Jamie Owens v. Old Wisconsin Sausage Company

Filing

Filed opinion of the court by Judge Rovner. AFFIRMED. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6865843-1] [6865843] [16-3875]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-3875
JAMIE OWENS,
Plaintiff-Appellant,
v.
OLD WISCONSIN SAUSAGE COMPANY,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:15-cv-00424-WCG — William C. Griesbach, Chief Judge.

SUBMITTED MAY 30, 2017 — DECIDED AUGUST 31, 2017

Before WOOD, Chief Judge, and RIPPLE and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Jamie Owens worked as an employee of Old Wisconsin Sausage Company (Old Wisconsin)
from June 2011 until her termination in April 2012. She filed
suit against Old Wisconsin alleging employment discrimina-

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tion in that termination, including discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., as well as a claim of retaliation under the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3). The
district court granted summary judgment in favor of Old
Wisconsin on all claims, and Owens now appeals that judgment to this court.
Owens was hired as the manager of the Human Resources
(“HR”) Department, and was one of eight department managers at Old Wisconsin. She previously had worked as HR
Manager at Lakeside Foods. Owens was the only female
manager at Old Wisconsin, and reported to Karen Noble, the
Vice President of HR at the corporate level, and Steve Harrison, the Vice President and General Manager. Owens was
hired as a replacement for a male HR manager, Jeff Thiel.
During her training, Thiel told Owens that during his employment at Old Wisconsin there tended to be a “boys club” which
Owens understood to refer to some managers doing things
their own way and excluding Thiel and the HR department
from the decision-making process. Thiel also indicated that Old
Wisconsin had hired Owens because she was female and that
Noble believed that bringing in a female would help to evolve
the culture of the company. The managers at Old Wisconsin
were classified as either “Manager I” with a bonus potential of
15%, or “Manager II” with a 10% bonus potential. During her
10-month stint at Old Wisconsin, Owens was classified as a
Manager II and her salary was the second lowest of the
managers there.
While Owens was the HR manager, Matt Kobussen applied
for an open position as a retail store supervisor at Old Wiscon-

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sin. He had similarly applied for a position and had been hired
at Lakeside Foods when Owens was the human resources
manager there. Owens was involved in the interview process
at Old Wisconsin but did not disclose that she and Kobussen
were in the midst of a six-year relationship. Although Owens
denied in the district court that she was living with Kobussen
at the time he was interviewed and hired in 2011, the district
court noted that Owens had testified under oath in a separate
court proceeding in 2014 that she had lived with Kobussen
from 2010 until “almost 2012" and had raised his son for five
years. In a small claims court complaint which she stated under
oath was true, she referred to her relationship with Kobussen
as a 6-year relationship. The court determined that those
statements should be taken as true under the doctrine of
judicial estoppel, holding that Owens cannot attempt to prevail
in those cases by arguing that she was in a relationship with
Kobussen during that time period, and now seek relief in this
case by arguing that she was not. Owens raises no legal attack
on appeal to that judicial estoppel determination, and accordingly we will assume for this appeal that she was in fact in a
long-term relationship with Kobussen at the time that he
applied for a position at Old Wisconsin.
Owens discussed with Kobussen who would be his
supervisor and other details of the position before he applied,
and along with another manager Owens conducted Kobussen’s
first interview. She was not present for his second interview,
but in conjunction with two other managers she participated in
the decision to hire him. In September and early October of
2011, Owens was assigned supervisory responsibility for the
retail store, which placed Kobussen directly under her supervi-

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sion. She did not reveal to her employer her relationship with
Kobussen at any time.
Tammy DeZwarte, a friend of Owens since high school who
was in Owens’ wedding, followed a similar path to Old
Wisconsin as Kobussen. She was hired at Lakeside Foods when
Owens was HR manager there, and hired at Old Wisconsin
during Owens’ tenure as HR manager at that company. Some
employees complained of preferential treatment by Owens
regarding DeZwarte, and when Owens was questioned as to
that relationship, she described DeZwarte as an acquaintance.
In November 2011, three different employees complained
to Chuck Pfrang, the plant manager, that Owens and Kobussen
were in a relationship and that there was a conflict of interest
because Owens was involved in hiring Kobussen and was now
his supervisor. Old Wisconsin had no policy prohibiting interemployee dating, but had an informal policy to question
supervisors in relationships with subordinates in order to
avoid conflicts of interest. The policy was applied to both
female and male supervisors in such relationships. Pursuant to
that informal policy, once management was informed of a
relationship between a supervisor and a subordinate, they
would discuss the matter with the supervisor to learn the
details of the relationship, and would take appropriate steps
such as apprising the supervisor of problems which the
relationship could cause in the workplace or altering the
supervisory relationship where appropriate. Following those
complaints by the employees, both Kobussen and Owens were
asked whether they were in a relationship. Owens met with
Harrison and Pfrang on November 28, 2011 to discuss the
relationship rumors, and they informed Owens of the concerns

