Laura A. Makowski v. Smithamundsen

                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 10-3330

L AURA A. M AKOWSKI,
                                                  Plaintiff-Appellant,
                                  v.

S MITHA MUNDSEN LLC,
G LEN E. A MUNDSEN AND
M ICHAEL D EL ARGY,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 1:08-cv-06912—John W. Darrah, Judge.



      A RGUED M AY 3, 2011—D ECIDED N OVEMBER 9, 2011




  Before R OVNER and W ILLIAMS, Circuit Judges, and
Y OUNG, District Judge.Œ
 Y OUNG, District Judge. Lisa Makowski, an employee of
SmithAmundsen, LLC (“SmithAmundsen”), took leave


Œ
   The Honorable Richard L. Young, Chief Judge of the United
States District Court for the Southern District of Indiana,
sitting by designation.
2                                            No. 10-3330

under the Family Medical Leave Act (“FMLA”) beginning
just before the birth of her child and continuing after
the birth. While Makowski was on leave, her supervisors
informed her that her position was eliminated as part of
an organizational restructuring and terminated her em-
ployment. Makowski filed suit against SmithAmundsen,
Glen E. Amundsen, and Michael DeLargy, alleging preg-
nancy discrimination under Title VII of the Civil Rights
Act of 1964 (“Title VII”), as amended by the Pregnancy
Discrimination Act (“PDA”); interference with Makow-
ski’s exercise of her rights under the FMLA; retaliation
under the FMLA; and a violation of her right to a bonus
under the FMLA. The district court granted sum-
mary judgment in favor of the defendants. On appeal,
Makowski challenges an evidentiary ruling denying
the admission of statements allegedly made by the
Human Resources Director; the district court’s failure to
consider all of Makowski’s additional evidence in the
record; and the district court’s grant of summary judg-
ment in favor of the defendants on the pregnancy dis-
crimination claim and FMLA interference and retalia-
tion claims. For the reasons set forth below, we reverse.


                     I. Background
  Makowski was employed as Marketing Director for
SmithAmundsen, a law firm, from January 17, 2005,
through February 4, 2008. She reported to Glen Amund-
sen, Chair of the Executive Committee and Marketing
Partner, and Michael DeLargy, Chief Operating Officer.
During each year of Makowski’s employment with
No. 10-3330                                          3

SmithAmundsen, she received an annual salary increase,
as well as quarterly discretionary merit bonuses “based
on individual performance and how the employee’s
contributions helped Defendant SmithAmundsen meet
its objectives” for each quarter of Plaintiff’s employ-
ment prior to beginning her leave under the FMLA.
  In the summer of 2007, Makowski notified
SmithAmundsen’s management that she was pregnant
and due in December. SmithAmundsen granted Makow-
ski leave under the FMLA due to the pregnancy and
birth. On November 5, 2007, Makowski’s obstetrician
placed her on bed rest for the remainder of her
pregnancy as a result of a significant increase in her
blood pressure. With SmithAmundsen’s permission,
Makowski worked from home until November 26, 2007,
at which point she began FMLA leave. On December 2,
2007, Makowski gave birth.
  In January 2008, the Executive Committee, comprised
of Amundsen and four other men, conducted its yearly
retreat to assess the overall structure of the firm and
determine whether staffing changes were necessary.
At this time, the Marketing Department consisted of
Makowski, Marketing Director; Sarah Goddard, Marketing
Project Manager; Lauren Siegel, Marketing Coordinator;
and Kristi Fitzgerald, part-time Marketing Assistant.
During a conversation before the retreat regarding re-
structuring of the Marketing Department, Amundsen
told DeLargy that “[p]eople enjoyed working with [God-
dard] more” and that Goddard would be a stronger
lead person in the department than Makowski, which
4                                              No. 10-3330

