Appendix — Hill's Pet Nutrition Nutrition, Inc. v. Isaacs (No. 07-267)
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CHICAGO, ILLINOIS 60604
No. 06-2201
[Filed May 29, 2007]
CAROL L. ISAACS,
Plaintiff-Appellant,
Vv.
HILL’S PET NUTRITION, INC., and
COLGATE-PALMOLIVE COMPANY,
Defendants-Appellees.
i i a
Appeai trom the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:03-cv-0348-LJMVSS
Larry J. McKinney, Chief Judge.
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
2a
ORDER
Defendant-appellee Hill’s Pet Nutrition, Inc. filed a
petition for rehearing and rehearing en banc on May 18,
2007. No judge in regular active service has requested a vote
on the petition for rehearing en banc, and all of the judges on
the panel have voted to deny rehearing. The petition for
rehearing is therefore DENIED.
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APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 06-2201
[Filed May 4, 2007]
CAROL L. ISAACS,
Plaintiff-Appellant,
Ve
HILL’S PET NUTRITION, INC., and
COLGATE-PALMOLIVE COMPANY,
Defendants-Appellees.
ed
Appeal from the United States District Court for the
Svuihern District of Indiana, Indianapolis Division.
No. 1:03-cv-0348-LJM-VSS
Larry J. McKinney, Chief Judge.
Before EASTERBROOK, Chief Judge, and BAUER and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. Carol Isaacs worked for
Hill’s Pet Nutrition, packaging pet food and preparing the
bags for shipment, for more than five years. In 2002 and
2003 she filed charges of sex discrimination with the EEOC,
contending that her employer violated Title VII of the Civil
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Rights Act of 1964. The district court granted summary
judgment against Isaacs, who had sued not only Hill’s but also
Colgate-Palmolive, its corporate parent. As the district court
remarked, Colgate was not Isaacs’ employer, and she offers
no reason why an investor should be liable for Hill’s acts. Cf.
United States v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141
L.Ed.2d 43 (1998). We need not mention Colgate again.
Many of Isaacs’ claims in this litigation are outside the
scope of the administrative filings. She complains, for
example, about her discharge in 2005, but she never filed a
charge concerning that event, and the charges in 2002 and
2003 could not have alerted the employer to a grievance about
events yet to occur. A short interval between the charge and
the complained-of events might not have impeded
investigation and conciliation: if Isaacs had been fired a week
after her charge, the EEOC would have learned this in the
course of its investigation, but the gap was much longer and
precluded any administrative inquiry. The same is true of her
assertion that the firm retaliated against her for filing these
charges and attempting to protect her rights. If she wanted to
litigate such a theory, she had to use the administrative
process first. Her other arguments likewise are well covered
by the district court’s opinion and need not be addressed
here—all but one, that is.
A claim of a hostile work environment was presented in
the 2003 charge. The Supreme Court treats a hostile work
environment as one unlawful employment practice. See
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101,
115-21, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The
employee may complain about any of the constituent acts, no
matter how long ago they occurred, as long as the charge 1s
filed within 300 days of any harassing act.
Sa
Hill’s does not invoke the doctrine of laches, which
curtails prejudicial delay. See Pruitt v. Chicago, 472 F.3d
925 (7th Cir. 2006). Instead it argues, and the district court
found, that despite Morgan the hostile work environment that
Isaacs claims to have experienced was not a single
employment practice. Instead, the district court found, it was
two practices: one that Isaacs experienced when she worked
on the Packaging Team (February 2000 through October 15,
2001) and another when Isaacs worked on the Stretchwrap
Team (October 15, 2001, through October 3, 2003). The
Packaging Team bags the products; the Stretchwrap Team
puts the bags on wooden pallets, applies plastic wrap, and
loads them onto trucks for shipment. The teams have different
leaders and work in different parts of the plant—though not
far apart, since the Packaging Team delivers the bags to the
Stretchwrap Team.
This change of job assignment means, Hill’s contends,
that the conditions that Isaacs experienced while with the
Packaging Team may not be considered, as they occurred
more than 300 days before her charge. And the conditions she
experienced with the Stretchwrap Team were not severe
enough to constitute a hostile working environment, the
district judge concluded. The judge summarized what he
understood to be Isaacs’ claims about conditions on the
Stretchwrap Team:
1) [Isaacs] glimpsed objectionable materials on
computer screens two times; 2) she frequently heard
comments over the radio in Stretchwrap about
“dragging my wood,” or “my wood’s awful long”
that she took to be sexual references [a double
entendre, with the non-sexual meaning referring to the
wooden pallets]; 3) Pebworth [the team leader in
Stretchwrap] twice told her that her rear end was so
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big that two men could climb on it; 4) Pebworth made
crying sounds over the radio in an effort to mock her,
used the word “bitch” in her presence a few times,
and the term “fucking bitch” twice in reference to
someone other than Isaacs.
We may assume (without deciding) that, if this ts all there was
to it, the conditions were unpleasant but not serious or
pervasive enough to violate Title VII. See Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82, 118
S.Ct. 998, 140 L.Ed.2d 201 (1998); Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d
49 (1986); Yuknis v. First Student, Inc., 481 F.3d 552 (7th
Cir. 2007). But this is not all there was to it, for events during
her entire employment with Hill’s should have been
considered.
When deciding that Isaacs experienced two distinct
episodes of hostile work environment, the district court
concentrated on the identities of her harassers. One group of
men made life hard for her in Packaging; a different group
vexed her in Stretchwrap. But why should this matter? Isaacs
has not sued her co-workers; the entity responsible for
complying with Title VII is the employer, of which Isaacs had
just one. And employers are not vicariously responsible for
misconduct in the workplace; employers are responsible for
their own conduct (or omissions)—which is to say, for how
they respond (or fail to respond) after receiving notice that an
employee may be suffering from disparate treatment at co-
workers’ hands. See Faragher v. Boca Raton, 524 U.S. 775,
118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141
L.Ed.2d 633 (1998); Dunn v. Washington County Hospital,
429 F.3d 689 (7th Cir. 2005). (Isaacs does not contend that
she suffered any adverse “tangible employment action,”
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within the meaning of Faragher and Ellerth, or that Hill’s is
responsible for the conduct of a “supervisor.” )
As Isaacs related events, she complained repeatedly to
supervisors and management-level personnel at Hill’s Pet
Nutrition about how the men were treating her, and she
received the same response every time: one or another
variation on “grin and bear it.” The employer’s approach thus
remained constant. Doing nothing after receiving multiple
complaints about serious conditions is a straight road to
liability under Title VII. See EEOC v. Indiana Bell Telephone
Co., 256 F.3d 516 (7th Cir. 2001) (en banc).
An employee moved from one plant to another, where a
different set of managers made decisions about working
conditions, might well experience different hostile
environments for the purpose of Morgan. As long as the
employee remains within a single chain of command,
however, and the same people control how the employer
addresses problems in the workplace, there is only one
employment practice, and all events may be considered
(subject to the possibility of laches) to determine whether that
employment practice violates Title VII. Isaacs therefore is
enlitied to present tor consideration her treatment throughout
her employment at Hill’s Pet Nutrition.
Ample evidence would allow a trier of fact to conclude
that Isaacs was subjected to a pervasively hostile environment,
designed by the male workers to drive women from the plant
or at least express domination and control over them. Isaacs
testified by deposition that her team leader in Packaging
refused to train her unless she listened to him describe his
sexual exploits and desires. When she told him to stop, all
that stopped was the training—the sexual comments continued
over the radio (workers in both Packaging and Stretchwrap
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used radios, on a single frequency, to coordinate their
activities) and whenever they met. The radio carried not only
the talk about the men’s “wood” but also moaning sounds
whenever the men knew that Isaacs was listening. According
to one of Isaacs’ female co-workers, simulating the sounds of
sex “was [the men’s] favorite thing to do on the radio.”
When Isaacs moved from Packaging to Stretchwrap, the
two team leaders met to discuss her, and Isaacs’ new superior
(Pebworth) picked up where her old one left off. When she
complained, Pebworth “accidentally” ran into her with a
forklift, spilling 700 pounds of pet food, and remarked: “See
what can happen to you, bitch.” Her car was vandalized in
the parking lot a few days later. Pebworth repeatedly tried to
get Isaacs to join him in viewing pornography that he kept on
a computer in the plant. Several women in addition to Isaacs
gave evidence that men systematically made the lives of
women in the plant miserable—and since the team leaders
were the main offenders, other men felt no hesitation in
joining this jolly good fun.
A jury could infer that working conditions for female
laborers at Hill’s Pet Nutrition were materially worse than the
conditions for male laborers, that managers of the firm knew
this, and that they did nothing because the firm deemed the
men’s morale more important than the women’s welfare. That
conclusion would be enough to support an award of damages
under Title VII.
The judgment is affirmed, except with respect to the
hostile-working-conditions claim. On that subject the
judgment is reversed and the case remanded for trial.
A true Copy:
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Teste: /s/ ;
Clerk of the United States Court of
Appeals for the Seventh Circuit
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APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
No. 1:03-cv-348-LJM-VSS
[Filed March 31, 2006]
CAROL L. ISAACS,
Plaintiff,
V-
COLGATE-PALMOLIVE COMPANY
and HILL’S PET NUTRITION, INC.,
Defendants.
ee ee ee ee ee ee
ORDER ON DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
I. INTRODUCTION
This cause is before the Court on Defendants,’ Colgate-
Palmolive Company (“Coigate”) and Hill’s Pet Nutrition, Inc.
(“Hill’s”)' (collectively “Defendants” ), Motion for Summary
Judgment pursuant to Rule 56 of the Federal Rules of Civil
' Otherwise known as Hill’s Pet Nutrition Indiana, Inc.
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Procedure and Local Rule 56.1. Plaintiff Carol L. Isaacs
(“Isaacs”) brought this action against her former employer
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000 ef seqg., the Civil Rights Act of 1991, 42
U.S.C. § 1981, the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601, the Landrum-Griffin Act, 28
U.S.C. § 40, and Indiana Code § 22-3-2-15. Her four-count
Amended Complaint alleges gender discrimination, sexual
harassment, denial of leave under the FMLA, and retaliation
for complaining about sexual discrimination and harassment,
requesting FMLA leave, and filing workers’ compensation
claims. The issues are fully briefed and ripe for ruling.
