Project Posner

Lead opinion by POSNER

   MEMORANDUM OPINION

   POSNER, Circuit Judge (sitting by designation). On May 4, upon receipt of the jury's verdict, which was advisory as to the Title VII issues, I dictated to the court reporter an oral opinion disposing tentatively of those issues, and asked the Parties to submit post-trial briefs that would assist me in making my final decision. Upon consideration of these briefs, I have decided to adhere to my tentative decision. What follows is an amended version of my oral opinion, revised to be more readable and to respond to points made in the plaintiff's brief. This opinion contains the findings of fact and conclusions of law required by Fed. R. Civ. P. 52(a).

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   I know this is a disappointing result for the plaintiff. You have the satisfaction, however, of knowing that the jury obviously gave careful consideration to the case. They did not rush their verdict. They took an entire day, and I'm sure they were conscientious and attentive and did the very best they could.

   It is now my job to decide the issues on which the jury's verdicts were only advisory, the Title VII issues. I have been thinking about this a great deal during the trial, I have extensive notes, 2 and I'm now going to dictate an opinion.

   Let me first thank the lawyers--Andrea Christensen and her associates (for the defendants), and Sheribel Rothenberg (for the plaintiff)--for the very professional way in which the trial was conducted, with a minimum of interruptions, a minimum of objections, and well within the bounds of courtesy that I know are difficult to maintain amidst the tensions of a lawsuit. It certainly made my job easier that we were spared the interruptions and the squabbles among counsel that are so common in these cases.

   Let me also say that, regardless of the outcome from a legal standpoint, the plaintiff should have the satisfaction of knowing that this trial has demonstrated, at least to me, that the handling of this personnel situation by Brown Brothers left much to be desired. I'm sure this lawsuit would not have been brought had the management of Brown Brothers handled this matter in a more sensitive fashion.

   I first review the Title VII charges, because their scope is material to my conclusions.

   The first charge is that the firing of the plaintiff, Margaret McCarthy, was based on her sex and therefore violated Title VII. There are two other potential issues 3 of sex discrimination, which, however, I have concluded are not in the case any more, if they ever were. First, it is possible that McCarthy's advancement at Brown Brothers was held back because of attitudes that the management had toward women. That would be a form of sex discrimination independent of her being fired. Much of this charge might or might not be barred by the statute of limitations, but my conclusion is that this issue has in any event not been pressed sufficiently to be preserved as an independent issue. It was raised only in connection with, and has merged into, the question of the discharge; so that if McCarthy was not fired on account of her sex, there is no independent surviving pre-discharge sex discrimination claim based on the theory that she was not given institutional portfolios that she would have received had she been a man.

   The other omitted sex discrimination issue is the Gunther issue. Notwithstanding the Bennett Amendment (the last sentence of 42 U.S.C. § 2000e-2 (h)), it is possible to argue that unequal pay for unequal work violates Title VII, provided the plaintiff can prove that the disparity was intentional. See County of Washington v. Gunther 4 , 452 U.S. 161 (1981); American Nurses' Ass'n v. Illinois, 783 F.2d 716, 720-23 (7th Cir. 1986). This requirement distinguishes the case from a comparable-worth case, which is not actionable, at least under the law of this circuit. See id. But I have gone back through the complaint and the pretrial order, and no Gunther issue was preserved.

   So remaining in the case are the discharge issue and the retaliation issue. The latter has two possible components, but one of them has dropped out of the case. The first retaliation issue and the one on which I asked the jury's advice is whether Brown Brothers blacklisted McCarthy by telling perspective employers that she had brought a sex discrimination suit or that she had filed administrative charges of sex discrimination. That issue is, of course, in the case, and I will address it. The second retaliation issue, the one I believe has fallen out, is whether Brown Brothers gave her a worse reference than they would have done if she hadn't filed these charges. That might have been a theory of the case, but it was not pressed; and anyway not enough evidence was introduced to create a triable issue. We heard no evidence about what kind of 5 references Brown Brothers gives for other people that it fires or who leave, so I have no basis for concluding that the reference given McCarthy was worse because she had filed these charges than it would otherwise have been.

