Harbeck v. Baxter Healthcare Corporation
Filing
81
MEMORANDUM Opinion and Order. Defendant's motion for summary judgment 69 is granted. Status hearing previously set for 5/14/19 is stricken. Civil case terminated. Signed by the Honorable Jorge L. Alonso on 3/27/2019. Notice mailed by judge's staff (ntf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONNA HARBECK,
Plaintiff,
v.
BAXTER HEALTHCARE
CORPORATION,
Defendant.
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No. 17 C 5120
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Plaintiff, Donna Harbeck, sues defendant, Baxter Healthcare Corporation (“Baxter”), her
former employer, for retaliation for complaining about discrimination on the basis of sex and age
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. This case is before the
Court on defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure
56. For the following reasons, the Court grants the motion.
BACKGROUND
In June 2015, Baxter, a company that develops and manufactures healthcare instruments
and equipment, hired plaintiff, a forty-nine-year-old woman, as a Manager of Business
Operations. (Def.’s LR 56.1 Stmt. ¶¶ 1-3, ECF No. 71.) Plaintiff worked in the Knowledge
Management Department, where her job was to support Vice Presidents David Lambert and
Greg Boyer and the renal sales organization by reporting sales information. (Id. ¶¶ 4-5.)
On November 6, 2015, plaintiff attended a budget meeting at which Finance Vice
President John Quick stated that the Knowledge Management Department’s budget numbers
were wrong, were not to be used to report performance goals for the renal sales force, and were
to be removed from plaintiff’s reports effective immediately. (Id. ¶¶ 9-11.) Immediately after
the meeting, Mary Lou Merryman, Director of Incentive Compensation, grabbed plaintiff’s arm,
shook it, and yelled at plaintiff, “you can’t report on my numbers!” (Id. ¶ 18.) Merryman
continued to walk with plaintiff and, as they walked away from the conference room in which
the meeting had been held, grabbed plaintiff’s arm and yelled at her again. (Id. ¶ 19.)
According to Merryman and Todd Mundinger, Senior Manager of Commercial
Reporting, to whom plaintiff reported directly, plaintiff had become upset at the point in the
meeting when she was told to remove budget numbers from her reports. (Id. ¶ 13.) Mundinger
claims that plaintiff later told him that she believed that the removal of reporting on budget
numbers from her responsibilities showed that her job was at risk, but Mundinger reassured her
that there was no need for any such concern because there were other aspects of reporting, apart
from the budget, that she could focus on. (Id. ¶¶ 13-14.) Additionally, according to Mundinger,
he told plaintiff that her conduct during the meeting may have left high-level attendees with a
negative impression of plaintiff, but the damage was not irreversible. (Id. ¶ 14.)
Plaintiff denies that she was worried about losing her job based on the events of the
November 6, 2015 meeting. (Pl.’s LR 56.1 Resp. ¶¶ 12-14, ECF No. 73.) But there is no dispute
that she was upset by Merryman’s behavior, which she reported to Human Resources (“HR”).
(Def.’s LR 56.1 Stmt. ¶¶ 20-25.) The report to HR seemed to heighten tensions between the
Knowledge Management and Incentive Compensation departments.
(Id. ¶¶ 23-24.)
HR
investigated the incident and concluded that, while Merryman had not touched plaintiff in an
aggressive way, she should not have touched plaintiff at all, and it placed a written warning in
Merryman’s personnel file. (Id. ¶ 25.)
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Of the three Renal Senior Business Operations Analysts—Sue Tendering, Jason Strollo,
and Joann Cauliflower—who reported to plaintiff, Tendering had the highest salary, followed by
Strollo and then Cauliflower. (Id. ¶¶ 8, 55.) In early 2016, as plaintiff and Mundinger prepared
their 2015 performance reviews for these analysts, plaintiff alerted Mundinger to the pay
disparity between Strollo, who was male and under forty years old, and Cauliflower, an older
woman. (Id. ¶ 57.) While Mundinger recognized that there was a large pay disparity between
the two employees, Strollo had a Masters of Business Administration degree and had received an
“exceeds expectations” performance rating, whereas Cauliflower had only a high-school
education and had been placed on a Performance Improvement Plan. (Id. ¶ 59.) Mundinger
claims that he raised the issue with HR anyway, but he found that there was nothing more they
could do to close the pay gap, as Baxter had already raised Cauliflower’s pay when she first
joined Knowledge Management. (Id. ¶ 58.) However, two HR employees told plaintiff that they
did not recall Mundinger bringing the matter to their attention. (Pl.’s LR 56.1 Resp. ¶ 58.)
