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Malin v. Hospira, Inc.

United States Court of Appeals, Seventh Circuit

August 7, 2014

DEBORAH MALIN, Plaintiff-Appellant,
HOSPIRA, INC., et al., Defendants-Appellees

Argued: May 20, 2014.

Page 553

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 4393 -- Joan Humphrey Lefkow, Judge.

For Deborah Malin, Plaintiff - Appellant: J. Bryan Wood, Attorney, Law Office of J. Bryan Wood, Chicago, IL.

For Hospira, Incorporated, Deborah Rodriguez, Jay Anderson, Michael Carlin, Defendants - Appellees: Michael H. Cramer, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, IL.

Before KANNE, TINDER, and HAMILTON, Circuit Judges.


Page 554

Hamilton, Circuit Judge.

Plaintiff Deborah Malin appeals from the district court's grant of summary judgment in favor of her employer on her retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and in favor of the employer and several managers on her retaliation claim under the Family and Medical Leave Act, 28 U.S.C. § 2601 et seq. We reverse and remand for trial.

The case requires us to consider Malin's experience over several years as an employee with Hospira's Information Technology department, which was reorganized in 2006. As detailed below, Malin has offered evidence that she was effectively demoted as part of the 2006 reorganization. She has also offered evidence that would allow a reasonable jury to find that the demotion was (a) part of a manager's long-term effort at retaliation for a sexual harassment complaint she made over his vociferous objection in 2003, or (b) in retaliation for her use of FMLA leave during the reorganization, or (c) both. In reversing summary judgment on Malin's Title VII retaliation claim, we reject the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law. Although three years is a significant period of time, Malin has offered evidence of other retaliatory behavior between her 2003 sexual harassment complaint and the 2006 reorganization and demotion that bridges the gap between the two events, leaving the issue of causation for a jury at trial.

I. Factual and Procedural Background

Because the case comes to us on appeal from a grant of summary judgment, we present the evidence through the summary judgment lens, giving plaintiff the benefit of all conflicts in the evidence and all reasonable inferences that might be drawn from the evidence, without necessarily vouching for their objective accuracy. Naficy v. Illinois Dep't of Human Services, 697 F.3d 504, 509 (7th Cir. 2012). Plaintiff Deborah Malin began working at Abbott Laboratories in April 1996 as an employee of the Information Technology (IT) department supporting Abbott's hospital products division. She received several promotions between 1996 and 2003, rising to a salary grade of 18 by January 2003. Her salary grade would remain fixed at 18 for almost a decade.

In July 2003, Malin told her direct supervisor, Bob Balogh, that she was going to complain to Human Resources about sexual harassment by her indirect supervisor, Satish Shah. While Malin was still in his office, Balogh called his and Shah's boss, Mike Carlin, and told him about Malin's plan. Malin heard Carlin shouting through the phone. When Balogh hung up the phone, he told Malin that Carlin had told him to do everything in his power to stop Malin from going to Human Resources. Malin told Balogh that she was going ahead, and she made a formal sexual harassment complaint to Human Resources based on Satish Shah's behavior.

Evidence of Carlin's hostility to Malin's complaint is central to the case, so we pause to address an evidentiary issue. Evidence supporting or opposing summary judgment must be admissible if offered at trial,

Page 555

except that affidavits, depositions, and other written forms of testimony can substitute for live testimony. E.g., Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). Hospira argues that Malin's testimony about what Balogh said Carlin told him to do is inadmissible hearsay. That is incorrect. At the first level of potential hearsay, Carlin's instruction was not a statement of fact being offered to prove the truth of any matter asserted, so it was not hearsay at all. At the second level, Balogh's report to Malin of Carlin's instruction fits squarely within the definition of a statement in Federal Rule of Evidence 801(a). Malin offers that out-of-court statement to prove the truth of its contents: that Carlin screamed at Balogh and told him to do all he could to stop Malin from making a formal complaint about Shah.

