McDaniel v. Elgin
Filing
96
OPINION AND ORDER granting 74 Motion for Summary Judgment; granting 90 Motion for Summary Disposition. Signed by Magistrate Judge Andrew P Rodovich on 10/19/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GARY McDANIEL,
Plaintiff
v.
MARY ELGIN, Calumet Township
Trustee; INDIANA DEPARTMENT OF
WORKFORCE DEVELOPMENT,
Defendants
)
)
)
)
)
)
)
)
)
)
)
CIVIL NO. 2:09 cv 119
OPINION AND ORDER
This matter is before the court on the Motion for Summary
Judgment [DE 74] filed by the defendant, Mary Elgin, on August
15, 2011, and the Motion for Summary Disposition Regarding
Defendant’s Motion for Summary Judgment [DE 90] filed by defendant Elgin on October 5, 2011.
Because the plaintiff, Gary
McDaniel, did not respond to Elgin’s motion for summary judgment
and the time to do so has since passed, the Motion for Summary
Disposition Regarding Defendant’s Motion for Summary Judgment [DE
90] is GRANTED.
For the reasons set forth below, the Motion for
Summary Judgment [DE 74] also is GRANTED.
Background
The plaintiff, Gary McDaniel, began working in the office of
the Calumet Township Trustee in November 1997, serving under
Dozier Allen.
Trustee.
In 2003, Mary Elgin became the Calumet Township
During Elgin’s tenure, McDaniel reported to several
different supervisors.
In 2004, Rose Curtis and JoAnn Robinson
were McDaniel’s supervisors and were responsible for assigning
McDaniel tasks.
Cora Harris, Dectrick Raspberry, Marsha Moore,
Phyllis Harvey, and Magnolia Lewis supervised McDaniel from
January 2007 through October 2008.
McDaniel’s supervisors
reported to the Chief Deputy, Donna Frazier, and Frazier and all
other township employees reported to Elgin.
The Calumet Township Trustees Office was responsible for
providing temporary and emergency assistance to township residents.
A service investigator was assigned to each application
for assistance.
The investigator was required to interview and
investigate the application to determine if the applicant was
eligible for assistance.
A service investigator supervisor had
to approve the applicant’s request for relief assistance and was
responsible for supervising the daily activities of service
investigators.
However, the service investigator supervisors did
not have the authority to hire, fire, promote, or demote employees.
Elgin was the only official with this authority.
From January 2003 to October 2008, McDaniel was assigned to
the south office and worked at a desk located in an open floor
area.
McDaniel was responsible for confirming and verifying
applicants’ information and was required to leave the office
periodically.
In December 2003, Clarence Colby, the deputy over
2
McDaniel’s department, disciplined him for being tardy and
falsifying an attendance report and recommended his termination.
McDaniel said that he did not intend to falsify his attendance
record, and Frazier rejected Colby’s recommendation to terminate
McDaniel.
Frazier reprimanded McDaniel and assigned him to the
General Assistance Department at the south office as a service
investigator.
McDaniel was disciplined numerous times throughout his
employment as a service investigator.
In 2004, Curtis, Lewis,
and Robinson recommended that McDaniel be reprimanded because he
failed to follow office procedure with regard to an applicant’s
request for rental assistance, violated office policies and
procedures, and approved township assistance for an ineligible
applicant.
Harvey also recommended that McDaniel be reprimanded
due to unsatisfactory work and absenteeism.
In 2004, McDaniel
was docked approximately 44 hours pay over four pay periods for
excessive absenteeism, and in 2007, he was docked approximately
37 hours for absenteeism.
Harvey again cited McDaniel for
absenteeism in September 2006 and in November 2006.
Robinson
issued an oral reprimand notice because McDaniel failed to follow
procedures.
Frazier denied McDaniel a promotion to general
assistance supervisor in February 2007.
McDaniel again was
disciplined for failing to follow procedures in June 2007, and
3
that same month, Lewis recommended the issuance of a written
reprimand but it later was changed to an oral reprimand.
McDaniel also received poor reviews in 2006 and 2008, indicating that improvement was needed.
He received low marks for
quality of work, interpersonal skills, initiative, flexibility,
and attendance.
On January 9, 2008, McDaniel reported to Lewis that he felt
that Harvey was trying to single him out for no reason.
Lewis
confronted Harvey, and she responded that she thought McDaniel
did not respect her.
Lewis made a written report and held a
meeting on January 10, 2008, with Harvey, McDaniel, and Harris.
McDaniel did not raise any allegations of sexual harassment
against Harvey in his complaint to Lewis or in the meeting.
Following this meeting, Harvey questioned McDaniel about two
applications for assistance.
McDaniel told Harvey that she was
"starting to get on [his] nerves."
(Deft. Exh. T44 p. 6)
Harvey
reported the incident to Frazier.
McDaniel continued to get reprimanded from other supervisors.
In June 2008, Harris issued an oral reprimand notice, and
Moore reprimanded McDaniel for approving payment of an ineligible
applicant’s NIPSCO bill.
