SARAH EVANS BARKER, U.S. District Judge.
I. Introduction.
This is a sex discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. and 1981a. The plaintiff, Cynthia Hardy alleges that her former employer, Floyd Memorial Hospital, eliminated her position as Supervisor of the Hematology, Blood Bank, and Coagulation Department and offered her a choice between being transferred from the first to the second shift or to a transitional position and that placing her in the position of having to make that choice was unlawfully based on her sex. The case is before the court on defendant's motion for summary judgment. For the reasons that follow, we GRANT defendant's motion.
II. Statement of Facts.
The following facts are either undisputed by the parties or are recited in a light reasonably most favorable to the plaintiff as the party opposing summary judgment.
A. Background.
Floyd Memorial is an acute care non-profit county hospital organized under Indiana's County Hospital Law. On June 9, 1969, Floyd Memorial hired Ms. Hardy as a medical technologist in its Laboratory. Ms. Hardy's title changed to "Senior Technologist" in 1988, based upon her experience in medical technology. In 1989, Ms. Hardy was promoted to the position of Laboratory Manager. Of all the supervisors in the Laboratory, Ms. Hardy had the most years of service at the Hospital. Later, her position was reclassified as Laboratory Supervisor, the title she maintained thereafter. Def. Facts ¶¶ 1-5.
Pursuant to Local Rule 56.1, the parties submitted statements of material fact and responses to those statements. We refer to defendant's statement of Facts as "Def. Facts" with appropriate paragraph number. We refer to plaintiff's responses as Pl. Resp. and to plaintiff's statements of fact as "Pl. Add. Facts" with appropriate paragraph numbers.
The Laboratory hierarchy is headed by the Director and followed by the Laboratory Supervisor(s), and then the staff Medical Technologists (who have four-year degrees), and Medical Technicians (who have two-year degrees). Within the Laboratory, there are several departments, including Chemistry, Microbiology, Phlebotomy, Hematology, Coagulation, Blood Banking and Phlebotomy, Out Patient Services and Information. Def. Facts, ¶¶ 6, 7, 9. Each department is headed by a Supervisor. Since the Laboratory is a twenty-four hour a day operation, there are supervisors for the two shifts as well. Def. Facts ¶ 8.
While each department has a Supervisor on the first shift, on the second shift the Laboratory is supervised by a single Laboratory Supervisor who oversees all of the departments. The second shift Laboratory Supervisor also has supervisory responsibility for third-shift employees, even though the second-shift supervisor is not physically present on third shift. Def. Facts ¶¶ 10; Def. reply, ¶ 10.
Jeffrey Whitesel became Director of the Laboratory in 1998 and remains in that position today. First-shift department supervisors in the Laboratory included: Ms. Hardy in Hematology, Coagulation, and Blood Bank; Lonnie Hoskins in Chemistry; Linda Snelling in Microbiology; and Marilyn Monohan in Phlebotomy. Clinical Chemist, Dr. Walter Mastropaolo, was also employed in the Laboratory on the first shift. He worked in the Chemistry department and his responsibilities included reviewing Chemistry Department testing results, analyzing new testing procedures, and communicating with the medical staff. Def. Facts, ¶ 11-15.
Ms. Hardy was a certified blood banker. She also held a Masters Degree in Management. Pl. Add. Facts, ¶ 90. As Supervisor of Hematology, Coagulation and Blood Bank, Ms. Hardy's responsibilities included being in charge of ordering and evaluating instrumentation, being partially responsible for preparing her budget, supervising and scheduling employees in her departments, investigating discrepant laboratory testing results, and otherwise making sure everything in her departments was up to par. Def. Facts ¶ 16, 17.
B. Events Giving Rise to this Lawsuit.
As a result of the Balanced Budget Act of 1997, Medicare reimbursement rates were reduced so that Hospital revenues declined. To overcome the Medicare reductions, Mr. Whitesel was called upon to maximize revenues in any or all of the traditional ways: reduce costs, maximize operations, improve productivity, and/or generate new business. Def. Facts, ¶¶ 18, 19.
