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Seventh Circuit Affirms Summary Judgment for KeyBank on Financial Advisor's Sexual Harassment and Retaliation Claims

Tuesday, November 22, 2011

Overly v. KeyBank N.A., No. 10-CV-2705002, 2011 BL 289920 (7th Cir. Nov. 10, 2011) The U.S. Court of Appeals for the Seventh Circuit held that Krysten Overly was not entitled to a trial on her claims that Key Investment Services LLC, its corporate parent, and several affiliates (collectively, KeyBank) discriminated against her because of her gender and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Court concluded that Overly failed to establish a genuine dispute of material fact regarding whether KeyBank subjected her to a hostile work environment, constructively discharged or otherwise discriminated against her on the basis of her gender or retaliated against her.

Overly Resigned After Being Disciplined, Called “Cutie,” and Losing Part of Her Assigned Territory

Overly worked as a financial advisor for KeyBank from 2004 until October 1, 2007. In April 2007, her new supervisor, Rick Bielecki, a regional sales manager in central Indiana, learned from Overly that she sometimes had her assistant paste her scanned signature on client documents to expedite opening accounts when she was not in the office. Overly explained that Bielecki’s predecessor had suggested that she do so. Overly also encouraged bankers to sell investment products off KeyBank’s investment menu without being there to supervise such investments. Bielecki directed Overly to stop using scanned signatures until he inquired about such practice. He consulted with the compliance office, which advised Bielecki to ensure that both practices ceased, investigated Overly, and recommended her termination. Bielecki and the general regional manager argued that Overly should remain employed. The compliance office issued her a formal written warning and fined her $1,000. A male banker who admitted selling variable annuities in violation of KeyBank policy was also fined. At the end of May 2007, Overly contacted KeyBank’s human resources department (HR) to complain about the disciplinary action and Bielecki’s sexist treatment of her. She complained that: (1) he had called her “cutie” about five to ten times, although he stopped at her request; (2) he said in an email that she and another female financial advisor should attend a golf outing because “your pretty faces are much better than my ugly mug”; and (3) he once required her to leave her purse and planner outside a meeting room. Overly expressed concern about whether the discipline would affect her license. HR offered to speak with the general regional manager, but Overly chose not to involve him. During the summer of 2007, KeyBank’s president instituted a company-wide plan to increase the number of financial advisors nationwide and reduce to four or five the number of bank branches that each one served. For the central Indiana region, Bielecki hired a sixth financial advisor then realigned the branches assigned to the other advisors. Overly lost three of her prior branches and was assigned two new ones, but was upset because she had worked hard to develop the lost territories. In August 2007, Overly wrote a letter to KeyBank’s CEO complaining of gender discrimination and retaliation because of the disciplinary action, being called “cutie,” and losing territory. After investigating, HR notified Overly that her complaint lacked merit and that, although Bielecki acted inappropriately in calling her “cutie,” it did not recur. On October 1, 2007, Overly submitted her resignation letter to Bielecki, who applauded and grabbed her arm to shove her out the door. She yelled at him to take her hand off her and he yelled “Good riddance, bitch” as she was leaving his office.

District Court Grants Summary Judgment to KeyBank

In May 2008, Overly sued KeyBank in state court alleging gender discrimination and retaliation. KeyBank removed to federal district court, which granted summary judgment to KeyBank. Overly v. KeyBank N.A., No. 08-CV-0662, 2010 BL 154437 (S.D. Ind. June 23, 2010). Overly appealed.

