Volovsek, Judith v. WI Dept Agriculture

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2074

JUDITH VOLOVSEK,

Plaintiff-Appellant,

v.

WISCONSIN DEPARTMENT OF AGRICULTURE,

TRADE AND CONSUMER PROTECTION,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern Distrtict of Wisconsin.

No. 00-C-0550—J.P. Stadtmueller, Judge.

____________

ARGUED FEBRUARY 21, 2003—DECIDED SEPTEMBER 18, 2003

____________

Before CUDAHY, MANION, and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge. Judith Volovsek claims that she

should have been promoted in 1993 but was not because

she is a woman. In response to this, she filed a discrimina-

tion claim with the State of Wisconsin. The ongoing failure

of Volovsek to secure a promotion over the following five

years and her unhappiness with how she was being trained

and supervised led to two more administrative complaints

and, eventually, the present lawsuit under Title VII for sex

discrimination and retaliation. Volovsek appeals the grant

of summary judgment. She presents sufficient evidence of

2 No. 02-2074

discrimination with respect to the original 1993 denial of

promotion to defeat summary judgment. The remaining

claims were properly dismissed on summary judgment. We

affirm in part and reverse in part.

I.

On August 12, 1991, Judith Volovsek began working for

the Wisconsin Department of Agriculture, Trade and Con-

sumer Protection (DATCP) as a Plant Industry Inspector.

As such, she was responsible for inspection, enforcement

and education activities relating to the regulation of agri-

cultural treatments as well as storage and loading sites.

Soon after she began work, Volovsek’s troubles began. She

claims that she was required to move 25 miles to live within

her work territory while two of her male colleagues, Robert

McGregor and Mark McCloskey (the latter hired after

Volovsek), were not required to move. Later during her

first-year probationary period, Peter Helmbrecht, Volovsek’s

supervisor, allegedly made improper statements to her

while in Volovsek’s home for a training session. From the

bathroom, Helmbrecht called out to Volovsek to “come in

here and help me find it.” During the same visit,

Helmbrecht remarked to Volovsek, “I’ll bet you are one of

those women who climax every time,” and “You know I don’t

get any sex at home.” A male coworker corroborated these

allegations, recalling Volovsek’s contemporaneous reporting

of this incident to him.

In June 1992, Volovsek’s title changed to Agrichemical

Specialist (ACS) as part of a departmental reorganization.

The ACS position had three grade levels: Entry, Develop-

ment and Objective. Volovsek began at the Entry level. Ac-

cording to the DATCP, promotion to a higher grade de-

pended upon the employee’s achieving a satisfactory level

of knowledge, skill and independence. Therefore, positive

No. 02-2074 3

performance evaluations were critical to Volovsek’s promo-

tion to the next grade level. She eventually attained ACS-

Development, but her unrealized goal was either ACS-Ob-

jective or Environmental Enforcement Specialist, discussed

below.

During 1993, the DATCP assumed primary responsibility

for agricultural pesticide spills from the Wisconsin Depart-

ment of Natural Resources. As a result of the DATCP’s new

responsibility, it developed the Environmental Enforcement

Specialist (EES) position, which was to handle the new re-

sponsibilities and which was compensated at several pay

grades higher than an ACS. Volovsek and fourteen other

ACSs applied for the EES positions.

On June 4, 1993, Ned Zuelsdorf, Bureau Director for the

Agricultural Resource Management Division of the DATCP,

met with Volovsek and told her that she had been rejected

for the EES position, but could reapply when a position be-

came available. Of those who applied, Volovsek and two

men were not chosen for the EES positions. Eleven

men were promoted to EES. The DATCP claimed that

“Volovsek did not compete well” for the position. However,

one male chosen for the EES position had less seniority

than Volovsek and another had scored lower on the EES

application test. Volovsek left the meeting with Zuelsdorf,

but returned to request vacation time. Upon reentering

the office, she overheard her supervisors, Helmbrecht and

David Frederickson, talking about “keeping them barefoot

and pregnant.” Frederickson also asked her when she was

leaving why she hadn’t worn her Tyvex suit.1

1

Tyvex is a white, chemically resistant, synthetic fabric used to

protect its wearer from exposure to certain low-level environmen-

tal hazards. It often is used in the form of a loose-fitting, one-piece

disposable suit that covers the wearer from head to toe.

