Johnson v. Pernod Ricard USA

119 F. App'x 785
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 17, 2004
DocketNo. 04-2098
StatusPublished

This text of 119 F. App'x 785 (Johnson v. Pernod Ricard USA) 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
Johnson v. Pernod Ricard USA, 119 F. App'x 785 (7th Cir. 2004).

Opinion

ORDER

Kathleen Johnson quit her job as a forklift operator, and her employer, Pernod Ricard USA (“Pernod”), refused to rehire her. Consequently, she filed suit under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, for gender discrimination. The district court found that Ms. Johnson established a prima facie case of discrimination because she was similarly situated to a male employee who was rehired, but that she could not rebut Pernod’s legitimate non-discriminatory reason for its actions. Ms. Johnson appeals, and for the following reasons we affirm the judgment of the district court.

I

BACKGROUND

Ms. Johnson began working as a laborer at Seagram & Sons, Inc., in Lawrence-burg, Indiana in 1998, and a year later became a forklift operator. In 2001 Pernod acquired the facility. On September 27, 2001, Ms. Johnson arrived at work and learned that the forklift that she had been using was not available because another employee had taken it. When she asked her supervisor about the protocol for forklift assignments, he replied that it was customary to keep the forklift to which one is first assigned and assigned her to another forklift. After accepting the new forklift, Ms. Johnson asked Bill Floyd, the lead dock person and her union steward, to clarify forklift protocol for her by the end of the day. When Floyd did not respond to Ms. Johnson’s satisfaction, she jumped off her forklift, said “I quit,” and left the facility. Floyd later told John Salvagne, the facility’s human resources manager, that he told Ms. Johnson that she should not leave unless she talked to someone in management first. Ten days later, on October 7, 2001, one of Ms. Johnson’s coworkers called her to tell her that she knew of someone who had “received a job back” and advised her to contact the union. R.38, Johnson Dep. at 56. The next day, Ms. Johnson met with Greyson Gray, the union president, to request assistance in getting her job back. A week later, Ms. Johnson filed a grievance, which Pernod denied at the first step of the grievance procedure. Pursuant to step two of the grievance procedure, Ms. Johnson and Gray met with Salvagne and Pernod’s human resources director. At the meeting, Salvagne told Ms. Johnson that he could not rehire her, explaining that it would set a bad precedent. Ms. Johnson’s union declined to pursue her grievance to the third step. Ms. Johnson filed a gender discrimination charge with the EEOC, and the EEOC dismissed the charge in May 2002.

Ms. Johnson then filed this lawsuit, alleging that Pernod discriminated against her based on her gender when it refused [787]*787to rehire her. Pernod moved for summary judgment, arguing that Ms. Johnson could not establish a prima facie case because, among other reasons, she could not show that any similarly-situated male employees were treated more favorably. In response, Ms. Johnson identified three men whom she claimed either quit or were fired by Pernod and were later rehired. The first man, Owen Cross, a laborer, was laid off and declined recall twice in 1996 and 1997 because he had found another full-time job. By refusing recall a second time, Cross lost his seniority. Cross later requested that the company rehire him, and it did. The second man, David Richter, a forklift operator, argued with his supervisor in August 2000 and left the facility a few hours before his shift ended. Before he left, he asked for an absence report, but his supervisor said that he did not need one. The next morning Richter met with Salvagne, who let him return to work because his supervisor had not told him that he could not leave. The third man, Thomas Johnson, a laborer, had been disciplined several times for leaving the plant without permission and for poor attendance. In November 1999, Salvagne informed Johnson that he would be serving a five-day suspension after his shift that day was completed. During his shift, Johnson loaded a railroad car improperly, and his supervisor told him to reload the car. Instead, Johnson left the plant, stating that he was already on suspension and did not care if he received further discipline for leaving without permission. Salvagne fired him for leaving work without permission. Johnson’s union asked Pernod to rehire him and pursued the matter, requesting a meeting at the third step of the grievance procedure. Salvagne decided to rehire Johnson before that meeting because there was no evidence that his supervisor had instructed him not to leave.

The district court held that a similarly-situated person would be “someone who voluntarily quit his job at the Lawrence-berg facility and nevertheless retained his job.” R.54, p. 12. The court found that Owen Cross was not similarly situated because he did not voluntarily quit his job, but was laid off and remained on recall status. Although David Richter left work, possibly without permission, the court found that he did not leave work with the intention of quitting and thus was not similarly situated. The court then held that Thomas Johnson was similarly situated, expressing its reluctance to dismiss Ms. Johnson’s case at the prima facie stage: “[W]e shall accept that Mr. Johnson had no intention of returning to work until he asked the union to help him get his job back in order to consider him comparable to the plaintiff. The plaintiff has met her burden, however tenuously, of establishing a prima facie case.” Id. at 13.

The court then held that Pernod’s reason for not rehiring Ms. Johnson — that to do so would have set a precedent for employees to quit with impunity — was not pretext for discrimination. The court did not explain directly why rehiring Ms. Johnson would create a bad precedent, but rehiring Thomas Johnson, a problem employee, did not. The court stated, “more than just issues of personality determine employment decisions, namely, the economy, the personnel roster at the time, etc. We can only say that when Pernod Ricard chose not to rehire Ms. Johnson, the reason was not so outlandish as to suspect it is a he.” Id. at 15. The court then granted Pernod’s motion for summary judgment.

II

DISCUSSION

We review the district court’s grant of summary judgment de novo. Franciski v. [788]*788Univ. of Chicago Hosp., 338 F.3d 765, 768 (7th Cir.2003). To establish a prima facie showing of discrimination under the indirect burden-shifting method outlined in McDonnell Douglas, a plaintiff must present evidence tending to show: (1) she was a member of a protected class; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) a similarly situated employee not of the protected class was treated more favorably. See Gusewelle v. City of Wood River, 374 F.3d 569, 574 (7th Cir.2004). Once a plaintiff has established a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. If the employer does so, the burden shifts back to the plaintiff to present sufficient evidence to show that the employer’s proffered reasons are merely a pretext for discrimination. Id.

To show that another employee is similarly situated, Ms. Johnson “must demonstrate that there is someone who is directly comparable to [her] in all material respects.” Grayson v. O’Neill,

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Bluebook (online)
119 F. App'x 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-pernod-ricard-usa-ca7-2004.