In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3080

M. JANE MINOR,

Plaintiff-Appellant,

v.

CENTOCOR, INC., and

JOHNSON & JOHNSON, INC.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

Nos. 02-3354 & 04-3114—Richard Mills, Judge.

____________

ARGUED APRIL 7, 2006—DECIDED AUGUST 4, 2006

____________

Before FLAUM, Chief Judge, and POSNER and

EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge. M. Jane Minor was a sales

representative for Centocor, pitching to physicians and

hospitals the products that Centocor and its affiliates

offered to treat vascular conditions. After Antonio Siciliano

became her supervisor, Minor contends, she was put in

an impossible situation—Siciliano required her to visit

all of her accounts twice a month, and her major accounts

more frequently. That led her to work 70 to 90 hours a week

(much of it driving time); until then 50 to 55 hours had been

enough. In August 2001, after two months of this regimen,

Minor began to experience atrial fibrillation and depression.
2 No. 05-3080

In October 2001 she stopped working. Both Centocor and

the Social Security Administration have concluded that

Minor is disabled (she receives benefits from both sources).

She attributes her medical problems to Siciliano’s demands.

In this litigation Minor contends that those demands

reflected both age and sex discrimination, violating the Age

Discrimination in Employment Act and Title VII of the Civil

Rights Act of 1964. (Minor has sued not only Centocor but

also its corporate parent, which is not a proper party. Worth

v. Tyer, 276 F.3d 249, 259-60 (7th Cir. 2001). We treat

Centocor as the only defendant.) Minor wants the court

to award the difference between her disability benefits

and what she could have made had she remained in the

work force. (Her lawyer related at oral argument that she

does not seek any other recovery.)

Nothing in the record so much as hints that Centocor

in general, or Siciliano in particular, is biased against

women or older workers, so Minor proposes to use the

indirect method of proof pioneered by McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). The district court

concluded, however, that Minor had not established a prima

facie case under that method because Centocor did not take

any “adverse employment action” against her. Minor was

not fired or demoted; she is still Centocor’s employee,

welcome to resume work if her condition improves. The

events of which she complains—not only the schedule for

visiting accounts but also being bombarded by email

messages from Siciliano and being subject to criticism and

close supervision—are the ordinary incidents of employment rather than adverse actions, the judge concluded in

granting summary judgment for Centocor.

Although hundreds if not thousands of decisions say that

an “adverse employment action” is essential to the plaintiff’s prima facie case, that term does not appear in any

employment-discrimination statute or McDonnell Douglas,
No. 05-3080 3

and the Supreme Court has never adopted it as a legal

requirement. The statutory term is “discrimination,” and a

proxy such as “adverse employment action” often may help

to express the idea—which the Supreme Court has

embraced—that it is essential to distinguish between

material differences and the many day-to-day travails

and disappointments that, although frustrating, are not

so central to the employment relation that they amount

to discriminatory terms or conditions. See, e.g., Burlington

Northern & Santa Fe Ry. v. White, No. 05-259 (U.S. June

22, 2006), slip op. 13-14; Faragher v. Boca Raton, 524 U.S.

775, 788 (1998); Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75, 80-82 (1998). See also Washington v.

Illinois Department of Revenue, 420 F.3d 658, 661-63 (7th

Cir. 2005); Herrnreiter v. Chicago Housing Authority, 315

F.3d 742, 743-45 (7th Cir. 2002). Helpful though a judicial

gloss such as “adverse employment action” may be, that

phrase must not be confused with the statute itself or

allowed to displace the Supreme Court’s approach, which

inquires whether the difference is material.

Extra work can be a material difference in the terms and

conditions of employment. See Tart v. Illinois Power Co.,

366 F.3d 461, 475 (7th Cir. 2004); Greer v. St. Louis Regional Medical Center, 258 F.3d 843, 845-46 (8th Cir. 2001).

Minor contends that Siciliano required her to work at least

25% longer to earn the same income as before. That is

functionally the same as a 25% reduction in Minor’s hourly

pay, a material change by any standard. And if Centocor

requires women (or older workers) to work longer hours

than men (or younger workers) to obtain the same remuneration, that material difference also is discriminatory and

violates federal law. So Minor’s suit may not be dismissed

on the ground that her grievances are too niggling to come

within Title VII and the ADA.

Still, the McDonnell Douglas approach requires the

plaintiff to establish a difference in treatment compared
4 No. 05-3080

with a member of the favored group (in this case, a man or

a younger worker). Here Minor falls short. Siciliano required all sales representatives under his supervision to

visit their customers every other week. Minor (with the

support of an expert in pharmaceutical sales) says that this

is too often, but that’s not pertinent under federal law.

