Rosemary Madlock v. WEC Energy Group, Inc.
Filing
Filed opinion of the court by Judge Manion. AFFIMRED. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6910621-1] [6910621] [17-1278]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1278
ROSEMARY MADLOCK,
Plaintiff‐Appellant,
v.
WEC ENERGY GROUP, INC.,
d/b/a WE ENERGIES,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16‐cv‐00332‐JPS — J.P. Stadtmueller, Judge.
____________________
ARGUED NOVEMBER 1, 2017 — DECIDED MARCH 14, 2018
____________________
Before MANION, KANNE, AND ROVNER, Circuit Judges.
MANION, Circuit Judge. Rosemary Madlock has worked
for Wisconsin Electric Power Company (“WEPCO”)1 for ap‐
1 The caption of the case identifies the defendant‐appellee as “WEC
Energy Group, Inc. d/b/a We Energies.” However, according to the dis‐
closure statement in its brief, the defendant‐appellee is properly identi‐
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proximately forty years. In 2016, she brought this § 1981 suit
against WEPCO after she was transferred from one section
of WEPCO’s billing division to another, a move she claims
was the result of racial discrimination. She also claims
WEPCO retaliated against her by disciplining her after she
filed an internal discrimination complaint against her former
supervisor.
The district court granted summary judgment to
WEPCO, and Madlock now appeals. Because there is no
genuine dispute about any material fact and WEPCO is enti‐
tled to judgment as a matter of law, we affirm the judgment
of the district court.
I.
This is an appeal from the grant of summary judgment,
so we “view the evidence in the light most favorable to the
nonmoving party,” Foskett v. Great Wolf Resorts, Inc., 518 F.3d
518, 522 (7th Cir. 2008), and “draw all reasonable inferences
from the evidence” in her favor, Cont’l Cas. Co. v. Nw. Nat’l
Ins. Co., 427 F.3d 1038, 1041 (7th Cir. 2005) (quoting Franklin
v. City of Evanston, 384 F.3d 838, 843 (7th Cir. 2004)).
Madlock, who describes herself as a “confident and
knowledgeable African American woman,” has worked at
WEPCO since 1977. In the mid‐1990s, Madlock began work‐
ing in the “Meter to Bill” division of WEPCO, which was re‐
sponsible for handling WEPCO’s billing. Meter to Bill was
split into two sections: Industrial Billing, which served
WEPCO’s large commercial customers, and Volume Billing,
fied as “WEPCO.” WEC Energy Group, Inc., is WEPCO’s parent corpora‐
tion.
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which served smaller commercial and residential customers.
At the time of the events involved in this action, Madlock
was working as a Lead Customer Service Specialist in the
Industrial Billing section. As a “Lead,” Madlock was not in
management, but she was expected to be a point person for
her team of “billers.”
In 2011, WEPCO assigned a new management team to
Meter to Bill, and Renee Rabiego‐Tiller assumed the position
of Manager. This new management team came in with a
mandate to perform a comprehensive review of Meter to Bill
to reduce rebills. As part of this focus, management institut‐
ed various metrics to measure performance.
Jean Frelka, the Director of Meter to Bill, hired Cathy
Wrycza, a white woman, to be a “Team Leader” in the In‐
dustrial Billing section, meaning that Wrycza became Mad‐
lock’s direct supervisor. From very early on, Wrycza and
Madlock butted heads. Wrycza, who had come from
WEPCO’s Call Center, was unfamiliar with certain aspects of
her new post. Due to her lack of experience, Wrycza would
approach Madlock with questions, but these sessions would
not go well, and Wrycza would storm away. At some point,
Wrycza admitted to Madlock that she had problems dealing
with Madlock’s stature, which Madlock took as a reference
to her height and her demeanor in conversation.
Even before the new management team arrived in Meter
to Bill, Madlock’s conduct, such as personal phone use, had
drawn the attention of management, and under Wrycza and
the rest of the new management team, Madlock’s conduct
came under even greater scrutiny. In December 2011,
Wrycza learned of a billing error Madlock had made the
preceding June. In February 2012, Wrycza gave Madlock an
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official written “coaching,”2 which constituted the first step
on WEPCO’s graduated discipline system, for that error.
