Bannon, Gloria v. Univ Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2955

GLORIA BANNON and JACQUELINE BURTON,

Plaintiffs-Appellants,

v.

THE UNIVERSITY OF CHICAGO,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 3081—William J. Hibbler, Judge.

____________

ARGUED MAY 2, 2007—DECIDED OCTOBER 1, 2007

____________

Before EVANS, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. Gloria Bannon and Dr.

Jacqueline Burton both sued The University of Chicago,

operator of the Argonne National Laboratory where both

plaintiffs worked. Bannon, a woman of Mexican ancestry,

claims her supervisor leveled racial epithets at her and

repeatedly blocked her attempts to gain promotion from a

secretarial position to a supervisory one because of her

national origin. Further, Bannon says that after winning

promotion in November 2002, she was “frozen out” of

opportunities in retaliation for reporting funding irreg-

ularities. Bannon began a medical leave in February 2003,

and never returned to work. Instead, she initiated this

2 No. 06-2955

action, claiming she was: (1) denied promotion because

of her national origin, (2) subjected to a hostile work

environment, and (3) constructively discharged in viola-

tion of Title VII of the Civil Rights Act. Burton, a white

female, claims the university violated Title VII by deny-

ing her a promotion to senior scientist because of her

gender and that she was fired in retaliation for report-

ing improper billing practices, and not for the reason

provided by the school—a failure to report a conflict of

interest.

The district court dismissed Bannon’s retaliatory

constructive discharge claim on the pleadings and granted

summary judgment to the defendant on all other claims.

We affirm as to Bannon because: (1) she has no timely

failure-to-promote claim; (2) she did not establish that

she found her workplace subjectively hostile; (3) her IIED

claim is partially preempted and she was not the victim

of extreme and outrageous conduct; and (4) Illinois does

not recognize a cause of action for retaliatory constructive

discharge. With respect to Burton, we affirm because

she never applied for the promotion and cannot show

that the reason given for her termination was pretextual.

I. BACKGROUND

Because this case is at the summary judgment stage, we

summarize the facts as related by Bannon and Burton. See

Perez v. Illinois, 488 F.3d 773, 776 (7th Cir. 2007).

Bannon’s claims focus on her relationship with her super-

visor at Argonne, Christopher Reilly. She began working

as Reilly’s executive secretary in 1989. Initially the job

went smoothly, and Bannon received frequent raises. In

the 1990s, however, Reilly started using racial slurs,

calling her “wetback” and “brown cow,” for instance. A few

years later he heard other employees refer to Bannon as a

No. 06-2955 3

“Mexican terrorist in a miniskirt” and began to call her

that too. Bannon told him to “knock it off ” when he made

some of these remarks. In 2001, when Bannon told Reilly

where she thought he might find a document, he told her,

“I don’t know how that Mexican brain of yours works.” He

made similar comments to her when she asked him

about what she thought were questionable accounting

practices, telling her that she couldn’t understand figures

because of her “Mexican brain.” On at least one occasion,

this comment was made in the presence of another em-

ployee.

Bannon also contends that Reilly blocked her chances

for promotion within the lab. In 1997, the lab posted a

vacancy for a more senior project analyst position. Bannon

wanted to apply, but Reilly refused to recommend her.

Bannon needed his recommendation to be considered

for the promotion so she did not apply. The same thing

happened when the position became available again in

1998. In 2001, when the position became available for

the third time, Reilly did not immediately post it. Instead

he told Bannon that, if she took on many of the duties

of the project analyst position while continuing to work

as his secretary, he would create a new position for her

that would be at a slightly higher pay grade than the

project analyst job. Bannon agreed to do this. When she

reiterated her interest in a promotion to Reilly during

this time, he asked her if she “swam across the border

or walked across the desert.”

Reilly was unable to create a new position for Bannon,

apparently because the human resources department

would not authorize it. However, Bannon did receive

another raise as compensation for the extra work she

had done. In August 2002, after over a year’s delay, Reilly

posted the project analyst position. Bannon applied for

it in early September 2002, and when she informed Reilly

4 No. 06-2955

that she had done so, he became very angry, screamed at

her, and called her a “stupid Mexican.” Nonetheless, this

time Reilly did not block Bannon’s promotion. In mid-

September, Jacqueline Burton, who would be supervising

the new project analyst and had been reviewing the

applications for the position, told Reilly she wanted

Bannon to have the job. At the end of the month, Reilly

sent a letter to human resources asking them to give the

job to Bannon.1 Bannon received the promotion in October,

and it became effective on November 1, 2002.

