Gross, Leticia M. v. White, Jesse , 173 F. App'x 484 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2006*
Decided March 24, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1773
LETICIA M. GROSS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division
v.
No. 02 C 5064
JESSE WHITE, et al.,
Defendants-Appellees. John W. Darrah,
Judge.
ORDER
Leticia Gross worked for the Illinois Secretary of State (“SOS”) in the
Department of Drivers Services from 1991 until she was fired in March 2002. Gross
sued Secretary of State Jesse White, Thomas Benigno, Gary Lazzerini, Tina Prose,
and Jeanine Stroger (collectively, “defendants”), alleging that they retaliated
against her for filing a sexual harassment complaint and maintained a hostile work
environment in violation of Title VII, 42 U.S.C. § 2000e, et seq. She also claims they
retaliated against her because of her political affiliation with the prior Secretary of
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1773 Page 2
State in violation of 42 U.S.C. § 1983. The district court granted summary
judgment for defendants, and we affirm.
Gross’s briefs to this court do not explain how the district court erred in
granting summary judgment, and neither cite to the record nor to any legal
authority. This violates Federal Rule of Appellate Procedure 28(a)(9), which
requires that briefs—even pro se briefs—contain an argument consisting of more
than a generalized assertion of error and include citations to the record and
supporting authority. See Hrobowski v. Worthington Steel Co., 358 F.3d 473, 478
(7th Cir. 2004); Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002); Anderson v.
Hardman, 241 F.3d 544, 545 (7th Cir. 2001). However, even treating her appeal as
properly presented, we must affirm.
We review the grant of summary judgment de novo, viewing all facts in the
light most favorable to Gross. See Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432
(7th Cir. 2005). George Ryan was the Secretary of State when Gross began working
for the SOS. Gross was an active participant in Ryan’s campaigns for office, and
ran as a Republican candidate for State Representative in 1991. Shortly after Jesse
White replaced Ryan in 1999, Gross was transferred from the SOS executive offices
to its central facility, where she retained the title of Administrative Assistant II but
was relegated to clerking duties. In 2001 she was transferred to the Chicago Public
Service Center (“CPSC”).
On October 1, 2001, Gross complained to her supervisor that Nickolas Torres,
a co-worker at CPSC, exposed his genitalia to her and made sexually suggestive
remarks; she also reported these allegations to the SOS’s Office of the Inspector
General (“OIG”). Gross was then immediately transferred to the Diversey Facility,
a facility closer to her home. Two investigations into the alleged harassment
ensued–one by Corney Morgan of the OIG and another by Jeanine Stroger, the SOS
Equal Employment Opportunity officer.
Morgan interviewed four SOS employees, none of whom saw Torres harass
Gross. But one, Susan Ordonez-Garcia, told Morgan she saw Gross and Torres grab
each other’s “private parts,” and once saw Gross expose her breasts to Torres in the
lunch room and try to pull down the zipper on his pants. Stroger also interviewed
the same SOS employees. Ordonez-Garcia told Stroger about the interaction she
had witnessed between Gross and Torres in the lunchroom, and another employee
said she saw Gross pull down Torres’s pants in the supply room. A further
employee said he once saw Torres drop his pants for Gross who then touched him
between the legs. Torres himself admitted to engaging in sexual acts with Gross.
Both Morgan and Stroger independently concluded that Torres had not
sexually harassed Gross but that Gross and Torres had engaged in misconduct at
No. 05-1773 Page 3
the SOS offices. They reported these findings to Gary Lazzerini, head of the
Department of Drivers Services in Chicago. Lazzerini recommended terminating
Gross and Torres for disorderly conduct under the SOS Policy Manual; Gross and
Torres were fired around March 2002.
On appeal, Gross insists that Torres’s conduct created a hostile work
environment. Since Gross concedes that Torres was not her supervisor, she must
show that defendants were “negligent either in discovering or remedying the
harassment.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 506 (7th Cir. 2004); Hall
v. Bodine Elec. Co., 276 F.3d 345, 356 (7th Cir. 2002) (internal citations omitted).
As long as an “employer takes steps reasonably likely to stop the harassment,” such
as by terminating all contact between victim and alleged perpetrator, Saxton v. Am.
Tel. and Tel. Co., 10 F.3d 526, 536 (7th Cir. 1993), the employer avoids liability.
Here, as soon as defendants knew of the alleged harassment, they transferred Gross
to another facility closer to her home. Because Gross has no evidence that the
transfer injured her, see Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1049
(7th Cir. 2000), this transfer was sufficient to avoid liability.
Gross next argues that defendants fired her for making her sexual
harassment claim. To survive summary judgment Gross must provide admissible
evidence of retaliation under the direct or indirect methods of proof. See Stone v.
City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). Gross has
no evidence under the direct method, which requires either an admission of
retaliation or statements or conduct from the decisionmaker from which retaliation
may be inferred. See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir.
2000). Her case founders under the indirect method as well because she has no
admissible evidence that similarly situated non-complaining employees were
treated more favorably. See Ezell v. Potter, 400 F.3d 1041, 1049-50 (7th Cir. 2005);
Stone, 281 F.3d at 644. Gross argues that two other employees were similarly
situated—they bared their breasts at an SOS facility—but were not discharged.
But the only “evidence” she has of this similar misconduct is a memorandum
written by SOS employee Lynn Lindemann stating that another employee told
Lindemann that “you know those girls . . . bared their breasts at the other office.”
Even assuming that Gross properly authenticated this memorandum, the assertion
within it from another employee—not Lindemann, the author of the
memorandum—regarding bared breasts is inadmissible hearsay that cannot be
used to make out a prima facie case. See Stinnett v. Iron Works Gym/Executive
Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002) (evidence considered at
summary judgment must be “admissible in content”); Morrow v. Wal-Mart Stores,
Inc., 152 F.3d 559, 563 (7th Cir. 1998) (“hearsay is inadmissible in summary
judgment proceedings to the same extent that it is inadmissible in a trial”) (internal
citation omitted).
No. 05-1773 Page 4
Finally, Gross argues that defendants retaliated against her for her political
affiliations by demoting her in 1999, giving her poor evaluations including write-ups
for attendance violations from 1999 to 2002, denying her a promotion in 2001, and
firing her in 2002. Because the statute of limitations for bringing § 1983 claims is
two years, see Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1036 (7th
Cir. 2003); Mitchell v. Donchin, 286 F.3d 447, 450 (7th Cir. 2002), her claim that she
was demoted in 1999 is time-barred. And, assuming without deciding that her
political affiliations were a motivating factor in her write-ups, promotion denial,
and termination, she has not rebutted the defendants’ evidence of her actual poor
performance, inadequate credentials for promotion, and sexual misconduct, which
shows “that the same action[s] would have been taken in the absence of the
employee’s protected speech.” Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004);
Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004) (same). Specifically, Gross
cites to no evidence that her performance and attendance were acceptable, that she
was actually qualified for a promotion, or that the defendants do not fire employees
(like Gross and Torres) believed to have engaged in sexual misconduct at work.
Gross finally alleges that her termination amounted to age discrimination.
Because Gross did not raise her age discrimination claim in her EEOC charge or in
her amended complaint in the district court, we will not consider it here. See Ajayi
v. Aramark Bus. Servs., Inc., 336 F.3d 520, 527-28 (7th Cir. 2003) (failure to assert
age discrimination claim in EEOC charge precludes claim on appeal); King v. Ill.
State Bd. Of Elections, 410 F.3d 404, 424 (7th Cir. 2005) (issues not raised before
the district court are waived on appeal).
For the foregoing reasons, the district court’s decision is AFFIRMED.