Hostile Work Environment Sexual Harassment/Constructive Discharge

Overly alleged that she was subjected to a hostile work environment based on gender from April through September 2007, when Bielecki was her supervisor. As the Seventh Circuit stated, to withstand summary judgment, Overly was required to show that: “(1) her work environment was both objectively and subjectively offensive; (2) the harassment complained of was based on her gender; (3) the conduct was either severe or pervasive; and (4) there is a basis for employer liability.” Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir. 2009), discussed in Bloomberg Law Reports, Labor & Employment, Vol. 3, No. 49(Dec. 7, 2009). The Court explained that it took into account the severity and frequency of the allegedly harassing conduct, whether it was physically threatening or just offensive, and whether it unreasonably interfered with Overly’s work performance. The Court opined that Bielecki’s calling Overly “cutie” about five to ten times over two months was “inappropriate and condescending,” but was not sufficiently severe or pervasive to establish a hostile work environment, especially since he concededly stopped doing so when asked. The Court also found that Bielecki’s single statement in an email about the “pretty faces” of Overly and another female employee compared to his “ugly mug” was not objectively offensive. The Court opined that none of Bielecki’s conduct while she was an employee could be seen as threatening or humiliating enough to interfere with her work performance. The Seventh Circuit acknowledged the possibility that a combination of such incidents with Overly’s discipline for using scanned signatures might have come close to being severe or pervasive enough to meet the standard but found that Overly presented no evidence that the discipline was motivated by anything other than a KeyBank policy violation. Indeed, Overly admitted to being the sole financial advisor who used scanned signatures in violation of policy. The Court further found that Overly similarly failed to present evidence showing that the realignment of territories was gender-based since every financial advisor in the region received realigned territories. Although the Court acknowledged that Overly’s alleged loss of access to new client information after the realignment interfered more with her work performance than the other alleged conduct, the Court found no evidence that such interference was gender based, among other things. The Court remarked that the “most disturbing evidence of gender bias” occurred after her resignation, when Bielecki allegedly grabbed her arm and yelled “Good riddance, bitch” as she was leaving his office. The Court found, however, that, although such actions were unacceptable, Overly failed to meet her burden to show that that she was subjected to objectively severe and pervasive gender discrimination while a KeyBank employee. Indeed she admitted that she had minimal face-to-face contact with Bielecki during the six months he supervised her. Since Overly failed to meet the standard for hostile work environment, the Court concluded that she could not present “even more egregious” evidence necessary to prove a constructive discharge. See Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394, 401-02 (7th Cir. 2010), discussed in Bloomberg Law Reports, Labor & Employment, Vol. 4, No. 46 (Nov. 15, 2010).

Gender Discrimination

The Seventh Circuit rejected Overly’s allegation that “Bielecki’s patently offensive response to Overly’s resignation” was “direct evidence” of gender discrimination. The Court also found that it did not constitute circumstantial evidence of gender discrimination, instead concluding that the comment was an offensive “stray remark” after Overly resigned. See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 781-82 (7th Cir. 2007).

Retaliation

The Seventh Circuit noted that it was undisputed that Overly’s complaint to HR alleging that Bielecki sexually harassed her constituted protected activity under Title VII, 42 U.S.C. § 2000e-3(a). The Court concluded that Overly could not show that Bielecki took any adverse against her because of such protected activity. See Kodl v. Bd. of Educ. Sch. Dist. 45, Villa Park, 490 F.3d 558, 562 (7th Cir. 2007). The Court determined, among other things, that no reasonable jury could find that her territories were reassigned or that she was denied access to information because of the complaint.

Notes on Harassment/Discrimination

Although the Seventh Circuit mentioned that KeyBank investigated Overly’s complaint, it did not address any anti-discrimination or any anti-sexual harassment policy in place. For advice on investigating and preventing sexual and other harassment complaints, see Don't Be a Statistic: How Your Business Can Reduce Employee Claims in Two Easy Steps and Best Practices for Investigating Internal Employee Complaints of Unlawful Harassment, Bloomberg Law Reports, Labor & Employment, Vol. 5, No. 1 (Jan. 3, 2011) and Smart Human Tricks—Saving Your Company Millions in Potential Liability with Harassment and Fraternization Policies, Vol. 5, No. 19 (May 10, 2010). DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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