Jeri L. Gates v. Caterpillar, Inc.

Jeri L. Gates alleges that
Caterpillar, Inc. ("Caterpillar") engaged in unlawful
sexual discrimination and retaliation in violation of
Title VII. The district court granted Caterpillar's motion
for summary judgment, Gates appealed and we now
affirm.

I

Gates began working at Caterpillar in 1978 as a clerk
and held various administrative positions at the company
between 1978 and 1990. In October 1990, Gates
joined the New Technology Department ("NTD") of Caterpillar's
Technical Services Division ("TSD") as an Assistant
Contract Administrator, becoming a Contract Administrator
in 1997. As such, Gates was responsible for
administering various aspects of Caterpillar's contracts
including "closing out" contracts by confirming that
Caterpillar had fulfilled its delivery obligations, the
customer had paid Caterpillar and both sides agreed
that the contract was complete.

In late 2001, Randall Richards joined the TSD and
became Gates' supervisor. At the outset Richards, with
input from Gates, assessed the department's workload
and productivity and ultimately determined that the
unit would benefit from hiring additional employees.
Because Gates was the most experienced employee in the
group, she became responsible for training and coaching
some of the new unit members. At that time, Richards
offered her the role of "Team Leader," which would have
involved officially managing the work performance of the
others in the group. Gates, dissatisfied with various
aspects of the job, declined.

Both before and after Richards joined the TSD, Gates
had applied for open positions within other divisions of
Caterpillar in an effort to advance her career. Although
she consistently sought the support of her supervisors
in making this internal job switch, Gates believed that
she did not have her superiors' backing because her
leaving the group would create a void. In February 2002,
Gates met with Barbara Shane, then TSD's Personnel
Services Supervisor, to discuss the situation. In an effort
to address Gates' concerns, Shane facilitated a meeting
between herself, Richards and Mike Simmons (Richards'
supervisor). This meeting was followed by a series of
meetings between Gates, Shane, Richards and Simmons
in mid-to-late-February. Although Gates continued to
make clear that she wanted to leave the unit to pursue
other opportunities within Caterpillar, her supervisors
determined that she should not transition to another
position until the new administrators in the department
were properly trained. Eventually, in March 2002, Gates,
Shane, Richards and Simmons agreed to designate Shane
as the "Training Leader" and established new work goals
for her.

Shortly thereafter, Richards became critical of Gates'
job performance and her failure to meet these new work
goals. Also around this same time, Richards began hearing
complaints from Gates' coworkers that Gates was
spending a lot of time on personal matters. At Richards'
request, Shane initiated an investigation, asking Amy
Winkler, a Personnel Assistant in Caterpillar's Human
Resources Department, to look into Gates' telephone
and Internet usage while at work. At that time, Caterpillar
employees were subject to an Electronic Communications
Policy which, in relevant part, directed that
personal use should be limited and governed by good
judgment and discretion. Winkler reported that over the
course of the 89 recent work days she reviewed, Gates
made 489 calls from her telephone exchange, the majority
of which (432) were personal. Winkler also found that
between January 10 and April 30, 2002, Gates was on the
Internet an average of 18 minutes a day, making approximately
2700 "hits" to Bradley University (where
Gates was a student) and approximately 316 hits to
other non-work-related websites including tanning equipment
websites and a tax website.1

Shane and Richards reviewed the telephone and Internet
usage reports, which they believed to be accurate
and which they thought indicated an abuse by Gates of
Caterpillar's phone and computer policy. Shane, Richards,
Winkler and Randy Koors (the Business Support Manager
in the TSD Support Services Department who was scheduled
to take over responsibility for supervising the contract
administrative employees in the upcoming months)
discussed the situation. Upon a recommendation from
Shane, Richards decided to suspend Gates.

On May 24, 2002, Richards and Shane met with Gates,
informed her that she was suspended for five days and
presented her with an Employee Action Plan ("EAP"). The
EAP explained that Gates was being disciplined for her
misuse of Caterpillar's time and equipment as well as her
failure to take adequate responsibility for work assignments.
The EAP mandated, and Richards verbally reiterated,
that over the course of her suspension, Gates was
to contact only Richards, if necessary, and should not
contact any other team-members or co-workers at TSD.
The EAP cautioned that "[f]ailure to adhere to the policies
specifically noted above, as well as any other company
policies will result in termination." R. 18, Ex. V. Richards
also told Gates that following the suspension, her performance
would be evaluated relative to a specific contract
close-out and training schedule, a copy of which he gave
to her at that time.

