Fischer, Barbara v. Avanade

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1800

BARBARA FISCHER,

Plaintiff-Appellant,

v.

AVANADE, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 5594—William J. Hibbler, Judge.

____________

ARGUED OCTOBER 26, 2007—DECIDED MARCH 14, 2008

____________

Before, POSNER, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. Plaintiff Barbara Fischer was an

employee at Avanade, Inc. from May 2001 until her

resignation in October 2005. During the course of her

employment, Fischer was passed over on multiple occa-

sions for a promotion to Delivery Management Practice

Director (“Director”) at the company. In 2005, Fischer

brought a lawsuit against Avanade under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging

gender discrimination based upon a failure to promote

and retaliation in the form of constructive discharge. On

June 12, 2006, Defendant filed a motion for summary

2 No. 07-1800

judgment, which the district court granted on both claims.

Fischer appeals this decision. For the reasons discussed

below, we reverse with respect to Plaintiff’s failure to

promote claim and affirm on Plaintiff’s retaliation claim.

I. Background

Avanade, Inc. is a global corporation which assists

companies in integrating Microsoft products into their

business. Barbara Fischer, an Iowa resident with over

twelve years of experience in the technology field, was

hired by Avanade in May 2001 as a Program Management

Consultant for Avanade’s Central Region, which was

headquartered in Chicago, Illinois. During Fischer’s first

two years at the company, before she began seeking

Director positions, her performance reviews were mixed.

After being reviewed as meeting the company’s expecta-

tions her first year, in July 2002 Fischer was assigned

to help Avanade break into the government opportu-

nities arena. Although government agencies took note

of Avanade’s entry into the market, Avanade did not

receive any government awards in 2002. This result,

coupled with a negative review from Fischer’s super-

visor concerning a separate billable project, led to Fischer

being rated as “does not meet expectations” for fiscal

year 2002 and being placed on a performance improve-

ment plan to perform at least one billable project success-

fully. Fischer formally disputed this evaluation, but her

rebuttal was not placed in her personnel file. The next

year however, Fischer dramatically improved her per-

formance while serving as a Project Manager (“PM”) on a

billable project for the Federal Home Loan Bank of

Chicago (“Bank”). Fischer managed five to six people on

this project and was given strong reviews, with the

No. 07-1800 3

Central Region General Manager expressing that Fischer

had done a “great job,” and Fischer being rated as “exceeds

expectations” for the 2003 fiscal year.

In September 2003, just before Fischer received her 2003

annual review, Avanade created a new Strategic Accounts

Region designed to service its two largest accounts, one

of which was the Bank. Howard Kilman named Joe

Mendel the General Manager of this new region, which

Fischer elected to join.

A. October 2003 Opening for the Strategic Accounts

Region Director Position

One month later, on October 5, 2003, General Manager

Mendel circulated an email to all employees in the

region informing them of open leadership positions in the

Strategic Accounts Region, including that of Director. The

announcement stated that the Director should be a mem-

ber of the Strategic Accounts Region and have a billable

project with a client of the region. The formal job descrip-

tion, in addition to its general requirements that the

individual be entrepreneurial and possess skills in people

interaction, problem-solving, and leadership, also listed

the minimum requirements for the position:

• Proven track record in leading the delivery of

consulting projects using Microsoft technol-

ogies . . .;

• Proven track record of leadership during opportu-

nity and proposal phases of sales cycle;

• Enterprise experience with Microsoft Operating

Systems or Development Tools;

4 No. 07-1800

• Demonstrated strong customer service with 10+

years experience;

• Established consulting expertise with 10+ years

experience;

• Demonstrated understanding of development

methodologies and tools;

• Interested and able to travel extensively on a

regular basis.

Additionally, Avanade’s general position summary for

Director positions indicated that a university degree

was also required.

Fischer applied for the Director position and apparently

met these minimum qualifications. In addition, Fischer

received the strong recommendation of the Bank’s Assis-

tant Vice President for the post.

Also applying for the position was Joe Sieverding, the

employee ultimately promoted to the position in dispute

in this suit. Sieverding had been hired as a Central

Region PM in March 2003 and possessed thirteen years

experience in the technology field, including ten years in

consulting and success in managing larger technology

projects. Upon being hired at Avanade, Sieverding was

assigned to work on a project for the Bank which, at the

time, was viewed as being largely over budget and de-

layed. Sieverding received an overall performance rating

of “exceptional” for his work in 2003, but an audit of

the project in October 2003 revealed that Sieverding’s

reliance upon a “handshake deal” had resulted in 200

undocumented change requests. In addition to violating

Avanade’s policies and procedures, this “handshake deal”

allegedly contributed to Avanade’s issuance of a rebate

No. 07-1800 5

and uncompensated work to the Bank in 2004 worth

$600,000.

Mendel was in charge of the hiring decision and (after

consulting with Howard Kilman on the matter) decided not

to promote either Fischer or Sieverding to the Director

position. Instead, in October 2003, Mendel decided to have

both Fischer and Sieverding share the responsibilities of

Strategic Accounts Region Director. That same month,

Sieverding was promoted to a performance level of 60 on

the company’s sliding scale, which ranged from 20 to 70,

and received an accompanying salary increase. Fischer

expressed concerns to Mendel that Sieverding’s higher

performance level rating than hers would create diffi-

culties in circumstances where Fischer needed to direct

Sieverding. Mendel accordingly raised Fischer’s status

in late November, but only to Level 55, and did not in-

crease her salary.

Additionally, beginning in 2003 and continuing into 2004,

Fischer spoke to Mendel regarding her concerns about

high cost “morale building” dinners attended by certain

male employees, including Sieverding, that occurred at

a gentleman’s club. Mendel’s response to Fischer was

that, “Everybody is working really, really hard so let

them do that. It was harmless.” According to Fischer,

subsequent to these complaints, Mendel was harsh on

Fischer whenever she was sharp, abrupt, or curt in

an email.

B. March 2004 Re-Opening of the Strategic Accounts

Region Director Position

In March 2004, Mendel reopened the Strategic Accounts

Region Director position, submitting an official email to

6 No. 07-1800

this effect in mid-April. Fischer again expressed interest

in this position and was highly recommended for the

post by David Schmitt, Vice-President of the Bank. Also

applying for the position was Robert Lewis. Statements

made by Mendel as early as February of that year reflect

that Lewis had already been deemed the presumptive

frontrunner to receive the promotion.