McDaniel again was docked pay over four
pay periods for excessive absenteeism.
4
McDaniel filed a charge of discrimination with the Gary
Human Relations Commission on January 14, 2008.
In his charge,
McDaniel alleged that he was sexually harassed.
The EEOC charge
was investigated by the Gary Human Relations Commission and the
Equal Employment Opportunity Commission.
Elgin had no knowledge
of the allegations of sexual harassment until McDaniel filed the
charge with the EEOC.
McDaniel gave oral notice to Elgin on
January 16, 2008, and written notice on January 17, 2008.
Elgin began investigating the charge immediately after
receiving notice.
She concluded that Harvey did not harass
McDaniel and that any friction between the two related to legitimate employment matters.
Elgin’s investigation revealed that
McDaniel never reported the sexual harassment to his supervisor,
although he reported other behavior.
McDaniel told Elgin that
Harvey asked him out to dinner and that he continually suffered
from job harassment and intimidation beginning in February 2007.
However, McDaniel did not report the harassment because he "had
other priorities."
McDaniel also reported that Harvey gave him
too many service slips.
Harvey would rush service slips to him,
which he viewed as harassment, though not of a sexual nature.
However, it was common practice and appropriate for supervisors
to pass out service slips.
Elgin offered to transfer Harvey to
another office, but he refused because he did not own a car.
5
In his charge filed with the Gary Human Relations Commission, McDaniel cited four incidents of sexual harassment that
McDaniel did not report to Elgin during her investigation.
First, McDaniel alleges that Harvey grabbed him, hugged him,
kissed his ear and neck, felt between his legs, and reached for
his zipper in February 2007.
Second, he stated that Harvey was
waiting to say something to him at the 2007 Christmas party,
although he was trying to avoid her.
His third allegation was
that Rosemary Rodriguez witnessed Harvey rubbing between his legs
and trying to kiss him.
me, I’ll come to you.
Harvey told him, "If you don’t come to
You can’t get away from me."
Finally,
McDaniel alleges that Harvey grabbed his buttocks and tried to
rub it up.
McDaniel identified several co-workers and supervisors who
he believed witnessed the harassment. McDaniel first reported
that Raspberry witnessed McDaniel refusing to go into Harvey’s
office.
Raspberry has denied ever observing this behavior, nor
did he observe any acts of sexual harassment by Harvey.
Other
employees in the south office also have denied ever observing
Harvey sexually harassing McDaniel, nor do they believe Harvey
called McDaniel into her office more often than she called other
employees.
McDaniel identified Rodriguez as a witness to Harvey
kissing him and rubbing his crotch.
6
Rodriguez testified that she
never saw these events and that McDaniel never told her that
Harvey wanted to make out with him, that Harvey liked him, or
that Harvey sexually harassed him.
In fact, Rodriguez was on
sick leave the day Harvey allegedly rubbed McDaniel’s crotch and
kissed him.
Rodriguez also testified that Harvey did not pass
over other service providers to hand out service slips to
McDaniel.
Elgin employed an anti-discrimination policy that prohibited
sexually harassing or offensive conduct in the work place.
The
policy outlined the type of conduct prohibited and the punishment
for any such behavior.
The policy directed an employee who was
subjected to unwelcome harassment to report the conduct immediately.
McDaniel received a copy of the policy in September 2005,
but he did not report the harassment.
McDaniel ultimately was fired in October 2008, due to
budgetary constraints and the south office closing.
Indiana issued a mandate that reduced funding.
The State of
The plan to
reduce the workforce was created in reaction to the mandate and
was approved in July 2008.
At that time, Frazier and Gloria
Jones began to review employees’ personnel files and analyzed
their job performances to identify the employees who should be
terminated.
Elgin evaluated Frazier and Jones’ recommendation
7
and McDaniel’s performance record when deciding to terminate his
employment.
The EEOC and Gary Human Relations Commission investigated
the charge and issued McDaniel a notice of dismissal and right to
sue.
McDaniel filed his pro se complaint on April 28, 2009.
McDaniel alleges that he was sexually harassed, he was fired in
retaliation for filing a charge of discrimination with the EEOC
and participating in another employee's, Velia Taneff, federal
case, and that his termination was politically motivated because
he refused to purchase tickets to political fundraisers.
McDan-
iel subsequently hired an attorney, but his attorney did not file
an amended complaint.
Elgin filed a motion for summary judgment on August 15,
2011.
After being denied a request for an extension of time,
McDaniel was ordered to submit his response by September 30,
2011.
No response was filed.
Discussion
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper only if it is demonstrated that "there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law."
Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).
8
The burden is upon the moving party to establish that no material
facts are in genuine dispute, and any doubt as to the existence
of a genuine issue must be resolved against the moving party.
Adickes v. S.H. Kress & Company, 398 U.S. 144, 160, 90 S.Ct.