   The basic facts can be stated briefly. McCarthy, who is now approximately 51 years old, was born in Ireland, came to this country as a young woman, and after a succession of clerical jobs entered Northwestern University and received an M.B.A. in 1971. Shortly afterward Brown Brothers hired her as a portfolio manager at a salary of $ 14,500 a year. Her salary in her last clerical job had been $ 9,000. She was hired to assist McLennan with the Cowles account, but since that account took up only about half her time she was also given responsibility for the management of a number of portfolios of individual investors (as distinct from corporate and other institutional investors). There were some institutional accounts within the overall Cowles account, but that account was her only involvement with institutions, and only two small accounts of hers were discretionary.

   Brown Brothers Harriman has a small branch office in Chicago. There are only 17 people in it. The 6 office is engaged primarily in the management of investments for individuals and institutions and secondarily in the sale of securities research generated by the home office in New York. The Chicago office is run on a very informal basis. There are not (or at least in the period relevant to this case there were not) any systematic personnel policies, performance reviews, or other elements of a formal personnel management system.

   Before Laurence Whittemore became resident partner in 1975--in the era of his predecessor, Costikyan--there were incidents evincing insensitivity to McCarthy 's position as a woman working for the firm. (Whittemore incidentally, along with a deceased executive named Hode, were named as defendants along with Brown Brothers Harriman; but at the opening of trial the plaintiff's counsel conceded that she had no evidence against them, and informally dropped them from the case; my entry of judgment for them is therefore a formality.) We heard about the stag parties at the Chicago Club, the memorable comment about how McCarthy hoped it was a male mouse that one of the executives had stepped on at one of those parties, the reference to her as the Jackie Robinson of 7 Brown Brothers, and the comment attributed to Russell Eddy that it was unlady-like to make cold calls; but the evidence of those early events is not strongly probative on the question whether her discharge in 1979 was due to her being a woman.

   Whittemore promoted McCarthy to investment officer in 1976. A year earlier her husband had started an engineering consulting business which figured in the trial but does not figure in my decision, for reasons that will become apparent.

   McCarthy was fired after a sequence of unfortunate events that occurred in 1978 and early '79. She was succeeded after a six-month interval by Howard Hunt, who was fired two years later for developing mysterious "blank spots," "gaps," or "black spots," and who was succeeded in turn by Katheryn Sullivan, who had been McCarthy's first secretary.

   McCarthy's search for a replacement job in the investment industry was a dismal failure despite assiduous efforts that involved the mailing of 200 resumes. She has never been able to find a job in the Chicago investment community, and she is now selling jewelry at Marshall Field's. This is a most unfortunate turn in a career that had begun so promisingly in 1971.

   The most 8 difficult issues in the case are issues of credibility arising from the extraordinarily sharp conflicts in the witnesses. testimony. Of course I have no idea what went on in the jury room, but I would guess that the jury spent a lot of time trying to figure out whom to believe.

   I have no doubt that much false testimony was given. I reject entirely the testimony of Janet Creterman. I think she has been harboring a grudge all these years, and was determined to testify in what she believed to be a manner adverse to Brown Brothers. I think she knowingly testified falsely that she did not remember having applied for and been turned down for unemployment insurance. I even disbelieve the statement, skillfully extracted from her by lawyer Christensen on cross-examination, that it would be appalling for a boss to require his secretary to type her own reprimand. I think she said this only because she believed (incorrectly) that it would harm Brown Brothers.

   Another thing I absolutely do not believe is McLennan's testimony that when he toyed with the idea of giving McCarthy responsibility for a $ 30 million institutional account, he envisioned that she would be the second person on the team 9 managing that account. That suggestion surfaced for the first time during this trial, and I suspect that McLennan made it up on the spur of the moment. I also don't believe, despite testimony by Whittemore and others, that Brown Brothers would have given her responsibility for a $ 30 million institutional account as her very first institutional account. The Chicago office is a small office. During the relevant period it had only about $ 300 million in assets under management. I don't think they were going to turn over a tenth of their assets to a person who had no experience in institutional management.

