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Date: 10-17-2018

Case Style:

Kelley Donley v. Stryker Sales Corporation

Case Number: 17-1195

Judge: Hamilton

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Kristin Case, Kendra Kutko, Kathleen Sedey

Defendant's Attorney: Tracy Marie Billows, Kevin Andrew Fritz, Ashley Kircher Laken


Kelley Donley sued her former
employer, Stryker Sales Corporation, for retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3. She
argues that Stryker fired her in retaliation for filing an internal
complaint against a sales manager who had sexually harassed
another employee. The district court granted summary judgment
for Stryker, finding that Donley did not offer evidence
supporting a causal link between her harassment complaint
2 No. 17‐1195
and Stryker’s decision to fire her. Applying the familiar standard
for summary judgment, we must give Donley as the nonmoving
party the benefit of conflicts in the evidence and any
reasonable inferences in her favor. Under that standard, we
find a genuine issue of material fact about the reason Stryker
fired her. We therefore reverse the judgment and remand for
Our account of the facts here does not vouch for the objective
truth of every detail but applies the summary‐judgment
standard to the evidence, and there are some key disputed
facts. In 2010, Donley began working as the corporate‐accounts
director for Stryker, a medical‐equipment manufacturer
and retailer. She repeatedly failed to submit her expense
reports, however, and was demoted to clinical manager.
In June 2014, Donley learned from co‐workers that one of
Stryker’s sales managers had sexually harassed a subordinate.
Donley filed a formal harassment complaint with Stryker’s director
of human resources, Stacie Ferschweiler. Stryker investigated
the complaint, resulting in the firing of the manager,
though he also received a substantial severance package.
In August 2014, just after that manager was fired, Stryker
began investigating Donley herself. The focus was an incident
six weeks earlier at a team meeting in Vail, Colorado. One
evening, Donley had taken photographs of the female CEO of
one of Stryker’s vendors in an intoxicated state. Donley had
then shared the photographs with co‐workers. During this investigation,
Donley denied taking any videos or photographs
of the vendor that were “compromising.” She maintained that
she had escorted the vendor up to her hotel room out of concern
for her safety.
No. 17‐1195 3
The parties dispute precisely when Donley’s photographs
first came to the attention of human resources director
Ferschweiler and Donley’s supervisor, Jeff Thompson. Donley
said that she showed Thompson the photographs at the
hotel bar in Vail on the night she took them. Stryker’s written
response to Donley’s EEOC charge said that Donley showed
the photographs to Thompson, that Thompson was “unamused,”
and that he told Donley to delete the photographs.
In the lawsuit, however, Thompson has denied seeing the
photographs that night in Vail. He testified in his deposition
that he recalled hearing about the incident from other employees
some time after the team meeting. He also testified
that he told Ferschweiler about the photographs before the
formal investigation had commenced. If his testimony on that
last point is credited, it helps Donley because Ferschweiler
testified differently. She testified that she did not learn about
the Vail incident until August 2014 when she conducted an
exit interview with a departing employee who complained
about Donley’s unprofessionalism.
In any event, Ferschweiler conferred with Thompson over
the investigation’s results. According to Stryker, they decided
that Donley should be fired because taking photographs of a
valued partner while intoxicated was unacceptable. The termination
letter stated that Donley had engaged in “inappropriate
conduct and poor judgment” and that her conduct violated
Stryker’s employment policies. Unlike the sales manager
she had complained about, she was not offered a severance
Donley then sued Stryker under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e–3, for retaliating against
her based on the internal complaint she had filed. In her view,
4 No. 17‐1195
Stryker’s retaliatory motive can be inferred from the suspicious
timing of her firing (only six weeks after she filed the
complaint); from the more favorable treatment afforded to the
manager who was also fired for misconduct; and from evidence
of pretext—specifically Stryker’s inability to explain
how her conduct violated company policy, and especially
Thompson’s and Ferschweiler’s inconsistent recollections of
learning about the photographs. From Donley’s point of view,
Thompson had originally told her to delete the photographs
but had not thought any further response was needed. And
Ferschweiler had learned of the Vail incident without taking
any action herself. As Donley views the evidence,
Ferschweiler and Thompson did not conclude that she should
be fired over the Vail incident until after Ferschweiler and/or
Thompson had learned that she had engaged in activity protected
by Title VII, complaining about another manager’s sexual
harassment of another employee
The district court granted summary judgment for Stryker.
Applying the standard set forth in Ortiz v. Werner Enterprises,
Inc., 834 F.3d 760, 764–65 (7th Cir. 2016), the court found that
the evidence as a whole could not lead a reasonable factfinder
to conclude that Donley’s internal complaint caused her termination.