For the reasons stated herein, the Court GRANTS
Defendants’ Motion for Summary Judgment in its entirety and
declines to exercise supplemental jurisdiction over remaining
state law claims.” The Court therefore DISMISSES without
* The Seventh Circuit has stated that where a court dismisses a
federal claim and the sole basis for invoking federal jurisdiction has
become nonexistent, that court should not exercise supplemental
jurisdiction over remaining state law claims. See Williams v. Aztar
Indiana Gaming Corp., 351 F.3d 294, 300 (7th Cir. 2003) (stating
that if there is a dismissal ot the original jurisdiction claim and only
a supplemental jurisdiction claim remains, “the sole basis for
invoking federal jurisdiction is nonexistent and the federal courts
should not exercise supplemental jurisdiction over his remaining
state law claims”); Wright v. Associated Ins. Cos. Inc., 29 F.3d
1244, 1251 (7th Cir. 1994) (stating that “the general rule is that,
when all federal-law claims are dismissed before trial,” the pendent
claims should be left to the state courts). In addition, under 28
U.S.C. § 1367(c)(3), a federal district court may dismiss a plaintiff's
supplemental state law claims if it “has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The
decision to dismiss supplemental claims is discretionary. Larsen v.
City of Beloit, 130 F.3d 1278, 1286 (7th Cir. 1997).
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prejudice Isaacs’ remaining state claim, pursuant to 28
U.S.C. § 1447(c). Additionally, the Court GRANTS
Defendants’ Motion to Strike. The Court STRIKES the
affidavits of Dewey Lakes, Larry Sheets, Teressa Toney, and
Elizabeth Bright, and shall DISREGARD all statements in
Isaacs’ affidavit that are based on those submissions.
II. BACKGROUND
The following facts are either undisputed or reflect the
evidence in light most favorable to Isaacs as the party
Opposing summary judgment. Adverse facts established by
defendants beyond reasonable dispute are necessarily included
in the narrative.
A. PLANT OPERATIONS
Hill’s plant in Richmond, Indiana (“Plant”), manufactures
and distributes premium dog and cat food. Zaleha Aff., 4 3.
The Plant’s production areas include Dry Mix/Bulk,
Processing, Packaging, and Stretchwrap. /d., 4 4. In
Stretchwrap, stacked bags of pet food are wrapped with clear
plastic and moved off the end of the production line to the
warehouse or to waiting trucks. Moore Dep. at 15.
Technicians work 12-hour shifts, and during the relevant
time period, four teams of Technicians (W, X, Y, and Z
Teams) worked 12-hour shifts according to an established
rotation schedule that provides for two weeks on days (6 a.m.
to 6 p.m.) followed by two weeks on nights (6 p.m. to 6
a.m.). Isaacs Dep. at 46, 559. Each team is made up of cells
that have responsibility for individual production areas. /d. at
46-47.
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Since early 2002, Area Leaders have directly supervised
teams of Technicians who work in their particular production
areas. Haverkamp Dep. at 15-16. During the relevant time
period, Area Leader Everett Jenkins (“Jenkins”) supervised
the Stretchwrap area. Jenkins Dep. at 23-24. During the
relevant periods of Isaacs’ employment, the Area Leaders
reported to Operations Manager Darren Haverkamp
(“Haverkamp”), who in turn reported to Plant Manager Cathy
Zaleha (“Zaleha”). Haverkamp Dep. at 35.
An Individual Improvement Process (“IIP”), utilized by
Hill's for improvement and formal discipline. Isaacs Dep. at
152. The IIP steps include Formal Coaching, Performance
Agreement, Decision-Making Leave, and, finally, termination
of employment. Isaacs Dep. at 153; Haverkamp Dep. at 106;
Keinath Aff., 44 6-10.
B. WORKING CONDITIONS
The Plant operates on a team concept. Isaacs Dep. at 47,
64, 284; Jenkins Dep. at 61-62. Technician teams are
empowered to make certain decisions. For example, they can
decide to stop production to perform quality checks or make
improvements on operational procedures. Isaacs Dep. at 69;
Zaleha Aff., ¢ 6. In addition to running production lines,
teams are responsible for off-line tasks such as preventive
maintenance and sanitation and can divvy up those day-to-day
responsibilities as they see fit. Jenkins Dep. at 56-59.
Technicians have no authority to place other Technicians in
the formal disciplinary process, including the final stage of
termination of employment, or to affect the base pay or
benefits package of other Technicians. Zaleha Aff., € 7:
Keinath Aff., 44 10-11.
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All Technicians at the Plant begin their employment at the
same hourly rate of compensation, and their hourly rates
increase at the same rate, subject to satisfactory performance,
until they reach “parity” upon completion of two years of
service. Zaleha Aff., 4 11. Technician compensation and
benefits do not vary based on the area where the Technician
works, nor do they vary based on the Technician’s particular
work assignment. Isaacs Dep. at 57, 61, 532; Zaleha Aff.,
q 10.
C. ISAACS’ EMPLOYMENT HISTORY
On or about December 6, 1999, Isaacs was hired by
Defendants as a Technician. Isaacs Dep. at 220, Exh. 10 at 1.
Isaacs began work as a Technician on X Team - Packaging.
Id. at 42. On October 15, 2001, Isaacs was transferred to X
Team - Stretchwrap. /d. at 147; Vanderpool Dep. at 110-111,
117. Throughout her employment, Isaacs took a significant
amount of leave under the Family Medical Leave Act
(“FMLA”). See Def.’s Br. Supp. at 9-10; Pl.’s Br. Resp. at
22-23. Isaacs contends that she was denied due Family
Medical Leave “FML” because she had to use vacation days
when her grandson was born. Isaacs Vanderpool Dep. 261-
62.
1. Complaints to Management
On February 4, 2002, Isaacs left a message for Human
Resources Manager Jackie Vanderpool (“Vanderpool”)
because Isaacs believed she was being harassed because she
had used FML time. Vanderpool Aff. 44 2, 28-30. Isaacs
contends that Vanderpool would not respond to Isaacs’
complaints. Isaacs Aff., ¢ 170. In January 2002, Isaacs called
the discrimination hotline to complain about sexual
harassment. /d., ¢ 165. Isaacs also contends that Vanderpool
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was “distressed,” “acted mad at Isaacs,” and “glared” at her
because of her complaints. /d., {4 169-72.
2. The Product Hold Incident
There are two main jobs in Stretchwrap — “one stop” and
“pulling lines.” Isaacs Dep. at 69. “Pulling lines” means
using a forklift to pick up stretchwrapped pallets of product as
they come off the end of conveyor lines and moving the
pallets to the appropriate part of the warehouse or to a waiting
truck. Bender Dep. at 81. Stretchwrap Technicians who are
pulling lines are required to perform a visual check of the
outside of a pallet of product from the lines they are pulling
each hour, and every second hour they are required to do a
“tear-down” by taking bags off the top layer of a pallet and
inspecting those bags for defects. Jd. at 255-56. Stretchwrap
Technicians then document these quality checks by initialing
“KQA Checks Sheets” that include sign-off boxes for “Bag
clean — front of bag” and “Bag clean — back of bag.” Jd. at
160-61. Failure to perform these checks adequately, or
falsifying documents related to these checks, may result in
disciplinary action. Zaleha Aff., 4 15. Hill’s may put product
“on hold” if it is substandard in formula or packaging. Isaacs
Dep. at 156.
On May 31, 2002, Isaacs was on shift from 6 p.m. to 6
a.m. Jenkins Dep. at 93-94, 96-97. At approximately 6 a.m.
on Saturday, June 1, 2002, Technician Steve Baker (“Baker”)
relieved Isaacs. /d. Hill’s asserts that Baker, upon performing
his first quality check, reported to Jenkins that he found
defects on bags coming off the line, id. at 93-95, but Isaacs
had not reported any such problems to Jenkins and had signed
all the hourly quality checks except for one check. /d. at 92.
Jenkins concluded that the defects started appearing during
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Isaacs’ shift when she was responsible for the quality control
function. /d. at 84, 96-97.
When Isaacs came back on duty the evening of Saturday,
June 1, 2002, Jenkins told Isaacs that her team had a product
hold during her previous shift. Isaacs Dep. at 156. Isaacs told
management she “may have missed a few [quality] checks.”
Id. at 600; Exh. 13. Management concluded that Isaacs had
admitted she signed off as having performed checks that she
did not physically perform. /d. at 259, 599-600; Jenkins Dep.
at 83; Vanderpool Dep. at 257, Exh. 11.
Isaacs presents a different version of the events. She
contends that there was no problem with the quality checks
until approximately 10 a.m. on Saturday, June 1, 2002, that
she had reported to Jenkins that Chuck McConnell
(“McConnell”) was not doing his quality checks, and that
Jenkins did not actually investigate from where and when the
defects started appearing. Pl.’s Br. Resp. at 28-29. She
contends that it was actually McConnell, a male employee,
who was not performing his quality checks, and Jenkins
inappropriately blamed Isaacs for the product hold. /d. at 30.
As a result of the product hold, Isaacs was placed Formal
Coaching, the first IIP step, and, as a result, she lost half of
her “Quality Pays” bonus for the quarter, which translated
into a loss of approximately $122.00 Isaacs Dep. at 154;
Zaleha Aff. { 30. Isaacs complained to a number of managers
about the Formal Coaching. See, e.g., Haverkamp Dep. 81,
83; Jenkins Dep. at 78-79; Vanderpool Dep. at 250; Zaleha
Aff. 44 31-32. She also asserts that as a result of being
wrongly placed into IIP, she had to take stress leave. Jd. at
34.
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3. The Pallet Incident
On either November 12t or 13, 2002, Stretchwrap
Technician Bill Pebworth (“Pebworth”) knocked a pallet of
product off Isaacs’ parked forklift. Isaacs Dep. at 457. The
product landed at her feet and she had to step back. /d.
Pebworth looked at her and said, “See what can happen to
you, bitch?” Isaacs Dep. at 461. Pebworth offered to help
clean up, but Isaacs believes he was smirking. /d. Haverkamp
and Zaleha spoke with Isaacs on her next work shift to ask
about the incident. Haverkamp concluded that the incident
was an accident. Haverkamp Dep. at 62. Isaacs asserts that
the conclusion was reached in an attempt to cover up the
incident. See Pl.’s Br. Resp. at 43.
4. Vandalism Claim
In December 2002, Isaacs reported to Havenkamp that in
the early morning of November 16, 2002, she found that her
car hood had been scratched in the Plant parking lot, that her
license plate had been torn from its bolts, and that when she
went to her car that night the parking lot lights went off for
about two minutes before coming back on. Isaacs Dep. at
448-49.
