Whittaker, Susan v. Northern IL Univ ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3759
SUSAN WHITTAKER,
Plaintiff-Appellant,
v.
NORTHERN ILLINOIS UNIVERSITY,
STEVEN WILHELM, SR., an individual,
and JON SLATER, an individual,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 00 C 50447—Philip G. Reinhard, Judge.
____________
ARGUED JUNE 8, 2005—DECIDED SEPTEMBER 21, 2005
____________
Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Plaintiff Susan Whittaker sued
her former employer and supervisors under Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1983, claiming that
the defendants subjected her to a hostile work environment,
sex discrimination, and retaliation. The district court
granted summary judgment in the defendants’ favor on all
three counts, finding that Whittaker had failed to proffer
sufficient evidence in support of her claims. Because most
of the offensive comments giving rise to the plaintiff’s claim
were made outside of her presence and unbeknownst to her,
and because those that were directed at her were relatively
2 No. 04-3759
isolated, we affirm the grant of summary judgment in the
defendants’ favor on her hostile work environment claim.
We also affirm the grant of summary judgment in the
defendants’ favor on her sex discrimination and retaliation
claims, finding that Whittaker has failed to create a
genuine issue of material fact as to whether she suffered an
adverse employment action.
I. BACKGROUND
The plaintiff, Susan Whittaker, was a building services
worker at defendant Northern Illinois University (NIU)
from October 1988 through May 1999. During the last
thirteen months of her employment there, her foreman was
defendant Jon Slater. As Whittaker’s foreman, Slater
oversaw Whittaker’s daily assignments and gave her
periodic evaluations. As foreman, he was authorized to
reprimand his crew orally, but beyond that he could only
recommend higher levels of discipline. Decisions of higher
discipline, such as written warnings and suspensions, were
left to Slater’s boss—Thomas Folowell, the Assistant
Superintendent of Building Services. Folowell’s disciplinary
decisions would be made in consultation with NIU’s human
resources staff and Slater, and were subject to review and
grievance procedures pursuant to the collective bargaining
agreement between NIU and the building services workers’
union. Under this agreement, a grievance could be initiated
by an employee or the union provided that it was filed
within ten working days after the protested employment
decision became known. Grievances were heard and decided
by Thomas Morelock, NIU’s Labor Relations Officer.
According to her employment record with NIU,
Whittaker’s job performance problems began in earnest in
1999 when she began taking several unscheduled absences.
In particular, Slater faulted her for not following the
No. 04-3759 3
applicable call-in procedure and for abusing sick leave to
take vacation. Pursuant to NIU’s call-in procedure for
building workers, employees who take an unscheduled
absence are required to inform the foreman’s office of the
absence during a twenty minute period beginning ten
minutes before their scheduled start time. The start time
for Slater’s crew was 6:00 a.m.
After missing work on March 9, 1999, without calling
in within ten minutes of her start time, Whittaker re-
ceived a written warning from Folowell pursuant to Slater’s
recommendation. On April 27, 1999, she again failed to call
in absent within the designated twenty minute window.
This absence prompted Slater on May 3, 1999, to recom-
mend that Whittaker be given a three-day suspension
without pay. After receiving Slater’s recommendation and
reviewing the plaintiff’s employment record, Folowell
issued the suspension, which was to be served between May
31 and June 2, 1999. Though this was only Whittaker’s
second occurrence of absenteeism, and though evidence
suggests that NIU does not normally suspend its employees
for unexcused absences until the sixth occurrence, this
suspension was explicitly premised on Whittaker’s “insubor-
dination,” of which her absenteeism was only a part.
On May 4, 1999, Slater recommended that Whittaker
be suspended for another ten-day period for abusing
sick leave to take vacation time. This recommendation
was premised on requests for vacation time that Whit-
taker had made for two three-day periods back in March
and April 1999, which Slater had denied because she had
not accrued enough vacation time to cover the requested
absences. Whittaker, however, called in sick on those
days, prompting Slater to conclude that she was abusing
her sick leave to take vacation. Folowell agreed, and issued
the suspension. Whittaker, however, successfully contested
this suspension through internal grievance procedures.