4 No. 02-2074

Four days later, Volovsek wrote a memo to Zuelsdorf re-

garding their June 4th meeting, advising him that she be-

lieved that she was performing good quality work with

duties that were equivalent to those of an EES, and that

she should be considered for the EES position. Zuelsdorf

responded by telling her that she required too much super-

vision, citing those inspections in January where she had

been accompanied by Hagameier. Two days after Volovsek’s

memo, Hagameier informed her that Jack Darland, a fel-

low field inspector, was being given an assignment in her

territory because she could not handle it. She was not

allowed to work with Darland as is customary when an in-

spector is assigned to a colleague’s territory.

Volovsek filed her first sex discrimination complaint

with the Wisconsin Personnel Commission (WPC) on June

16, 1993 (1993 Complaint). The complaint cited both denial

of promotion to ACS-Objective and denial of promotion to

EES. Section 3 of the complaint notified complainants that

unless they wrote “no,” their complaint “may be filed with

other agencies.” Volovsek left section 3 blank thereby per-

mitting WPC to file her complaint with other agencies.

Sometime after the complaint was filed, Volovsek was pro-

moted to ACS-Development where she remained until she

was terminated in 1998.

Several instances of alleged discrimination or retaliation

occurred subsequent to Volovsek’s 1993 Complaint. In

August 1993, a memo criticizing her work was placed in her

personnel file without her knowledge. Later that year or

in early 1994, Volovsek’s colleague Robert McGregor over-

heard what he believed to be a conversation about Volovsek

in which her supervisors were told to collect documentation

against an employee. Volovsek alleges that soon after that

discussion, criticism, conflicting advice and complaints for

failing to perform functions that were outside the realm of

her training ensued. Volovsek has provided evidence

No. 02-2074 5

(mostly in the form of her affidavit) disputing many of the

negative performance evaluations and criticisms that she

has received since 1994.

Also in 1994, a new DATCP policy required that ACSs

work out of commercial office space instead of their homes.

ACSs were permitted to choose their own office locations

contingent upon Department of Administration approval.

Volovsek submitted a memo to Frederickson with three

potential locations, but Frederickson never forwarded the

memo on to the Department of Administration. Volovsek

argues that this was intentional, while the DATCP indi-

cates that the lapse was a simple oversight. Subsequently,

Volovsek was assigned an office 25 miles away from her

home. However, she never worked in that office because she

personally notified the Department of Administration of the

space she had located less than a mile from her home.

A new policy also required that ACSs be issued desk-

top computers instead of the laptops they were currently

using. The ACSs were instructed that, upon receipt of the

desktops, the laptops should be returned. Volovsek contends

that while awaiting her desktop, her supervisor, Luis

Delgado, called and “berated her for not turning in her

laptop.”

Two additional events occurred in May 1995 leading up to

Volovsek’s second WPC complaint. First, the DATCP

allegedly did not acknowledge on her annual performance

review some of Volovsek’s work that was completed during

that review period (i.e., public speaking and instruction she

had performed). In addition, work summaries produced by

the DATCP allegedly did not include all the hours she had

worked. Volovsek argues that these were intentional omis-

sions, but the DATCP claims that a change in the system

for recording inspectors’ summaries caused the omissions.

The DATCP asserts that other employees were also affected

and that the errors were promptly corrected. At her per-

6 No. 02-2074

formance review, Volovsek requested that Delgado promote

her to ACS-Objective. Delgado replied, “Oh, so you can be

bought.”

The second event during that period was the issuance of

a memo by Division Administrator Nicholas Neher to

Volovsek, instructing her to discuss her cases only with her

supervisors and not with other inspectors. This memo was

not issued to any of Volovsek’s colleagues, and another ACS

stated that it is common procedure to communicate with

other inspectors. Volovsek contends that this was an at-

tempt to isolate her from her peers. After the memo had

been issued, Volovsek alleges that she called the main office

to discuss a work-related issue with a specialist, but the

specialist refused to provide Volovsek with an answer. The

DATCP insists that the memo was sent because Volovsek

had received information from her peers that conflicted

with instructions from her supervisors. The memo also

noted the removal of three critical letters that Volovsek

claims were improperly inserted in her file.

