Benders, Evelyn v. Bellows and Bellows

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 06-1487 & 06-2716

EVELYN BENDERS,

Plaintiff-Appellant,

v.

BELLOWS AND BELLOWS,

Defendant-Appellee.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 04 C 7326 & 06 C 324—Samuel Der-Yeghiayan, Judge.

____________

ARGUED OCTOBER 22, 2007—DECIDED FEBRUARY 12, 2008

____________

Before EASTERBROOK, Chief Judge, and KANNE and

EVANS, Circuit Judges.

EVANS, Circuit Judge. The plaintiff, Evelyn Benders,

alleges that she was fired in April 2004 in retaliation

for filing an age and race discrimination claim with the

Equal Employment Opportunity Commission (EEOC)

and for threatening to report a dispute about her em-

ployment status to the IRS. The defendant law firm,

Bellows and Bellows, P.C. (B&B),1 maintains that it

1

According to an Internet directory, Lawyers.com, Bellows and

Bellows, P.C. is a “Boutique Chicago law firm concentrating

(continued...)

2 Nos. 06-1487 & 06-2716

terminated Benders’ employment in May 2003, well

before she engaged in any protected activities. The twist

in this case is that B&B’s decision to fire Benders was

communicated to her in rather uncertain terms by the

firm’s owner and president, Joel Bellows, who, despite

his marriage to Laurel Bellows (the other “B” of B&B),

had a romantic relationship with Benders during the

first several years of her employment.

Notwithstanding these and other complexities, the

district court found, as a matter of law, that B&B fired

Benders on the earlier date. Consequently, the court

granted B&B’s motion for summary judgment on all

three counts in the complaint. Benders v. Bellows and

Bellows, No. 04 C 7326, 2006 WL 208713 (N.D. Ill. Jan. 24,

2006). The case2 is now before us on Benders’ appeal.

As we must, we accept Ms. Benders’ allegations as

true at this stage of the proceedings. As so viewed, the

facts are that B&B hired Benders, an African-American

woman now in her fifties, as a legal secretary in 1996 and

promoted her to the position of office administrator

about a year later. In that position, Benders took charge

of the firm’s computer system, invoicing, and personnel

matters, including the hiring, firing, and training of

employees. Benders, during all this time, did not have an

employment contract with B&B.

Shortly after starting at the firm, Benders and

Mr. Bellows began a romantic relationship, which ended

1

(...continued)

in corporate and employment law, including litigation, negotiat-

ing and counseling.”

2

The “case” we refer to here (06-1487) is Benders’ three-count

claim in which she is represented by counsel. We will discuss

Benders’ pro se appeal from the district court’s dismissal of her

related sex discrimination case (06-2716) separately, at the end

of this opinion.

Nos. 06-1487 & 06-2716 3

about 5 years later. From time to time during this period,

Mr. Bellows helped Benders financially, issuing her

checks, drawn on the firm, to purchase various personal

items. B&B maintained a record of the monies given to

Benders, which she considered gifts, not loans or income.

B&B, on the other hand, claims that these monies

were not gifts. It issued 1099 IRS forms to Benders for

2002 and 2003 reflecting that these payments were

income.

In May 2003, Mr. Bellows had a private conversa-

tion with Benders in which he told her that his wife

and another principal of the firm, Nick Iavarone, were

“campaigning to get [Benders] out” and that she should

begin to look for other employment. Benders alleges

that Mr. Bellows assured her that she would remain

employed with the firm until she found “the right job.”

Benders suspected that the real reason for her future

departure was that B&B did not want an older black

woman around after it moved into its new offices. Accord-

ing to the firm, however, the decision to fire Benders

was made because Mrs. Bellows did not believe Benders

was competent as office administrator. B&B maintains

that Mr. Bellows offered to keep Benders on the payroll

as an act of generosity until she found another job.

Benders claims that, a few weeks later, Mr. Bellows

told her that the firm had hired a “moving consultant,”

who would “share some of the responsibilities” with

Benders, but that “no one would be the wiser.” In

July 2003, Cinthia LeGrand, a white woman approxi-

mately 10 years younger than Benders, began her em-

ployment at B&B. After LeGrand’s arrival, Benders’ duties

at the firm generally diminished. According to Benders,

however, at times, her responsibilities would “come back,”

causing her to question her role at B&B. B&B concedes

that it never stripped Benders of her title as office admin-

istrator, nor did it ever reduce her then-current salary

4 Nos. 06-1487 & 06-2716

until her last day at the firm, about 9 months after

LeGrand started.

