Dayna Scruggs v. Garst Seed Company

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2266

D AYNA L. S CRUGGS,

Plaintiff-Appellant,

v.

G ARST S EED C OMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 05 C 67—Allen Sharp, Judge.

A RGUED JUNE 4, 2008—D ECIDED N OVEMBER 20, 2009

Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. Dayna Scruggs appeals from

the grant of summary judgment in favor of her former

employer, Garst Seed Company, on her claims of retalia-

tion and a hostile work environment. A company-wide

restructuring eliminated her position before she filed

a charge of discrimination, so the company did not

retaliate against her for filing the discrimination charge

when it eliminated her position. In addition, although

2 No. 07-2266

she contends the company also retaliated against her

when it did not hire her for one of the open positions

after the restructuring, Garst hired the person who had

previously held the position. The incumbent was experi-

enced in the job, and Scruggs has not created an issue for

trial that the hiring decision was pretextual. Finally, the

relatively isolated gender-based comments and remarks

Scruggs’s supervisor directed toward her were not suffi-

ciently severe or pervasive to rise to the level of a hostile

work environment. Therefore, we affirm the judgment

of the district court.

I. BACKGROUND

Dayna Scruggs worked at Garst Seed Company’s seed

breeding research facility in Brookston, Indiana, where

she was on the soft wheat breeding team. The two other

members of the Brookston soft wheat breeding team

were Curtis Beazer, a Wheat Breeder, and Eugene

Glover, a Research Assistant. Beazer and Glover both

held exempt, salaried positions. Scruggs’s position as a

Research Technician was a nonexempt, hourly wage

position.

Scruggs and Beazer began working together in 1988 or

1989. When Beazer ascended to Wheat Breeder in 1995,

he became Scruggs’s supervisor. Scruggs maintains

that after Beazer became her supervisor in 1995, he re-

peatedly gave her trouble. The conduct to which she

points includes her contention that between 2000 and

2002, Beazer refused to provide her with assistance in

dealing with temporary employees, including two occa-

No. 07-2266 3

sions when temporary employees reacted negatively

after Scruggs terminated their employment. She states

that one time, while she was discussing his alleged lack

of support, Beazer told her that she was “too dumb to

catch on” and that the temporary employees were her

own responsibility.

Scruggs also alleges that Beazer took several steps in

an attempt to have her quit her job. She claims that he

intentionally under-built a new greenhouse facility in

2001, changed the temperature in the greenhouse on

several occasions, and performed “crosses” of plants too

early. She also says that Beazer instructed Glover to spy

on her during 2002 and 2003. Scruggs maintains that

Beazer later began checking on her several times a day,

and that he also once asked her what it would take for

her to leave because he would rather hire a 20-year old to

do the field work that he and Scruggs currently had to

perform.

Scruggs also pointed to several events in 2003. That

year, Scruggs says that Beazer introduced her to other

employees as the person in charge of “cookies with sprin-

kles.” Scruggs complained to Beazer’s supervisor, David

Worrall, about this comment. A short time later, Beazer

struck a temporary employee. Scruggs did not witness

the incident, but she reported it and also said that Beazer

had previously hit her. Scruggs maintains that Beazer

retaliated against her for reporting the incident by re-

quiring that she take on additional work responsibilities

usually handled by Beazer and Glover, although she

reported to Worrall only that she was “overwhelmed” by

4 No. 07-2266

the job duties she had been assigned. At another point in

2003, Beazer stated that he hated “pushy, aggressive

women” and that Scruggs was such a woman.

Scruggs also asserts that at various points during her

employment, Beazer said that she was “made for the

back seat of a car,” that her parties were “drunken fias-

cos,” that she was not “smart enough,” and that she

looked like a “UPS driver,” a “dyke,” and was a “redneck.”

In March of 2004, Worrall met with Scruggs and Beazer

in an effort to straighten out the issues between the two.

Scruggs told Worrall that she did not trust Beazer

because he was “manufacturing” research data and

complained about Beazer’s comment that he would like

to replace her with a 20-year-old employee. Worrall

responded that he thought Scruggs had misunderstood

the statement. Scruggs then left the meeting. She says

that Beazer followed her down the hallway dancing,

whistling, and singing.

