Hottenroth, Carol v. Village of Slinger

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2211

CAROL HOTTENROTH,

Plaintiff-Appellant,

v.

VILLAGE OF SLINGER,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

Nos. 01-CV-1048 and 02-CV-207—Rudolph T. Randa, Chief Judge.

____________

ARGUED DECEMBER 12, 2003—DECIDED OCTOBER 28, 2004

____________

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

COFFEY, Circuit Judge. Carol Hottenroth sued her em-

ployer, the Village of Slinger, Wisconsin (“Slinger”), asserting

various claims of discrimination in violation of Title VII of

the Civil Rights Act of 1964. The district court, Judge

Rudolph T. Randa presiding, consolidated two separate ac-

tions filed in federal court by Hottenroth alleging discrimi-

nation in her employment and retaliation, in violation of 42

U.S.C. § 2000e et seq., as well as state law breach of con-

tract. Slinger moved for summary judgment for failure to

state a claim and Hottenroth filed a cross-motion for partial

summary judgment on her retaliation and breach of con-

tract claims. The district court, in a written opinion, granted

2 No. 03-2211

Slinger’s motion for summary judgment, denied Hottenroth’s

cross-motion for summary judgment on her retaliation

claim and dismissed Hottenroth’s Title VII claims in both

actions, while declining to exercise pendent jurisdiction over

her state law claims. Affirmed.

I. BACKGROUND

In November of 1995, Hottenroth applied for a position as

an apprentice journeyman-lineman1 for the Village of

Slinger, was hired and entered into an apprentice indenture

agreement2 which required that she complete a total of

7,720 hours of work experience under the supervision of a

certified journeyman-linemen and 640 hours of related off-the-

job training3 by November 13, 2000. In return, Hottenroth

was compensated and her tuition expenses were paid by

Slinger. In addition, Slinger also agreed to provide Hottenroth

with “such instruction and experience that will enable the

apprentice to qualify as a line repairer at the completion of

[the] apprenticeship.” Hottenroth failed to complete her

training and, thus, never received her journeyman-lineman

certification. She was discharged by Slinger on May 29,

2001 for the reasons set forth herein.

Between 1995 and 1997, Hottenroth worked as an ap-

prentice for Slinger as an employee of the Village assigned

to the electric utility department. During that time period,

1

Among other things, journeyman-linemen erect and maintain

electrical equipment, power and communication lines.

2

An indenture agreement is defined as “[e]very contract or

agreement entered into by an apprentice,” Wis. Stat. § 106.01(2),

whereby that person agrees to “receive from or through the em-

ployer, in consideration for his/her services, in whole or in part,

instruction in any trade, craft or business.” Wis. Stat. § 160.01(1).

3

Meaning classwork and other off-the-job training which

Hottenroth received at the Chippewa Valley Technical College.

No. 03-2211 3

the staff of the utility consisted of the Utility Manager, Orloff

Styve, a certified journey-man-lineman, Marvin Amsler,

and Hottenroth. Styve kept track of Hottenroth’s hours and

made sure she was given the opportunity to receive the

proper training to qualify her for a journeyman’s card under

the indenture agreement between Slinger and herself. Styve

would also meet with Hottenroth every few months to dis-

cuss her progress under the indenture agreement. The record

reflects that Hottenroth’s performance was formally evalu-

ated on three separate occasions, in January of 1995, May

of 1996 and January of 1997 and that she received marks

that reflected a rating of “Acceptable” to “Above Average” on

all three.4

In September of 1999, Mary Jo Lange was hired by Slinger

as the new Director of Public Works, Utility Director and

Village Engineer replacing Orloff Styve. At that time, Lange

assumed Styve’s duties as supervisor of the utility crew,

which now included Amsler, who was promoted to foreman

in 1997, Denis Fitzgerald, a certified journeyman-lineman

hired in 1997, and Hottenroth.

4

The description of the term “Acceptable” on the face of the com-

pleted Performance Evaluation Reports states: “This rating

category should be considered as a suggestion for improvement,

but does not indicate substandard performance unless indicated

by the evaluator.” The 1995 and 1996 performance evaluations in

which Hottenroth was rated acceptable were completed by Styve.

The 1997 evaluation was completed by Terrence Dempsey, who

had very little input in Hottenroth’s training and only observed

her for one month out of the past twelve. Dempsey states that he

could only classify her performance as “Acceptable” and that the

score of “Above Average” that appears on the numerical portion of

the evaluation was based solely on Hottenroth’s evaluation of

herself and her description of how well she was able to perform

her assigned tasks during a conversation Dempsey had with her

that day.

4 No. 03-2211

Lange, along with Hottenroth’s supervisor Amsler, also

shared responsibility for her progression through the appren-

ticeship program. In accordance with that responsibility,

Lange drafted a letter on November 5, 1999 to the Wisconsin

Bureau of Apprentice Standards stating Hottenroth had com-

pleted the 7,720 hours of work experience required under

the apprentice indenture agreement. However, the letter

went on to state that because other areas of the contract

had yet to be fulfilled, and her proficiency had yet to be

demonstrated on all the required tasks, Hottenroth was not

eligible to receive her journeyman’s card at that time.5

In late 1999, Hottenroth began voicing concerns about the

work environment of the Village utility crew to Lange. On

December 2, 1999 and December 9, 1999 Hottenroth

approached Lange to complain about her foreman, Marv

Amsler. According to Lange’s handwritten notes of the meet-

ings, Hottenroth alleged that Amsler did not explain job

assignments as clearly as she would like, that she had

trouble understanding him and that when she failed to per-

form up to Amsler’s standards he would get upset. Lange’s

notes also suggest Hottenroth was uncomfortable with some

of Amsler’s language, i.e., she did not like it when he told

her to get her “ass” back here.

5

The process prescribed in the apprenticeship contract for

becoming a certified journeyman-lineman is long and involved. As

stated above, 7,720 hours of work experience must be successfully

completed, along with 640 hours of classroom and laboratory

instruction. However, completing the required hour commitments

alone does not qualify one for their journeyman’s card. The record

suggests that each municipality is assigned a representative whose

responsibility it is to certify that the candidate has both completed

the necessary hours and is proficient in all the tasks required by the

contract. See Robatowski Dep. at 380. Indeed, Barbara

Robakowski from the Wisconsin Bureau of Apprenticeship tes-

tified that “in order to get a journeyman’s card, you can’t just put

in the hours and get the card . . . . You have to be well qualified

and able to do all the tasks on the contract.” Id. (emphasis added).

No. 03-2211 5

Responding to these concerns, Lange held a meeting

shortly thereafter with Amsler and advised him that a num-

ber of customers, as well as fellow employees, were com-

plaining about his “way of expression.” According to Lange’s

testimony, Amsler, in response, made Lange aware that

Hottenroth could be very obstinate at times. Amsler claimed

Hottenroth made a unilateral decision not to attend the job

planning sessions, despite his directions to do so. Neverthe-

less, Lange instructed him to make sure his employees

understand their respective job assignments and directed

that he hold regular meetings to discuss the assignments,

making sure everyone, including Hottenroth, was present.

Lange also advised Amsler that he needed to be “kinder and

gentler” to his co-workers.

Despite Lange’s attempts to remedy the problems be-

tween Hottenroth and Amsler, the complaints continued.