In December 2003, Mr. Bellows approached Benders

and proposed that, instead of making a contribution to

the firm’s 401(k) plan on her behalf for 2003, he would

assume responsibility for a civil judgment entered against

Benders regarding her student loans. Mr. Bellows alleg-

edly explained to Benders that, to effectuate this arrange-

ment, he would have to reclassify her as an independent

contractor for the last few weeks of 2003. Benders admits

that she agreed to forego the payment, but only on the

condition that she be returned to employee status by mid-

January 2004. From that point on, however, Benders’

paychecks bore the notation, “independent contractor.”

Despite the change in status, B&B concedes that it

continued to deduct federal taxes from Benders’ paycheck.

In February 2004, in response to her complaints,

Mr. Bellows told Benders that he was going to put her

back on the payroll long enough for her to collect unem-

ployment, for approximately 5 weeks, and then she

would have to leave the firm. But Benders’ paychecks

remained the same. Benders was never asked to sign

an independent contractor agreement, which she knew to

be the firm’s practice.

Later that month, Benders filed a claim with the Illinois

EEOC, alleging race and age discrimination in connec-

tion with her apparent demotion and B&B’s hiring of

LeGrand. Her charge appended e-mails written by

Mr. Bellows. One of the e-mails referred to Benders as

“Seabiscuit” who “should have been put down” long ago. In

another e-mail, Mr. Bellows said that African-American

members of his staff were making Benders’ employment

situation “a racial thing.” After Benders filed the charge,

she claims that Mr. Bellows became increasingly hostile

towards her and made her working conditions difficult.

Nos. 06-1487 & 06-2716 5

According to B&B, however, it was Benders who caused

problems. The firm claims that she became disruptive

and insubordinate, did not actively seek other employment,

deliberately caused problems for LeGrand, and did not

perform certain duties.

On April 12, 2004, B&B filed its position statement

with the EEOC. Benders alleges that, 3 days later,

Mr. Bellows approached her and told her that because

she had filed an “awful EEOC charge,” he would not

consider paying her severance. B&B denies that

Mr. Bellows made any such statement.

On April 14, 2004, after receiving another “independent

contractor” paycheck, Benders reminded Mr. Bellows

that she planned to refinance her home and needed

her pay stub to reflect her current status as an employee.

Mr. Bellows replied in an e-mail that he “had thought

that [Benders] [was] being paid as an employee until

recently” and promised to issue her a corrected check.

He changed his mind, however, because Mrs. Bellows

would not allow it. Four days later, Benders sent

Mr. Bellows an e-mail telling him that she intended to

file a formal complaint with the IRS, requesting that

the agency make a determination of her employment

status.3

Finally, on April 20, 2004, Mr. Bellows told Benders

to leave the firm. According to B&B, Benders was asked

to leave because a day earlier she had become hostile

with Mrs. Bellows. Mrs. Bellows subsequently told her

husband that she would not come to the office until

Benders was fired. B&B claims that Mr. Bellows told

Benders she was “causing too much of a distraction.”

3

Benders ultimately did file a complaint with the IRS in

July 2004.

6 Nos. 06-1487 & 06-2716

Benders denies ever having an altercation with

Mrs. Bellows and maintains she was accused of “causing

too many problems” at the firm. Benders filed a retalia-

tory discharge claim with the EEOC and subsequently

received a right-to-sue letter.

In November 2004, Benders filed this suit in dis-

trict court, alleging three counts: (1) a claim of retalia-

tion for filing an EEOC charge under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (2)

a claim of interference with the attainment of a benefit

under § 510 of the Employee Retirement Income Security

Act (ERISA), 29 U.S.C. § 1140 et seq.; and (3) a claim of

retaliatory discharge under Illinois common law. B&B

eventually moved for summary judgment and, as we

noted, the district court granted the motion.

We review a grant of summary judgment de novo. Perez

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

judgment is proper if “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). We draw all reasonable infer-

ences from the evidence in the light most favorable to

the nonmoving party. Perez, 488 F.3d at 776.

We first examine whether the district court correctly

found as a matter of law that B&B decided to fire Benders

in May 2003. As we stated earlier, this determination

was central to the court’s decision to dismiss all three

claims.

