Petition for Writ of Certiorari — Liner v. Dontron, Inc.

\) Supreme Court,

‘ FILED

No. 01 464 SEP | 7 2001

OFFICE OF iru

IN THE

Supreme Court of the Gnited States

GLENDA J. LINER,

Petitioner

Vv.

DONTRON, INC., T/A RADIO STATION

WYCA-FM, a wholly owned subsidiary,

CRAWFORD BROADCASTING CO.,

DONALD CRAWFORD

Respondent

On Petition For Writ of Certiorari

To the United States Court of Appeals

For the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

GLENDA J. LINER

8310 S. Baker Ave.

Chicago, Illinois 60617

(773) 731-8277

QUESTIONS PRESENTED

1. Does 42 U.S.C. 2000e-3(a) provide employees with

actionable claims for opposing sexual harassment and

retaliation for conduct by supervisor before EEOC

claim is filed or termination occurs?

2. Whether the court of appeal erred by applying the

wrong standard of review to determine pretext and

adverse employment action in retaliation claim under

42 U.S.C. 2000e-2

ELLA LT eee a

PARTIES

All parties appear in the caption of the case on the

cover page.

TABLE OF CONTENTS

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A RS Tre ES,

Constitutional and Statutory Provision Involved..2,3

Statement of Facts... , pdiinéhensineabeseukedaael

Reason for Granting the Petition... : ..10

1. Does 42 U.S.C. 2000e-3(a) provide employees

with actionable claims for opposing sexual

harassment and retaliation for conduct by

supervisor before EEOC claim is filed or

I GIT oo ons ncn cne cnencscoscecese sce cce cee MU

2. Whether the court of appeal erred by applying

the wrong standard of review to determine

pretext and adverse employment action in sex

discrimination claim under 42 U.S.C. 2000e..15

a scentcounenausell

INDEX TO APPENDICES

Appendix A — Decision of U.S. Court of Appeals

Appendix B- Decision of U.S. District Court

Appendix C- Decision of Appeals Court Denial of

Petition for rehearing

TABLE OF AUTHORITIES

Burdine, 450 U.S. at 252......... 2.0 ccc ceecee cee eee eee eee LB

Croushorn v. Board of Trustees of Univ. of Tenn.,

518 F. Supp.9,25 (M.D. Tenn. 1980).................12

—— v. Fitzmaurice, 29 lei Div. 459, 485

(1885)... cd teak eae enki gha pei ped a nannabaie ..16

EEOC v. Ohio Edison Co., 7 F.3d 541, 545 (6 Cir.

RSE RAR PSR R ge n mamp er pen EN Gre Gly meats

Harker v. Utica College of Syracuse University

N.D.N.Y. 1995, 885 F. Supp 378... ......... 0.000000 00 LZ

Hochstadt v. Worcester Found. For Experimental

Biology, Inc. 425 F. Supp. 318, 324 (D.C. Mass. 1976)

affd , 545 F.2d 222 (1% Cir. 1976)......... 00.00.0000 LO

es v. Eastfield rae 88 F.3d 300 (5% Cir.

McDonald v. Santa Fe Trail Transportation Co., 427

U.S. 273, 282 n. 96 S.Ct. 2574,2579 n. 10, 49 L.Ed. 2d.

IE, ss dian sdcaak eke acedsdakedemenin abenek tee ae

McDonnell v. Cisneros, 84 F. 3d 256, 262 (7 Cir.

Merrick v.Farmers Ins. Group, 892 F.2d 1434, 1441

is needa tab nanan ensue auraesaan sae

Monterio v. Poole Silver Co., 615 F.2d 4 (1% Cir.

li

Moyo v. Gomez, 32 F.3d 1382 (9 Cir. 1994)......... 11

Parker v. Baltimore & Ohio R.R.Co., 652 F.2d 1012,

BOG SO TC, Ce Bik se ies cusnnn tad see conten chs sie ee

Passer v. American Chemical Soc.,935 F.2d 322,330

a a ee ee

Postal Serv. Bd. Of Governors v. Aikens, 460 U.S.

Powell v. Rockwell Int'l _— 788 F.2d 279 (5t Cir.

Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182

OE Bia ia a ee

Shirley v. Chrysler First Inc., 970 F.2d 39,42 n. (5%

Sias v. City Demonstration Agency, 588 F.2d 692,

Ce I Ge, Sin sais Sibess nets ten dae

Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (24

Wilson v. United States 162 U.S. 613, 620-621 ((1896);

2 J Wigmore, Evidence 278(2), p. 133 (J. Chadbourn

ee, «ERR R eae Sheer pe MMA Erbe ert)

Wright v. West, 505 U.S. 277,296 (1992)... .....0.00015

STATUTES

29 C.F.R. sec. 541.118... ae oe a a

42 U.S.C. 2000E-5(b), 2000- ole... EN.

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PETITION FOR A WRIT OF CERTIRARI

OPINIONS BELOW

The opinion of the United States Court of Appeals

appear at Appendix pp. A to the petition and is

unpublished. The opinion of the United States

District Court appears at Appendix pp. B to the

petition and is unpublished.

JURISDICTION

Petitioner seeks the court’s review of the judgment

entered on May 21, 2001 by the United States Circuit

Court of Appeals for the Seventh Circuit, by a Petition

for Writ of Certiorari pursuant to the jurisdiction

conferred by 28 U.S.C. Section 1254 (1). This petition

is timely filed because it was mailed within ninety

days of June 18, 2001, the date a motion for hearing

was denied in the court below. Rules 13.3 and 29.2.

Jurisdictional basis for this court is invoked under

28 U.S.C. 1254 (1)

29 CFR 1604. 11(c) |

The guidelines impose vicarious liability on :

employers for the acts of a supervisory employee, it is :

irrelevant whether it superiors conduct was

authorized or even forbidden by employer.

CEREAL hon ell

ho aU ae RRsat CE SL ole DE

|

|

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CONSTITUTIONAL AND STATUTORY

PROVISION INVOLVED

The Supremacy Clause of the Constitution

provides in relevant part: “[T] he Laws of the United

States *** shall be the supreme Law of the Land ***

any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.” U.S. CONST.ART,

VI, cl.2.

42 U.S.C. 2000e-3(a) in pertinent part provides:

Protection of an employee who “opposes any

practice made an unlawful employment practice by

this subchapter” or anyone who has “made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this

subchapter.

42 U.S.C.2000e-2

In consideration of whether employer’s justification

for dismissing its employee is pretextual in Title VII

action, the inquiry is not whether the reason was

correct business judgment but whether decision

makers honestly acted on that reason.

29 CFR 1604. 11(d)

Employer is liable for co-worker harassment if it

“knows or should have known of the conduct, unless it

can show that it took immediate and appropriate

corrective action”.

STATEMENT OF FACTS

Glenda Liner an African American female began

working as an account executive for respondents

Christian Radio Station WYCA-FM in 1988-1991 and

again in April 1993 and worked in that capacity until

June 1997 when she was terminated.

Liner’s duties included selling advertising airtime

for commercial and program accounts, along with the

collections and _ servicing of accounts. The

respondent's are Donald Crawford, President

(Dontron Inc., Crawford Broadcasting Co). Charles

Bogardus, Corporate Sales; Michael Cary, Director of

Finance; and Taft Harris, Supervisor- General

Manager, Station Manager, Sales Manager and

Account Executive of WYCA-RADIO.