Bannon did not report Reilly’s behavior to his superiors,

and in spite of all the problems she was having with him,

she admits that they socialized together outside of work

and that she “did not mind, and even enjoyed” some of

these events. She and her husband even went on a week-

long trip with Reilly and his wife in 1998. She also ad-

mits sending him a card in October 2002 in which she

referred to him as a “great boss” and invited him to lunch.

After her promotion, Burton became Bannon’s immedi-

ate supervisor, but Burton was fired by Argonne in

January 2003. Lorraine LaFreniere replaced her, and at

this point Bannon began having trouble at work again.

She was excluded from meetings that she used to partici-

pate in and was no longer allowed to organize and coordi-

nate meetings although that had previously been one of

her job duties. She felt that she was being “frozen out” of

her department after Burton’s termination. She was also

deeply upset by two incidents in which she was accused

of wrongdoing by Mark Jones, Argonne’s general counsel.

In October of 2002, he accused her of falsifying her over-

1

Although the defendant produced a copy of this letter dated

September 27, 2002, Bannon disputes whether it was ever sent.

However, she has presented no evidence showing that it was

not sent on the same day that it was dated.

No. 06-2955 5

time. Bannon’s lawyers told Jones that any further ques-

tions about her overtime should be directed to them, and

that was the last she heard about the issue. Then in

January 2003, Jones accused her of removing boxes of

Argonne property without permission. She told him that

she only removed personal items, and nothing more

came of this accusation. Bannon was so upset by her

treatment at Argonne that she took extended leave in

February 2003 and resigned a few months later.

Jacqueline Burton’s claims arise out of two incidents.

The first occurred in 2001, when she expressed interest

in being promoted to a senior scientist. Reilly, as Burton’s

immediate supervisor, was responsible for submitting

her application materials to the Associate Lab Director,

Harvey Drucker, who would ultimately decide whether to

promote her. Reilly did not submit Burton’s materials

because, he says, she did not give him everything that

was needed to complete her application. Specifically, he

says that she did not give him a list of scientific peers

who would be willing to write reference letters. Burton

does not deny that she failed to submit the list, but

contends that it was Reilly’s responsibility to ask for it,

and he never did. She asserts that he failed to collect

all the information he needed from her because he was

biased against her because of her gender. She points out

that in September 2002, he told Bannon that Burton was

a “dyke” and a “bitch” and that her marriage was a

“sham.”

The second incident involves Burton’s termination

from Argonne. In 2002, Argonne discovered that Burton’s

husband, John Walker, who also worked for Argonne, had

been doing consulting work on the side for an Argonne

vendor named Air, Soil, & Water (ASW). After investigat-

ing, Argonne discovered that Walker had earned a total of

$56,000 from ASW while he was still employed by

6 No. 06-2955

Argonne. Drucker believed that this was a significant

conflict of interest for both Burton and Walker and was

upset that neither one had reported it to the company.

He terminated Burton and Walker on account of this

conflict in January 2003. Burton believes that she was

really terminated because she expressed concerns about

questionable accounting practices to Reilly, and she

appealed her termination to both Drucker and an inde-

pendent review committee. The termination was upheld,

and the FBI ultimately investigated Burton’s and

Walker’s relationship with ASW. As far as we know this

investigation is still ongoing.

II. ANALYSIS

We review the district court’s grant of summary judg-

ment de novo, drawing all reasonable inferences in favor

of the non-moving parties. Perez, 488 F.3d at 776. Sum-

mary judgment is appropriate if there are no disputed

material facts and the moving party is entitled to judg-

ment as a matter of law. Brewer v. Bd. of Trs. of the Univ.

of Ill., 479 F.3d 908, 914-15 (7th Cir. 2007), petition for

cert. filed, 76 U.S.L.W. 3001 (U.S. June 19, 2007) (No. 06-

1694).

Likewise, our review of a district court’s grant of judg-

ment on the pleadings, see Federal Rule of Civil Procedure

12(c), is de novo. Moss v. Martin, 473 F.3d 694, 698 (7th

Cir. 2007). “Only when it appears beyond a doubt that

the plaintiff cannot prove any facts to support a claim

for relief and the moving party demonstrates that there

are no material issues of fact to be resolved will a court

grant a Rule 12(c) motion.” Id. With these standards in

mind, we begin with Bannon’s Title VII and state-law

claims.

No. 06-2955 7

A. Bannon’s Title VII Claims

1. Failure to Promote

The defendant argues that Bannon has not established

a timely failure-to-promote claim. Bannon does not mean-

ingfully respond to this argument, and we think it

is dispositive. Bannon had to submit her claim to the

EEOC within 300 days of the failure to promote. 42 U.S.C.