Volovsek filed her second sex discrimination charge with

the WPC on May 23, 1995 (1995 Complaint), for the

DATCP’s failure to promote her to ACS-Objective and for

her supervisor’s negative performance evaluations. This

complaint form contained a note section that invited com-

plainants to check a box if they wanted the WPC to forward

a copy of the complaint to the Equal Employment Opportu-

nity Commission (EEOC). Volovsek checked that box, and

it appears that this complaint was filed concurrently with

the EEOC.

Soon after her second WPC charge, Volovsek contends

that additional discriminatory and retaliatory incidents fol-

lowed. She argues that her supervisors were intentionally

not providing her with the training required to correctly

perform her job. She also claims that the DATCP com-

menced a disciplinary proceeding against her for taking

No. 02-2074 7

samples at an inspection site even though this sample col-

lection was mandated by DATCP policy. No action with

respect to this matter was ever ultimately taken against

Volovsek, but the DATCP refused to formally rescind the

action.

Volovsek’s performance evaluations from 1991 to 1995

stated that she was performing at or above job standards,

but contained criticisms with respect to specific job perfor-

mance issues and suggestions for improvement. Her June

1996 evaluation stated that, “[a]t a minimum[,] a tech-

nical college course in basic math would be a benefit to

Judy.” Nothing came of this comment for the next year.

However, after her 1997 performance evaluation (which

Volovsek refused to sign), Volovsek, as part of her training

plan for the next year, suggested a technical math course.2

In response, the DATCP administered a math test to see

whether she needed a math course. Volovsek passed the

math test with a 93 percent score. Following the exam, co-

worker and Union Steward Kehrein spoke with Helmbrecht

or Frederickson regarding a title reclassification for

Volovsek since the math obstacle had been removed. The

supervisor responded to Kehrein that the real problem was

a lack of confidence in Volovsek’s ability to work alone.

According to Volovsek, several more incidents occurred

that led up to her third charge with the WPC. First, she

asserts that the DATCP changed its EES position criteria

2

The suggestion came about as a result of more contentious back-

and-forth with Helmbrecht. Volovsek originally listed in her train-

ing plan that she would like “[a]ny and all training required to

reach objective level of [ACS].” Helmbrecht informed her that a

generic request for training was inappropriate, and after getting

no concrete response from Volovsek suggested a communication

course entitled, “Don’t Eat the Menu.” With her local Union Stew-

ard, Marty Kehrein, Volovsek then countered with her own

suggestion of a technical math course.

8 No. 02-2074

to require a college degree. The DATCP denies this, saying

it is strictly prohibited from doing so under Wis. Stat.

§ 230.14(3m). Second, she was asked to produce a personal

training plan, a request that Steward Kehrein said was ex-

tremely unusual, and when she presented her plan, it was

rejected. Third, Volovsek claims that the distribution of

work was uneven such that she received more work than

her colleagues. On February 10, 1997, she made another

request for promotion to EES. The request was again

denied. On April 1, 1997, Volovsek again requested a pro-

motion to ACS-Objective, which was also denied. Four

months later, Volovsek took a medical leave of absence for

two months. On December 17, 1997, Volovsek filed a third

sex discrimination and retaliation complaint with the WPC

(1997 Complaint). Similar to the second WPC complaint,

the third complaint also contained a section that invited

complainants to check a box if they wanted the WPC to

forward a copy of the complaint to the EEOC. Volovsek

checked that box and the record appears to show that this

complaint was also filed concurrently with the EEOC.

When the DATCP learned that Volovsek would not be

returning to work in July 1998 based on her doctor’s orders,

it terminated her employment. Eleven months later, on

June 19, 1999, the WPC denied Volovsek’s first sex discrim-

ination charge against the DATCP. Soon after, on August

27, 1999, her second charge was denied because the WPC

found that the DATCP’s actions were justified by the qual-

ity of Volovsek’s work. Then, on April 14, 2000, the WPC

dismissed her final charge against the DATCP due to an

absence of probable cause. Volovsek received a Notice of

Right To Sue letter from the EEOC dated January 18, 2000,

regarding her 1995 Complaint.3 On April 17, 2000, Volovsek

3

The record also indicates that Volovsek requested a Notice

of Right To Sue letter from the EEOC with respect to the 1997

Complaint. The record contains a preliminary letter to Volovsek

(continued...)