5. Other Complaints
On January 25, 2003, Technician Chris Penland
(“Penland”) called Isaacs at home and rudely asked Isaacs’
husband why she was not at work. PI.’s Interrog. No. 4.
Twice thereafter, Isaacs received hang-up calls from the Plant
telephone number. /d. She also received a voice mail message
from the Plant number in which dial tones were pressed but
no one spoke. /d. Isaacs also complains that Pebworth made
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crying sounds on the radio in an effort to mock her. Isaacs
Dep. At 244-45.
6. Claims Concerning Sexual Conduct
In May or June 2002, Isaacs viewed a cartoon on a
computer being used by Pebworth of a cartoon frog with a
long tongue that appeared as if it might be performing oral
sex. Isaacs Dep. at 497. However, Isaacs did not see the
entire image, but rather, only a glimpse of it. Jd. at 499.
Some time between March and June 2002, on a public
computer, Isaacs viewed a blacked-out photo of a Chinese girl
that looked as though she was performing oral sex. /d. at 498.
The image contained no nudity. /d. at 500. When the blacked-
out portion of the photograph was removed, it revealed a
picture of a woman eating chicken noodle soup. /d. at 159.
Hill’s policy is that computers at the Plant are intended for
work-related use. Zaleha Aff., { 26. In the spring of 2002, an
employee of the Hill’s information technology department
reported that, while performing unrelated work on the
computer system, he had discovered some inappropriate
material on the Plant’s computers. Vanderpool Dep. at 166-
67. Eleven employees were suspended for two weeks without
pay and were placed in the disciplinary process for
inappropriate use of Plant computers. Zaleha Aff., 44 24-25.
Management also issued a statement to employees reminding
them not to use e-mail in an inappropriate manner.
Vanderpool Dep. at 176.
On February 21, 2003, Isaacs submitted a letter to
management complaining that she had been sexually harassed
by Pebworth, Penland, and Technician Ben Chasteen
(“Chasteen”) prior to November 2002. Dillard Aff., ¢ 3;
Vanderpool Aff. ¢ 21. Abbie Dillard (“Dillard”), Associate
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Employee Relations Manager at Hill’s corporate office, wrote
to Isaacs to get more information about the sexual harassment
complaints. Dillard Aff., 9§ 2-4. Hill’s investigated her
complaint and concluded that Pebworth made an inappropriate
comment regarding Isaacs (that her butt was big enough for
two men to climb on), and he was given an Formal Coaching
in which he was reminded of Hill’s expectations regarding
workplace behavior. Keinath Aff., 4 44. Isaacs also claims
that Pebworth made crying sounds on the radio in an effort to
mock her and regularly called women “bitches” and “fucking
bitches.” Isaacs Dep. at 244-45.
Additionally, Pebworth, Penland, and Chasteen would
frequently make comments over the radio, “Oh, yeah, I’m
dragging my wood,” and “My wood’s awful long.” Jd. at
509. Isaacs claims that those employees would also make
noises over the radio as though they were sexually aroused.
Id. at 81-82. In Stretchwrap, wooden pallets are sometimes
used for stacking and moving bags of pet food. Moore Dep.
at 158-59. The comments about wood were playing off the
fact that Technicians switched between bags of product by
using wood pallets. Bender Dep. at 168.
D. ISAACS’ AGENCY COMPLAINTS
On July 31, 2002, Isaacs complained to the Department of
Labor (“DOL”) about a variety of concerns, among other
things, that Hill’s counted FML against bonuses, but the DOL
found no violations. In October 2002, Isaacs filed nine
complaints against Hill’s with the Indiana Occupational Safety
and Health Administration (“IOSHA”). IOSHA found two
non-serious violations upon investigation — relating to
information recorded in an OSHA log, and that locks were
not stamped with individual Technician identification
numbers. Zaleha Aff., 452, Exh. 6. In July 2002, Isaacs filed
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her first Charge of Discrimination (“Charge”) against Hill’s
with the Equal Employment Opportunity Commission
(“EEOC”), claiming sex discrimination and retaliation in the
form of her Formal Coaching for the product hold. Zaleha
Aff, ¢ 49, Exh. 4). On January 16, 2003, the EEOC issued a
“no cause” letter dismissing Isaacs’ first Charge. Zaleha Aff.,
4 50, Exh. 5. On January 31, 2003, Isaacs filed a second
Charge with the EEOC against Colgate-Palmolive Company,
alleging race and sex discrimination, as well as sexual
harassment and retaliation. Zaleha Aff., 4 53, Exh. 7. On
July 31, 2003, the EEOC issued a “no cause” letter
dismissing her second Charge. Zaleha Aff., 4 54, Exh. 8.
lil. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not
a disfavored procedural shortcut, but rather is an integral part
of the federal rules as a whole, which are designed to secure
the just, speedy, and inexpensive determination of every
action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
See also United Ass’n of Black Landscapers v. City of
Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert.
denied, 111 S.Ct. 1317 (1991). Motions for summary
judgment are governed by Rule 56(c) of the Federa! Rules of
Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the
pleadings, depositions, 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 that the moving party is entitled to a judgment
as a matter of law.
Once a party has made a properly-supported motion for
summary judgment, the opposing party may not simply rest
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upon the pleadings but must instead submit evidentiary
materials that “set forth specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e). A genuine
issue of material fact exists whenever “there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The nonmoving party bears the burden
of demonstrating that such a genuine issue of material fact
exists. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck
Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520
U.S. 1116 (1997). It is not the duty of the court to scour the
record in search of evidence to defeat a motion for summary
judgment; rather, the mnonmoving party bears the
responsibility of identifying the evidence upon which he
relies. See Bombard v. Fort Wayne Newspapers, Inc., 92
F.3d 560, 562 (7th Cir. 1996). When the moving party has
met the standard of Rule 56, summary judgment ts
mandatory. Celotex, 477 U.S. at 322-23; Shields Enters.,
Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.
1992).
In evaluating a motion for summary judgment, a court
should draw ali reasonable inferences from undisputed facts
in favor of the nonmoving party and should view the disputed
evidence in the light most favorable to the nonmoving party.
See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir.
1996), cert. denied, 519 U.S. 1109 (1997). The mere
existence of a factual dispute, by itself, is not sufficient to bar
summary judgment. Only factual disputes that might affect the
outcome of the suit in light of the substantive law will
preclude summary judgment. See Anderson, 477 U.S. at 248:
JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273
(7th Cir. 1996). Irrelevant or unnecessary facts do not deter
summary judgment, even when in dispute. See Clifton vy.
22a
Schafer, 969 F.2d 278, 281(7th Cir. 1992). “If the
nonmoving party fails to establish the existence of an element
essential to his case, one on which he would bear the burden
of proof at trial, summary judgment must be granted to the
moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121,
1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit has suggested
that a court approach a motion for summary judgment in an
employment discrimination case with a particular degree of
caution. See e.g., Sarsha v. Sears, Roebuck & Co., 3 F.3d
1085, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life
Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language
implied that summary judgment might be less appropriate in
this context based upon the presence of issues of motive and
intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has
emphasized, however, these cases do not establish a
heightened summary judgment standard for employment-
related cases. Instead, the language from the prior cases
simply means “that courts should be careful in a
discrimination case as in any case not to grant summary
judgment if there is an issue of material fact that is genuinely
contestable, which an issue of intent often though not always
will be.” Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,
1396 (7th Cir. 1997). Even when discriminatory intent is at
issue, Summary judgment is appropriate when the nonmovant
presents no evidence to indicate motive or intent in support of
her position. See Holland, 883 F.2d at 1312. Further, the
nonmovant will not defeat summary judgment merely by
pointing to self-serving allegations without evidentiary
support. See Cliff v. Bd. of Sch. Comm’rs, 42 F.3d 403, 408
(7th Cir. 1994).
23a
IV. DISCUSSION
A. HILL’S MOTION TO STRIKE
When ruling on a motion for summary judgment, the
Court has the authority to strike any affidavit that does not
conform to the requirements of the Federal Rules of Civil
Procedure. See Adusumilli v. City of Chi., 164 F.3d 353, 359
(7th Cir. 1998). Hill’s moved to strike certain affidavits filed
by Isaacs in support of her response brief. See Dkt. No. 157.
Isaacs relies heavily on those affidavits in her response
opposing Hill’s motion for summary judgment. See Pl.’s Br.
Resp. at 4, 6-10, 13-16, 18-22, 29, 32, 43, 49-50, 57-58, 61-
63, 71, 73, 76, 80-81, 85, 91-92, 94.
On the date Isaacs’ surreply to Hill’s motion for summary
judgment and response to Hill’s motion to strike were due,
Isaacs moved for a fourth extension of time, which was
denied by Magistrate Judge V. Sue Shields. See Dkt. Nos.
165, 167, 169, 170. As the Court recently explained in its
Order on Isaacs’ motion for reconsideration regarding Order
on motion for leave to file, Isaacs’ eleventh hour motion for
an enlargement of time to file her surreply and response was
unacceptable. See Dkt. No. 19U at 2-3. By failing to make a
timely request for an extension, she permitted the critical date
to come and go, and Judge Shields was well within her
discretion to deny the motion for enlargement of time,
especially considering Isaacs’ extensive history of such
requests. Id.
For failure to timely reply, Hill's motion is GRANTED
in its entirety. The affidavits of Dewey Lakes, Larry Sheets,
Teressa Toney, anc Elizabeth Bright shall be STRICKEN
from the record. Further, the Court shall DISREGARD all
as a
24a
statements in Isaacs’ affidavit that are based on those
submissions.
B. COLGATE-PALMOLIVE IS DISMISSED
There were three ways in which Colgate could be found
to be a proper Title VII defendant: (1) if Isaacs could present
evidence that Colgate maintained an employment relationship
with Isaacs; (2) if Isaacs could pierce the corporate veil and
present evidence that Hill’s is only an alter ego of Colgate; or
(3) if Isaacs could present evidence that Colgate took actions
to avoid liability under the discrimination laws or might have
directed the discriminatory act, practice, or policy of which
Isaacs complains. Worth v. Tyer, 276 F.3d 249, 259-60 (7th
Cir. 2001). Isaacs fails to address this standard.