Madlock filed a grievance against that discipline, but Tiller
ultimately denied the grievance, noting Madlock had com‐
mitted another error on a different account. In May 2012,
Wrycza issued Madlock a “Record of Disciplinary Action,”
the second step in the discipline system, because Madlock
had approved a bill that overbilled a customer by $58,900. In
August 2012, Frelka rescinded the February discipline, con‐
cluding that Madlock had not received the requisite training
at the time she committed the error. This downgraded the
discipline for the $58,900 overbill to a first‐step official
coaching. In November 2012, Frelka instructed Wrycza to
discipline Madlock for inappropriate behavior and the use of
unprofessional language due to an incident with two co‐
workers. Madlock filed a grievance against that discipline,
which Wrycza denied.
By February 2013, the conflict between Wrycza and Mad‐
lock was apparently coming to a head. The two met with
Tiller, who told them to communicate. A month later, Tiller
decided to transfer Madlock out of Industrial Billing into
Volume Billing. Tiller cited Madlock’s billing errors as the
reason for the move. Because Volume Billing handled small‐
er accounts, the magnitude of any future errors would be
mitigated.
2 From the record, it appears the term “coaching” is used in two dif‐
ferent ways at WEPCO. A “coaching” can be an official disciplinary ac‐
tion, otherwise referred to as a “written counseling,” or it can be an in‐
formal instruction given to a wayward employee. To differentiate be‐
tween these two uses, this opinion will refer to the former as “official
coachings” and the latter as “unofficial coachings.”
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As a result of the transfer, Madlock was moved to a cubi‐
cle in the center of the room between two managers, and her
team from Industrial Billing was told to no longer go to her
for help. Though WEPCO did not initially give her a new
team in Volume Billing, this was due to Madlock’s unfamili‐
arity with Volume Billing’s processes. The transfer did not
affect Madlock’s title or salary, but one co‐worker described
the transfer as a demotion and another referred to it as a to‐
tal humiliation. Tiller herself wondered whether the move
humiliated Madlock.
In Volume Billing, Madlock’s new supervisor was
Shemieka Phillips, a black woman. At some point (Phillips
cannot remember when), Wrycza discussed her insecurities
about Madlock with Phillips, and Wrycza expressed her
view that Madlock was a “strong black woman.” Wrycza
had also used this phrase in 2008 or 2009 in a conversation
with a union steward at a dinner, asking her how she dealt
with “strong black women.”
On April 12, 2013, after prompting by Phillips, Madlock
filed an internal discrimination complaint against Wrycza,
alleging Wrycza discriminated against her on the bases of
age and race. Reacting to the complaint, WEPCO’s investiga‐
tor interviewed several people, including Phillips and
Wrycza. Wrycza learned of the complaint on May 14, 2013,
the day of her interview.
On April 4, 2013, before Madlock filed her complaint, a
company trainer reported to Tiller that Madlock had made a
billing error in August 2012 that resulted in a $10,000 credit
back to the customer. On May 16, 2013—two days after
Wrycza learned of the complaint—Phillips, after consulta‐
tion with Tiller, issued Madlock a Record of Disciplinary Ac‐
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tion for that error. On May 30, 2013, Madlock filed a griev‐
ance challenging the discipline.
In response to the grievance, Phillips set out, with
Wrycza’s assistance, to compile a list of Madlock’s prior un‐
official coachings and disciplines. The resulting list, com‐
posed by reference to Madlock’s personnel file, contained a
notation for every time a supervisor had discussed an issue
with Madlock, whether it was an official disciplinary action
or not. On June 6, 2013, Phillips denied Madlock’s grievance.
On November 21, 2013, the Vice President of Customer Ser‐
vice also denied the grievance, expressing shock at the num‐
ber of errors Madlock had committed.