   I also disbelieve the business about McCarthy's moonlighting. I suspect--and, indeed, she admitted in her opening testimony--that she engaged in some activities on behalf of her husband during office hours, but that the witnesses for Brown Brothers greatly exaggerated the significance and extent of those activities. I disbelieve Sullivan's testimony that she spent two hours a day doing work for McCarthy's husband. Whittemore testified that he didn't know about the alleged moonlighting that, according to Sullivan, went on for years under his nose. I don't understand how in an office 10 of this size, such activity--not only the alleged two hours a day that Sullivan worked for McCarthy but also the alleged three hours a day that McCarthy spent on the phone on her husband's business--could have been concealed. Furthermore, Whittemore testified that he still regards McCarthy as having been a loyal and punctual employee, and how could he so testify if he believed that she had been doing all this moonlighting, which would have been a violation of the rules of the Security Exchange Commission as well as a gross breach of the employee's duties to her employer?

   The issue of moonlighting is in any event peripheral. It was not the ground on which McCarthy was fired. Conceivably it put some additional pressure on her secretaries, but the issue just wasn't worth the time spent on it at trial.

   McCarthy's misdeeds with her secretaries were also exaggerated. Sullivan testified that it is absolutely forbidden to telephone a secretary at home. I don't believe it. I've called my secretary at home. I'm sure everybody who has a secretary has called his (or her) secretary at home.

   But I also think that McCarthy's testimony was incomplete. I think her problems with secretaries were more 11 serious than she said, although less cataclysmic than the defendant's testimony portrayed.

   The ultimate issues are retaliation and discharge. I'll start with the former. I agree with the jury that McCarthy failed to prove by a preponderance of the evidence that she was retaliated against. It's a close issue but I am left with the conviction that she has not proved it.

   I'll first list very briefly the items of evidence that support her and out of which her claim is constructed, and then I'll explain why I nevertheless conclude that the alleged retaliation did not occur.

   First, it is significant that Robert Back, when he was fired, found a job within a month; and from McCarthy's resume, from Back's testimony, and even from the testimony of the defendants, it appears that she was a qualified financial manager who in the ordinary course of things would be expected to find a job in a reasonable period of time--maybe not a month, but it certainly should not have taken eight months, let alone eight years (and perhaps forever, for she still hasn't found a job in the investment community, and maybe never will).

   Whittemore's letter to McCarthy, written in October 1979, telling her that she 12 had violated the rules of the Securities and Exchange Commission has no significance in itself as retaliation, because it had no consequences. But it indicated anger and, perhaps, some malice on the part of the defendant that would be consistent with retaliatory activities. It would be outstandingly nutty for Brown Brothers to blacklist a person in this way, not only (or mainly) because it would violate the law but also because it would generate additional damages on the sex discrimination charge and, most important, because if it got out it would damage the reputation of Brown Brothers terrible. However, these things happen--people get angry and behave irrationally--though I think it is very unlikely that it happened in this case.

   Then there is Eddy's ambiguous admission in his deposition that Brown Brothers had made word of McCarthy's filing charges of sex discrimination "available." At trial he testified that he misspoke, and it is possible that he did. I really don't know whether it was an admission, and if so whether it reflected knowledge or confusion. But it's something.

   I credit McCarthy's testimony that Whittemore displayed anger. I don't know whether he threw her lawyer's 13 letter down on the desk or not. I don't know who, if anyone, slammed doors at Brown Brothers. But I do think he was angry, and angry people can retaliate.

   So there is some evidence of retaliation, but not enough to persuade me there was retaliation. It is noteworthy that Back, a favorable witness for McCarthy, had not heard about the sex discrimination charges even though he was plugged into the Chicago financial community. And the evidence that was Presented just does not enable me to infer from her lack of success in obtaining another job, in conjunction with these other items of evidence that I have mentioned, that she was a victim of retaliation. We didn't hear testimony from an executive recruiter, or from other people in the business besides Back, that would enable a judgment that her failure to obtain another job is so inexplicable that in conjunction with the other, highly speculative items of evidence that I listed it probable was the case that Brown Brothers spread the word.