The district court held that no reasonable trier of fact

could find other than that B&B decided to terminate

Benders’ employment in 2003 primarily based on the

following “undisputed” facts: (1) in May 2003, Mr. Bellows

told Benders that her employment was being “terminated”

and that she should begin looking for another job;

Nos. 06-1487 & 06-2716 7

(2) Benders’ replacement, LeGrand, was hired shortly

thereafter; and (3) Benders stated that her job had been

“eliminated” in a January 2004 EEOC questionnaire. We

disagree with this conclusion.

First, Benders did not concede that her employment

was “terminated” in May 2003. The record shows that

she admitted to the language Mr. Bellows used, but not

to the fact that her employment had actually been termi-

nated. Her response to a proposed finding of fact is illus-

trative: “Contested that the Firm decided to ‘terminate’

Benders in 2003. Benders was only told that she should

begin looking for another job, not that she was termi-

nated.” (Emphasis added.) On the contrary, Benders

testified that, while she may have been demoted in 2003,

she was actually fired on April 20, 2004, 2 months

after she filed a claim with the EEOC and 2 days after

threatening to report certain conduct to the IRS. Thus,

the fact that Benders’ employment was “terminated” in

May 2003 was far from undisputed.

Second, Benders did not admit that she was “replaced”

by LeGrand in June 2003. Benders agreed that LeGrand

was hired by the firm in June 2003 and that she took

over some of Benders’ responsibilities. However, Benders

also testified that she continued working at the firm until

April 2004 doing many of her usual duties, and it was

unclear what her role was. Benders’ response to a pro-

posed finding of fact is helpful: “Contested. Benders

stated that [m]y role diminished. But it still became—

it was still fuzzy because at times it would come back . . .

[s]o it never really stopped.” Again, the fact that Benders

had been replaced in the summer of 2003 was disputed.

Third, Benders’ statements in the EEOC questionnaire

are more complex than B&B acknowledges. Benders

admitted writing “Demotion; Job elimination” in the

space asking for “issues.” However, she also wrote,

8 Nos. 06-1487 & 06-2716

“TOLD to look for employment.” These statements are not

inconsistent with her understanding that, while her role

had diminished somewhat, and she may have been de-

moted, B&B did not decide to fire her until April 2004.

The attempt here to justify summary judgment on “undis-

puted” facts is not convincing.

Academic tenure cases likewise do not support a resolu-

tion of this dispute on summary judgment. In cases such

as Delaware State College v. Ricks, 449 U.S. 250 (1980),

Chardon v. Fernandez, 454 U.S. 6 (1981), and Lever v.

Northwestern University, 979 F.2d 552 (7th Cir. 1992),

courts have concluded that “termination of employment . . .

is a delayed, but inevitable, consequence of the denial

of tenure.” Ricks, 449 U.S. at 257-58. Although that line

of cases primarily deals with limitations questions (which

are not at issue here), it is tempting to apply their dis-

cussions to this case. After all, the facts of Ricks and its

progeny concern an initial decision (to deny tenure), which

was communicated to the employee and subsequently

followed by a period of continued employment. There,

the courts found that the earlier decision was the im-

portant one, noting that “[m]ere continuity of employment,

without more, is insufficient to prolong the life of a cause

of action for employment discrimination.” Id. at 257. Thus,

B&B might argue that a similar sequence of events

occurred here: it made an initial decision (to fire Benders),

gave the employee notice, and finally terminated her

employment at a later date. Accordingly, Benders’ ultimate

dismissal in 2004 was a “delayed, but inevitable, conse-

quence” of B&B’s 2003 decision, which is the relevant

date of termination.

We think that the Ricks line of cases is distinguishable.

First, in those cases, the decision to deny tenure was

made after a designated number of years, by a specific

committee, with the employee’s knowledge, and usually

according to procedures outlined in a faculty handbook.

Nos. 06-1487 & 06-2716 9

See, e.g., Lever, 979 F.2d at 554. Nothing even coming

close to a formal process was alleged in this case. Second,

in the academic tenure case, the tenure decision was

communicated to the employee in no uncertain terms,

usually in a letter. See, e.g., id. at 553. Here, we have

only a private conversation between Mr. Bellows and

Benders (and, we repeat, the two allegedly had a 5-year

intimate relationship), the content of which is vague

and disputed. Finally, in the Ricks line of cases, the

employee who was denied tenure was usually offered a

subsequent one-year “terminal” contract, with explicit

notice that employment would end upon its expiration.