“was really what [SmithAmundsen] needed to focus a
lot on.” At the retreat, the Executive Committee ratified
Amundsen’s recommendation to eliminate Makowski’s
position and continue with Goddard as the leader of
the Marketing Department. The Executive Committee
charged DeLargy with the task of conferring with outside
labor and employment counsel regarding Makowski’s
firing.
   In an email sent at the conclusion of the retreat from
DeLargy to Molly O’Gara, Director of Human Resources,
DeLargy said that Makowski “doesn’t fit into our cul-
ture.” As the Director of Human Resources, O’Gara by
her own admission was responsible for implementing
and monitoring SmithAmundsen’s compliance with
human resources policies, as well as monitoring the
firm’s compliance with anti-discrimination laws. She is
consulted regularly regarding decisions to eliminate
positions and terminate employees, and considers herself
“the boss” with respect to human resources policies and
compliance. Fittingly, DeLargy delegated to O’Gara the
task of consulting with outside counsel to discuss
Makowski’s firing, which she did prior to Makowski’s
termination.
  On February 4, 2008, while Makowski was on mater-
nity leave, Amundsen and DeLargy terminated her over
the telephone, explaining that her position was being
eliminated as part of an organizational restructuring. That
same day, O’Gara fired the IT Director, Tuan Hoang.
Additionally, Amundsen sent an email to all equity
and non-equity members of SmithAmundsen informing
No. 10-3330                                             5

them of the Executive Committee’s decision to eliminate
the IT Director and Director of Marketing positions and
Hoang’s and Makowski’s terminations.
   Later that day, Makowski came to the office to retrieve
her belongings. As she was leaving, O’Gara met her in
the elevator lobby. O’Gara told her that she (Makowski)
“was let go because of the fact that [Makowski] was
pregnant and . . . took medical leave.” Furthermore,
O’Gara “believed that there were [sic] a group of people
that were discriminated against because they were preg-
nant or because they took medical leave” and specifically
mentioned Carrie Von Hoff, a former associate at the
firm, as one of the victims of discrimination. O’Gara
also advised Makowski that “it might be a good idea to
speak with a lawyer [as there] might be a possibility of a
class action.” Regarding Hoang, O’Gara said that “they
were working to let Tuan [Hoang] go for performance-
based reasons,” but because Makowski was pregnant
and on FMLA leave, outside counsel suggested labeling
both Makowski’s and Hoang’s terminations as part of
a reduction in force.
  The day after Makowski’s termination, Goddard
resigned and accepted a position at another firm. Two
days later, the Firm advertised for a position as Business
Development and Marketing Manager, a role the Firm
envisioned would have been filled by Goddard. In
May 2008, the Firm rehired Goddard for the position.
  Makowski filed this lawsuit on December 2, 2008,
alleging violations under Title VII, as amended by the
PDA, and the FMLA. The defendants moved for sum-
6                                               No. 10-3330

mary judgment on all of Makowski’s claims. The district
court granted the defendants’ motion with respect
to Makowski’s termination. The court first ruled that
because O’Gara’s job responsibilities were not related
to the decision to terminate Makowski, and because
O’Gara was not involved in the decision-making pro-
cess, O’Gara’s statements concerning Makowski’s termi-
nation were not admissible as an admission by a party-
opponent. Without those statements, the court found
that Makowski had no evidence of a direct connection
between her protected activity and her termination;
therefore, her Title VII discrimination claims and FMLA
interference and retaliation claims failed under the
direct method of proof.


                       II. Analysis
  We review a district court’s grant of summary judg-
ment de novo, construing all facts in the light most favor-
able to Makowski and drawing all reasonable inferences
in her favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.
2010). Summary judgment is appropriate where the
admissible evidence shows that “there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. C IV. P. 56(a), (c).
A genuine issue of material fact exists if “the evidence
is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
  Makowski first contends that the district court erred
in excluding O’Gara’s statements to Makowski con-
No. 10-3330                                                   7

cerning her termination and in failing to consider other
evidence provided by Makowski. Second, Makowski
argues that this evidence creates a genuine issue of mate-
rial fact as to whether Makowski was terminated due
to her pregnancy and her taking medical leave. Finally,
Makowski alleges that the district court erred in failing
to address her FMLA interference claim independently
of her FMLA retaliation and discrimination claims.


