Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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OVERLY v. KEYBANK NATIONAL ASSOCIATION (November 10, 2011)

Krysten Overly was a financial advisor at KeyBank in central Indiana. Rick Bielecki became her immediate supervisor in early 2007 but their interaction was limited because of his broad regional supervisory obligations. One day, while he was working with her, he observed that she was using procedures that were not in compliance with the Bank's policies. After an investigation, the compliance office recommended her termination. With Bielecki’s and his supervisor’s support, Overly escaped with a warning and a small fine. Overly complained to the Human Resources Department about the disciplinary action as well as some sexist remarks she alleged were made by Bielecki. The Bank reorganized beginning in 2007 and almost tripled the number of financial advisors nationwide. Bielecki added one advisor to Overly's region and realigned branch bank assignments. Overly registered a complaint with KeyBank's CEO. She cited the disciplinary action and the sexist remarks, as well as the loss of territory. The Bank conduct an investigation and concluded that there was no evidence of discrimination or retaliation. Overly submitted her resignation to Bielecki on October 1, 2007. Upon receipt of the resignation, Bielecki applauded, pushed her toward the door, and yelled "Good Riddance Bitch." Overly filed suit alleging hostile work environment, constructive discharge, and gender discrimination. Judge Barker (S.D. Ind.) granted summary judgment in KeyBank's favor. Overly appeals.

In their opinion, Seventh Circuit Judges Evans (who, as a result of his death, took no part in the decision) and Williams and District Judge Conley affirmed. The Court first addressed the hostile work environment claim and concluded that Overly's work conditions did not meet the "severe or pervasive" requirement. Bielecki called her "cutie" five or 10 times, referred to her "pretty face," and made her leave her purse outside of a meeting room. None of this was threatening, it did not occur very frequently, and it did not unreasonably interfere with her work. The Court conceded that adding the disciplinary incidents to the mix might approach the actionable level, but declined to do so because there was no evidence that the discipline was related to her gender. Furthermore, she admitted the noncompliant activities. Likewise, the territory realignment was not shown to be related to gender. The Court acknowledged that there was evidence of gender bias after her resignation. But Bielecki's conduct and remarks after receiving her resignation cannot support a hostile work environment claim. The Court quickly dispensed with her constructive discharge claim since it imposes a higher standard than the hostile work environment claim - which it had just rejected. The Court also rejected the gender discrimination claim, again refusing to consider the resignation remarks as direct or circumstantial evidence of discrimination because of the timing of those remarks. Finally, the Court rejected her Title VII retaliation claim. Her complaint to the Bank does constitute protected activity but there is no evidence in the record of a causal link between the activity and Bielecki's conduct.