Taft Harris (Supervisor) has worked for

respondent since 1969 in Texas and relocated in 1979

to WYCA-FM to host a Gospel Music Show. As

General Manager and Station Manager, he over sees

the operations of the entire station. As Sales

Manager, he is responsible for the procurement of

advertising contracts and daily activity managements

of Account Executives to perform daily tasks as

servicing and collections for on-air accounts and the

sales of unsold inventory Harris maintained his own

clients and sold airtime.

Two scheduled meeting a week were held during

the plaintiff- Glenda Liners’ employment at station.

Meetings were scheduled at 5:30 pm Tuesday- for the

Production and Sales staff to go over current on air

gitar Baty bial iat saps. thin eth ahh Sa Bas

22, AN ae RON De Opa the wah A thera ah ssa bbe sf

MB Aah Aces

accounts. Thursday sales meeting with Account

Executives first then they would meet with Harris to

discuss any new sales information for the station.

During the day Taft Harris would randomly stop

Account Executives from leaving station in AM to

hold a meeting, or detain them until past 7:00 pm or

later in evening. Plaintiff-Glenda Liner received a

series of reprimands for failing to comply with

Harris’s verbal or written memos, Liner has claimed

that the various infractions for which she was

‘reprimanded were not company policies because they

were not uniformly enforced.

The evidence presented in deposition that Harris :

stated in a verbal and documented meeting, October

30, 1996. “ I will make this environment for you to

work in very difficult because I will put so many

prerequisites on you, such as documenting everything

that is said, making you write up everything that I

say, pulling you off the road until you comply with

directions, seeking out the loss of your commission

when you fail to follow directions, plus anything else

that needs to be done form a disciplinary standpoint,

that both corporate and I agree on. I will seek those

things out against you.” Harris went on to say “ ...if

you fail to follow my directions with and including the

very next infraction, expect disciplinary action...or

ultimately termination. Expect it.”

On November 20, 1996, Donald Crawford

(President) wrote memo of possibility of Glenda Liner

becoming Sales Manager.

On November 22, 1996, Taft Harris (Supervisor)

wrote memo he would begin sales training.

On February 12, 1997, Taft Harris (Supervisor)

wrote memo Sales Manager position was placed on

hold.

Harris had Dontron deduct commission money

from Liner on three separate occasions November

1996- $2575.00, April 1997-$1976.00. After second

deduction Liner wrote Crawford again regarding

deduction she also complained of Harris (Supervisor)

harassment of verbally hollering and screaming at her

which she considered adverse conditions and opposed

activity by Harris. After Liner’s commission check

May 15, 1997 third deduction was made of $3952.00,

Liner then filed EEOC claim May 21, 1997 and

Illinois Department of Labor claim. Liner alleged

that she had been discriminated against based on her

sex because respondent had withheld her

commissions for violation of company policy and that

a similarly, situated male employee had not been so

disciplined. Liner also charged that supervisor Harris

had harassed her.

During the time Liner reported Harris to Crawford

memos of what Harris called policies became more

frequent. Crawford answered by written fax on April

24, 1997-“ I agree with Taft Harris. You do the right

thing, you follow Company policies and procedures to

the letter of the law, or you will be disciplined fully in

accordance with our policies. It really is as simple as

that. No phone conversation will be needed. We have

a brand new station coming on line. You should bend

over backward to do the right thing and protect your

job. Sincerely, Donald B. Crawford, President”.

Y tias 9a ew

Harris began retaliating against Liner for writing

to complain to Crawford he issued her nine memos

days/weeks after she complained. Crawford came to

station in May 1997, but never meet with Liner to

address concerns nor did Charlie Bogardus who

accompanied him from the corporate office.

Harris would issue two or three memos on some

days. He would cc: maybe one to corporate,

employment files, or just issue Liner. Looking at

evidence of days, memos were issued policies were

inconsistent. The alleged harassment by supervisor

Harris became more humiliating. Moving Liner away

from the sales staff in another office on the other side

of the building, not allowing her any sales leads.

taking on air clients away from her and transferring

them to Kyle Simpson or himself or not allowing her

to talk to new employees or he would terminate her.

In June, 1997 Harris and Simpson changed

company clauses and policies by playing favoritism

towards clients with rates and timing. Liner was not

allowed to sell new radio station WYBA when it went

on air. However, her clients from WYCA wanted to be

on both stations and her to remain their Account

Executive. In June 1997, Harris went as far as to

have Liner change her memo she wrote him, by

dictating memo and having her rewrite it in her own

hand writing and inserting it was not written under

duress. Liner was more intimated by Harris, but could

do nothing else because she had already written to

owner Donald Crawford.

In June 1997, Harris and Simpson wrote to

Crawford to ask him to terminate Liner. Crawtord

gave permission for Harris to terminate her the next

time he felt infraction was made.

On Friday, June 27, 1997 the last day before Liner

was scheduled for vacation and the final end of the

month collections were made Harris with Simpson

present verbally terminated Liner around 8:30pm.

After Liner was terminated, she filed additional

charge with EEOC in which she claimed that she had

been retaliated against for filing her original charge.

The Appeals court found; With respect to her

ability to sell advertising time, it is undisputed that

Liner was very good, and WYCA generated a high

amount of sales revenue for the station’s parent

company, Dontron, due to her efforts. It is also not

disputed that at one point, Dontron and Harris

planned to train Liner to take over Harris’s position

as sales manager. Despite Liner’s excellent sales

record, however Harris began issuing a series of

written reprimands and instituting disciplinary

actions based on what he saw as Liner’s failure to

comply with company.

The Appeals court found Liner had produced

evidence that Harris disciplined her more harshly

than Simpson for a similar infraction, that she was

not at fault for a violation of company policy for which

she was held responsible, and that she was not made

aware of some of Harris’s policies until after she was

reprimanded for violating them. She also produced

evidence that Harris himself was not following some

of the policies that he reprimanded her for violating.

&

2

%

The Illinois Department of Labor found that the

deductions from commissions appear to have been

illegal under the Wage Payment and Collection Act.

See 820 ILCS 115/9 (1997). Under federal rules, see

29 C.F.R. sec. 541.118.

Had Liner not written to Crawford regarding

Harris harassment, there would have been no need to

terminate Liner. Harris was in control and could

continue to harass and humiliate her and take

deductions from commission the memo’s written

would not have been needed because he made policies

up for Liner only. Crawford had agreed with actions ~

made by Harris she had no other recourse. The

decision maker president of company made decision to

ignore Liners complaints. Until IDOL and EEOC,

claims what agency would have know of adverse

action by Dontron/Crawford Broadcasting Company-

WYCA-Radio.

Liner could have continued to work but for her

complaints to Crawford first then IDOL and EEOC.

Liner would not have been a threat to Harris or

company. Liner could have continued to sell

advertising time and endured until constructive

discharge had occurred. No men were treated

similarly; Liner would not have been treated in this

way but for her sex.

REASONS FOR GRANTING PETITION

1. Does 42 U.S.C. 2000e-3(a) provide employees

with actionable claims for opposing sexual

harassment and retaliation for conduct by

supervisor before EEOC claim is filed or

termination occurs?

The Seventh Circuit Court of Appeals

Sanctioned Such A Departure by the District

court From the Accepted Course of Judicial

Proceedings As To Call For An Exercise of This

Court’s Supervisory Power.