In December 2013, a Claims Analyst position opened at
WEPCO, and Madlock applied. This position would have
been a “promotion” for Madlock. On January 24, 2014, Mad‐
lock was notified that WEPCO was not offering her the posi‐
tion due to her work record. Madlock filed a grievance on
this non‐selection, which was denied.
Madlock then filed the instant § 1981 suit, alleging that
WEPCO discriminated against her due to her race and retal‐
iated against her for filing the internal discrimination com‐
plaint. WEPCO moved for summary judgment. The district
court granted summary judgment to WEPCO. Madlock ap‐
pealed.
II.
Our review of the grant of a motion for summary judg‐
ment is de novo, and we may affirm such a grant “for any
reason supported by the record.” Boss v. Castro, 816 F.3d 910,
916 (7th Cir. 2016). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any ma‐
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terial fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). Considering that summary
judgment may only be denied when there is a “genuine dis‐
pute” as to a “material fact,” we are not tasked with deter‐
mining whether there is any evidence in the record to sup‐
port the non‐movant, but rather “whether reasonable jurors
could find by a preponderance of the evidence that the [non‐
movant] is entitled to a verdict.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); see also Lynch v. Belden and Co.,
Inc., 882 F.2d 262, 269 (7th Cir. 1989) (stating that the plaintiff
in a discrimination suit bears the burden of proof by the
preponderance of the evidence). In this case, Madlock makes
claims of racial discrimination and retaliation. We address
each in turn.
A. Racial Discrimination
We recently cleaned out “the rat’s nest of surplus tests”
that plagued our case law on the subject of race discrimina‐
tion. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 766 (7th Cir.
2016) (internal quotation marks omitted). In their place, we
now employ the following straightforward inquiry:
“[W]hether the evidence would permit a reasonable fact‐
finder to conclude that the plaintiff’s race, ethnicity, sex, re‐
ligion, or other proscribed factor caused the discharge or
other adverse employment action.” Id. at 765. This test pre‐
supposes the existence of an adverse employment action, so
the threshold issue we must resolve is whether such an ac‐
tion has even occurred.
An adverse employment action is “some quantitative or
qualitative change in the terms or conditions of [the plain‐
tiff’s] employment that is more than a mere subjective pref‐
erence.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901
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(7th Cir. 2003). “Such changes can involve the [plaintiff’s]
current wealth, his career prospects, or changes to work
conditions that include humiliating, degrading, unsafe, un‐
healthy, or otherwise significant negative alteration in the
workplace.” Boss, 816 F.3d at 917. However, “not everything
that makes an employee unhappy is an actionable adverse
action.” Nichols v. S. Ill. Univ.‐Edwardsville, 510 F.3d 772, 780
(7th Cir. 2007) (quoting O’Neal v. City of Chicago, 392 F.3d
909, 911 (7th Cir. 2004)). In that vein, we have held that “[a]
transfer involving no reduction in pay and no more than a
minor change in working conditions will not do.” Williams v.
Bristol‐Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).
Here, Madlock’s transfer to Volume Billing occasioned
no reduction in salary, loss of benefits, nor even a loss of ti‐
tle. But the transfer did cause Madlock to lose the team of
billers for whom she served as “lead,” and that team was
told no longer to approach Madlock with questions. Addi‐
tionally, Madlock was assigned a cubicle in the middle of the
room between two managers. And she has presented testi‐
mony that her co‐workers, and even management, viewed
this move as a demotion and a humiliation.
A nominally lateral transfer that “significantly reduces
the employee’s career prospects by preventing her from us‐
ing her skills and experience” can be an adverse employ‐
ment action. See Dass v. Chicago Bd. of Educ., 675 F.3d 1060,
1069 (7th Cir. 2012) (quoting Nichols, 510 F.3d at 780)). So can
isolation or a similar “alteration that can fairly be character‐
ized as objectively creating a hardship, the classic case being
that of the employee whose desk is moved into a closet.”
Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir.
