Gail Johnson v. Nordstrom, Inc., James M. Johansson and Richard J. Archer

260 F.3d 727, 2001 U.S. App. LEXIS 16061, 81 Empl. Prac. Dec. (CCH) 40,902, 86 Fair Empl. Prac. Cas. (BNA) 574, 2001 WL 818874
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 20, 2001
Docket00-3827
StatusPublished
Cited by132 cases

This text of 260 F.3d 727 (Gail Johnson v. Nordstrom, Inc., James M. Johansson and Richard J. Archer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gail Johnson v. Nordstrom, Inc., James M. Johansson and Richard J. Archer, 260 F.3d 727, 2001 U.S. App. LEXIS 16061, 81 Empl. Prac. Dec. (CCH) 40,902, 86 Fair Empl. Prac. Cas. (BNA) 574, 2001 WL 818874 (7th Cir. 2001).

Opinion

CUDAHY, Circuit Judge.

Gail Johnson appeals a grant of summary judgment to Nordstrom, Inc. on her Title VII claims of employment discrimination, retaliation and constructive discharge. We affirm.

I.

Johnson was hired in 1995 to work as a salesperson in the cosmetics department at Nordstrom’s retail department store in downtown Indianapolis. Six months after she was hired, Johnson was transferred to the men’s fragrance counter to work' as a fragrance counter manager. In February 1997, Johnson sought a promotion to the intriguing position of beauty director. At the time, she had more than 13 years of cosmetics experience. Richard Archer, who was then the manager of the cosmetics department, was responsible for filling the beauty director position. Archer interviewed Johnson and was aware of her experience and qualifications for the job; But he selected another employee for the position — one who, Johnson alleges, had only two years of cosmetics experience. When Johnson questioned Archer about his decision, he told her he had selected the other employee because she had more seniority at Nordstrom and she had a “better feel for the Nordstrom customer.”

Johnson, an African American, filed a charge of race discrimination against Nordstrom with the Equal Employment Opportunity Commission (EEOC). In response, Nordstrom indicated that Johnson was not qualified for the beauty director position, and that Deanne Bennett, the (white) person who got the job, was more qualified. Nordstrom claimed that Johnson, during her interview for the job, said she believed the most important part of the job was “sales,” although that was incorrect because the position primarily involved training and other interaction with coworkers. Nordstrom did not believe Johnson would be qualified for this aspect of the job because she was perceived by her co-workers as a “shark”— apparently a retail term for a sales employee who serves more than one customer at a time, thereby depriving coworkers of commission opportunities. This perception was a source of tension between Johnson and her co-workers. And Bennett had superior Nordstrom experience: Johnson at the time had six months experience with Nordstrom, while Bennett had worked there for three years. In April 1997, another white employee was promoted, this time to the position of assistant manager. Archer, without considering Johnson for the position, gave the job to Lynette Irwin, who had two months of part-time experience at Nordstrom. But unlike Johnson, Irwin had management experience at Nordstrom; in fact, she had served as Johnson’s supervisor. Johnson filed another charge of discrimination with the EEOC. Nordstrom responded that Johnson was not considered for the position *731 because Archer believed she was not interested in it. Nordstrom later indicated that Johnson did not exhibit the leadership and team-playing skills Archer was seeking for the position.

Johnson’s retaliation claim is two-fold. First, she claims that Nordstrom retaliated against her for filing the first EEOC charge by failing to promote her to the assistant manager position. Second, she claims that Archer and Irwin took specific retaliatory actions against her: they “saved stock work” for her and they wrongly accused her of stealing customers from other salespersons. Further, Johnson alleges that Irwin allowed other employees to falsely accuse her, gave sales leads to other employees and advised them to come to work early to do stock work so they would not lose time off the sales floor. Archer and Irwin apparently also monitored Johnson to determine whether she was in fact stealing customers. In November 1997, Johnson resigned.

Johnson filed a complaint against Nord-strom, James Johansson (the store manager) and Archer under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. She alleged race discrimination in the failure to promote her, retaliation and constructive discharge. As noted, her retaliation claim consisted of, inter alia, Nordstrom’s failure to promote her to the assistant manager position and Irwin’s and Archer’s retaliatory conduct. Johnson also alleged a state claim for intentional infliction of emotional distress. In response, Nordstrom filed a motion for summary judgment and a motion to strike certain portions of affidavits filed by Johnson. Johnson filed a motion in opposition to summary judgment and a motion to strike affidavits submitted by Nordstrom. The district court denied Johnson’s motion to strike, granted in part Nordstrom’s motion to strike and granted Nordstrom’s motion for summary judgment on all counts. It concluded that Johnson had not demonstrated a prima facie case on her failure to promote claim. The court also found that Johnson did not show that Nordstrom’s reasons for failing to promote her were retaliatory; she could not prove that Nordstrom’s stated reasons were pretextual. As to Archer’s and Irwin’s retaliatory conduct, the court concluded that Johnson failed to make a pri-ma facie case. It also concluded that the conduct was not extreme or outrageous, such that would support Johnson’s claim for intentional infliction of emotional distress! Johnson appeals.

II.

As everyone should know, we review a grant of summary judgment de novo, viewing all the facts and inferences in the light most favorable to the nonmoving party. See Pafford v. Herman, 148 F.3d 658, 665 (7th Cir.1998). “Summary judgment may be granted only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Pafford, 148 F.3d at 665.

To defeat a motion for summary judgment in a Title VII case, a plaintiff who cannot provide direct evidence of discrimination may use the “burden-shifting” method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this indirect method of proof, the plaintiff first may raise an inference of discrimination by offering sufficient. evidence to establish a prima facie case. See id. at 802-05, 93 S.Ct. 1817. If the plaintiff succeeds, the burden then shifts to the employer, who must articulate a “legitimate, nondiscrimi *732 natory reason” for the adverse action. See Pafford, 148 F.3d at 665 (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “If the employer carries this burden, then the burden shifts back to the plaintiff to produce ‘evidence that would, if believed by a trier of fact, show that the true reason for the employment action was discriminatory.’ ”

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260 F.3d 727, 2001 U.S. App. LEXIS 16061, 81 Empl. Prac. Dec. (CCH) 40,902, 86 Fair Empl. Prac. Cas. (BNA) 574, 2001 WL 818874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gail-johnson-v-nordstrom-inc-james-m-johansson-and-richard-j-archer-ca7-2001.