While Gates was on suspension, Richards, through
Caterpillar's email system, received an email from Gates
protesting her suspension. In the course of preparing a
"rebuttal" and in an effort to buttress her position that
Richards' closeout schedule was unreasonable, Gates
also emailed various Caterpillar customers as well as
contractors at other companies to solicit their opinions on
contract close-out timing. All of these emails were sent
from Gates' Caterpillar account, through Caterpillar's
intranet which Gates accessed using her fiancé's "I-Pass"
card, an access card issued by Caterpillar to allow access
to the Company's information system and intended and
authorized only for use by the employee to whom it was
issued.

On June 3, 2002, Gates returned to work from her
disciplinary suspension, met with Richards, Shane and
Koors and presented her written rebuttal of the EAP.
When asked by Richards how she had emailed him during
her suspension, Gates replied that she logged into her
email account using her ID and password. When pressed
further about how she gained access to the intranet, Gates
replied that she used her fiancé's I-Pass card because
hers was in her bag at work.2 Although Gates initially
claimed that her fiancé logged into the system from home
before leaving for work, after which she then used her own
password to access her email, Richards and Shane had
records indicating that her fiancé was often already at
work at the times his I-Pass card was used to access the
system remotely. Gates then admitted she had in fact
used her fiancé's I-Pass card to log into the system when
he was not there.

In a letter dated June 5, 2002, Caterpillar notified Gates
that based on its belief that Gates had continued to misuse
company property and was dishonest about how she
accessed the internal email system during her suspension,
Gates was terminated. In May 2004, Gates brought
an action against Caterpillar alleging unlawful discrimination
and retaliation.

II

A. Gates' Retaliation Claim

We review the district court's grant of summary judgment
de novo. E.g., Luks v. Baxter Healthcare Corp., 467
F.3d 1049, 1052 (7th Cir. 2006), cert. denied, 127 S. Ct.
2251 (2007). Summary judgment is properly granted
when, after considering the admissible evidence in the
light most favorable to the non-moving party, there is no
genuine issue of material fact. Fed. R. Civ. P. 56(c); Id.
Gates' primary argument on appeal is that the district
court improperly failed to recognize that she could rely
on circumstantial evidence to support her retaliation
claim under the direct-proof method. Although we
agree with Gates that the district court's total reliance
on Stone v. City of Indianapolis Public Utilities Division,
281 F.3d 640 (7th Cir. 2002) for determination of this
issue is misplaced, we nevertheless conclude that there
is no reversible error.

In relevant part, Title VII renders unlawful the discrimination
against any employee for opposing an unlawful
employment practice. 42 U.S.C. § 2000e-3a. An employee
bringing a retaliation claim may use either the "direct" or
"indirect" methods of proof to support her claim. Mannie v.
Potter, 394 F.3d 997, 983 (7th Cir. 2005). In order to
successfully establish retaliation under the direct
method of proof, Gates would have had to "[1] offer evidence
that [she] engaged in a statutorily protected activity,
[2] that the defendants subjected [her] to an adverse
employment action and [3] that a causal connection exists
between the two events." Treadwell v. Office of Ill. Sec'y of
State, 455 F.3d 778, 781 (7th Cir. 2006). The court below
relied on Stone to conclude that "in pursuing retaliation
claims under the direct method, a plaintiff must present
direct evidence, that is an acknowledgement of discriminatory
intent that does not require support from inferences."
R. 33, p. 13. However, this Court recently has clarified
that, notwithstanding Stone's "misleading dictum,"
"circumstantial evidence that is relevant and probative on
any of the elements of a direct case of retaliation may be
admitted and, if proven to the satisfaction of the trier of
fact, support a case of retaliation." Treadwell, 455 F.3d at
781 (citing Sylvester v. SOS Children's Vills. of Illinois,
453 F.3d 900, 902 (7th Cir. 2006)).3 Under Sylvester and
Treadwell, then, Gates may have made a showing, by
means of circumstantial evidence, " ‘that [s]he engaged in
protected activity … and as a result suffered the adverse
employment action of which [s]he complains.' " Sylvester,
453 F.3d at 902 (quoting Culver v. Gorman & Co., 416 F.3d
540, 545-46 (7th Cir. 2005); citing, inter alia, Lang v.
Illinois Dep't of Children & Family Servs., 361 F.3d 416,
419 (7th Cir. 2004); Volovsek v. Wisconsin Dep't of Agriculture,
Trade & Consumer Prot., 344 F.3d 680, 689 (7th Cir.
2003)). Unfortunately for her claim, Gates failed to do so.
We have determined that the relationship between
Gates' complaints and her subsequent suspension and
termination are so tenuous that summary judgment for
Caterpillar cannot be avoided. We recognize that "[a]
causal link between the protected expression and an
adverse employment action may be established by showing
that the protected conduct was a substantial or
motivating factor in the employer's decision" Culver, 416
F.3d at 545; Gates fails to put forth even such evidence.
Indeed, there is nothing Gates can point to that reasonably
suggests that Caterpillar's actions were motivated
by anything other than business judgment. At the time
Caterpillar suspended Gates, her coworkers were complaining
about her, her supervisors believed she was
violating the company's electronics use policy and she
was failing to meet her work goals. She was issued clear
directions about what Caterpillar believed would be
proper conduct during the course of her suspension and
she seemingly chose to ignore them. In light of this,
Caterpillar's "adverse employment actions" seem motivated
by nothing other than good business judgment
and Gates provides no evidence to the contrary.