Colgate is not a proper defendant in this case because it
was not Isaacs’ employer. Isaacs’ bare citations to twenty-two
various affidavit paragraphs and deposition excerpts are not
supported by argument as to how the law applies to the
information in these citations, providing as an excuse, only
that she did so for “the sake of brevity.”*> The Court has no
obligation to develop Isaacs’ arguments for her, and a single
sentence not developed into a cognizable argument is treated
as a waiver. See, e.g., Tenney v. Zurek, 168 F.3d 328, 330
(7th Cir. 1999); Border v. City of Crystal Lake, 75 F.3d 270,
274 (7th Cir. 1996).*
* Jronically, this statement appears on page 95 of Isaacs’ response.
Pl.’s Br. Resp. at 95.
* Additionally, Judge Hamilton, in Brown v. Colgate-Palmolive
Co., Case No. 1:04-cv-782-DFH-WTL,. and Bright v. Colgate
Palmolive Co., Case No. 1:03-cv-1709-DFH-TAB, related cases in
25a
Accordingly, Defendants are entitled to summary
judgment on this issue and Colgate is DISMISSED as a
defendant.
C. TIME BARRED INCIDENTS
Indiana, which is a deferral state, requires that in order to
pursue a Title VII claim in federal court, a plaintiff must first
file a charge of discrimination with the EEOC within 300
days from the date of the alleged discriminatory action. Doe
v. R.R. Donnelly & Sons Co., 42 F.3d 439, 445 (7th Cir.
1994). As a general rule, a Title VII plaintiff generally cannot
bring claims in a lawsuit that were not included in her EEOC
charge. Cheek v. Western & S. Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994); Rush v. McDonald’s Corp., 966 F.2d
1104, 1110-1112 (7th Cir. 1992) (“An aggrieved employee
may not complain to the EEOC of only certain instances of
discrimination, and then seek judicial relief for different
instances of discrimination”). As the Seventh Circuit further
explained in Cheek:
This rule serves the dual purpose of affording the
EEOC and the employer an opportunity to settle the
dispute through conference, conciliation, and
persuasion, and of giving the employee some warning
of the conduct about which the employee is aggrieved.
Although the rule is not jurisdictional, it is a condition
precedent with which Title VII plaintiffs must comply.
For allowing a complaint to encompass allegations
outside the ambit of the predicate EEOC charge would
frustrate the EEOC’s investigatory and conciliatory
which employees of Hill’s brought claims similar to Isaacs’, has
twice found that Colgate is not a proper defendant.
26a
role, as well as deprive the charged party of notice of
the charge.
31 F.3d at 500.
Isaacs filed her first Charge on July 19, 2002. The
discriminatory and retaliatory acts complained of included
only her June 2002 Formal Coaching, a part of her IIP.
Zaleha Aff., 449, Exh. 4. The Charge focused exclusively on
the allegedly false product hold. It stated, in its entirety:
I have been employed by Hills [sic] Pet Nutrition
since about December 6, 1999. I work as a Tech in
the Stretch Wrap Department. On or about June 5,
2002, I was placed on an individual improved plan
(IIP) for a “hold” wrongly attributed to me. The two
men with whom I was working were not disciplined or
put on an IIP. . . . I believe that 1 was disciplined
because of my sex, female, and in retaliation for
previous complaints I’ve made about employment
discrimination, in violation of Title VII of the 1964
Civil Rights Act, as amended.
Id. at 2. The 300-day limitations period for this Charge
extends back to September 22, 2001. Isaacs’ second Charge,
alleging sex and race/color discrimination, harassment, and
retaliation was filed on January 31, 2003. Zaleha Aff., ¢ 53,
Exh. 7. The 300-day limitations period for this charge extends
back to April 5, 2002.
Isaacs argues that 1) her unarticulated sexual harassment
claims were embodied in her first charge regarding the IIP
because the “EEOC charge stated sex discrimination, and
sexual harassment is included in sex discrimination;” 2) she
wrote a letter to an EEOC employee in which she complained
27a
about sexually harassing statements which expanded the scope
of her charge; and 3) that incidents outside the 300-day
limitations period should be considered by the Court.
Isaacs’ first argument, that sexual harassment is “included
in sex discrimination” cannot be accurately described as an
attempt to apply the standard applied in this jurisdiction. An
EEOC charge will be held to encompass the Title VII claims
asserted in a civil action if the claims are “like or reasonably
related to the allegations of the charge” and “can reasonably
be expected to grow out of an EEOC investigation of the
allegations in the charge.” Jd. (internal quotations omitted).
“When an EEOC charge alleges a particular theory of
discrimination, allegations of a different type of
discrimination in a subsequent complaint are not reasonably
related to them unless the allegations in the complaint can be
reasonably inferred from the facts alleged in the charge.” Risk
v. Ford Motor Co., 48 F. Supp. 2d 1135, 1145 (S.D. Ind.
1999). See also Cheek, 31 F.3d at 503. At a minimum, the
complaint and the EEOC charge must “describe the same
conduct and implicate the same individuals.” Cheek, 31 F.3d
at 501. By simple virtue of the fact that sexual harassment is
a form of sexual discrimination does not carry the day.
Regarding Isaacs’ second argument, a supplemental letter
cannot expand the scope of an EEOC charge. Cheek, 31 F.3d
at 502-03 (sixteen-page letter could not expand the scope of
charge: “pursuant to 29 C.F.R. § 1601.12(b), these additional
allegations cannot expand the scope of the allegations in
Cheek’s original charge; they only may ‘clarify or amplify’
the allegations in the charge.”). See also Sitar v. Indiana
Dep't. of Transp., 344 F.3d 720, 727 (7th Cir. 2003)
(refusing to expand scope of claims beyond EEOC charge of
retaliatory discharge despite knowledge of both employer and
EEOC of an earlier internal complaint of sex discrimination).
28a
Isaacs’ final argument has some merit, but only with
regard to her sexual harassment claim. Although Isaacs’ First
Amended Complaint does not include a hostile work
environment Count, it is clear from Hill’s filings that they
interpreted her sexual harassment claims as such. See Def.’s
Br. Rep. At 27-36. Accordingly, the Court applies hostile
work environment claim standards with regard to the
evidentiary limitations imposed.
Hostile work environment claims must be treated
differently than other Title VII claims. Nat. R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115 (2002) (stating
“thjostile environment claims are different in kind from
discrete acts. Their very nature involves repeated conduct.”).
Not only does a hostile work environment inherently involve
“repeated conduct,” but also hostile work environment is an
unlawful employment practice that “cannot be said to occur
on any particular day.” /d. A hostile work environment
occurs over time, sometimes even years. /d. Generally, the
discrete acts which compose a hostile work environment are
not individually actionable. Jd. (citing Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993) (quoting Mentor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)). Thus, it can be said
that a hostile work environment is really the cumulative effect
of many small acts, which standing alone are not actionable
under Title VII. /d.
A plaintiff, according to the Supreme Court, is required
to file within 180 or 300 days “fa]fter the alleged unlawful
employment practice occurred.” /d. at 117. A hostile work
environment is one unlawful employment practice. /d.
(emphasis added). The fact that some of the “component acts”
fall outside the 300 days is of no consequence to the
determination of whether the component act, falling outside
of the relevant period, should be considered. /d. Therefore,
29a
“[p]rovided that an act contributing to the claim occurs within
the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes
of determining liability.” Jd.
Viewing the evidence in a light reasonably favorable to
Isaacs, she has identified acts that a reasonable jury could
conclude contributed to her claim and occurred within the
limitations period. As approved by Morgan, the Court also
will consider conduct prior to April 5, 2002, that was part of
the same alleged hostile work environment.’
However, as Hill’s points out, Isaacs also attempts to
assert her claim on allegations relating to the earlier years of
her employment. The Court must determine whether “the acts
about which [Isaacs] complains are part of the same
actionable hostile work environment practice. . . .” Morgan,
536 U.S. at 117. Many allegations upon which Isaacs seeks
to rely pertain primarily to the behavior of co-workers in
Packaging. But there ts no dispute that Isaacs worked in
> In the instant case, Isaacs makes no claim as to a continuing
violation. Therefore, Iill’s argument based upon continuing
violation is specious and unavailing. Hill’s claim that Isaacs is
unable to use component acts that occurred prior to the 300 days
prior to filing her EEOC Charge because the component acts do not
create a continuing violation of the type contemplated prior to
Morgan is true. However, a hostile work environment is not a
continuing violation; it is a single violation which happens as long
as the cumulative effect of the component parts creates such an
environment. So Isaacs does not need to even address the
continuing violation doctrine, as it is never implicated with regard
to an alleged hostile work environment. The continuing violation
doctrine has no application here and thus should not have brought
it into the argument.
30a
Packaging only from January 3, 2000, to October 15, 2001,
and that following her transfer to Stretchwrap in October,
2001, she had different job duties, different co-workers, and
worked in an entirely different area of the Plant. See Isaacs
Dep. at 69, 74; Isaacs Dep. at 30, 43, 44. Simply remaining
with the same employer does not, by itself, indicate that these
actions are part of the same hostile work environment claim
as her timely allegations. Isaacs makes no allegation and
presents no evidence linking the acts and actors complained
of during her time in Packaging to her time in Stretchwrap.
Accordingly, the Court will not include alleged acts occurring
before October 15, 2001. Those acts occurred under entirely
different working conditions, involving completely different
actors, and simply cannot be described as related to her timely
allegations.
With regard to conduct that allegedly took place after
Isaacs filed her second Charge, Hill’s asserts that she failed
to exhaust her administrative remedies and that any
allegations that post-date her January 31, 2003, second
Charge are barred. At the outset, the Court notes that this
argument is not applicable to acts related to Isaacs’ sexual
harassment claim, as it is a single violation of cumulative
effect. However, Isaacs impermissibly attempts to draw into
her case allegedly retaliatory and discriminatory events that
occurred well after the EEOC’s opportunity to investigate her
second Charge, including an alleged termination in August
2003; her working conditions; the circumstances of another
leave of absence taken commencing January 30, 2004; and the
administrative termination of her employment in March 2005,
after months of unauthorized leave.
Although Hill’s raised this issue in its reply, Isaacs’
inability to respond proves inapposite. As discussed above, a
plaintiff must file a charge with the EEOC before pursuing a
3la
Title VII claim in federal court. An exception to this general
rule, which allows a claim not included in the EEOC
complaint to be pursued in federal court, exists when that
subsequent claim is “reasonably related” to the claim that was
included in the EEOC charge and if it can be expected to
develop from an investigation into the charges actually raised.