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raised by the three employees. At that meeting, Owens
adamantly denied that she was in a relationship with
Kobussen. When further questioned as to whether she had
ever been in a prior relationship with Kobussen, Owens stated,
“I’m not answering this, this is borderline sexual harassment.”
At that point, Harrison chose to embark upon a performance
review of sorts, although the promised formal performance
reviews had not been provided previously. He stated that her
performance had been a “C” at best, characterizing her
performance as mediocre and as failing to fulfill the promise of
the skill set identified on her resume and in her interview.
On approximately December 19, 2011, Harrison informed
Owens that several employees had expressed concern about
Kobussen’s work performance and Owens’ objectivity in
addressing those performance problems, including that he
showed poor leadership, did not work Saturdays, did not stock
shelves, had personal hygiene issues, took numerous cigarette
breaks during the day, came in late, and took an unpaid
vacation day on a very busy store day. At that meeting, Owens
again denied knowing Kobussen outside work.
Kobussen was also questioned by Pfrang regarding his
relationship with Owens but he deflected the question,
responding that he did not question Pfrang about Pfrang’s
spousal relationship. Although Kobussen remained employed
with Old Wisconsin, Owens was terminated. The basis of the
termination is the subject of dispute. During a quarterly
meeting on February 9, 2012, Noble, Harrison and Pfrang
initially determined that Owens was not a proper fit for the
human resources position, and noted several problems
observed by management with her professionalism and her

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ability to perform the duties of the position. The next day,
Safety Manager David Streeter emailed Noble detailing his
concerns with her abilities in Owens’ position, noting her lack
of the necessary knowledge of HR and of safety issues to
adequately do her job, and her “rough” personality that made
employees hesitant to approach her with issues. Harrison
decided to terminate Owens, but upon learning that Owens’
daughter was sick, postponed that decision and ultimately
terminated her on April 13, 2012. The person hired to replace
Owens was also female.
After the decision to terminate Owens, Old Wisconsin
produced a memo that indicates its reasons for terminating
Owens’ employment, including that: false or misleading
statements were made related to hiring practices and friendships that may have influenced hiring decisions; management
was approached by employees with concerns with Owens’
integrity and a lack of trust in HR actions; Owens often made
statements of “fact” based on inadequate information, leading
to additional investigation which changed the basis for the
decision; Owens did not support many company policies and
had commented on such to other employees; Owens had
problems setting correct priorities and often created a crisis
situation when calm reflection was required; and Owens had
not developed interactive relationships with employees and
was not approachable. Owens, however, argues that the memo
with its reasons was never supplied to her at the time of her
termination, and that the reason she was terminated was that
she refused to answer questions about any relationship she had
with Kobussen.

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Owens alleges that her termination constituted unlawful
discrimination and retaliation in violation of Title VII, and that
it constituted improper retaliation under the FLSA. Owens
points to a litany of additional actions by employees at Old
Wisconsin as support for her Title VII and FLSA claims.
In both July and October 2011, Owens informed Harrison
that she believed Old Wisconsin was in violation of the FLSA
in failing to properly pay overtime rates to some employees.
Owens asserted that Harrison became angry in the October
meeting when she again raised the issue. According to Owens,
Thiel had also identified the FLSA problem, but Old Wisconsin
failed to correct it when he raised it as well.
Owens sets forth a plethora of other actions which she
claims constitute discriminatory treatment. The problem is that
for most of those actions, there is nothing inherent in them that
would allow an inference that they were related to her sex, and
no evidence that other similarly-situated employees were
treated differently or other reason to indicate they indicate sex
discrimination. For instance, she complains that Pfrang
suggested to her that she should lead the Weight Watchers
program at work, which she interpreted as a reference to her
weight and sex. But as the district court noted, her position as
Human Resources Manager presumably would make her an
appropriate person to turn to for an employee wellness
program. Even absent that connection, however, the suggestion could be construed as a comment as to her weight (although that would be more likely if she were told to join rather
than to lead such a program), but it would be speculation to
conclude that the comment was a disparaging comment related
to her sex. Similarly, she complains that after a meeting at