The plain language of Subchapter 20 provides a

broad remedial measure designed to assure equality

of employment, this subchapter was designed to bar

not only overt employment discrimination, but also

practices that are fair in form but discriminatory in

operation.

The Seventh Circuit by affirming the District

Court’s decision imposed a more stringent test for

determining what is a “protected activity” or

“oppositional behavior” to practices reasonable

believed to be unlawfully discriminatory. The result

is incongruous given the Fifth Circuit's decision in

Long v. Eastfield College, 88 F.3d 300 (5% Cir. 1996).

The First Circuit in Hochstadt v. Worcester Found.

For Experimental Biology, Inc., 425 F.Supp. 318, 324

(D.C. Mass. 1976) affd, 545 F.2d 222 (1% Cir. 1976),

noted that “opposed any practice made an unlawful

employment practice” is very broadly constructed.

10

Numerous decisions hold that the parallel anti-

retaliation provision of Title VII and the ADEA are

similar, and “cases interpreting the latter provision

are frequently relied upon in interpreting the former.”

Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 n. (5%

Cir. 1992). See also, Passer v. American Chemical

Soc., 935 F.2d 322,330 (D.C.Cir. 1991); Merrick v.

Farmers Ins. Group, 892 F.2d 1434, 1441 (9 Cir.

1990). Those circuits that have considered ADEA

retaliation claims have generally adopted the analysis

used in Title VII cases without comment. Powell v.

Rockwell Int'l Corp., 788 F.2d 279 (5 Cir. 1986).

The Seventh .Circuit rejected an overly strict

interpretation of Title VII's anti-retaliation provision

in McDonnell v. Cisneros, 84 F.3d 256,262 (7% Cir.

1996). (“[p] assive opposition” is protected activity

covered by the anti-retaliation provision).

The Sixth Circuit noted in EEOC v. Ohio Edison

Co., 7 F.3d 541, 545 (6 Cir. 1993):

[C] ourts have frequently applied the retaliation

provisions of employment statutes to matters not

expressly covered by the literal terms of these

statutes where the policy behind the statue supports a

nonexclusive reading of the statutory language.

At least two circuits have recognized that plaintiffs

are not required to have proved underlying

discrimination claims and need only show that they

were acting in “good faith” with a “reasonable belief”

that a violation existed to assert a retaliation claim.

See Sumner v. U.S. Postal Service, 899 F.2d 203, 209

(2d Cir. 1990) and Moyo v. Gomez, 32 F.3d 1382 (9%

Cir. 1994).

11

The First Circuit requires only that a plaintiff

show he had opposition to some honestly held, even if

mistaken belief that a discriminatory practice existed.

Monteiro v. Poole Silver Co., 615 F.2d 4 (1st Cir. 1980).

Title VII requires no finding that a particular

motive was the sole cause of an employer’s action; the

requirement is simply that the motive predominated

over the legitimate reason offered by defendant or was

a “but for” cause of defendant's action. See McDonald

v. Santa Fe Trail Transportation Co., 427 U.S. 273,

282 n. 10, 96 S.Ct. 2574, 2579 n. 10, 49 L.Ed.2d 493

(1976).

This court has agreed with those courts holding

that opposed activity need not actually violate Title

VII. It is sufficient if plaintiff acts on a reasonable

belief, that defendant has committed an unlawful

employment practice. Rucker v. Higher Educ. Aids

Bd., 669 F.2d 1179, 1182 (7 Cir. 1982); Parker v.

Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1019-20

(D.C. Cir 1981); Sias v. City Demonstration Agency,

588 F.2d 692, 695-96 (9% Cir. 1978); Croushorn uv.

Board of Trustees of Univ. of Tenn., 518 F.Supp. 9, 25

(M.D. Tenn. 1980). Plaintiff in this case was acting on

such a good faith and reasonable belief in protesting

defendant's conduct toward her. When defendant

deducted commission money on three separate

occasions, she complained to Crawford concerning

harassment by Harris he then issued additional

memos to her and later went to Crawford to ask

permission to terminate Liner. In Harker v. Utica

College of Syracuse University, N.D.N.Y. 1995, 885

F.Supp.378. Protected activity under Title VII

12

includes for purposes of retaliation claim, inter alia,

informal protests of discriminatory employment

practices, including making complaints to

management, writing critical letters to customers,

protesting against discrimination by industry or by

society in general, and expressing support of

coworkers who have filed formal charges.

The Appeals court erred in accepting Dontron’s

nondiscriminatory claim for receiving EEOC claim on

June 13, 1997. Liner filed original claim on May 21,

1997. In compliance with Section 706 (b) and 706 (e)

of 42 U.S.C. 2000e-5(b), 2000e-5(e). Require EEOC to

serve the respondent with notice of the charge within

10 days after the charge is fixed. June 13, 1997 is 23

calendar days or 14 business days after charge was

filed. This would leave District EEOC in violation of

this section. A reasonable belief is Dontron had

received complaint. Harris had also requested around

the same time permission to terminate Liner from

Crawford.

Employees who have a reasonable belief that they

have opposed an unlawful employment practice are in

need of protection against retaliation in response to

such opposition before termination occurs. The

purpose of the anti-retaliation provisions of Section

1981 and the ADEA is to give assurance to persons

making claims of discrimination that they will not

have action taken against them simply for engaging

in such activity. In the decision below, the Seventh

Circuit Court of Appeals sanctioned such a departure

from the accepted course of judicial proceedings as to

call for an exercise of this court’s supervisory power.

13

2. Whether the court of appeal erred by

applying the wrong standard of review to

determine pretext and adverse employment

action in sex discrimination c. aim under 42

U.S.C. 2000e?

The Circuit Courts of Appeal are split in Their

Interpretation of this important statue.

Nothing in the language of either 42 U.S.C.

sections 1981 or 42 U.S.C. 2000e-2 suggests that

Congress intended to limit sex discrimination pretext

claims to employees to prove employer honestly

believed in reason. According to Webster, the

definition of honestly is 1. in an honest manner: 2.

truly; really; used as an intensive. How would an

employee ever prove emotions of their employer?

In consideration of whether employers’ justification

for dismissing its employee is pretextual in Title VII

action, the inquiry is not whether the reason was

correct business judgment but whether decision

makers honestly acted on that reason.

All courts have recognized that the question facing

triers of fact in discrimination contained in the Civil

rights Act of 1964 reflect an important national policy.

There will seldom be “eyewitness” testimony as to the

employer's mental processes. Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711. However, none of

this means that trial courts or reviewing courts

should treat discrimination differently from other

ultimate questions of fact. Nor should they make

their inquiry even more difficult by applying legal

rules which were devised to govern “the basic

14

allocation of burdens and order of presentation proof,”

Burdine, 450 U.S., at 252, in deciding this ultimate

question. The law often obliges finders of fact to

inquire into a person's state of mind. As Lord Justine

Bowen said in treating this problem in an action for

misrepresentation nearly a century ago:

“The state of a man’s mind is as much a fact as

the state of a man’s mind at a particular time

is, but if it can be ascertained it is as much a

fact as [460 U.S. 711, 717] anything else.”

Edgington v. Fitzmaurice, 29 Chicago. Div.

459, 483 (1885).

The Appeal Court erroneously thought that

respondent was required to submit direct evidence of

pretext for sex discriminatory intent, and erroneously

focused on the question of prima facie case rather

than directly on the question of discrimination. Thus,

we cannot be certain that its findings of fact in favor

of Dontron were not influenced by its mistaken view

of the law.