No. 02-2074 9

filed a sex discrimination and retaliation lawsuit in the

Eastern District of Wisconsin.

Volovsek’s district court complaint alleged that the failure

to promote her and her negative performance reviews were

motivated by sex discrimination and retaliation for her

filing discrimination claims. The district court granted the

defendant’s motion for summary judgment, finding that

sufficient direct or circumstantial evidence of a discrimi-

natory motive was lacking. The district court also found

that Volovsek did not make out a prima facie case under

McDonnell Douglas because she did not show that she met

the DATCP’s legitimate performance expectations and did

not identify a similarly situated male employee who was

treated more favorably. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). As to the retaliation claim, the district

court held that Volovsek did not establish a causal link be-

tween the DATCP’s actions and Volovsek’s filing of sexual

discrimination complaints.

II.

We review a district court’s grant of summary judgment

de novo, viewing the facts and drawing all reasonable infer-

ences in the light most favorable to the non-moving party.

Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997, 1000

(7th Cir. 2000). Summary judgment is appropriate only

where “there is no genuine issue as to any material fact and

3

(...continued)

dated October 20, 2000, indicating that the Department of Justice

would be issuing a Notice of Right to Sue letter regarding the

1997 Complaint directly to Volovsek. However, the record does not

contain the actual Right to Sue letter. But, the defendant has not

contested its existence, and we consider any such argument

waived.

10 No. 02-2074

. . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c).

Title VII makes it “an unlawful employment practice for

an employer . . . to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any indi-

vidual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual’s

. . . sex.” 42 U.S.C. § 2000e-2(a).

a. Scope of Volovsek’s suit

We start with some threshold questions about the scope

of Volovsek’s suit. Unfortunately we have to spend consider-

able time addressing this issue because the parties appear

to have simply collected the sum total of all the unpleasant

events in Volovsek’s work history since 1991, dumped them

into the legal mixing bowl of this lawsuit, set the Title VII-

blender to puree and poured the resulting blob on the court.

The principal issue is chronology. As we noted at oral ar-

gument, Volovsek sweeps into her suit events ranging as far

back as 1991. However, Title VII requires, as a precondition

to suit, that charges be filed with the EEOC within 180

days after the “alleged unlawful employment practice

occurred,” unless the charges are first filed with a state

agency that has the authority to grant relief from the

“alleged unlawful employment practice,” in which case the

charges must be filed with the EEOC “within three hundred

days after the alleged unlawful employment practice

occurred, or within thirty days after receiving notice” that

the state agency has terminated its proceedings, whichever

is earlier. 42 U.S.C. § 2000e-5(e)(1). The WPC has jurisdic-

tion over all charges covering the employment practices of

the State of Wisconsin, except those alleging retaliation

under § 704(a) of Title VII. See 29 C.F.R. § 1601.74(a) n.12.

No. 02-2074 11

Volovsek appears to have filed her 1995 and 1997 charges

with the EEOC (as evidenced by the EEOC correspond-

ence in the record). In the absence of any contradictory facts

in the record or argument otherwise, we take as the date of

the earliest EEOC filing the date of the filing of the parallel

state charges, which were notarized as filed on May 23,

1995. Obviously this provides a very generous scope to the

EEOC complaint and to the present case, since it presumes

that the EEOC complaint was filed simultaneously with the

WPC charges. The 1995 Complaint reaches back 300 days,

to July 27, 1994, for the purposes of discrimination charges,

and 180 days, to November 24, 1994, for the purposes of

retaliation charges. This time frame, rigorously observed,

would exclude the most important events detailed by

Volovsek. There is no question that the most compelling

facts described in this case involve the initial non-promotion

to EES, accompanied by the inappropriate comments made

to/about Volovsek during the roughly contemporaneous

period. These events, however, are outside the statutorily

available period for Volovsek’s present action.

But the requirement that a plaintiff exhaust her adminis-

trative remedies by the filing of a timely EEOC complaint

containing charges whose scope covers the claims in a sub-

sequent district court complaint is merely a condition pre-

cedent to suit, not a jurisdictional requirement. See Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393 (1982);

Francis v. City of New York, 235 F.3d 763, 766-67 (2d Cir.

2000); Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000).