4 No. 04-3759
While Whittaker did not deny her initial requests for
vacation on those days in question, nor produce any evi-
dence corroborating her claim that she was sick on those
days, Morelock, in deciding the grievance in Whittaker’s
favor, found that one of the days in question had already
served as the basis for her three-day suspension, and thus
potentially gave rise to a “double jeopardy” situation
counseling against the subsequent ten-day suspension.
Whittaker was nonetheless placed on “proof status” as a
result of the ordeal, thereafter requiring her to produce
proof of sickness in order to receive sick leave.
Whittaker, however, claims that the defendants stacked
her performance record against her, and that the employ-
ment actions taken against her were in fact not the product
of poor job performance, but rather unlawful motives.
Specifically, she claims she was subject to gender discrimi-
nation, retaliation, and a hostile work environment. In
support of these claims, Whittaker brought evidence that
Slater and Folowell were both aware that she had filed
charges of sexual harassment against Slater’s predeces-
sor—defendant Steven Wilhelm—in 1990. Indeed, Slater
admitted that Wilhelm had told him about the charge, and
Linda Dvorak, another foreman who had supervised
Whittaker, stated that Wilhelm frequently complained
about the charge in the presence of Slater and Folowell.
According to Dvorak, Wilhelm told her and Folowell that he
was “going to get that fucking bitch,” and that he “hated”
Whittaker for filing the 1990 charge against him.
In addition, Whittaker claims that Slater had, before
becoming her foreman, twice invited her in the presence
of another employee to join him for a “weekend of fishing
and other things” on his boat. According to the plaintiff,
Slater made another offer to go fishing together after he
became her foreman, again in the presence of another
employee, but she declined and he never asked again.
No. 04-3759 5
Thereafter, according to Dvorak and John Hetland (a
temporary foreman), Folowell, Wilhelm, and, to a lesser
extent, Slater began calling Whittaker derogatory names
when outside her presence, such as “bitch,” “dumb blond,”
“stupid cunt,” “fucking slut,” “fucking lazy bitch,” and
“goddamn whore.” Notwithstanding the vile tenor of these
alleged remarks, there is no evidence that Whittaker
was aware of them before she stopped working at NIU on
May 16, 1999.
Whittaker’s May 1999 departure from NIU occurred when
she took a leave of absence from which she never returned.
Because she stopped working at NIU on May 16, 1999, her
three-day suspension, which had been scheduled to take
place from May 31 to June 2, never took effect.
On June 21, 1999, the plaintiff filed an internal charge of
discrimination with NIU, alleging that she had been subject
to sexual harassment. On November 8, 1999, she filed
charges of discrimination and retaliation with the Equal
Employment Opportunity Commission (EEOC). After
receiving a right-to-sue letter from the EEOC, Whittaker
sued NIU, Slater, and Wilhelm, ultimately claiming under
Title VII of the Civil Rights Act of 1964 (codified at 42
U.S.C. § 2000e et seq.) and 42 U.S.C. § 1983 that the
defendants subjected her to a hostile work environment,
gender-based discrimination (based on disparate treat-
ment), and retaliation. Finding that Whittaker had failed to
proffer sufficient evidence in support of her claims, the
district court granted summary judgment in the defendants’
favor. Whittaker appeals.
6 No. 04-3759
II. ANALYSIS
A. Standard of Review
“We review a district court’s decision to grant a motion for
summary judgment de novo, construing all facts, and
drawing all reasonable inferences from those facts, in favor
of the nonmoving party.” Telemark Dev. Group, Inc. v.
Mengelt, 313 F.3d 972, 976 (7th Cir. 2002). Summary
judgment is properly granted when “the pleadings, deposi-
tions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is
no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
B. Whittaker Cannot Show Hostile Work Environ-
ment
Pursuant to Title VII, “[i]t shall be an unlawful employ-
ment practice for an employer . . . to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race color, religion, sex, or national origin[.]” 42
U.S.C. § 2000e-2(a)(1). Accordingly, this statute prohibits
employers from “requiring people to work in a dis-
criminatorily hostile or abusive environment.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Shanoff v. Ill.
Dep’t of Human Servs., 258 F.3d 696, 701 (7th Cir. 2001).
