Virginia Mourning v. Ternes Packaging, Indiana, Inc

Filing

Filed opinion of the court PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Diane S. Sykes, Circuit Judge. [6862740-1] [6862740] [16-1650]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1650
VIRGINIA E. MOURNING,
Plaintiff-Appellant,
v.
TERNES PACKAGING, INDIANA, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14-cv-00772-SEB-DML — Sarah Evans Barker, Judge.

____________________
SUBMITTED APRIL 26, 2017 — DECIDED AUGUST 18, 2017
____________________
Before WOOD, Chief Judge, and RIPPLE and SYKES, Circuit
Judges.
PER CURIAM. Virginia “Ginger” Mourning appeals the
grant of summary judgment for her former employer, Ternes
Packaging–Indiana, Inc., on her claims that Ternes fired her
because she is a woman, in violation of her rights
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2, and because she took medical leave that was
protected under the Family and Medical Leave Act, 29 U.S.C.

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§ 2615. Mourning challenges the district court’s
determinations that she failed to submit evidence establishing
a prima facie case for either claim or showing that Ternes’s
reasons for her discharge were pretextual. We agree with the
district court’s conclusions and affirm the judgment.
Mourning worked for Ternes Packaging–Indiana, Inc.,
from 1997 until the company fired her in 2013. Ternes is
wholly-owned by Howard Ternes Packaging Company
(“Howard Ternes”); both firms provide “supply chain management solutions” to customers. Ternes has only one client―Allison Transmission, Inc.―for which it provides “bundled services,” including “clerical support … [,] material control, administrative services for orders, secretarial, shipping,
and traffic [support].” At all times relevant to Mourning’s
case, Ternes was run by a general manager, Eric Frey, who
reported to Howard Ternes’s director of sales, Carrie Brown.
Since 1999, Mourning managed the “Order Administration”
division. In that role she oversaw 10 employees. Mourning reported directly to Frey throughout her tenure.
In February 2013, Frey granted Mourning’s request for
leave under the Family Medical Leave Act to treat her
encephalopathy (a treatable brain disease that, she contends,
resulted from various medications she took). Mourning
returned to work less than two months later. But on March 20,
2013, while Mourning was still on medical leave, eight of her
ten subordinates jointly submitted to Frey an “internal
complaint” against her. The employees complained that
Mourning intimidated and publicly humiliated them, acted
unpredictably, and generally micro-managed her team. One
of the order administrators filed two additional internal

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complaints related to episodes in which she felt publicly
humiliated by Mourning.
Before the March 20 submission, Mourning had never
been the subject of a written complaint, nor had she ever been
disciplined. In each of her annual evaluations, aside from the
first after her promotion to manager in 1999, Frey had rated
Mourning’s performance as above “exceptional,” even as recently as her last evaluation in May 2012.
Upon her return from medical leave, Frey showed
Mourning her subordinates’ complaint, and Mourning
responded with a written rebuttal and her own internal
complaint against the staff. She carbon-copied Howard
Ternes’s vice president of finance, thereby alerting the parent
company to her subordinates’ complaint against her. Around
that same time, Brown (Frey’s supervisor, from Howard
Ternes) visited Ternes for a “routine visit,” during which Frey
brought up the subordinates’ complaint and told Brown that
“the department didn’t want [Mourning] to come back.”
Brown then met with a director at Allison Transmission who
worked directly with Mourning, and this director told her
that Mourning’s “performance was not up to his standards,”
particularly because Mourning was not using “some data
systems”―a concern that he had previously discussed with
Frey.
These developments prompted Howard Ternes to initiate
an investigation into Mourning’s performance. It ultimately
concluded that she had exhibited “unprofessional conduct toward direct reports” and had “fail[ed] to satisfy customer expectations.” Both Brown and Michael Dergis, Howard
Ternes’s chief operating officer, reviewed information about
Mourning’s performance; this feedback had come from past

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and present order administrators, Frey, and Allison Transmission.
In early April, Dergis and Brown fired Frey and then
Mourning. Frey was fired “for his failure to timely inform
Ternes Headquarters of the March 20 employee complaint
against Mourning and failure to hold Mourning accountable
for her unprofessional conduct and poor performance.”
Mourning was fired based on Dergis’s and Brown’s conclusion that “Mourning’s performance had resulted in neither
her order administrators nor her customers wanting to work
with her. …” Ternes promoted another female order administrator to take over Mourning’s position. The next month
Mourning sued Ternes for discriminating against her based
on her sex in violation of Title VII and for retaliating against
her for taking medical leave in violation of the FMLA. Extensive discovery ensued.
The district court ultimately granted summary judgment
on Mourning’s Title VII and FMLA claims. Regarding her
Title VII claim, the court concluded that she had failed to
point to any direct evidence of sex discrimination and that she
had not established a claim under the “indirect” method, see
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because
she did not produce evidence from which it could be inferred
that (1) she was meeting Ternes’s legitimate expectations,
(2) she was similarly situated to a more favorably treated
employee, or (3) Ternes’s reason for firing her was pretextual.
As for her FMLA claim, the court concluded that she could
not establish a prima facie case of retaliation because she did
not present evidence that would allow a finder of fact to
conclude that she was meeting Ternes’s legitimate