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work, Pfrang commented to her that a co-worker was dressed
inappropriately, stating that his wife would have a real
problem if she saw that much cleavage. Although that comment related to the attire of a female employee, there is no
reason to consider that comment discriminatory or harassing.
In fact, Owens responded by asking Pfrang if he would like her
to address it but he declined that offer, thus recognizing that
such issues fall within the purview of her role as human
resources manager.
Owens additionally alleges other conduct of even more
marginal relevance. For instance, she claims that she observed
a male employee provide flowers to a female supervisor on her
last day of work, and was told “don’t worry, you’re next, he’ll
butter you up because females are the ones he likes.” She
included no allegations that she ever received any flowers or
unwanted solicitations from that male employee, or had any
questionable contact with him at all. Owens also complains
that after interviewing a man for warehouse manager, one of
the male interviewers stated that he would question the man’s
character because the man was divorced, to which Owens
replied that she was divorced and he then stated, “well, you’re
a woman.”
Owens next complains that Pfrang commented in early
2012 that she was not dressed formally enough for an HR
position, which she considers discriminatory because the male
managers dressed casually. Owens does not identify those
managers in the briefs nor their positions, and therefore we
have no way to determine whether the allegedly differing
dress code was related to the differing functions of, for
instance, a warehouse manager as opposed to a human

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resources manager. Owens also has not compared her alleged
dress code with that of the prior, male, human resources
manager.
Finally, Owens also raised with a manager at Old Wisconsin her concerns with the implementation of the bonus system,
which included bonuses given for specific examples of good
work known informally as the “atta boy” bonus. Owens was
troubled when a female employee failed to receive a bonus
although she was more deserving of it than some male
employees who received it. After Owens raised her concerns,
that female employee was awarded the bonus.
As our court made clear in Ortiz v. Werner Enter., Inc., 834
F.3d 760, 765 (7th Cir. 2016), the correct standard on summary
judgment in this employment discrimination case is simply
whether the evidence would permit a reasonable factfinder to
conclude that Owens’ sex caused the termination, which is the
adverse employment action asserted here. See also Nicholson v.
City of Peoria, Ill., 860 F.3d 520, 523 (7th Cir. 2017); David v. Bd.
of Trustees of Comty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th
Cir. 2017); Cole v. Bd. of Trustees of Northern Ill. Univ., 838 F.3d
888, 899 (7th Cir. 2016). We have clarified that courts should
not distinguish between “direct” and “indirect” evidence and
apply distinct legal standards to such evidence. Id. Instead, we
noted that “[e]vidence is evidence. Relevant evidence must be
considered and irrelevant evidence disregarded, but no
evidence should be treated differently from other evidence
because it can be labeled ‘direct’ or ‘indirect.’” Ortiz, 834 F.3d
at 765; Nicholson, 860 F.3d at 523. In determining whether the
evidence would permit a reasonable factfinder to conclude that

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Owens’ sex caused her termination, the burden-shifting
framework of McDonnell Douglas remains relevant as a “means
of organizing, presenting, and assessing circumstantial
evidence in frequently recurring factual patterns found in
discrimination cases.” David, 846 F.3d at 224; Ferrill v. Oak
Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 500 (7th Cir. 2017).
The district court recognized our guidance in Ortiz, and
appropriately applied the correct standard.
As was set forth above, Owens points to myriad actions by
the employer that she believes represent discriminatory
treatment of her as a woman, including stating that she was
told to dress more professionally, that bonuses were given to
men and not women, that they suggested that she lead the
Weight Watchers group, and that they asked her whether a
female employee was dressed inappropriately because the
employee was revealing cleavage. Many of those allegations
are unrelated to the adverse action she alleges here, which is
her termination. Although such evidence is arguably relevant
in determining that the employer treated women differently
than men and therefore might have treated her differently in
the termination decision as well, many of the allegations she
sets forth do not allow a reasonable inference of such differing
treatment.
Owens’ sex discrimination claim, however, rests on her
contention that her refusal to respond to “discriminatory
questions” about any relationship she had with Mr. Kobussen
led to her termination. Owens has failed to present evidence
that would allow a reasonable factfinder to conclude that those
questions and her subsequent termination were because of her
sex. Although alleging that she received different treatment

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than male supervisors, Owens presents no evidence of a male
supervisor who was in an undisclosed relationship with a
subordinate and was not questioned as to that relationship. In
her deposition, she identified three supervisors or managers in
relationships with other employees, but by her own description
those situations are not comparable to hers. For the first
person, she acknowledges that management was aware of the
relationship. The second person was never the supervisor of
the woman he was dating, and in fact they worked in different
facilities, and Owens was unaware as to whether he had been
involved in her hiring, nor did Owens know whether they ever
attempted to hide that they were dating. Finally, according to
Owens’ deposition, the third supervisor she identified tried to
hide the relationship and he was questioned about it by his
supervisor Steve Wakefield, who was the First Shift Production
Manager. Old Wisconsin presented evidence that at least two
supervisors, both of whom were male, were questioned about
their relationships when dating subordinates. Thus according
to Owens’ own deposition and the unrebutted evidence by Old
Wisconsin, male supervisors in relationships with subordinates
were questioned regarding those relationships. Therefore,
rather than demonstrating that similarly-situated individuals
were treated differently, the evidence indicated they were
treated similarly. Owens points out that the person with whom
she had been in a relationship, Kobussen, was questioned and
did not answer, but his situation is not comparable. First, he
deflected the question rather than outright refusing to answer.
But much more importantly, he was the subordinate not the
supervisor. Owens was the HR manager who ended up in a
supervisory role over Kobussen, and therefore she was the one