In an effort to reduce costs, the Hospital reduced its work force by thirty positions, eleven of which were vacant at the time they were eliminated. Def. Facts, ¶¶ 20-22. Among his cost saving measures, Mr. Whitesel recommended restructuring the Laboratory. He proposed, specifically, that the Chemistry, Hematology, Coagulation and Blood Banking Departments all be combined to create a "Core Laboratory." One consequence of this proposal was that one supervisor position — either Mr. Hoskins' or Ms. Hardy's — would be eliminated. Another was that the Core Laboratory would not need a clinical chemist. Def. Facts, ¶¶ 24, 25, 29, 30.
In concert with Michael Harlowe, Vice President of Operations, Mr. Whitesel recommended that Chemistry Supervisor Hoskins become Supervisor of the Core Laboratory and that Mr. Hoskins would take over some of Ms. Hardy's responsibilities and all of Dr. Mastropaolo's responsibilities. Ms. Hardy would then be offered other employment opportunities. Floyd Memorial eventually approved these recommendations. Def. Facts ¶ 32, 33.
Although Mr. Whitesel denies that he was making a choice between Ms. Hardy and Mr. Hoskins for the new Supervisor of the Core Laboratory, he recognized that both were long-term employees — with 23 and 29 years of service respectively — and that both had been good supervisors. Def. Facts, ¶¶ 34-36. He selected Mr. Hoskins because Mr. Hoskins had headed the Chemistry Department, which was responsible for approximately 42% of testing volume in the Laboratory, whereas Ms. Hardy's Hematology, Blood Banking and Coagulation departments combined were responsible for only approximately 23% of the volume. Similarly, where Chemistry accounted for about 54% of Laboratory revenues, Ms. Hardy's departments accounted for about 35%. Def. Facts ¶¶ 37-39. Also, Mr. Whitesel believed that the Chemistry Department was more complex because it required advanced knowledge of more instruments than Hematology, Blood Banking and Coagulation departments combined. Def. Facts ¶ 40. An additional factor in selecting Mr. Hoskins over Ms. Hardy was that Mr. Whitesel himself represented an overlap with Ms. Hardy. That is, he also was board certified in Blood Banking and Hematology. He could, therefore, take over supervision of Ms. Hardy's Blood Banking responsibilities, where he was not qualified to take over the Chemistry department responsibilities. Def. Facts ¶ 41.
On December 3, 1999, Ms. Hardy was informed of the Laboratory restructuring and provided with two options. She could accept a position as full time second shift supervisor. Or she could opt for a transitional position as a part-time Medical Technologist on the first shift. If she accepted the second-shift supervisor position, her salary and benefits would remain the same as they had been. If she accepted the transitional position, her salary would be reduced after three months to the pay of a non-supervisor Medical Technologist. Def. Facts ¶¶ 47-55. Mr. Hoskins received no increase in pay or additional benefits for assuming the position of Supervisor of the Core Laboratory. Dr. Mastropaolo was informed of his dismissal the same day. Def. Facts, ¶¶ 59, 60.
On December 22, 1999, Ms. Hardy chose the second option. She testified that she never even considered the first option of second-shift supervisor because it was not conducive to her family life, she had worked nearly thirty years on the first shift, and because second-shift employees, as she testified, "had been allowed to run rampant, run amuck and with no discipline." Def. Facts, ¶ 63. Hardy Dep., p. 75. She testified that "it's not conducive to be away from my husband from three to 11, and it is not my type of work hours." Hardy Dep., p. 76. She testified that she would not work second shift "[s]imply because I would not want to. Whether or not I had worked it, I would not want to. That's my prerogative." Hardy Dep., p. 77.
Instead, in February 2000, Ms. Hardy became a transitional part-time medical technologist. Then, on July 2, 2000, she accepted a part-time job as a Medical Technologist and remained in this position until she resigned on November 20, 2000, effective December 4, 2000. Def. Facts ¶¶ 64, 65; Hardy Dep., p. 20.
III. Discussion.
A. The Standard on Summary Judgment
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23, 106 S.Ct. 2548. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548; Anderson, 477 U.S. at 249-52, 106 S.Ct. 2505).
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Waldridge, 24 F.3d at 920.
B. Ms. Hardy's Sex Discrimination Claim.
a. The Prima Facie Case.