On March 2, 2000, Hottenroth once again complained to

Lange about Amsler’s management style claiming Amsler

had become angry when Hottenroth could not understand

his hand signals at a job site.6

Lange followed up with Amsler, and was advised that

Hottenroth was incapable of operating a loader (which was

being used to load wood chips on a truck) in an efficient

6

On the same date Lange expressed concern over the request for

vacation time Hottenroth had made that same morning, which did

not allow enough time for proper notice. Lange testified that

Hottenroth had given less than 24 hours notice over the telephone

of her intention to take four days of vacation in a row. Lange

stated that it was Slinger’s policy to require at least 24 hours

notice, in writing, for an employee to take vacation or personal

time and “a lot more” for extended vacation. Lange testified that

her intention was not to discipline Hottenroth, but to find out if

she was having problems with her co-workers. It appears, from

the record, that this is when Hottenroth relayed her experience

with Amsler earlier that day.

6 No. 03-2211

manner on a job that needed to be done quickly and that

her demonstrated lack of proficiency was the reason he

became angry with her.

In the Spring of 2000, Lange had reason to begin doubting

Hottenroth’s capabilities and readiness under the indenture

contract to become a certified journeyman, despite the fact

that she had completed her hour requirements in both on-

the-job and related classroom training.7 Two incidents in

particular caused Lange concern about Hottenroth’s in-

ability to troubleshoot and her lack of confidence and apti-

tude when working with live electricity. Lange testified

that, on one occasion, Hottenroth was unable to complete an

overhead electric assignment which involved working with

live electricity at the top of a pole located in the rear of the

Slinger Village Hall building. Lange stated that during that

incident Hottenroth was approximately thirty feet in the air

when she began shaking and stated that she could not

complete the assignment; and requested that she be

rescued. Lange testified that the details of the second in-

cident were very similar to the first, with Hottenroth being

unable to complete an overhead electrical task because she

appeared to be not only hesitant but also frightened.

Pursuant to her opinion that Hottenroth needed more

training and experience to develop the necessary degree of

confidence when dealing with overhead electrical work, and

to help Hottenroth with her troubleshooting and her over-

head skills (especially when working with live electrical

lines), Lange arranged for Hottenroth to work for the City of

Cedarburg, Wisconsin on the electric utility crew. Hottenroth

subsequently worked with the Cedarburg electric crew for

7

As mentioned above, Hottenroth completed her on-the-job hours

requirement under the indenture agreement in November of 1999.

In June of 2000, she completed her supplemental classroom

training requirement of 640 hours under the indenture agreement.

No. 03-2211 7

approximately two weeks in the spring of 2000. When asked

to evaluate Hottenroth’s performance during that time, Steven

Bell, her supervisor in Cedarburg, stated that she had trouble

completing fairly simple tasks. Bell also stated that he was

present on a Cedarburg job site where Hottenroth had to be

rescued after she had climbed a pole and, after becoming

unable to move, a bucket truck with an attached lift had to

be brought on site to retrieve her. Overall, Bell compared her

abilities to that of a second-year apprentice, when in fact she

was in her fourth year of the program. Bell also testified that

if Hottenroth was his employee he would not have felt

comfortable recommending that she be certified as a jour-

neyman. However, his observations concerning Hottenroth’s

lack of ability were not immediately relayed to Lange, who

got the impression from Hottenroth alone that the two-week

assignment with Bell was a “positive” one, when in fact it

was not.

Nonetheless, on June 23, 2000, Lange spoke with Barbara

Robakowski,8 from the Wisonsin Bureau of Apprenticeship

Standards regarding Hottenroth’s problems sufficiently com-

pleting the requirements under the indenture agreement.

Lange stated candidly that she had “reservations” as to

Hottenroth’s competency in troubleshooting and working

overhead with live electricity.

Approximately two weeks later, on July 5, 2000, Lange

and Robatowski held a meeting with Hottenroth to discuss

her status under the apprenticeship agreement. Robatowski

and Lange both testified that, during the meeting, Hottenroth

admitted that she was indeed uncomfortable working with

live electricity at heights. At that point, because her inden-

ture period had lapsed and she was not going to receive her

journeyman’s card, Slinger had the option of firing Hottenroth.

8

There is conflicting evidence in the record as to who telephoned

whom, however, the other material facts regarding the meeting

are not in dispute.

8 No. 03-2211

However, after considering the matter further, Lange decided

to grant Hottenroth an extension of the indenture agree-

ment for a period of one year9 and also stated that she

would do her best to secure more schooling and training for

Hottenroth, trusting that she might become proficient and

ultimately gain certification.

Following Lange’s gratuitous decision to extend the inden-

ture period, she went about attempting to find additional

training opportunities for Hottenroth, but in the end met

without success. Lange went above and beyond the call of

duty and proceeded to contact some 30 other municipalities

inquiring as to whether they would agree to take Hottenroth

on board for a period of time; and each one of them refused.

One of the people Lange contacted was Steve Bell,

Hottenroth’s prior supervisor in Cedarburg, who declined to

invite her back.10 However, Lange, in a further attempt to

assist Hottenroth in gaining the experience and necessary

skills to obtain her journeyman’s card, went so far as to

purchase an electric pole from another municipality and

have it placed in the ground at the rear of the Slinger Village

Hall in order that Hottenroth might practice working at

9

Robatowski stated in deposition testimony that, according to the

Wisconsin Department of Workforce Development, the apprentice-

ship goes “unassigned,” or is extended, for a period of up to one

year following the expiration of the normal four-year indenture to

allow a candidate to receive additional training. Robatowski added

that the decision to issue an unassignment is one that can be

unilaterally made by an employer if they have concerns as to a

candidate’s competency.

10

Lange testified that she even offered to pay Hottenroth’s salary

while she worked in the City of Cedarburg, but Bell still would not

take her back. Hottenroth claims Cedarburg’s decision not to

invite her back for another training period was due to her filing an

action with the Wisconsin Equal Rights Division on October 19,

2000, alleging discrimination and hostile work environment. See

infra p. 10.

No. 03-2211 9

heights of 30-40 feet above the ground. In addition, Lange

contacted the Milwaukee Area Technical College to ascertain

whether there were any classes Hottenroth would be eligible

to enroll in, but was advised that Hottenroth had previously

completed one of the classes being offered and the others

she inquired about were unavailable at that time. Thus, ac-

cording to Lange’s testimony, she made a number of efforts

to assist Hottenroth by providing her with learning exper-

iences, but was unable to do so. However, in contrast, the

evidence in the record suggests that Hottenroth herself failed

to take advantage of the learning opportunities provided to

her by Slinger. During the extension of her apprenticeship

period, Hottenroth frequently failed to report to work and

was allegedly absent from work whenever a “live wire” project

was scheduled, which would have offered her a genuine

opportunity to gain confidence and improve her skills.11

On October 19, 2000, Hottenroth filed the first of three

actions with the State of Wisconsin, Department of Workforce

11

In a letter dated April 2, 2001, Lange wrote to the Bureau of

Apprenticeship Standards in response to an investigation which

had been initiated by the Bureau in March of 2001 against Slinger

(on behalf of Hottenroth). See Letter from Lange to Robatowski,

April 2, 2001. In the letter, Lange outlines her attempts to find

suitable training opportunities for Hottenroth and her lack of suc-

cess therein. Id. Lange goes on to describe how, in lieu of training,

Slinger “set up jobs that we believe[d] [Hottenroth] had difficulties

doing,” so that Hottenroth might gain some proficiency and obtain

the skills required for her to be granted a journeyman’s card. Id.

However, Lange states that those “opportunities were few and far

between and usually ended with Ms. Hottenroth leaving the job

site and going home sick or the crew bickering with each other.”

