Mary Greene v. John Potter

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-1829

M ARY A LICE G REENE,
Plaintiff-Appellant,
v.

JOHN E. P OTTER,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:04-cv-04220-GPM—G. Patrick Murphy, Judge.

A RGUED O CTOBER 28, 2008—D ECIDED M ARCH 5, 2009

Before B AUER, R IPPLE and E VANS, Circuit Judges.
B AUER, Circuit Judge. Mary Alice Greene sued John E.
Potter as Postmaster General of the United States (the
post office), claiming that she was denied overtime op-
portunities because of her gender in violation of Title VII
of the Civil Rights Act of 1964. After Greene and one of her
witnesses testified at trial, but before Greene finished
her case-in-chief, the district court granted the post
office’s motion for judgment as a matter of law and later
denied Greene’s motion to reconsider the judgment and
2 No. 08-1829

grant a new trial. Greene appeals both rulings and we
affirm.

I. BACKGROUND
Greene worked as a mail processing clerk for the post
office in Carbondale, Illinois. Postal employees worked
five days each week and the post office allowed an em-
ployee to volunteer for overtime on the days when she
was not regularly scheduled to work. Each quarter, the
post office generated a list of employees seeking over-
time by day and shift. Employees who chose to work
overtime were required to sign up for the overtime-desired
list for both of their non-scheduled days. As negotiated
by the union, the overtime schedule was supposed to
rotate according to the seniority of those employees
eligible to work on a given day. However, management
was not required to schedule an employee for more than
one overtime shift in a week, even if it happened to be
that employee’s turn in the rotation on both of her non-
scheduled days. If an employee was already scheduled to
work overtime later in the week, she could be passed over
for an earlier overtime shift, even if she was otherwise
entitled to it. The postal week began on Saturday.
Greene signed up to work on both of her non-scheduled
days, which were originally Sundays and Mondays and
later changed to Sundays and Fridays. The Sunday over-
time shift was more convenient for Greene because she
was caring for her mother and sister, and it was easier
for other family members to help with the care-taking on
a Sunday compared to a Monday or Friday. Greene claims
No. 08-1829 3

to have expressed this preference for Sunday overtime
and the reason for it to her supervisor, Dan Rendleman,
who was in charge of assigning overtime shifts. Greene
was offered overtime on five Sundays and seventeen
Mondays or Fridays during the approximately two-year
time period at issue.
After navigating the required EEOC procedures, Greene
sued the post office for gender discrimination, claiming
that she was denied her share of Sunday overtime shifts
because she is a woman, either by way of intentional
discrimination or disparate impact because Rendleman
favored his male friends to the detriment of female em-
ployees when scheduling the more desirable Sunday
overtime shift. The district court denied the post office’s
motion for summary judgment and the case went to trial.
Greene and one other witness had testified and Greene
intended to call three more witnesses when the district
court granted the post office’s Rule 50 motion for judg-
ment as a matter of law. The district court found that
Greene had not, and the testimony from her other wit-
nesses could not, establish sufficient evidence of gender
discrimination. The court later denied Greene’s Rule 59
motion to reconsider and amend the judgment and grant
a new trial.

II. DISCUSSION
On appeal, Greene argues that the district court acted
prematurely when it entered judgment as a matter of law
without allowing Greene to finish her case-in-chief. Greene
4 No. 08-1829

contends that her remaining witnesses would have pre-
sented sufficient evidence for the jury to find in her favor.
Green concludes that because the district court improperly
cut off her case, it should have granted her motion to
reconsider the judgment and grant a new trial. The post
office claims that the district court acted appropriately by
granting judgment as a matter of law when it became
apparent that Greene could not present sufficient
evidence for a jury to rule in her favor. Accordingly, the
post office argues that the district court properly denied
Greene’s motion for a new trial.
We review the district court’s grant of judgment as a
matter of law de novo and its denial of Greene’s motion for
a new trial for abuse of discretion. Castallano v. Wal-Mart
Stores, Inc., 373 F.3d 817, 819 (7th Cir. 2004); Huff v. Sheahan,
493 F.3d 893, 899 (7th Cir. 2007).