In appropriate circumstances, the trier of fact can

reasonable infer from the falsity of the explanation

that the employer is dissembling to cover up a

discriminatory purpose. Such an inference is

consistent with the general principle of evidence law

that the fact finder is entitled to consider a party's

dishonesty about a material fact as “affirmative

evidence of guilt.” Wright v. West, 505 U.S. 277, 296

(1992); see also Wilson v. United States, 162 U.S. 613,

620-621 (1896); 2 J. Wigmore, Evidence 278(2), p. 133

(J. Chadbourn rev.ed. 1979). The Court of Appeal

disregarded critical evidence favorable to Liner-

namely, the evidence supporting her prima facie case

15

and undermining ODontron’s nondiscriminatory

explanation.

The hopes of Congress and this Court that agency

law would provide a relatively clear set of principles

that would enable the lower courts to develop just and

uniform rules of decision have not borne their

intended fruit. Different Circuits have developed

sharply different views of agency law, and some have

misplaced the role of agency law as a guide to the

application of Title VII by effectively submerging the

purposes of the statue beneath the arcane of agency

law as understood in that Circuit. This case presents

an opportunity for this Court to restore the primacy of

the statue and its purposes, making clear both the

manner in which agency law should properly be used

in applying the statue and the point at which the

courts should look the purposes of Title VII rather

than agency law for the principal guidance.

16

Se ee ee a m -

CONCLUSION

42 U.S.C. 2000e-3 is of great public importance but

the Circuit Courts of Appeal are split in their holdings

on the application of “opposed activity’. The decision

below undercuts enforcement of section 2000e-3.

It is in the public interest for this Honorable Court

to resolve that split to provide uniform construction

and application to this important statue. Construing

Sections to make clear that employees may assert

claims of harassment and retaliation by their

supervisor to employer. Employee is protected under

that section of 42 U.S.C. before discharge occurs and

EEOC claim then is filed. When claim is filed and

proof is provided employee will not have additional

retaliation by supervisor. It is in public interest to

provide uniform construction of these statues. The

holding below is in the minority.

Lastly, the overly narrow interpretation of the

term “honestly believe” or “honestly acted on”. Given

in the decision below so conflicts with the accepted

interpretation of this term under sex discrimination

pretext as to require an exercise of this Honorable

Court’s supervisory powers to remedy this sanctioned

departure from the usual course of judicial

proceedings.

This Honorable Court should grant certiorari and

reverse the holding below.

17

Respectfully submitted,

Glenda J. Liner

8310 South Baker Ave.

Chicago, I] 60617

773-731-8277

18

Se ARN Sys

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS

UNPUBLISHED ORDER |

__Not to be cited per Circuit Rule 53 * |

Anited States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 24, 2001

Decided May 21, 2001

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 00-4088

GLENDA J. LINER, Appeal from the United States

Plaintiff-Appellant, District Court for the

Nort:nern District of Minois,

v. Eastern Division.

DONTRON, INC.,T/A No. 99 C 1261

RADIO STATION

WYCA-FM, a wholly

Owned subsidiary,

Defendant-Appellee Wayne R. Andersen, Judge

No. 00-4088 Page 2

ORDER

Glenda Liner appeals a grant of summary

judgment to her former employer, T/A Radio Station

WYCA-FM (WYCA), a wholly owned subsidiary of

Dontron, Inc. (Dontron), in her lawsuit under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et

seq., alleging sex discrimination and retaliatory

discharge.

In 1988 Liner began working as a sales account

executive for radio station WYCA selling advertising

air time, collecting advertising fees, and servicing

advertising clients. She quit in 1991 based on her

disapproval of how her immediate supervisor, Taft

Harris, who acted as general manager, station

manager, and sales manager, treated employees at

the station. Although Harris continued to manage the

station and the sales department, Liner returned to

work for WYCA in 1993, again as a sales account

executive.

With respect to her ability to sell advertising time,

it is undisputed that Liner was very good, and WYCA

generated a high amount of sales revenue for the —

station’s parent company, Dontron, due to her efforts.

It is also not disputed that at one point, Dontron and

Harris planned to train Liner to take over Harris's

position as sales manager. Despite Liner’s excellent

sales record, however, Harris in 1995 began issuing a

series of written reprimands and_ instituting

disciplinary actions based on what he saw as Liner’s

failure to comply with company policy. Among other

things, Harris reprimanded Liner and sometimes

No. 00-4088 Page 3

retained a portion of her earned commission for

failing to submit sales and time log forms on a daily

basis; accepting a faxed copy of a signed contract in

lieu of an original; not attending a mandatory sales

department staff meeting; executing a contract with a

client for an air time rate without Harris's prior

approval; allowing an advertising account to remain

on the air even though it was behind on payments;

allowing advertising account to remain on the air

even though it was behind on payments; allowing

advertising to air although the client’s contract had

expired; and showing a client the station’s “rate card”

for advertising time.

In a May 2, 1997, memorandum, in which Harris

reprimanded Liner for accepting payment on an

account with a check made out to her personally and

then reimbursing the station in cash, Harris warned

her that she would be terminated if she violated

company policy another time. Liner was again

reprimanded the following month for not seeking

approval on an account contract from Kyle Simpson, a

male account executive who had been promoted to

sales coordinator (an intermediate position between

sales manager and account executive) and was

eventually promoted to sales manager. Harris did

not, however, move to discharge Liner, stating that he

and Simpson would give her another chance. Liner

received two more memoranda during June, both from

Simpson, reprimanding her for not submitting a

contract to him for approval and submitting contracts

for approval that were either incomplete or deviated

from station rate or contract length policy.

No. 00-4088 Page 4

On June 12, 1997, the owner of WYCA, Donald

Crawford, authorized Harris to fire Liner. Sometime

after June 13, 1997, Crawford received notice from

the EEOC that Liner had filed a charge of

discrimination with the agency against the station

alleging sex harassment and sex discrimination based

on deduction from her commission.! Liner was

terminated from her employment at WYCA on June

27, and she filed a second EEOC charge claiming that

she was terminated in retaliation for filing her initial

EEOC charge. After receiving a right-to-sue letter

from the EEOC, she filed this lawsuit, alleging that

she was discriminated against on the basis of sex

during her employment at WYCA, that she was

terminated in retaliation for filing a charge with the

EEOC, and that she was wrongfully terminated in

violation of Illinois law.

Dontron moved for summary judgment, and Liner,

who was then represented by counsel, responded. The

district court granted Dontron’s motion, reasoning

primarily that Liner failed to present direct evidence

of discrimination and that she did not meet her

burden of producing evidence that she was performing

her job satisfactorily, or that Harris's and/or

Simpson’s reprimands were a pretext for

discrimination. The court also concluded that Liner

failed to provide a casual line between her EEOC

charge and her

1 In its order, the district court cited June 12, 1997, as the date the notice of

Liner’s EEOC charge was sent to Dontron. The notice, which was

included in the record in the district court, states June 13, 1997. Liner does

not contest on appeal that June 13 is the correct date.

No. 00-4088 Page 5

termination from which a jury could infer retaliation.