According to the court, the “undisputed material
facts demonstrate that Stryker terminated Donley’s employment
because of her own drunken conduct in Vail, Stryker’s
policies, and its valued relationship with the CEO.” The court
deemed irrelevant the dispute over when Thompson learned
about the photographs because the decision was made to fire
Donley before he knew about her internal complaint. Without
knowledge of Donley’s internal complaint, the court reasoned,
a desire to retaliate against Donley for her internal
complaint could not have motivated his actions. Further, the
No. 17‐1195 5
court concluded, Donley was not directly comparable to the
fired manager who had received a severance package; he held
a more senior position, reported to a different superior, and
was fired for different conduct by different decision‐makers.
On appeal, Donley argues that the suspicious timing of the
investigation could convince a reasonable factfinder that
Thompson and Ferschweiler decided to fire her in retaliation
for filing the internal complaint. She has offered evidence that
both Thompson and Ferschweiler knew about the photographs
before the August 2014 investigation. Neither took any
disciplinary action against her until after she reported the
other manager for sexual harassment. She points to Stryker’s
response to her EEOC charge. Stryker said that Thompson
saw the photographs at the team meeting in Vail. That evidence
is helpful to Donley, both in contradicting Stryker’s defense
in the lawsuit and also in suggesting that Thompson did
not think Donley’s actions in Vail warranted her firing, at least
Stryker counters that the EEOC statement should not be
admissible as evidence against it. Stryker contends that this
court has been “reluctant to give substantial weight to a position
taken in adversary proceedings before the Department
[of Human Services].” See McCoy v. WGN Cont’l Broadcasting
Co., 957 F.2d 368, 373 (7th Cir. 1992). In McCoy an employer
accused of age discrimination asserted conflicting positions in
administrative proceedings and federal court. We concluded
that the discrepancy was not evidence of “per se pretext” because
parties in administrative forums are influenced by different
factors and incentives that may not exist in federal
court. Id. at 373–74.
6 No. 17‐1195
Those considerations may affect the weight of the evidence,
but they certainly do not authorize exclusion of an employer’s
EEOC response when offered as an admission of a
party opponent. See Fed. R. Evid. 801(d)(2); Starks v. George
Court Co., 937 F.2d 311, 314 n.2 (7th Cir. 1991) (using EEOC
response as evidence of inconsistencies in employer’s reasoning);
E.E.O.C. v. C.G. Schmidt, Inc., 670 F. Supp. 2d 858, 868–69
(E.D. Wis. 2009) (illustrating how inconsistent and shifting explanations
in employer’s position statements to EEOC may
require denial of summary judgment); Frazier v. Indiana Dep’t
of Labor, 2003 WL 21254424, at *4–5 (S.D. Ind. 2003) (Tinder, J.)
(deciding motion in limine on permissible uses of employer’s
position statements to EEOC); Thomas v. Big Lots Stores, Inc.,
2016 WL 1746366, at *2 (N.D. Ind. 2016) (denying motion in
limine to exclude employer’s statements of position from evidence).
More generally, an employer’s shifting factual accounts
and explanations for an adverse employment decision can often
support a reasonable inference that the facts are in dispute
and that an employer’s stated reason was not the real reason
for its decision. E.g., Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 147–48 (2000) (reversing judgment as matter
of law for employer; evidence of pretextual reason for firing
supported reasonable inference of unlawful motive); Castro
v. DeVry University, Inc., 786 F.3d 559, 565 (7th Cir. 2015) (employee
can show pretext by identifying weaknesses, implausibilities,
inconsistencies, or contradictions in employer’s explanation
that would allow reasonable person to find it unworthy
of credence); Coleman v. Donahoe, 667 F.3d 835, 852–53
(7th Cir. 2012) (reversing summary judgment for employer);
Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir.
2007) (same); Gordon v. United Airlines, Inc., 246 F.3d 878, 890–
No. 17‐1195 7
93 (7th Cir. 2001) (reversing summary judgment for employer;
contradictions in explanation for firing supported reasonable
inference that employer’s stated reason was pretext for unlawful
Donley also highlights Thompson’s testimony that he told
Ferschweiler about the photographs before the start of the investigation.