At the time the opening was announced, Lewis was a

Project Manager for the Central Region, rated at a Level

55, and had recently been assigned to assist on the same

Bank project Sieverding had been on. Prior to joining

Avanade in 2001, Lewis had compiled over seven years’

experience in information technology and project manage-

ment. In addition. before joining the Bank project, Lewis

had worked on a $25 million project where he had man-

aged 100 consultants. Notwithstanding this experience,

Lewis did not meet all the formal qualifications that

apparently had been required when the position was

first opened in October 2003. In particular, Lewis had not

obtained a university degree, did not hold ten years’

consulting experience, and had not managed a project in

the Strategic Accounts Region or been a member of that

region.

In late April or early May, Mendel interviewed both

Fischer and Lewis for the Director position. Mendel

sought Kilman’s approval on May 20 to offer the position

to Lewis, and Lewis was subsequently awarded the

position on June 1, 2004, resulting in a promotion to

Level 60 and a salary raise.

No. 07-1800 7

C. May 2004 Position as Acting Director for the Central

Region

In May 2004, at approximately the same time Mendel

was hiring for the Strategic Accounts Region Director

position, the same position in the Central Region became

available. Fischer was never given an opportunity to

apply for this position. Gary Gamso, the departing Central

Region Director, and Don Evans, the Central Region

Operations Manager at the time, were in charge of filling

the role. Without posting the opening, Evans and Gamso

approached Sieverding to serve as acting Director. Mendel,

who had earlier expressed interest in moving Sieverding

out of the Strategic Accounts Region, provided feedback on

Sieverding before he was offered the position. That same

month, when Fischer asked Mendel why Sieverding had

not applied for the Strategic Accounts Region Director

position, Mendel replied, “Sieverding is not practice

director material.”

Sieverding was offered the acting position and assumed

the duties of Central Region Director in late May 2004.

Following the announcements that Lewis and Sieverding

had been named to their respective Director positions,

Fischer approached Tracy Spielmann, Human Resources

Generalist about these decisions, asking, “How does—

was this all set up?”, to which Spielmann replied, “Oh, no.”

D. October 2004 Permanent Central Region Director

Position

In October 2004, without posting the position or re-

ceiving an application from Sieverding, Evans perma-

nently appointed Sieverding to the role of Central Region

Director. Fischer, meanwhile, continued to work on the

8 No. 07-1800

Bank project until December 2004 and then stayed on

at Avanade until October 2005.

E. Fischer’s Continued Employment at Avanade

In addition to Fischer’s complaints regarding the din-

ners at the gentleman’s club and inquiry as to whether

Lewis’ and Sieverding’s promotions were “all set up,” she

also joined a number of women in collectively raising

concerns regarding women’s experiences at the company.

On April 11, 2005, Fischer and a number of other senior

level women at Avanade engaged in a conference call

with Mitch Hill, Avanade’s CEO, and Eric Friedman,

Avanade’s Human Resources Director, to address this

issue. This meeting was to be about general women’s

concerns and no specific incidents of unfair treatment or

discrimination were discussed. Fischer identified herself

by name at the meeting after Hill indicated that “anonym-

ity did not work for him,” and that, in order to assist the

women, he would need to know who they were. Although

Avanade failed to hold a follow-up meeting despite

requests by the women’s spokesperson, Avanade did hire

an outside consultant which held a training session on

women’s issues on July 26, 2005, and the company imple-

mented a diversity awareness program for the 2006

fiscal year.

The same month that the meeting with Hill occurred,

Fischer began working on a new project with Francis

Delgado, an Avanade Connected Methods Senior Project

Manager. By mid-June Delgado had relayed to Lewis

that she was considering taking Fischer off the project

due to a lack of communication and activity on Fischer’s

part. By June 20, 2005, Delgado told Lewis that these

No. 07-1800 9

concerns had not been addressed and that she was going

to assign Fischer’s responsibilities to someone else. Lewis

then relayed this information on June 21 to Mick Slattery,

the Strategic Accounts General Manager, who instructed

Human Resources to review Fischer’s time entries for

the week of June 15, a standard practice when issues

involving an employee’s work habits, expense reimburse-

ments, or time entries exist. Slattery’s own concerns

regarding Fischer’s lack of communication, lack of atten-

dance at leadership meetings (although Fischer contends

she was not informed that she needed to attend any

such meetings), and undefined work schedule led him

to inform Lewis and Human Resources Generalist

Spielmann that he intended to record Fischer’s progress

as “does not meet expectations” or “requires improve-

ment.” Moreover, Slattery wanted Human Resources to

monitor Fischer’s time entries for the remainder of the

year, due to his concerns regarding the amount of time

Fischer had taken off that year and the small amount of

billable work she had performed. Although Slattery’s

request was only for Fischer’s time entries, Spielmann also

reviewed Fischer’s expense reimbursement requests,

finding what appeared to be unauthorized reimbursement

requests for cell phone and broadband expenses. Sometime

after July 21, 2005, Fischer was approached about these

expenses, which she claimed had been authorized by

Mendel, although she was unable to produce emails

documenting such authorization at the time.

During this period of time, Avanade was also in the

process of preparing to dismantle and restructure the

Strategic Accounts Region. The decision to go forward

with this restructuring was made in April 2005, with the

Region’s change to the U.S. Delivery Center to be effec-

tive as of October 1, 2005. On July 19, 2005, Slattery told

10 No. 07-1800

Fischer that as part of the restructuring, all U.S. Delivery

Center employees would need to be based full-time in

Chicago. Soon after talking with Fischer, Slattery had a

similar conversation with Dan Egleston, a Strategic Ac-

counts Solutions Developer, informing him that he too

would have to relocate to Chicago if he wished to work in

Avanade’s U.S. Delivery Center. Slattery, however, had

failed to mention any such requirement during an earlier

slide presentation on the restructuring that Fischer had

seen. Fischer replied that she wanted to stay in Iowa,

and Slattery said that in order for her to do so she would

need to transfer to a position in the Central Region or

another region for the upcoming fiscal year.

Two days later, on July 21, 2005, Fischer filed her

first EEOC charge against Avanade. Spielmann received

notice of this charge and relayed this information to

Slattery and Lewis. Following this charge, Director of

Human Resources Friedman contacted Fischer, stating:

“I must admit I am a little speechless. What is it that

you are looking for? Are you looking for a new role

within Avanade, a transfer to another region, money?”