Therefore, the timing and scope requirements of an EEOC

filing are subject to various equitable doctrines—most

significantly in the present case, waiver. The record makes

clear that Volovsek’s 1995 and 1997 Complaints were filed

with the EEOC. Those complaints (for whose specific sub-

stance we refer to the contemporaneous WPC complaints)

include the failure to promote. As well, at both the district

court and before this court, Volovsek has placed front

12 No. 02-2074

and center the events surrounding her failure to secure

a promotion to EES when the position was first filled by

ACS-level employees. The defendant’s brief, however, does

not argue that Volovsek is prevented from presenting these

events because of a failure to exhaust her administrative

remedies. In fact, the DATCP engages all of Volovsek’s

assorted allegations head-on. Therefore, any such exhaus-

tion argument is waived.

Similarly, we have to take some time to sift and winnow

all of the allegations in this suit and figure out which repre-

sent actionable claims of discrimination or retaliation. As

the law says, we are looking for actions affecting the “com-

pensation, terms, conditions, or privileges of employment,”

or, shorthand, materially adverse employment actions.

42 U.S.C. § 2000e-2(a). We need not look far for these. The

core of Volovsek’s case is the fact that, at various times

between 1993 and 1998 she was denied promotions. The

failure to promote is an adverse employment action with

respect to discrimination and to retaliation claims. Markel

v. Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 911

(7th Cir. 2002).

Beyond the failure to promote, Volovsek has also alleged

events that are of possible evidentiary relevance to the non-

promotion. For example, for the 1993 non-promotion, the

“barefoot and pregnant comment” is relevant.4 Thereafter,

4

Fredrickson also made the “Tyvex suit” comment at this time.

Frankly, the inclusion of this comment in these arguments is

somewhat baffling. At oral argument, the description given of

such a suit’s appearance matched what our own research has

revealed: that such a suit is decidedly asexual, disguising the

wearer’s features and giving a generally androgynous appearance.

Volovsek presents this evidence as a sexual comment, comparable,

say, to Fredrickson asking her why she did not wear a bikini

(continued...)

No. 02-2074 13

we have the highly disputed performance reviews, the “you

can be bought comment” by Delgado, the allegedly inade-

quate training, the denial of support and the math test

Volovsek was administered. Additionally, relevant exclu-

sively to Volovsek’s retaliation claim, we have McGregor’s

allegation that he overheard Volovsek’s supervisors discuss-

ing how to get rid of “her” and how to collect documentation

to fire “her.” All of these alleged events do not, themselves,

amount to the kind of adverse employment action that con-

stitutes discrimination or retaliation.5 See Stockett, 221

F.3d at 1001 (defining an adverse employment action as

a “materially adverse change in the terms and conditions

of employment [that is] more disruptive than a mere

inconvenience or an alteration of job responsibilities”)

(internal quotation omitted) (alteration in original); see also

Markel, 276 F.3d at 911 (finding that a denial of “better”

equipment or being removed from specific accounts that

reduced the employee’s bonuses did not constitute an ad-

verse employment action); Grube v. Lau Indus., Inc., 257

F.3d 723, 729 (7th Cir. 2001) (“[U]nfair reprimands or neg-

4

(...continued)

bathing suit. Although we have no idea why the “Tyvex suit”

comment was made, we do not believe it has the connotation at-

tributed to it by Volovsek.

5

Retaliation claims often take a more generous view of what

events constitute actionable claims. For example, actions by an

employer that are not clearly “employment” actions might support

a claim of retaliation, the paradigmatic example being the em-

ployer who moves an employee’s workspace into a closet in retal-

iation for a filed complaint. Herrnreiter v. Chicago Hous. Auth.,

315 F.3d 742, 744 (7th Cir. 2002); see also Johnson v. Cambridge

Indus., Inc., 325 F.3d 892, 902 (7th Cir. 2003). However, none of

the events described by Volovsek (beyond the non-promotions)

constitute the kind of “significantly negative alteration in [her]

workplace environment” that, in itself, would support a retalia-

tion claim. Herrnreiter, 315 F.3d at 744.