In Donley’s view, this evidence that one or both
decision‐makers knew about her alleged misconduct before
the investigation (which followed immediately Donley’s protected
complaint) raises a material factual dispute because a
reasonable jury could interpret the delay in starting the investigation
as evidence of retaliation.
Viewing the facts at summary judgment in the light most
favorable to Donley, Chaib v. Geo Group, Inc., 819 F.3d 337, 340
(7th Cir. 2016), the evidence could convince a reasonable jury
that her firing was retaliatory.
Donley’s timeline, which is
supported by evidence in the record, exposes inconsistencies
and contradictions between Thompson’s and Ferschweiler’s
accounts of why Stryker began the investigation that ended
with Donley’s discharge. If the disputed facts are resolved in
Donley’s favor, a reasonable jury could interpret the suspicious
timing as evidence (a) that one or both decision‐makers
initially found Donley’s actions in the Vail incident to be tolerable,
and (b) that they decided only later, after she had filed
her internal complaint, to use that incident as a pretext to fire
her for retaliatory reasons.
Stryker counters that the timing of the investigation of
Donley is not material because it is undisputed that Thompson
did not know about Donley’s internal complaint, and so
he could not have fired Donley with retaliatory animus. This
argument fails to take into account the involvement of human
8 No. 17‐1195
resources director Ferschweiler, who was certainly aware of
Donley’s complaint. There is evidence that she launched the
investigation of Donley and the Vail incident about a day after
resolving that internal complaint, and she drafted Donley’s
termination letter after consulting with Thompson about the
investigation into the Vail incident. If a person with retaliatory
animus “provided factual information or input that may have
affected the adverse employment action,” then the employer
still can be liable for a retaliatory firing. Matthews v. Waukesha
County, 759 F.3d 821, 829 (7th Cir. 2014). Even if Thompson
did not know about the internal complaint, Ferschweiler did,
and she played a meaningful role in the decision to fire Donley.
The dispute over when Ferschweiler learned about Donley’s
actions in Vail might therefore help convince a reasonable
jury that she harbored retaliatory animus.
As further evidence of retaliation, Donley points to the
more favorable treatment afforded to the fired regional sales
manager who was the target of her internal complaint and
whom she regards as similarly situated to her. She maintains
that both of them had been investigated and found to have
violated Stryker policies, yet only he received a severance
package. Evidence that similarly situated employees outside
the legally protected group were treated differently may furnish
circumstantial evidence of retaliation or other unlawful
motive. Greengrass v. Int’l Monetary Systems, Ltd., 776 F.3d 481,
486 (7th Cir. 2015). To invoke this type of circumstantial evidence
of unlawful motive, however, the plaintiff and the comparator
normally must have “dealt with the same supervisor,
[been] subject to the same standards, and ha[ve] engaged in
similar conduct without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s
treatment of them.” Gates v. Caterpillar, Inc., 513 F.3d
No. 17‐1195 9
680, 690 (7th Cir. 2008) (internal quotations omitted). Perfect
congruence is not required, however. The question is whether
the two employees are situated similarly enough for reasonable
comparison. Coleman, 667 F.3d at 846–47.
While such comparisons often present factual issues for juries
to decide, we agree with Stryker that in this case, Donley
and the fired regional sales manager were too different for this
comparison to defeat summary judgment, at least on the record
now before us. Donley and the sales manager reported to
different supervisors and were subject to different standards.
The manager occupied a more senior position than Donley.
Without additional information about the nature and circumstances
of the sexual‐harassment complaint, the outcome of
the internal investigation, and other mitigating and aggravating
factors, we could not say that Donley and the sales manager
engaged in misconduct of similar gravity so as to justify
the comparison.

Outcome: For these reasons, we REVERSE the grant of summary
judgment for defendant and REMAND for further proceedings
consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:


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