The parties agree that this case involves a "mini-RIF," a reduction in force of one employee whose duties and responsibilities are then assumed by one or more other employees. Bellaver v. Quanex Corporation, 200 F.3d 485, 495 (7th Cir. 2000); Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1998). When the Laboratory was reorganized into a "Core" Laboratory, Ms. Hardy's position as Supervisor of Hematology, Blood Banking and Coagulation was eliminated in the limited sense that her duties were taken over by other employees, including Director Whitesel. In that sense, Ms. Hardy was "replaced" by others.
We accept the parties' analytic framework, even though it is not clear to us that these facts constitute a "mini-RIF." Whether we employ mini-RIF analysis or the traditional analysis set forth in the McDonnell-Douglas, Burdine, Hicks, Reeves line of cases, the result is the same.
All of the mini-RIF cases that the parties cite — and all of the others that we have researched — involve the discharge of an employee whose duties and responsibilities are then taken over by other employees. See, e.g., Ritter v. Hill `N Dale Farm, Inc., 231 F.3d 1039 (7th Cir. 2001); Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687 (7th Cir. 2000); Bellaver v. Quanex Corporation, 200 F.3d 485, 495 (7th Cir. 2000); Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1998); Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324, 1331-32 (7th Cir. 1995); Ducharme v. Hall Signs, Inc., 2001 WL 1168160 (S.D.Ind. 2001). By contrast, here it is undisputed that Ms. Hardy was not fired. Accordingly, the case appears to involve not so much a mini-RIF as an involuntary transfer, such as that in Grube v. Lau Industries, Inc., 257 F.3d 723 (7th Cir. 2001), Stutler v. Illinois Department of Corrections, 263 F.3d 698 (7th Cir. 2001); and Place v. Abbott Laboratories, Inc., 215 F.3d 803 (7th Cir. 2000).
This is because Ms. Hardy's prima facie case of sex discrimination fails not on the fourth element, but on the question of whether she suffered an adverse employment action.
Mini-RIF analysis was designed to amend the fourth prong of the traditional McDonnel-Douglas proof scheme so that the plaintiff was not required to prove that similarly-situated employees not in the same protected group were treated more favorably. Under mini-RIF analysis, we simply assume, absent a contrary showing, that others were treated more favorably because others assumed the discharged employee's duties. See, Ritter, 231 F.3d at 1043 (fourth prong satisfied where plaintiff can show she was "constructively replaced"); Michas, 209 F.3d at 693-694.
In order to establish a prima facie case of sex discrimination under the mini-RIF analysis, Ms. Hardy must show that: (1) she was a member of a protected class; (2) her work performance satisfied the Hospital's legitimate business expectations; (3) she suffered an adverse employment action; and (4) she was "constructively replaced." Ritter, 231 F.3d at 1043. Ms. Hardy clearly meets the first, second, and fourth criteria. She did not, however, suffer an adverse employment action as the law construes that phrase. Accordingly, even if Floyd Memorial had been motivated to transfer her, rather than Mr. Hoskins, to the second shift because of Ms. Hardy's sex, Floyd Memorial is not liable because its conduct did not constitute a tangible job detriment.
The Seventh Circuit has repeatedly held that an involuntary transfer is not an adverse employment action unless the employee can show that she suffered a reduction in pay or benefits or a significant diminution in job responsibilities. Stutler, 263 F.3d at 702; Place, 215 F.3d at 810. Indeed, in Tyler v. Ispat Inland Inc., 245 F.3d 969, 972-973 (7th Cir. 2001), the court noted:
we have held that a lateral transfer of an employee who retains the same salary and benefits is not, without more, sufficient to constitute an adverse employment action. Moreover, even the denial of a monetary perk, such as a bonus or reimbursement of certain expenses, does not constitute an adverse employment action if it is wholly within the employer's discretion to grant or deny and is not a component of the employee's salary. (Citations omitted.)
Moreover, the facts in Grube are strikingly similar to the facts here. Ms. Grube, like Ms. Hardy, was transferred to the second shift from the first shift. Ms. Grube — like Ms. Hardy, a long term employee with more than twenty years of service — refused the transfer because accepting it would have interfered with her caring for her husband who was stricken with leukemia. Instead of accepting the transfer, Ms. Grube resigned and later filed a sex discrimination suit. The Seventh Circuit affirmed the district judge's grant of summary judgment in favor of the employer, finding that Ms. Grube failed to raise an inference that she had suffered an adverse employment action.