14 No. 02-2074

ative performance evaluations, unaccompanied by some

tangible job consequence, do not constitute adverse employ-

ment actions.”); Smart v. Ball State Univ., 89 F.3d 437, 441

(7th Cir. 1996) (finding that negative performance evalua-

tions alone fail to satisfy the third prong of McDonnell

Douglas); Spring v. Sheboygan Area Sch. Dist., 865 F.2d

883, 886 (7th Cir. 1989) (finding increase in travel distance

with job transfer not an adverse employment action under

Age Discrimination in Employment Act). However, these

facts may be evidence that supports Volovsek’s claim that

her non-promotion was the result of discrimination or retal-

iation because each event centers in some way around

Volovsek’s job performance, which was the grounds for re-

fusing to promote her. Our focus is on the failure of DATCP

to promote Volovsek.

The remaining events described in her brief constitute the

kind of evidence of a hostile work environment that would

normally be used to support a claim of sexual harassment.

These events, which we will not detail, include

Helmbrecht’s alleged sexual comments to Volovsek and

Delgado’s allegedly improper berating of Volovsek for fail-

ing to turn in her computer. However, Volovsek has made

no claim of sexual harassment, nor would the isolated and

inconsistent nature of the acts alleged support such a claim.

Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462-63 (7th Cir.

2002) (explaining that “harassment must be so severe or

pervasive as to alter the conditions of the victim’s em-

ployment and create an abusive working environment”)

(internal quotation omitted). And because none of these

events itself constitutes an adverse employment action, nor

bears any reasonable relation to the non-promotions (in

either timing or content), the events are irrelevant to the

disposition of this appeal.

Because most of the events in question occurred after

Volovsek filed her first discrimination claim with the state,

her discrimination and retaliation claims overlap signifi-

No. 02-2074 15

cantly. She acknowledges as much in her brief (and Second

Amended Complaint) when, in the section on retaliation,

Volovsek re-alleges the same discriminatory events that

formed the bases of her discrimination claim.6 Because of

this overlap, we will consider Volovsek’s discrimination and

retaliation claims together for the analysis of post-1993

events.7

b. Volovsek’s direct method argument

Volovsek can prove intentional sex discrimination and

retaliation directly or indirectly. The direct method may

employ either of two types of evidence: direct evidence and

circumstantial evidence. The inevitable confusion of using

the word “direct” to mean two different things aside, direct

evidence is evidence, which, if believed by the finder of fact,

“will prove the particular fact in question without reliance

upon inference or presumption.” Plair v. E.J. Brach & Sons,

Inc., 105 F.3d 343, 347 (7th Cir. 1997) (internal quotation

omitted). This evidence of the I-am-not-promoting-you-

6

The exception is a conclusory allegation in her brief that she

was terminated in retaliation for her complaints. It appears clear

that Volovsek was terminated for failing to return to work fol-

lowing a medical leave of absence. There is no merit to the inclu-

sion of this claim. Even if the claim were colorable, the total

absence of argument concerning this event would waive consider-

ation of the issue. United States v. Berkowitz, 927 F.2d 1376, 1384

(7th Cir. 1991) (explaining that perfunctory and undeveloped

arguments are considered waived).

7

The prima facie case for retaliation under the indirect method

no longer requires the showing of a causal relationship between

the accusation(s) of discrimination and the adverse employment

action(s). Stone v. Indianapolis, 281 F.3d 640 (7th Cir. 2002).

Therefore, with no differences that are relevant here, the same

test applies in both retaliation and discrimination.

16 No. 02-2074

because-you-are-a-woman type is understandably rare.

There is no evidence of this kind in the present case. The

more common type of evidence is circumstantial evidence

that allows a jury to infer intentional discrimination or

retaliation. Rogers v. City of Chicago, 320 F.3d 748, 753 (7th

Cir. 2003). Circumstantial evidence comes generally

in three flavors: (1) suspicious timing, ambiguous state-

ments, behavior towards other employees and so on; (2)

evidence, but not necessarily rigorous statistical evidence,

that similarly situated employees were treated differently,

or (3) evidence that the employee was qualified for the

promotion and passed over and the employer’s reason for

the difference in treatment is a pretext for discrimination.

Troupe v. May Dep’t Stores, 20 F.3d 734, 736 (7th Cir.1994).

The third category bears an eerie similarity to the evidence

required under the indirect method. See Huff v. UARCO

Inc., 122 F.3d 374, 380 (7th Cir. 1997).