Cheek, 31 F.3d at 500; Stevens v. ill. Dep’t of Trans., 210
F.3d 732, 736 (7th Cir. 2000); Green v. Nat'l Steel Corp.,
Midwest Div., 197 F.3d 894, 897 (7th Cir. 1999).
On July 31, 2003, the EEOC investigation as to Isaacs
second Charge was concluded and she received a Dismissal
and Notice of Rights. Any allegation subsequent to that date,
including her alleged August 2003 and March 2005
terminations, regardless of whether they were reasonably
related to the acts included in her second Charge, could not
be expected to develop from the EEOC’s investigation, as it
had concluded. Those allegations post-dating the EEOC’s
investigation have never been the subject of a charge, and
they have not been added to Isaacs’ Complaint. In fact, some
events, in particular Isaacs’ 2005 termination, had not even
occurred when Hill’s filed its Motion for Summary Judgment
on September 28, 2004. Those acts allegedly occurring after
July 31, 2003, are not part of this case, as Isaacs has failed to
exhaust her administrative remedies. Therefore, the Court
will not address them.
In sum, the Court will consider conduct that was part of
the same alleged hostile work environment resulting from
sexual harassment, except for those acts occurring before
October 15, 2001. Isaacs’ allegations of Title VII
discrimination and retaliation pre-dating April 5, 2002, are
time-barred and must be dismissed on that basis, and
allegations post-dating January 31, 2005, shall not be
considered for failure to exhaust administrative remedies. See
32a
42 U.S.C. § 12117(a); Gibson v. West, 201 F.3d 990, 994
(7th Cir. 2000) (“[T]he failure to exhaust administrative
remedies is a precondition to bringing a Title VII claim in
federal court, rather than a jurisdictional requirement.”).
Therefore, the Court will not address Isaacs’ time-barred
allegations in its analysis.
D. TITLE VII SEX DISCRIMINATION CLAIMS
1. Disparate Treatment Claim
Isaacs claims that Hill’s discriminated against her on the
basis of sex in the terms and conditions of her employment in
a variety of ways. Title VII makes it unlawful to: “fail or
refuse to hire or to discharge any individual, or otherwise 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).
Isaacs offers no direct evidence of discriminatory intent on
the part of Hill’s. To establish a prima facie case of sex
discrimination under the indirect method of proof, Isaacs must
show: (1) she was a member of a protected class; (2) she was
meeting her employer’s legitimate performance expectations;
(3) she was subjected to an adverse employment action; and
(4) she was treated less favorably than similarly-situated male
employees. Rhodes v. Ill. Dep't of Transp., 359 F.3d 498,
504 (7th Cir. 2004); Patterson v. Avery Dennison Corp., 281
F.3d 676, 680 (7th Cir. 2002). If Isaacs can establish a prima
facie case, Hill’s must articulate a legitimate, non-
discriminatory reason for its actions, and Isaacs must then
respond by showing that Hill’s’ reason is really a pretext for
discrimination. Rhodes, 359 F.3d at 504.
-. 33a
Hill’s first argues that despite Isaacs’ plethora of
complaints, she has not suffered an adverse action. Adverse
employment actions do not include inconveniences or minor
events that make an employee unhappy. See, e.g., Twisdale
v. Snow, 325 F.3d 950, 953 (7th Cir. 2003) (concluding that
Title VII does not protect the hypersensitive employee “from
the irritations endemic to the employment relation”). An
adverse employment action is a material change such as
termination of employment, a demotion evidenced by a
decrease in wage or Salary, a less distinguished title, a
material loss of benefits, or significantly diminished
responsibilities. Rabinovitz v. Pena, 89 F.3d 482, 488 (7th
Cir. 1996) (citing Grady v. Liberty Nat’l Bank & Trust Co.,
933 F.2d 132, 136 (7th Cir. 1993)). Not everything that
makes an employee unhappy qualifies as a materially adverse
action, and adverse employment actions are typically
economic injuries. Whittaker v. N. Ill. Univ., 424 F.3d 640,
647 (7th Cir. 2005). The Court will address each of Isaacs’
complaints in turn.
a. I1P — Formal Coaching
Subjecting Isaacs to Formal Coaching alone does not
constitute an adverse employment action. A reprimand, cven
if unfairly based on conduct in which the plaintiff did not
engage or for which she should have not been responsible, is
not an adverse action absent a material job consequence.
Lucas v. Chi. Transit Authority, 367 F.3d 714, 731 (7th Cir.
2004); Sweeny v. West, 149 F.3d 550, 556 (7th Cir. 1998);
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 272-74
(7th Cir. 1996) (placement of employee in performance
coaching program coupled with warning that failure to
improve performance may lead to further disciplinary action
did not constitute adverse employment action, even when
34a
coupled with transfer that had a “minor and indirect effect”
on the employee’s commission).
Isaacs points out that because she was in ,.‘ormal
Coaching, she lost half of a quarterly contingent bonus. For
that quarter, the loss amounted to approximately $122.00 A
loss of benefits must be material. See Hildebrandt v. Ill. Dep’t
of Human Res., 347 F.3d 1014, 1033 n. 13 (7th Cir. 2003).
“To be actionable, there must be a. . . decision causing a
significant change in benefits.” Stutler v. Ill. Dep. ’t of Corr.,
263 F.3d 698, 703 (7th Cir. 2001) (citations omitted)
(emphasis added). A $122 loss, especially in light of Isaacs’
total compensation for the year, estimated as in excess of
$50,000, does not meet this standard, and is negligible at
best. See Rhodes, 359 F.3d at SOS (counting last day of work
as absence without pay allegedly contrary to public policy was
not materially adverse employment action because it had only
a “negligible impact” on income and did not cause material
harm).
Isaacs asserts that she also lost a “year-end bonus,” but
provides no detail as to the amount of that bonus nor whether
it was discretionary. See Pl.’s Br. Resp. at 33-34. The
Seventh Circuit has repeatedly held that “even the denial of
a monetary perk, such as a bonus or reimbursement of certain
expenses, does not constitute an adverse employment action
if tt is wholly within the employer’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, 241 F.3d 597, 602-03
(7th Cir. 2001)).
Isaacs cites a number of cases (without actually applying
the standards contained therein), to support her claim that
35a
“evaluations which have an effect on the employee’s career
are adverse actions.” P1.’s Br. Resp. at 69. However, none of
those cases supports the proposition that Isaacs’ Formal
Coaching constituted an adverse action. In Lucas, the Seventh
Circuit noted:
Our past decisions indicate that a negative evaluation
or admonishment by an employer does not rise to the
level of an adverse employment act. There must be
some tangible job consequence accompanying the
reprimand to rise to the level of a material adverse
employment action; otherwise every reprimand to
attempt to counsel an employee could form the basis
of a federal suit.
367 F.3d at 731.
Applying this standard, the Formal Coaching was merely
the first step of a four-step progressive discipline process.
True, oral and written reprimands that, with hindsight, may
have brought a plaintiff closer to termination are nonetheless
adverse actions. See Oest v. Ill. Dep't of Corr., 240 F.3d
605, 613 (7th Cir. 2001). However, Isaacs has failed to
proffer evidence that the Formal Coaching had any impact on
Isaac’s employment or career prospects — much less a
material impact. Patt v. Family Health Sys., Inc., 280 F.3d
749, 753-54 (7th Cir, 2002) (affirming summary judgment
where plaintiff failed to show how complained-of actions
limited her career opportunities). There is simply no evidence
that the later acts complained of were related in any way to
the progressive discipline system or her Formal Coaching.
Isaacs suggests that the Formal Coaching constitutes an
adverse action because it caused her to take stress leave. Pl.’s
Br. Resp. at 70. But the legal standard for determining
36a
whether an employment decision is materially adverse does
not depend on the employee’s subjective reaction to it. “The
adversity of an employment action is judged objectively. . . .”
Cullom v. Brown, 209 F.3d 1035, 1041 (7th Cir. 2000). The
decision at issue must impact her employment status in some
significant, objective way. There is no evidence of such
impact here.
b. Transfer
Isaacs complains that on October 15, 2001, she, rather
than a male co-worker, was transferred from Packaging to
Stretchwrap in October 2001. Such a move constitutes a
purely lateral transfer and as such does not amount to adverse
employment action:
Obviously a purely lateral transfer, that is, a transfer
that does not involve a demotion in form or substance,
cannot rise to the level of a materially adverse
employment action. A transfer involving no reduction
in pay and no more than a minor change in working
conditions will not do, either. . . . Otherwise, every
trivial personnel action that an irritable, chip-on-the-
shoulder employee did not like would form the basis
of a discrimination suit. The Equal Employment
Opportunity Commission, already staggering under an
avalanche of filings too heavy for it to cope with,
would be crushed, and serious complaints would be
lost among the trivial.
Williams, 85 F.3d at 274 (internal citations omitted). See also
Stutler v. Ill. Dep’t of Corr., 263 F.3d 698, 702 (7th Cir.
2001); Hill v. Am. Gen. Fin., Inc., 218 F.3d 639, 645 (7th
Cir. 2000); Place v. Abbott Labs, 215 F.3d 803, 810 (7th Cir.
2000) (“[B]eing shifted to an essentially equivalent job that
AO Bay ik TE
37a
[the plaintiff] did not happen to like as much does not a Title
VII claim create”). It is undisputed that Isaacs’ terms and
conditions of employment have been consistent with those of
other Plant Technicians in all significant respects. During the
relevant time frame, she has never been suspended, demoted,
or discharged. Vanderpool Aff, ¢ 15; Keinath Aff., 4 14. Her
compensation rate and benefit package were the same as other
Technicians. Zaleha Aff., { 11; Vanderpool Aff., q 16;
Keinath Aff., 4 15. She worked in the same production
environment and has the same shift schedule as other
Technicians. Isaacs Dep. at 58-60; Vanderpool Dep. at
184:23-25, 185:1-4; Zaleha Aff., {{ 10-12. Accordingly, her
transfer to Stretchwrap does not constitute an adverse
employment action.
c. Training
Isaacs Claims that she was taken off a training schedule in
November 2002. Isaacs also makes general claims as to her
time in Stretchwrap that she did not receive a mentor or
sufficient training. To demonstrate a discriminatory failure to
train, Isaacs must show that |) she is a member of a protected
class; 2) her employer provided training; 3) she was eligible
for training; and 4) she was not provided training under
circumstances, giving rise to an inference of discrimination,
i.e., similarly-situated male employees were given such
raining. See Malacara v. City of Madison, 224 F.3d 727, 729
(7th Cir. 2000). Isaacs does not even attempt to satisfy this
legal standard in her response. Isaacs has filed to show that
she was eligible for the training or that it had any impact on
her employment. See Ajayi v. Aramark Bus. Servs., Inc. , 336
F.3d 520, 528-29 (7th Cir. 2003) (denial of training is not an
adverse action if it has no tangible, negative impact on
employment) (citation omitted). Accordingly, her “failure to
38a
train” claims do not constitute an adverse employment action
for Title VII purposes.
d. Job Assignment
Isaacs’ complaints about disparities in work assignments
are generally vague, and she often fails to identify the time
period or area to which her claims relate. Specifically, she
claims that men did the preventive maintenance, would not
give women keys to toolboxes, and told the women to clean.