In early February 2016, Mundinger reviewed plaintiff’s 2015 performance, giving her a
rating of “meets expectations,” which was above “needs improvement” or “does not meet
requirements,” and he congratulated plaintiff on having “had a great year!” (Def.’s LR 56.1
Stmt. ¶ 27.) She also received a raise, by the same percentage as the other Managers of Business
Operations under Mundinger’s supervision. (Id. ¶ 31.)
Plaintiff viewed the review and the raise she received along with it as “punitive,”
believing that she should have received an “exceeds expectations” rating, in large part because
she had identified a $1.9 million accounting discrepancy. (Id. ¶¶ 30-33.) Several days after her
performance evaluation, plaintiff complained to HR that Baxter was retaliating against her
because of her complaint against Merryman. (Id. ¶ 62.) When HR interviewed her, plaintiff
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disclosed that she had attended a December 2015 offsite holiday party, to which a Baxter
employee had anonymously brought, as a “white elephant” gift, “a toy bear with a penis that
popped out when someone squeezed the bear’s head.” (Id. ¶ 63.) Plaintiff and Mundinger had
agreed at the time that the gift showed poor judgment. (Id. ¶¶ 64-65.) Additionally, plaintiff
reiterated to HR her complaint about the pay disparity between Strollo and Cauliflower, which
she had previously made only to Mundinger. (Def.’s LR 56.1 Resp. ¶ 5, ECF No. 75.) HR
Director Julie Junkin, after reviewing documents and interviewing ten individuals, including
plaintiff and Mundinger, found no evidence of retaliation. (Def.’s LR 56.1 Stmt. ¶¶ 67-70.)
Junkin met with plaintiff to discuss her findings, reassured her that Baxter did not intend to
terminate her or eliminate her role, and offered to facilitate conversations with Mundinger to
help rebuild their relationship. (Id. ¶ 70.)
According to Mundinger’s deposition testimony, plaintiff’s direct reports and peers began
to complain that they were having difficulty working with plaintiff. (Id. ¶¶ 36-41.) Plaintiff
disputes the truth of some of these complaints, pointing to to Joann Cauliflower’s deposition
testimony, in which Cauliflower denied making the complaints that Mundinger reported, and to
copies of emails from two peers who denied having issues working with her, at least on certain
matters. (Pl.’s LR 56.1 Resp. ¶¶ 36, 41.) But there were other complaints that plaintiff does not
genuinely dispute. Jason Strollo did not trust plaintiff, felt that she went out of her way to make
things difficult for co-workers and tried to make other departments look bad, and told Mundinger
that he would leave because of his working relationship with plaintiff. (Def.’s LR 56.1 Stmt. ¶
38; id., Ex. C, Mundinger Dep. at 16:6-8, ECF No. 71-3; see Pl.’s LR 56.1 Resp. ¶ 38
(purporting to deny Strollo’s comments about plaintiff but only because they are “statements of
opinion”).) Sue Tendering asked Mundinger when he was going to get rid of plaintiff because
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she had caused serious morale issues. (Def.’s LR 56.1 Stmt. ¶ 40; see Pl.’s LR 56.1 Stmt. ¶ 40
(purporting to deny that Tendering said this but actually citing unrelated complimentary
comments Tendering made on a 2015 performance review).)