With respect to the 1993 EES promotions, Volovsek

presents evidence that 11 males were promoted, including

one with less seniority and one who scored lower on the

written test for the position. However, we note that the

other two ACS-level employees failing to receive the pro-

motion were men. After having left the meeting where she

had been given the bad news that she was not to be pro-

moted, Volovsek went back in to discuss another issue, and

at that time she heard Helmbrecht and Fredrickson make

the “keeping them barefoot and pregnant” comment.

This is Volovsek’s strongest claim. A comment like

“keeping them barefoot and pregnant,” if true, is clearly

derogatory towards working women. It suggests that the

person making the comment does not want women in the

workplace. Under our law, the comment alone would not be

enough—it would be nothing more than another allegedly

offensive stray comment towards Volovsek, but not action-

able. Schreiner v. Caterpillar, Inc., 250 F.3d 1096, 1099 (7th

Cir. 2001) (“Stray workplace comments unrelated to the

No. 02-2074 17

alleged discriminatory employment decision are not suf-

ficient to support an inference of discrimination.”). What

makes this confluence of facts difficult is that the remark

here is so close in time and in substance to the alleged act

of discrimination. Gorence v. Eagle Food Ctrs., Inc., 242

F.3d 759, 762 (7th Cir. 2001). Volovsek allegedly overheard

the comment being made by her supervisors just after

having been told that she did not get the promotion she

wanted. This is the kind of situation where such a comment

could preclude summary judgment, and in the present case

we believe it does. Volovsek’s affidavit in which she re-

counts what she overheard is not, as the DATCP claims,

conclusory or self-serving, as that term is commonly used in

the context of summary judgment. She is relating facts of

which she has personal knowledge in support of her claim

of discrimination. Payne v. Pauley, __ F.3d __, 2003 WL

21540424, *5 (7th Cir. 2003) (“Provided that the evidence

meets the usual requirements for evidence presented on

summary judgment—including the requirements that it be

based on personal knowledge and that it set forth specific

facts showing that there is a genuine issue for trial—a

self-serving affidavit is an acceptable method for a non-

moving party to present evidence of disputed material

facts.”). This evidence goes directly to the heart of her claim

that the failure to promote her was based on her sex.

Whether this statement was actually made, and its import,

is for a jury to decide. But there is an issue of material fact,

and summary judgement on this claim was improperly

granted.

Volovsek’s remaining discrimination claims as well as her

retaliation claims fail. The evidence fails to create, either

individually or collectively, a “convincing mosaic of discrimi-

nation” sufficient to defeat summary judgment for DATCP.

Troupe, 20 F.3d at 737. While the record supports the

conclusion that Volovsek’s relationship with her supervisors

was troubled, it does not support the inference that she was

18 No. 02-2074

discriminated against on the basis of sex, and it is insuffi-

cient for making the prima facie case of intentional discrim-

ination under the direct method. We address the evidence

of the remaining claims below.

First, the EES position was filled through a competitive

process, and the refusal to promote Volovsek (post-1993)

when she requested such a promotion was based on the fact

that no vacancies existed. Nor does Volovsek provide any

evidence that would indicate that the perceived change in

the EES prerequisites to include a college degree was an act

of intentional sex discrimination against Volovsek. In fact,

it is not clear at all that there was an actual change

in prerequisites and not merely a mistake in the published

notice. The isolated “can be bought” comment is not pro-

bative because it does not obviously or inferentially refer

to sex or a sexual act. And it certainly seems unlikely that

Delgado’s comment, “you can be bought,” meant that

Volovsek could “buy” her promotion with sexual favors. Nor

does Volovsek point us towards any evidence that male co-

workers were given a promotion to ACS-Objective contem-

poraneously with her 1995 and 1997 requests for promotion.

We cannot reasonably infer from this evidence that her

failure to be promoted was the result of prohibited sex

discrimination.

Similarly, the math test taken by Volovsek was a result

of discussions about her training plan resulting from her

June 5, 1997 performance review. From the record, it ap-

pears that Volovsek’s refusal to name a specific course re-

sulted in Helmbrecht’s suggesting a communication course.

Subsequent discussions resulted in Volovsek’s choosing a

math course, which the DATCP sought to replace instead

with an evaluative test and customized follow-up training.

No inference of discriminatory intent is possible from these

facts.