A. O’Gara’s Statements
  As we noted above, Makowski alleges that O’Gara told
her that Makowski was terminated because she was
pregnant and took medical leave, and informed her of the
Firm’s discriminatory treatment toward other pregnant
employees. The district court ruled that O’Gara’s state-
ments were not admissions and excluded them as inad-
missible hearsay. Makowski contends on appeal that
O’Gara’s statements were admissions and therefore
should be admitted as evidence of discrimination. We
review a district court’s evidentiary ruling for abuse of
discretion. United States v. Owens, 424 F.3d 649, 653 (7th
Cir. 2005).
  O’Gara’s statements fall under the definition of
hearsay, because they were made out of court and are
being offered for their truth. See F ED. R. E VID. 801(c). To be
admissible, Makowski must establish that an exception
to the hearsay rule applies or that the statements are not
hearsay. See id. at 801(d), 803. Rule 801(d)(2)(D) of the
Federal Rules of Evidence provides that “[a] statement
is not hearsay if . . . the statement is offered against a
8                                               No. 10-3330

party and is . . . (D) a statement by the party’s agent or
servant concerning a matter within the scope of the
agency or employment, made during the existence of the
relationship . . . .” The issue is whether O’Gara’s state-
ments concerned a matter within the scope of her em-
ployment.
  For an employee’s statement to constitute an admis-
sion, she need not have been personally involved in the
disputed employment action, “but her duties must encom-
pass some responsibility related to ‘the decisionmaking
process affecting the employment action.’ ” Stephens v.
Erickson, 569 F.3d 779, 793 (quoting Simple v. Walgreen Co.,
511 F.3d 668, 672 (7th Cir. 2007)); see also Williams v.
Pharmacia, Inc., 137 F.3d 944, 951 (7th Cir. 1998). Involve-
ment in the process leading up to the employment
action at issue is enough to make an employee’s state-
ment an admission. Simple, 511 F.3d at 672.
  In Simple, we agreed with the Third Circuit in finding
that “ ‘a subordinate’s account of an explanation of the
supervisor’s understanding regarding the criteria utilized
by management in making decisions on hiring, firing,
compensation, and the like is admissible against the
employer, regardless of whether the declarant has any
involvement in the challenged employment action.’ ” Id.
(quoting Marra v. Phila. Hous. Auth., 497 F.3d 286, 298 (3d
Cir. 2007)). After consulting with the district manager for
the region regarding the appointment of a manager at
another store, the plaintiff’s manager told the plaintiff
that race played a factor in the district manager’s deci-
sion to appoint someone other than plaintiff as manager
No. 10-3330                                             9

of the other store. Simple, 511 F.3d at 672. Although the
plaintiff’s manager was not involved in the employment
action of appointing the new manager, she was involved
in the process that led up to that action by virtue of the
district manager’s consultation with her about the ap-
pointment. Id. The plaintiff’s manager was involved in
the decisionmaking process affecting the employment
action, which was enough to make her statement an
admission under Rule 801(d)(2)(D). Id.
  Like the manager in Simple, O’Gara’s statements fit
squarely within the scope of her employment. O’Gara’s
duties as Human Resources Director at the Firm
included regular consultations regarding decisions to
eliminate positions and terminate employees in order to
ensure compliance with federal anti-discrimination laws,
making her a part of the firing process. In Hoang’s
case, O’Gara actually notified him of his termination.
Although O’Gara did not personally notify Makowski of
her termination, she was asked to confer with outside
labor and employment counsel regarding the decision to
terminate Makowski. The district court believed that
O’Gara’s job duties and her consultation with outside
counsel did not indicate any involvement by O’Gara in
the decision to terminate Makowski, because the con-
sultation occurred after the Executive Committee made
the decision; however, if a final decision had been
made, then why did DeLargy and O’Gara need to consult
with outside counsel before taking action? As we noted
in Simple, there is a distinction between the employment
action and the decisionmaking process affecting the
employment action. 511 F.3d at 672. Here, the employ-
10                                               No. 10-3330