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expectations at the time she was fired, nor did she identify a
similarly situated employee who did not request FMLA leave.
Six months after the district court entered its judgment, we
issued our opinion in Ortiz v. Werner Enter., Inc., 834 F.3d 760,
765 (7th Cir. 2016), explaining that in employment discrimination cases, district courts must “stop separating ‘direct’
from ‘indirect’ evidence and proceeding as if they were subject to different legal standards.” We clarified that the ultimate question in an employment discrimination case is
“whether the evidence would permit a reasonable factfinder
to conclude that the plaintiff’s race, ethnicity, sex, religion, or
other proscribed factor caused the discharge or other adverse
employment action.” Id. at 765; see also Williams v. Office of the
Chief Judge of Cook Cnty. Ill., 839 F.3d 617, 626 (7th Cir. 2016);
Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 899–900 (7th Cir.
2016), cert. denied, 137 S. Ct. 1614 (2017). Our decision in Ortiz
did not disturb the burden-shifting framework, however, see
834 F.3d at 766, and so to the extent Mourning wants to take
advantage of it, she retains the initial burden of establishing a
prima facie case of discrimination, see McDonnell Douglas
Corp., 411 U.S. at 802–03.
Mourning has not carried that burden for her Title VII
claim, as she has not presented evidence that would permit a
reasonable factfinder to conclude that she was fired because
of her sex. We note that although Mourning’s appellate brief
tracks the McDonnell-Douglas framework, it does not focus on
trying to show that Dergis and Brown acted against her because she is a woman. She appears to rest her sex discrimination claim on a comparison to Walter Fish, the former materials manager at Ternes. Fish, she argues, worked in a similar
managerial position, acted more egregiously than she did, yet

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was given additional chances to improve his performance,
and later was allowed to resign instead of being fired. For Fish
to be an adequate comparator, however, Mourning would
need to show that he was treated more favorably than she was
by the same decisionmaker, i.e., Howard Ternes. See Zayas v.
Rockford Mem'l Hosp., 740 F.3d 1154, 1158 (7th Cir. 2014). But
Mourning does not mention whether the complaints raised by
subordinates against Fish were ever brought to the attention
of Howard Ternes, and the current materials manager testified that she did not think so.
Mourning’s inability to establish a prima facie case of sex
discrimination dooms her claim, but we add that her arguments about pretext are also unconvincing. Mourning contends that the reason for her discharge must have been pretextual because the accusations in her subordinates’ internal
complaint and the assessment of her work provided by Allison Transmission were, in her view, false. But Mourning’s focus on the veracity of the complaints by her subordinates and
Allison Transmission is misplaced. To show pretext, Mourning must establish both that a phony reason (not just an unfounded one) was given for her discharge, Hill v. Tangherlini,
724 F.3d 965, 968 (7th Cir. 2013); Ineichen v. Ameritech, 410 F.3d
956, 961 (7th Cir. 2005), and that the phony reason was given
by an actual decisionmaker, see Hnin v. TOA (USA), LLC,
751 F.3d 499, 506 (7th Cir. 2014); Hill, 724 F.3d at 968―here,
Howard Ternes as represented by Dergis and Brown. (This
raises another problem with her case: she may not have sued
the proper defendant. The only defendant she named was
Ternes but it was Howard Ternes, the parent corporation, that
fired her. Given our other conclusions, we need not pursue
this wrinkle further.) Mourning does not contend that Dergis
and Brown knew that the allegations against her were false,

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nor does she point to evidence from which it can be inferred
that they fired her because she is a woman.
Regarding Mourning’s FMLA claim, we ask, following
Ortiz, whether the record contains sufficient evidence to permit a reasonable factfinder to conclude that Howard Ternes
fired her in retaliation for taking FMLA leave. See Lord v. High
Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016) (clarifying the standard for a retaliation claim under Title VII, postOrtiz), cert. denied, 137 S. Ct. 1115 (2017); Ortiz, 834 F.3d at 765.
She has not directed us to any evidence in the record that
would permit a factfinder to decide in her favor. Mourning
could not identify anyone in the office who she believed had
an issue with her taking leave or with her medical condition,
and she offers no evidence that Howard Ternes retaliated
against her based on her medical leave.
AFFIRMED.