A. Judgment as a Matter of Law
Greene first argues that it was procedurally improper for
the district court to grant the post office’s motion for
judgment as a matter of law before Greene had finished
her case-in-chief. The post office contends that the court
acted appropriately because Rule 50 allows a court to
enter judgment as a matter of law as soon as it becomes
apparent that a plaintiff cannot establish an essential
element of her claim. Rule 50 provides that
[i]f a party has been fully heard on an issue during a
jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis
No. 08-1829 5

to find for the party on that issue, the court may:
(A) resolve the issue against the party; and (B) grant
a motion for judgment as a matter of law against the
party on a claim or defense that . . . can be
maintained or defeated only with a favorable finding
on that issue.
Fed. R. Civ. P. 50(a)(1).
Common practice may be to wait until a party has
concluded her case-in-chief to ensure that she has been
“fully heard” on the issue, but the Rule provides that “[a]
motion for judgment as a matter of law may be made at
any time before the case is submitted to the jury.” Fed. R.
Civ. P. 50(a)(2). It would be a foolish rule that guaranteed
a party the right to present all of its evidence when the
effort would clearly be futile. It is proper to enter judg-
ment as a matter of law prior to the close of a plaintiff’s
case-in-chief so long as it has become apparent that the
party cannot prove her case with the evidence already
submitted or with that which she still plans to submit. See
Falco Lime, Inc. v. Tide Towing Co., 29 F.3d 362, 365-66 (8th
Cir. 1994) (plaintiff admitted facts that disproved his case);
see also First Virginia Banks, Inc. v. BP Exploration & Oil,
Inc., 206 F.3d 404, 407 (4th Cir. 2000) (“right to be ‘fully
heard’ [in Rule 52 context] does not amount to a right to
introduce every shred of evidence that a party wishes,
without regard to the probative value of that evidence”);
Fed. R. Civ. P. 52(c) advisory comm. nn. (Rule 52(c) paral-
lels Rule 50(a)). The underlying question then, and the one
to which we now turn, is whether it was apparent that
Greene would not be able to prove her claim when the
6 No. 08-1829

district court granted the post office’s motion for judg-
ment as a matter of law.

B. Elements of a Title VII Claim
Title VII forbids an employer “to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.”
42 U.S.C. §2000e-2(a)(1). A plaintiff can prove illegal
discrimination either directly or indirectly. In this case
Greene relies on the indirect burden-shifting method of
proof explained in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under this approach, Greene must first
establish a prima facie case of gender discrimination by
proving that: “(1) she is a member of a protected class;
(2) she was performing her job satisfactorily; (3) she
suffered an adverse employment action; and (4) similarly
situated employees outside of her protected class were
treated more favorably.” Goodwin v. Bd. of Trustees of the
Univ. of Ill., 442 F.3d 611, 617 (7th Cir. 2006) (citation
omitted).
If Greene can demonstrate these four elements, the
burden “shift[s] to the employer to articulate some legiti-
mate, nondiscriminatory reason for the” adverse employ-
ment action. McDonnell Douglas Corp., 411 U.S. at 802. If
the post office satisfies this burden of production, Greene
must prove that the stated reason is “merely pretext for
unlawful discrimination.” Hudson v. Chicago Transit
Authority, 375 F.3d 552, 561 (7th Cir. 2004) (citing
McDonnell Douglas Corp., 411 U.S. at 804). “Although
No. 08-1829 7

intermediate evidentiary burdens shift back and forth
under this framework, the ultimate burden of persuading
the trier of fact that the defendant intentionally discrimi-
nated against the plaintiff remains at all times with the
plaintiff.” Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000) (citation and quotations omitted).1

1
The true issue when reviewing this grant of judgement as a
matter of law, is not whether Greene was able to jump through
the McDonnell Douglas Double Dutch, but whether she
presented sufficient direct or circumstantial evidence from
which a rational jury could find that she was discriminated
against because of her gender. Massey v. Blue Cross-Blue Shield
of Illinois, 226 F.3d 922, 925 (7th Cir. 2000). However, in this
case, Greene lacked any such evidence other than the hope
offered by Reeves that “a plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted
justification is false, may permit [though it does not require] the
trier of fact to conclude that the employer unlawfully discrimi-
nated.” 530 U.S. at 148; see id. at 143 (“[A]lthough the presump-
tion of discrimination drops out of the picture once the defen-
dant meets its burden of production, the trier of fact may still
consider the evidence establishing the plaintiff’s prima facie
case and inferences properly drawn therefrom . . . on the issue
of whether the defendant’s explanation is pretextual.” (citations
and quotations omitted)). Therefore, it is useful in this situ-
ation to consider Greene’s case through the McDonnell
Douglas framework. See Millbrook v. IBP, Inc., 280 F.3d 1169, 1175
(7th Cir. 2002) (examining “evidence of pretext—not because
that is dispositive, but because [pretext] could constitute
circumstantial evidence that [defendant] intentionally discrimi-
nated against [plaintiff]”).
8 No. 08-1829