   I turn finally to the discharge issue. It is a very difficult issue but after much agonizing I have concluded like the jury that McCarthy did not succeed in proving by a preponderance of the evidence 14 that sex was a cause of her discharge. It may have been, but my best judgment is that it was not.

   We must recall that she was hired back in 1971, without experience in the investment industry although with a business degree, and at a modest wage, primarily to be the inside person on the Cowles accounts. She spent about half of her time on this work, and while I do not fully believe McLennan's statement of how much he did relative to her I do think that her work on that account was less responsible work than that of the other portfolio managers. She was assisting another person; she did not have autonomous command of those accounts. She spent the other half of her time managing rather small personal accounts, not institutional accounts, and she had little discretionary authority.

   She received raises proportionately the same as the other portfolio managers except Berris, who was a real high flier, but her raises were from a lower base so that her wages remained much lower than those of the other account managers.

   I believe that her work was adequate, but not outstanding. She was a competent portfolio manager and I am not persuaded that she was disorganized or anything of that sort, 15 but I credit the defendants' testimony to the extent of believing that she was not an "A" plus or an outstanding manager.

   Now maybe she was held back because she was a woman. The executives of Brown Brother's Chicago office, for the most part, continued through this trial to display a patronizing attitude towards women. I heard a lot of talk about the "girls" and about the "ladies." McLennan was rude toward attorney Rothenberg in a way that I do not believe he would have been toward a cross-examining male lawyer. These things give me pause and make me concerned with the possibility that McCarthy was held back because of her sex, but reviewing all the evidence I conclude that it's equally possible that it was her reticent personality or, perhaps, some deficiency in skills, knowledge, or judgment, that held her back.

   Although I think Brown Brothers honestly did not rate McCarthy as outstanding, they would not have fired her but for the secretarial problems that she encountered as soon as Sullivan stopped working for her. These were serious problems. Although I think the Brown Brothers' witnesses exaggerated them, I have little doubt that McCarthy created significant turmoil by going 16 through four secretaries in the space of little more than a year. Her dealings with Parenti showed poor judgment. Forcing Parenti to type her own reprimand (like forcing someone to sign his own death warrant, as one witness put it) was a mistake. I cannot be sure of what went on, and it may be that McCarthy is more sinned against than sinning, but the fact that Parenti walked off as she did in January 1979 suggests to me a degree of upset bound to be distressing to the firm. So, clearly, the reason given for firing McCarthy--her problems with the secretaries--was no pretext. Whittemore was not out to get McCarthy. The firm was satisfied with her work--maybe not overjoyed, but on the other hand it wasn 't paying her very much; so I think that on balance it was satisfied.

   I do think Whittemore became exasperated and fired her because of her secretarial problems. There is no doubt that Brown Brothers had a serious problem of secretarial disaffection and turnover. The cause is not clear. Maybe Brown Brothers just doesn't pay high enough wages to secretaries, or maybe the Chicago office is poorly managed; there are indications of that. But I have no doubt that Whittemore was sincerely concerned 17 with the problem and thought that firing McCarthy was a way of dealing with it.

   The question then comes down to whether Brown Brothers would have been more forebearing with a man. This makes the testimony of and about Deane Tubbs, who had serious secretarial problems but was not fired--who had seven secretaries in approximately the same span of time as Margaret McCarthy--critical.

   I don't buy the well-concerted testimony about his being a lovable teddy bear. He did not strike me as lovable. And he was given better treatment than McCarthy: he was given a firm warning to shape up or ship out, and he shaped up. I am not convinced, however, that the reason he was given better treatment was that he was a man. He was a higher-paid, therefore presumably more valuable, employee to the firm in its own eyes, rightly or wrongly, than McCarthy. He was the only institutional advisor (i.e., salesman of securities research) in the Chicago office. He covered a large midwestern territory. Naturally, therefore, he received more consideration.