2002). Madlock believes that the loss of her team constituted
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a significant diminishment in her responsibilities, and man‐
agement’s instruction that her team was no longer to ap‐
proach her with questions, combined with her assignment to
a cubicle between two managers, constituted humiliating
and isolating changes to her work conditions equivalent to
being placed in a closet. We disagree.
It is undeniable that Madlock losing her Industrial Billing
team when she was transferred was a diminishment of her
responsibilities. But the evidence shows that leaving Mad‐
lock without a team was not intended to be a permanent sit‐
uation. Instead, Madlock required time to adjust to the situa‐
tion in Volume Billing. The temporary loss of a leadership
role does not constitute an adverse employment action. Cf.
Place v. Abbott Labs., 215 F.3d 803, 810 (7th Cir. 2000) (con‐
cluding that the plaintiff “could not expect to jump into a
new project at the top”).
Additionally, Madlock’s claim that she has been practi‐
cally placed in a closet is hyperbolic. Her dislike for her new
cubicle location reflects a purely subjective preference. See id.
(noting the plaintiff made no allegation her new working
quarters “were shabby or unpleasant”). Indeed, it is possible
her placement between two managers could objectively be
viewed as a suggestion that she herself is a person with au‐
thority. Her claim that she is isolated from her former team
is likewise an exaggeration—her former Industrial Billing
team was only told not to go to her with questions, not to
avoid her entirely as if she were anathema.
Madlock’s most compelling evidence is that some of her
co‐workers, and even Tiller, found her transfer humiliating
or the equivalent of a demotion. However, even that does
not make the transfer an adverse employment action. Some
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people thinking an action is “humiliating” is not enough, on
its own, to raise the action to the level of an adverse em‐
ployment action. For example, in Spring v. Sheboygan Area
School District, 865 F.2d 883 (7th Cir. 1989), the plaintiff, the
principal of an elementary school, alleged that her reassign‐
ment as dual principal of two elementary schools was an
adverse employment action in part because “the public per‐
ceived the transfer as a ‘nudge toward retirement.’” Id. at
886. We rejected that argument, noting that “public percep‐
tions were not a term or condition of [the plaintiff’s] em‐
ployment.” Id.
The same rationale applies here. Madlock’s co‐workers
and Tiller may have viewed the transfer as a demotion or a
humiliation, but their opinions about Madlock’s work situa‐
tion are not a term of Madlock’s employment. Whether an
action is adverse requires an amount of objectivity,
“[o]therwise every trivial personnel action that an irritable,
chip‐on‐the‐shoulder employee did not like would form the
basis of a discrimination suit.” Williams, 85 F.3d at 274. Here,
the transfer effected no material change in Madlock’s em‐
ployment, and thus it was not an adverse employment ac‐
tion. Because Madlock has not shown an adverse employ‐
ment action, summary judgment is appropriate on Mad‐
lock’s discrimination claim.
B. Retaliation
To succeed on a retaliation claim, a plaintiff can take a
“direct” approach and “show that (1) he engaged in protect‐
ed activity; (2) he suffered a materially adverse employment
action; and (3) there was a causal link between the protected
activity and the adverse action.” Boss, 816 F.3d at 918. Alter‐
natively, a plaintiff may take an “indirect” approach, by
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which he “must show that (1) he engaged in protected activi‐
ty; (2) he suffered a materially adverse employment action;
(3) he was meeting his employer’s legitimate expectations;
and (4) he was treated less favorably than similarly‐situated
employees who did not engage in protected activity.” Id. If
the plaintiff makes that showing, “the burden shifts to the
employer to articulate some legitimate, nonretaliatory rea‐
son for its action,” which it is then up to the plaintiff to ex‐
pose as pretext. Id.
The primary basis of Madlock’s claim for retaliation is
the discipline she received on May 16, 2013, for the billing
error she had made the previous August. This discipline, she
argues, harmed her chances of receiving a promotion to the
Claims Analyst position.3 She also claims that the creation of
the list of informal coachings and official disciplines was an
adverse action in retaliation for her filing of her internal
complaint. She argues that the list was intended to uphold
the May 16 discipline through WEPCO’s internal grievance
process and was “peppered” with inaccuracies, exposing the
nefarious intent with which it was assembled. Even assum‐
ing these constitute adverse employment actions, Madlock
has failed to make a showing of retaliation under either the
direct or indirect approach.