Liner, now without counsel appeals.2

Although Liner argued in the district court that a

statement made by Harris to a female coworker

constituted direct evidence of discrimination, she does

not raise this point on appeal and therefore it is

waived as an issue. See United States v. Turner, 203

F.3d 1010, 1019 (7 Cir. 2000). Liner instead appears

to rely on the indirect burden-shifting method of proof

outlined in McDonnell Douglas Corp. v. Green,411

U.S. 792 (1973). To satisfy a prima facie case of

discrimination pursuant to McDonnell Douglas, Liner

must demonstrate that she belonged to a protected

class, she performed her job satisfactorily, she

suffered an adverse employment action, and similarly

situated employees not in the protected class were

treated more favorably. O’Regan vy. Arbitration

Forums, Inc., Nos. 99-4044 & 00-1306, slip op. at 7

(7% Cir. Apr. 9, 2001). If Liner demonstrates a prima

facie case, then the burden shifts to Dontron to

present a legitimate, nondiscriminatory reason for

firing her. Id. To rebut the offered explanation, Liner

? Both parties erroneously name Donald Crawford as a defendant.

Crawford was voluntarily dismissed from the lawsuit shortly after Dontron

filed its motion for summary judgment, and Liner does not challenge this

voluntary dismissal.

No. 00-4088 Page 6

must present evidence that Dontron’s reason is a

pretext for sex discrimination, pretext meaning “a

dishonest explanation, a lie rather than an oddity or

an error.” Id. (citations and internal quotations

omitted).

The district court, in granting summary judgment,

concluded that Liner failed to establish a prima facie

case of discrimination because she did not produce

evidence, that she was performing her job in a

satisfactory manner and, even if she had produced

such evidence, she did not offer evidence from which a

jury could infer that Dontron’s reason for firing her

was dishonest. On appeal, Liner seems to argue first

that she was performing her job satisfactorily based

on her excellent sales record and that she was

qualified to be promoted to sales manager, a position

ultimately given to Mr. Simpson. Liner’s evidence of

her proven ability to sell advertising, however, is

undisputed but irrelevant to the question whether she

was performing her job in a satisfactory manner.

Dontron did not refuse to promote her because her

sales were lagging; rather, Liner personnel file

contained a litany of complaints of insubordination

and failure to comply with company policies and

procedures that, despite her fine sales record,

constituted substandard work performance. Cf. Mills

v, First Fed. Sav. & Loan Ass'n, 83 F.3d 833, 846 (7th

Cir. 1996) (with respect to pretext analysis,

employee’s satisfactory performance in some aspects

of job does not necessarily undermine employer's

explanation for termination).

No.00-4088 Page 7

Liner’s other arguments apparently relating to

whether Harris’s disciplinary actions were a pretext

for discrimination are similarly unavailing. Liner

believes that a state court’s determination that the

deductions from her earned commission violated the

Illinois Wage Payment and Collection Act, 820 ILCS

115/9 (1997), somehow demonstrates a violation of

Title VII. That the deductions were not valid under

state law, however, does not speak to the issue

whether Dontron honestly believed that it should

deduct commission to prevent future violation of

company policy. See, e.g..0’Reagan, Nos. 99-4044 &

00-1306, slip op. at 8-9 (although company’s

employment agreement may have been _ illegal,

unenforceable, and “bad business decision,” that

company forced employees to sign agreement did not

establish pretext).

Furthermore, a February 12, 1997, memorandum

from Harris to Liner and Simpson declaring that

neither employee would be promoted to sales manager

at that time does not relate to whether Harris’s

decision not to promote Liner was pretextual. The

memo was addressed to both Liner and Simpson, and

Liner has not produced any evidence to refute Harris’s

legitimate explanation for temporarily suspending the

promotion of either Liner or Simpson to sales

manager—that there was no need to hire or train

additional sales executives at that time. Liner also

does not explain the relevance of Harris’s inability to

remember during his deposition whether some of the

policies he instituted with the sales department were

No, 00-4088 Page 8

transmitted in writing verbally. Nor does Liner

elucidate how Harris’s awareness (or unawareness) of

account executive billing relates to the issue of

pretext.

A closer question relating to pretext, however, is

presented by Liners argument that the company

policies she was accused of violating were either

inconsistently applied to all sales not at fault for the

episode in which she was reprimanded for allowing an

ad to go on the air even though the client's contract

had expired. Specifically, both Liner and a coworker

of Liner’s named Tara Locke testified during their

depositions that the problem was obviously a

bookkeeping error beyond Liner’s control. Second,

although Harris insisted during his deposition that he

pre-approved all extensions of existing contracts,

Liner testified that that was not the policy as she

understood it. Locke also testified that Simpson was

once late for a sales meeting, but Harris’s reaction

was informal and mild compared to the yelling and

formal reprimand Liner received for the same offense.

Finally, Locke explained that Harris himself would

often violate the same policies for which he would

reprimand Liner: using faxed copies in place of

original contracts, allowing clients to air ads despite

delinquent accounts, and writing personal checks to

the station to cover his client’s delinquent accounts.

* In her brief, Liner also'claims that Harris admitted that a client can see a

schedule of rates for air time, or a “rate card.” But this alleged admission

appears nowhere in Harns’s deposition and is therefore not supported by

the record

No. 00-4088 Page 9

Assuming that the above facts demonstrate that

the station’s policies were inconsistently applied or

unclearly established, a recent Title VII decision of

this court may support Liner’s contention that she

established a genuine issue of material fact regarding

whether the establishment and application of the

policies were pretextual. In Gordon v. United

Airlines, Inc., No. 99-4068, slip op. at 15 (March 29,

2001) (petition for rehearing and petition for

rehearing en banc pending), a flight attendant trainee

for an airline carrier was terminated after committing

a series of company policy violations. A divided panel

reversed the grant of summary judgment to the

defendant employee because the court’s “review of the

record reveal[ed] inconsistencies in the definition and

disparities in application” of disciplinary policies that

called into question the employer's explanation for

firing the employee. Id. at 19-20. We reversed the

grant of summary judgment even though the

employee admitted that he performed an

unauthorized action leading to his termination. Id. at

20.

Like the employee in Gordon, Liner has produced

evidence that Harris disciplined her more harshly

than Simpson for a similar infraction, that she was

not at fault for a violation of company policy for which

she was held responsible, and that she was not made

aware of some of Harris's policies until after she was

reprimanded for violating them. She also produced

evidence that Harris himself was not following some

of the policies that he reprimanded her for violating.

Finally, as in Gordon, Liner admitted that she had

No. 00-4088 Page 10

violated company policy. But unlike the plaintiff in

Gordon, see id. at 15, Liner was warned several times

that any further violations of company policy,

specifically executing contracts without prior approval

from Simpson and providing incomplete information

when seeking contract approval, would result in her

termination. :

In addition, at one point in her deposition Liner

admitted that regardless of whether it was actual

company policy not to accept checks from clients

personally made out to her, Harris believed that Liner

violated company policy for doing so. This admission,

coupled with Locke's testimony that Harris “was a

lousy manager in general” whose “inability to manage

did not just affect the women, it affected the men,

anyone who had a family, outside obligations,” paint a

picture of Harris as a poor manager, with perhaps

unreasonable expectations of his employees.