Id. The letter goes on to describe in more detail Hottenroth’s

frequent absenteeism and Slinger’s initial intention to cancel the

apprenticeship extension. However, after consulting an attorney,

Slinger decided to continue the extension of Hottenroth’s training

and exposure to available opportunities so that she could prove

her competency for a license as agreed.

10 No. 03-2211

Development, Equal Rights Division (“Wisconsin DWD”), and

the Equal Employment Opportunity Commission (“EEOC”).

This first complaint alleged that Hottenroth had been sub-

jected to a hostile work environment and had been denied

training opportunities on the basis of her sex.12

Beginning in February of 2001, Hottenroth’s behavior be-

came more erratic and insubordinate. The record establishes

that on the morning of February 12, Hottenroth entered the

administrative offices of the Village without permission and

began rummaging through documents lying on the desks of

various staff members, including that of the payroll clerk.

Hottenroth located an employee request form for time off

with her name on it and proceeded to inscribe upon it: “Stop

Lying about Me!” The form shows that Hottenroth had been

denied the time off due to the fact that her request had been

received January 17, 2001; a day after she had actually

taken off. Later that same day, Hottenroth complained of a

stomach ache and asked Lange if it was all right if she went

home. Lange told her she could, but later found out that on

that very day Hottenroth had walked off a job site after

refusing to work. When Lange was fully apprised of the

situation, and after talking with Hottenroth, she suspended

her from work for a period of three days and her access to

the Slinger Village Hall was restricted due to Hottenroth’s

inappropriate behavior.

Subsequent to Hottenroth’s suspension (February 26 to

March 1, 2001), Lange requested a meeting with Hottenroth.

At that meeting, on March 1, 2001, the two discussed the

status of Hottenroth’s apprenticeship and the continuation

of her employment with Slinger. Lange informed Hottenroth

12

It should be noted that this complaint was eventually settled by

the parties and is not included in the subject matter of this

appeal, but is mentioned to complete the factual background of the

case.

No. 03-2211 11

that, despite her numerous good-faith attempts, she had been

unsuccessful in procuring additional work opportunities or

classroom training for her. Lange stated:

I am totally out of luck as far as placing you in another

municipality. I am totally out of luck at encouraging the

[Slinger] board to do anything with you at this point.

The-the Board-with you filing the-the thing or whatever,

they have looked at it as a slap in the face. So, from our

standpoint about getting you out and training you in

whatever else, the only luck you will have is what

presents itself in the Village.

Tr. of March 1, 2001 meeting between Hottenroth and

Lange, pp. 29-30. In addition, Lange told Hottenroth that if

she did not become a certified lineman by July 10, 2001, the

expiration date of her extended apprenticeship period, she

would be discharged as of that date. Lange went on to state

that, as of the present date (March 1, 2001), she was still

not comfortable recommending Hottenroth for her jour-

neyman’s card; however, she went on to explain that if

Hottenroth was able to obtain her certification from the

Bureau of Apprentice Standards (certification agency) she

would be retained as an employee.

During the same meeting, Lange also discussed the possi-

bility of a new position being created for Hottenroth. Relevant

excerpts of the conversation were transcribed as follows:

Hottenroth: But if I don’t get my card by July 10 of

2001, I can’t work here because I don’t

have a card. Right? That’s right? Yes?

Lange: Yes. (Inaudible) Un-unfortunately, what

I was going to—well, thinking of doing—

is—there was some talk of hiring new (in-

audible). . . . And I could have created—

possible created a position of laborer in

the Westwood Facility. You would be consi-

dered a laborer. But, there is no opportu-

12 No. 03-2211

nity now. They—the Personnel Committee

and the Board won’t listen to that. So,

there would have been a possibility to

claim you under a different classification.

Hottenroth: If what? You said at one time there would

have been if what—what?

Lange: (Inaudible) If you—if you didn’t file— .

Hottenroth: With the EEOC?

Lange: Yeah. Yeah. They’re not even going to con-

sider—and they don’t—technically, they

don’t have to. They don’t have to create a

position. The position was such that you

would get your license. So it’s possible

that you would get your license, but you’d

be able to bypass them at the apprentice-

ship school. And my (inaudible) the ap-

prenticeship school is to have you evalu-

ated. I wanted them to do that, you know,

in—in the first place. You know? And I

was looking for opportunities. I called the

apprenticeship school. I called the techni-

cal schools. I said, we’d pay to have you

evaluated, to find out where you were

(inaudible). . . .

Tr. of March 1, 2001 meeting between Hottenroth and

Lange, pp. 31-33. When questioned about this exchange,

Lange made it clear that she was not speaking on behalf of

Slinger’s Board because, in fact, she had never discussed

this matter with the Board.

Four days after the meeting, on March 5, 2001, Hottenroth

filed a second action with the Wisconsin DWD, this time

basing her complaint on “sex discrimination/retaliation.”

Hottenroth Compl., DWD Case #2001100740; EEOC Case

No. 26GA10744. Attached to the complaint, are two exhi-

No. 03-2211 13

bits. Id. Both are handwritten recitations, by Hottenroth, of

incidents during which she alleged that she had been

retaliated against for filing the first DWD/EEOC complaint

on October 19, 2000. Id. In the written description of the

first incident, Hottenroth outlines an alleged conversation

between Lange and herself where “[Lange] said a co-worker

is mad Because [sic] I filed with EEOC.” Id. In the second

exhibit, Hottenroth loosely describes pertinent parts of the

conversation Lange had with Hottenroth on March 1, 2001.13

Id. The DWD determined that “no probable cause existed”

to establish any discrimination had occurred. On July 17,

2001, the EEOC issued Hottenroth a “Notice of Right to

Sue” letter on the complaint.

During the months of March, April and May of 2001

Lange continued in her attempt to provide Hottenroth with

further educational and training opportunities, but was again

unsuccessful. Lange and the utility attempted to schedule

Hottenroth on jobs which would help her gain proficiency in

the skills she needed to qualify for her journeyman’s card.

However, Hottenroth proved to be her own worst enemy in

that she would leave worksites before completing the re-

quired tasks or would absent herself from work altogether.

According to Slinger, as of April 7, 2001 “Hottenroth had

worked roughly 7 days since January 1st [2001] due to vaca-

tion time and unscheduled sick leave making it difficult to

schedule or expose her to additional [learning] opportunities.”

Letter from Lange to Robatowski, April 2, 2001. However,

13

In a parenthetical at the top of the second exhibit, Hottenroth

states “since my filing I have been written up several times [sic]

suspended for 3 days on Feb. 26, 27 [sic] 28. And I have developed

a stomach condition . . . Mrs. Lange has said over and over I should

be fired but, she won’t she’ll give me one more chance.” DWD Case

#200100740. However, she failed to describe why she was

suspended, what gave her the stomach condition, or why Lange

said she should be fired.

14 No. 03-2211

the evidence in the record suggests that Lange and Slinger

had every intention of allowing Hottenroth to continue her

employment at least through the end of the extension period

(and perhaps longer if she gained her journeyman’s card).