Fischer replied, “No, not really. I am just looking for

Avanade to start making things right again.”

In August 2005, Slattery issued a negative assessment

of Fischer on her Personal Contribution Form. Earlier, on

August 6, Lewis had recommended to Slattery that he

not issue the form, since “providing this feedback at this

time would seem like retaliation.” When Slattery formally

issued the Personal Contribution Form later that month,

it included a negative assessment for Fischer’s participa-

tion on a leadership team, although Fischer was not

aware that she had been placed on any such team.

No. 07-1800 11

At the end of August, Mendel offered Fischer a position

in the Central Region after being told by Slattery that

Fischer did not intend to relocate to Chicago. This was

a lateral position working in government opportunities,

with no change in official title, salary, benefits, or primary

responsibilities. Fischer accepted this position in mid-

September. At the end of the month however, on Septem-

ber 30, 2005, Fischer submitted her resignation, effective

October 15, 2005, after being offered a higher paying

position at another company.

F. Procedural History

Fischer filed this suit against Avanade on September 28,

2005, bringing a claim of sex discrimination for failure to

promote, in violation of Title VII of the 1964 Civil Rights

Act, as amended. 42 U.S.C. § 2000e et seq. Fischer later

amended the complaint to include a claim of retaliation

in response to her complaints about sex discrimination.

Avanade then filed a motion for summary judgment on

both counts on June 12, 2006.

Fischer raised certain procedural objections to Avanade’s

summary judgment practice. With respect to information

offered by Avanade in its Statement of Material Facts,

Fischer objected to Avanade’s reliance upon compensa-

tion data and time and expense records provided by

two witnesses, Eric Tuch and Deborah Mitrenga, who

had not been earlier disclosed to Fischer. The district court

ruled in a June 26, 2006 Minute Entry that Avanade would

be permitted to rely on these declarations. Fischer also

argues that the district court erred in considering declara-

tions submitted by already deposed witnesses, claiming

that these declarations contradicted their deposition

12 No. 07-1800

answers. The district court did not expressly rule for

one side or the other on this issue, but seemingly with one

exception, did rely on these declaration statements as

part of the factual record.

The district court, on March 30, 2007, granted Avanade’s

motion for summary judgment on both counts. Fischer

appeals the district court’s decision on the claims of sex

discrimination and retaliation in the form of construc-

tive discharge.

II. Analysis

A. Standard of Review

This court reviews a grant of summary judgment

de novo, examining the record in the light most favorable

to the non-moving party. Lawson v. CSX Transp., Inc., 245

F.3d 916, 922 (7th Cir. 2001). A grant of summary judg-

ment is to be affirmed where “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 mat-

ter of law.” FED. R. CIV. P. 56(c). All facts and reasonable

inferences are to be construed in favor of the nonmoving

party, South v. Ill. EPA, 495 F.3d 747, 751 (7th Cir.

2007), however, “[i]nferences that are supported by only

speculation or conjecture will not defeat a summary

judgment motion.” McDonald v. Vill. of Winnetka, 371 F.3d

992, 1001 (7th Cir. 2004).

B. Sex Discrimination Claim for Failure to Promote

Fischer first appeals the district court’s grant of sum-

mary judgment with respect to her failure to promote

No. 07-1800 13

sex discrimination claim. Fischer argues that sex discrimi-

nation was at the root of her failure to obtain promotions

to the Strategic Accounts Region Director position in

October 2003 and May 2004, as well as to the same posi-

tion in the Central Region in May 2004 and October 2004.

The district court found however, and Fischer concedes

on appeal, that Title VII’s 300-day limitation period for

filing a charge with the EEOC bars Fischer from holding

Defendant liable for any discrete discriminatory acts

occurring before September 24, 2004. See 42 U.S.C. § 2000e-

5(e)(1); see also AMTRAK v. Morgan, 536 U.S. 101, 113 (2002)

(“discrete discriminatory acts are not actionable if time

barred, even when they are related to acts alleged in

timely filed charges”). Thus, Fischer’s only timely failure

to promote claim concerns Sieverding’s permanent ap-

pointment to the role of Central Region Director in

October 2004. This does not mean, however, that these

earlier, time-barred incidents are irrelevant. Rather, “time-

barred acts [are allowed] as support for a timely claim.”

West v. Ortho-McNeil Pharm. Corp., 405 F.3d 578, 581 (7th

Cir. 2005) (citing Davis v. Con-Way Transportation Central

Express, Inc., 368 F.3d 776, 786 n.4 (7th Cir. 2004)); Morgan,

536 U.S. at 113 (Title VII does not “bar an employee from

using the prior acts as background evidence in support

of a timely claim.”)

In light of this 300-day limitations period, we turn to

whether the district court erred in granting summary

judgment on Fischer’s sex discrimination claim with

respect to her failure to be promoted to the permanent

Central Region Director position in October 2004. A fail-

ure to promote claim can be established through either

the direct method of proof or the indirect burden-shifting

method established in McDonnell Douglas Corp. v. Green,

14 No. 07-1800

411 U.S. 792 (1973). Volovsek v. Wis. Dep’t of Agric., Trade,

& Consumer Prot., 344 F.3d 680, 689, 692 (7th Cir. 2003).1

The prima facie case for a failure to promote claim under

the indirect method requires that the plaintiff show:

“1) [s]he belongs to a protected class, 2) [s]he applied

for and was qualified for the position sought, 3) [s]he

was rejected for that position and 4) the employer

granted the promotion to someone outside of the pro-

tected group who was not better qualified than the plain-

tiff.” Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir.

2003). Under this burden-shifting method, once the plain-

tiff has established the prima facie case, the burden

shifts to the defendant to set forth evidence supporting

a finding that the employment decision was made on a

non-discriminatory basis. Emmel v. Coca-Cola Bottling Co.,

95 F.3d 627, 629 (7th Cir. 1996). If the defendant is suc-

cessful in presenting a legitimate, non-discriminatory

basis for not promoting the plaintiff, the burden then

shifts again to the plaintiff to show that the defendant’s

proffered explanation is a pretext for discrimination. Id.

At issue between the parties is the fourth prong of the

prima facie case2—whether Fischer was as qualified as

1

Although Fischer claims she is able to offer sufficient evid-

ence under either method, she presents no analysis under the

direct method and proceeds solely under the indirect method of

proof. Accordingly, we similarly limit our analysis to Fischer’s

claim under the indirect method.