To prevail on her hostile work environment claim,
Whittaker must establish that: “(1) she was subjected to
unwelcome sexual advances, requests for sexual favors
or other verbal or physical conduct of a sexual nature; (2)
the conduct was severe or pervasive enough to create a
hostile work environment; (3) the conduct was directed at
her because of her sex; and (4) there is a basis for employer
No. 04-3759 7
liability.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 505
(7th Cir. 2004). To prove “hostile work environment,” the
alleged harassment must be “both subjectively and objec-
tively so severe or pervasive as to alter the conditions of her
employment and create an abusive working environment.”
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th
Cir. 2004). “In determining whether the environment was
objectively hostile, a court must consider all of the circum-
stances, including the frequency and severity of conduct,
whether it is threatening and/or humiliating or merely
offensive, and whether the harassment unreasonably
interferes with an employee’s work.” Id. at 975-76. Indeed,
the threshold for plaintiffs is high, as “[t]he workplace that
is actionable is one that is ‘hellish.’ ” Perry v. Harris
Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997).
Here, there is evidence that Whittaker’s supervisors
referred to her in explicit, derogatory, and sexist terms.
However, these references were made outside her presence,
and there is no evidence that she was aware of these
defendants’ remarks during her tenure with NIU. Indeed,
an objectively hostile work environment will not be
found where “[m]ost of the conduct that forms the basis
of [a plaintiff’s] claim consists of derogatory statements
made by supervisors or co-workers out of her hearing,” and
the rest is “isolated and not particularly severe.” Mannie v.
Potter, 394 F.3d 977, 983 (7th Cir. 2005); see also
Ngeunjuntr v. Metropolitan Life Ins. Co., 146 F.3d 464, 467
(7th Cir. 1998) (rejecting hostile work environment claim
where most of the offensive comments giving rise to the
claim were not directed at the plaintiff, and those that were
directed at plaintiff were isolated).
As for the arguably offensive comments that were made
in Whittaker’s presence—namely, Slater’s propositions that
Whittaker join him on his boat for “a weekend of drinking
and other things” (only one of which was made while he was
her supervisor)—the behavior, while questionable, was
8 No. 04-3759
relatively isolated, and alone not actionable. It is well
settled that “relatively isolated instances of non-severe
misconduct will not support a claim of a hostile environ-
ment.” Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 533
(7th Cir. 1993). Indeed, relatively isolated behavior far
worse than Slater’s has been found inactionable. For
example, in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333,
337 (7th Cir. 1993), the defendant allegedly “asked [the
plaintiff] for dates, called her a ‘dumb blond,’ put his hand
on her shoulder several times, placed ‘I love you’ signs in
her work area and attempted to kiss her in a bar,” and “may
have twice attempted to kiss her in the office.” Nonetheless,
we found that these incidents were “relatively isolated” and
thus failed to meet the standard for actionable sexual
harassment. Id. Likewise, in Baskerville v. Culligan Int’l
Co., 50 F.3d 428, 430 (7th Cir. 1995), the plaintiff in
support of her hostile work environment claim adduced
evidence that her employer had over the course of seven
months called her a “pretty girl”; made grunting noises as
she left his office wearing a leather skirt; told her that his
office did not get “hot” until she stepped into it; joked that
“all pretty girls [should] run around naked” in the office;
likened her to Anita Hill in acknowledging his tendency to
share comments of a sexual nature with her at the office;
and once made gestures suggesting masturbation while
conversing. Despite all this evidence of “vulgar,” “coarse,”
and “boorish” behavior, we overturned a jury verdict in the
plaintiff’s favor, noting that “[a] handful of comments
spread over months is unlikely to have so great an emo-
tional impact as a concentrated or incessant barrage.” Id. at
431.
Also relevant to our assessment of the impact of the
defendants’ behavior is the fact that none of them physi-
cally touched or threatened Whittaker, nor did they demand
sexual favors or make lewd comments or obscene gestures
to her face. See Gleason v. Mesirow Financial, Inc., 118 F.3d
No. 04-3759 9
1134, 1145 (7th Cir. 1997) (finding “it important to take into
account what [the defendant] did not do” in rejecting hostile
work environment claim, including not touching the
plaintiff, not propositioning her for sex, not threatening her,
not exposing himself, not showing her dirty pictures, nor
ever saying “anything to her that could not be repeated on
prime-time television”) (citing Baskerville, 50 F.3d at 431).