Nonetheless, despite the clear intention of Lange and her

superiors in Slinger’s administration (evinced by their state-

ments and course of conduct), to continue the extension of

the apprenticeship through July 10, 2001 as agreed, the situ-

ation came to a climax on May 23, 2001. That morning Lange

had scheduled a meeting with Hottenroth and Village

Administrator Gregory Knowles to discuss a number of the

problems Hottenroth was having, such as: causing damage

to a dump truck she was using; leaving a job site approxi-

mately a week earlier; and also refusing to perform an

assignment just two days earlier. An audio recording of the

meeting bears witness to the fact that about two minutes

into the discussion Hottenroth became extremely upset and

angry. Indeed, she became so agitated that she can be heard

on the taped recording screaming at Lange and Knowles at

the top of her lungs. During the tirade Hottenroth re-

peatedly accused Amsler and other co-workers of lying about

her and on numerous (12 or more) occasions and demanded

that Lange and/or Knowles terminate her on the spot. During

Lange and Knowles’ attempts to calm Hottenroth’s outbursts

and irrational behavior, their statements are repeatedly

drowned out by Hottenroth’s threats of litigation and re-

peated demands of “Fire Me! [screamed].” Id. at 8-10. After

approximately an hour of screaming from Hottenroth,

Knowles notes aloud that Hottenroth is not listening and

terminates the meeting citing prior obligations.

Following the meeting, Hottenroth returned to the job site

she was assigned to that day. However, when a co-worker

stopped by to pick her up for lunch, she refused to leave the

site and told him that she was going to work through the

lunch hour. When Lange was notified of the situation she

No. 03-2211 15

went out to the job site and requested that Hottenroth leave.

When Hottenroth again refused, Lange suspended her for

the day for her insubordination and failure to follow instruc-

tions. When continued warnings from Lange to Hottenroth

that she needed to leave the job site immediately because

she had been suspended were ignored, Lange called the

Slinger police. Officer Dean Schmidt arrived on the scene

and, after talking with Lange, was advised that she (Lange)

was willing to give Hottenroth another chance to leave on her

own. However, Officer Schmidt was told that if Hottenroth

refused to leave the site on her own, he should remove her.

As Schmidt approached Hottenroth, her obstinance con-

tinued. Lange again asked her, on two separate occasions,

to leave the job site and report to the Village Hall, but each

time Hottenroth refused and responded: “You need to fire

me.” Slinger Police Dept. Compl. No. 2001-00787-A (May 23,

2001). Because Hottenroth appeared “very agitated” and

was holding in her hand what appeared to Officer Schmidt

to be a box cutter knife, he called for back-up. However,

after further talking and coercion from Officer Schmidt,

Hottenroth placed her tools (including the box cutter) down

and began to gather her personal items. Hottenroth then

left the site in the back of Officer Schmidt’s squad car

without further incident. Id.

Once back at City Hall, Lange told Hottenroth to gather

her belongings and leave for the day. Hottenroth again be-

came enraged stating “you need to fire me” and “I’m going

to sue . . . . I’m going to sue.” Id. Officer Schmidt then

escorted Hottenroth out of the building and observed as she

proceeded to throw a radio to the ground, pick it up and

then propel it in the direction of Officer Schmidt after he

requested that she hand it to him. Officer Schmidt next ob-

served her enter her truck and leave the parking lot.

The following day, May 24, 2001, after reviewing the

details of the incident and the record of the previous day’s

16 No. 03-2211

meeting, Village Administrator Knowles met with Hottenroth.

During the meeting he advised her that she would be sus-

pended with pay through May 29, 2001. Knowles testified

that the decision to suspend Hottenroth was his alone. On

May 29, 2001, Knowles terminated Hottenroth and, in

support of his termination decision, cited a number of work

rule infractions from the Slinger Village Personnel Manual,

which are implemented under Article III, Section B of

Hottenroth’s collective bargaining agreement. Specifically,

Knowles states that Hottenroth violated provisions of her

contract which “may result in disciplinary action, up to and

including discharge” such as the following: “(a) Incompe-

tence or failure to perform duties; (e) Intentional, careless

or negligent damage to public or private property, during

the performance of your duties. Failure to report damage to

public or private property during the performance of duties;

(f) Offensive conduct or language toward the public, Village

officers, or employees while on duty; (g) Insubordination;

and (h) Violation of personnel policies, work rules, or safety

procedures.” Again, Knowles testified that he alone decided

to terminate Hottenroth while Lange had, on the other

hand, urged restraint.

Hottenroth filed her third and final discrimination claim

with the DWD and the EEOC on June 13, 2001. DWD Compl.

No. 200101880. In that complaint, Hottenroth identifies the

basis of her complaint as “SEX (female) RETALIATION (filed

a complaint).” In an attachment to the complaint Hottenroth

outlines, in her own words, the events of May 23 and 24th

surrounding her termination, and includes a final para-

graph which reads:

Mr. Amsler and Mr. Fitzgerald have violated work rules,

and safety rules, [sic] where at several times offensive

in conduct and language towards me, carelessness and

negligence of property, failure to perform duties, as I

brought to Mrs. Lange’s attention she has failed to dis-

cipline or discharge them. I believe the Respondent has

No. 03-2211 17

treated me differently from them because of my sex and

because of the previous discrimination complaints I

filed.

Id. In the complaint, Hottenroth also recounts what she

characterizes as the “lies” and “horrible treatment” she suf-

fered through, as well as alleged misdeeds by her co-workers

that went unpunished. The DWD, after review, again found

that there was no probable case to suggest discrimination

had occurred and the EEOC again issued a right to sue

letter.

The Wisconsin Bureau of Apprenticeship Standards held

a hearing on October 15, 16, and 23, 2001, pursuant to a

complaint Hottenroth filed in June of 2000, regarding the

extension of her apprenticeship indenture period and a coun-

ter-request by Slinger to cancel the agreement altogether. In

a written opinion issued April 5, 2002, Hearing Officer

Vidal Rodriguez concluded, in part, that “[t]he Village of

Slinger Municipal Electric Utility did not meet its burden of

demonstrating that Ms. Hottenroth failed to progress satis-

factorily with on the job work experience.” Hottenroth Brief,

Appendix Exh. D. at pg. 52. Hearing Officer Rodriguez then

denied Slinger’s request to cancel the indenture and ordered

that the agreement be fully enforced. Id. However, in a

letter dated April 5, 2002 the Bureau of Apprenticeship

Standards notified Hottenroth that Rodriguez refused her

requests to be certified as competent and thus refused to

issue her a journeyman’s card. The same letter informed

Hottenroth that she had been granted an independent eval-

uation, after the successful completion of which, she would

be given her certification. The record establishes that

Hottenroth never made an attempt to take advantage of this

offer and thus, to this day has not received her certification.

Hottenroth responded to the Bureau of Apprenticeship

Standards’ decision refusing to certify her by instituting a

mandamus action on October 31, 2002 in the Dade County

18 No. 03-2211

Wisconsin Circuit Court, seeking the issuance of her license.

On January 29, 2003, the Honorable David Flanagan granted

the Bureau of Apprenticeship Standards’ motion to quash

the writ.

Hottenroth also filed two separate actions in the District

Court for the Eastern District of Wisconsin alleging various

Title VII and pendant state law contract claims. See

Hottenroth v. Village of Slinger, Case No. 01-C-1048;

Hottenroth v. Village of Slinger, Case No. 2-C-207. The dis-

trict court, Judge Randa presiding, consolidated the two ac-

tions alleging discrimination in her employment and retal-

iation, in violation of 42 U.S.C. § 2000e et seq.; as well as her

state law breach of contract claims. Slinger moved, in each

of the two consolidated cases, for summary judgment for

failure to state a claim upon which relief could be granted;

and Hottenroth cross-motioned for partial summary judg-

ment on her retaliation and breach of contract claims. The

district court, in a written opinion, denied Hottenroth’s mo-

tion. However, the court granted Slinger’s motion for sum-

mary judgment and dismissed Hottenroth’s Title VII claims

in both actions and declined to exercise pendent jurisdiction

over her state law claims. Affirmed.