C. Prima Facie Case
There is some question as to whether Greene suffered an
adverse employment action because for many of the
dates on which Greene claims she should have worked, she
did received overtime later in the week. The parties also
dispute whether Greene could meet her prima facie case
because her assertion that she should have worked over-
time on any specific date relies heavily on a computer
model that assumes a number of factors. Despite these
obstacles, we assume, for the purpose of this review, that
Greene could have presented sufficient evidence to estab-
lish her prima facie case.

D. Pretext
Even if Greene could have demonstrated a prima facie
case, she also needed to present a genuine issue as to
whether the post office’s stated non-discriminatory reason
for its scheduling practices is a pretext for gender dis-
crimination. Title VII only prohibits discrimination based
on an illegal motive—in this case, animus toward a
specific gender. The precise question then is not whether
the employer’s justification for the adverse action is a
pretext, but whether it is “a pretext for the sort of discrimi-
nation prohibited by [Title VII].” McDonnell Douglas Corp.,
411 U.S. at 804; see Reeves, 530 U.S. at 147 (“[I]t is not
enough . . . to disbelieve the employer; the factfinder
must believe the plaintiff’s explanation of intentional
discrimination.” (quoting St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 519 (1993)) (emphasis in original)).
No. 08-1829 9

Greene does not have to provide direct evidence of a
discriminatory motive as such a burden would deflate the
significance of the McDonnell Douglas indirect method.
Fischer v. Avanade, Inc., 519 F.3d 393, 403 (7th Cir. 2008). But
she must create “at least an inference” of illegal discrim-
ination. Id. (citations omitted). “[A] plaintiff’s prima facie
case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit
[though it does not require] the trier of fact to conclude
that the employer unlawfully discriminated.” Reeves, 530
U.S. at 148. However, that is not always the case, as when
a plaintiff is able to prove that the employer’s stated
reason is false, but in so doing, makes clear that the true
reason was not illegal discrimination. Id. (citations omit-
ted). For example, a plaintiff who claimed he was fired
because of age discrimination defeated his own case
when, in the course of proving that his employer’s stated
reason was false, he presented evidence that the true
reason he was fired was because his firm was trying to
cover up SEC rules violations that he had discovered.
Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1337-38
(8th Cir. 1996).
In this case, the post office claims that the Sunday
overtime-desired list was significantly longer than the
Monday or Friday overtime-desired lists, but that the
need for overtime was greater on Mondays and Fridays
when the post office was fully operational. It points out
that when an employee signed up for the overtime-desired
list, she was required to sign up for both of her non-
scheduled days and understood that management had
the discretion to have her work on either of those days.
10 No. 08-1829

Furthermore, management was not required to have an
employee work two overtime shifts in one postal week
because that would trigger “penalty overtime” or double-
time. The post office claims that even if an employee’s
“first non-scheduled day was a Sunday, the chances
always were that an employee would be needed on the
second non-scheduled day, Monday through Saturday,
when the [post office] was actually operating.” According
to the post office, Greene, “for business reasons, was
most likely to be scheduled for Monday or Friday over-
time, which is exactly what occurred.” Greene received
five Sunday overtime shifts and seventeen overtime
shifts on Mondays or Fridays during the relevant period.
Green contends that the overtime policy negotiated by
the union did not allow her to be passed over on a Sunday
when it was her turn unless she was pre-scheduled to work
the following Monday or Friday, which she claims was
very infrequent or never occurred. There is some debate
about what the overtime policy required, but even if
Rendleman’s scheduling practices violated the written
policy, that does not prove false his explanation that he
needed to ensure he had enough employees available to
work during the week.
Greene also relies on her own testimony and that of two
of her colleagues in an attempt to demonstrate that
Rendleman did not schedule simply to satisfy the
business needs of the post office. Andrew Polovich, a
male employee, testified that he believed he was wrongly
passed over for an overtime assignment when Mr.
Rendleman was his supervisor. Polovich testified that
Rendleman once told him that Rendleman called
No. 08-1829 11