§ 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 109 (2002); Salas v. Wis. Dep’t of Corrs., 493

F.3d 913, 921 (7th Cir. 2007). She submitted her claim on

July 14, 2003. As a result, she can only sue for events

that happened on or after September 17, 2002.2 Therefore,

to the extent her failure-to-promote claim is based on

Reilly’s refusal to recommend her for promotion in 1997

and 1998, it is time-barred. The other event that argu-

ably constitutes a failure to promote is Reilly’s decision

in 2001 not to post the project analyst position as soon as

it became available—a decision that ultimately led to

Bannon taking on many of the duties of a project analyst

without receiving the corresponding promotion. But

Reilly posted the job in August 2002, so any delay in

making this promotion available to Bannon ended at that

point, outside of the limitations period.

However, Bannon also argues that, when she finally

applied for the project analyst position in September 2002,

Reilly “delayed” her promotion for two months until

November. This claim would fall within the limitations

period, and a delay in promoting an employee can consti-

2

The parties dispute whether Bannon filed her EEOC charge

on July 14, 2003 or August 12, 2003. It ultimately makes no

difference to the resolution of Bannon’s claims, so we give her

the benefit of the doubt and assume she filed her charge on

July 14.

8 No. 06-2955

tute an adverse employment action, see Cullom v. Brown,

209 F.3d 1035, 1042 (7th Cir. 2000). But we do not think

that the two-month gap in this case between the time

Bannon applied for and received her promotion qualifies

as an adverse employment action. Employees cannot

expect to be promoted the instant they apply. Some lag

time has to be allowed for the application to work its

way through the administrative process and for the

employer to consider other candidates.

The record suggests that this is exactly what happened

in Bannon’s case. She submitted her application to Burton

in early September, and Burton took some time to re-

view it along with the applications of other candidates.

In mid-September, Burton informed Reilly that she had

selected Bannon for the job. Just nine days later Reilly

recommended Bannon for the job to human resources. It

then took human resources some time to act on the

recommendation, and the company officially awarded the

job to Bannon in October, to take effect on the first day

of the following month. The only “delay” in this sequence

of events that can be attributed to Reilly is the nine days

between Burton telling Reilly she had selected Bannon

and Reilly’s request to human resources that Bannon be

given the job. It is not unreasonable for a supervisor to

take nine days to process a promotion application, espe-

cially when the supervisor likely has other tasks. There-

fore, the district court did not err in granting sum-

mary judgment on this claim.

2. Hostile Work Environment

This is the strongest of Bannon’s claims. To succeed

with this claim she has to show that her work environ-

ment was both subjectively and objectively offensive.

Boumehdi v. Plastag Holdings, 489 F.3d 781, 788 (7th Cir.

2007). Bannon correctly points out that the district court

No. 06-2955 9

erred by refusing to consider racial slurs made by Reilly

outside the limitations period. When a plaintiff makes

a hostile work environment claim, the court should

consider harassing incidents that occur outside the

limitations period as long as at least one harassing

incident occurred within the period. Morgan, 536 U.S. at

116-17; Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383,

385 (7th Cir. 2007). At least some of the racial slurs took

place within the limitations period so all of Reilly’s com-

ments are fair game. And, we agree with Bannon that

being repeatedly called a racist slur by one’s boss can be

considered objectively offensive treatment, see Cerros v.

Steel Techs., Inc., 398 F.3d 944, 950-51 (7th Cir. 2005),

especially when those slurs are made in the context of

comments denigrating one’s intelligence—as when Reilly

told Bannon that her “Mexican brain” couldn’t under-

stand figures.

However, Bannon has not established that she consid-

ered her workplace to be subjectively offensive. She has

admitted that she socialized with Reilly outside of work

not once but several times during the same period when

she says he was harassing her. Furthermore, one of these

social events—a week-long vacation that Bannon and

Reilly took together with their spouses—was more pro-

longed and extensive than typical socializing among office

colleagues. Bannon argues that she only socialized with

Reilly because she feared his anger if she refused his

invitations, but we note that on at least one recent occa-

sion in October 2002—when she invited him to lunch

in the card praising him as a “great boss”—she initiated

the contact. She also failed to report Reilly’s behavior to

his superiors at Argonne even though the conduct she

complains of continued for at least five years. See Wolf v.

Nw. Ind. Symphony Soc’y, 250 F.3d 1136, 1144 (7th Cir.