2

At first blush, Fischer apparently fails to meet the second

element of the prima facie case, since she did not apply for the

Central Region Director position. In cases such as this, how-

ever, where the plaintiff alleges that there were discriminatory

motives behind not announcing the position to her, Fischer

(continued...)

No. 07-1800 15

Sieverding for the Central Region Director position.

Defendant claims Sieverding was made the permanent

Central Region Director based upon the fact that he

successfully demonstrated, while serving in the acting

capacity, that he had the ability and willingness to meet

the responsibilities of the permanent post. Accordingly,

Defendant argues that Fischer cannot show that she

was similarly qualified for the position, since she had

never served as acting Central Region Director. This

argument alone, however, cannot carry the day. While

Sieverding’s appointment to the permanent Central

Region Director position is Fischer’s only timely claim,

Avanade’s time-barred acts may still be used to support

her timely claim. See West v. Ortho-McNeil Pharm. Corp.,

405 F.3d at 581. This is particularly true in a circum-

stance like this, where Sieverding’s appointment to the

acting Central Region Director position, which Fischer

claims was made on a discriminatory basis, is the sole

reason offered by Defendant for Sieverding’s subse-

quent promotion to the permanent post.

Looking then to Fischer’s and Sieverding’s respective

qualifications when Sieverding was named acting Central

Region Director in May 2004, we find that these two

individuals were similarly situated, thus satisfying the

fourth prong of the prima facie case. Both Fischer and

Sieverding came to Avanade with over ten years’ ex-

perience in the technology field, and both entered at a

2

(...continued)

only needs to show that, “had [Avanade] approached her,

she would have accepted the offered position,” which De-

fendant does not contest. Loyd v. Phillips Bros., Inc., 25 F.3d

518, 523 (7th Cir. 1994).

16 No. 07-1800

Level 3 skill level. Furthermore, Fischer and Sieverding

had both worked on projects for the Bank prior to the

two jointly sharing the responsibilities of Strategic Ac-

counts Region Director in October 2003. As for Fischer,

she had managed three to four concurrent projects for

the Bank and received the strong recommendation of the

Bank’s Assistant Vice President for the Strategic Accounts

Region Director position in October 2003 and the high

recommendation of the Bank’s Vice President when the

position re-opened in 2004. With respect to Sieverding,

he was brought on to lead a project that was facing nu-

merous problems, particularly with respect to its orig-

inal budget and release date, when he was brought on

board. Although Sieverding oversaw a group ranging in

size from twenty to ninety while at the Bank, the parties

dispute Sieverding’s success on the project. Fischer in

particular points to the fact that Sieverding’s reliance upon

a “handshake deal” for 200 undocumented change requests

apparently led Avanade to have to issue a rebate and

provide uncompensated work to the Bank totaling

$600,000. Avanade’s reference to Sieverding’s “excep-

tional” rating in 2003 and promotion to Level 60, compared

to Fischer’s “exceeds expectations” rating and promotion

to Level 55, is insufficient to disprove that the individuals

were similarly situated, particularly when the promotion

level disparity is allegedly the result of discrimination.

For these reasons, we find that Fischer has offered suf-

ficient evidence to meet this fourth prong and show a

prima facie case against Avanade.

Having shown sufficient evidence to make a prima facie

case of discrimination under the indirect method, the

burden then shifts to Avanade to show a legitimate, non-

discriminatory basis for hiring Sieverding to the Central

Region Director position. See Debs v. Northeastern Ill. Univ.,

No. 07-1800 17

153 F.3d 390, 395 (7th Cir. 1998) (“Once the plaintiff

establishes this prima facie case, there is a presumption of

discrimination that obligates the employer to produce a

legitimate nondiscriminatory reason for its decision.”).

Defendant claims that Evans promoted Sieverding to the

permanent Central Region Director position based upon

the fact that while serving in the acting role, Sieverding had

performed well and displayed his ability to fulfill the

position’s responsibilities. While we recognize that

Sieverding’s promotion to the permanent Central Region

Director position is Fischer’s only timely claim, we note

that with respect to Sieverding’s promotion to the acting

position, Avanade offers that this decision was based on

Sieverding’s present availability, interest in the Central

Region, experience managing a large project, and ability

to handle the position. Having offered these legitimate,

non-discriminatory reasons for hiring Sieverding, the

burden shifts back to Fischer to show that this proffered

explanation is pretextual.

“Pretext is a ‘lie, specifically a phony reason for some

action,’ ” Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 737

(7th Cir. 2006) (quoting Russell v. Acme-Evans, Co., 51 F.3d

64, 68 (7th Cir. 1995)), and thus, “[t]o show pretext, ‘a

plaintiff must show that [(1)] the employer’s nondiscrimi-

natory reason was dishonest; and [(2)] the employer’s true

reason was based on a discriminatory intent.’ ” Brown v. Ill.

Dep’t of Natural Res., 499 F.3d 675, 683 (7th Cir. 2007)

(quoting Perez v. Illinois, 488 F.3d 773, 777 (7th Cir. 2007)).

This can be done with either direct or indirect evidence. If

the plaintiff proceeds to offer indirect evidence, “the

plaintiff must show that the employer’s reason is not

credible or that the reason is factually baseless.” Id. (quot-

ing Perez, 488 F.3d 777-78). In addition, “ ’[the plaintiff]

18 No. 07-1800

must also provide evidence of at least an inference that the

real reason for [the adverse employment action] was

discriminatory.’ ” Id. (quoting Perez, 488 F.3d 777-78).

Furthermore, when a defendant has offered multiple non-

discriminatory reasons for its hiring decision, showing

that one of these reasons is pretextual is not enough,

although there may be circumstances where “multiple

grounds offered by the defendant . . . are so intertwined,

or the pretextual character of one of them so fishy and

suspicious, that the plaintiff could withstand summary

judgment.” Russell, 51 F.3d at 69-70. As part of her offer

of evidence of pretext, Fischer is permitted to look to

events occurring prior to the 300-day limitations date.

Davis, 368 F.3d at 786 n.4. Thus, Fischer’s time-barred

claims regarding Lewis’ and Sieverding’s promotions in

May 2004 to Directors of the Strategic Accounts and Central

Regions, respectively, are relevant.