Scruggs was not the only person at Garst to have prob-

lems with Beazer. Beazer also made comments about

Eugene Glover and Brian Rice, male Research Assistants

at the Brookston facility. Beazer called Glover “fat” and

made fun of Rice’s home state. He also made derogatory

comments about certain employees’ cars, among other

things. Scruggs testified in her deposition that Beazer

did not get along with “[a]nyone that was marginally

intolerant or had an opinion he could not tolerate.”

Garst managers and Human Resources Director D.J.

Horrigan discussed the Brookston facility in the early

part of 2004 and the problems Beazer presented. Horrigan

No. 07-2266 5

sent Worrall and two other managers a memorandum

summarizing discussions regarding the Brookston site

in May 2004. The memorandum contemplated a reorgani-

zation where Beazer would be demoted to Assistant

Breeder or offered a severance package, Glover’s position

would be eliminated, and Scruggs would keep her posi-

tion. The proposal discussed in the memorandum

was not carried out.

Instead, in September 2004, Syngenta Seeds, Inc. pur-

chased a majority interest in Garst. Syngenta already

owned a wheat research and sales program in soft red

winter wheat. Therefore, to eliminate redundancy, the

company restructured the soft wheat research opera-

tions. It closed a facility in Arkansas and restructured

staffing at the other soft wheat research facilities,

including Brookston. The company decided it would have

three salaried employees at each soft wheat research

location: Breeder, Assistant Wheat Breeder, and Research

Assistant. The position of Research Technician would be

eliminated. That was the role Scruggs held in Brookston.

Worrall traveled to the Brookston facility in Novem-

ber 2004 and informed employees of the restructuring.

Scruggs was on medical leave at the time, so she

was not present. Worrall says that he called Scruggs at

home in November 2004 and left her a message advising

her that a restructuring would be occurring. Scruggs,

however, asserts that she did not receive such a

message and that she did not learn of the restructuring

until several months later.

On December 3, 2004, Scruggs filed a discrimination

charge with the Equal Employment Opportunity Com-

6 No. 07-2266

mission (EEOC) that alleged gender discrimination, a

hostile work environment, and retaliation. Also that

month, Worrall informed Beazer that he would not be

continuing at Brookston, and Barton Fogleman became

the new Wheat Breeder at that location.

With Fogleman in place, the company set out to hire

persons for the two other soft wheat breeding positions

at Brookston. Fogleman, Horrigan, and Worrall inter-

viewed candidates for the Brookston Assistant Breeder

and Research Assistant positions. Approximately twenty

persons applied for the Assistant Breeder position, in-

cluding Glover. The company interviewed Glover for the

Assistant Breeder role but ultimately selected another

candidate, Jennifer Vonderw ell. A pproxim ately

seventeen people applied for the Research Assistant

position, including six who also applied for the Assistant

Breeder position. Glover and Scruggs were two of the

applicants. Glover, Scruggs, and several others were

interviewed in March and April of 2005. The company

selected Glover. Fogleman explained that the company

chose Glover because of his past experience at

Brookston, his experience managing test plots at other

locations, and his education. Glover has a Bachelor of

Science degree in agronomy and had served as the Re-

search Assistant at the Brookston facility for many years.

Scruggs does not have a college degree, and she also

did not have the same type or level of experience. In

particular, Scruggs did not have experience comparable

to Glover’s in managing plots outside of Brookston. The

Brookston facility manages research plots in Michigan,

Ohio, Indiana, and Illinois. Glover had managed these

No. 07-2266 7

sites for a number of years, and Fogleman believed that

his experience would be very helpful going forward.

After Scruggs did not receive the Research Assistant

position, she filed another charge of discrimination with

the EEOC on April 28, 2005. She alleged that Garst termi-

nated her employment in retaliation for the EEOC

charge she had filed the previous December. The district

court granted summary judgment in Garst’s favor on

Scruggs’s claims of retaliation, hostile work environment,

and gender discrimination.

