O'Neal, Brenda v. City of Chicago ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1402
BRENDA O’NEAL,
Plaintiff-Appellant,
v.
CITY OF CHICAGO and
JERRY ROBINSON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 8451—Harry D. Leinenweber, Judge.
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ARGUED OCTOBER 27, 2004—DECIDED DECEMBER 20, 2004
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Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Plaintiff-appellant Brenda O’Neal,
a black woman, was a sergeant in the Chicago Police
Department. In May 2002, she was transferred from her
position as “administrative sergeant” in the Narcotics Unit
to the position of “beat sergeant” in one of the districts.
O’Neal brought suit against the City of Chicago and Jerry
Robinson, Chief of the Organized Crime Division, alleging
that this transfer was the result of racial and gender dis-
2 No. 04-1402
crimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981
and 1983. The district court granted summary judgment to
defendants on all claims. O’Neal appeals the grant of sum-
mary judgment only as to her gender discrimination claim.
For the reasons stated herein, we affirm.
I. Background
O’Neal began her tenure with the Chicago Police
Department in June 1991. She was hired as a probationary
police officer and attained career service status a year later.
After working in several police districts, O’Neal was pro-
moted to the position of sergeant in 2001. In February 2002,
O’Neal applied for and obtained a position as administrative
sergeant in the Narcotics and Gangs Investigations Section
of the Organized Crime Division (“Narcotics Unit”). Chief
Robinson reviewed her application and approved her
transfer into the Narcotics Unit.
Three months later, in May 2002, upon Robinson’s rec-
ommendation, O’Neal was transferred from her position in
the Narcotics Unit to the position of beat sergeant in one of
the districts. She was replaced by Sergeant Robert Roman,
a male officer. Defendants claim this transfer was a secu-
rity precaution taken in response to a rumor that, several
years earlier, O’Neal had dated Reginald Lee, a former
Chicago police officer who was convicted of selling narcotics
in 1994. The rumor of O’Neal’s alleged relationship with
Lee began circulating around the time of Lee’s release from
prison. O’Neal denies having had a personal relationship
with Lee. She claims that Robinson made the decision to
transfer her even though he was aware at the time that the
rumor had no basis in fact.
O’Neal filed suit on November 20, 2002. On January 22,
2004, the district court granted summary judgment to
defendants, finding that, even when construed in a light
No. 04-1402 3
most favorable to O’Neal, the evidence did not establish
that O’Neal suffered a legally cognizable adverse employ-
ment action.
II. Discussion
Summary judgment is appropriate where, reviewing the
evidence in the light most favorable to the nonmoving par-
ty, there is no genuine issue of material fact that must be
decided by a jury. See Fed. R. Civ. P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252-55 (1986); Laborers’
Pension Fund v. RES Envtl. Servs., Inc., 377 F.3d 735, 737
(7th Cir. 2004). We review the district court’s grant of sum-
mary judgment de novo. Bell v. Duperrault, 367 F.3d 703,
707 (7th Cir. 2004).
O’Neal sought to establish her claim of gender discrimina-
tion under the burden-shifting method set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To
advance a prima facie case of gender discrimination, O’Neal
must establish four elements: (1) she is a member of a pro-
tected class; (2) she performed her job satisfactorily; (3) she
suffered an adverse employment action; and (4) defendants
treated similarly situated employees outside her class more
favorably. Russell v. Bd. of Trs. of Univ. of Ill. at Chi., 243
F.3d 336, 341 (7th Cir. 2001). Only after plaintiff estab-
lishes a prima facie case does the burden shift to defendants
to articulate a nondiscriminatory justification for the action.
Once defendants do so, plaintiff must present sufficient
evidence to create a triable issue concerning whether this
justification is pretextual. Id. (citing St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 508 (1993)).
Although it may be argued that Robinson was overzealous
in transferring O’Neal, we need not reach the questions of
nondiscriminatory justification and pretext because the
evidence presented by O’Neal does not support a prima facie
case of gender discrimination. Specifically, O’Neal has not
4 No. 04-1402
presented sufficient evidence of the third element of the
prima facie case, a materially adverse employment action.
