7th Cir. Cuts Through Muddle - Allows Promotion Claim To Continue

Posted 9:25 PM by Michael Fox

Regardless of how you feel about their decisions, one has to appreciate the writing in many opinions from the 7th Circuit. Volovsek v. Wisc. Dept. of Agriculture (7th Cir. 9/18/03) is no exception:

We start with some threshold questions about the scope of Volovsek's suit. Unfortunately we have to spend considerable time addressing this issue because the parties appear to have simply collected the sum total of all the unpleasant events in Volovsek's work history since 1991, dumped them into the legal mixing bowl of this lawsuit, set the Title VII blender to puree and poured the resulting blob on the court.

Having done so, the Court reverses the trial court's summary judgment for the employer on her claim of failure to receive a promotion, and affirms the dismissal of all other claims. The promotion claim survived because of plaintiff's affidavit that just after she received the news that she was not receiving a desired promotion, she overheard her two supervisors' comment that women should be "barefoot and pregnant". The timing of the comment removed this from the unrelated stray remark category and allowed the promotion claim to survive. One could not help but get the feeling that with more carefully drawn briefing, this is a case where plaintiff might have been totally dumped.

It did provide a forum for Judge Cudahy to make some other observations concerning various types of evidence. One is a description of how plaintiffs may prove intentional discrimination:

Volovsek can prove intentional sex discrimination and retaliation directly or indirectly. The direct method may employ either of two types of evidence: direct evidence and circumstantial evidence. The inevitable confusion of using the word "direct" to mean two different things aside, direct evidence is evidence, which, if believed by the finder of fact, "will prove the particular fact in question without reliance upon inference or presumption." [cite omitted] This evidence of the I-am-not-promoting-you because-you-are-a-woman type is understandably rare. There is no evidence of this kind in the present case. The more common type of evidence is circumstantial evidence that allows a jury to infer intentional discrimination or retaliation. Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003). Circumstantial evidence comes generally in three flavors: (1) suspicious timing, ambiguous statements, behavior towards other employees and so on; (2) evidence, but not necessarily rigorous statistical evidence, that similarly situated employees were treated differently, or (3) evidence that the employee was qualified for the promotion and passed over and the employer's reason for the difference in treatment is a pretext for discrimination. Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir.1994). The third category bears an eerie similarity to the evidence required under the indirect method. See Huff v. UARCO Inc., 122 F.3d 374, 380 (7th Cir. 1997).

And also to comment on the sometimes sufficiency of "self serving statements":

Volovsek's affidavit in which she recounts what she overheard is not, as the [employer]claims, conclusory or self-serving, as that term is commonly used in the context of summary judgment. She is relating facts of which she has personal knowledge in support of her claim of discrimination. Payne v. Pauley, __ F.3d __, 2003 WL 21540424, *5 (7th Cir. 2003) ("Provided that the evidence meets the usual requirements for evidence presented on summary judgment including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there is a genuine issue for trial; a self-serving affidavit is an acceptable method for a nonmoving party to present evidence of disputed material facts.")

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