With these governing principles in mind, we turn to

Fischer’s evidence of pretext. First, Fischer argues that

not only was she as qualified as Sieverding for the perma-

nent Central Region Director position, but that she was

in fact more qualified than Sieverding for this post. Fischer,

however, is unable to support this argument with respect

to the permanent Central Region Director position and

is only able to offer reasons why she was more qualified

than Lewis for the Strategic Accounts Region Director

position and more qualified than Sieverding for the acting

Central Region Director post. Defendant claims that

Sieverding was named to the permanent post based upon

his demonstrated ability and enthusiasm while serving

in the acting Director capacity. Regardless of whether

Fischer’s performance was superior to Sieverding’s at

the Bank, or whether Fischer was the superior candidate

No. 07-1800 19

for the acting Director position, Fischer has offered no

evidence to directly contest Sieverding’s performance while

serving in the acting capacity aside from Laura Rafferty’s

testimony that upon coming to the acting Director position,

Gamso described Sieverding as “practically clueless.” By

failing to offer any evidence beyond this, Fischer falls short

of clearing the high hurdle necessary to establish pretext

through reference to her own superior qualifications for the

position. As this Court has stated, “evidence of the appli-

cants’ competing qualifications does not constitute evi-

dence of pretext unless those differences are so favorable to

the plaintiff that there can be no dispute among reasonable

persons of impartial judgment that the plaintiff was clearly

better qualified for the position at issue.” Mlynczak v.

Bodman, 442 F.3d 1050, 1059-60 (7th Cir. 2006) (citing

Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002)).

Despite Fischer’s arguably superior qualifications to

Sieverding’s for the acting Director position, Fischer has

failed to establish that “no reasonable person” could have

chosen Sieverding over Fischer for his subsequent perma-

nent appointment to the post. This, however, does not end

the inquiry into pretext. The district court erred in appear-

ing to make such a showing mandatory, stating that Fischer

“must establish” the superiority of her credentials accord-

ing to this standard in order to show pretext, rather than

fully acknowledging that Fischer can establish pretext

through other direct or indirect evidence as well. We

thus turn to Fischer’s other arguments of pretext.

The most compelling evidence of pretext involves

Joseph Mendel’s role in the entire promotion process.

20 No. 07-1800

Fischer has offered testimony by Laura Rafferty3 that, if

found credible by a jury, would show that as early as

February 2004, Mendel had pre-ordained that Lewis

would have fast-track status to the Strategic Accounts

Director position and Sieverding was to be moved to the

Central Region. According to Rafferty, in February or

March 2004, before Lewis came to the Strategic Accounts

Region, Gary Gamso, the Central Region Director at the

time, informed her of Mendel’s intention to move

Sieverding out of the Strategic Accounts Region and

bring in Lewis to fill the Director position. According

to Rafferty, Gamso related to her that Mendel had re-

quested Sieverding be removed from the Strategic Ac-

counts Region, apparently due to performance concerns,

and that, since they had no other place to put him, were

going to move him into the Central Region. Gamso then

relayed to Rafferty that Mendel desired to bring Lewis

into the Strategic Accounts Region for 90 days, after

which, if he had a good relationship with the Bank, he

would be promoted to Director.4 Lewis’ streamlined path

3

Rafferty also served as the women’s spokesperson during

their meeting with Avanade’s CEO on April 11, 2005.

4

Defendant lodges a general hearsay objection to this evid-

ence being considered. Despite the double hearsay flavor of this

testimony, “[a] statement is not hearsay if . . . the statement is

offered against a party and is . . . a statement by the party’s

agent or servant concerning a matter within the scope of the

agency or employment, made during the existence of the

relationship.” Williams v. Pharmacia, Inc., 137 F.3d 944, 950 (7th

Cir. 1998) (quoting FED. R. EVID. 801(d)(2)(D)). We find that both

Mendel’s and Gamso’s statements appear to be related to

matters within the scope of their agency or employment, since

Mendel made the determination to hire Lewis (albeit with

(continued...)

No. 07-1800 21

to the Strategic Accounts Region Director position prior

to its posting is corroborated by the fact that in February,

Howard Kilman documented that Lewis was a “potential

[Director] for Joe [Mendel],” and that he needed to help

Lewis “understand the [opportunity].” Similarly, Mendel’s

alleged displeasure with Sieverding’s performance is cor-

roborated by Mendel’s statement to Fischer on May 26,

2004 that “Sieverding is not practice director material.”

Fischer is also able to offer evidence creating an inference

that Mendel’s actions were based on sex discrimination.

Defendant does not dispute that in both 2003 and 2004,

Mendel was dismissive of Fischer when she raised con-

cerns regarding male employees enjoying company-paid

dinners at a gentleman’s club. Fischer further asserts that

it was after raising this complaint that Mendel began

criticizing her people skills. In addition, according to

Fischer, when Mendel determined that Fischer and

Sieverding would share the duties of Strategic Accounts

Region Director, Mendel promoted Sieverding to a

Level 60, but after Fischer expressed concerns about this

inequality, only raised Fischer’s status to Level 55.

The degree to which this evidence regarding Mendel is

material to Fischer’s timely claim, however, depends upon

whether Fischer can establish that Mendel’s allegedly

4

(...continued)

Kiman’s approval) and Gamso, along with Evans, was respon-

sible for hiring Sieverding to the acting Central Region Director

position. As a result, we will consider this evidence on this

appeal. See Schindler v. Joseph C. Seiler & Synthes Spine Co., L.P.,

474 F.3d 1008, 1010 (7th Cir. 2007) (“In order to defeat a mo-

tion for summary judgment, a plaintiff must present admissible

evidence that raises a genuine issue of material fact.”).

22 No. 07-1800

discriminatory actions implicate the reasons proffered by

Defendant as to why Gamso and Evans named Sieverding

to the acting and permanent Central Region Director

positions. We find Fischer has provided sufficient evid-

ence such that a reasonable jury could find that Defen-

dant’s legitimate, non-discriminatory reasons for hiring

Sieverding over Fischer were pretextual. First, Gamso

and Evans jointly engaged in soliciting Sieverding and

determining that he should be appointed to the acting

Director role, and based on Rafferty’s testimony, Gamso

was aware of Mendel’s desire to move Sieverding to the

Central Region due to performance concerns. Thus,

Gamso’s awareness of Mendel’s concerns and motiva-

tions regarding Sieverding is sufficient to raise a material

question of fact as to whether Defendant’s proffered

reason for soliciting Sieverding for the acting

position—that they felt he was qualified and capable of ful-

filling the Director responsibilities—was pretextual.