2001) (plaintiff did not show that he found treatment

by supervisor subjectively offensive when he did not

10 No. 06-2955

complain about treatment and sent supervisor a letter

telling her she was a good boss and he wanted to maintain

their friendship); cf. Kampmier v. Emeritus Corp., 472 F.3d

930, 942 (7th Cir. 2007) (questioning whether plaintiff

who maintained some social ties with alleged harasser

subjectively viewed harassment as offensive but ulti-

mately concluding that plaintiff ’s repeated complaints to

supervisors about harasser’s conduct raised a fact issue

on this point). We think that Bannon’s failure to report

Reilly’s behavior over this long period of time combined

with the unusually extensive social relationship she

maintained with him would prevent a reasonable jury

from finding that she subjectively viewed her work envi-

ronment as hostile. So, although it is a closer call, we

conclude that the district court did not err in granting

summary judgment on this claim.

3. Constructive Discharge Claim

Bannon bases her Title VII constructive discharge claim

on the same conduct that underlies her hostile work

environment claim. But to succeed in a constructive

discharge claim, Bannon has to show more than a hostile

work environment. She has to show that her working

environment was so intolerable that resignation was a

fitting response. See McPherson v. City of Waukegan, 379

F.3d 430, 440 (7th Cir. 2004). Because we have decided

that Bannon has not made the necessary showing to

support her hostile work environment claim, it follows that

her constructive discharge claim fails. See Roney v. Ill.

Dep’t of Transp., 474 F.3d 455, 463 (7th Cir. 2007). Fur-

thermore, Bannon has not presented sufficient evidence

to connect her resignation to her ethnicity. Reilly is the

only person Bannon says denigrated her ethnic back-

ground, but when Bannon resigned she had been promoted

and was no longer under Reilly’s direct supervision.

No. 06-2955 11

Instead her resignation seems to have been prompted by

her new supervisor, Lorraine LaFreniere’s actions in

“freezing her out” of some of her job duties and by her

distress over the investigations Argonne’s general coun-

sel, Mark Jones, conducted into her behavior. Bannon

has never suggested that either LaFreniere or Jones

harbored any bias towards Hispanics.

B. Bannon’s State-Law Claims

Bannon also made two state-law claims, intentional

infliction of emotional distress and retaliatory construc-

tive discharge. The district court decided, and the defen-

dant now argues, that Bannon’s claim for intentional

infliction of emotional distress was preempted by the

Illinois Human Rights Act (IHRA). Whether a state-law

tort claim is preempted depends on whether the IHRA

“furnish[es] the legal duty that the defendant was alleged

to have breached.” Naeem v. McKesson Drug Co., 444 F.3d

593, 604 (7th Cir. 2006). If the plaintiff ’s allegations

against the defendant implicate only a duty provided by

the IHRA, such as the duty of employers to refrain from

discriminating against employees on the basis of their

race or national origin, then the plaintiff ’s claim is pre-

empted. Id. In this case, Bannon’s primary allegation is

that Reilly caused her emotional distress by his use of

racial slurs. It is Reilly’s alleged breach of his duty under

the IHRA to refrain from discrimination that Bannon

claims caused her distress. It is true, as Bannon points

out, that her claims are not entirely based on Reilly’s

discriminatory behavior—so her claim may not be en-

tirely preempted. She also asserts that she was distressed

by being “frozen out” of her job duties and investigated

by Jones. In addition, it is possible to view Bannon’s

allegations against Reilly as being independent of any

duty imposed by the IHRA. For example, she could be

12 No. 06-2955

claiming that, regardless of his motivation, his hostile

attitude towards her and denigration of her intelligence

caused her distress. But this does not help Bannon since

the conduct she complains of—being excluded from some

meetings, being denied the responsibility of organiz-

ing meetings, being forced to attend a few unpleasant

sessions with Argonne’s general counsel that led to no

disciplinary action, and having a mean boss who some-

times told her she was stupid—does not qualify as “ex-

treme and outrageous” conduct. Rather it is the kind of

ordinary workplace stress that is not actionable. See

Graham v. Commonwealth Edison Co., 742 N.E.2d 858,

867-68 (Ill. App. Ct. 2000) (plaintiff ’s temporary reas-

signment and demotion were not extreme and outrageous;

investigations of employees undertaken for legitimate

purpose are not extreme and outrageous).

As for Bannon’s final claim, retaliatory constructive

discharge, the district court correctly concluded that

Illinois law does not recognize such a claim. See Fisher v.

Lexington Health Care, Inc., 722 N.E.2d 1115, 1121 (Ill.

1999); see also Thomas v. Guardsmark, Inc., 381 F.3d 701,

708 (7th Cir. 2004) (collecting cases).

