In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1214

BELINDA EGAN,

Plaintiff-Appellant,

v.

FREEDOM BANK, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 3:09 CV 50013—Philip G. Reinhard, Judge.

ARGUED MAY 28, 2010—DECIDED OCTOBER 6, 2011

Before MANION,WILLIAMS, and HAMILTON, Circuit Judges.

WILLIAMS, Circuit Judge. Only seven months after

Freedom Bank recruited Belinda Egan to serve as one of its

vice presidents, the bank fired her. She had no performance

issues, no attendance problems, and no complaints against

her. What she did have, though, was dinner shortly after

she began with a member of the bank’s board of directors.

The board member told her the fantasies he had about her,

and she declined his advances. Egan complained to the
2 No. 10-1214

bank’s Human Resources officer that the board member

had sexually harassed her, and the board member resigned. Shortly after that, the person named as the bank’s

new president told its then-president that he heard Egan

had done something that she should have been fired for.

And about two months after the new president assumed

office, Egan was fired. A jury might credit the bank’s

stance that the new president eliminated Egan’s position

simply to reduce inefficiencies. Or it might agree with Egan

that the bank terminated her in retaliation for her claim of

sexual harassment. We conclude that the conflicting

inferences that can be drawn from the record require a

resolution by a jury. Therefore, we reverse the entry of

summary judgment against Egan on her retaliation claim.

I. BACKGROUND

As this appeal comes to us from the entry of summary

judgment against her, we recount the narrative that follows

by viewing all facts in the record and drawing all reasonable inferences in the light most favorable to Egan.

Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009).

Greg Dempsey, then the president of Freedom

Bank, contacted Belinda Egan in the spring of 2007 about a

position at the bank. He already knew Egan, as the two

had worked together at a different bank. Egan accepted

Freedom Bank’s offer to become its vice president of

retail banking and began working there on July 17, 2007.

Egan met Don Burton, a member of the bank’s board of

directors, during her first week on the job. Burton came

into the bank when he was onsite for a board meeting,
No. 10-1214 3

and Egan asked his opinion about challenges Freedom

faced in a particular market. They agreed to continue

their conversation a week later over the lunch hour

at Applebee’s. After that meeting, Egan saw Burton several

times over the ensuing months when he would occasionally stop in the bank. They agreed to meet again on September 13, 2007, and Burton asked her, “Do you want to

meet at my place or somewhere else?” Egan named a

restaurant. They met there at about 4:00 p.m., and Burton

gave Egan feedback on a document she had requested

that he review.

Egan saw Burton again when she attended a bank board

meeting on September 18, 2007. Burton called her that

week and said he wanted to meet with her to discuss

her meeting with Larry Henson, the CEO of Freedom

Bank’s parent corporation, and they agreed to meet at

a restaurant in the mid afternoon of September 20, 2007.

That day, Burton and Egan discussed her meeting

with Henson, and Burton told Egan that he had recommended to the board that they consider her to be the

next president of Freedom Bank. Burton also said that

the board of directors had the power to fire the

bank’s senior management team, which caused Egan to

feel uncomfortable. The conversation did not only involve

work matters, however. Burton told Egan that he fantasized about making love to her on a dance floor

and wanted to take her to Las Vegas and other places

around the world. Egan declined his advances, and Burton

replied, “If you change your mind, I’ll be home alone

next Tuesday.” Wanting to leave, Egan secretly told

her husband to telephone her, and, when the call came,

she answered and informed Burton she needed to leave.
4 No. 10-1214

Egan told her friend Sheila Dempsey what had transpired and asked her not to tell her husband Greg Dempsey, the president of Freedom Bank at the time. The next

day, Sheila apologized and told Egan that she

had informed her husband what had happened. Egan

and Greg Dempsey then discussed her conversation

with Burton. On September 24, 2007, Egan complained

to the bank’s vice president of Human Resources,

Rick Mineck, about what Burton had said to her at dinner.

Mineck opened an investigation into Egan’s complaint.

Before Mineck could interview Burton, Burton resigned

from the bank’s board of directors. Mineck sent Egan

a letter on October 2, 2007 stating that he had investigated

Egan’s complaint and that action had been taken to

prevent a reoccurrence of a similar incident. The letter

also stated that no adverse action or retaliation would

occur as a result of the complaint and that if she believed

she was the subject of adverse action or retaliation,

she should immediately contact Larry Henson, the CEO

of Freedom Bank’s parent corporation.

Greg Dempsey was transitioning out of his role as

bank president around this time. Dave Barajas, Jr.

was ultimately hired to replace him. Henson told Egan

that she had been a candidate for the president position

but that another person had been chosen, and he said

that if she was willing to commit the time, he was

willing to fund her courses in a graduate school banking

program.

Barajas and Greg Dempsey had various conversations as

Barajas was considered for and prepared to become bank
No. 10-1214 5

president. In a conversation critical to this case, according

to Dempsey, during September or early October of 2007,

Barajas told him that he had heard Egan “had

done something that she should have been fired for.”