Furthermore, Mendel’s prior statement to Gamso, as well

as his statement to Plaintiff that “Sieverding is not practice

director material,” is at odds with the allegedly good

review Mendel gave regarding Sieverding as part of the

hiring process for the acting Director position. Further-

more, Mendel’s influence went beyond Sieverding’s

initial transfer to the Central Region and extended to

Sieverding’s appointment to the permanent Central

Region Director role, since Evans sought Mendel’s ap-

proval of this promotion.

As an additional matter, Evans’ proffered reason for

naming Sieverding rather than Fischer to the Central

Region Director position also demands scrutiny. On

appeal, Fischer launches a broad attack at declarations

offered by seven witnesses who had been previously

No. 07-1800 23

deposed by Fischer’s counsel.5 Fischer claims that these

declarations included statements that were new, contra-

dictory, and beyond the testimony given at the deposi-

tions and thus reveal a concocted sham defense on

Avanade’s part requiring reversal of summary judgment.

This includes a specific charge against Evans’ testimony.

At his deposition on April 14, 2006, Evans was asked

why Fischer had not received the acting Central Region

Director position. Evans simply replied, “I appointed

Joe Sieverding to the role.” Then, on June 12, 2006, the same

date Avanade filed its motion for summary judgment,

Evans submitted a new declaration, purporting to explain

why Fischer would not have received the acting Director

position even if she had expressed interest in it. In the

declaration, Evans stated that he did not know if Fischer

was interested, or if her workload would allow a transition

to the Central Region. Additionally, Evans declared that it

was his understanding that Sieverding had more experi-

ence in managing large projects.

5

Fischer also raises other procedural concerns with respect to

Defendant’s motion for summary judgment that do not carry

the day. First, Fischer fails to develop any argument or cite

any authority regarding her throwaway charge that De-

fendant misguided the district court by presenting a Statement

of Material Facts on summary judgment which purported to

represent the entire record. Fischer’s second claim, that De-

fendant was improperly permitted to rely upon two declarations

from witnesses who had not been disclosed during discovery

also fails, since Fischer has failed to show how the district

court’s decision that Defendant could rely on these declara-

tions amounted to an abuse of discretion. See Searls v. Glasser,

64 F.3d 1061, 1068 (7th Cir. 1995) (“Because the district court is

far better situated to pass on discovery matters, we review its

discovery decisions for an abuse of discretion.”).

24 No. 07-1800

This Court has stated that “[a]ffidavits, . . . when offered

to contradict the affiant’s deposition are so lacking in

credibility as to be entitled to zero weight in sum-

mary judgment proceedings unless the affiant gives a

plausible explanation for the discrepancy.” Beckel v. Wal-

Mart Assocs., Inc., 301 F.3d 621, 623 (7th Cir. 2002). Accord-

ingly, Fischer argues that Evans’ declaration contradicts his

earlier deposition testimony on this issue. Defendant in

contrast, argues that these statements are not contra-

dictory, and observes that “where the deposition testi-

mony is ambiguous or incomplete, . . . the witness may

legitimately clarify or expand upon that testimony by

way of an affidavit.” Shepherd v. Slater Steels Corp., 168

F.3d 998, 1007 (7th Cir. 1999). According to Defendant,

Evans’ declaration statement answers a hypothetical

question not asked at the deposition—whether Fischer or

Sieverding would have been more qualified for the acting

Director position, had Fischer in fact applied for the job.

We find that Evans’ more fulsome testimony in his

declaration cannot be said to contradict his earlier, curt

response at his deposition.6 However, Defendant’s fail-

ure to fully address until Evans’ declaration why Fischer

would not have received the position does raise credi-

bility concerns. See Wilson v. AM General Corp, 167 F.3d

1114, 1121 (7th Cir. 1999) (affirming denial of judgment

notwithstanding the verdict with respect to jury’s finding

of pretext, based in part on jury’s credibility determina-

6

Fischer lodges this same argument with respect to two mat-

ters to which Mendel testified in both his deposition and

subsequent declaration. Because there is already compelling

evidence of pretext as it relates to Mendel, we do not address

this charge in greater detail.

No. 07-1800 25

tion regarding Defendant’s failure to disclose reason for

termination until discovery, despite being directly asked

at time of termination); see also Lindahl v. Air France, 930

F.2d 1434, 1438 (9th Cir. 1991) (genuine issue of material

fact with respect to pretext exists when specific reason

for promoting one employee over the plaintiff was not

disclosed until after litigation, which “might suggest … a

later fabrication”). Fischer provided Defendant with at least

two opportunities prior to the submission of Evans’

declaration to explain why she was not named to the acting

Director position. In late May, following Lewis’ and

Sieverding’s moves to their respective Director positions,

Fischer approached Human Resources Generalist Tracy

Spielmann about whether these promotion decisions

were “all set up.” Spielmann simply responded, “Oh, no,”

failing to provide Fischer with any further clarification

regarding Defendant’s hiring decisions. Then, at Evans’

deposition, although he provided reasons for selecting

Sieverding, his only response when directly asked why

Fischer did not receive the acting Director position was,

“I appointed Joe Sieverding to the role.” While Evans’

more complete declaration statement is not inconsistent

with Defendant’s prior responses, this late justification

for why Fischer would not have been hired, provided

at the eleventh hour in conjunction with Defendant’s

motion for summary judgment, raises a genuine issue of

material fact as to whether this justification is a later

fabrication on Defendant’s part. Furthermore, the first

reason Evans offers in his declaration for not hiring

Fischer—that Evans did not know if she was interested

in leaving her current position—borders on the illogical

if Evans is answering, as Defendant maintains, why he

would not have hired Fischer even if she had in fact

expressed interest in the position.

