7th Circuit upholds sex discrimination judgment for employer

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The 7th Circuit Court of Appeals has rejected a woman’s sex discrimination and retaliation claims against her former employer, finding she failed to prove she was fired from her longtime job because of her gender or because she took protected medical leave.

In Virginia E. Mourning v. Ternes Packaging, Indiana, Inc., 16-1650, Virginia Mourning worked for Ternes Packaging, Indiana, Inc. from 1997 until her termination in 2013. Mourning had worked for the company as its order administration manager, reporting directly to general manager Eric Frey.

Mourning was granted leave under the Family Medical Leave Act to treat a brain disease in February 2013 and returned to work less than two months later. During her leave, Mourning’s subordinates submitted “internal complaints” about her to Frey, claiming she intimidated and publicly humiliated them and acted unpredictably. The internal complaints were the first time Mourning had been the subject of a written complaint while at Ternes, and she had never been disciplined. Further, Frey had consistently rated Mourning as “exceptional” in her annual evaluations.

When Mourning returned from FMLA Leave, she submitted written rebuttals to the complaints and submitted her own complaint against the staff. She also carbon-copied Howard Ternes’ vice president of finance on her complaint, which alerted the parent company to the complaint against her.

During a routine visit from Carrie Brown, Frey’s supervisor at the parent company, Frey informed Brown that the department did not want Mourning to come back. Brown also met with a director at Allison Transmission, a Ternes client, and was told that Mourning was not performing up to his standards because she would not use data systems. Howard Ternes then initiated an investigation into Mourning’s performance and determined she had exhibited unprofessional conduct toward her staff and had failed to satisfy customer expectations.

The parent company made the decision to fire both Frey and Mourning in April 2013, accusing Frey of failing to timely inform company headquarters of the complaint against Mourning and for failing to hold her accountable. For her part, Mourning was fired based on the conclusion that her “‘performance had resulted in neither her order administrators nor her customers wanting to work with her.’” Another female order administrator was appointed to take Mourning’s place.

Mourning responded by suing Ternes, alleging sex discrimination and retaliation for taking FMLA leave. The U.S. District Court for the Southern District of Indiana granted summary judgment to Terns on each of those claims, finding Mourning failed to point to evidence of sex discrimination and that she could not establish a prima facie case of retaliation.

The 7th Circuit Court of Appeals agreed, writing in a per curiam opinion handed down Friday that she did not present evidence “that would permit a reasonable factfinder to conclude that she was fired because of her sex.” Though Mourning tried to compare herself to Walter Fish, the former Ternes material manager whom she claimed acted more egregiously yet was given chances to improve his performance, the circuit court said she failed to show Fish was treated more favorably than she was by Howard Ternes.

The appellate court also found Mourning failed to prove the reasons for her discharge were pretextual, as she does not argue that Howard Ternes knew the allegations against her were false, as she claimed. Finally, Mourning failed to identify anyone in the office who had an issue with her FMLA leave and failed to prove Howard Ternes retaliated against her based on that leave, the court said.

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