Polovich for an overtime shift, however, there was no
message on Polovich’s answering machine indicating
that Rendleman had called. When asked whether he
noticed any employees favored for overtime assignments
Polovich answered that it appeared Fred Buckingham
and Frank Conners worked a lot of weekends. Finally
Polovich testified that while Rendleman typically called
an employee on the day overtime was needed, Fred
Buckingham was told a few days in advance when he
would be working weekend overtime shifts and would
laugh about it in front of the other workers.
Greene personally testified that Fred Buckingham
and Frank Connors received the most Sunday overtime
during the relevant period.
Greene also intended to introduce testimony from
Lindsey Hyde, another male employee, and in Greene’s
offer of proof to the district court, she claimed Hyde
would give testimony similar to that which he gave at the
EEOC hearing. At that hearing, Hyde testified that
Rendleman wrongfully denied him overtime. Hyde
explained that Rendleman would deliberately bypass
employees for overtime assignments and would schedule
Buckingham and Conners to work weekends. Rendleman
would bypass people on the seniority rotation for the
weekend shifts by calling an employee’s house and then
leaving the phone off the hook so Rendleman could not
hear the response. He would also call employees on very
short notice who he knew lived too far away to make it
in on time and Fred Buckingham would “mysteriously”
already be at the post office even though it was not his
turn in the rotation. Hyde testified that Buckingham had
12 No. 08-1829

foreknowledge that he would be called in. Hyde also
testified that at times he served as a substitute super-
visor and Rendleman would tell him to bring Bucking-
ham in on a Saturday; when Hyde did not call for any
overtime on a Saturday, Rendleman “chewed me out.”
Hyde did testify that Rendleman would have someone
call Lil Rathjen, a female employee, when Rendleman
knew she would not be at home, but Hyde believed that
Rendleman did not like Rathjen because she was very
wealthy.
In attempting to discredit the post office’s asserted
reason for its scheduling practices, Greene presented
evidence that, if believed, revealed a violation of the
negotiated overtime policy on the part of Rendleman
and proved that Rendleman’s explanation that he sched-
uled employees according to the business needs of the
post office was false. However, that same evidence demon-
strated that Rendleman manipulated the overtime pro-
cedures in order to benefit a few of his friends, not out of
a desire to discriminate against female employees. Greene’s
evidence of gender discrimination came from two male
employees who claimed that Rendleman treated them
unfairly in order to give overtime to Buckingham and
Connors. Greene’s computer model of who should have
worked and who actually worked Sunday overtime
also suggests that Rendleman violated the overtime
procedures to benefit a few select friends. The model
claims that Buckingham and Connors received 14 and 11
more Sunday overtime shifts, respectively, than they
deserved, that two other male employees each received
one more day of overtime than deserved, and that the
other nine employees on the Sunday overtime-desired list,
No. 08-1829 13

both male and female, received less Sunday overtime
than was proper. Greene has disproved her intentional
discrimination claim because her own evidence “conclu-
sively revealed some other, nondiscriminatory reason
for the employer’s decision.” Reeves, 530 U.S. at 148.
Therefore, there was insufficient evidence for any rational
jury to find in her favor, so judgment as a matter of law
was proper. Massey, 226 F.3d at 925. Additionally, because
the evidence Greene submitted and planned to submit
actually defeated her claim, it was appropriate to enter
judgement as a matter of law before she had concluded
her case-in-chief. See Falco Lime, Inc., 29 F.3d at 365-66.

E. Disparate Impact
Greene did not mention or explain the significance of
her disparate impact claim to the district court in her
Rule 59 motion to reconsider the judgment and grant a
new trial, nor do we find her claim compelling. As dis-
cussed above, the most Greene could demonstrate was
that Rendleman treated a few friends more favorably
than other male and female employees.

III. CONCLUSION
For the reasons set forth above, we A FFIRM the district
court’s grant of judgment as a matter of law; accordingly,
it was not an abuse of discretion to deny Greene’s
motion for a new trial.

3-5-09