Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 90 C 6743 W. Thomas Rosemond, Jr., Magistrate Judge.
Before POSNER, Chief Judge, and ROVNER and EVANS, Circuit Judges.
In a corporate restructuring of its employee benefits programs, Premark International, Inc. eliminated Diana Turgeon's position as manager of employee benefits. Three new, somewhat different positions were created, and Ms. Turgeon contends she should have been placed in one of them -- manager of welfare plans. When she did not receive the position, she filed a charge with the Equal Employment Opportunity Commission and, ultimately, an action, pursuant to Title VII, 42 U.S.C. sec. 2000e et seq., claiming, among other things, that the company engaged in unlawful sex discrimination and retaliation against her. The claim based on sex discrimination went to a bench trial for eight days in the summer of 1994 and Ms. Turgeon lost. She appeals from that result as well as a prior dismissal, pursuant to Premark's motion for summary judgment, of her retaliation claim.
Magistrate Judge W. Thomas Rosemond, Jr., sitting by consent of the parties as the trier of fact, made findings on the sex discrimination claim as summarized here. Ms. Turgeon began working for Premark's predecessor company, Dart and Kraft, as a secretary in 1981, at a yearly salary of $15,080. She received steady promotions and salary increases over the years. In 1984 she was promoted to the position of tax compliance coordinator, with a 9.7 percent pay increase. In 1985 she was promoted again, with a 27 percent pay increase.
In 1986 Premark was created in a "spin-off" when Dart & Kraft became Kraft, Incorporated and Premark International. When the spin-off occurred, some people, including some men, lost their jobs. Ms. Turgeon remained employed as a Premark employee, where she worked in employee benefits at the company headquarters. While she worked at Premark in the benefits department, the department underwent at least four reorganizations.
In 1986 she was promoted to the position of manager of benefits compliance and welfare plans, with a 30 percent salary increase. She was then earning $36,400 a year. In 1987 she became a benefits consultant at a 9.9 percent salary increase -- to $40,000. In 1988 she was earning $43,000. At this time, both the compensation department and the benefits department workers were virtually all women. However, Ms. Turgeon's immediate supervisor was Dave Compton, who, in Turgeon's view, lacked leadership skills.
During a period of restructuring at Premark in the fall of 1988, Ms. Turgeon received an offer of employment as a benefits consultant with the Amoco Corporation at a salary of $56,000. She conveyed information about the offer as well as her dissatisfaction with Mr. Compton to her superiors. To counter the Amoco offer, Mr. Wallace Nichols, Premark's vice-president of benefits and compensation, ultimately offered Ms. Turgeon a position as manager of employee benefits at a salary of $57,000.
However, from the time Premark was formed in 1986, there were problems with the effectiveness of the benefits department. It was in the April 1989 restructuring that Ms. Turgeon's position was eliminated and her employment terminated. In this restructuring, the department was organized under three functional specialists, which were to be highly qualified technical people with expertise in the areas of government regulations, accounting, and benefits plan design. The hope was that the company would then have people who could themselves do the bulk of the work on benefit plans, rather than using outside consultants as was the previous practice. Ms. Turgeon herself admitted at trial that eliminating the need for outside consultants would be a big cost savings for Premark.
In June 1989, Ms. Barbara Manny was hired to be director of compensation and benefits for Premark's worldwide operations. Before she was hired, the restructuring plan was discussed with her, and she agreed with the wisdom of filling managerial positions with technical specialists. Neither she nor her predecessor, Mr. John Gleason, considered Ms. Turgeon qualified for the new position. In addition, Ms. Diana Krause-Stetson, the senior attorney in Premark's legal department who was responsible for employee benefits matters, believed that Ms. Turgeon's lack of technical competence had a negative impact on the benefits department. She stated that Ms. Turgeon was not training people how to function as experts, and that contracts were not being written properly.
Mr. Nichols, Mr. Gleason, and Ms. Krause-Stetson considered Ms. Turgeon deficient in knowledge of legal matters regarding benefits plans and in accounting regulations. In addition, Ms. Turgeon was not a certified employee benefits specialist. In order to be such an expert, one must complete a program consisting of ten courses, each focusing on a different aspect of employee benefits. Ms. Turgeon had taken and passed only the first examination.
Magistrate Judge Rosemond found that Premark did not discriminate against Ms. Turgeon on the basis of sex with respect to any aspect of her employment nor in regard to the severance benefits she received. Ms. Turgeon contends that those findings are clearly erroneous; she argues that she has proved discrimination both directly under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and indirectly under McDonnell Douglas v. Green, 411 U.S. 792 (1973).
Discriminatory intent is a question of fact subject to review under the "clearly erroneous" standard. Anderson v. Bessemer City, North Carolina, 470 U.S. 564 (1985). Our review of the district court's findings of fact is deferential. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 508 U.S. 602 (1993). We must distinguish between a situation in which "we think that if we had been the trier of fact we would have decided the case differently and the situation in which we are ...