Volovsek’s workload was comparable to that of her co-

workers for 1995, 1996, 1997 and 1998. And the DATCP

No. 02-2074 19

tries to explain, and Volovsek tries to rebut, the relevant

negative performance reviews. There certainly is some

question as to whether, or to what degree, Volovsek’s job

performance was in need of improvement. Similarly, it

is not undisputed whether Volovsek received adequate

training, or was denied credit by her supervisors for work

performed. However, Volovsek does not provide us with evi-

dence that would allow a jury to infer that these not atypi-

cal employer-employee conflicts, if true, were the result of

illegal intentional discrimination against Volovsek on ac-

count of her sex.

The comments allegedly overheard by McGregor are

probative, but inadequate. We would first have to infer that

the supervisors were discussing Volovsek, which would not

be too long an inferential leap given her status as the only

woman they supervised. However, we would then have to

find that it was reasonable to infer from this evidence that

a non-promotion was motivated by discriminatory or retal-

iatory intent. Here we part ways with Volovsek. These

comments were overheard not very long after Volovsek had

been promoted, which would be an odd action to take with

respect to someone you wanted to terminate. Additionally,

there is no evidence that DATCP ever made any effort to

fire Volovsek. And her performance evaluations, while indi-

cating areas of substandard performance, continued to give

her overall ratings at or above job standards for the next

few years. Again, the comments do not appear connected to

any alleged retaliatory act. McGregor did not overhear su-

pervisors saying, “let’s give her mediocre performance re-

views, undermine her ability to work, refuse to promote her

and be generally unpleasant to her so she finally gets fed up

and quits,” which is a more accurate description of the

discrimination and retaliation claims made by Volovsek.

Volovsek has made out an adequate case under the direct

method for the denial of her promotion in 1993 to defeat

summary judgment. As to the events subsequent to 1993,

20 No. 02-2074

Volovsek fails to make out an adequate case under the di-

rect method for either discrimination or retaliation.

c. Volovsek’s indirect method argument

The indirect method applies the familiar McDonnell

Douglas framework to create a presumption of discrimina-

tion or retaliation in the absence of any direct or circum-

stantial evidence. McDonnell Douglas, 411 U.S. at 802. The

plaintiff must establish that 1) she is a member of a pro-

tected class (or performed the protected act of filing a

complaint), 2) she is qualified for the position or, if already

employed, has met the defendant’s legitimate work expecta-

tions, 3) the defendant took adverse employment action

against her and 4) the defendants treated similarly situated

employees outside of the protected class (or who did not

complain) more favorably. Johnson, 325 F.3d at 897; Stone,

281 F.3d at 642. If these elements are established, the

prima facie case of intentional discrimination is established

and the burden shifts to the defendant to provide a nondis-

criminatory reason for the employment action. Id. If the

defendant successfully provides a nondiscriminatory reason,

the presumption of discrimination disappears and the

plaintiff must show that the articulated nondiscriminatory

rationale is pretext. This means the plaintiff must show by

a preponderance of the evidence that the proffered explana-

tion is false and that “discrimination was the real reason”

for the adverse employment action. St. Mary’s Honor Center

v. Hicks, 509 U.S. 502, 515 (1993). Because Volovsek has

met her burden with respect to the 1993 denial of promo-

tion, we limit our consideration in this section to the post-

1993 denials of promotion.

It is undisputed that Volovsek is a member of a protected

class, and that she engaged in the protected action of filing

discrimination and retaliation complaints. As already men-

tioned, there is a legitimate issue as to whether Volovsek

No. 02-2074 21

met the DATCP’s legitimate work expectations. Therefore,

for the purposes of summary judgment we will presume

that she did so. The failure to promote is an adverse

employment action. Therefore, the relevant question for her

prima facie case is whether similarly situated male co-

workers were treated differently. Volovsek’s claims, how-

ever, fail on this fourth prong (for both discrimination and

retaliation) because Volovsek fails to provide evidence that

DATCP promoted similarly situated men during the time

period in question.8 Therefore, because Volovsek fails to

make out a prima facie case, we need not analyze whether

the DATCP has rebutted Volovsek’s case.

III.

For the foregoing reasons, the judgment of the district court

is AFFIRMED in part and REVERSED in part.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

8

With respect to retaliation, more precisely, Volovsek fails to pre-

sent evidence that a similarly situated employee who did not file

discrimination complaints was promoted.

USCA-02-C-0072—9-18-03