   I am speculating here; this was not the defendant's explanation of why Tubbs was treated more indulgently. The defendant's explanation was that his secretarial 18 problems were less serious than McCarthy's. I believe also that is correct. A salesman's secretarial problems are internal; McCarthy's secretarial problems, which touched multi-million dollar accounts of finicky and demanding investors (the Cowles family), could have alienated important clients and caused substantial harm to Brown Brothers. There was credible evidence both that McCarthy's secretarial problems were more serious than Tubbs's and that they were honestly considered to be potentially more threatening to the firm. It 's possible that Tubbs was given an extra dollop of consideration because he was a man, but that's speculation, and speculation isn't enough. See Andre v. Bendix Corp., 841 F.2d 172, 176 (7th Cir. 1988).

   Even if I rejected the defendant's explanation for why it fired McCarthy but not Tubbs, I would still be unconvinced that sex had played a role. "A demonstration that the employer has offered a spurious explanation is strong evidence of discriminatory intent, but it does not compel such an inference as a matter of law. The judge may conclude after hearing all the evidence that neither discriminatory intent nor the employer's explanation accounts for the 19 decision." Benzies v. Illinois Dep't of Mental Health & Developmental Disabilities, 810 F.2d 146, 148 (7th Cir. 1987). There was much evidence that Brown Brothers' Chicago office was mismanaged. The firing of McCarthy may well have been a blunder--likewise the failure to fire Tubbs. But I just am not persuaded that, if McCarthy's conduct had been identical in all respects but she had been male, she would not have been fired. And Title VII is not a just-cause statute. Pollard v. Rea Magnet Wire Co., 824 F.2d 557 (7th Cir. 1987).

   Further supporting the defendant's position, though only slightly, is the fact that Brown Brothers dealt quite abruptly both with Back and with McCarthy's successor, Hunt, both of whom were fired without warning for conduct no graver than McCarthy's secretarial problems. Whittemore had an itchy trigger finger. But there is a difference. Back and Hunt had worked for Brown Brothers for only two years or less and thus were let go within the informal probationary period. McCarthy had worked for the firm for seven and a half years, and maybe if she had been a man seven and a half years would have built up enough informal tenure or job equity that Whittemore 20 would have given her another chance, a final warning before the break. That is possible, but I just am unable to conclude that it is more likely than not that, had she been male, she would have gotten that other chance. I do think that the secretarial Problems had gotten out of hand. I do think it is likely that good secretarial assistance was more important in McCarthy's work than in Tubbs's because the Cowles family's representative was so demanding. I simply am not persuaded that her sex made a difference.

   Now, having said all that, I add--maybe straying outside the boundaries of my judicial office--that this matter was badly handled by Brown Brothers, which bought itself a quite unnecessary, quite expensive lawsuit. It's not just the letting go with two weeks notice of a long-time employee; but the executives testified--and they may have exaggerated some but basically I believe them--that they weren't enthusiastic about McCarthy's work. I see no evidence that the executives encouraged her or facilitated her obtaining greater responsibility; and, worst of all, there was no feedback. She was given no sense of her position in the firm. There were no regular reviews of performance. 21 There was not even informal feedback, and I imagine it was a terrible shock to her when she was fired, with only two weeks notice, because of secretarial Problems that, in all likelihood, she did not think were cause for termination. Again, I may be wrong. I may be assessing the situation incorrectly, but I do think this lawsuit is due not to the plaintiff's litigiousness but to the mishandling of a human relations problem which has resulted in a personal tragedy and an expensive and protracted lawsuit.

   But my duty, like the jury's, is to apply the law. We are not operating under a just-cause statute. There is no tenure. There is no employment contract. The only issues are whether there are violations of federal law, and I agree with the jury that McCarthy failed to prove by a preponderance of the evidence that her rights were violated. I should add that in a case where issues of credibility loom so large, and where the jury appears to have deliberated conscientiously under instructions not objected to by either party, I am reinforced in my conclusion by the fact that the jury reached the same conclusion in the advisory verdict.

   I am therefore entering final judgment under Rule 58 22 dismissing the suit with prejudice.