II. ANALYSIS

A. No Error in Denying Motion to Strike

Before we turn to the merits of the summary judgment

decision, we address one preliminary matter. Scruggs

contends that the district court erroneously denied her

motion to “strike” Garst’s summary judgment motion, or,

in the alternative, to strike Fogleman’s affidavit. We

review the district court’s decision for an abuse of dis-

cretion, Judson Atkinson Candies, Inc. v. Latini-Hohberger

Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008), and find no

error. Scruggs maintained that Garst misled her as to the

identity of the person responsible for the Research Assis-

tant hiring decision and concealed Fogleman’s identity.

As the district court recognized, however, Scruggs

clearly knew about Fogleman, as he was one of the

persons who interviewed her for the Research Assistant

position. Scruggs also discussed Fogleman during her

deposition, and Horrigan testified at his deposition the

8 No. 07-2266

following day about Fogleman’s involvement in the

decision to hire Glover instead of Scruggs for the

Research Assistant position. So, we find no abuse of

discretion in the district court’s denial of the motion to

strike.

B. Summary Judgment Proper on Retaliation Claims

Scruggs contests the district court’s decision to grant

summary judgment in Garst’s favor on her retaliation

claims. She maintains that Garst retaliated against her

for complaining about how she had been treated at

the company, and that it did so in two ways: first by

eliminating her position, and second by declining to

hire her for the Research Assistant position at the

Brookston facility that became open after the company’s

restructuring.

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

ment de novo, viewing the record and all reasonable

inferences drawn from it in the light most favorable

to the party opposing the motion. Peirick v. Ind.

Univ.-Purdue Univ. Indianapolis Athletic Dep’t, 510 F.3d

681, 687 (7th Cir. 2007). Summary judgment is appro-

priate when the materials before the court demonstrate

“that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c); see Hobbs v. City of

Chicago, 573 F.3d 454, 460 (7th Cir. 2009).

Title VII forbids an employer from discriminating

against an employee who has “opposed any practice”

No. 07-2266 9

made unlawful by Title VII or who “has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing” under Title VII. 42

U.S.C. § 2000e-3(a). Scruggs can prove retaliation under

either the direct or indirect method. See Argyropoulos v.

City of Alton, 539 F.3d 724, 733 (7th Cir. 2008). Under the

direct method, a plaintiff must present evidence that:

(1) she engaged in statutorily protected activity; (2) she

suffered a materially adverse action; and (3) a causal

connection exists between them. Id. A plaintiff pro-

ceeding under the indirect method establishes a prima

facie case by establishing the same first two elements,

as well as that: (3) she was meeting her employer’s legiti-

mate expectations; and (4) she was treated less favorably

than a similarly situated employee who did not engage

in statutorily protected activity. Stephens v. Erickson, 569

F.3d 779, 786 (7th Cir. 2009); Kodl v. Bd. of Ed., School Dist.

45, Villa Park, 490 F.3d 558, 562 (7th Cir. 2007).

If the plaintiff succeeds in passing this initial hurdle, the

burden shifts to the defendant to demonstrate a nondis-

criminatory reason for its action. Stephens, 569 F.3d at 787;

Fischer v. Avanade, Inc., 519 F.3d 393, 408 (7th Cir. 2008). If

the defendant does so, the plaintiff must show that a

genuine issue of material fact exists as to whether the

defendant’s proferred reason was pretextual to avoid

the entry of summary judgment against it. Argyropoulos,

539 F.3d at 736. “[A]n employee’s failure to cast doubt

on an employer’s nonretaliatory explanation” means a

claim fails under either the direct or indirect method.

Id. at 736 n.6.

10 No. 07-2266

The prima facie case and pretext analyses often

overlap, so we have said that we can proceed directly

to the pretext inquiry if the defendant offers a nondiscrimi-

natory reason for its action. Adelman-Reyes v. St. Xavier

Univ., 500 F.3d 662, 665 (7th Cir. 2007). Garst gave legiti-

mate non-discriminatory reasons for its actions, namely

that Scruggs’s position was eliminated as part of a com-

pany restructuring and that it selected someone else for

a new position because that person was better qualified.

