Opinion
IP 98-0339-C T/K
December 10, 2001
B Bobby, A Potters, Potters Law Office, Indianapolis, IN.
Paul H Sinclair, Ice Miller, Indianapolis, IN.
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendant filed a motion for summary judgment. Plaintiff opposes the motion.
The court rules as follows.
I. Factual Background
The court took these facts from the submissions of the parties, accepting all non-disputed facts as true and construing disputed facts and all reasonable inferences therefrom in favor of West.
C. Mae West began her employment with Maxon Corporation in 1977. Since 1990, West worked in the control valves department with Sherman Minton. (Compl. ¶ 10.) She worked approximately fifty feet from Dale Shores. On September 23, 1997, West filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On December 9, the EEOC issued its notice informing West of her right to sue. On March 9, 1998, West filed suit alleging sexual discrimination, age discrimination, a hostile work environment, and a claim of retaliation. West alleged that Maxon treated female employees less favorably than male employees and also discriminated against its older employees. Specifically, she claimed that she was not trained on a tow motor, she was not given cleaning tools that her male counterparts were, she received unpleasant job assignments, she was required to ask permission to get new tools while her male counterparts did not have to do so, her work area was cold, her requests for improvements in her work area were denied, she was denied equal opportunities for overtime, and she was denied opportunities to cross-train.
West also complained of the work environment, specifically, that one of her supervisors called her "blue tit" after a freak accident with a sanding disc, another supervisor made inappropriate comments about her build, that two employees yelled, whistled, and laughed at her when she walked through the Shipping Department, and that Shores "frequently looked at Plaintiff while either holding his penis through his pants or stroking his pelvic area or standing with his legs far apart in front of his work bench and swinging or thrusting his pelvic area back and forth." (Compl. ¶ 33.) West received a written reprimand on July 18, 1997, for giving another worker an obscene gesture after the worker threatened her. Since filing her EEOC complaint, West contends that the conduct has increased and management has given her "the cold shoulder." In January of 2000, West resigned from Maxon. On July 14, West filed an amended complaint making claims of gender discrimination, age discrimination, a hostile work environment, retaliation, and constructive discharge. On December 12, Maxon filed a motion for summary judgment contending among other things that the claims were untimely, there was no prima facie case of discriminatory treatment, Maxon's reasons for its decisions were not pretextual, the hostile work environment complaints were not based on age and gender, Maxon took corrective action, and the retaliation was not an adverse employment action. For a variety of reasons, this court grants Maxon's motion for summary judgment.
II. Summary Judgment Standard
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The motion should be granted only if no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party opposing the motion bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). When ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. Speculation, however, is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is not required to draw every conceivable inference from the record in favor of the non-movant, but only those inferences that are reasonable).
III. Sex and Age Discrimination Claims
A plaintiff in an employment discrimination case may proceed under two methods of proof: the direct method and the indirect burden-shifting method established by McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). West suggests that she has satisfied the indirect, burden-shifting method of proof articulated in McDonnell Douglas. Title VII prohibits an employer from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . ." 42 U.S.C. § 2000e-2(a)(1). The Age Discrimination in Employment Act of 1967 ("ADEA") prohibits discrimination on the basis of age and protects workers who are over the age of forty. Under the McDonnell Douglas approach, a plaintiff must first establish a prima facie case of discrimination. See, e.g., Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1000 (7th Cir. 2000) (citation omitted). Where a plaintiff alleges discriminatory treatment, she must demonstrate that (1) she belongs to a protected class; (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4) her employer treated similarly-situated employees outside of her protected class more favorably. Id. at 1001 (citations omitted). If a plaintiff successfully establishes a prima facie case of discrimination, the burden shifts to the employer to come forward with a legitimate, non-discriminatory reason for the adverse employment action. Id. After the employer has met its burden of production, the burden shifts back to the employee to prove by a preponderance of the evidence that the employer's stated reason is merely a pretext for discrimination. Id. Although the McDonnell Douglas approach is often called a burdenshifting method of proof, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Maxon does not dispute that West is a member of two protected classes and that she was meeting its legitimate job expectations for purposes of this motion. However, West cannot establish a prima facie case of sex or age discrimination because she cannot demonstrate that she was subjected to an adverse employment action. An adverse employment action is a materially adverse change in the terms and conditions of employment that is more disruptive than a mere inconvenience or an alteration of job responsibilities. Id. (quotation and citation omitted). Adverse employment action has been defined quite broadly in this circuit, see Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996), and "may include actions such as bestowing on an employee a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Stockett, 221 F.3d at 1001 (citation omitted). However, not every employment action that is unpleasing to an employee is actionable. In Smart, 89 F.3d at 441-42, the Seventh Circuit explained: "While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." In Crady v. Liberty National Bank Trust Co., 993 F.2d 132 (7th Cir. 1993), the Seventh Circuit found that a change in title from assistant vice-president and manager of one branch of a bank to a loan officer position at a different branch did not by itself constitute an adverse employment action.