Dempsey believed Barajas was referring to Egan’s

report that Burton said inappropriate things to her

over dinner. Barajas denies making the statement to

Dempsey.

Barajas officially began as president of Freedom Bank

in early December of 2007. Egan’s responsibilities initially

increased because Barajas relied on her for day-to-day

operations as he learned the job, but she said he refused

to meet with her about plans for the future. Barajas

did meet with others regarding the future, though, and

he hired four new employees over the next several

months. He hired Richard McCormick in January of 2008

as vice president of private banking, Pam Topper to

serve as vice president of corporate services, Amy

Young to assist McCormick and then later to handle daily

branch management duties, and Lyle Spaulding as a

commercial lender. 

On February 22, 2008, Barajas wrote a letter to Egan

advising her that he had decided to eliminate the position

of vice president of retail banking, Egan’s position.

The letter gave no reason for this decision. Egan filed

suit alleging retaliation, a hostile work environment,

and discrimination on the basis of her sex. The district

court entered summary judgment against Egan, and

she appeals.
6 No. 10-1214

II. ANALYSIS

A. Summary Judgment Rulings

We review the district court’s grant of summary judgment de novo, and we view all facts and draw all reasonable inferences therefrom in the light most favorable to

Egan, the nonmoving party. See Poer v. Astrue, 606

F.3d 433, 438-39 (7th Cir. 2010). Summary judgment

is only appropriate when the pleadings, discovery materials, disclosures, and affidavits demonstrate that there

is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

Title VII makes it unlawful for an employer to discriminate against an employee for opposing a practice that

Title VII forbids. 42 U.S.C. § 2000e-3; Poer, 606 F.3d at

439. A plaintiff may proceed under either the direct

or indirect method to prove her claim of retaliation

in violation of Title VII. Poer, 606 F.3d at 439. To

proceed under the direct method as Egan does here,

a plaintiff must show through either direct or circumstantial evidence that (1) she engaged in statutorily protected activity; (2) she suffered an adverse action taken

by the employer; and (3) there was a causal connection

between the two. Id. at 439. If the plaintiff’s evidence

of retaliatory animus is contradicted,

[T]he case must be tried unless the defendant

presents unrebutted evidence that it would have

taken the adverse employment action against the

plaintiff anyway, “in which event the defendant’s
No. 10-1214 7

retaliatory motive, even if unchallenged, was not

a but-for cause of the plaintiff’s harm.”

Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th

Cir. 2003) (quoting Stone v. City of Indianapolis

Pub. Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002)).

The parties agree that Egan’s complaint to her

Human Resources department that Burton had

sexually harassed her constitutes statutorily protected

activity. See 42 U.S.C. § 2000e-3(a). It is also clear

that termination constitutes an adverse action.

Haywood, 323 F.3d at 531. The issue, then, is whether

Egan has introduced sufficient evidence from which a

jury could find that there is a causal connection

between her protected activity and her firing. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)

(“at the summary judgment stage the judge’s function

is not himself to weigh the evidence and determine

the truth of the matter but to determine whether there is

a genuine issue for trial”).

Freedom Bank maintains that Barajas and the

bank simply made a business decision to eliminate

Egan’s position, and that her firing was not motivated

in any way by her harassment complaint. Barajas

testified in his deposition that Egan’s tasks were duplicative of those performed by another employee, and that

for that reason, a business decision was made to

eliminate Egan’s position. Consistent with Barajas’s

position, Henson testified that he and Barajas participated in discussions evaluating the bank’s entire organizational structure. Henson stated that the bank was losing
8 No. 10-1214

money, so its leaders were attempting to make business

decisions as to how best to proceed to develop the

bank with a structure that ensured its profitability

going forward. As part of that review, Henson said

the decision was made to eliminate the middle management position Egan occupied at the time. Henson

also stated that at least one other position had been

eliminated since the decision was made to eliminate Egan’s

position. 

With respect to the new hires, Henson testified that

he had specific discussions with Barajas before Barajas was

hired regarding new people that he might want to hire

and what their roles might be. In particular, Henson

said they discussed McCormick, whom Freedom Bank

had been trying to recruit for a year or two. They also

discussed Pam Topper, who like McCormick worked at

a different bank where Barajas had served as a director,

and they discussed a third person as well. The

bank therefore takes the position that these new hires

were not inconsistent with its decision to terminate

Egan’s employment.