So we proceed to the pretext analysis. Pretext includes

“more than just faulty reasoning or mistaken judgment

on the part of the employer; it is ‘lie, specifically a

phony reason for some action.’ ” Argyropoulos, 539 F.3d

at 736 (quoting Sublett v. John Wiley & Sons, Inc., 463 F.3d

731, 737 (7th Cir. 2006)); see also Forrester v. Rauland-Borg

Corp., 453 F.3d 416, 419 (7th Cir. 2006) (stating that pretext

is “a deliberate falsehood”). If the employer honestly

believed the reason it proffers for its employment

decision, the reason was not pretextual. Argyropoulos, 539

F.3d at 736.

We begin with Scruggs’s claim that Garst retaliated

against her by eliminating her position as a Research

Technician. According to the company, it eliminated the

Research Technician position as part of a company-wide

restructuring after Syngenta purchased Garst. We agree

with Garst that the evidence in the record does not

create an issue for trial as to whether this reason was a

pretext for retaliating against her. Significantly, the

record reflects that the company made its decision to

eliminate Research Technician positions before Scruggs

filed her first EEOC charge on December 3, 2004. Syngenta

No. 07-2266 11

bought a majority interest in Garst in September 2004.

It then restructured soft wheat research at locations

around the country to make its operations more efficient.

The decision to eliminate the Research Technician role

was made as part of the restructuring, not out of retalia-

tion against one employee. Although Scruggs maintains

that Garst did not make the decision until after she had

filed her EEOC charge in December 2004, the evidence

in the record reflects that the company made the

decision before then and that Worrall visited Brookston

in November 2004 to communicate the restructuring

decision to Brookston employees. Even if Scruggs did not

learn of the decision until later (she maintains she did not

receive a voice mail that Worrall says he left for her

regarding the restructuring), she was away from the

office on an extended medical leave in November 2004.

The evidence to which she points does not create an

issue for trial. She directs us to certain pages in Beazer’s

deposition testimony, for example, but they only

indicate that when Worrall told Beazer that Beazer had

to leave the Brookston facility, Worrall did not say why

the company was making the change or whose idea it

was. They do not suggest that the company-wide restruc-

turing decision took place after December 2004.

Scruggs also argues that Garst did not hire her for

the restructured Research Assistant position because she

had filed a discrimination charge with the EEOC. Scruggs

filed her first discrimination charge with the EEOC in

December 2004, and the company made the decision to

select another person for the Research Assistant position

on April 25, 2005. Garst maintains that it chose a more

12 No. 07-2266

qualified candidate for the Research Assistant position,

which is a legitimate explanation. See Butts v. Aurora

Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). The

question is whether it is a pretext for retaliation. The

Research Assistant position required a Bachelor of

Science degree in agronomy or a related field, or an

acceptable combination of education and experience,

including “at least two years of practical experience

in plant breeding and genetics in wheat.” Scruggs

does not have a college degree and did not have any

practical experience in genetics. Glover, the person Garst

selected for the position, has a Bachelor of Science

degree in agronomy. In addition, he had years of experi-

ence relevant to the position. He was the incumbent in

the role, having served as the Research Assistant/

Specialist at the Brookston facility for many years before

the restructuring. He was also the person in charge of

test plots at multiple other locations—experience that

Fogleman believed would be very valuable to the soft

wheat breeding team he would be managing at Brookston.

That an internal memorandum in the spring of 2004

discussed the possibility of eliminating Glover’s position

and keeping the one Scruggs held does not cast doubt

on the company’s assertion that it selected Glover

because he was better qualified to serve as the Research

Assistant. When Syngenta purchased Garst, it decided

to eliminate the Research Technician position, not the

Research Assistant position. It is logical that the

company would select the person with experience in the

Research Assistant position. Scruggs has not raised a

genuine issue of material fact that the company’s explana-

No. 07-2266 13

tion was a pretext for retaliation. Accordingly, sum-

mary judgment was appropriate.