Another case where adverse employment action was found to be absent is Spring v. Sheboygan Area School District, 865 F.2d 883 (7th Cir. 1989). In Spring, a more than sixty-five-year-old school principal was offered the choice between retirement and transfer to a different school as part of a school district reorganization plan. The transfer would have afforded the principal a two-year contract and a merit pay increase, but she would have had to share the position with a co-principal. The court found that the humiliation she claimed the co-principal arrangement would cause did not constitute an adverse employment action because public perceptions were not a term or condition of Spring's employment. Spring, 865 F.2d at 886. The only negative employment-related consequence of the transfer was found to be an increase in the distance she had to travel to work. This alone did not constitute an actionable adverse employer action. Likewise, in Flaherty v. Gas Research Institute, 31 F.3d 451 (7th Cir. 1994), the Seventh Circuit found that a lateral transfer, where the employee's existing title would be changed and the employee would report to a former subordinate, may have caused a bruised ego, but did not constitute an adverse employment action.
West alleges that her job assignments, a failure to cross-train, a lack of job advancements, a lack of access to tools, harsh working conditions, and a lack of improvements to her work areas were all materially adverse employment actions. West raises a variety of incidents including that she had to teach herself how to drive a tow motor, she did not get the tools she wanted, she had to perform "hard" jobs when she worked with male employees, her vices were not notched, she was not given a bench bracket, she did not have a ceiling fan, and the other employees were too loud. These incidents are clearly not the type of things Congress contemplated as adverse employment actions. Rather, they are inconveniences.
West's claim that she was denied overtime might constitute an adverse employment action. However, because West's own testimony establishes that she turned down overtime assignments, she cannot now complain about her lack of overtime. Cf. Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) ("Instead of discussing Reynolds offer [of a transfer] with him, Perry rejected it outright. That was her prerogative, but because it revealed that her hands were not tied, and that resignation was not the only choice available to her, it tells us that her constructive discharge claim should not have reached a jury, either."). West's written reprimand likewise does not constitute an adverse employment action because it did not carry any job consequences. See Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998). Finally, although West claims that she was denied job advancements, a seemingly adverse employment action, which would undoubtedly affect salary and benefits, she has presented no evidence of this and does not appear to develop an argument based on this claim of an adverse employment action.
Even if West could establish that she was being denied overtime, she has presented no evidence that other males and younger employees receive more overtime. She cites to four depositions for this proposition, none of which say anything about overtime distribution being based on sex or age, or even imply that younger employees or men received more overtime than West. (Pl.'s Additional Resp. to Defs.' Statement of Material Fact in Support of Resp. to Mot. for Summ. J. ¶ 67.)
None of these alleged incidents, either alone or in combination, comes close to a materially adverse change in the terms and conditions of employment. For the foregoing reasons, the court concludes that the employment actions to which West was subjected were not materially adverse such that she is able to establish a prima facie case of disparate treatment on account of her sex or age.
IV. Harassment Claims
Title VII forbids not only economic or tangible discrimination, such as discharge, demotion, or undesirable assignment, but it also prohibits conduct that creates hostile work environments. Faragher v. City of Boca Raton, 524 U.S. 775, 786-87 (1998); Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1453 (7th Cir. 1994). "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher, 524 U.S. at 807; Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1142 (7th Cir. 2001). "When the workplace is permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)).
West also appears to raise a claim that she was subject to a hostile work environment because of her age based on the same allegations as discussed in this section. Although it is unclear whether this circuit recognizes a claims of hostile work environment under the ADEA, see Halloway v. Milwaukee County, 180 F.3d 820, 827 (7th Cir. 1999), West has not established that any harassment was "severe or pervasive enough to create an objectively hostile or abusive work environment." Id. at 827-28 (citations omitted).
In order for a plaintiff to have an actionable hostile work environment claim under Title VII, the work environment must be both objectively and subjectively hostile. Harris, 510 U.S. at 21-22. In other words, the environment must be one that a reasonable person in the plaintiff's position would find hostile or abusive, and one that the victim did in fact perceive to be so. Faragher, 524 U.S. at 786-87; Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); Dey, 28 F.3d at 1454. This inquiry eliminates any requirement that a plaintiff demonstrate that the harassment concretely impaired his or her work performance or psychological well being, and focuses the inquiry on whether the harassment altered the terms and conditions of his or her employment. Harris, 510 U.S. at 21-22; Dey, 28 F.3d at 1454-55.
