the

Botanical Conservatory, which, unlike the Lawton

Park greenhouse, was a plant showcase facility.

Zettle performed the same job duties as Fyfe and

received the same rate of regular pay. Due to the

nature of the Botanical Conservatory, however,

Zettle conducted pesticide spraying much less

frequently than Fyfe did at the Lawton Park

greenhouse. When she did so after hours--meaning

after the completion of her 8-hour shift--Zettle

was paid "call in" pay. Pursuant to the union

contract, an employee entitled to "call in" pay

is paid for 4 hours of work, even if the employee

completes his or her assignment in 5 minutes and

leaves the workplace. The record shows that

Zettle received "call in" pay on at least three

occasions for after-hours pesticide spraying.

Fyfe bases his Equal Pay Act claim on the fact

that Zettle occasionally received "call in" pay

but he never did during his 16 years as a

gardener. The Equal Pay Act, an amendment to the

Fair Labor Standards Act, forbids paying workers

of one gender less than workers of the opposite

gender in return for doing the same work unless

the pay differential is justified by factors

other than sex. See Wollenburg v. Comtech Mfg.

Co., 201 F.3d 973, 975 (7th Cir. 2000). In order

to prove a prima facie case of discrimination

under the Equal Pay Act, Fyfe must demonstrate

(1) different wages were paid to employees of the

opposite sex, (2) the employees perform equal

work requiring equal skill, effort, and

responsibility, and (3) the employees have

similar working conditions. Bragg v. Navistar

Int’l Transp. Corp., 164 F.3d 373, 378 (7th Cir.

1998). Once Fyfe clears this hurdle, the burden

shifts to the City to prove that the pay

disparity is due to "(i) a seniority system; (ii)

a merit system; (iii) a system which measures

earnings by quantity or quality of production; or

(iv) a differential based on any other factor

other than sex." 29 U.S.C. sec. 206(d)(1); see

Soto v. Adams Elevator Equip. Co., 941 F.2d 543,

548 (7th Cir. 1991). We have recognized that the

Equal Pay Act’s fourth affirmative defense is a

broad, catch-all exception that embraces a nearly

limitless array of ways to distinguish among

employees. Dey v. Colt Constr. & Dev. Co., 28

F.3d 1446, 1462 (7th Cir. 1994).

It is undisputed that Zettle received "call in"

pay and Fyfe did not. Fyfe runs into trouble,

however, in attempting to establish that he and

Zettle performed equal work under similar working

conditions. In fact, as the district court

recognized, Zettle performed more work than Fyfe.

On occasions when Zettle received "call in" pay

for pesticide spraying, she completed that task

after--and in addition to--her regular 8-hour

shift./2 When Fyfe performed evening pesticide

spraying, on the other hand, he clocked out

earlier in the day for several hours. Thus,

unlike Zettle, Fyfe never worked more than 8

hours in a day (doing pesticide spraying). It

certainly does not violate the Equal Pay Act to

pay an employee additional money for additional

work.

The true gravamen of Fyfe’s Equal Pay Act claim

is that Zettle was permitted to work overtime,

rendering her eligible for additional pay, but he

was denied that opportunity. Indeed, when Fyfe

requested permission to continue after-hours

spraying even after his split-shift work schedule

was discontinued, Mr. Force told him that the

City already was paying "call in" pay to Zettle

and didn’t want to pay it for Fyfe, too. Fyfe

characterizes this statement as direct evidence

of wage discrimination. But even if the denial of

the opportunity to work overtime satisfies the

first element of an Equal Pay Act claim--and at

least one court has held that it does not, True

v. New York State Department of Correctional

Services, 613 F. Supp. 27, 30-31 (W.D.N.Y. 1984)-

-the City has established that the divergent

purposes of the Lawton Park greenhouse and the

Botanical Conservatory merited the differential

treatment. As a public showcase, the conservatory

only rarely required spraying; the greenhouse was

a growing facility and required more regular

spraying. Permitting Zettle occasionally to

perform her spraying duties after hours would

therefore cost the City much less in "call in"

pay than it would to permit Fyfe regularly to

spray after hours. Thus there was a legitimate

fiscal reason for giving overtime work to Zettle

but not to Fyfe. See 29 U.S.C. sec.

206(d)(1)(iv). In addition, requiring Zettle to

spray the conservatory during her regular shift

presumably could expose the public to dangerous

pesticides, which of course was not a concern at

the greenhouse, which was closed to the public.