Grube's pay and job title remained the same, and she suffered no significantly diminished job responsibilities. Grube offers little support, indeed she fails to offer a single citation to a case from any circuit, including ours, for the proposition that a mere transfer from a first to a second shift, unaccompanied by a reduction in pay or significantly diminished job responsibilities, can support a constructive discharge claim.
257 F.3d at 728.
Grube guides the outcome here. In order to satisfy her prima facie burden, Ms. Hardy must either show that she would have suffered a reduction in title, pay, or benefits by accepting the second shift supervisor position or that she would have experienced "significantly diminished job responsibilities" by accepting it.
As to the first showing, it is undisputed that, once the decision to reorganize the Laboratory was made, Ms. Hardy was offered a choice between transferring to the second shift at the same salary and benefits she currently enjoyed or accepting the transitional medical technologist position, which eventually entailed a reduction of pay and hours. Ms. Hardy elected the second option. It follows that she would not have suffered a reduction in pay or benefits by accepting the second shift position.
Nor does she raise an inference that her responsibilities would have been diminished as second-shift supervisor. As noted earlier, Ms. Hardy seeks to raise an inference that the second shift supervisor position was a lesser position than the first shift position because no one else wanted the job and because the employees on second shift were unruly. One might make a plausible argument that, given the unruly nature of the second-shift employees, Ms. Hardy's responsibilities would have been enhanced in that position rather than diminished, and that success on the second shift would have placed her in good stead for future promotions. Still, while we accept Ms. Hardy's testimony that the transfer to second shift would have been subjectively unpalatable and even a personal hardship for her, it is not the kind of materially adverse employment action that Title VII makes actionable.
Since the Supreme Court's decisions in Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the federal courts have consistently adhered to the view that an adverse employment action is one that causes a substantial change in the terms and conditions of employment. The Supreme Court has stated that: "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 118 S.Ct. at 2268 (emphasis added). See Savino v. C.P.Hall Company, 199 F.3d 925, 933 (7th Cir. 1999); In Silk v. City of Chicago, 194 F.3d 788, 807-808 (7th Cir. 1999).
Ms. Hardy has not presented legally sufficient evidence to raise a reasonable inference that the offer of the second-shift supervisor position constituted a materially adverse employment action. Accordingly, she has failed to meet her prima facie burden.
b. Ms. Hardy's Evidence of Pretext.
Notwithstanding our finding that Ms. Hardy did not suffer a cognizable job detriment so that her case fails at the prima facie stage, we further note that her evidence is insufficient to raise a reasonable inference that Floyd Memorial's explanation of its transfer of Ms. Hardy is a pretext for discrimination.
The Hospital has offered a legitimate, non-discriminatory explanation of why it selected Ms. Hardy for transfer rather than Mr. Hoskins. Mr. Whitesel's explanation is two-fold. In brief, Mr. Hoskins was Supervisor of the Chemistry Department and Ms. Hardy was Supervisor of Hematology, Blood Banking, and Coagulation. Mr. Whitesel believed that, since Chemistry was the financially more important Department, its Supervisor was better prepared to take over supervision of the Core Laboratory. Second, since Mr. Whitesel himself had some of the training and the certification that Ms. Hardy had, he could readily perform certain duties that she had performed. By contract, his training was not similar to that of Mr. Hoskins, so that if he transferred Mr. Hoskins to the second shift, he would need to find others to replace certain chemistry functions that Mr. Hoskins had performed.