Malin therefore needs a hearsay exception to admit Balogh's statement into evidence. She has two. Balogh described Carlin's screamed admonition to Malin immediately after it occurred, so we agree with the district court that the comment qualifies as a present sense impression under Federal Rule of Evidence 803(1). Further, according to Malin, Balogh was visibly startled by Carlin's comment and told her about it immediately, " while under the stress of excitement that it caused." See Fed.R.Evid. 803(2). The comment is thus also admissible as an excited utterance under Rule 803(2). See United States v. Boyce, 742 F.3d 792, 796-98 (7th Cir. 2014) (discussing scope and application of both hearsay exceptions).[1]

Back to the facts. Abbott's Human Resources department investigated Malin's allegations and eventually issued a counseling memorandum to Shah stating that his behavior was a serious lapse in judgment and that any similar incidents in the future would result in disciplinary action up to and including termination. Carlin signed the memorandum and added it to Shah's file. Shah was screened from all future employment decisions regarding Malin, but no further disciplinary action was taken against him. Carlin remained Malin's ultimate supervisor in the IT department.

In May 2004, Abbott spun off its hospital products division (where Malin worked) from the main company. Malin, Carlin, Shah, and others were transferred from Abbott to the resulting new company, now named Hospira. At Hospira, Malin continued to work in the IT department. Carlin was the chief information officer at Hospira, meaning that his approval was required for all salary grade or manager level increases in the IT department. Salary grade increases are promotions at Hospira. An increased salary grade results in larger bonuses and a higher salary. It can also include added privileges such as having an office and higher stock option awards. Increases in manager level (indicated by a lower number, though) are also considered promotions.

Between the 2003 complaint and the 2006 Hospira reorganization, Malin applied for several promotions at Hospira but received none of them. For example, in May 2004, Malin applied for a position listed at salary grade 19. After she applied, some nominal duties were removed from the position and the slightly modified position was offered to Malin at salary grade 18. Malin accepted the position anyway. In

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July 2004, Malin's then-supervisor, Ed Schipp, told her that he was extremely pleased with her performance in that position and could not understand why he was not permitted to assign the position a salary grade of 19. He then asked Malin what had happened between her and Shah. The attachment to Malin's EEOC complaint detailed numerous other instances where Malin's supervisors commended her performance and told her they would recommend a promotion, but she nevertheless was not promoted. During the entire period from 2003 through 2007, Carlin, who told Balogh in 2003 to do all he could to prevent Malin from making her sexual harassment complaint, was the final decision-maker for all promotions in the IT department, including all the promotions Malin sought.

In early 2005, Malin held the position of IT Manager for quality systems, which was at salary grade 18 and manager level 2. Her immediate supervisor was Jay Anderson, who then reported directly to Carlin (the chief information officer). In December 2005, Malin asked Anderson to upgrade her position to grade 19. On January 12, 2006, Anderson met with Malin in his office to discuss her salary grade, compensation, and career direction. During that meeting, Anderson told her that she had again been denied a salary grade increase. Carlin would have had final authority over that decision. Malin told Anderson that she was experiencing ongoing retaliation by Carlin because she had reported an incident to Human Resources.

Anderson immediately emailed Carlin and Hospira Human Resources manager Andrea Bochek about Malin's comment. In the email, Anderson told Carlin that Malin had mentioned a " retaliation circumstance," and that Malin believed she was " not fairly compensated" and was " being held back." Bochek investigated. She concluded that Malin was assigned to the appropriate pay grade and was not being retaliated against. Hospira took no further action, and Carlin remained Malin's boss.

Hospira's IT department went through an extensive and lengthy reorganization process in 2006, which Carlin oversaw. A critical event for purposes of Malin's FMLA claim was a meeting held on June 14, 2006 for the management team (including Carlin, Anderson, and Shah) to discuss potential roles for current IT employees in the post-reorganization IT department. The parties dispute whether any final decisions about the reorganization were made before or during the June 14 meeting. Both Bochek and Andrea Manski, another manager involved in the reorganization, testified that no final decisions had been made about current employees' roles in the reorganized department prior to the June 14 meeting, and that no final decisions were made during the meeting either. In an odd turnabout in summary judgment practice, Hospira as the moving party has pointed to no contrary evidence, such as testimony from someone at the meeting saying that a final decision had been made. The district court nevertheless thought the undisputed facts showed that managers decided not to promote and even to demote Malin before or during that meeting, before she said she needed to take FMLA leave. We discuss the evidence concerning the June 14 meeting in more detail below as part of our analysis of Malin's FMLA retaliation claim. The critical point is that the evidence does not show beyond reasonable dispute that the key decisions were made before Malin's request for FMLA leave.

On June 19, 2006, Malin's sister notified Anderson that Malin needed to take FMLA leave effective immediately. On June 22, ...

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