Because any difference in overtime hours is

clearly "due to a factor unrelated to gender,

there is no violation." Lindale v. Tokheim Corp.,

145 F.3d 953, 957 (7th Cir. 1998)./3

We turn now to Fyfe’s Title VII retaliation

claim. The evidence shows that in June of 1998,

Fyfe requested permission to attend a pesticide-

related seminar in Columbus, Ohio, in order to

earn credits toward maintaining a license he

held. When Noak denied Fyfe’s request to attend

the seminar on City time, Fyfe asked Robert

Arnold, Noak’s supervisor, to intercede on his

behalf. Arnold reported back that Noak informed

him Fyfe was not a "team player and didn’t

deserve to go." Fyfe attended the seminar anyway

but was forced to use one personal day and one

vacation day to do so, and pay his own expenses.

Arnold approved Fyfe’s request for time off to

attend the seminar.

Upon returning from the seminar, Fyfe, ever

persistent, asked Arnold to reimburse him for his

travel and hotel expenses, a grand total of only

$156.89. According to Fyfe, Arnold stated that he

considered Fyfe’s request a "fair trade," and

told Fyfe to send his expense paperwork directly

to Arnold and watch his paycheck for

reimbursement. But the reimbursement never came

because Arnold merely forwarded the paperwork to

the controller’s office without signing it.

Arnold testified that he did so to "see if

something could come of it," even though he

believed reimbursement was not warranted because

Fyfe’s travel did not occur during approved work

time and reimbursement was not required under the

City’s collective bargaining agreement with

Fyfe’s union. Arnold allegedly brushed off Fyfe’s

questions concerning the status of his

reimbursement in the fall of 1998.

On January 7, 1999, the date of a pretrial

conference, Fyfe again inquired of Arnold as to

the whereabouts of his expected reimbursement.

Arnold replied, "If I have to go across the

street to the courthouse, you can forget it" (or

something to that effect). When Fyfe informed

Arnold that this response could be considered

evidence of retaliation, Arnold challenged Fyfe

to "go file the charge."

So Fyfe added a claim under Title VII, which

prohibits employers from discriminating against

an employee "because he has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this subchapter." 42 U.S.C. sec.

2000e-3(a). In order to prevail on his claim of

discrimination, Fyfe must either offer direct

evidence of retaliation or proceed under a

burden-shifting approach. Contreras v. Suncast

Corp., Nos. 00-1977, 00-2493, slip op. at 15 (7th

Cir. Jan. 3, 2001). Direct evidence is that

which, "if believed by the trier of fact, will

prove the particular fact in question without

reliance upon inference or presumption," and

usually takes the form of an acknowledgment of

discriminatory intent by the employer. Kennedy v.

Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716,

722-23 (7th Cir. 1998) (quoting Hunt-Golliday v.

Metropolitan Water Reclamation Dist. of Greater

Chicago, 104 F.3d 1004, 1010 (7th Cir. 1997)). In

the absence of direct evidence of retaliation,

Fyfe must show (1) he engaged in activity

protected under Title VII, (2) he suffered an

adverse employment action, and (3) a causal

connection between the adverse action and his

protected activity. Hill v. American Gen. Fin.,

Inc., 218 F.3d 639, 645 (7th Cir. 2000). Once a

prima facie case is established, the burden

shifts to the City to put forth a legitimate and

nondiscriminatory reason for its actions, and

then back to Fyfe to show that the City’s

articulated reason is merely a pretext for

unlawful discrimination. Rennie v. Dalton, 3 F.3d

1100, 1108-09 (7th Cir. 1993). Fyfe attempts to

proceed on both the direct evidence track and the

burden-shifting track, but both efforts come up

short.

Fyfe insists that Arnold’s January 7 remarks

constitute direct evidence of unlawful

retaliation. "When a plaintiff proceeds under the

direct proof method, allegedly discriminatory

statements are relevant . . . only if they are

both made by the decisionmaker and related to the

employment decision at issue." Stopka v. Alliance

of Am. Insurers, 141 F.3d 681, 688 (7th Cir.

1988). Moreover, "isolated comments must be

contemporaneous with the [adverse action] or

causally related to the . . . decision making

process." Kennedy, 140 F.3d at 723 (quoting Geier

v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir.

1996)). In Miller v. American Family Mutual

Insurance Company, 203 F.3d 997, 1005 (7th Cir.

2000), for example, we held that a supervisor’s

discriminatory statements were irrelevant because

the supervisor did not even work for the company

at the time of the adverse employment decisions,

and thus his bias could not have motivated them.

Fyfe faces a similar hurdle here. It is

undisputed that Fyfe submitted his expense

paperwork to Arnold shortly after his travel in

June 1998 and that Arnold forwarded it to the

controller’s office without endorsing it because

he believed, at that time, that Fyfe was not

entitled to reimbursement. Arnold has taken no

further action with respect to Fyfe’s

reimbursement request since summer of 1998. Thus,

the City’s decision not to reimburse Fyfe was

complete long before Arnold’s statements, which

have, for that reason, little probative value.