Benders, however, was given no contract or even an end

date. She was finally told to leave on a seemingly ran-

dom day, 11 months after her initial conversation with

Mr. Bellows, and before she found another job. We do not

mean to imply that every termination must include all

of these ingredients, but the absence of any formal process

or clear evidence of a decision to terminate makes the

academic tenure cases inapposite to a case like ours

on summary judgment.

We conclude that the record paints an indeterminate

picture of the significance of the May 2003 conversation.

Whether Benders was fired on that date is a material

issue of fact to be decided by a jury. Thus, it was error to

grant summary judgment on that basis. We now turn to

an individual assessment of Benders’ three claims.

Benders’ first count alleges a claim of retaliation under

Title VII for filing an EEOC charge. See 42 U.S.C. § 2000e-

3(a). A plaintiff can establish a prima facie case of unlaw-

ful retaliation via the direct or the indirect method of

proof. Stone v. City of Indianapolis Pub. Utils. Div., 281

F.3d 640, 644 (7th Cir. 2002). Benders elects the former.

Thus, to survive summary judgment, she must present

direct evidence that: (1) she engaged in statutorily

protected activity; (2) she suffered an adverse employment

10 Nos. 06-1487 & 06-2716

action; and (3) there is a causal connection between the

two. Luckie v. Ameritech Corp., 389 F.3d 708, 714 (7th Cir.

2004). Because direct evidence—which essentially re-

quires an admission by the employer—is rare, we also

consider circumstantial evidence from which the fact

finder could infer intentional discrimination. Mannie v.

Potter, 394 F.3d 977, 983 (7th Cir. 2005). Benders’ obstacle

on summary judgment is the third element, causation.

B&B argues that Benders cannot establish causation

as a matter of law pursuant to Clark County School

District v. Breeden, 532 U.S. 268 (2001). In that case,

the Court held that “[e]mployers need not suspend previ-

ously planned transfers upon discovering that a Title VII

suit has been filed, and their proceeding along lines

previously contemplated, though not yet definitely deter-

mined, is no evidence whatever of causality.” Id. at 272.

There, the employer’s evidence that it intended to trans-

fer the employee prior to learning of the lawsuit was not

at issue, and the employee was transferred within about

a month of the decision. Id. In Cichon v. Exelon Genera-

tion Co., we applied Clark County to a case where the

evidence showed that the decision to discharge an em-

ployee was made a day before the employer learned of

the lawsuit, and the employee was removed less than a

month later. Cichon, 401 F.3d 803, 811 (7th Cir. 2005).

However, because we already found that there is a genuine

issue of material fact as to when B&B decided to fire

Benders, reliance on Clark County and Cichon, at this

point, is premature.

B&B nevertheless asserts that Benders brought forth

no direct or circumstantial evidence of causation. We

disagree. Benders testified that on April 15, 2004, just 3

days after B&B filed its response with the EEOC,

Mr. Bellows approached her and referred to the “awful

EEOC charge” that she filed 2 months earlier. Benders

was fired 5 days after that, before she found other em-

Nos. 06-1487 & 06-2716 11

ployment, raising an inference that she was fired in

retaliation for filing the charge. See Culver v. Gorman &

Co., 416 F.3d 540, 546 (7th Cir. 2005) (discussing the

significance of “suspicious timing”). Mr. Bellows denied

ever speaking to Benders about the EEOC charge, but this

only creates a factual dispute to be resolved at trial.

Viewed in the light most favorable to Benders, the evi-

dence raises an inference of a causal connection between

her complaints of discrimination and her termination.

Because Benders presented evidence establishing a

prima facie case of retaliation, her Title VII claim must be

tried unless B&B presents unrebutted evidence that

Benders would have been fired absent her allegations of

discrimination. Stone, 281 F.3d at 644. Summary judgment

is only appropriate if there is no material issue of fact

as to whether B&B’s explanation is pretext for retalia-

tion. Hudson v. Chicago Transit Auth., 375 F.3d 552, 559

(7th Cir. 2004). Benders can avoid summary judgment

by pointing to specific facts that cast doubt upon B&B’s

explanation. Culver, 416 F.3d at 547.