Mundinger also received complaints about plaintiff from Solutions Architects Scott
Corso and Peter Decowski, who were working with plaintiff on automating some reporting
functions. (Def.’s LR 56.1 Stmt. ¶ 43.) They told Mundinger that they did not like working with
her and they were frustrated with her because she kept changing the requirements for their
projects, which was causing them to miss deadlines. (Id. ¶¶ 43-44.) At a late January 2016
meeting with Mundinger and the Solutions Architects to discuss the Solutions Architects’
concerns, plaintiff was upset and emotional, denied changing her mind, and claimed that she had
“never been treated like this.” (Id. ¶ 44.) The following week, however, plaintiff emailed
Mundinger that she felt she now had a “positive relationship [with] this team,” and Mundinger
replied that he was grateful that this meeting had “cleared the air” and “provided a good
foundation for moving forward.” (Id. ¶ 45.)
Jackie Minogue, a reporting level above Mundinger, assigned a special project on renal
reporting, known as “Project Thicke,” to Strollo. (Id. ¶ 46.) Plaintiff believed that it was
inappropriate for Strollo, rather than plaintiff herself, to be in charge of Project Thicke. (Id. ¶
47.)
Strollo told Minogue that plaintiff, against Minogue’s instructions, had shared a
confidential Project Thicke slide with persons outside of KM. (Id. ¶ 48.) Plaintiff denied doing
anything wrong, but Minogue confirmed in an August 10, 2016 email to Mundinger that
plaintiff’s sharing the slide was “directly against my direction and her commitment to keep this
internal within the team.” (Id. ¶ 50.)
5
In the summer of 2016, plaintiff applied for four internal positions within Baxter, but she
was not selected for any of them. (Id. ¶ 71.) According to plaintiff, one of the hiring managers
told her that she and Mundinger needed to “work things out.” (Def.’s LR 56.1 Resp. ¶ 16.) On
August 9, 2016, Mundinger told plaintiff that, if he were to give out mid-year performance
ratings, he would give plaintiff a rating of “meets requirements minus” or “needs improvement.”
(Id. ¶ 15.) Neither Mundinger nor anyone at Baxter threatened to fire plaintiff or place her on a
performance improvement plan, nor was plaintiff ever put on a performance improvement plan.
(Def.’s LR 56.1 Stmt. ¶¶ 52-53.)
On August 29, 2016, plaintiff notified Junkin by email that plaintiff intended to resign
from Baxter that day because of what plaintiff viewed as Mundinger’s retaliation for plaintiff’s
complaint against Merryman.
(Id. ¶ 73.)
Plaintiff submitted a resignation letter, citing
“retaliation . . . for reporting the physical altercation involving a long time Baxter employee.”
(Id. ¶ 74.) Plaintiff feared she was about to be fired and did not want a termination on her
record. (Pl.’s LR 56.1 Resp. ¶ 74.)
On April 6, 2017, plaintiff filed a charge of discrimination against Baxter before the
Equal Employment Opportunity Commission (“EEOC”), claiming to have been “constructively
discharged” in retaliation for complaining of “sexual harassment” and “wage discrimination for
her subordinates,” and she received a right to sue letter dated April 11, 2017. On July 11, 2017,
plaintiff filed this lawsuit.
ANALYSIS
To prevail on a summary judgment motion, “the movant [must] show[] that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if “the evidence is such
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that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The court will enter summary judgment against a party
who does not “come forward with evidence that would reasonably permit the finder of fact to
find in [its] favor on a material question.” Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir.
2013).
The Court construes all facts and draws all reasonable inferences in favor of the
nonmoving party. Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016).
Title VII makes it unlawful for an employer “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). “The ADEA makes it unlawful for an employer to . . .
discriminate against an individual ‘because of such individual’s age.’” Ripberger v. Corizon,
Inc., 773 F.3d 871, 880 (7th Cir. 2014) (quoting 29 U.S.C. § 623(a)(1)).
In addition, Title VII makes it unlawful for an employer to “discriminate against any of
his employees . . . because [the employee] has opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). Similarly, “[t]he ADEA
provides that it is ‘unlawful for an employer to discriminate against any of his employees . . .
because such individual . . . has opposed any practice made unlawful by this section.’” Horwitz
v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 612 (7th Cir. 2001) (quoting 29 U.S.C.
§ 623(d)). This type of discrimination is commonly known as “retaliation.” Tomanovich v. City
of Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006).