Because there is no causal connection we therefore
need not reach the issue of whether Gates actually engaged
in "protected activity". It is worth noting, however,
that Gates' arguments in this area are weak. "Although
an employee need not use the magic words ‘sex' or
‘gender discrimination' to bring her speech within Title
VII's retaliation protections, ‘she has to at least say
something to indicate her [gender] is an issue.' " Sitar v.
Indiana Dep't of Transp., 344 F.3d 720, 727 (7th Cir. 2003)
(Title VII requires plaintiff to complain that she was
discriminated "because of " gender, not merely that she felt
"picked on" (quoting Miller v. Am. Family Mut. Ins. Co.,
203 F.3d 997, 1007-08 (7th Cir. 2000))). Although "[a]n
employee can honestly believe she is the object of discrimination,
. . . if she never mentions it, a claim of
retaliation is not implicated, for an employer cannot
retaliate when it is unaware of any complaints." Miller,
203 F.3d at 1008.

In support of her argument, Gates points to a series
of protests she made between the summer of 2001 and
March 2002 during which she claims she made clear to
other Caterpillar employees that her disputes with the
company were related to gender discrimination. Specifically,
Gates maintains that: (1) in August 2001, Gates
complained to Richards that it was unfair that Kent
Heisel, a male in another work unit within the division,
whom she believed had job duties similar to hers, was
at a higher salary classification; (2) in mid-January
2002, during her evaluation, Gates told Richards that
she was frustrated by being kept in the department for
so long; that "you wouldn't expect a man to remain in
that type of job for so long"; that she should have gone to
an attorney in 2001 after she had unsuccessfully tried to
leave the unit and that she was not going to put up with
it any longer; (3) not long thereafter, Gates again approached
Richards about leaving the unit, telling him
that she wanted to move ahead in the company and she
felt she was subject to a "glass ceiling" because of his
unwillingness to support her promotion; (4) in February
2002, while discussing the "Team Leader" roles, Gates
told Richards that if she were an "engineer," she
would already have been in a higher pay classification;
(5) later that month, Gates reiterated to Richards that
she believed it unfair that she had a similar level of
responsibility to Heisel but remained in a lower salary
classification; and (6) following a meeting with Shane and
Richards in early March 2002, Gates sent Shane an email
stating that if things did not get better she would have
no choice but to "go to the next step (whatever that is)."
Gates certainly can establish a history and record of
informing her supervisors that she was unhappy in her
position; the question is whether these statements, even
taken as a whole and in the light most favorable to
Gates, could be deemed to have put Caterpillar on notice
that Gates was complaining of gender discrimination. Two
remarks in particular, the "glass ceiling" comment and
Gates' statement to Richards about how he would not
expect a man to have stayed in her job for so long, give
us some pause. The district court, however, concluded
that the first assertion could not defeat Caterpillar's
summary judgment motion, and we agree. In opposition
to Caterpillar's motion for summary judgment, Gates, for
the first time, states in an affidavit that she clearly
told Richards during her February 2002 evaluation that
he would not expect a man to have remained in that
position for that long.4 When previously questioned
about that meeting during her deposition, Gates said
that she "was kind of pouring out [to Richards] what had
happened" (R. 22, Ex. 9, 92:3-4) and yet never mentioned
this comment about gender inequality. Although the
affidavit statement does not necessarily conflict with
Gates' testimony from her previous deposition, the omission
of such a significant statement during her deposition
in a sex discrimination case speaks volumes. Her
explanation for not having mentioned this potentially
vital remark during her deposition is that Caterpillar's
lawyer "moved on to other areas" without asking her
"specifically" what she told Richards so she was therefore
"never asked to relate in detail that conversation". Ironically,
however, in her own brief just sentences before,
Gates enumerates for this Court several tidbits from that
conversation that she said she volunteered ("[w]ithout
being asked") during her deposition. In light of this, to
allow such evidence now would have the same effect as
would allowing directly conflicting testimony; that is, "the
very purpose of the summary judgment motion - to weed
out unfounded claims, specious denials, and sham
defenses - would be severely undercut." Babrock v. Jewel
Food Co., 773 F.2d 857 (7th Cir. 1985); Bank of Illinois v.
Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-69
(7th Cir. 1996). We agree with the district court that this
"new" assertion cannot defeat Caterpillar's summary
judgment motion.5