C. Burton’s Title VII and State-Law Claims

1. Failure to Promote

Burton first contends that Reilly stymied her promotion

on account of her gender when he failed to ask her for her

references, thus ensuring that her application for promo-

tion would be incomplete. Burton attempts to prove this

claim under the indirect method. Therefore, she must

show that she is a member of a protected class, was

qualified for the promotion, was denied the promotion, and

that similarly situated employees outside the protected

class were treated more favorably. Perez, 488 F.3d at 776;

No. 06-2955 13

Pantoja v. Am. NTN Bearing Mfg. Corp., No. 06-1252, 2007

WL 2230095, *4 (7th Cir. Aug. 6, 2007) (suggesting

alternate manner of satisfying prima facie case). She

argues that a genuine issue of material fact exists about

whether she or Reilly was responsible for compiling her

references and whether Reilly ever asked her for refer-

ences. But even if we assume that Reilly was responsible

for compiling the references and never asked Burton for

them, she has still failed to establish the third and

fourth elements of the indirect method. First, she has

not shown that she was denied a promotion to senior

scientist because she cannot show that she even applied for

this promotion. Even if Reilly was responsible for compil-

ing Burton’s references, he could not do this until she told

him whom she wanted to serve as references. Yet Burton

does not deny that she failed to provide him with even this

minimal amount of information. Burton faults Reilly for

not asking for this information, but we do not see how his

failure to ask prevented Burton from submitting a com-

plete application. Argonne has submitted its policy on

promotions which clearly shows that references are

required for promotion to senior scientist. Burton does not

contest the accuracy of this document or seriously contend

that references were not required. Nor does she say that

Reilly misled her by telling her that this rule would not

apply to her. Therefore, she should not have needed a

request from Reilly to know that she had to give him at

least a list of references before her application for promo-

tion would be complete. Finally, Burton has not presented

evidence that Reilly took more initiative when compiling

references from male candidates for promotion.

2. Retaliatory Discharge

Burton’s claim that she was discharged in retaliation

for informing Reilly about questionable accounting prac-

14 No. 06-2955

tices is also without merit. To succeed on this claim, which

is brought under Illinois law, Burton must show that she

was discharged in retaliation for her activities and that the

discharge violates public policy. Hartlein v. Ill. Power Co.,

601 N.E.2d 720, 728 (Ill. 1992). If the employer offers a

legitimate, nondiscriminatory reason for the discharge, the

employee must show that the reason is pretextual. Gomez

v. The Finishing Co., 861 N.E.2d 189, 197-98 (Ill. App.

Ct. 2006). On appeal, Burton’s only argument is that

Argonne’s stated reason for firing her, her failure to report

her husband’s $56,000 worth of consulting work for an

Argonne vendor, was pretextual because Argonne’s con-

flicts policy by its terms does not apply to consulting fees.3

We do not think the terms of Argonne’s conflicts policy

establish pretext. First, contrary to Burton’s contention,

the conflicts policy can be read as applying to consulting

fees. In any case, Burton is essentially arguing that

Argonne erred in applying its conflicts policy to her

situation. Even if this were true, there is a difference

between a mistake and a lie. The fact that Argonne’s

3

In her reply brief, Burton also argues that Argonne’s stated

reason for her discharge was pretextual because in 1999 (three

years before Argonne investigated Burton’s conflict) Drucker

told her that there was no need to report conflicts involving

Argonne’s partners in a special program called QuickSite. Burton

says that ASW was a QuickSite partner, and thus it was disin-

genuous for Drucker to fire her for not reporting a conflict

with ASW when he had already told her that conflicts with

QuickSite partners like ASW did not have to be reported. This

argument is waived because it was not presented in Burton’s

opening brief. See United States v. Dabney, No. 06-2192, 2007 WL

2200481, at *4 (7th Cir. Aug. 2, 2007). In any case, this argument

also disregards the fact that, even if Drucker gave Burton mixed

signals about whether work for ASW presented a conflict,

Drucker’s initial decision to fire her was ultimately reviewed

and upheld by an independent committee of Argonne officials.

No. 06-2955 15

stated reason for firing Burton may have been mistaken

does not mean it was pretextual. See Miller v. J.M. Jones

Co., 587 N.E.2d 654, 661 (Ill. App. Ct. 1992) (question is

not whether employer treated employee fairly but whether

discharge was retaliatory).

In addition, Burton has presented no evidence to show

that Drucker knew that she had questioned Reilly about

accounting practices when he made the initial decision to

fire her. She makes a half-hearted attempt to suggest

that Reilly was the real decision-maker, in contradiction

to what both Reilly and Drucker said in their affidavits,

but she has not presented sufficient evidence to support

this allegation.

III. CONCLUSION

For the above reasons, we AFFIRM the judgment of the

district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-01-07