O’Neal argues that her transfer from the Narcotics Unit
to the position of beat sergeant was an adverse employment
action. Though it is undisputed that the two positions hold
the same rank within the police department and receive the
same pay and benefits, O’Neal argues that the transfer
effectively was a demotion.
“While adverse employment actions extend beyond readily
quantifiable losses, not everything that makes an employee
unhappy is an actionable adverse action.” Conley v. Vill. of
Bedford Park, 215 F.3d 703, 712 (7th Cir. 2000) (quoting
Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)).
“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.’ ” Smart, 89
F.3d at 441 (quoting Williams v. Bristol-Myers Squibb Co.,
85 F.3d 270, 274 (7th Cir. 1996)).
This Court has articulated three general categories of
materially adverse employment actions actionable under
Title VII: (1) cases in which the employee’s compensation,
fringe benefits, or other financial terms of employment are
diminished, including termination; (2) cases in which a
nominally lateral transfer with no change in financial terms
significantly reduces the employee’s career prospects by pre-
venting her from using her skills and experience, so that
the skills are likely to atrophy and her career is likely to be
stunted; and (3) cases in which the employee is not moved
to a different job or the skill requirements of her present job
altered, but the conditions in which she works are changed
in a way that subjects her to a humiliating, degrading,
unsafe, unhealthful, or otherwise significantly negative
alteration in her workplace environment. Herrnreiter v. Chi.
Hous. Auth., 315 F.3d 742, 744-45 (7th Cir. 2002) (citations
omitted). We noted that cases in the second category involve
a future, rather than present harm. Id. at 744. We also
cautioned that they are to be distinguished from cases
No. 04-1402 5
involving “a purely lateral transfer, that is, a transfer that
does not involve a demotion in form or substance.” Id.
(quoting Williams, 85 F.3d at 274). “A transfer involving no
reduction in pay and no more than a minor change in
working conditions will not do, either.” Id.
O’Neal argues that her transfer constitutes an adverse
employment action for several reasons. First, she asserts
that the transfer negatively affected her chances of promo-
tion because positions in the Narcotics Unit are more pres-
tigious than those in the districts. O’Neal also contends that
the transfer marred her reputation “by implicitly accepting
the rumor, despite the evidence that [she] never had the re-
lationship in question.” (Appellant’s Br. at 17.) Because of
the transfer, O’Neal asserts, her opportunity for promotion
was “limited due to the irreparable harm on her profes-
sional credibility and the ability to achieve higher ranks.”
(Id. at 17-18.)
In support of this assertion, however, O’Neal offers only
speculation, which is insufficient to defeat summary judg-
ment. Bell, 367 F.3d at 707. O’Neal presents no objective
evidence that sergeants in the Narcotics Unit are more likely
to be promoted than sergeants working in the districts.
O’Neal’s strongest evidence that her career prospects were
harmed is the testimony of Commander Wiberg, her super-
visor in the Narcotics Unit, who testified:
Reputations are very precious within the police depart-
ment. Ironically, when you move from one unit to an-
other people know who you are before you get there
based on your reputation, and especially if you are a
supervisor. And as you rise through the ranks, your
good name carries a great deal of weight, and it would
have some bearing.
(R. 23, Vol. II at 43.)
Wiberg did not testify, however, that O’Neal could not or
would not be promoted because of the transfer. Even if the
rumor did tarnish her reputation, which could ultimately
6 No. 04-1402
diminish her chances for promotion, O’Neal has presented
no evidence that the transfer, the employment action at
issue, rather than the rumor itself, caused this harm. More-
over, despite her allegation that the transfer lent credibility
to the rumor about her relationship with Lee, O’Neal has
presented no evidence that Robinson propagated or en-
dorsed the rumor. Nor has she alleged that the rumor rose
to the level of harassment or created a hostile work en-
vironment.
O’Neal also contends that the transfer negatively altered
the conditions of her employment. She claims that the po-
sition in the Narcotics Unit gave her increased opportunities
for overtime pay and more supervisory responsibilities than
her district position. O’Neal also complains that the trans-
fer deprived her of the perks associated with the admin-
istrative position, including the use of a work-provided cel-
lular telephone, pager, vehicle, and parking space, as well
as having most weekends and holidays off.