The "glass ceiling" comment is more troubling. Viewing
the comment in light of the circumstances as a whole,
however - that particular comment was a singular statement
in a sea of more generalized grievances about job
dissatisfaction made over a lengthy span of time - we
cannot conclude that it would have been clear to Gates'
employer that she was complaining about gender discrimination.
In any event, the lack of a causal connection,
as discussed infra, means that this Court need not rule
today on whether Gates' "glass ceiling" comment, alone or
in conjunction with Gates' other statements, so clearly
invokes gender so as to satisfy the "protected activity"
aspect of this inquiry.

Unable to make her case under the "direct" proof standard,
then, Gates is left with the "indirect" method to
attempt to withstand summary judgment against her
retaliation claim. This requires a showing that, after
opposing Caterpillar's alleged discrimination, Gates, and
not other similarly situated employees who did not complain,
was subjected to an adverse employment action
even though her job performance was satisfactory.
Mannie, 394 F.3d at 997.

Gates' inability convincingly to show that her job performance
was satisfactory proves to be an insurmountable
hurdle for her. The proper inquiry mandates looking
at Gates' job performance through the eyes of her supervisors
at the time of her suspension and termination.
E.g., Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329
(7th Cir. 2002) ("In most cases, when a district court
evaluates the question of whether an employee was
meeting an employer's legitimate employment expectations,
the issue is not the employee's past performance
but ‘whether the employee was performing well at the
time . . .' " (citations omitted)). As discussed infra, Gates
does not dispute that she consistently used the Company's
telephone and Internet system for personal use
during her employment with the Company and the record
clearly supports Richards' increasing displeasure with
Gates' job performance. This coupling requires us to
conclude that Gates does not adequately show satisfactory
job performance at the time of her suspension.

Additionally, in violation of explicit orders and implicit
common sense, Gates used Caterpillar's intranet system
to contact customers and other work-related colleagues
while she was on suspension, which Caterpillar could
quite legitimately claim was inconsistent with its legitimate
expectations. Because this Court does not - and will
not - sit as "super-personnel" to question the wisdom or
business judgment of employers, this inquiry ends
here, with Gates' inability to sustain her burden. See
Giannopolous v. Brach & Brock Confections, Inc., 109
F.3d 406, 410 (7th Cir. 1997) (it is not the province of
the court to decide whether the employer's reason was
wise, fair or correct, so long as it was really the reason).
B. Gates' Discrimination Claim
Gates also argues on appeal that her proffered evidence
supports a prima facie finding of discrimination sufficient
to withstand Caterpillar's summary judgment motion.
Under Title VII, employers may not discriminate "against
any individual with respect to [his] compensation, terms,
condition, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(1). Under the well-established
burden-shifting analysis outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), in
order to survive summary judgment Gates initially
would have to show: (1) she was a member of a protected
class; (2) she was meeting Caterpillar's legitimate job
expectations; (3) she was subjected to a materially
adverse employment action; and (4) others outside the
protected class were more favorably treated. Id., 411 U.S.
at 802. If Gates could establish such a prima facie showing,
Caterpillar would then have to articulate a legitimate,
nondiscriminatory explanation for the employment
action which Gates, finally, would have the opportunity
to prove to be pretextual. Luks, 467 F.3d at 1055; Ptasznik
v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006). The
court below found that Gates' discrimination claim
failed because she was unable to meet either the second
or fourth prongs of the McDonnell Douglas test. We agree.
We explain above that Gates was not meeting Caterpillar's
legitimate expectations at the time of her suspension
or her termination; she thus cannot satisfy the
second requirement of the prima facie test. In support of
her claim under the fourth prong of the test, Gates outlines
three historical situations in which, she maintains,
male Caterpillar employees misused the company's
electronic equipment at least as egregiously as she did
but were not similarly disciplined. They include: (1) a
management employee with an arguably offensive
screensaver who had visited various non-work-related
websites who was not terminated; (2) Thomas Cox, an
employee who was suspended without pay for three days
for inappropriate use of the Internet; and (3) another
unidentified TSD male employee who was issued a written
warning following complaints of inappropriate screensavers
and misuse of company time for Internet use.