II. ANALYSIS

We review the district court’s grant of summary judgment

in favor of Slinger de novo. See Stark v. PPM America, Inc.,

354 F.3d 666, 670 (7th Cir. 2004). In order to determine

whether summary judgment is proper at this stage in the

proceedings we view the record in the light most favorable

to the non-moving party, Hottenroth. See Dunn v. Nordstrom,

Inc., 260 F.3d 778, 783 (7th Cir. 2001). Summary judgment

is proper only “if the pleadings, depositions, answers to in-

terrogatories, and admissions on file, together with the af-

fidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c). A fact

No. 03-2211 19

presents a “genuine issue” if it is “one on which a reasonable

factfinder could find for the nonmoving party.” Patel v.

Allstate Ins. Co., 105 F.3d 365, 370 (7th Cir. 1997). An issue

of fact is “material” if it is outcome determinative. Id. How-

ever, “bare allegations not supported by specific facts are not

sufficient in opposing a motion for summary judgment.”

Hildebrandt v. Ill. Dept. of Natural Res.s, 347 F.3d 1014,

1036 (7th Cir. 2003). In addition, there can be no “genuine

issue as to any material fact” when a party “fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1996). This is because “a complete failure

of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.”

Id. at 323.

A. Hottenroth’s Retaliation Claim

Within the meaning of Title VII, “unlawful retaliation

occurs when an employer takes an adverse employment ac-

tion against an employee.” Rogers v. City of Chicago, 320

F.3d 748, 753 (7th Cir. 2003); see 42 U.S.C. § 2000e-3.

Hottenroth claims that Slinger took three separate adverse

actions against her in retaliation for her multiple filings

with the Wisconsin DWD and the EEOC. In particular, she

claims that the refusal to “sign off” on her apprenticeship

card, failure to provide the necessary training opportunities

and her termination all constituted adverse actions within

the meaning of Title VII. The district court disagreed and

concluded that, as a matter of law, Hottenroth had failed to

establish that she had been subject to an “adverse em-

ployment action.” Specifically, the trial judge concluded

from the record that Lange was not a decision-maker in this

factual situation and therefore, any discriminatory state-

ments allegedly made by Lange were not relevant to

20 No. 03-2211

Hottenroth’s claim. In addition, the district court found that

Lange’s refusal to “sign off” on Hottenroth’s journeyman’s

card was well within her discretion and thus could not

constitute an adverse employment action. Finally, the trial

court found that Lange’s failure to create a new position for

Hottenroth was not actionable because Hottenroth was not

entitled to a have a new position created and the decision to

create a new position was not Lange’s to make, but was

solely that of the Slinger Board. For diminutively different

reasons, we agree.

In resisting summary judgment under Title VII, a plaintiff

has two available methods of proving retaliation: the “direct”

and “indirect method.” Rogers, 320 F.3d at 753. Under the

direct method a plaintiff must provide “direct evidence (evi-

dence that establishes without resort to inferences from

circumstantial evidence) that he [or she] engaged in pro-

tected activity (filing a charge of discrimination) and as a

result suffered the adverse employment action of which he

complains. If the evidence is uncontradicted, the plaintiff is

entitled to summary judgment.” Stone v. City of Indianapolis

Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002). In a claim

involving allegations of retaliation, the direct method essen-

tially requires direct evidence “that, if believed by the trier

of fact would prove [discrimination] ‘without reliance on

inference or presumption.” Rogers, 320 F.3d at 753 (citing

Walker v. Glickman, 241 F.3d 884, 888 (7th Cir. 2001)). Said

differently, direct evidence “essentially requires an admis-

sion by the decision-maker that his actions were based on

the prohibited amicus.” Radue v. Kimberly-Clark Corp., 219

F.3d 612, 616 (7th Cir. 2000). However, it should not be

surprising that in today’s workplace environment such

admissions are rarely, if ever, made or encountered. See id.

Therefore, under the direct method we now also allow cir-

cumstantial evidence to be introduced which would allow “a

jury to infer intentional discrimination by the decision-

maker.” Rogers, 320 F.3d at 753.

No. 03-2211 21

Alternatively, under the indirect method, a plaintiff must

first demonstrate that subsequent to the filing of a discrim-

ination complaint, “[s]he, and not any similarly situated em-

ployee who did not file a charge, was subjected to an ad-

verse employment action even though [s]he was performing

[her] job in a satisfactory manner.” Stone, 281 F.3d at 644.

If such a prima facia case of discrimination is established,

the defendant bears the burden of establishing “unrebutted

evidence of a noninvidious reason for the adverse action.”

Id. This rule was developed to clarify the traditional burden-

shifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), and eliminates the need for a plaintiff

to show a “causal-link” between a protected activity and an

adverse employment action.14 Rogers, 320 F.3d at 755.

However, whether a plaintiff proceeds under the direct or

indirect method, evidence establishing that an adverse

employment action has actually taken place is an essential

element of the claim. Id. at 753-55. Some examples of an ad-

verse employment action include “termination of employ-

ment, a demotion evidenced by a decrease in wage or salary,

a less distinguished title, a material loss of benefits, signi-

ficantly diminished material responsibilities, or other indices

that might be unique to a particular situation.” Crady v.

Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.

1993). Although, “conditions of employment that are designed

to harass and humiliate employees because of their [sex] are

actionable employment actions,” Stockett v. Muncie Ind.

Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000), “not every-

14

Hottenroth incorrectly identifies the elements necessary for

proving, via the indirect method, retaliation under Title VII. In-

stead of utilizing the friendlier rule under Stone, Hottenroth at-

tempts to proceed under the earlier “causal-link” framework

embodied in this circuit’s earlier Title VII decisions. Stone, 281

F.3d at 644.

22 No. 03-2211

thing that makes an employee unhappy is an actionable ad-

verse action.” Smart v. Ball State Univ., 89 F.3d 437, 441

(7th Cir. 1996).

As a threshold matter, the district court failed to find any

adverse action under Title VII. Hottenroth claims she was

subject to, and has shown sufficient evidence of, three

separate retaliatory actions and thus, this court should re-

verse. On appeal Hottenroth specifically claims Slinger took

the following adverse employment actions in reaction to her

discrimination claims: (a) refusal to “sign off” on her journ-

eyman’s card; (b) her termination; and (c) failure to provide

her with adequate training. We disagree.

1. Refusal to Recommend Hottenroth be Given a

Journeyman’s Card

Hottenroth claims that Lange’s refusal to recommend that

she be certified as a journeyman is an adverse employment

action within the meaning of Title VII because Lange’s

refusal was predicated on a retaliatory motive based on

Hottenroth’s October 2000 sex discrimination complaint with

the EEOC and Wisconsin DWD. The district court disagreed

and found no adverse action because: (a) the ultimate deci-

sion to certify Hottenroth was not Lange’s to make, but was

that of the Wisconsin DWD, Bureau of Apprentice Stan-

dards; and (b) because whether to recommend Hottenroth

or not was squarely within Lange’s discretion. We agree,

but for slightly different reasons.