26 No. 07-1800

For these reasons, we find that Fischer has presented

sufficient evidence to raise a genuine issue of material

fact as to whether Defendant’s promotion of Sieverding

to the acting Central Region Director position was

pretextual. Furthermore, with respect to Sieverding’s

appointment to the permanent Central Region Director

post, the individuals with authority over this decision

were largely the same, seeing as Evans made the decision,

with Mendel’s approval, to name Sieverding to the perma-

nent post. Additionally, here too, when Evans was asked

at his deposition why Fischer was not awarded the perma-

nent position, Evans responded, “Joe Sieverding was

appointed to the role.” It was not until Evans’ declaration

that Defendant disclosed its justification for naming

Sieverding to the permanent position, namely, Sieverding’s

performance in the acting capacity. Based on the evidence

offered by Defendant, Sieverding’s appointment to the

permanent position can be seen as the last step in a scheme

to fast-track Lewis into the Strategic Accounts Region’s

Director position and switch Sieverding into the Central

Region, leaving Fischer without a Director role. While

this theory largely depends upon credibility determina-

tions, most notably regarding Laura Rafferty’s testimony

and Defendant’s eleventh hour justifications, credibility

is not an issue to be resolved at summary judgment, but

is one reserved for the jury. See Payne v. Pauley, 337 F.3d

767, 770 (7th Cir. 2003) (“On summary judgment a court

may not make credibility determinations”). If Fischer’s

evidence is deemed credible by a jury, Sieverding’s ap-

pointment to the permanent Central Region Director

position becomes sufficiently intertwined with the

earlier promotions of Lewis and Sieverding that the

evidence of pretext from Fischer’s time-barred claims

would similarly support a finding that the reason offered

No. 07-1800 27

for Sieverding’s promotion to the permanent post was

also pretextual. See Russell, 51 F.3d at 70 (“There may be

cases in which the multiple grounds offered by the defen-

dant for the adverse action of which the plaintiff com-

plains are so intertwined, or the pretextual character of

one of them so fishy and suspicious, that the plaintiff

could withstand summary judgment.”). Accordingly,

because Fischer has raised a genuine issue of material fact

as to whether Defendant’s proffered non-discriminatory

reason for naming Sieverding to the permanent Central

Region Director position was pretextual, we reverse the

grant of summary judgment on this claim.

C. Retaliation in the Form of Constructive Discharge

Fischer also appeals the district court’s grant of sum-

mary judgment on her claim that Defendant, in violation

of Title VII, constructively discharged her in retaliation

for her complaints of sex discrimination. See Sitar v. Ind.

DOT, 344 F.3d 720, 727 (7th Cir. 2003) (citing 42 U.S.C.

§ 2000e-3(a)); see also Williams v. Waste Mgmt. of Ill., Inc.,

361 F.3d 1021, 1032 (7th Cir. 2004) (discussing how con-

structive discharge can serve as the adverse employment

action in a retaliation claim). This too can be proved

through either a “direct method” or “indirect method.” See

Phelan v. Cook County, 463 F.3d 773, 787-88 (7th Cir. 2006).

Unlike Fischer’s failure to promote claim, here she pro-

ceeds under the direct method. Under this approach,

summary judgment must be denied if Fischer presents

“direct evidence . . . that [s]he engaged in protected

activity . . . and as a result suffered the adverse employ-

ment action of which [s]he complains.” Id. at 787 (quoting

Stone v. City of Indianapolis Public Utilities Division, 281 F.3d

640, 644 (7th Cir. 2002)). Summary judgment may still be

28 No. 07-1800

granted however, if Defendant then “presents unrebutted

evidence that he would have taken the adverse employ-

ment action against the plaintiff even if he had no retalia-

tory motive.” Id. at 787-88 (quoting Stone, 281 F.3d at 644).

In order to show a retaliatory motive on Defendant’s part

under the direct method, Plaintiff can “present[ ] sufficient

circumstantial evidence such that a jury could infer

retaliation.” Id. at 788 (citing Culver v. Gorman & Co., 416

F.3d 540, 546 (2005)).

Here, Fischer claims that she engaged in protected

activity that led to her being constructively discharged

from Avanade.7 Constructive discharge does constitute

an adverse employment action and is deemed to have

occurred when “the plaintiff . . . show[s] that she was

7

In its brief, Defendant also addresses whether its specific,

allegedly retaliatory acts against Fischer, each taken on its own,

merit a separate finding of retaliation. Fischer’s brief however,

is clear that she is appealing the lower court’s grant of summary

judgment only on Fischer’s claim that Defendant retaliated

against her in the form of constructive discharge. For example,

Fischer’s “Statement of Issues Presented for Review” is specifi-

cally limited to the already discussed sex discrimination claim

and her claim “that Defendant constructively discharged

Fischer in retaliation for complaining of sex discrimination.”

Similarly, the “Conclusion” of Fischer’s brief, with respect to her

retaliation claim, states only that, “A reasonable jury could

also find that Avanade retaliated against Fischer in response

to her complaints of sex discrimination by impairing her terms

and conditions of employment in a manner that compelled

her to resign.” Because Fischer has declined to argue on appeal

that any of these individual incidents constitute discrete,

cognizable, incidents of unlawful retaliation, we decline to

take up that argument sua sponte.

No. 07-1800 29

forced to resign because her working conditions, from the

standpoint of the reasonable employee, had become

unbearable.” EEOC v. Univ. of Chicago Hosps., 276 F.3d 326,

331 (7th Cir. 2002). Constructive discharge can take on

two different forms. The district court analyzed Fischer’s

claim under the first form, where an employee resigns

due to alleged discriminatory harassment. Id. Under this

approach, “we require the plaintiff to demonstrate a

discriminatory work environment ‘even more egregious

than the high standard for hostile work environment.’ ”

Id. at 331-32 (quoting Tutman v. WBBM-TV, Inc., 209 F.3d

1044, 1050 (7th Cir. 2000), cert. denied, 531 U.S. 1078, 148

L. Ed. 2d 675, 121 S. Ct. 777 (2001)). Fischer contends that

the second form is more fitting to her claim—that, “[w]hen

an employer acts in a manner so as to have com-

municated to a reasonable employee that she will be

terminated, and the plaintiff employee resigns, the em-

ployer’s conduct may amount to constructive discharge.”

Id. at 332. In other words, constructive discharge also

occurs where, based on an employers actions, “ ’the

handwriting [was] on the wall’ and the axe was about to

fall.” Id. (quoting Lindale v. Tokheim Corp., 145 F.3d 953, 956

(7th Cir. 1998)).