We recognize that to satisfy her burden Gates need not
show that other employees are explicitly identical to
herself - indeed, that would be a nearly insurmountable
burden and this Court repeatedly has cautioned against
a hyper-technical approach to this prong. E.g., Humphries
v. CBOCS West, Inc., 474 F.3d 387, 404-05 (7th Cir. 2007);
Elkhatib v. Dunkin Donuts, Inc., 493 F.3d 827, 831 (7th
Cir. 2007). Gates must do more, however, than she has
done: she must at least show that these men " ‘dealt with
the same supervisor, were subject to the same standards,
and had engaged in similar conduct without such differentiating
or mitigating circumstances as would distinguish
their conduct or the employer's treatment of
them.' " Snipes v. Illinois Dept. of Corr., 291 F.3d 460, 463
(7th Cir. 2002) (quoting Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617-18 (7th Cir. 2000)). See also Grayson
v. O'Neill, 308 F.3d 808, 819 (7th Cir. 2002) (to meet his
burden the plaintiff must demonstrate that there is
someone directly comparable to him in all material
respects); Salas, 493 F.3d at 923 (factors to consider
include "whether the employees 1) had the same job
description, 2) were subject to the same standards, 3)
were subject to the same supervisor, and 4) had comparable
experience, education, and other qualifications."). Not
only is there no evidence that any of the three male
employees reported to Richards,6 but in addition, Gates'
"evidence" of the men's alleged improper conduct fails to
be functionally equivalent to Gates'. Significantly, in
none of these examples does Gates allege a combination
of improper Internet and telephone usage. Additionally,
the limited information Gates provides, void of statistics
or concrete data, is too vague to allow this Court to
determine whether Gates and the men are "similarly
situated." Finally, and critical to the inquiry of Gates'
termination, there is absolutely no evidence that any of
these men, while on suspension or being otherwise disciplined,
engaged in further inappropriate conduct of any
sort.7

Because this Court determines that Gates does not
provide the evidence sufficient to make her prima facie
case, the inquiry could properly end here. Paluck v.
Gooding Rubber Co., 221 F.3d 1003, 1011 (7th Cir. 2000).8

Taking the analysis to its logical conclusion, however, the
summary judgment ruling still would stand: Caterpillar
has set forth a legitimate, nondiscriminatory reason for
Gates' suspension and subsequent termination and Gates
has offered insufficient evidence of pretext. Whether or
not Caterpillar may have been hasty or otherwise unwise
in its discipline and subsequent termination of Gates is
not for this Court to determine: "it is not the court's
concern that that an employer may be wrong about its
employee's performance, or be too hard on its employee.
Rather, the only question is whether the employer's
proffered reason was pretextual, meaning that it was a
lie." Imeichen v. Ameritech, 410 F.3d 956, 961 (7th Cir.
2005); Ptasznik, 464 F.3d at 696 (pretext inquiry must
focus on whether the employer's stated reason is honest,
not well-reasoned, wise or accurate). There is nothing in
the record to support a finding that Caterpillar's stated
reasons for suspending and terminating Gates were
fabrications. Absent such evidence, summary judgment
is wholly appropriate. Giannopolous, 109 F.3d at 411.

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