Employers may run (or ruin) their businesses as they

please, provided that they avoid discrimination on grounds

forbidden by federal law. See Forrester v. Rauland-Borg

Corp., No. 05-4650 (7th Cir. June 29, 2006) (collecting

authority); Pollard v. Rea Magnet Wire Co., 824 F.2d 557

(7th Cir. 1987). Siciliano’s group included men and women,

over and under age 40; all were subject to the same requirements.

Minor insists that a formally equal rule affected her

disproportionately because her territory was larger. Her

accounts were located in Springfield, Illinois (where she

lived); St. Louis, Missouri; Peoria, Illinois; Des Moines and

Iowa City, Iowa; Evansville, Indiana; and Owensboro,

Kentucky. Driving time from Springfield to either Evansville or Owensboro is eight hours each way; the drive to Des

Moines lasts between 51⁄2 and 7 hours each way. St. Louis

is a 2-hour drive from Springfield and Peoria 11⁄2. Driving

alone takes up a full work schedule; no time remains to call

on hospitals and physicians. The problem was aggravated,

Minor adds, by Centocor’s refusal to pay for moving expenses so that she could relocate to St. Louis, from which

travel times would have been shorter. (Centocor responds

that where she lived was her affair, and that it does not

reimburse sales representatives of either sex or any age for

moving expenses.)

Other sales representatives may have had more compact territories, but nothing in the record suggests that

Centocor assigned her accounts because of her sex or age.

Thus her line of argument hints at a disparate-impact
No. 05-3080 5

theory. Yet McDonnell Douglas is a framework for assessing

disparate-treatment claims, not disparate-impact claims.

Minor does not have a good disparate-impact theory

anyway, for she does not attempt to measure the effect of

Siciliano’s policy on all women (or all older workers); her

only contention is that the policy injured her, particularly.

That’s not sufficient by any standard.

What is more, at least some of the problem appears to

be of Minor’s making. She chose to drive rather than

travel by air—and she made round-trip journeys from

Springfield rather than circle trips (Springfield to St. Louis

to Iowa to Peoria to Evansville and Owensboro, then back

to Springfield). Although she blames infrequent air service to Springfield for the decision to drive, she offers no

explanation for preferring out-and-back forays over circle

trips. The most efficient method may have been to meet

accounts in Springfield, drive to St. Louis (where her major

customers were located), and after doing the rounds there

use a combination of air travel and rental cars to visit Des

Moines, Iowa City, Peoria, Evansville, and Owensboro

before returning by air to St. Louis and driving home to

Springfield. Expenses of air travel and auto rental would

have been fully reimbursed by Centocor.

How to construct the shortest route that visits all destinations is an old subject: in graph theory and linear programming it is known as the “traveling salesman problem” and

is the subject of a considerable literature. Many of the

important papers on the topic are collected at

http://www.tsp.gatech.edu/history/biblio/tspbiblio.html. Our

suggested routing may or may not be optimal—that depends in part on airline schedules—but is better than the

automobile-only, hub-and-spoke system that Minor preferred. Counsel seemed to assume the Centocor had the

burden to establish that a shorter tour was available, but

the plaintiff in employment-discrimination litigation bears

the burden of establishing the prima facie case, see
6 No. 05-3080

Ballance v. Springfield, 424 F.3d 614, 617 (7th Cir. 2005),

which entails proof of unequal treatment; and on this record

there is no foundation for a conclusion that Minor was

treated unequally, even in the sense of suffering a oneperson disparate impact.

Although Minor contends that Siciliano treated her

differently by providing a routing schedule, while allowing

other sales representatives to set their own, the record does

not support that contention. It does show that Siciliano sent

her a “sample routing”, which Siciliano invited Minor to

discuss, but it would not permit a reasonable jury to

conclude that Siciliano required Minor to use that routing

while giving other representatives free choice (recall that

Minor devised and followed her own routing)—nor would it

permit a jury to find that this “sample routing”, if designed

to be mandatory, was inefficient. Siciliano’s proposal

entailed air travel (except for an auto journey between

Evansville and Owensboro) and completed the tour in time

for Minor to spend every Friday in the office rather than on

the road. She never tried this routing (to repeat, driving

was her own preference) and has not offered any evidence

to show that, had it been followed, her schedule would have

been more onerous than that of younger or male employees.

Identification of a material difference in the terms and

conditions of employment is an objective exercise. That a

given employee perceives a burden is not enough, if that

burden is attributable to the employee’s own stubbornness

or miscalculation. Nothing in this record suggests that

Siciliano was trying to exploit a special vulnerability (as the

employer may have been trying to do in Washington); he

had no incentive to assign Minor an inefficient routing, for

his own income depended on the team’s sales. If he wanted

to replace Minor, there were much more direct ways to do

so. Because the record would not permit a reasonable jury
No. 05-3080 7

to conclude that Minor was treated worse than other sales

representatives on account of age or sex, the judgment is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-4-06