See P|.’s Br. Resp. at 75. However, Isaacs’ allegations are
inconsistent with her own deposition testimony. When asked
to describe the different jobs in Stretchwrap, Isaacs testified
as follows: “Q: how many different jobs were there to do in
Stretchwrap? A: Well, you could pull the lines, you could do
one-stop. Those two jobs are the main jobs. There may have
been other jobs, but those are the two main jobs.” Isaacs Dep.
at 69. By her own admission, cleaning and preventive
maintenance were merely ancillary tasks to the main
responsibilities in Stretchwrap, and their allocation could
hardly qualify as job segregation. “Undesirable” tasks and
insignificant duties not commensurate with grade level or an
overabundance of work, “while unfortunate, [do not rise] to
the level of an ultimate employment action. It is well
established that undeswabie work assignments are not adverse
employment actions.” Eugene v. Rumsfeld, 168 F. Supp. 2d
655, 671-72 (S.D. Tex. 269!) (internal quotation and citation
omitted)).
Technician compensation and benefits did not vary by
work area or work assignment, and Technicians were
expected to (and did) work in all areas of the plant. See
Rhodes, 359 F.3d at 505 (affirming summary judgment on
finding of no materially-adverse employment action under
Title VII where plaintiff complained of assignments and tasks
39a
consistent with the job duties of her position); O’Neal v. City
of Chi., 392 F.3d 909, 913 (7th Cir. 2004) (lateral transfer
resulting in assignment of responsibilities that within the
reasonable scope of plaintiff's duties did not constitute
adverse employment action under Title VII). Her preference
to perform some, but not other, technician tasks does not
establish an adverse employment action under Title VII. See,
e.g., Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901
(7th Cir. 2003) (plaintiff must show some change in the terms
or conditions of employment that is more than a “mere
Subjective preference.”). The acts alleged do not rise to the
level of adverse employment actions under Title VII.
e. Snubs and Misbehavior by Other Technicians
Isaacs alleges a number of snubs and misbehavior by other
technicians. However, these complaints are inappropriately
identified by Isaacs as supporting her disparate impact claim.
Instead, they will be considered by the Court under her sexual
harassment claim. Isaacs herself characterizes these alleged
acts as “part of the harassment and retaliatory harassment by
the male employees.” P].’s Br. Resp. at 77. The same is true
for Isaacs’ claims regarding vandalism to her vehicle and an
incident in which Pebworth knocked some product off of
Isaacs’ parked forklift.
f. In Conclusion
Despite Isaacs’ plethora of complaints, she has failed to
identify a single action within the relevant time period which
constitutes an adverse employment action. Accordingly, her
disparate impact claim under Title VII fails.
40a
2. Sexual Harassment / Hostile Work
Environment Claim
Another way in which an employer can discriminate with
respect to terms and conditions of employment is by
subjecting an employee to a hostile work environment based
on her sex. Title VII prohibits an employer from “requiring
people to work in a discriminatorily hostile or abusive
environment.” Wyninger v. New Venture Gear, Inc., 361
F.3d 965, 975 (7th Cir. 2004) (internal quotations omitted).
An employer also can discriminate with respect to terms and
conditions of employment by subjecting an employee to an
adverse employment action because of her sex. /d. at 978.
To survive summary judgment on this claim, Isaacs must
come forward with evidence that would allow a reasonable
fact finder to conclude that: (1) she was subject to unwelcome
harassment; (2) the harassment was based on her sex; (3) the
harassment was sufficiently severe or pervasive so as to alter
the conditions of her employment and to create a hostile or
abusive working environment; and (4) there is a basis for
employer liability. McPherson v. City of Waukegan, 379 F.3d
430, 438 (7th Cir. 2004).
The following incidents are relevant to Isaacs’ hostile
workplace claim: 1) She glimpsed objectionable materials on
computer screens two times; 2) she frequently heard
comments over the radio in Stretchwrap about “dragging my
wood,” or “my wood’s awful long” that she took to be sexual
references; 3) Pebworth twice told her that her rear end was
so big that two men could climb on it; and 4) Pebworth made
crying sounds over the radio in an effort to mock her, used
the word “bitch” in her presence a few times, and the term
4la
“fucking bitch” twice in reference to someone other than
Isaacs.°
First, the Court determines whether the incidents that can
be linked to sex were sufficiently severe or pervasive to
support a claim under Title VII. To be considered severe or
pervasive, the conduct must have been objectively hostile or
abusive, and the target also must have subjectively perceived
it that way. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-
22 (1993). “[I]solated and innocuous incidents will not
support a hostile environment claim.” McKenzie v. Ill. Dep't
of Transp., 92 F.3d 473, 480 (7th Cir. 1996). See also Saxton
v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir.
1993) (*‘relatively isolated’ instances of misconduct that [are]
not severe will not support a hostile environment claim” ); but
see Cerros, 398 F.3d at 951 (“pervasiveness and severity are,
to a certain degree, inversely related; a sufficiently severe
episode may occur as rarely as once, while a relentless pattern
of lesser harassment that extends over a long period of time
also violates the statute”) (internal quotation omitted). The
court must consider the totality of the relevant circumstances.
Harris, 510 U.S. at 23; Murray v. Chi. Transit Auth. , 252
F.3d 880, 889 (7th Cir. 2001).
A fact finder could easily conclude that Isaacs subjectively
perceived her work environment to be hostile and abusive.
* See Isaacs Dep. at 502, 504, 506-09. Isaacs then contradicts her
own deposition testimony via her sworn affidavit, in which she
testifies that Pebworth called women “bitches” or “fucking bitches”
on a “steady basis” and told Isaacs “fuck you bitch.” See Isaacs Aff.,
§ 322. Isaacs’ affidavit is so lacking in credibility as to be entitled to
zero weight in summary judgment proceedings, as Isaacs has not
given a plausible explanation for the discrepancy in the affidavit. See
Beckel v. Wal-Mart Assocs., 301 F.3d 621, 623 (7th Cir. 2002).
42a
But to ascertain whether Isaacs’ work environment was
objectively hostile or abusive, the Court must consider all the
circumstances, including the frequency of the discriminatory
conduct; the severity of the conduct; whether the conduct was
physically threatening and/or humiliating, or merely an
offensive utterance; and whether that conduct unreasonably
interfered with Isaacs’ work performance. See McPherson,
379 F.3d at 438; Wyninger, 361 F.3d 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).
’ Although hostile work environment claims do not require proof of
tangible psychological injury, they require proof that goes beyond
evidence of an uncomfortable or “merely offensive” work
environment. See Wyninger, 361 F.3d at 977; Cerros, 288 F.3d at
1046. Still, the boundary between actionable harassment and less
severe conduct is not a bright one:
On one side lie sexual assaults; other physical contact,
whether amorous or hostile, for which there is no consent
express or implied; uninvited sexual solicitations;
intimidating words or acts; obscene language or gestures;
pornographic pictures. On the other side lies the occasional
vulgar banter, tinged with sexual innuendo, of coarse or
boorish workers. We spoke . . . of “the line that separates
the merely vulgar and mildly offensive from the deeply
offensive and sexually harassing.” It is not a bright line,
obviously, this line between a merely unpleasant working
environment on the one hand and a hostile or deeply
repugnant one on the other. . .
Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807-09 (7th Cir.
2000) (internal citations omitted). The federal courts have struggled
case by case.
43a
The Court finds Isaacs’ evidence insufficient to survive
summary judgment on a hostile work environment claim. A
hostile work environment claim requires proof that goes
beyond evidence of an uncomfortable or unpleasant work
environment. See Wyninger, 361 F.3d at 977. Title VII is not
a “‘general civility code’ designed to purge the workplace of
all boorish or even all harassing conduct.” Berry v. Delta
Airlines, Inc., 260 F.3d 803, 808 (7th Cir. 2001) (citing
Oncale v. Sundowner Offshore Srvs, Inc., 523 U.S. 75, 81
(1998). In considering the factors outlined above, none
weighs in Isaacs’ favor. Although Isaacs testified that she the
environment was so hostile that she was forced to take
repeated stress leave, the Court finds that her assertion only
supports her subjective opinion that the environment was
inappropriately hostile. As noted above, she also must show
that the environment was hostile under an objective standard
as well.
Her co-workers’ isolated comments, while rude and
tactless, do not rise to the level of an actionable hostile work
environment claim. The only allegation Isaacs makes as to
repeated conduct (without specifying how often the conduct
occurred), was that her co-workers made comments about
“dragging my wood” and “my wood’s awful long.” The
Seventh Circuit has repeatedly affirmed that occasional vulgar
banter of coarse and boorish workers, even if tinged with
sexual innuendo, is neither pervasive nor severe enough to be
actionable. See, e.g., Wyninger v. New Venture Gear, Inc.,
361 F.3d 965, 977 (7th Cir. 2004).
There is insufficient evidence that Pebworth making
crying noises over the radio in an attempt to mock Isaacs are
sex-based. See Minor v. Ivy State Tech Coll., 174 F.3d 855,
858 (7th Cir. 1999) (“It is not enough that a supervisor or co-
worker fails to treat an employee with sensitivity, tact, and
44a
delicacy, uses coarse language, or is a boor. Such failures are
too commonplace in today’s America, regardless of the sex of
the employee, to be classified as discriminatory”). Further,
Isaacs does not set forth how often Pebworth mocked her tn
such a fashion.