First, one element of a prima facia retaliatory discrimina-

tion case in this circuit is that (in order to survive summary

judgment) the plaintiff must demonstrate, through some

affirmative evidence, that “after lodging a complaint about

discrimination . . . [the employee] was subjected to an

adverse employment action.” Stone, 281 F.3d at 642. It is

not disputed that Hottenroth filed her first sex discrimina-

tion lawsuit on October 19, 2000. However, Lange initially

No. 03-2211 23

informed Hottenroth of her intention not to recommend

Hottenroth for certification in July of 2000, three months

prior to the filing of the complaint. In order for Lange to dis-

criminate against Hottenroth on the basis of the October 19

complaint, she would have had to have been in possession

of extrasensory powers of perception. In addition, even after

the complaints were filed, Lange at no time suggested or

inferred that she would never recommend Hottenroth for

certification. Instead, Lange urged and even offered to help

Hottenroth seek an outside evaluation to prove she was

competent. Indeed, Lange went out of her way to assist

Hottenroth by contacting other municipalities, schools, and

other agencies to attempt to procure additional training,

i.e., learning experiences, in order that Hottenroth might

gain proficiency in ascending and descending electric poles

while working with live electricity. In fact, Lange went above

and beyond her responsibility to Hottenroth by purchasing

an electric pole from another municipality so that Hottenroth

might practice and become proficient.

Also, it is well established that unfulfilled threats that

result in no material harm cannot be considered an adverse

employment action under Title VII. See Ajayi v. Aramark

Bus. Serv.s, Inc., 336 F.3d 520, 531 (7th Cir. 2003) (citing

Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002)).

Hottenroth has failed to present any evidence that might

allow a reasonable person to infer that Lange unequivocally

refused to recommend Hottenroth be certified, much less

that such a decision was motivated by a discriminatory or

retaliatory amicus. As referred to above, up until the final

days of Hottenroth’s employment (when she acted in an er-

ratic and out-of-control manner), Lange’s recorded conversa-

tions with Hottenroth and transcripts thereof establish the

fact that Lange continued to attempt to assist Hottenroth in

any way she could. Indeed, Lange went far beyond the call

of duty and told Hottenroth that she would assist her in

being evaluated by a third party (i.e., outside Slinger) to

determine whether she was competent to receive her license.

24 No. 03-2211

In the end, however, Lange never had an opportunity to

make a final decision about Hottenroth’s competency because

Hottenroth was terminated by the Village Administrator

Gregory Knowles, for violations of the Slinger personal man-

ual as well as breaches of Hottenroth’s collective bargaining

agreement, before the end of her extended indenture period.

See infra p. 15-16.

Finally, we agree with the trial judge’s holding that Lange’s

refusal to recommend Hottenroth for certification as a jour-

neyman-lineman, based on a belief that Hottenroth was not

qualified due to her poor job performance and out-of-control

behavior, was properly within Lange’s discretion, and thus

did not constitute an adverse employment action. As the

trial court pointed out, we have repeatedly held that “even

the denial of a monetary perk, such as a bonus or reim-

bursement of certain expenses, does not constitute an

adverse employment action if it is wholly within the em-

ployer’s discretion to grant or deny and is not a component

of the employee’s salary.” Tyler v. Ispat Inland, Inc., 245

F.3d 969, 972 (7th Cir. 2001) (citing Rabinovitz v. Pena, 89

F.3d 482, 488-489 (7th Cir. 1996) and Fyfe v. City of Fort

Wayne, Ind., 241 F.3d 597, 602-03 (7th Cir. 2001)). Lange’s

refusal to make a recommendation was clearly within her dis-

cretion as Hottenroth’s supervisor. Indeed, Lange would

have been derelict in her duty to serve the best interests

and protect the safety of Hottenroth and Slinger’s employees,

as well as the general population of the Village of Slinger,

if she had recommended that an unqualified candidate such

as Hottenroth receive a journeyman’s card. Also, the deci-

sion not to recommend Hottenroth did not effect her salary

and cannot be considered an entitlement. This is because

Hottenroth never had an entitlement to her journeyman’s

card, let alone a positive recommendation from Lange.

Tyler, 245 F.3d at 973. Instead, Hottenroth was required to

demonstrate proficiency in the required areas, as mandated

by Chapter 106 of the Wisconsin Statutes, in order to

No. 03-2211 25

become certified by the State of Wisconsin as a journeyman-

lineman, which she failed to do. See Wis. Stat. § 106.01 et.

seq. Based upon this record we refuse to conclude that the

denial of a completely discretionary, merit-based recom-

mendation constitutes an adverse employment action. In the

end, it appears that Hottenroth was nothing more than a

troubled, malcontent employee who took out her frustra-

tions over her lack of ability, confidence or talent on her

employer, the Village of Slinger, by filing three separate

discrimination complaints (as well as this lawsuit). In addi-

tion, the evidence makes clear that Lange’s decision not to

recommend Hottenroth for a journeyman’s card, in addition to

being well within her discretion, was not only predicated on

Hottenroth’s personal safety, but was also based on a

concern for the safety, welfare and protection of the public

at large.

2. Hottenroth’s Termination

Hottenroth next claims that because the Village allegedly

retaliated against her for filing a discrimination claim, which

she alleges prevented her from gaining her journeyman’s

certification, she was terminated and therefore subjected to

“the most adverse an employment action [that] [sic] can be

in the context of a discrimination case.” (App. Br. at 27). In

the alternative, Hottenroth argues that her ultimate ter-

mination was the result of the Lange’s retaliatory refusal to

create a new position for her. The district court found that,

because Village Administrator Knowles was the decision-

maker who decided to discharge Hottenroth and because

Lange was not involved in the final decision; Hoettenroth’s

termination did not constitute an adverse employment

action in this context.15 In addition, the trial judge found

15

Judge Randa stated: “Hottenroth argues that her discharge was

retaliatory. Hottenroth cites the conversation she had with Lange

(continued...)

26 No. 03-2211

that Hottenroth was not entitled to have a new position

created for her because it was up to Slinger’s Board, the

entity vested with the authority to create such a position, to

make any employment decision of this kind or nature. Thus,

any alleged discriminatory statements made by Lange were

irrelevant. We agree with the district court’s decision, but

for slightly different reasons.

Because we hold that Lange’s failure to recommend that

Hottenroth receive her journeyman’s card based on her lack

of proficiency and/or competency in the required areas was

not an adverse employment action within the meaning of

Title VII, any claim that Hottenroth was terminated due to

her lack of certification, cannot, by extension, be considered an

adverse action either.16 In addition, the evidence pre-

15

(...continued)

in March of 2001, during which Lange speculated that she could

not ‘sell’ a new position for her to the Village Board in the event

she [Hottenroth] did not receive her journeyman-lineman card

because the Board would likely react negatively to her EEOC

filing . . . [I]t is undisputed that Knowles was the decisionmaker

responsible for firing Hottenroth, not Lange. Such comments made

by those outside the decisionmaking chain are not relevant for

purposes of a valid discrimination claim.” Hottenroth v. Slinger,

Nos. 01-CV-1048 and 02-CV-207 (March 31, 2003).

16

Because we find that Hottenroth’s termination, in this context,

was not an adverse action, we need not consider the other ele-

ments of the direct or indirect method of proving retaliation. See

Stone, 281 F.3d at 644. The district court decided that Village

Administrator Knowles, as decisionmaker, could not have retali-

ated against Hottenroth. Under the direct method Hottenroth

must produce direct evidence that the “decisionmaker has acted

for a prohibited reason,” which Hottenroth has not. Rogers, 320

F.3d at 754. In her brief Hottenroth blames Lange and, through

statements related by Lange, the Slinger Board for retaliation,

but she offers no evidence (either direct or indirect) that Village

(continued...)