The bank’s explanation is plausible, but on summary

judgment, “the court has one task and one task only:

to decide, based on the evidence of record, whether

there is any material dispute of fact that requires

trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920

(7th Cir. 1994). Although a jury might agree with the

bank that it eliminated Egan’s position for efficiency

and operational reasons, there is also sufficient evidence

in the record, viewed in the light most favorable to Egan
No. 10-1214 9

as we must, from which a reasonable jury could

conclude that the bank instead fired Egan because

she complained she had been sexually harassed by one

of the bank’s esteemed board members. Notably,

Greg Dempsey asserts that Barajas told him he heard

Egan “had done something she should have been

fired for.” Although the bank argues that the reference

in the statement is ambiguous, certainly one reasonable

conclusion that can be drawn from the comment is

that Barajas was referencing Egan’s complaint that Burton

had sexually harassed her. Indeed, that was the conclusion

Dempsey drew. That conclusion need not even be the

only reasonable conclusion that could be drawn to

survive summary judgment; even so, there is no

other explanation suggested by the record for what Barajas

could be referencing.

There are other factors a jury could weigh in Egan’s favor

as well. A jury might also consider that Egan’s position

was the only one the bank eliminated in 2008. It could

also look to the fact that although the bank maintained

that financial considerations were one reason for

the decision to eliminate Egan’s position, it nonetheless

hired four other persons in the first few months of

Barajas’s tenure. And Egan had no performance issues.

In short, Egan’s claim that the bank retaliated against

her and eliminated her position because she complained of sexual harassment are “not so incredible or

implausible . . . that a reasonable jury could not find in

[her] favor.” Kodish v. Oakbrook Terrace Fire Prot. Dist.,

604 F.3d 490, 507 (7th Cir. 2010). We therefore reverse the

grant of summary judgment on Egan’s retaliation claim.
10 No. 10-1214

Egan also makes perfunctory arguments in her brief

that her hostile work environment and gender discrimination claims should proceed to trial. The single

verbal proposition in this case by a member of the board

of directors does not rise to the level of a hostile

work environment, however. See Berry v. Chi. Transit

Auth., 618 F.3d 688, 691-92 (7th Cir. 2010) (comments

must be severe or pervasive to create a hostile work

environment). The bank’s hire of a male as its president

instead of Egan does not create a triable issue that

it discriminated against her on the basis of her gender,

as she does not develop any argument as to why

she was similarly qualified. See Bodenstab v. County of Cook,

569 F.3d 651, 658 (7th Cir. 2009) (issues not developed

in an opening brief are waived). Summary judgment on

the hostile work environment and gender discrimination

claims was proper.

B. Magistrate Judge’s Orders

Egan also wishes to challenge orders entered by

a magistrate judge on November 6, 2009 and January 5,

2010. The latter order directed Egan to pay the defendants

$4,815. The order also stated it would set a time by

which the amount must be paid after the district court

decided the defendants’ pending motion for summary

judgment. Both parties characterize the orders as sanctions orders.

The district court granted the defendants’ motion for

summary judgment on January 11, 2010 and entered

judgment that day. The district court made no mention
No. 10-1214 11

of the magistrate orders, nor had Egan objected to

them. She maintains she did not object because the

district court’s judgment was entered before the fourteenday time period to object to the magistrate’s latest

order had run. See Fed. R. Civ. P. 72. To date, no time

has been set by which the attorneys’ fees must be paid,

nor has the district court considered the propriety of the

award.

The defendants maintain we lack jurisdiction to

consider the magistrate’s orders, and they are correct. We

first note that our jurisdiction over the substantive

appeal was clear. See Budinich v. Becton Dickinson

and Co., 486 U.S. 196, 200-01 (1988); Houben v. Telular

Corp., 231 F.3d 1066, 1071 (7th Cir. 2000). With respect

to the magistrate orders, there is an initial question as to

whether there is even a final order, as the last order did

not set a time by which the fees were to be paid and

instead stated that a time would be set at a later date.

See Shapo v. Engle, 463 F.3d 641, 643 (7th Cir. 2006) (describing test for finality as whether the judge has finished with

the case). More importantly here, the parties had not

consented to proceed before a magistrate judge under

28 U.S.C. § 636(c). In the absence of a consent, a magistrate

judge may only recommend a sanctions disposition

to the district court, and only the district court’s decisions

are reviewable in the appellate court. See Directv,

Inc. v. Barczewski, 604 F.3d 1004, 1011 (7th Cir. 2010);

Alpern v. Lieb, 38 F.3d 933, 936 (7th Cir. 1994); see also

King v. Ionization Intern., Inc., 825 F.2d 1180, 1185 (7th Cir.

1987) (“The only part of the statute that expressly authorizes the magistrate to enter a final judgment appealable
12 No. 10-1214

directly to the court of appeals is 28 U.S.C. § 636(c).”).

We therefore lack jurisdiction over the challenges Egan

would like to make to the magistrate’s orders. On remand,

the district court will have the opportunity to consider

the orders, see Alpern, 38 F.3d at 936, along with the defendants’ arguments that Egan failed to object to the orders

in a timely manner.

III. CONCLUSION

The judgment of the district court is REVERSED and this

case is REMANDED for further proceedings consistent with

this opinion.

10-6-11