This court must examine incidents cumulatively in order to obtain a realistic view of the work environment. An objectively hostile environment is one that a reasonable person would find hostile or abusive. Harris, 510 U.S. at 21; Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998). Although there is no mathematically precise test to apply to the somewhat elusive question of whether an environment is objectively hostile or abusive, appropriate factors that a court may consider include: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 22-23. "[N]o single factor is required," and whether a work environment is "`hostile' or `abusive' can be determined only by looking at all the circumstances." Id. "It is not enough that a supervisor or coworker fails to treat a female employee with sensitivity, tact, and delicacy, uses course language, or is a boor. Such failures are too commonplace in today's America, regardless of the sex of the employee to be classified as discriminatory." Minor v. Ivy State College, 174 F.3d 855, 858 (7th Cir. 1999).
For example, relatively isolated instances of non-severe misconduct will not support a claim of hostile work environment, although a pervasive pattern of bigoted jokes may incur Title VII liability. Dey, 28 F.3d at 1456; Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993). The determination of a defendant's liability under Title VII "must be made on a case-by-case basis after considering the totality of the circumstances." Rodgers, 12 F.3d at 674 (internal quotations and citations omitted).
In Dey, the plaintiff claimed that she had been sexually harassed based on five specific incidents of harassment by the employer's vice-president: a comment by the vice-president that another woman with whom he was working was a "flat chested cunt"; the vice-president's remark that the plaintiff had not gotten a tan during her vacation because she had spent the week on her back in bed; his statement that he "would eat [plaintiff] no matter how [she] smelled"; his unzipping of his slacks while he and plaintiff were alone in the elevator; and his overheard remark to someone on the telephone that "there is a girl in my office going down on me," made when the plaintiff leaned down to put some documents on his floor. Id. at 1449-50. In addition, the plaintiff made a more general allegation that this same vice-president had made "almost daily comments, gestures, and innuendo of a sexual nature" that were not as blatant as the five, specific instances she was able to recall. Id. at 1456. The combination of the abusive nature of the specific incidents alleged to have occurred and the general allegation of daily comments led the Seventh Circuit to conclude that the plaintiff had met her burden of establishing that the work environment was consistently offensive and abusive. Id. at 1456.
In contrast, in Baskerville v. Culligan International Co., 50 F.3d 428, 430 (7th Cir. 1995), after the jury found in favor of a plaintiff who alleged nine specific instances of harassment which had occurred over a seven month period, the Seventh Circuit overturned that jury verdict. The plaintiff had claimed that a supervisor made a variety of inappropriate comments including calling her "pretty girl." The Seventh Circuit noted that the defendant "never said anything to her that could not be repeated on primetime television" and found as a matter of law that the "handful of comments" alleged to have occurred did not give rise to liability under Title VII. Id. at 431.
More recently, in Wolf, 250 F.3d at 1136, the plaintiff, a male operations manager of the symphony, alleged that he had been sexually harassed by his female supervisor. The plaintiff cited several specific actions taken by his supervisor to support his harassment claim, including: (1) making him perform menial tasks around the office that he alleged were beyond the scope of his job responsibilities; (2) informing him that she was glad there was "muscle" in the office; (3) telling him on several occasions what she wore to bed; (4) phoning him late at night to tell him that she was alone and scared; (5) informing him that she had not been with a man in six years; (6) holding his arm when he walked her to her car after work; (7) reserving a hotel room for him and using the shower in that room before a concert; (8) telling him that men were untrustworthy. Id. at 1143. He also alleged that she once gave him her house keys and told him that he "never knew when he might need them." Id. at 1139. However, the court noted that the plaintiff did not allege that his supervisor ever explicitly requested a sexual relationship with him. The Seventh Circuit held that these allegations were insufficient to create an objectively hostile work environment, finding that they were even less egregious than the actions alleged to have occurred in Baskerville. Id. at 1144. "Perhaps [the supervisor] crassly let [plaintiff] know that she was lonely, but only someone `mysteriously aloof from contemporary American popular culture in all its sex-saturated vulgarity' would find [her] sexual overtures, if they even can be identified as such, substantially distressing." Id. (quoting Baskerville, 50 F.3d at 431).
The facts of this case fall somewhere in between those before the courts in Baskerville and Wolf on the one hand, and Dey on the other. Accepting West's allegations as true, this court notes that a working leader called her "Blue Tit," she was associated with a cartoon of a naked woman, she was asked what color her pubic hair was, a male employee grabbed his penis in front of her, and younger employees whistled, hollered, and laughed at West. However, none of these allegations appears to be as "blatant" as any of the specific incidents alleged in Dey. West alleges no incidents over the entire time she was employed at Maxon which involved any physical contact.