Nevertheless, showing that an employer is a bad

manager does not demonstrate pretext because “the

issue of pretext does not address the correctness or

desirability of reasons offered for employment

decisions. Rather, it addresses the issue of whether

the employer honestly believes in the reasons it

offers.” Wade v. Lerner New York, Inc., 243 F.3d 319,

323 (7 cir. 2001) (citation and internal quotations

omitted). See also Pitasi v. Gartner Group, Inc., 184

F.3d 709, 718 (7% Cir. 1999) (To demonstrate pretext ,

it is insufficient for employee “to show that his

employer fired him for incorrect or poorly considered

reasons. He must establish that the employer did not

honestly believe the reasons it gave for terminating

No. 00-4088 Page 11

him.”). We do not believe that Liner has offered any

evidence to dispute her own concession that Harris

actually believed that Liner violated company policy,

regardless of whether a company policy was actually

established. Therefore, Liner has not established that

irregularities in company policy constituted evidence

of pretext for sex discrimination.

Liner next argues that the district court

improperly granted summary judgment on her

retaliation claim. She offered no direct evidence of

retaliatory discharge, and so, to establish a prima

facie case of retaliation, she must provide evidence

that she reported or opposed conduct protected by

Title VII; she suffered an adverse employment action;

and there is causal relationship between her

opposition to the prohibited activity and the adverse

job action. Basith v. Cook County, 241 F.3d 919, 933

(7th Cir. 2001). It is undisputed that Liner meets the

first two requirements of a prima facie case of

retaliation. In order to establish the third

requirement, causation, Liner must demonstrate that

Dontron would not have fired her “but for” her

opposition to the prohibited conduct. Id. She has not

done so. Dontron did not receive notice of Liner’s

EEOC charge until after June 13, 1997, one day after

Crawford authorized Harris to terminate her. Thus,

there is no chronological link between the receipt of

the EEOC charge and Crawford’s decision to

terminate Liner. Furthermore, as explained in the

above discussion regarding Liner’s sex discrimination

claim, Liner has not produced evidence to refute

Dontron’s legitimate business reason for firing her:

No. 00-4088 Page 12

that she repeatedly failed to conform to company

policy despite repeated warnings that she would be

terminated if the violations continued.

Liner raises several other issues relating to her

retaliation claim, none of which were raised before the

district court. First, she claims that Crawford knew

about Harris’s alleged discriminatory treatment

against her before she filed her EEOC complaint

because she wrote a letter to him complaining of the

deductions from her commission and of Harris’s harsh

reprimands. But to state a valid retaliation claim, the

employee’s “complaint must involve discrimination

that is prohibited by Title VII,” Hammer y. St.

Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d

701, 707 (7% Cir. 2000), and in this letter she does not

mention sex discrimination or any type of harassment

based on gender. Thus, her letter did not constitute

protected expression under Title VII and she does not

satisfy a prima facie case of retaliation.

She also appears to make an ineffective

investigation claim by arguing that Dontron’s

corporate officers did not address Harris’s alleged

discrimination or hostile environment when they

visited the station and that Dontron does not have a

human resources department. Besides not raising

these issues in the district court, Liner does not

develop a comprehensible argument supported by

anything in the record. Accordingly, the issue is

waived. See Andersen vy, Hardman, 241 F.3d 544, 545

(7 Cir. 2001) (even pro se litigants must provide

“cogent arguments in any appellate brief).

No. 00-4088 Page 13

As a final matter, Dontron moved to strike Liner’s

appendix and parts of her reply brief. Only four of the

documents in Liner’s appendix were presented to the:

district court, and the remainder are unauthenticated

and were not presented in Liner’s response to

summary judgment or in the record on appeal. Liner

responds that the district court was aware of the

substance of the documents because she referenced

the contents of them in her deposition. But because

we do not permit litigants “to stray beyond the bounds

of the record for reasons so obvious and familiar that

they scarcely require mention,” see United States v.

Hoover, No. 98-2600 et al., slip op. at 15 (7 Cir. April

12, 2001) (Rovner, J., concurring), those documents

presented for the first time in Liner’s appendix are

struck from the record, and we disregard statements

in her reply brief that cite only those documents for

support, McClendon vy. Indiana Sugars Inc., 108 F.3d

789, 795 (7h Cir. 1997) (“Evidence that was not

proffered to the district court...is not part of the

appellate record’ and “has no place in an appellate

brief.”); United States vy. Phillips, 914 F.2d 835, 840

(7 Cir. 1990) ( “An appellant may not attempt to

build a new record on appeal to support his position

with evidence that was never admitted in the court

below.”).

Because Liner has failed to provide any evidence

demonstrating that she performed her job

satisfactorily or that Dontron’s reasons for firing her

were pretextual or retaliatory, we AFFIRM. We

moreover GRANT Dontron’s motion to strike Liner’s

appendix and portion’s of her reply brief. We DENY

ee

No. 00-4088 Page 14

AS MOOT Dontron’s motion for leave to file a reply in

support of their motion to strike.

APPENDIX B

OPINION OF THE UNITED STATES DISTRICT

COURT

a i a ah i a

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GLENDA J. LINER

Plaintiff

v. No. 99 C 1261

DONTRON INC., -T/A RADIO Honorable

STATION WYCA-FM, A Wayne R. Andersen

WHOLLY OWNED

SUBSIDIARY, DONALD

CRAWFORD, CRAWFORD

BROADCASTING CO.,

Defendants

MEMORANDUM, OPINION AND ORDER

Glenda Liner (“plaintiff’?) has sued her former

employer, Dontron, a wholly owned subsidiary of

Donald Crawford Broadcasting Co., (“defendant”) for

employment discrimination under Title VII and for

wrongful termination. Defendant has moved for

summary judgment on the Complaint. For the

reasons stated below, we grant this motion.

FACTUAL BACKGROUND

The facts are taken from the defendant’s statement

of facts and plaintiffs response to that statement. We

note at the outset that neither party followed the local

rule concerning this statement. Many of defendant’s

assertea “facts” are actually legal conclusions or

argument and plaintiff frequently fails to cite the

source for her dispute with an asserted fact. We

ignore all of defendant’s assertions that lack a factual

predicate and deem admitted those facts which

plaintiff has not controverted in compliance with the

local rule.

Glenda Liner, an African-American, began working

as an account executive for defendant’s gospel radio

station WYCA-FM in approximately April, 1993 and

worked in that capacity until she was fired. Her

duties included selling advertising airtime to clients,

collecting billings and writing commercials. Taft

Harris is the general manager for WYCA and has

worked for defendant since 1969. As general manager

of the station, he has the authority to establish the

policies which govern the procurement of advertising

contracts for WYCA. Harris held mandatory meetings

on Monday, Wednesday and Friday at 5:30 P.M. with

account executives to discuss sales. Account

executives could be excused from these meetings only

if they obtained Harris’ permission beforehand.

Despite this policy, plaintiff frequently missed these

meetings and was issued a written reprimand for

doing so on February 4, 1997, which she

acknowledged by signing her name.

Although plaintiff previously had experienced

some success in defendant's employ, beginning in

1995 she received a series of reprimands for failing to

comply with company policies. (Plaintiff has claimed

that the various infractions for which she was

reprimanded were not company policies because they

were not uniformly enforced, but has not submitted

any specific evidence to support conclusion.) On

= ‘Sedu Ye oe Bie adin

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November 14, 1995, defendant reprimanded her for

failing to timely submit sales call reports. On July 17,

1996, plaintiff received a written warning for failing

to submit proper original contracts for advertising

time. In January, 1997, plaintiff did not follow

defendant's procedures concerning a _ concert

promotion and received yet another reprimand. In

March, 1996, plaintiff did not submit a contract to

Harris for approval before sending it to a client

resulting in a reprimand from Harris. Harris would

not have approved this contract because the

advertising rate was too low. In March, plaintiff also

entered into a contract with a client that provided for

a straight billing arrangement instead of complying

with defendant's policy that clients prepay for their

advertising contract. Plaintiff received written

reprimands for both of these transgressions. Plaintiff

also admitted in her deposition that she was in

violation of corporate policy on a number of occasions.