C. Summary Judgment Proper on Hostile Work Envi-

ronment Claim

Scruggs also argues that the district court erred when

it granted summary judgment to Garst on her claim that

she was subjected to a hostile work environment

because of her gender. Because a “hostile work environ-

ment” is a single unlawful practice under Title VII, a

discrimination charge based on a hostile work environ-

ment encompasses all the events during that hostile

environment so long as the charge is filed within the

charging period (here, within 300 days of “the last act

said to constitute the discriminatory working condi-

tion”). Bright v. Hill’s Pet Nutrition, Inc., 510 F.3d 766, 768

(7th Cir. 2007); see Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 115-21 (2002). When it considered Scruggs’s

hostile work environment claim, the district court

properly considered Beazer’s actions outside the 300-day

charging period. But even with that conduct in the mix,

summary judgment on the hostile work environment

claim was correct.

To survive summary judgment on her hostile

work environment claim, Scruggs needed to show the

following: (1) her work environment was both objectively

and subjectively offensive; (2) the harassment com-

plained of was based on her gender; (3) the conduct was

either severe or pervasive; and (4) there is a basis for

employer liability. Dear v. Shinseki, 578 F.3d 605, 611 (7th

Cir. 2009). Scruggs is correct that the unwelcome treat-

14 No. 07-2266

ment need not be based on “unwelcome sexual advances,

requests for sexual favors or other verbal or physical

conduct of a sexual nature.” Boumehdi v. Plastaq Holdings,

Inc., 489 F.3d 781, 788 (7th Cir. 2007) (quoting Rhodes v.

Ill. Dep’t of Transp., 359 F.3d 498, 505 (7th Cir. 2004));

see also Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80

(1998). Instead, conduct demonstrating “anti-female

animus” can support a hostile work environment claim.

Boumedhdi, 489 F.3d at 788. In other words, a plaintiff

can proceed on a claim when the work environment is

hostile because it is “sexist rather than sexual.” Id.

Even so, summary judgment on this claim was

proper. To rise to the level of a hostile work environ-

ment, conduct must be sufficiently severe or pervasive

to alter the conditions of employment such that it

creates an abusive working environment. Ezell v. Potter,

400 F.3d 1041, 1047 (7th Cir. 2005). The environment

must be both subjectively and objectively offensive.

Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003).

Factors in our assessment include the severity of the

allegedly discriminatory conduct, its frequency, whether

it is physically threatening or humiliating or merely

offensive, and whether it unreasonably interferes with

an employee’s work performance. Id. Offhand com-

ments, isolated incidents, and simple teasing do not rise

to the level of conduct that alters the terms and condi-

tions of employment. Adusumilli v. City of Chicago, 164

F.3d 353, 361-62 (7th Cir. 1998).

Here, the gender-based conduct was not objectively

severe or pervasive. Viewing the record in the light

most favorable to Scruggs, Beazer made occasional inap-

No. 07-2266 15

propriate comments, including that Scruggs was “made

for the back seat of a car” and looked like a “dyke.” On

the other hand, his conduct was not physically

threatening, as he did not touch her or threaten to touch

her (other than allegedly striking her with a clipboard

in 1995). He did not make comments suggesting that he

was interested in her sexually. Instead, most of Beazer’s

comments related to Scruggs’s work habits or alleged

lack of sophistication, which were the kinds of com-

ments he made to both male and female employees. The

sporadic comments to which she points do not rise to

the level of an objectively hostile work environment

under Title VII. See Adusumilli, 164 F.3d at 361. Because

Scruggs cannot show that the environment was

objectively severe or pervasive, summary judgment

was appropriate on this claim.

Finally, we note that Scruggs raises as the final issue

in the statement of issues in her brief whether the

district court properly granted summary judgment on

her claim of gender discrimination. She does not address

a gender discrimination claim in the argument section

of her brief, however. As a result, she has waived this

argument. See Salas v. Wis. Dep’t of Corrs., 493 F.3d 913,

924 (7th Cir. 2007).

III. CONCLUSION

The judgment of the district court is A FFIRMED.

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