Several allegations cited in Isaacs’ response regarding
Pebworth’s comments about her and other females relate to
comments that occurred outside her presence when she was
on leave. Pl.’s Br. Resp. at 82 (citing Isaacs Dep. 128-43. See
Mason y. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046
(7th Cir. 2000) (“Behavior of which plaintiff is unaware, and
thus never experiences, is not ‘harassment’ of the plaintiff
(severe, pervasive, or Other)”). In her deposition, Isaacs
alleges only that Pebworth used the word “bitch” in her
presence a few times, and the term “fucking oitch” twice in
reference to someone other than Isaacs. See Hildebrandt, 347
F.3d at 1034-35 (noting that comments overheard by, but not
directed at, the plaintiff do not have the same impact as
harassment directed at her).
Even then, comments made by Pebworth in Isaacs’
presence are not. See Moser v. Indiana Dep't of Corr., 406
F.3d 895, 902-03 (7th Cir. 2005) (affirming summary
judgment on Title VII hostile environment claim in favor of
employer where plaintiff had alleged that co-worker’s
harassing remarks were “part of his daily, non-ceasing quest
to degrade women” but court found no serious or threatening
comments); Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675,
678 (7th Cir. 2005) (affirming summary judgment on Title
VII hostile environment claim in favor of employer where co-
workers’ behavior was “more reflective of run of the mill
uncouth behavior than an atmosphere permeated with
discriminatory ridicule and insult”).
45a
Pervasive sexual and pornographic images in the
workplace can create an actionable hostile environment. See,
e.g., Hostetler, 218 F.3d at 807. However, to survive
summary judgment on her sexual harassment claim, Isaacs
also must show that Hill’s was negligent in failing to discover
the harassment or in its efforts to prevent further harassment.
See Mason v. So. Ill. Univ. At Carbondale, 233 F. 3d 1036,
1043 (7th Cir. 2000). In hostile workplace cases, “the
employer can avoid liability for its employees’ harassment if
it takes prompt and appropriate corrective action reasonably
likely to prevent the harassment from recurring.” 7utman v.
WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7" Cir.
2000). The undisputed evidence shows that once Hill’s
learned of the problem involving sexual images on computers,
it conducted an investigation, suspended eleven employees,
and issued a warning to employees about inappropriate use of
workplace computers and e-mail.
The Court has found the more overt sexually-based
conduct to be insufficient to support a hostile work
environment claim. Therefore, the remainder of the incidents
alleged by plaintiff, where the sexual connection is far more
attenuated (if not nonexistent), do not alter the Court’s
finding. While the Court may not view any incident in
isolation, see Cerros v. Steel Tech., Inc., 398 F.3d 944, 1046
(7th Cir. 2005) (reversing summary judgment for employer in
racially hostile environment case where the district court
failed to consider multiple incidents in their entirety), the fact
that none of Isaacs’ more overt sexually-based allegations are
sufficiently severe or pervasive ultimately dooms her claim.
While Isaacs’ employment environment was riddled with
conflict and inappropriate behavior, and while the Court does
not condone the behavior of Isaacs co-workers, a reasonable
fact-finder could not conclude that it was “hellish.” Perry,
46a
126 F.3d at 1013. Accordingly, Isaac’s sexual harassment
claim fails as a matter of law.
E. RETALIATION
1. Union Activity
Isaacs’ claim that Hill’s retaliated against her for
supporting unionization efforts at the Plant is pre-empted
under the National Labor Relations Act (“NLRA”). Under the
NLRA, it is an unfair labor practice for an employer to
discriminate “in regard to hire or tenure of employment or
any term or condition of employment to encourage or
discourage membership in any labor organization. 29 U.S.C.
§ 158(a)(3). However, the NLRA “pre-empts state and
federal court jurisdiction to remedy conduct that is protected
or prohibited by the Act.” Amalgamated Ass'n of St., Elec.
Ry. and Motor Coach Employees v. Lockridge, 403 U.S. 274,
276 (1971). Therefore, Isaacs may not raise this claim in this
proceeding. Isaacs concedes her retaliation claim for union
activity and claims to have filed a complaint with the National
Labor Relations Board. P1.’s Br. Resp. at 96. Hill’s ts entitled
to summary judgment on this claim.
2. Title VIL and FMLA Retaliation
Title VII prohibits employers from punishing employees
for complaining about discrimination or other practices that
violate Title VII. 42 U.S.C. § 2000e-3(a); Moser, 406 F.3d
at 903. Similarly, the FMLA prohibits employers from
discriminating or retaliating against employees who exercise
their rights under the Act, and from interfering with an
employee’s attempt to exercise those rights. 29 U.S.C.
§ 2615(a); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503
(7th Cir. 2004).
47a
The Seventh Circuit uses the same standard to evaluate
Title VII and FMLA retaliation claims. Buie, 366 F.3d at
503. Under the direct method of proof, Isaacs must present
direct evidence of (1) a statutorily-protected activity; (2) an
adverse action taken by Hill’s; and (3) a causal connection
between the two. Rhodes, 359 F.3d at 508; Stone v. City of
Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir.
2002). Under the indirect method, Isaacs must show that (1)
she engaged in statutorily-protected activity; (2) she
performed her job according to Hill’s legitimate expectations;
(3) despite her satisfactory performance, she suffered an
adverse action by Hill’s; and (4) she was treated less
favorably than similarly situated employees who did not
engage in statutorily-protected activity. /d. If Isaacs could
establish a prima facie case under the indirect method, the
burden would then shift to Hill’s to articulate a legitimate,
non-discriminatory reason for its actions. If Hill’s could do
so, the burden then would shift back to Isaacs to present
evidence that could allow a reasonable jury to find that Hill’s’
stated reason was not a true reason, but a pretext, which
might allow an inference of retaliatory intent. Jd.
Isaacs contends that she relies on the direct and indirect
methods of proof, and the Court considers whether she could
succeed under either analysis. Many of the acts of which
Isaacs complains in her sexual harassment Count — transfer,
denial of training, ostracism by co-workers, refusal of help,
being given a Formal Coaching, etc. — also are cited as
forms of alleged unlawful retaliation.
Hill’s raises three challenges to this Count. Specifically,
Hill’s asserts that 1) Isaacs’ allegations do not amount to
adverse employment actions; 2) under the direct method of
proof, she has no proof of retaliatory animus on the part of
any alleged decision-maker and cannot show a causal nexus
48a
between any protected conduct on her part and an adverse
action; and 3) under the indirect method of proof, Isaacs has
not identified any similarly-situated employees. Isaacs’
jumbled response appears to confuse the nature of Hill’s’ two
latter challenges to her evidence, and as best as can be
deciphered by the pleading, argues that she has evidence of a
similarly-situated employee treated more favorably, showing
a causal nexus between the protected conduct and the adverse
actions.* PI.’s Br. Resp. at 89.
The dispositive finding under this claim is that Isaacs
completely fails to address Hill’s’ argument regarding
whether any of Isaacs’ complaints actually constitute adverse
actions, a requirement under both the direct and indirect
methods of proof. See Rhodes, 359 F.3d at 508. Isaacs only
addresses the issue as follows:
The defendants argue that plaintiff suffered no adverse
action before she was placed in IIP in June and July
2002. The defendants then claim that plaintiff should
have complained to the EEOC about retaliation before
July 2002. The defendants have even argued that the
IJP was not an adverse action, and it was an adverse
action because of the reasons stated above. Therefore,
the defendants’ argument that plaintiff should have
complained to the EEOC about retaliation before July
2002 is without basis.
* The Court is therefore forced to parse her citations and determine
what evidence she believes supports the similarly-situated prong
under the indirect method and what evidence supports the causal
nexus requirement under the direct method.
49a
Pl.’s Br. Resp. at 88. Although Isaacs’ statement can be
interpreted to mean that being placed in IIP in June and July
2002 was an adverse action, she provides absolutely no
citation to record evidence or applicable case law showing
that such action constitutes a genuine adverse action for the
purposes of her Title VII and FMLA retaliation claims,
despite having filed a 96-page brief. It is the parties’ duty to
support their arguments properly, and it is not for the Court
to search for a disputed issue of fact if there is a factual
contention not adequately supported in the record by citation
to admissible evidence. Roger Whitmore’s Automotive
Services, Inc., v. Lake County, 424 F.3d 659, 664 n. 2 (7th
Cir. 2005). Failing to make any citation to record evidence in
one’s argument does not comport with this obligation. On this
basis alone, Hill’s’ motion for summary judgment should be
granted. See Thomas v. Christ Hosp. and Med. Center, 328
F.3d 890, 894 (7th Cir. 2003) (citing Lujan v. Nat. Wildlife
Fed., 497 U.S. 871, 888 (1990) (reiterating that “Rule 56(e)
of the Federal Rules of Civil Procedure specifically prohibits
a party from relying upon his allegations to contest entry of
summary judgment.”). However, assuming for the sake of
argument that Isaacs’ allegations constitute adverse actions,
her claims still fail.
First, considering Hill’s’ challenge to the similarly-
situated element under the indirect method of proof, Isaacs
asserts that several employees were similarly situated and
treated more favorably.” However, it is not clear whether
anyone at Hill’s was similarly situated to Isaacs under the
* Included in Isaacs” list of similarly-situated employees were
McConnell, Baker, Pebworth, Bill Monroe, Chasteen, Chris
Penland, yet Isaacs only cited supporting evidence with regard to
Steve Baker. See Pl.’s Br. Resp. at 89-90.
50a
current Seventh Circuit definition of the term. “To meet her
burden of demonstrating that another employee is ‘similarly
situated,’ a plaintiff must show that there is someone who is
directly comparable to her in all material respects.” Patterson
v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002).
As Isaacs failed to present any evidence regarding these
employees beyond the fact that she was allegedly disciplined
and harassed and they were not, it is impossible to determine
whether they were “similarly situated” to Isaacs under this
standard. Accordingly, Isaacs has not raised an inference that
a similarly-situated employee who has not complained of
sexual harassment or taken FMLA leave was treated more
favorably or that Hill’s “applied its legitimate employment
expectations in a disparate manner (i.e., applied expectations
to similarly-situated [non-complaining or non-FMLA leave
taking] employees in a more favorable manner).” Peele v.
Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002).