On April 10, 1997, Harris was forced to reprimand

plaintiff again for going on vacation and leaving an

unpaid balance for a commercial that already had

aired. This violation of company policy was followed

by several other violations including airing

commercials for which contracts had not been signed,

informing clients about rates given to other clients

and receiving payment for air time in the form of

checks made out to her. After Harris learned of this,

he told her that any future violations of company

policy would result in termination. Despite this

warning, plaintiff failed to follow company policies

regarding presentment of her contracts for approval

and renewing expiring accounts in a timely fashion.

After several more warnings, the owner of the station,

Donald Crawford, authorized Harris to fire plaintiff

on June 12, 1997 and she was fired on June 27.

For her own part, plaintiff contends that

defendant's reprimands for violations of company

policy are evidence of discriminatory harassment.

However, with one exception, she does not offer any

proof that she was unfairly singled out for unfair

treatment or that defendant selectively enforced its

policies against her. In fact, she stated more than

once during her deposition that Harris sincerely

believed that she had violated company policy when

he reprimanded her. However, plaintiff does offer the

testimony of Patricia Kelly, another discharged co-

worker, who testified that plaintiff sometimes was

penalized on commission payments because her

contracts allegedly did not conform to company

practices, but that Kyle Harris had some of the same

problems with his contracts, but did not have

commissions deducted for these contracts.

Surprisingly, defendant does not respond in any was

to this assertion.

Plaintiff also offers the testimony of a co-worker,

Tara Locke, who stated that Harris had once said that

“he was tired of being around all of us women and

wanted more more men on this staff so that he could

get work done.” She also said, however, that Harris

said thus in a joking fashion and that Harris was

equally hard on men and women on the staff.

Plaintiff filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) on May 21, 1997.

She alleged that she had been discriminated against

on the basis of her sex because defendant had

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specific facts showing a genuine issue of material fact

and that the moving party is not entitled to judgment

as a matter of law. Anderson v. Liberty Lobby, 477

U.S. 242, 252 (1986). A genuine issue of material fact

exists only if the evidence is such that a reasonable

jury could only return a verdict in favor of the

nonmoving party. Celotex Corp. v. Cattrett, 477 U.S.

317, 3223-24 (1986). The plain language of Rule 56

mandates the entry of summary judgment against a

party who fails to establish the existence of an

element essential to its case and on which it has the

burden of proof at trial. The production of only a

scintilla of evidence will not suffice to oppose a motion

for summary judgment. See Anderson, 477 U.S. at

252.

Defendant first contends that plaintiffs EEOC

charge does not encompass the actions about which

she complains here and, therefore, we do not have

jurisdiction to hear her case. As the Seventh Circuit

has stated, “a Title VII plaintiff cannot bring claims in

a lawsuit that are not included in her EEOC

charge...For allowing a complaint to encompass

allegations outside the ambit of the predicate EEOC

charge would frustrate the EEOC’s investigatory and

conciliatory role, as well as deprive the charged party

of notice of the charge. “Cheek v. Western and

Southern Life Ins. Co., 31 F.3d 497, 500 (7 Cir.

1994). Although a claim in a civil suit need not

duplicate the EEOC claim, there must be “a

reasonable relationship between the allegations in the

charge and the claims in the complaint,” and it must

appear that “the claim in the complaint can

reasonably be expected to grow out of an EEOC

investigation of the allegations of tle charge.” Vela v.

withheld her commissions for violations of company

policy and that a similarly situated male employee

had not been so disciplined. She also charged that he

supervisor had harassed her in unspecified ways.

After she was fired, plaintiff filed another charge with

the EEOC in which she claimed that she been

retaliated against for filing her original discharge.

After receiving her right to sue letter, plaintiff

filed this action. Plaintiff generally alleges that

defendant maintains a de facto policy of not

promoting women to managerial positions and

maintained a hostile work environment. In Count

One, she alleges that she was discriminated against

(in unspecified ways) on the basis of sex in violation of

Title VII. (Plaintiff also alleges a violation of 42

U.S.C. 1983 which prohibits discrimination under

color of state law and is inapplicable to her case.) In

Count Two, she claims that her termination was

retaliatory in violation of Title VII. In Count Three,

she alleges a pendent state claim for wrongful

termination.

DISCUSSION

Summary judgment is proper “if the pleadings,

depositions, answers to _ interrogatories, and

admissions on file, together with affidavits, if any, do

not show a genuine issue of material fact and that the

moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). The party seeking

summary judgment carries the initial burden of

demonstrating an absence of evidence to support the

position of the nonmoving party. Doe v. R.R.

Donnelley & Sons, Co., 42 F.3d 439, 443 (7 Cir.

1994). The nonmoving party must then set forth

Village of Sauk Village, 218 F. 3d 661, 664 (7t» Cir.

2000), quoting Cheek, 31 F.2d at 500.

We agree with defendant that plaintiffs “de facto”

discrimination claim charging a general failure to hire

and promote women, as well as a failure to promote

her, is not reasonably related to her EEOC charge.

That charge specifically deals with defendant's

deduction of commissions from plaintiffs checks

because she disobeyed company policies when it did

make those deductions from a similarly situated

male's check. Although plaintiff also generally alleges

“harassment”, it is quite a leap from even that general

charge to allegations concerning defendant-wide

promotion and hiring decisions, as well as defendant’s

alleged failure to promote her, and, therefore, we find

that this claim is barred.

Defendant makes the same concerning plaintiffs

hostile environment claim. Plaintiffs EEOC charge is

devoid of language charging that defendant

maintained a hostile environment. However, she does

generally allege (although without any supporting

facts) that her supervisor harassed her. Therefore, we

find that, her complaint is “reasonably related” to her

charge. We turn now to the merits of plaintiffs

claims.

Plaintiff in her complaint claims that defendant did

not promote her to a sales manager position, harassed

her when it unfairly enforced company policies

against her, fired her because of her gender and

retaliated against her because she filed an EEOC

complaint. As we discussed above, however, plaintiff

cannot raise defendant’s failure to promote her in

federal court without having first:raised this claim

before the EEOC. That being said, we also note that

plaintiff has proffered absolutely no evidence that she

was as qualified or more qualified than those

promoted instead of her (other than her own opinion),

let alone that the promotion decisions were motivated

by gender discrimination. Plaintiffs self-serving

assessment of her own abilities is not sufficient to

defeat summary judgment absent any other proof.

Schultz v. General Elec. Corp., 37 F.3d 329,334 (7th

Cir. 1994). This leaves plaintiff's challenge to

defendant’s decision to punish her for infractions of its

company policies and to fire her before the court.

Title VII makes it unlawful for an employer to

discriminate against an employer because of an

employee’s sex. 42 U.S.C. 2000e-2(a)(1). Plaintiff

needs proof of intentional discrimination to prevail

under disparate treatment analysis. St. Mary’s Honor

Center v. Hicks, 509 U.S. 502 (1993). A Title VII

plaintiff can satisfy her burden of proof by two

avenues: (1) she may present evidence of

discriminatory intent or, because of the difficulty in

directly proving discrimination, (2) she may use the

indirect, burden-shifting procedure set forth in

McDonnell Douglas Corp v. Green, 411 U.S. 792

(1973).