B&B advances several noninvidious reasons for termi-

nating Benders: she failed to perform certain duties;

she was disruptive and insubordinate; and she got into

a hostile altercation with Mrs. Bellows. B&B produced

e-mails allegedly evidencing Benders’ poor performance.

Rather than demonstrating Benders’ incompetence,

however, the e-mails show a general environment of

distrust and dysfunction at the firm, where many em-

ployees—including Benders herself—were confused about

her role and responsibilities. B&B also offered affidavits

from employees verifying Benders’ purported insubordi-

nation. However, Benders’ testimony disputes the cred-

ibility of these affidavits and maintains that it was

Mr. Bellows who made her working conditions difficult

after she filed the EEOC charge. Finally, B&B offered

affidavits confirming the alleged confrontation between

12 Nos. 06-1487 & 06-2716

Mrs. Bellows and Benders. Again, Benders testified that

she recalled no such altercation. Whether this confronta-

tion took place and whether Benders underperformed

in her duties are factual questions bearing on the issue

of pretext. Thus, summary judgment is inappropriate

on Benders’ first claim.

Benders’ second count alleges a claim of interference

with the attainment of a benefit under § 510 of ERISA.

That section states:

It shall be unlawful for any person to discharge, fine,

suspend, expel, discipline, or discriminate against a

participant or beneficiary for exercising any right to

which he is entitled under the provisions of an em-

ployee benefit plan, . . . or for the purpose of interfer-

ing with the attainment of any right to which such

participant may become entitled under the plan . . . .

29 U.S.C. § 1140. Section 510 protects the employment

relationship giving rise to an individual’s pension rights.

McGath v. Auto-Body N. Shore, Inc., 7 F.3d 665, 669 (7th

Cir. 1993). In addition to termination, § 510 also applies

to situations where an employer reclassifies an employee

as an independent contractor, see, e.g., Berger v. AXA

Network LLC, 459 F.3d 804, 806 (7th Cir. 2006), as long

as the employer had “the specific intent to deprive an

employee of his plan rights.” Isbell v. Allstate Ins. Co., 418

F.3d 788, 796 (7th Cir. 2005).

Benders maintains that B&B violated § 510 in two

ways: (1) by reclassifying her as an independent con-

tractor in December 2003 and refusing to reinstate her

as an employee to avoid making a contribution to her

401(k) account; and (2) by terminating her employment

in April 2004 because of her disagreement with her

status as an independent contractor and her attempts

to regain her status as an employee. Contrary to the

district court’s conclusion, this issue does not directly

Nos. 06-1487 & 06-2716 13

depend on when Benders was fired. As Mr. Bellows

acknowledged in his affidavit, whatever B&B decided in

May, Benders would have been a “qualifying employee”—

and thus eligible for the December 2003 contribution—if

not for her change in status. B&B cannot reasonably

dispute this fact because it argues that Benders know-

ingly accepted payment of a default judgment instead of

a contribution to her 401(k) account. For such a quid pro

quo to have occurred, Benders must have been entitled to

the benefit to begin with. The issue boils down to whether

Benders consented to the arrangement, thus negating

the “specific intent” necessary to find B&B liable.

B&B first argues that there is no direct or circumstan-

tial evidence that it intended to deprive Benders of a

benefit. Again, B&B’s argument is that Benders agreed to

forego the 401(k) contribution in exchange for payment

of her student loan judgment. However, Benders refuted

this argument by testifying that she only agreed to re-

main an independent contractor for a few weeks, not

indefinitely. As evidence, Benders produced e-mails in

which she accused Mr. Bellows of reneging on his promise,

to which Mr. Bellows responded that he would reinstate

her as an employee. Indeed, in his affidavit, Mr. Bellows

admitted to twice agreeing to restore Benders’ status

but later changing his mind. Furthermore, Benders

ultimately was told to leave the firm 2 days after inform-

ing Mr. Bellows of her intent to file a claim with the

IRS regarding her status. Thus, Benders offered some

evidence that B&B intended to interfere with her attain-

ment of a benefit when, despite her complaints,

Mr. Bellows broke his promise and dismissed her.