The Hospital having offered a non-discriminatory explanation, it is up to Ms. Hardy to present sufficient evidence to raise an inference that the explanation is a pretext. The Seventh Circuit has often reminded us that, in order to raise an inference of pretext, the plaintiff must show that the employer's explanation has no basis in fact, or, if it has a basis in fact, it is not the real reason, or, if it is the real reason, that it did not really motivate the employer. Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 379 (7th Cir. 2000); Testerman v. EDS Technical Products Corp., 98 F.3d 297, 303-04 (7th Cir. 1996); Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995). A pretext is a lie or a phony reason, and not merely a mistake. Russell v. Acme Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). "Because a Title VII claim requires intentional discrimination, the pretext inquiry focuses on whether the employer's stated reason was honest, not whether it was accurate." Helland v. South Bend Community Sch. Corp., 93 F.3d 327, 330 (7th Cir. 1996). In other words, if the employer's legitimate, non-discriminatory reason is honest, it is not pretextual. It is, finally, incumbent upon Ms Hardy to present evidence from which a jury may reasonably infer that Mr. Whitesel did not honestly believe that appointing Mr. Hoskins supervisor of the Core Laboratory and transferring Ms. Hardy to the second shift was the proper solution for the economic problems the Hospital the faced.
Ms. Hardy has largely admitted that Mr. Whitesel's explanation was honest. She does not challenge that she was the victim of a RIF, even if it was a RIF of only one. She does not question the economic motive behind eliminating various positions and consolidating others. She does not question that "Mr. Whitesel believed this adjustment would streamline operations, improve economies of scale, efficiency and productivity and lower costs." Def. Facts ¶ 26. Nor does she challenge that, in Mr. Whitesel's opinion, he was not choosing between Mr. Hoskins and herself for the Core Supervisor position, but rather that it was a decision based upon the departments the two had previously supervised. Def. Facts ¶ 34. Indeed, Ms. Hardy does not even challenge Mr. Whitesel's statement that, had she been supervising the Chemistry Department at the time, Mr. Hoskins would have been the one considering alternative job responsibilities. Def. Facts ¶ 46.
Ms. Hardy has focused her case on the question that always lies at the heart of a RIF:
"why me?" But her answer to that question has nothing to do with gender. At the heart of her complaint is that Mr. Whitesel did not select her for the Core Supervisor position instead of Mr. Hoskins. Absent evidence of pretext, however, the courts do not sit as super personnel departments which review employment decisions for their prudence. Ritter, 231 F.3d at 1044.
From what might we infer pretext? Ms. Hardy argues that she was better suited than Mr. Hoskins for the Core Laboratory Supervisor position for the following reasons:
• The second shift supervisor position was inherently a demotion. No one wanted the job (it remained vacant for months) and the employees on that shift were unruly.
• Ms. Hardy had more years of service than Mr. Hoskins.
• The procedures in her department were more complex than the more numerous procedures in chemistry.
• She was an excellent supervisor.
• She was team player.
• She had successfully gone through two accreditation processes.
• She regularly volunteered for community events like Harvest Homecoming, the Lanesville festival, the Relay for Life, and the memorial foundation golf tournament.
• Mr. Hoskins was not familiar with all of the equipment in the Laboratory.
We need not address each of these assertions to conclude that, admirable as these attributes surely are, they miss the point. These may be good reasons why Ms. Hardy would have been a satisfactory choice for Core Laboratory Supervisor — maybe even a better choice than Mr. Hoskins, if some person other than Mr Whitesel had been the decision maker. But they do not invalidate Mr. Whitesel's reasons for preferring Mr. Hoskins. Assuming all of her statements to be true, none of them, nor all of them together, raise a reasonable inference that Mr. Whitesel's explanations for selecting Mr. Hoskins rather than Ms. Hardy were pretextual; nothing suggests that Mr. Whitesel did not honestly believe that Mr. Hoskins was, under the circumstances, better suited for the job.
In sum, Mr. Whitesel offered business justifications which Ms. Hardy has not discredited. Accordingly, even if Ms Hardy had presented evidence from which we could infer that she suffered an adverse employment action, her evidence cannot raise a reasonable inference that the employer's explanation for its selection of Mr. Hoskins was pretextual.
IV. Conclusion.
For the reasons addressed, we find that Ms. Hardy's evidence is legally insufficient to raise a genuine issue of material fact as to her claim of sex discrimination and that Floyd Memorial Hospital is entitled to judgment as a matter of law. Accordingly, we GRANT defendant's motion for summary judgment and dismiss Ms. Hardy's complaint pursuant to Fed.R.Civ.P. 56.
It is so ORDERED this day of January 2002.