Nor did Whittaker complain about Slater’s propositions
during her employment. Wolf v. Northwest Ind. Symphony
Society, 250 F.3d 1136, 1144 (7th Cir. 2001) (citing the
plaintiff’s failure to “criticize [his boss] for sexually harass-
ing him during his employment” as undercutting his hostile
work environment claim). As the district court found, the
evidence here shows offensive conduct, but, as almost
all of it—and certainly the worst of it—occurred unbe-
knownst to plaintiff, the conduct was not so frequent,
humiliating, or threatening as to create a hostile environ-
ment. Accordingly, we affirm the district court’s grant of
summary judgment in defendant’s favor on Whittaker’s
hostile work environment claim.
C. Whittaker Has Failed To Show an Adverse Em-
ployment Action
Title VII also prohibits employers from treating employ-
ees differently on the basis of sex. See 42 U.S.C. § 2000e-
2(a)(1). To establish a claim of sex discrimination, or
disparate treatment, a plaintiff can proceed either directly,
by presenting direct and/or circumstantial evidence of
the employer’s discriminatory intent, or indirectly, through
the burden-shifting method set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Wyninger, 361 F.3d
at 978. The McDonnell Douglas burden-shifting approach
can also be used to establish indirectly a claim of retaliation
10 No. 04-3759
in violation of 42 U.S.C. § 2000e-3(a).1 See Wyninger v. New
Venture, 361 F.3d 965, 981 (7th Cir. 2004). Whittaker here
proceeds under the indirect method on both her sex discrim-
ination and retaliation claims. Accordingly, we will address
these two claims in tandem.
To establish a sex discrimination claim under the indirect
method, the McDonnell Douglas burden-shifting approach
provides as follows: (1) the plaintiff must establish a prima
facie case of discrimination based on her membership in a
protected class; (2) once a prima facie case is made, a
presumption of discrimination is established and the
burden shifts to the defendant to provide a legitimate, non
discriminatory reason for the challenged action; and (3)
once the defendant meets that burden, the plaintiff must
establish that those proffered reasons were mere pretext.
See, e.g., Gordon v. United Airlines, Inc., 246 F.3d 878, 885-
86 (7th Cir. 2001). In turn, to establish a prima facie case
of sex discrimination, a plaintiff must show that (1) she is
a member of a protected class; (2) she was meeting her
employer’s legitimate performance expectations; (3) she
suffered an adverse employment action; and (4) she was
treated less favorably than similarly situated male employ-
ees. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002).
To establish a claim of retaliation under the indirect
method of McDonnell Douglas, a plaintiff must establish
that “(1) after lodging a complaint about discrimination, (2)
only he, and not any otherwise similarly situated employee
who did not complain, was (3) subjected to an adverse
1
42 U.S.C. § 2000e-3(a) provides: “It shall be an unlawful
employment practice for an employer to discriminate against any
of his employees . . . because [the employee] has made a charge,
testified, assisted, or participated in any manner in an investiga-
tion, proceeding, or hearing under this subchapter.”
No. 04-3759 11
employment action even though (4) he was performing his
job in a satisfactory manner.” Stone v. City of Indianapolis
Pub. Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002). Thereaf-
ter, the familiar burden-shifting approach again takes hold,
requiring the defendant to come up with a noninvidious
reason for the adverse action; “[o]therwise there must be a
trial.” Id. at 644.
So, whether it be her sex discrimination or retaliation
claim, Whittaker must show that she suffered an adverse
employment action. Indeed, we need look no further than
this required element—and Whittaker’s failure to satisfy
it—to dispose of both claims. “Typically, adverse employ-
ment actions are economic injuries.” Markel v. Board of
Regents of Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir.
2002). For that matter, a suspension without pay—such
as the three-day suspension that Whittaker was sched-
uled to serve between May 31 and June 2, 1999—would
constitute an adverse employment action. See id. However,
because she voluntarily left her job in mid-May—taking
a leave of absence from which she would never return—
she never actually served this suspension. And because
she never served the suspension, she never realized any
economic effect from the slated employment action. Simply
put, a suspension without pay that is never served does not
constitute an adverse employment action. See Stavropoulos
v. Firestone, 361 F.3d 610. 617 (11th Cir. 2004) (“[A]n action
which, it turns out, had no effect on an employee is not an
‘adverse action.’ ”).