Under the indirect approach, Madlock’s claim fails be‐
cause she does not identify a sufficient comparator. Madlock
argues that management did not discipline anyone else for
3 Madlock does not argue that her actual non‐selection for the posi‐
tion was in retaliation for the filing of her complaint, as there is no evi‐
dence that the person who made the hiring decision was even aware of
the complaint.
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an error that occurred many months earlier, but Madlock
identifies no specific person who committed an error many
months before management learned of the error. She does
not account for the fact that management only discovered
her error a month before imposing the punishment, or the
fact that it was a $10,000 mistake. Concerning the list of un‐
official coachings and disciplines, Madlock argues that
Wrycza did not even submit a rating form when another
employee whom she had disciplined applied for a promo‐
tion. This argument is unavailing. By Madlock’s own admis‐
sion, Wrycza and Phillips compiled the list of coachings and
disciplines in response to Madlock’s filing of a grievance
against the May 16 discipline, not in anticipation of Madlock
applying for a promotion, so the situations are not similar
enough to show that Madlock and the other employee are
“directly comparable … in all material respects.” Bio v. Fed.
Express Corp., 424 F.3d 593, 597 (7th Cir. 2005) (quoting Pat‐
terson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.
2002)). Consequently, that Wrycza did not compile a list or
submit a rating form when another employee applied for a
promotion does not show differential treatment.
Under the direct method, Madlock fails to show a causal
link between the filing of her complaint and her receipt of
the discipline or the compilation of the list. Madlock does
show temporal proximity—she was disciplined two days
after Wrycza learned of her complaint and the list was com‐
piled shortly thereafter—but “timing alone is insufficient to
establish a genuine issue of material fact to support a retalia‐
tion claim.” Kampmier v. Emeritus Corp., 472 F.3d 930, 939
(7th Cir. 2007). She has no other evidence suggesting that
anyone in management ever responded negatively to her fil‐
ing of the complaint or took any steps against her because of
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it. On the contrary, the evidence shows that Phillips, the su‐
pervisor who actually imposed the discipline on Madlock
and assisted in the creation of the list, encouraged her to file
the complaint.
Madlock attempts to overcome this evidentiary gap by
arguing that the notations in the list of coachings and disci‐
plines prepared by Wrycza and Phillips are inaccurate, and
that Wrycza and Phillips knew the list was inaccurate when
they made it, showing their malevolent design. She claims
they included events that never happened, sprinkling them
through the list in what she refers to as “false peppering.” A
look into the record shows that this argument is misleading.
Madlock supports her allegation of falsity with a citation to a
portion of Phillips’s deposition. In the deposition, Phillips
acknowledges, when asked about potential issues with the
dates listed for some of the events in the list, that some of the
information in the list may be incorrect. Nevertheless, she
affirms that everything in the list is supported by records in
Madlock’s human resources file. Given Phillips’s uncontest‐
ed assertion that she and Wrycza relied on Madlock’s hu‐
man resources file, Madlock can claim that the file is incor‐
rect and the listed events did not take place. That said, she
still has no evidence to support an allegation that manage‐
ment knowingly falsified the list in response to her discrimi‐
nation complaint. As long as management genuinely be‐
lieved in the correctness of the human resources file, this is
not evidence of retaliatory intent. Absent such evidence, we
decline to infer a retaliatory motive. Because Madlock cannot
show a sufficient causal link between the filing of her inter‐
nal complaint and the alleged adverse actions, her claim for
retaliation must fail.
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III.
For the foregoing reasons, we conclude Madlock has not
presented sufficient evidence to create a genuine issue of
material fact concerning either her race discrimination claim
or her retaliation claim, and WEPCO is entitled to judgment
as a matter of law. Accordingly, we AFFIRM.
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