The first matter to address is whether Fischer engaged

in “statutorily protected activity.” An employer cannot

discriminate against an employee for voicing opposition

to employment practices deemed unlawful under

Title VII, Worth v. Tyer, 276 F.3d 249, 265 (7th Cir. 2001),

but at the same time, “the [employee’s] complaint must

indicate the discrimination occurred because of sex, race,

national origin, or some other protected class.” Tomanovich

v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006);

Sitar, 344 F.3d at 727 (“Although an employee need not

30 No. 07-1800

use the magic words ‘sex’ or ‘gender discrimination’ to

bring her speech within Title VII’s retaliation protec-

tions, ‘she has to at least say something to indicate her

[gender] is an issue.’ ”) (quoting Miller v. Am. Family

Mutual Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000)). Here,

Defendant concedes that Fischer’s participation in the

April 11, 2005 conference call with Avanade’s CEO and

her filing of an EEOC charge on July 21, 2005 con-

stituted “protected activity.” Fischer contends however,

that her complaints in 2003 and 2004 to Mendel regarding

“morale building” dinners at a gentleman’s club, as well

as her questioning Human Resources Specialist Spielmann

as to whether Lewis’ and Sieverding’s promotions were

“all set up,” also constitute statutorily protected activity.

We need not decide this issue, because regardless of

whether Fischer’s first statutorily protected act occurred

in 2003 or April 11, 2005, Fischer has not shown that

Defendant’s alleged response to these actions indicated that

the “axe was about to fall” when Fischer submitted

her resignation on September 30, 2005.

Fischer points to a series of events that she claims reflect

that “the handwriting was on the wall” regarding

Avanade’s intent to terminate her: 1) the audit of her

cellular and broadband expenses following the filing of

her EEOC charge; 2) Director of Human Resources

Friendman asking Fischer, after she filed her EEOC charge,

“What is it that you are looking for . . . a new role within

Avanade, a transfer to another region, money?”; 3) General

Manager Slattery’s August 2005 negative assessment of

Fischer’s participation on a leadership team; 4) what

Fischer expected to be a forthcoming, negative annual

review from Practice Director Lewis; 5) Defendant requir-

ing Fischer to either move to Chicago to maintain her

current position, or else transfer to another region; and

No. 07-1800 31

6) only offering Fischer one transfer option—to government

opportunities, a historically difficult line of work. Fischer

then places these incidents against the backdrop of an

alleged environment at Avanade where women are dis-

criminated against.

Although Fischer has set forth a long list of incidents

which she claims support a finding of constructive dis-

charge, we cannot say that these incidents, when viewed

in the aggregate, would cause a reasonable person to

believe that the writing was on the wall regarding

Fischer’s future at Avanade. We reach this conclusion

despite the fact that, as Fischer correctly points out, the

Supreme Court in Burlington N. & Santa Fe Ry. Co. v.

White, 126 S.Ct. 2405, 2415-16 (2006), did not limit what

constitutes a materially adverse employment action to a

specified list of actions, as the district court did below.

Instead, under Burlington Northern, the question is

whether, when considering the particular circumstances

and context of this case, a reasonable person in the plain-

tiff’s position would have found the action materially

adverse. Id. The fact however, that under such a stand-

ard this Court may consider an employer’s exploitation

of a particular employee’s vulnerabilities, see Washington

v. Ill. Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir. 2005),

does not mean that exploitation of that kind has occurred

here. Fischer fails to point to any details, aside from

perhaps her prior negative experience working in gov-

ernment opportunities, that make any of the incidents

she references particularly unique or egregious to her

circumstances. Even with respect to her transfer how-

ever, this cannot be said to be materially adverse when

the government opportunities position was offered as an

alternative to participation in a department-wide restruc-

32 No. 07-1800

turing, and the new position allowed Fischer to maintain

her current title, salary, benefits, and primary responsi-

bilities.

We are mindful of the fact that the incidents described

by Fischer—an audit, negative performance reviews, and

a requirement to either relocate or transfer departments—

are not circumstances an employee would wish upon

herself. A look at cases where evidence of construc-

tive discharge has been found to exist however, reveals

that the incidents Fischer references are insufficient to

establish that her “working conditions . . . had become

unbearable.” In University of Chicago Hospitals for ex-

ample, this Court found that “the writing was on the

wall” when, after the employee had been warned of

her employer’s intention to terminate her and having

been told that a mistake on her part was “the last straw,”

the employee arrived at work after vacation only to find

her desk packed up, boxes piled up, and her office being

used for storage. 276 F.3d at 332. Similarly, in Neal v.

Honeywell, Inc., this Court affirmed a jury’s finding of

constructive discharge when the plaintiff suffered a

drastic reduction in duties following her whistle-

blowing action, was made to feel like a “traitor” by her

supervisor for this action, and could not be assured that she

would be kept safe at work from the person she had ratted

out. 191 F.3d 827, 830-31 (7th Cir. 1999). Here, despite the

audit and the negative assessment by Slattery, unlike

University of Chicago Hospitals, Fischer has not pointed to

any evidence indicating that there had even been so much

as a whisper on Avanade’s part of a desire to terminate her.

To the contrary, when Fischer decided to opt out of the

relocation requirement for the restructured U.S. Delivery

Center, Slattery and Lewis assisted Fischer in locating an

No. 07-1800 33

alternative PM position. Moreover, unlike Neal, no reduc-

tion in duties occurred. Rather, Fischer, after declining to

relocate, was given a parallel position in a different depart-

ment where she maintained the same title, salary, benefits,

and primary responsibilities.

That being said, Fischer could perhaps defeat summary

judgment on this claim if she were able to show that,

despite seemingly maintaining her compensation, posi-

tion, and responsibilities on paper, her transfer did in fact

set her on a dead-end path towards termination. This

indeed is what Fischer argues, contending that working

in government opportunities would prevent her from

meeting her performance goals and thus lead to her

discharge. There is insufficient evidence however, to

support Fischer’s contention. All Fischer points to is

Avanade’s struggle in government engagements in 2002,

without any evidence concerning Avanade’s status in

this area in 2005. Furthermore, Fischer did not provide

ample time to test her hypothesis regarding the dead-end

nature of her new position, since she tendered her resigna-

tion on September 30, 2005, merely a few weeks after

accepting the transfer. Because Fischer is unable to

show that she was constructively discharged, there is no

need for this Court to address the issue of retaliatory

motive, and we affirm the grant of summary judgment

for Defendant on this claim.

III. Conclusion

For the foregoing reasons, we REVERSE the district

court’s grant of summary judgment on Plaintiff’s sex

discrimination claim, and AFFIRM the grant of summary

judgment for Plaintiff’s claim of retaliation in the form of

34 No. 07-1800

constructive discharge. Accordingly, we REMAND to the

district court for further proceedings consistent with

this opinion.

USCA-02-C-0072—3-14-08