Plaintiff primarily relies on indirect evidence in

support of her claim that defendant discriminated

against her. However, she also argues that a remark

made by Harris is_ direct evidence of sex

discrimination. According to plaintiffs co-worker,

Tara Locke, Harris once joked that he wanted more

men on his staff so that he could get more work done.

However, Locke’s further testimony makes it plain

that Harris’ comment was a joke and that she did not

take it seriously. Although this remark was not made

with reference to plaintiff, plaintiff argues that we

may infer gender discrimination from it because

Harris was a decision maker with respect to

enforcement of company policies against plaintiff and

had input into the decision to fire her. See Hunt uv.

City of Markham, 219 F.3d 649, 652 (7 Cir. 2000).

Although it is true that stray remarks made by

decision makers around the time of the challenged

action may constitute evidence of sex discrimination,

the reporter of this remark clearly believed it to be a

joke and did not take it seriously or believe that it was

evidence of any anti-female bias. She further testified

that Harris was equally hard on men as women.

Given the factual context of this isolated remark, we

do not find that it is direct evidence of anti-gender

bias.

We, therefore, turn to plaintiff's evidence under the

indirect method of proof. To establish a prima facie

case of employment discrimination, plaintiff must

show that (1) she was in a protected class; (2) she was

performing her job satisfactorily; (3) she was the

subject of an adverse employment action; and (4)

others outside the protected class were treated more

favorably. Young v. Will County Dep't of Public Aid,

883 F. 2d 290, 293 (7 Cir. 1997), citing McDonnell

Douglass, 411 U.S. at 804. If the defendant

establishes a legitimate nondiscriminatory reason for

the adverse employment actions, plaintiff must show

that the articulated reason is a pretext for

“

discrimination. Of course, the ultimate burden of

proof remains on plaintiff at all times. Jd.

Plaintiff argues that although she was performing

her job satisfactorily, Harris unfairly harassed her by

arbitrarily enforcing company policies against her.

She contends that the alleged corporate policies for

which was penalized were not corporate policies at all,

citing Sarsha v. Sears Roebuck & Co., 3 F.3d 1035 (7th

Cir. 1993) in support of her position. However, this

case is inapposite to the plaintiffs situation. In

Sarsha, the Seventh Circuit found that there was a

genuine issue of material fact concerning whether a

“no dating” policy truly existed. In addition, a

defendant correctly notes, the court pointed out that

there also was a question as to whether the plaintiff

actually had been warned that he was doing

something in violation of company policy prior to his

termination. In this case, the record is replete with

instance after instance when defendant explicitly

warned plaintiff that she was violating specifically

identified policies and that she would be disciplined if

she continued to flaunt them. Plaintiff fails to

remember anything about the meetings she had with

Harris during which she received these warnings, but

there is no question that she received them and that

she did not heed them. Moreover, plaintiff herself

admitted that she violated at least some of these

policies, such as submitting contracts to clients which

had not been approved first. Thus, the record is

replete with evidence that plaintiff was not

performing satisfactorily and, other than her own

assessment that defendant unfairly evaluated her

with respect to these policies, there is no evidence to

the contrary.

However, plaintiff has presented some evidence

that defendant may have docked her commission

checks for certain infractions, while failing to do so

with respect to male employees. Patricia Kelly, who

reviewed at least some of the contracts, so testified.

Unfortunately, plaintiff has not provided any specifics

concerning these instances. However, plaintiff argues

that this presents a material issue of fact. Assuming

that plaintiff was treated, as least in some instances,

differently than some of her male counterparts, we

must examine defendant’s proffered reason for

singling her out.

Defendant argues that plaintiffs claims defeated

because she has admitted that Harris disciplined her

of her sex, but because he honestly believed that she

violated company policy. We agree. Plaintiff does not

make out a prima facie case for sex discrimination by

simply establishing that others not in the protected

class were treated differently with respect to at least

some of the alleged instances. She must show that

the decisions concerning her own discipline were

motivated, at least in part, by gender discrimination.

Her admission to the contrary necessarily defeats her

claim.

Plaintiff also argues that she was terminated

because of her sex and in retaliation for filing her first

Title VII complaint. Again, the record is clear that

plaintiff continually violated several company policies,

such as submitting unapproved contracts, receiving

checks for contractual commitments made out to her

personally, and airing commercials without having

contracts on file. She complains that these policies

10

were unfair, but has not presented any evidence that

she did not, in fact, violate them. To the contrary, she

admits otherwise. Plaintiff has not shown that she

was performing satisfactorily. Even assuming she

was, she has not presented any evidence that anyone

with her record in defendant's employ and not in the

protected class was treated any differently.

Plaintiff also claims that her termination was in

retaliation for her initial EEOC complaint. It is well -

settled that plaintiffs termination need not be

discriminatory to establish a retaliatory discharge

under Title VII. Plaintiff must prove, however, that

she engaged in_ statutorily protected activity

(undisputed); (2) that she suffered an adverse action

(undisputed) and (3) a casual link exists between the

protected activity and the adverse action. 42 U.S.C.

2000e-3; Johnson v. Zema Sys. Corp., 170 F.3d 734,

753 (7h Cir. 1999). Once the employee meets her

burden, the employer must present a legitimate

nondiscriminatory reason for its action. Jd. If the

employer is successful, the employee must

demonstrate that the reason was pretextural and that

the true reason was retaliatory.

Defendant received plaintiffs EEOC charge on

June 12, 1997. That same day Donald Crawford,

defendant's owner, sent Harris a memo instructing

his to terminate plaintiff for the next serious violation

“irrespective of the consequences to the station.”

Plaintiff was fired on June 27, 1997. Plaintiff argues

that the proximity of these events is evidence of a

casual link. However, defendant has submitted reams

of evidence, including a series of letters, which inform

plaintiff of her violations of company policies, which

11

more than establish that plaintiff was not meeting

defendant's expectations. Indeed, over a month before

she filed her EEOC charge, defendant informed her in

writing that if she violated one more company policy,

she would be fired. The undisputed evidence is that

after she received this warning, plaintiff submitted

contracts in violation of these policies. Defendant,

therefore, has demonstrated that her termination was

not motivated by retaliation, but rather by plaintiff's

dismal performance record. Therefore, we find that

defendant has not satisfied her burden of proof to

establish a prima facie case for retaliation.

CONCLUSION

For all the forgoing reasons, we grant defendant’s

motion for summary judgment and terminate this

case.

It is so ordered.

Wayne R. Andersen

United States District Judge

Dated: October 26, 2000

12

‘iceman:

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

June 18, 2001

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 00-4088

GLENDA J. LINER, Appeal from the United States

Plaintiff-Appellant, District Court for the

Northern District of Illinois,

Eastern Division

v.

DONTRON, INC., No. 99 C 1261

T/A RADIO STATION

WYCA-FM, a wholly

subsidiary,

Defendant-Appellee, Wayne R. Andersen, Judge.

ORDER

On June 5, 2001, the plaintiff-appellant filed a

petition for rehearing and petition for rehearing en

banc. All the judges on the original panel have voted

to deny a rehearing, and none of the judges in active

service have requested a vote on the petition for

rehearing en banc. The petitions for rehearing and

rehearing en banc are therefore DENIED.