No. 03-2211 27

sented establishes that Lange made a more than valiant

effort to train and keep Hottenroth employed until the very

day that Village Administrator Knowles terminated her for

insubordination. On numerous occasions Lange advised and

encouraged Hottenroth by stating that if she were to gain

her journeyman’s card she would be able to continue in her

employment with Slinger. Most importantly, Knowles (not

Lange’s) decision to terminate Hottenroth was based on a

pattern of insubordination, absences, attitude, and not

because she failed to receive her certification. Hottenroth

herself testified that she was not terminated for her lack of

a journeyman’s card, but because she refused to follow

orders and had a bad attitude towards her superiors.17

16

(...continued)

Administrator Knowles acted in a discriminatory manner. Indeed,

even under the indirect method, which requires a showing of pre-

text after a prima facia case has been estblished, there is ample

evidence in the record to establish that Knowles had numerous

“noninvidious” reasons and good cause to terminate Hottenroth.

See id. at 755. Thus, assuming arguendo that we were to find

Hottenroth’s termination to be an adverse action, summary judg-

ment would still have been proper. Id.

17

When questioned about the reason why she was terminated,

Hottenroth responded as follows:

Q: Do you know the reasons why you were terminated?

A: Because I worked through lunch.

Q: I’m sorry?

A: Because I worked through lunch.

Q: So you were terminated because you worked through

lunch?

A: An [sic] didn’t obey the command to go home, so I was

suspended.

Q: Are you aware of any other reason why you were

terminated?

(continued...)

28 No. 03-2211

Therefore, in this context, Hottenroth’s termination was not

an adverse employment action, but was based on good

cause. See Newbold v. Wisconsin State Pub. Defender, 310

F.3d 1013, 1017 (7th Cir. 2002).

However, even if we were to hold that Hottenroth’s ter-

mination was an adverse employment action in this context,

Slinger would still be entitled to summary judgment

because Hottenroth has not established even an attenuated

link between any alleged retaliation or discrimination and

her termination. See Gorence v. Eagle Food Ctrs., Inc., 242

F.3d 759, 762 (7th Cir. 2001); see also Markel v. Bd. of

Regents of the Univ. Of Wis. Sys., 276 F.3d 906, 910 (7th

Cir. 2002).

3. Slinger’s Failure to Create A New Position

Also, the failure of the Slinger Board to create a new posi-

tion for Hottenroth cannot, as a matter of law, be con-

sidered an adverse action. As mentioned above unfulfilled

threats (such as Lange’s presumption that the board would

not look favorably on Hottenroth having filed an EEOC com-

17

(...continued)

A: Because I got angry maybe at the meeting.

Q: Are you aware of any other reason why you were

terminated?

A: Things that they said about me possibly.

Q: What things that they said about you?

A: They said I wasn’t working, they said that I wrecked the

springs and seals on the dump truck, they said that I

swore, that I refused to do jobs.

Q: Do you know of any other reasons you were terminated?

A: No.

Hottenroth Dep. at 133-34.

No. 03-2211 29

plaint) resulting in no material harm falls far short of con-

stituting an adverse employment action. See Ajayi, 336 F.3d

at 531. Hottenroth claims that statements made by Lange

suggest that the Slinger Board was not going to create a

new position for her because they were angry with her for

filing a discrimination complaint. Among other things, Lange

stated that, because Hottenroth had “gone against her em-

ployer,” she would have a hard time getting them to go

along with the suggestion that they create a new position

for Hottenroth. Although her comments may not have been

an exercise of the best judgment when considering she was

dealing with an insubordinate, malcontent and belligerent

employee, Lange testified that she had not, at any time, dis-

cussed the creation of a new position with the Slinger Board

and there is absolutely no evidence in the record to otherwise

suggest that the Slinger Board was ever approached with such

a proposal. Thus, Lange’s perception that the Board would be

adverse to such a suggestion was just that, her perception.

The Slinger Board never had such a proposal before it and

thus, had no opportunity to even consider it, much less take

a prohibited adverse action against Hottenroth.

It should be emphasized once again that an adverse em-

ployment action does not include an employer’s refusal to

grant an employee a discretionary benefit to which she is

not automatically entitled, see Rabinovitz v. Pena, 89 F.3d

482, 488-89 (7th Cir. 1996), and Hottenroth has failed to

offer any evidence to prove beyond a preponderance of the

evidence or even to suggest that she was ever entitled to

have a new position created for her. In addition, because

Lange was never vested with the authority to create a new

position for Hottenroth, her failure to do so (even, assuming

arguendo that Hottenroth was entitled) could not be

considered an adverse employment action because the Village

Board only, and not Lange, was the ultimate decision-maker.

See Rogers, 320 F.3d at 754 (in order for there to be a cog-

30 No. 03-2211

nizable adverse employment action evidence must be pre-

sented that suggests the “decisionmaker has acted for a

prohibited reason”).

It remains undisputed that, at no point, was Hottenroth

entitled to a new position with the Village of Slinger. See

Tyler, 245 F.3d at 973. Hottenroth may have been disap-

pointed when she was informed that Lange was not going to

urge the Board to create a new job for her, but “not every-

thing that makes an employee unhappy is an actionable

adverse action.” Smart, 89 F.3d at 441.

4. Failure to Adequately Train Hottenroth

Finally, Hottenroth claims Slinger inappropriately retali-

ated against her, based on the filing of her EEOC discrimina-

tion complaint, by failing to adequately train her. Specifically,

Hottenroth claims Lange retaliated against her because she

“failed completely to find any kind of training and work

experience opportunities for Hottenroth.” Even if we were to

assume that this argument was supported by any evidence

in the record, the district court was never presented with

this argument in the context of her Title VII action and,

thus, we hold this claim is not properly before us and has

been waived on appeal. See United States v. Shorty, 159

F.3d 312, 313 (7th Cir. 1998) (“failure to raise an issue

before the district court results in waiver of that issue on

appeal”).

However, assuming arguendo that the issue has not been

waived, Hottenroth has failed to establish that the denial of

training opportunities to her constituted an adverse em-

ployment action or that she was denied adequate training

at all. Evidence supplied to the trial court suggests that

after the extension of Hottenroth’s apprenticeship period

(and the filing of the complaints) Lange repeatedly attempted,

in good faith, to secure additional work and educational

opportunities in the surrounding area, for Hottenroth to

No. 03-2211 31

gain competency and confidence. This is evinced by the fact

that Lange went so far as to specifically purchase and have

an electric pole installed for climbing and descending prac-

tice in the rear of the Slinger Village Hall and, in addition,

contacted a number of schools and municipalities on

Hottenroth’s behalf. In addition, Hottenroth has failed to

offer any evidence whatsoever to refute contrary evidence es-

tablishing that Lange attempted to place Hottenroth (at least

temporarily) with over 30 different municipalities and called

on a number of educational facilities, to no avail.18 Indeed,

even the City of Cedarburg, Wisconsin (which had previously

granted Hottenroth the opportunity to train with them) re-

fused to employ her a second time for reasons which were

made quite clear by her former supervisor in Cedarburg,

Steve Bell, i.e., that Hottenroth failed to perform at an ac-

ceptable level of proficiency. Therefore, failure on the part

of Lange to do almost the impossible and find additional

training opportunities for Hottenroth, despite a good-faith

18

Hottenroth cites only the following statement by Lange to sup-

port her inadequate training argument:

I am totally out of luck as far as placing you in another mu-

nicipality. I am totally out of luck at encouraging the [Slinger]

board to do anything with you at this point. The—the Board—

with you filing the—the thing or whatever, they have looked

at it as a slap in the face. So, from our standpoint about

getting you out and training you in whatever else, the only

luck you will have is what presents itself in the Village.