Of course, “adverse job action is not limited solely to loss
or reduction of pay or monetary benefits. It can encom-
pass other forms of adversity as well.” Smart v. Ball
State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (quoting
Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir.
1987)). “[T]he adverse action must materially alter the
terms and conditions of employment.” Stutler v. Ill. Dept. of
Corr., 263 F.3d 698, 703 (7th Cir. 2001). The terms and
12 No. 04-3759
conditions of Whittaker’s employment, however, were never
so altered. While Whittaker’s negative evaluation, written
warnings, and placement on “proof status” are putatively
disciplinary measures, none “result[ed] in tangible job
consequences and therefore are not adverse employment
actions actionable under Title VII.” Longstreet v. Ill. Dep’t
of Corrections, 276 F.3d 379, 384 (7th Cir. 2002) (holding
that plaintiff’s “negative performance evaluations and being
required to substantiate that her absences from work were
illness-related . . . did not result in tangible job conse-
quences and therefore are not adverse employment actions
actionable under Title VII”); Oest v. Ill. Dep’t of Corrections,
240 F.3d 605, 613 (7th Cir. 2001) (holding that neither
“unfavorable performance evaluations” nor “oral or written
reprimands” constitute adverse employment actions under
our case law).
Certainly, we can conceive of reprimands that carry
with them immediate, albeit non-economic, consequences
that in and of themselves go so far as to materially alter the
terms and conditions of employment. For example,
if a written warning also led to “ineligibility for job benefits
like promotion, transfer to a favorable location, or an
advantageous increase in responsibilities,” perhaps then we
would find an action that is adverse. See Oest, 240 F.3d at
613. But Whittaker has adduced no evidence of such
immediate consequences here. And while one might argue
that “each oral or written reprimand brought [the plaintiff]
closer to termination[,] [s]uch a course was not an inevita-
ble consequence of every reprimand . . . ; [rather,] job-
related criticism can prompt an employee to improve her
performance and thus lead to a new and more constructive
employment relationship.” Id.Before closing, we must note that the standards for
actionable adverse action for discrimination claims
under § 2000e-2(a) and retaliation claims under § 2000e-
3(a) are not identical. “Section 2000e-3(a) is ‘broader’ than
No. 04-3759 13
§ 2000e-2(a) in the sense that retaliation may take so many
forms, while § 2000e-2(a) is limited to discrimination ‘with
respect to [the worker’s] compensation, terms, conditions, or
privileges of employment.’ ” Washington v. Ill. Dep’t of
Revenue, No. 03-3818, slip op. at 3 (7th Cir. August 22,
2005); see also Herrnreiter, 315 F.3d 742, 746 (7th Cir. 2002)
(recognizing that, to be actionable under Title VII, retalia-
tion need not involve “an actual employment action”). In the
retaliation context, an employer’s action will be actionable
under § 2000e-3(a) if it would have “dissuaded a reasonable
worker from making or supporting a charge of discrimina-
tion.” Washington, slip op. at 7. Nonetheless, Whittaker’s
claim, reduced to written reprimands, falls short of this
broader standard as well. Accordingly, the plaintiff’s sex
discrimination and retaliation claims must fail.
While Whittaker does not argue constructive dis-
charge, we pause for good measure to note that she would
lose on that score as well. “Working conditions for construc-
tive discharge must be even more egregious than the high
standard for hostile work environment because in
the ordinary case, an employee is expected to remain
employed while seeking redress.” Tutman v. WBBM-TV,
Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000).
Because, as we have already found, Whittaker has failed to
show work conditions so egregious as to meet the stringent
hostile work environment standard, she certainly cannot
reach the even higher threshold required to show a con-
structive discharge.
As Whittaker cannot establish that she was subject to
an adverse employment action, she has failed to make
her claims of disparate treatment and retaliation. We
affirm the district court’s grant of summary judgment in the
defendants’ favor on these counts accordingly.
14 No. 04-3759
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district
court’s grant of summary judgment in the defendants’ favor
on plaintiff’s claims of hostile work environment,
sex discrimination, and retaliation.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-21-05