ment action was not the decision made at the Executive
Committee retreat to terminate Makowski, but rather
her actual termination. While O’Gara was not involved in
the employment action of Makowski’s termination, she
was involved in the decisionmaking process leading up
to that action due to her consultation with outside
counsel regarding the termination and her job duties,
which include ensuring the Firm’s compliance with
federal anti-discrimination laws. Accordingly, O’Gara’s
statements fall within the scope of her employ-
ment and thus are admissible as nonhearsay under
Rule 801(d)(2)(D).


B. Pregnancy Discrimination Claim
   Next, Makowski argues that the district court erred in
granting summary judgment for the defendants on her
pregnancy discrimination claim. The PDA amends the
definition of gender-based discrimination in Title VII to
include discrimination “because of or on the basis of
pregnancy, childbirth, or related medical conditions.” 42
U.S.C. § 2000e(k). Like other Title VII claims, a plaintiff
may prove discrimination through either the direct or
indirect methods. Griffin v. Sisters of St. Francis, Inc., 489
F.3d 838, 844 (7th Cir. 2007). To survive summary judg-
ment under the direct method, a plaintiff must produce
“ ‘sufficient evidence, either direct or circumstantial, to
create a triable issue as to whether pregnancy was a
motivating factor in her discharge.’ ” Miller v. Am. Family
Mut. Ins. Co., 203 F.3d 997, 1005 (7th Cir. 2000) (quoting
Marshall v. Am. Hosp. Ass’n, 157 F.3d 520, 525 (7th Cir.
No. 10-3330                                                  11

1998)). Direct evidence is evidence that would prove
discriminatory intent without reliance on inference or
presumption. Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d
592, 599 (7th Cir. 2003). A plaintiff may also construct
a “convincing mosaic of circumstantial evidence that
allows a jury to infer intentional discrimination by the
decisionmaker.” Phelan v. Cook Cnty., 463 F.3d 773
(7th Cir. 2006) (internal citation and quotation marks
omitted).
  O’Gara’s alleged statements to Makowski, which are
now admitted under Rule 801(d)(2)(D), provide direct
evidence that pregnancy was a motivating factor in
Makowski’s discharge. Although O’Gara denies having
made the alleged statements, whether or not she made
such admissions is a question for the jury. Furthermore,
Makowski presented additional circumstantial evidence
that the district court inexplicably failed to address,
such as suspicious timing, behavior toward other em-
ployees in the protected group, ambiguous oral and
written statements, better treatment of similarly situated
employees outside the protected class, and evidence
that Makowski was qualified for her job but failed to
receive the desired treatment.1 However, even with the


1
  The district court denied a motion by the defendants to strike
Makowski’s additional facts due to an alleged violation of the
local rules, but acknowledged that it would consider the
substance of the motion in ruling on the pending motion for
summary judgment. While the district court in fact did not
consider Makowski’s additional facts, it provided no explana-
                                                  (continued...)
12                                                 No. 10-3330

exclusion of the circumstantial evidence, O’Gara’s state-
ments alone are direct evidence of a discriminatory
intent. Accordingly, the district court’s grant of summary
judgment in favor of the defendants on Makowski’s
pregnancy discrimination claim is reversed.