Based on the similarity of the language, courts have interpreted the anti-retaliation
provisions of Title VII and the ADEA to impose the same legal requirements, and they generally
assume that the reasoning of cases interpreting one statute will be equally applicable to the other.
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See, e.g., Nan Wei v. Deere & Co., 596 F. App’x 499, 501 (7th Cir. 2015); Gulliford v. Schilli
Transportation Servs., Inc., No. 4:15-CV-19-PRC, 2017 WL 6759135, at *11 (N.D. Ind. Jan. 5,
2017); EEOC v. Circuit City Stores, Inc., No. 02 C 4672, 2006 WL 1343173, at *4 (N.D. Ill.
May 11, 2006). This Court will do the same.
“A retaliation claim requires proof that the plaintiff suffered an adverse employment
action because of his statutorily protected activity; in other words, the plaintiff must prove [1]
that he engaged in protected activity and [2] suffered an adverse employment action, and [3] that
there is a causal link between the two.” Lord v. High Voltage Software, Inc., 839 F.3d 556, 563
(7th Cir. 2016).
Defendant argues that it is entitled to summary judgment because plaintiff neither
engaged in any protected activity nor suffered any materially adverse employment action.
I.
PROTECTED ACTIVITY
Plaintiff claims that defendant retaliated against her for complaining about three things:
(1) the incident in which Merryman grabbed her arm and shouted at her, (2) the offensive toy
bear given as a white elephant gift at the 2015 holiday party, and (3) the pay disparity between
Strollo and Cauliflower. Defendant argues that none of these things qualifies as an unlawful
employment practice about which plaintiff could complain.
Plaintiff need not demonstrate that any of these incidents revealed any actual violation of
Title VII or the ADEA. “In order to engage in protected conduct, [plaintiff] only has to show
that he reasonably believed in good faith [that] the practice he opposed violated” federal
employment discrimination law. See Tate v. Exec. Mgmt. Servs., Inc., 546 F.3d 528, 532 (7th
Cir. 2008). In its briefs, defendant cites Hamner v. St. Vincent Hospital & Health Care Center,
in which the Seventh Circuit explained this principle as follows:
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It is true that “our cases hold that an employee may engage in statutorily protected
expression under section 2000e-3(a) even if the challenged practice does not
actually violate Title VII.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1457
(7th Cir. 1994). It is sufficient if the plaintiff has a sincere and reasonable belief
that he is opposing an unlawful practice. Holland v. Jefferson Nat. Life Ins. Co.,
883 F.2d 1307, 1314 (7th Cir. 1989); see also Dey, 28 F.3d at 1458. That means,
for example, that even if the degree of discrimination does not reach a level
where it affects the terms and conditions of employment, if the employee
complains and the employer fires him because of the complaint, the retaliation
claim could still be valid.
224 F.3d 701, 706-07 (7th Cir. 2000) (internal citations altered) overruled on other
grounds by Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017). Thus, “[t]he
objective reasonableness of the belief is not assessed by examining whether the conduct was
persistent or severe enough to be unlawful, but merely whether it falls into the category of
conduct prohibited by the statute.” Magyar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 771
(7th Cir. 2008).
Plaintiff candidly admits that the Merryman incident had nothing to do with her age or
gender, so the Court agrees with defendant that this complaint is not protected activity. 1 The
other incidents are not as clear-cut. The toy bear gift, a single, isolated incident of vulgar and
tasteless but non-threatening behavior at a holiday party, is nowhere near severe enough to
establish a hostile work environment by itself, but under Hamner and Magyar, it is not whether
the complained-of conduct reaches the required level of severity that matters; it is whether it falls
into the category of conduct that the statute prohibits. The toy bear gift is certainly within the
range of behavior that could provide evidence of a hostile work environment, so it falls into the
category of conduct that the statute prohibits.
1
This is a potentially serious admission because, based on her own resignation letter and other evidence, plaintiff
appeared to believe that her complaint about the Merryman incident was the true cause of Mundinger’s alleged
animosity toward her, which, if true, would leave plaintiff unable to prove that protected activity actually caused
defendant to retaliate against her. But the Court need not concern itself with that issue at this stage, both because it
grants summary judgment on other grounds and because, even if the Court were to reach that issue, it would
conclude that it is better left for determination by a jury.