Moreover, Fyfe’s lawsuit postdates the City’s

decision not to reimburse him (the lawsuit was

filed on November 12, 1998), so it could not have

motivated the decision under any circumstances.

See Miller, 203 F.3d at 1006 (affirming summary

judgment for employer on pregnancy discrimination

claim because decisionmaker was not aware of

plaintiff’s pregnancy until after decision).

Nothing Arnold said--or could have said--fills

this gap in Fyfe’s theory.

Fyfe’s effort to establish a prima facie case

under an indirect theory also fails. As an

initial matter, we cannot accept Fyfe’s bald

assertion that the denial of his request for

reimbursement of $156.89 constitutes an adverse

employment action. Not every unwelcome employment

action qualifies as an adverse action; rather, it

must cause a materially adverse change in the

terms and conditions of employment, "more

disruptive than a mere inconvenience or an

alteration of job responsibilities." Rabinovitz

v. Pena, 89 F.3d 482, 488 (7th Cir. 1996)

(quoting Crady v. Liberty Nat’l Bank & Trust Co.

of Ind., 993 F.2d 132, 136 (7th Cir. 1993)).

Under this standard, we have held that the denial

of a raise constitutes a sufficiently material

adverse action, Hunt v. City of Markham,

Illinois, 219 F.3d 649, 654 (7th Cir. 2000), but

that the denial of a bonus does not. Rabinovitz,

89 F.3d at 488-89. The difference is that raises

are a normal and expected element of an

employee’s salary, while bonuses generally are

"sporadic, irregular, unpredictable, and wholly

discretionary on the part of the employer." Hunt,

219 F.3d at 654. Employees therefore act in

reliance upon the expectation of receiving a

raise and suffer more deeply when it is denied.

Id.

The City’s denial of Fyfe’s request for

reimbursement is more like the denial of a bonus

than the denial of a raise. Fyfe does not dispute

that the reimbursement was purely discretionary;

indeed, prior to leaving for Columbus, he knew

that his trip had not been approved by his

superiors. And although the record does not

reflect the regularity with which City employees

attend seminars, and the regularity with which

their expenses are reimbursed,/4 we think it’s

a safe bet that neither is as regular as the

yearly raise most employees receive. Accordingly,

we hold that the City’s refusal to reimburse

Fyfe’s travel and lodging expenses was not an

adverse employment action for purposes of Title

VII.

Moreover, even if the City’s failure to

reimburse Fyfe constituted an adverse employment

action, he has not sustained his burden of

establishing that the action was motivated by his

protected conduct. As stated above, this lawsuit

can have no connection to the City’s decision not

to reimburse Fyfe because that decision was made

almost 6 months before Fyfe asserted his claim.

And although Fyfe had brought earlier charges

against the City, the most recent of those was

filed in January 1997. In order to establish a

causal connection via mere temporal proximity,

the employer’s adverse action must follow fairly

soon after the employee’s protected conduct.

Sweeney v. West, 149 F.3d 550, 557 (7th Cir.

1998). In the absence of any other evidence of a

causal link, the 18-month interval in this case

is insufficient proof of causation. See Hughes v.

Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992)

(4 months insufficient); Juarez v. Ameritech

Mobile Communications, Inc., 957 F.2d 317, 321

(7th Cir. 1992) (6 months insufficient). Because

Fyfe cannot establish a prima facie case of Title

VII retaliation, we need go no further. The

judgment of the district court is

AFFIRMED.

/1 The district court also granted summary judgment

to the City on three separate retaliation claims

based on (1) the City’s decision to suspend him

for 5 days and demote him to "the tree gang," a

tree maintenance crew, (2) the City’s refusal to

interview him for a promotion, and (3) the City’s

refusal to approve his attendance at a subsequent

out-of-town seminar. Fyfe does not appeal the

district court’s decision with respect to these

incidents of alleged retaliation.

/2 It is unclear why Zettle received "call in" pay

instead of the regular overtime rate of time and

one-half. "Call in" pay, as we read the

collective bargaining agreement, is required only

when an employee is called to work by supervisors

at a time when he or she is not otherwise

scheduled to work. As Fyfe points out, there is

no evidence that Zettle was called to work from

home, as opposed to merely staying at work at the

end of her shift to complete the spraying. But no

matter. In either event, Zettle actually worked

more hours than Fyfe.

/3 Recent events confirm this conclusion. Since the

filing of this lawsuit, Fyfe and Zettle have

switched locations and Zettle, as the greenhouse

gardener, has been required to complete her

spraying duties during her regular 8-hour shift.

/4 Fyfe makes much of the fact that the City paid

Zettle’s registration fee for the Columbus

seminar the year following Fyfe’s attendance. But

Zettle’s trip was approved by her supervisor and

took place under a new collective bargaining

agreement that required the City to pay those

expenses. Zettle was not reimbursed for any other

expenses.