B&B also maintains that it did not have the requisite

intent to violate § 510 because it had no economic incen-

tive to take the allegedly adverse action. See Little v. Cox’s

Supermarkets, 71 F.3d 637, 644 (7th Cir. 1995) (finding

that a potential saving of $216 could not be viewed as a

14 Nos. 06-1487 & 06-2716

motivating factor in the employee’s discharge). We think

there is no doubt that this contention is true. Paying

off the student loan judgment greatly exceeded any

contribution Benders would have received if she had

remained an employee. Consequently, there is no material

issue of fact regarding whether B&B intended to profit

from keeping Benders classified as an independent con-

tractor for part of 2003. Also, since Benders was fired, at

the latest in April 2004, a 401(k) contribution for that

year would not have been made. In that regard, it ap-

pears to be undisputed that none of B&B’s employees

received a 401(k) contribution in 2004.

Finally, given the reality of the sticky situation at

B&B—where amour was hot and heavy in the air—it’s

more than a bit unrealistic to think that the firm shoved

Benders out the door so it could save a few bucks by

dodging a 401(k) contribution to a pension plan. Sum-

mary judgment was properly granted to B&B on

Benders’ ERISA claim.

Benders’ third and final count alleges a claim of retalia-

tory discharge under Illinois common law in connection

with her threat to notify the IRS of her employment

status situation. As an exception to the at-will employ-

ment rule, a retaliatory discharge claim may succeed if

an employee shows: (1) that she was discharged (2) in

retaliation for her activities (3) in contravention of a

clearly mandated public policy. McGrath v. CCC Info.

Servs., Inc., 731 N.E.2d 384, 388 (Ill. App. Ct. 2000).

Illinois courts have held that the “clear mandate of

public policy” standard is met in the context of workers’

compensation claims and whistleblowing. Brandon v.

Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 941

(7th Cir. 2002). When whistleblowing, the employee need

not be correct about the unlawfulness of the conduct, as

long as she held a good-faith belief. Id. The public policy

requirement is not met when “only private interests are

Nos. 06-1487 & 06-2716 15

at stake.” Palmateer v. Int’l Harvester Co., 421 N.E.2d

876, 879 (Ill. 1981). The issue here is whether Benders’

claim fails for this reason.4

B&B argues that the Illinois appellate court’s decision

in McGrath supports its position that Benders’ dispute

with the firm was purely private. There, the court re-

jected the employee’s claim that violations of the state’s

Wage Payment and Collection Act formed the predicate

for a retaliatory discharge suit. McGrath, 731 N.E.2d at

391. The court explained that a dispute over the

employee’s conditional stock options and calculation of

bonus is economic in nature and therefore not actionable.

However, in that case, the state statute only concerned the

forfeiture of employee benefits. Id. at 390. Here, the

federal laws governing the classification of workers

as employees or independent contractors for tax pur-

poses concern more than workers’ economic interests.

They affect the tax revenues collected by the federal

government, the compliance with which, B&B does not

dispute, is a matter of public concern. See Brandon, 277

F.3d at 942 (citing cases where violations of federal law

have given rise to valid retaliatory discharge claims

under Illinois law).

B&B also maintains that because Benders did not

suspect tax fraud per se at the time she threatened to

report the matter to the IRS, her claim is barred. We

disagree. Illinois courts frame the inquiry as whether

only private interests are “at stake,” focusing on the

employer’s allegedly wrongful conduct. See, e.g., Palmateer,

421 N.E.2d at 879. B&B cites no cases requiring the

4

B&B also argued that Benders did not demonstrate that the

firm’s proffered reasons for firing her were pretext. However,

as we discussed in the context of her Title VII claim, Benders

adequately rebutted B&B’s evidence on this issue.

16 Nos. 06-1487 & 06-2716

employee to fully grasp the legal issues implicated by

the employer’s wrongdoing. Instead, Illinois case law

holds that a “purely personal and private dispute” is not

actionable. McGrath, 731 N.E.2d at 392. Benders’ e-mail

informing B&B of her intent to contact the IRS put the

firm on notice of potential tax violations. Mr. Bellows

acknowledged that he understood at the time that B&B

might incur tax liability, if Benders’ classification was

incorrect. While Benders clearly had an economic inter-

est in reporting the matter, the evidence shows that

she also held a good-faith belief that what B&B was doing

was not lawful. That, coupled with the fact that there

was arguably some “public interest” implicated by B&B’s

conduct, is enough to overcome summary judgment.