Transcript of March 1, 2001 meeting between Hottenroth and

Lange 29-30. However, this statement would suggest the Board,

as the training decisionmaker, was taking an adverse action against

Hottenroth, something she does not allege. Nonetheless, as men-

tioned above Lange was not speaking on behalf of the Board; she

made it clear that she was merely relating her own personal per-

ception of the situation. Indeed, there is no evidence that Lange

ever gave up looking for additional training opportunities for

Hottenroth.

32 No. 03-2211

effort to do so, falls far short of constituting an adverse

employment action. In this respect, Hottenroth has failed to

demonstrate even an “inference of discrimination.” Patel, 105

F.3d at 371. In essence, Lange went above and beyond what

was required of her in attempting to help Hottenroth

successfully complete her training and gain her journey-

man’s card.

Because Hottenroth has failed to demonstrate that any

adverse employment action has been taken against her, we

agree with the district court’s decision granting the defendant-

appellee Slinger’s motion for summary judgment on her

Title VII retaliation claim.

B. Hottenroth’s Hostile Environment Claim

Next, Hottenroth claims the district court erred in holding

that her hostile environment claims were barred for failure to

exhaust administrative remedies. Hottenroth claims that

the facts and circumstances described in her second and

third complaints such as; “a confrontation . . . with a co-

worker, the unassignment of [Hottenroth’s] apprenticeship,

the fear [she] had of a [sic] co-worker, and name calling by

another, . . . the lack of training, the denial of plaintiff’s

apprenticeship card, as well as the suspension issued to

[Hottenroth] in February of 2002,” suggest her intention to

make out a hostile environment claim. Hottenroth claims

the district court impermissibly and inappropriately “stepped

into her shoes,” when determining whether her complaints

were sufficient to serve as the basis for a hostile work en-

vironment claim. We disagree.

Under Title VII, in order for a claimant to establish a

prima facia case alleging a hostile work environment,

Hottenroth must first demonstrate that she was harassed,

because of her sex, by a co-worker or supervisor. See Hilt-

Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir. 2002).

Also, the alleged harassment must be “so severe or perva-

No. 03-2211 33

sive as to alter the conditions of employment and create an

abusive working environment.” Faragher v. City of Boca

Raton, 524 U.S. 775, 786 (1998). In Faragher, the Supreme

Court described a hostile workplace as “both objectively and

subjectively offensive, one that a reasonable person would

find hostile or abusive, and one that the victim in fact did

perceive to be so.” Id. at 787. Factors considered include the

“frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offen-

sive utterance; and whether it unreasonably interferes with

an employees’ work performance.” Id. at 787-88. However,

we do not consider these factors in a vacuum; “rather, an

employee’s claim must be evaluated in light of the social

context in which events occurred.” Hilt-Dyson, 282 F.3d at

463.

A condition precedent to bringing a Title VII hostile work

environment is that the employee must have “afford[ed] the

EEOC and the employer an opportunity to settle the dispute

through conference, conciliation, and persuasion.” Cheek v.

Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.

1994). To allow plaintiffs to bypass the EEOC and head

straight for the courts would indeed frustrate Congress’

clear and unambiguous purpose in creating the agency and

deprive employers of their right to notice. See id. However,

because EEOC complaints are most often compiled without

the assistance of counsel, we afford plaintiffs considerable

leeway and ask only whether a claim set forth in the com-

plaint is “like or reasonably related to the allegations of the

charge and growing out of such allegations.” Id. (citing

Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164,

167 (7th Cir. 1976) (en banc)).

Even considering this minimal burden, the facts and

allegations set forth in Hottenroth’s final two EEOC filings

do not rise to the level of cognizable hostile workplace claims.

In her second complaint, dated March 1, 2001, Hottenroth

claims that she was yelled at, that she was upset by her co-

34 No. 03-2211

workers and Lange, and that she felt threatened on three

separate occasions. However, these allegations fall far short

of describing an environment that is so “severe or pervasive

as to create an abuse working environment.” Faragher, 524

U.S. at 786.

Hottenroth’s third and final complaint suffers from simi-

lar shortcomings. Pages one through three of the appendix

to Hottenroth’s June 13, 2001 DWD complaint recounts the

events of May 23, 2001 to May 29, 2001, such as her meet-

ing with Knowles and Lange on May 23, her refusal to leave

the job site later that day and her termination on May 29.

See infra pp. 14-16. These recitations have no bearing what-

soever on a hostile work environment claim. However, in

the final paragraph, Hottenroth states:

Mr. Amsler and Mr. Fitzgerald have violated work rules,

and safety rules, where [sic] at several times offensive

in conduct and language towards me, carelessness and

negligence of property, failure to perform duties, as I

brought to Mrs. Lange’s attention she has failed to dis-

cipline or discharge them. I believe the Respondent has

treated me differently from them because of my sex and

because of the previous discrimination complaints I filed.

DWD Compl. No. 200101880. Such vague and unsupported

statements clearly fall far short of establishing a claim of a

hostile work environment. In her complaints, Hottenroth

alleges no specific evidence of anything which could reason-

ably be considered either objectively or subjectively hostile.

See Faragher, 524 U.S. at 787. If this court were to hold

otherwise, any complainant, who at any time filed any man-

ner of claim with the EEOC, could collaterally attack an

adverse ruling on hostile work environment grounds. See

Cheek, 31 F.3d at 500 (“[A]llowing a complaint to encompass

allegations outside the ambit of the predicate EEOC charge

would frustrate the EEOC’s investigatory and conciliatory

role, as well as deprive the charged party of notice of the

No. 03-2211 35

charge”). Thus, because Hottenroth has failed to exhaust her

administrative remedies as to her hostile work environment

charge and because she has not otherwise established a

cognizable hostile work environment claim, we affirm the

decision of the district court granting summary judgment

and dismissing this claim.

C. Hottenroth’s Assertion that Material Facts are in

Dispute

Hottenroth claims the district judge reached factual con-

clusions that were not in the record or in dispute. Specifically,

Hottenroth claims that evidence regarding Amsler’s manner

of speaking (according to Hottenroth he spoke with a drawl)

was misrepresented and that facts regarding Hottenroth’s

two week assignment in Cedarburg were misconstrued by the

trial judge. Hottenroth also claimed that facts surrounding

Lange’s March 1, 2001 meeting with Hottenroth, where Lange

allegedly made retaliatory statements, were in dispute.

First, we reiterate the fact that we review the grant of a

motion for summary judgment under Title VII de novo. See

Stark, 354 F.3d at 670. Under such a standard we are free

to draw our own conclusions of law and fact from the record

before us. See Beischel v. Stone Bank School Dist., 362 F.3d

430, 434 (7th Cir. 2004). Thus, any allegation that the trial

judge misconstrued or misrepresented facts in his opinion is

misplaced because, pursuant to the de novo standard of

review we apply to a decision granting summary judgment

by a trial court, we are free to substitute our own judgment

for that of the district court.

In addition, viewing the record, including the meeting be-

tween Hottenroth and Lange on March 1, 2001, in the light

most favorable to Hottenroth, she has failed to establish

that any adverse action was taken against her in retaliation

for her filing a complaint with the EEOC. See Dunn, Inc., 260

F.3d at 783. As we noted above, there can be no “genuine

issue as to any material fact” when a party fails to make a

36 No. 03-2211

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp., 477 U.S. at

322. Therefore, Hottenroth’s final assignment of error must

also fail as a matter of law.

III. CONCLUSION

For the reason set forth herein the judgment of the

district court is

AFFIRMED

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-28-04