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The pay disparity between Strollo and Cauliflower also falls within the proper category
of conduct. Defendant argues that the pay disparity was justified by Strollo and Cauliflower’s
disparate education levels and job performance histories, but regardless of whether that argument
has merit, paying a younger and less experienced male employee more than an older and more
experienced female employee is at least the kind of conduct that might fall within the
prohibitions of Title VII and the ADEA.
Thus, with respect to the toy bear gift and the pay disparity, the Court does not find
defendant’s argument persuasive. Ultimately, however, it need not decide whether plaintiff
engaged in any protected activity. The Court will assume for purposes of this decision that she
did, but it makes no difference because the Court grants summary judgment on other grounds.
II.
MATERIALLY ADVERSE ACTION
Unlike their core discrimination provisions, the anti-retaliation provisions of Title VII
and the ADEA proscribe not only those discriminatory acts that affect the terms and conditions
of one’s employment, but also, more broadly, any action “that a reasonable employee would find
to be materially adverse such that the employee would be dissuaded from engaging in the
protected activity.” Roney v. Ill. Dep’t of Transp., 474 F.3d 455, 461 (7th Cir. 2007) (citing
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)); see also Morse v. Ill. Dep’t
of Corr., 191 F. Supp. 3d 848, 861 (N.D. Ill. 2015) (ADEA context). In assessing whether an
employer’s action meets this standard for material adversity, the Court’s inquiry is objective; it
“avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a
plaintiff’s unusual subjective feelings.”
Burlington, 548 U.S. at 68-69.
The Court must
“separate significant from trivial harms” because “an employee’s decision to report
discriminatory behavior cannot immunize that employee from those petty slights or minor
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annoyances that often take place at work and that all employees experience,” which are unlikely
to “‘to deter victims of discrimination from complaining to the EEOC,” the courts, and their
employers.” Id. at 68 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)); see also id.
(“Title VII . . . does not set forth ‘a general civility code for the American workplace.’”) (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)); Haywood v. Lucent Techs.,
Inc., 323 F.3d 524, 532 (7th Cir. 2003), overruled on other grounds by Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) (“[M]ere unhappiness and inconvenience are not
actionable under Title VII.”); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (“[N]ot
everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor
and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like
would form the basis of a discrimination suit.”) (internal quotation marks omitted).
Defendant argues that it is entitled to summary judgment because its actions do not
amount to a constructive discharge. A constructive discharge occurs when “the plaintiff shows
that [she] was forced to resign because [her] working conditions, from the standpoint of the
reasonable employee, had become unbearable,” either because (1) her employer subjected her to
“discriminatory harassment . . . even more egregious than that required for a hostile work
environment claim,” or (2) her employer “act[ed] in a manner so as to have communicated to a
reasonable employee that she will be terminated.” Chapin v. Fort-Rohr Motors, Inc., 621 F.3d
673, 679 (7th Cir. 2010) (internal quotation marks omitted). The Court agrees with defendant
that plaintiff’s working conditions were not so unbearable as to meet either prong of this test.
Even viewing all the evidence in the light most favorable to plaintiff, she suffered, at most, the
sort of “petty slights or minor annoyances,” Burlington, 548 U.S. at 68, that are common in the
workplace, not egregious harassment. See Chapin, 621 F.3d at 679. Further, considering that
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plaintiff had received fair performance ratings and not been placed on a performance
improvement plan, a reasonable employee in plaintiff’s position would not believe that she was
in any danger of imminent termination. See id. at 679-81.
Plaintiff does not seriously argue otherwise, nor must she. A constructive discharge is
just one of many types of materially adverse actions that might satisfy Title VII or the ADEA’s
retaliation provisions. The critical question is not whether defendant constructively discharged
plaintiff by making her conditions of employment unbearable; plaintiff need only clear the lower
bar of demonstrating whether a reasonable employee would find defendant’s actions materially
adverse, such that an employee in plaintiff’s position would be dissuaded from complaining
about unlawful employment practices in the future.
