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Owens v. Old Wisconsin Sausage Co.

United States Court of Appeals, Seventh Circuit

August 31, 2017

Jamie Owens, Plaintiff-Appellant,
Old Wisconsin Sausage Company, Incorporated, Defendant-Appellee.

          Submitted May 30, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. l:15-cv-00424-WCG - William C. Griesbach, Chief Judge.

          Before WOOD, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.


         Jamie Owens worked as an employee of Old Wisconsin Sausage Company (Old Wisconsin) from June 2011 until her termination in April 2012. She filed suit against Old Wisconsin alleging employment discrimina- tion in that termination, including discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as a claim of retaliation under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3). The district court granted summary judgment in favor of Old Wisconsin on all claims, and Owens now appeals that judgment to this court.

         Owens was hired as the manager of the Human Resources ("HR") Department, and was one of eight department managers at Old Wisconsin. She previously had worked as HR Manager at Lakeside Foods. Owens was the only female manager at Old Wisconsin, and reported to Karen Noble, the Vice President of HR at the corporate level, and Steve Harrison, the Vice President and General Manager. Owens was hired as a replacement for a male HR manager, Jeff Thiel. During her training, Thiel told Owens that during his employment at Old Wisconsin there tended to be a "boys club" which Owens understood to refer to some managers doing things their own way and excluding Thiel and the HR department from the decision-making process. Thiel also indicated that Old Wisconsin had hired Owens because she was female and that Noble believed that bringing in a female would help to evolve the culture of the company. The managers at Old Wisconsin were classified as either "Manager I" with a bonus potential of 15%, or "Manager II" with a 10% bonus potential. During her 10-month stint at Old Wisconsin, Owens was classified as a Manager II and her salary was the second lowest of the managers there.

         While Owens was the HR manager, Matt Kobussen applied for an open position as a retail store supervisor at Old Wiscon- sin. He had similarly applied for a position and had been hired at Lakeside Foods when Owens was the human resources manager there. Owens was involved in the interview process at Old Wisconsin but did not disclose that she and Kobussen were in the midst of a six-year relationship. Although Owens denied in the district court that she was living with Kobussen at the time he was interviewed and hired in 2011, the district court noted that Owens had testified under oath in a separate court proceeding in 2014 that she had lived with Kobussen from 2010 until "almost 2012" and had raised his son for five years. In a small claims court complaint which she stated under oath was true, she referred to her relationship with Kobussen as a 6-year relationship. The court determined that those statements should be taken as true under the doctrine of judicial estoppel, holding that Owens cannot attempt to prevail in those cases by arguing that she was in a relationship with Kobussen during that time period, and now seek relief in this case by arguing that she was not. Owens raises no legal attack on appeal to that judicial estoppel determination, and accordingly we will assume for this appeal that she was in fact in a long-term relationship with Kobussen at the time that he applied for a position at Old Wisconsin.

         Owens discussed with Kobussen who would be his supervisor and other details of the position before he applied, and along with another manager Owens conducted Kobussen's first interview. She was not present for his second interview, but in conjunction with two other managers she participated in the decision to hire him. In September and early October of 2011, Owens was assigned supervisory responsibility for the retail store, which placed Kobussen directly under her supervi- sion. She did not reveal to her employer her relationship with Kobussen at any time.

         Tammy DeZwarte, a friend of Owens since high school who was in Owens' wedding, followed a similar path to Old Wisconsin as Kobussen. She was hired at Lakeside Foods when Owens was HR manager there, and hired at Old Wisconsin during Owens' tenure as HR manager at that company. Some employees complained of preferential treatment by Owens regarding DeZwarte, and when Owens was questioned as to that relationship, she described DeZwarte as an acquaintance.

         In November 2011, three different employees complained to Chuck Pf rang, the plant manager, that Owens and Kobussen were in a relationship and that there was a conflict of interest because Owens was involved in hiring Kobussen and was now his supervisor. Old Wisconsin had no policy prohibiting inter-employee dating, but had an informal policy to question supervisors in relationships with subordinates in order to avoid conflicts of interest. The policy was applied to both female and male supervisors in such relationships. Pursuant to that informal policy, once management was informed of a relationship between a supervisor and a subordinate, they would discuss the matter with the supervisor to learn the details of the relationship, and would take appropriate steps such as apprising the supervisor of problems which the relationship could cause in the workplace or altering the supervisory relationship where appropriate. Following those complaints by the employees, both Kobussen and Owens were asked whether they were in a relationship. Owens met with Harrison and Pfrang on November 28, 2011 to discuss the relationship rumors, and they informed Owens of the concerns raised by the three employees. At that meeting, Owens adamantly denied that she was in a relationship with Kobussen. When further questioned as to whether she had ever been in a prior relationship with Kobussen, Owens stated, "I'm not answering this, this is borderline sexual harassment." At that point, Harrison chose to embark upon a performance review of sorts, although the promised formal performance reviews had not been provided previously. He stated that her performance had been a "C" at best, characterizing her performance as mediocre and as failing to fulfill the promise of the skill set identified on her resume and in her interview.

         On approximately December 19, 2011, Harrison informed Owens that several employees had expressed concern about Kobussen's work performance and Owens' objectivity in addressing those performance problems, including that he showed poor leadership, did not work Saturdays, did not stock shelves, had personal hygiene issues, took numerous cigarette breaks during the day, came in late, and took an unpaid vacation day on a very busy store day. At that meeting, Owens again denied knowing Kobussen outside work.

         Kobussen was also questioned by Pfrang regarding his relationship with Owens but he deflected the question, responding that he did not question Pfrang about Pfrang's spousal relationship. Although Kobussen remained employed with Old Wisconsin, Owens was terminated. The basis of the termination is the subject of dispute. During a quarterly meeting on February 9, 2012, Noble, Harrison and Pfrang initially determined that Owens was not a proper fit for the human resources position, and noted several problems observed by management with her professionalism and her ability to perform the duties of the position. The next day, Safety Manager David Streeter emailed Noble detailing his concerns with her abilities in Owens' position, noting her lack of the necessary knowledge of HR and of safety issues to adequately do her job, and her "rough" personality that made employees hesitant to approach her with issues. Harrison decided to terminate Owens, but upon learning that Owens' daughter was sick, postponed that decision and ultimately terminated her on April 13, 2012. The person hired to replace Owens was also female.

         After the decision to terminate Owens, Old Wisconsin produced a memo that indicates its reasons for terminating Owens' employment, including that: false or misleading statements were made related to hiring practices and friendships that may have influenced hiring decisions; management was approached by employees with concerns with Owens' integrity and a lack of trust in HR actions; Owens often made statements of "fact" based on inadequate information, leading to additional investigation which changed the basis for the decision; Owens did not support many company policies and had commented on such to other employees; Owens had problems setting correct priorities and often created a crisis situation when calm reflection was required; and Owens had not developed interactive relationships with employees and was not approachable. Owens, however, argues that the memo with its reasons was never supplied to her at the time of her termination, and that the reason she was terminated was that she refused to answer questions about any relationship she had with Kobussen.

         Owens alleges that her termination constituted unlawful discrimination and retaliation in violation of Title VII, and that it constituted improper retaliation under the FLSA. Owens points to a litany of additional actions by ...

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