C. FMLA Retaliation Claim
  Makowski also argues that the district court erred in
dismissing her FMLA retaliation claim on summary
judgment. Under the FMLA, it is “unlawful for any
employer to discharge or in any other manner discrim-
inate against any individual for opposing any practice
made unlawful” by the FMLA. 29 U.S.C. § 2615(a)(2).
Similar to a pregnancy discrimination claim, “[i]n as-
serting a charge of retaliation under the FMLA, a plaintiff
may proceed under the direct or indirect methods of
proof.” Ridings v. Riverside Med. Ctr., 537 F.3d 755, 771 (7th
Cir. 2008) (citing Burnett v. LFW Inc., 472 F.3d 471, 481
(7th Cir. 2006)). To establish an FMLA retaliation
claim under the direct method, Makowski “must present
evidence of (1) a statutorily protected activity; (2) a materi-



1
   (...continued)
tion for their exclusion. For whatever reason the district court
disregarded Makowski’s facts, the court should have
addressed this issue in its opinion. Ultimately, the exclusion
of Makowski’s additional facts is irrelevant for the purposes
of this appeal; however, in the future, the district court
should provide an explanation when striking facts.
No. 10-3330                                             13

ally adverse action taken by the employer; and (3) a causal
connection between the two.” Caskey v. Colgate-Palmolive
Co., 535 F.3d 585, 593 (7th Cir. 2008).
   As the district court noted, the parties do not dispute
that Makowski meets the first and second requirements
of the direct method. Regarding the third requirement,
the district court found that without O’Gara’s state-
ments, Makowski has no evidence of a direct connec-
tion between her statutorily protected activity and her
termination; however, O’Gara’s statements are now
admitted and provide the necessary causal connection.
Makowski has sufficiently asserted a charge of retalia-
tion under the FMLA; therefore, summary judgment for
the defendants on Makowski’s FMLA retaliation claim
is reversed.


D. FMLA Interference Claim
  Finally, Makowski claims that the district court erred in
failing to address her FMLA interference claim indep-
endently of her claim for retaliation and discrimination.
We need not address this issue, because the admission
of O’Gara’s statements also requires the reversal of the
district court’s grant of summary judgment for the de-
fendants on Makowski’s FMLA interference claim.
  Under the FMLA, an employer must not “interfere
with, restrain, or deny the exercise of or the attempt to
exercise” any FMLA rights. 29 U.S.C. § 2615(a)(1). An
employee on FMLA leave has the right to be restored to
the same or an equivalent position that she had before
14                                              No. 10-3330

she took leave. 29 U.S.C. § 2612. To prevail on an FMLA
interference claim, a plaintiff must establish that: “(1) she
was eligible for the FMLA’s protections; (2) her employer
was covered by the FMLA; (3) she was entitled to take
leave under the FMLA; (4) she provided sufficient notice
of her intent to take leave; and (5) her employer denied
her FMLA benefits to which she was entitled.” Goelzer v.
Sheboygan Cnty., Wis., 604 F.3d 987, 993 (7th Cir. 2010)
(citing Burnett, 472 F.3d at 477). The parties do not
dispute Makowski’s satisfaction of the first four require-
ments.
   The remaining issue is whether a jury could find that
the defendants denied Makowski her right to reinstate-
ment, an FMLA benefit to which she was entitled, because
she took FMLA leave. See Goelzer, 604 F.3d at 993.
Again, O’Gara’s previously excluded statements to
Makowski that Makowski was let go because she took
medical leave provide a possible explanation for the
termination decision that a jury could very well choose
to believe. Because Makowski has satisfied the require-
ments of an FMLA interference claim, summary judg-
ment on this claim is not appropriate and therefore
its grant in favor of the defendants is reversed.


                     III. Conclusion
  For the foregoing reasons, we R EVERSE the district
court’s evidentiary ruling regarding O’Gara’s statements,
R EVERSE the grant of summary judgment in favor of the
defendants on Makowski’s PDA, FMLA retaliation, and
No. 10-3330                                        15

FMLA interference claims, and R EMAND for proceedings
consistent with this opinion.




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