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Fischer v. Avanade

March 14, 2008


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 5594-William J. Hibbler, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.


Before, POSNER, FLAUM, and ROVNER, Circuit Judges.

Plaintiff Barbara Fischer was an employee at Avanade, Inc. from May 2001 until her resignation in October 2005. During the course of her employment, Fischer was passed over on multiple occasions for a promotion to Delivery Management Practice Director ("Director") at the company. In 2005, Fischer brought a lawsuit against Avanade under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging gender discrimination based upon a failure to promote and retaliation in the form of constructive discharge. On June 12, 2006, Defendant filed a motion for summary judgment, which the district court granted on both claims. Fischer appeals this decision. For the reasons discussed below, we reverse with respect to Plaintiff's failure to promote claim and affirm on Plaintiff's retaliation claim.

I. Background

Avanade, Inc. is a global corporation which assists companies in integrating Microsoft products into their business. Barbara Fischer, an Iowa resident with over twelve years of experience in the technology field, was hired by Avanade in May 2001 as a Program Management Consultant for Avanade's Central Region, which was headquartered in Chicago, Illinois. During Fischer's first two years at the company, before she began seeking Director positions, her performance reviews were mixed. After being reviewed as meeting the company's expectations her first year, in July 2002 Fischer was assigned to help Avanade break into the government opportunities arena. Although government agencies took note of Avanade's entry into the market, Avanade did not receive any government awards in 2002. This result, coupled with a negative review from Fischer's supervisor concerning a separate billable project, led to Fischer being rated as "does not meet expectations" for fiscal year 2002 and being placed on a performance improvement plan to perform at least one billable project successfully. Fischer formally disputed this evaluation, but her rebuttal was not placed in her personnel file. The next year however, Fischer dramatically improved her performance while serving as a Project Manager ("PM") on a billable project for the Federal Home Loan Bank of Chicago ("Bank"). Fischer managed five to six people on this project and was given strong reviews, with the Central Region General Manager expressing that Fischer had done a "great job," and Fischer being rated as "exceeds expectations" for the 2003 fiscal year.

In September 2003, just before Fischer received her 2003 annual review, Avanade created a new Strategic Accounts Region designed to service its two largest accounts, one of which was the Bank. Howard Kilman named Joe Mendel the General Manager of this new region, which Fischer elected to join.

A. October 2003 Opening for the Strategic Accounts Region Director Position

One month later, on October 5, 2003, General Manager Mendel circulated an email to all employees in the region informing them of open leadership positions in the Strategic Accounts Region, including that of Director. The announcement stated that the Director should be a member of the Strategic Accounts Region and have a billable project with a client of the region. The formal job description, in addition to its general requirements that the individual be entrepreneurial and possess skills in people interaction, problem-solving, and leadership, also listed the minimum requirements for the position:

* Proven track record in leading the delivery of consulting projects using Microsoft technologies . . .;

* Proven track record of leadership during opportunity and proposal phases of sales cycle;

* Enterprise experience with Microsoft Operating Systems or Development Tools;

* Demonstrated strong customer service with 10 years experience;

* Established consulting expertise with 10 years experience;

* Demonstrated understanding of development methodologies and tools;

* Interested and able to travel extensively on a regular basis.

Additionally, Avanade's general position summary for Director positions indicated that a university degree was also required.

Fischer applied for the Director position and apparently met these minimum qualifications. In addition, Fischer received the strong recommendation of the Bank's Assistant Vice President for the post.

Also applying for the position was Joe Sieverding, the employee ultimately promoted to the position in dispute in this suit. Sieverding had been hired as a Central Region PM in March 2003 and possessed thirteen years experience in the technology field, including ten years in consulting and success in managing larger technology projects. Upon being hired at Avanade, Sieverding was assigned to work on a project for the Bank which, at the time, was viewed as being largely over budget and delayed. Sieverding received an overall performance rating of "exceptional" for his work in 2003, but an audit of the project in October 2003 revealed that Sieverding's reliance upon a "handshake deal" had resulted in 200 undocumented change requests. In addition to violating Avanade's policies and procedures, this "handshake deal" allegedly contributed to Avanade's issuance of a rebate and uncompensated work to the Bank in 2004 worth $600,000.

Mendel was in charge of the hiring decision and (after consulting with Howard Kilman on the matter) decided not to promote either Fischer or Sieverding to the Director position. Instead, in October 2003, Mendel decided to have both Fischer and Sieverding share the responsibilities of Strategic Accounts Region Director. That same month, Sieverding was promoted to a performance level of 60 on the company's sliding scale, which ranged from 20 to 70, and received an accompanying salary increase. Fischer expressed concerns to Mendel that Sieverding's higher performance level rating than hers would create difficulties in circumstances where Fischer needed to direct Sieverding. Mendel accordingly raised Fischer's status in late November, but only to Level 55, and did not increase her salary.

Additionally, beginning in 2003 and continuing into 2004, Fischer spoke to Mendel regarding her concerns about high cost "morale building" dinners attended by certain male employees, including Sieverding, that occurred at a gentleman's club. Mendel's response to Fischer was that, "Everybody is working really, really hard so let them do that. It was harmless." According to Fischer, subsequent ...

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