The most continuous and severe allegations of West's are that Dale Shores "subjected [West] to a pattern of continuous harassment and intimidation in the form of obscene gestures directed at her. . . ." (Pl.'s Add. Response to Defs.' Statement of Material Facts in Support of Response to Mot. for Summary Judgment ¶ 73.) According to Maxon, Shores adjusted his genitals in front of both men and women and it was not directed at West. Furthermore, West's factual support for her contention does not actually support her claim that Shores' actions were intentional actions toward her. In his deposition, Larry Steed was asked, "Have you ever observed Mr. Shores, since that curtain has been up, have you ever observed Mr. Shores playing with himself and standing in the direction of Mrs. West's work bench?" He responded, "I have seen him look that direction, yes." Steed makes no mention of Shores' intentionally grabbing his crotch or directing his actions at West. The second deposition relied upon by West, that of Sherman Minton, details an incident in which Shores "shook" his penis at another male co-worker, Phil Stevens. This, too, does not establish that Shores was harassing West.
Although the general allegations involve comments about West's body, they do not do so in a manner which implies or connotes overt pressure on West in any way or intimidation of her to submit to sexual relations with her supervisors. West's allegations, if taken as true, depict her co-workers as a boorish men whose "sense[s] of humor took final shape in adolescence" and whose use of language, being regularly "tinged with sexual innuendo," is at best boring and also offensive. Baskerville, 50 F.3d at 430, 431. However, as was the case in Baskerville and Wolf, for the most part, none of working leaders' distasteful and immature comments directed at West were worse than those the public knows to be "repeated on primetime television." Baskerville, 50 F.3d at 431.
Although West's allegations describe a setting where she was subjected to inappropriate comments, the comments and remarks were not so frequent or severe as to objectively affect the workplace. Without in any way intending to endorse such conduct, this court must conclude nonetheless that West has failed to show that her workplace was objectively hostile. Her sexual harassment claim therefore fails as a matter of law.
V. Retaliation
West also makes a claim of retaliation, claiming that Maxon's "conduct in allowing, maintaining, and encouraging employees to subject Plaintiff to a hostile environment was in retaliation against" West's filing of her complaint with the EEOC. To demonstrate a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. See Sweeney v. West, 149 F.3d 550, 555 (7th Cir. 1998); McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). Because this court has already determined that West's work environment was not objectively hostile, a hostile work environment cannot support her retaliation claim. In addition, West claims that management gave her "the cold shoulder" in retaliation for filing her EEOC complaint. However, this does not constitute an adverse employment action because it is not a materially adverse change in the terms and conditions of employment. Because West has not presented any evidence that she suffered an adverse employment action, her claim of retaliation must fail.
VI. Constructive Discharge
Finally, West claims that Maxon's discriminatory conduct and hostile work environment were designed to force her to quit her job. Establishing constructive discharge is a two-step process. First, a plaintiff needs to show that her working conditions were so intolerable that a reasonable person would have been compelled to resign. Second, the conditions must be intolerable because of unlawful discrimination. Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 877 (7th Cir. 1999) (quoting Drake v. Minn. Mining Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998); Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996)). The court in Simpson, considering a case dismissed on summary judgment, summarized prior Seventh Circuit case law on what does and does not constitute intolerable working conditions:
We have characterized as intolerable working conditions that involved a series of escalating sexual remarks culminating in a physical assault and death threat. Also intolerable was a work environment in which a manager held a gun to his subordinates temple, took a picture and then circulated the picture at a company meeting, stating this is what a nigger looks like with a gun to his head. Intolerable, too, was a work environment where a subordinates disputed sexual relationship with her supervisor led to a suicide attempt.
In contrast, this Court has found a range of unpleasant and even embarrassing employer actions tolerable and therefore insufficient to effect a constructive discharge. For instance, an arbitrary reprimand, exclusion from office activities, assignment to a fallow sales territory and lack of supervisor support were found tolerable in Harriston v. Chicago Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993). Similarly, a series of work restrictions including limited secretarial access, denial of a flex-time request, a bar on speaking to colleagues about no-work matters and truncated breaks were deemed tolerable. . . . Again, a work environment in which husband and wife plaintiffs were shunned, received harassing phone calls, discovered that someone had gone through papers in their work locker and were told once that their safety might be in jeopardy was found unpleasant, but not intolerable.
Simpson, 196 F.3d at 877 (internal citations omitted). As discussed above, none of West's claims rise to the level of an adverse employment action and the work environment was not objectively hostile. Similarly, the conditions were not so intolerable that a reasonable person would have been compelled to resign. Therefore, her claim for constructive discharge must fail as well.
VII. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED.
ALL OF WHICH IS ORDERED this 10th day of December 2001.