Although she claims that the transfer resulted in less over-
time, O’Neal has adduced no evidence that she actually took
home less pay as a beat sergeant. The remaining discrepan-
cies do not render the transfer an adverse employment
action. O’Neal has not presented evidence that her supervi-
sory responsibilities were significantly reduced because of
the transfer. As the administrative sergeant of the Narcot-
ics Unit, she was responsible for the daily operation of the
unit, scheduling twenty security employees, attending
meetings, supervising employees on the night shift, and
performing tasks assigned by the commander. As a beat
sergeant, however, O’Neal also had significant supervisory
responsibilities, overseeing sixteen officers responding to
calls in the field. While O’Neal claims she was subject to
more constant monitoring from superiors as a beat ser-
geant, she does not dispute that she reported directly to
Commander Wiberg in the Narcotics Unit.
No. 04-1402 7
O’Neal’s complaints about being relegated to the “random
tasks of supervising beat officers” and losing a flexible work
schedule and the ability to have weekends and holidays off
also fall short of an adverse employment action. These
responsibilities are well within the reasonable scope of her
duties as a sergeant in the Chicago Police Department, and
requiring her to perform them does not constitute an
adverse employment action for which federal law provides
a remedy. See Conley, 215 F.3d at 712 (assigning plaintiff
to paint the pump room for several months where other
maintenance workers received similar assignments was
“well within the scope of normal activities for a Village
maintenance worker” and was not an adverse employment
action); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883,
886 (7th Cir. 1989) (upholding district court’s determination
that plaintiff suffered no adverse employment action where
she was reassigned to dual principalship in different schools
for more pay under longer term contract).
By definition, any lateral job transfer will result in changes
to an employee’s job responsibilities and work conditions.
To sustain a federal employment discrimination suit, a
plaintiff must show something more than the ordinary dif-
ficulties associated with a job transfer. See Conley, 215 F.3d
at 712 (“A materially adverse change in employment
conditions must be more disruptive than a mere inconve-
nience or an alteration of job responsibilities.”) (quoting
Johnson v. City of Fort Wayne, 91 F.3d 922, 932 (7th Cir.
1996)). As we have stated before, “being shifted to an es-
sentially equivalent job that [an employee does] not happen
to like as much does not a Title VII claim create.” Place v.
Abbott Labs., 215 F.3d 803, 810 (7th Cir. 2000) (rejecting
plaintiff’s argument that being “moved from an interesting
job she liked that involved overseeing several other people
to a boring job she didn’t like and that lacked any supervi-
sory duties” was an adverse employment action); McKenzie
v. Milwaukee County, 381 F.3d 619, 625-26 (7th Cir. 2004)
8 No. 04-1402
(finding that police officer’s transfer from position as un-
dercover detective in Drug Enforcement Unit to non-inves-
tigatory position in courts and auxiliary bureau did not
constitute an actionable adverse employment action).
O’Neal’s complaints about the transfer reveal only a
“purely subjective preference for one position over another,”
which does not “justify trundling out the heavy artillery
of federal antidiscrimination law.” Herrnreiter, 315 F.3d
at 745. In Herrnreiter, this Court determined that the
plaintiff’s transfer from his position as an investigator to
that of an auditor was not an actionable adverse employ-
ment action because “the two jobs were equivalent other
than in idiosyncratic terms.” Id. By contrast, in our recent
decision in Tart v. Illinois Power Company, 366 F.3d 461
(7th Cir. 2004), we held that the jury had been reasonable
in determining that the plaintiffs’ reassignment was an ad-
verse employment action because it placed them in positions
that were objectively inferior to their previous jobs. Con-
trasting the reassignment in Tart from the transfer in
Herrnreiter, we noted:
Few workers in today’s job market would choose to give
up access to computers so they could spend the winter
on trenchers and with shovels, digging the holes that
made way for other workers to complete the skilled part
of the labor. This preference is not idiosyncratic; it is
universal.
Tart, 366 F.3d at 473-74. O’Neal’s transfer from the Narcot-
ics Unit to a district position comes nowhere close to the
adverse reassignments at issue in Tart.
Accordingly, O’Neal has failed to establish a prima facie
case of discrimination as a matter of law.
III. Conclusion
For the foregoing reasons, the decision of the district
court is AFFIRMED.
No. 04-1402 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-20-04