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in a position to give preferential treatment (and in fact, the
inquiry began because of reports of a conflict of interest on her
part by other employees). In addition, Owens was one of the
two people who actually made the hiring decision, and despite
the clear potential for a conflict of interest, did not disclose that
she had a significant personal relationship with Kobussen at
the time the hiring decision was made. Owens presented no
evidence that Old Wisconsin had failed to question male
managers when faced with evidence of similar conflicts. Nor
are the questions themselves discriminatory. In fact, the
questions address an issue of legitimate interest to an employer. The potential for a personal relationship between a
supervisor and a supervisee, or a hiring manager and an
interviewee, is apparent. Employers frequently address such
potential conflicts by requiring recusal from hiring decisions or
at least acknowledging the potential bias in that person’s
recommendation, or by transferring employees so as to not fall
under the supervision of their partner. Owens has presented
no basis to believe that she was questioned about the relationship because she was a woman. Accordingly, the district court
properly granted summary judgment on this claim because
Owens has failed to produce sufficient evidence to allow a
reasonable factfinder to conclude that her sex caused her
termination.
Her retaliation claim is similarly fated. Owens argues that
Old Wisconsin terminated her for asserting a claim of sexual
harassment under Title VII. The basis for her claim is that when
she was questioned as to her relationship with Kobussen, she
refused to answer and responded that she believed the
questions to be “borderline sexual harassment.” A retaliation

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claim arises under Title VII when an employee engages in an
activity protected under that statute and, as a result, suffers an
adverse employment action. Ferrill, 860 F.3d at 501. A protected activity can include some step in opposition to a form of
discrimination protected under the statute, and the employee
needs only a good-faith and reasonable belief that the conduct
she is opposing is unlawful. Id. Here, Owens has not presented
sufficient evidence of a good-faith and reasonable belief that
the questioning was unlawful sexual harassment. Owens’ own
deposition testimony indicates that she was aware of a number
of male supervisors in relationships with subordinates, but that
in the only situation in which the relationship was not already
known to management, the supervisor was questioned by
management as to that relationship once an inkling of the
relationship arose. Moreover, such relationships pose a conflict
of interest with a potential for an adverse impact on the
workplace. Owens acknowledges that several employees
complained of such a conflict of interest in her relationship
with Kobussen. In light of such complaints and the practice of
Old Wisconsin with the other supervisors identified by Owens,
there is no evidence that her belief that the questioning was
sexual harassment had a good-faith basis, and even if it did, it
was not a reasonable belief. Accordingly, she has failed to
allege evidence of retaliation under Title VII, and the district
court properly granted summary judgment on that claim as
well.
Finally, Owens also contends that the termination in this
case violated the FLSA, asserting that she was terminated
because she reported potential FLSA violations to Old Wisconsin. In order to survive summary judgment, Owens must

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produce evidence of a causal link between the protected
expression and her termination. Kasten v. St. Gobain Performance
Plastics Corp., 703 F.3d 966, 972 (7th Cir. 2012). There are facts
in the record indicating that the FLSA complaint was not a
cause of the termination, in that Owens asserted that she made
the same complaint as that made by Thiel, who was not fired
for the complaint, and that she made it on multiple occasions
– July and October 2011 – temporally unconnected to the
termination. In fact, according to Owens, she received a bonus
based on her work performance in November 2011, after those
FLSA reports were made to her employer.
The only arguable evidence that the FLSA reports played
a role in the termination is in the employer’s termination
memo. That memo from her employer reciting the basis for the
termination includes allegations that Owens failed to support
company policies and commented on such to other employees,
that she frequently commented about employee issues before
all facts were known, and that she often made statements of
fact with inadequate information leading to additional work to
confirm actual facts. Owens argues that those grounds encompass her claims to Old Wisconsin of FLSA violations, but does
not dispute Old Wisconsin’s contention that she failed to offer
solutions to those FLSA problems that she identified. Moreover, those statements in the memo relate to the manner in
which she communicated and analyzed issues, and her
professionalism with management and other employees, which
are distinct from any FLSA reports to her employer. But
regardless of that evidence, the deeper and insurmountable
problem is that Owens repeatedly and consistently, in this
court and in the district court, argued that the reason for her

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termination was her failure to answer the questions posed to
her regarding her relationship with Kobussen. In fact, she
argues that the memo provided by her employer with the
reasons for her termination was an after-the-fact attempt at
obfuscation of the actual reason, which was the questioning
about her relationship. Accordingly, under her own argument,
there was no causal link between her FLSA allegations and her
termination, and the district court properly granted summary
judgment.
The decision of the district court is AFFIRMED.