The Court next addresses Hill’s’ challenge to the causal
nexus requirement under the direct method of proof.'° First,
the Seventh Circuit has observed that “it is clear that mere
temporal proximity is not enough to establish a genuine issue
of material fact.” Wyninger v. New Venture Gear, Inc., 361
F.3d 965, 981 (7th Cir. 2004) (internal citation and quotation
omitted). Isaacs asserts that Jenkins wrote a note to Isaacs’
‘0 Isaacs makes a number of assertions about co-worker and
management behavior without citation to record evidence. The
Court will disregard those unsupported statements. While it is the
Court’s responsibility to determine if genuine issues of material fact
exist, “[t}he parties . . . bear a cocomitant burden to identify the
evidence that will facilitate this assessment.” Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). See also United
States v. Dunkel, 927 F.3d 955, 956 (7th Cir. 1991) (“Judges are
not like pigs, hunting for truffles buried in briefs.”) (per curiam).
Sla
new Area Leader to extend Isaacs’ IIP. Although she may
speculate or theorize about management’s motivation in
writing the letter, such theorizing is patently insufficient to
allow her claims to survive summary judgment. See, e.g.,
Buie, 366 F.3d at 503 (setting forth evidence required to
prove retaliation claims and recognizing that FMLA and Title
VII retaliation claims are similarly evaluated).
Second, many of Isaacs’ alleged complaints are not even
specified in time. See, e.g., Pl.’s Br. Resp. at 90 (“Male
employee [Pebworth] had already said that he was going to
get Isaacs. . . Tony Brown had also told Isaacs that Jenkins
had previously said that he was not putting up with Isaacs. . .
Donna Moore saw so much animosity towards Isaacs that she
wrote a letter to management stating that Isaacs should not be
placed back in Stretchwrap because of the animosity. . .”)
(citing Isaacs Aff. 280, 297, 299). From Isaacs’ filing and
citations, it is impossible to tell whether these events occurred
during the 300-day window covered by her second EEOC
Charge.
Third, Isaacs’ allegations regarding the actions of her co-
workers cannot form the basis of her retaliation claims. Isaacs
asserts that 1) a co-worker told her that he did not want her
on his team because she had sued the company; 2) another co-
worker told Isaacs that ever since she filed charges he had not
been able to say a word to her (unnecessary expletives
removed); and 3) a third co-worker grabbed Isaacs’ ears with
his dirty hands, twisted her ears forward so that her head
went down, and said to “write that in your little book.” See
P|.’s Br. Resp. at 90-91.
“Retaliatory harassment by co-workers or a supervisor
can rise to this level if it is severe enough to cause a
significant change in the plaintiffs employment status.”
52a
Stutler v. Ill. Dep’t of Corr., 263 F.3d 698, 703 (7th Cir.
2001). There are three basic categories of cases where courts
have found the criteria for materially adverse employment
actions to be met: (1) cases in which the employee's
compensation, fringe benefits, or other financial terms of
employment are diminished, including termination; (2) cases
in which a nominally lateral transfer with no change in
financial terms significantly reduces the employee’s career
prospects by preventing her from using her skills and
experience, so that the skills are likely to atrophy and her
career is likely to be stunted; and (3) cases in which the
employee is not moved to a different job or the skill
requirements of her present job altered, but the conditions in
which she works are changed in a way that subjects her to a
humiliating, degrading, unsafe, unhealthful, or otherwise
significantly negative alteration in her workplace
environment. O’Neal, 392 F.3d at 911. However, Isaacs has
not so much as attempted to make such a showing. Merely
citing a litany of actions she believes to be adverse, Isaacs
does not assert that any of such conduct materially altered her
compensation or other financial benefits, her job
responsibilities, or her career prospects. Nor has she
supported the notion that these actions altered the conditions
of her work environment or her employment status in a
significantly negative way.
Finally, while the record is replete with incidents of Isaacs
involving co-worker conflict, such as her assertions that 1)
Jenkins made a fist at Isaacs when she was walking down an
aisle way, 2) Technician Dan Brouse (“Brouse”) made a
“blowfish face,” and 3) Technician Scott Vance (“Vance”)
53a
acted like he was going to hit or kick Isaacs.'' First, Isaacs
does not present any evidence from which the Court can infer
that these actions by her co-workers were taken against her
because of her protected conduct. The mere fact that
something allegedly happened to her after she engaged in
protected activity is insufficient to establish retaliation. See,
e.g., Wyninger, 361 F.3d at 981 (“[I]t is clear that mere
temporal proximity is insufficient to establish retaliation”). In
addition, while a “wide variety of actions” can qualify as
materially adverse, “not everything that makes an employee
unhappy is an actionable adverse action.” Haugerud v. Amery
School Dist., 259 F.3d 678, 691 (7th Cir. 2001) (internal
quotation omitted). Furthermore, “offhand comments and
isolated incidents,” unless extremely serious, could not
reasonably be believed to violate Title VII, and complaints
based upon them are not protected. Mattson v. Caterpillar,
Inc., 359 F.3d 885, 891 (7th Cir. 2004) (quotation omitted).
The Court cannot conclude that any of these behaviors,
inappropriate as they may be, constitutes adverse actions.
Accordingly, Hill’s is entitled to summary judgment on
Isaacs’ Title VII and FMLA retaliation claims.
F. SUBSTANTIVE FMLA CLAIM
The burden of proof on a claim brought under the
substantive rights provision of the FMLA lies with Isaacs,
who must demonstrate by a preponderance of the evidence her
eligibility for and her entitlement to the disputed leave. Diaz
'' Isaacs also asserts that male employees were using vulgar
language and talking about visiting a pornographic website. See
Pi.’s Br. Resp. at 91. However, such an allegation has no bearing
on her Title VII and FMLA retaliation claims.
54a
v. Fort Wayne Foundary Corp., 131 F.3d 711, 713 (7th Cir.
1997); Haefling v. United Parcel Service, Inc., 169 F.3d 494,
499 (7th Cir. 2001). The FMLA gives eligible employees the
right to twelve work-weeks of unpaid leave during any
twelve-month period for specified reasons.
Hill’s asserts that it has provided Isaacs far more leave
than the FMLA provides, Vanderpool Aff. 4§ 17-22, and
during her five years of employment, she has taken two years
off, much of which was treated as paid FMLA leave. See
Def.’s Mot. at 53; Def.’s Br. Rep. at 39. Isaacs does not
respond to this assertion. Instead, Isaacs appears to confuse
her substantive FMLA claim with that of her FMLA
retaliation claim, and presents argument regarding the latter.
She does not allege that she was actually denied any leave nor
that Hill’s failed to reinstate her pursuant to the requirements
of the FMLA. Isaacs has failed to present evidence, or even
argue, that she has been denied FMLA leave to which she
was entitled. Absent a cogent argument that she was entitled
to FMLA leave, Isaacs cannot defeat summary judgment on
the issue. See, e.g., Kramer v. Banc of America Securities,
LLC, 355 F.3d 961, 964 n.1 (7th Cir. 2004) (perfunctory and
undeveloped arguments that are unsupported by pertinent |
authority, are waived; Border v. City of Crystal Lake, 75 F.3d
270, 274 (7th Cir. 1996) (perfunctory and undeveloped
arguments are waived).
In another section of her response, Isaacs asserts that she
was denied FMLA leave when her grandchild was born. See
Pl.’s Statement of Disputed Fact 102 (“Isaacs was denied
FMLA leave when her daughter gave birth to Isaacs’
grandson, and Isaacs had to use vacation days.” ) However, as
indicated above, the burden is on the plaintiff to show her
eligibility and entitlement to 1eave. Isaacs does not indicate
what, if any, specified reason under the FMLA is satisfied by
5Sa
the birth of a grandchild. See Cool v. Borgwarner Diversified
Transmission Prods., Inc., 2004 U.S. Dist. Lexis 570, *12-
13, 2004 WL 253252, *4-5 (S.D. Ind. Jan. 12, 2004);
Compare Haefling v. United parcel Srvs., Inc., 169 F.3d 494,
499 (7th Cir. 2001) (“where an illness or injury constitutes a
‘serious health condition’ under the FMLA is a legal question
that an employee may not sidestep in the context of summary
judgment merely by alleging [her] condition to be so.”).
Accordingly, Hill’s is entitled to summary judgment on
Isaacs’ FMLA entitlement claim.
G. REMAINING STATE RETALIATION CLAIM
One exception to Indiana’s general rule of employment at
will is that “an employee who has been discharged in
retaliation for filing a claim of workers’ compensation may
recover damages for wrongful termination.” See Mack v.
Grate Dane Trailers, 308 F.3d 776, 784 (7th Cir. 2002)
(citing Frampton v. Cent. Ind. Gas Co., 297 N.E.2d 425, 428
(Ind. 1973)). As the Court grants summary judgment in favor
of Hill’s as to each of Isaacs’ federal claims, the Court
REMANDS Isaacs’ worker’s compensation retaliation claim,
under Indiana Code § 22-3-2-15, to state court.
V. CONCLUSION
For the reasons stated above, Defendants’, Colgate-
Palmolive Company, and Hilf’s Pet Nutrition, Inc., Motion
for Summary Judgment is GRANTED in its entirety. Court
declines to exercise supplemental exercise jurisdiction over,
and DISMISSES without prejudice, Plaintiff's, Carol L.
Isaacs, remaining state law claim. Additionally, Defendant’s
Motion to Strike is GRANTED, the Court STRIKES the
affidavits of Dewey Lakes, Larry Sheets, Teressa Toney, and
56a
Elizabeth Bright, and shall DISREGARD all statements in
Plaintiff's affidavit that are based on those submissions.
IT IS SO ORDERED this 31" day of March, 2006.
LARRY J. McKINNEY, CHIEF JUDGE
United States District Court Southern
District of Indiana
57a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
No. 1:03-cv-348-LJM-VSS
[Filed March 31, 2007]
CAROL L. ISAACS,
Plaintiff,
¥.
COLGATE-PALMOLIVE COMPANY
and HILL’S PET NUTRITION, INC.,
Defendants.
i a a a a a
ENTRY OF JUDGMENT
Through an order dated March 31, 2006, this Court
granted summary judgment in favor of the defendants,
Colgate-Palmolive Company, and Hill’s Pet Nutrition, Inc.
(otherwise known as Hill’s Pet Nutrition Indiana, Inc.), and
against the plaintiff, Carol L. Isaacs. The Court declined to
exercise supplemental jurisdiction over a remaining state law
claim. Plaintiff shall take nothing by way of her complaint.
DATED this 31st day of March, 2006.
LARRY McKINNELY, CHIEF JUDGE
United States District Court
Southern District of Indiana
58a
LAURA A. BRIGGS, CLERK
United States District Court
Southern District of Indiana
By: Deputy Clerk
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