In her brief, plaintiff recounts a number of allegedly retaliatory acts, including hostility
from the IC department, a performance review that was not as laudatory as plaintiff felt she
deserved, 2 threats of changed responsibilities, occasional reprimands, increased scrutiny,
disparaging comments from inside and outside her department, and denial of her applications to
transfer to other departments. (Pl.’s Mem. in Opp’n at 2-3, ECF No. 74.)
These actions do not meet the material adversity standard, either separately or in
combination. Even giving plaintiff a poor performance review, or placing her on a performance
improvement plan, would likely not be severe enough, by itself, to be materially adverse. See
Smart, 89 F.3d at 442; see also Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010)
(“[T]his Court has previously held that unfair reprimands or negative performance evaluations,
unaccompanied by some tangible job consequence, do not constitute adverse employment
2
In her brief, plaintiff claims that when she complained about this review, Mundinger told her she should “look for
a role outside the company (Pl.’s Mem. in Opp’n at 2, ECF No. 74), but at her own deposition she admitted that
what he told her was, “well, Donna, if you’re not happy with the review, then maybe you need to look outside
Baxter.” (Pl.’s Dep. at 167:5-7, ECF No. 71-1 (emphasis added).)
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actions.”) (internal quotation marks omitted); Cole v. Illinois, 562 F.3d 812, 816-17 (7th Cir.
2009) (placing plaintiff on “employee improvement plan” that required him to submit daily and
weekly schedules to supervisors not materially adverse action) (citing cases); cf. Benuzzi v. Bd.
of Educ. of City of Chi., 647 F.3d 652, 665 (7th Cir. 2011) (recognizing that written warnings are
not usually materially adverse, but holding that plaintiff raised fact issue on material adversity
where her written warnings concerned petty misdeeds that occurred months earlier and were
coupled with restrictions on her access to her workplace).
Plaintiff was not placed on a
performance improvement plan at all, nor was she threatened with one, and, although she felt her
performance was underrated, the performance reviews that upset her were good or, at worst,
lukewarm, not negative. See Szymanski v. Cty. of Cook, 468 F.3d 1027, 1030 (7th Cir. 2006)
(former employer’s reference is not materially adverse employment action if it rates plaintiff’s
abilities as either “good” or “fair”).
Nor is the fact that plaintiff felt an atmosphere of tension hanging over her working
environment, in addition to the criticism from her supervisor, enough to get plaintiff’s claim over
the summary judgment hump. See Jones, 613 F.3d at 671 (“[C]orrective action alone does not
rise to the level of an adverse employment action[, and a] plaintiff’s [simultaneous,] subjective
determination of tension in the workplace, without more, cannot constitute an adverse
employment action absent a tangible job consequence.”); Mlynczak v. Bodman, 442 F.3d 1050,
1061 (7th Cir. 2006) (negative performance appraisals combined with conflict with supervisor
and shunning by co-workers not adverse action); see also Brown v. Advocate S. Suburban Hosp.,
700 F.3d 1101, 1107 (7th Cir. 2012) (neither getting a “cold shoulder” from the supervisor nor
being called a “trouble maker,” “cry baby,” or “spoiled child” is materially adverse). Ultimately,
all of the alleged retaliatory acts of which plaintiff complains fall in to the category of those
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“minor . . . employment actions,” Smart, 89 F.3d at 441, that amount to “petty slights or minor
annoyances,” Burlington, 548 U.S. at 68, or cause “mere unhappiness and inconvenience,”
Lucent, 323 F.3d at 532, which lie beyond the reach of the anti-retaliation provisions of federal
employment discrimination law.
The Court is unable to identify any action defendant took against plaintiff that would
qualify as materially adverse. Summary judgment for defendant is therefore appropriate. The
Court need not consider whether plaintiff has adduced sufficient evidence of the causation
element of her retaliation claim because she is unable to establish that she suffered a materially
adverse action.
CONCLUSION
For the reasons set forth above, defendant’s motion for summary judgment [69] is
granted. Civil case terminated.
SO ORDERED
ENTERED: March 27, 2019
______________________
HON. JORGE L. ALONSO
United States District Judge
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