Now that we have concluded that the district court

erred in awarding summary judgment on two of the

three counts in Benders’ initial suit (Benders I), we turn

to her second case, filed pro se (Benders II), where she

alleges sex discrimination in violation of Title VII. Benders

first tried to advance this claim in 2005, when she moved

to file a third amended complaint to her original action.

The district court denied that motion as untimely. Benders

then filed a new complaint, raising the same sex dis-

crimination claim, which the district court dismissed for

failure to state a claim.5

Our review is de novo. DeWalt v. Carter, 224 F.3d 607,

611 (7th Cir. 2000). We take Benders’ factual allegations

5

Of course, the claim in Benders II was also dismissable as

violative of the rule against splitting causes of actions—all of

Benders’ claims against B&B growing out of her employment

there should have been in a single suit. That point was not

pressed by B&B in the district court, so we won’t consider it

here. That’s no-harm, no-foul for B&B here because, as we

will conclude, the claim in Benders II will not be coming back

alive.

Nos. 06-1487 & 06-2716 17

as true and draw all reasonable inferences in her favor.

Id. Although a pro se complaint is to be liberally con-

strued, Talley v. Lane, 13 F.3d 1031, 1033 (7th Cir. 1994),

a plaintiff can plead herself out of court by alleging facts

that show she is not entitled to a judgment. Early v.

Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir.

1992).

Title VII provides that “[i]t shall be an unlawful employ-

ment practice for an employer . . . to discriminate against

any individual . . . because of such individual’s . . . sex[.]”

42 U.S.C. § 2000e-2(a)(1). Benders’ complaint alleges

that she was fired because Mr. Bellows did not want his

wife to learn about their affair. Essentially, Benders

complains of being discriminated against not because

of her sex, but because of her consensual sexual relation-

ship with Mr. Bellows.6 We agree that these allegations are

insufficient to support a cause of action for sex discrimina-

tion. See Kahn v. Objective Solutions, Int’l, 86 F. Supp. 2d

377, 380 (S.D.N.Y. 2000) (collecting cases finding that a

voluntary, romantic relationship cannot form the basis of

a sex discrimination suit under Title VII); see also

Huebschen v. Dep’t of Health and Soc. Servs., 716 F.2d

1167, 1172 (7th Cir. 1983) (reaching a similar conclusion

in an analogous § 1983 equal protection case7).

Nor are the alleged facts sufficient to state a claim of

sexual harassment based on a hostile work environment.

A plaintiff claiming a hostile work environment must

establish the following elements: (1) she was subject to

unwelcome sexual harassment; (2) the harassment was

6

Benders now argues that the sex was not consensual, but this

statement is inconsistent with her complaint.

7

The same standards for proving intentional discrimination

apply to Title VII and § 1983 equal protection claims. Williams

v. Seniff, 342 F.3d 774, 788 n.13 (7th Cir. 2003).

18 Nos. 06-1487 & 06-2716

based on sex; (3) the harassment had the effect of unrea-

sonably interfering with her work performance in creating

an intimidating, hostile, or offensive working environ-

ment that seriously affected her psychological well-being;

and (4) there is a basis for employer liability. Robinson

v. Sappington, 351 F.3d 317, 328-29 (7th Cir. 2003).

In her complaint, Benders does not allege that

Mr. Bellows’ initial sexual advances toward her had a

negative effect on her work performance. Rather, she

admits that she performed well, was promoted, and

received pay raises during their 5-year affair. Benders

also concedes that the break-up was “amicable” and

that thereafter she and Mr. Bellows became “friends.”

Her accusations concerning a hostile work environment

consist of conclusory statements pertaining to nonsexual

conduct by Mr. Bellows a year later, after he told her

to find another job. Benders alleges that Mr. Bellows’

motivation behind getting her to leave was to hide their

romantic relationship from his wife. Thus, we see again

that Benders’ complaint centers not around her sex, but

her consensual sexual relationship with Mr. Bellows. This,

as we discussed, is an insufficient basis for a Title VII

claim.

For these reasons, we AFFIRM the grant of summary

judgment to B&B on the ERISA count in case 06-1487 but

REVERSE the grant of summary judgment on the other

two claims in that case and REMAND for further proceed-

ings consistent with this opinion. Finally, because we

agree that Benders’ second complaint fails to state a

claim, we AFFIRM the judgment of dismissal in Benders II,

case 06-2716.

Nos. 06-1487 & 06-2716 19

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—2-12-08