1598, 1610, 26 L.Ed.2d 142, 155 (1970); Stephens, 569 F.3d at
786.
A fact is material if it is outcome determinative under
applicable law.
There must be evidence on which the jury reason-
ably could find for the nonmoving party.
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d
202, 212 (1986); Stephens, 569 F.3d at 786; Wheeler v. Lawson,
539 F.3d 629, 634 (7th Cir. 2008).
Summary judgment is inappropriate for determination of
claims in which issues of intent, good faith, and other subjective feelings play dominant roles.
781, 784 (7th Cir. 2006).
Ashman v. Barrows, 438 F.3d
Upon review, the court does not evalu-
ate the weight of the evidence, judge the credibility of witnesses, or determine the ultimate truth of the matter; rather,
the court will determine whether there exists a genuine issue of
triable fact.
Wheeler, 539 F.3d at 634 (citing Anderson, 477
U.S. at 248, 106 S.Ct. at 2510).
In deciding a motion for summary judgment, the trial court
must determine whether the evidence presented by the party
opposed to the summary judgment is such that a reasonable jury
9
might find in favor of that party after a trial.
The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial--whether, in other words,
there are any genuine factual issues that
properly can be resolved only by a finder of
fact because they may reasonably be resolved
in favor of either party.
[T]his standard mirrors the standard for a
directed verdict under Federal Rule of Civil
Procedure 50(a), which is that the trial
judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict.
Anderson, 477 U.S. at 250, 106 S.Ct. at 2511
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
149-151, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105, 120-122 (2000)
(setting out the standard for a directed verdict); Celotex Corp.,
477 U.S. at 322-23, 106 S.Ct. at 2553; Stephens, 569 F.3d at 786;
Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)
(stating that a genuine issue is one on which a reasonable fact
finder could find for the nonmoving party); Springer v. Durfling-
er, 518 F.3d 479, 483 (7th Cir. 2008)(stating that a genuine
issue exists and summary judgment is inappropriate if there is
sufficient evidence for a jury to return a verdict for the
nonmoving party).
Elgin attempts to attack McDaniel’s complaint by going
through each statement, whether a fact or allegation, as though
each were an individual claim for relief.
10
For example, McDan-
iel’s complaint states that Elgin and Harvey were shopping
buddies.
Elgin treats this statement as a separate claim for
relief rather than a fact tending to show that Elgin favored
Harvey.1
After sifting through McDaniel’s complaint, the court
has deciphered five potential claims.
McDaniel alleges that he
was subject to sexual harassment, was discriminated against on
the basis of his gender, was terminated in retaliation for filing
a charge with the EEOC, was terminated in retaliation for assisting with Taneff’s federal law suit, and was terminated for political reasons in violation of his constitutional rights.2
See
Pltf. Compl. p. 6 ("My job was taken away due to retaliation &
political reason due to my filing the sex discrimination charge &
my friendship with V. Tariff [sic] which the Trustee Mary Elgin
hate." [sic]).
McDaniel’s complaints of sexual harassment, sexual discrimination, and termination in response to filing a charge of discrimination with the EEOC and participating in Taneff’s suit
1
To the extent Elgin is trying to argue that these facts cannot be used
to substantiate McDaniel’s complaint because they were not alleged or reasonably related to the EEOC charge, McDaniel was not required to set forth all of
his factual allegations in the EEOC charge. At that time McDaniel was proceeding pro se and was held to a more liberal standard. See Hanna v. Brown,
1995 WL 103789, *2 (N.D. Ill. 1995).
2
Although McDaniel filed his complaint pro se, he later retained an
attorney. Therefore, his complaint is no longer entitled to a liberal
interpretation. See Hanna, 1995 WL 103789 at *2.
11
arise under Title VII.
The court will address these issues in
turn.
McDaniel’s predominate complaint is that he was sexually
harassed by Harvey and subjected to a hostile work environment.
Although Elgin first opposes as untimely the introduction of
certain evidence supporting McDaniel’s claim for sexual harassment, the court will pretermit this argument because McDaniel’s
claim fails irrespective of the evidence he is permitted to
introduce in support of his complaint of sexual harassment.
Title VII provides that it is 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 . . . sex."
42 U.S.C. §2000e-2(a)(1). See also Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 63, 106 S.Ct. 2399,
2404, 91 L.Ed.2d 49 (1986).
Included in this "spectrum" is a
prohibition against "requiring people to work in a discriminatorily hostile or abusive environment."
Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d
295 (1993).
Thus, "[w]hen the workplace is permeated with dis-
criminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,
12
Title VII is violated."
Harris, 510 U.S. at 21, 114 S.Ct. at 370
(quotation marks and citations omitted).
To establish that he was subjected to a hostile work environment, a complainant must show that
(1) [he] was subjected to unwelcome sexual
advances in the form of requests for sexual
favors or other verbal or physical conduct of
a sexual nature; (2) the harassment was based
on [his] sex; (3) the sexual harassment had
the effect of unreasonably interfering with
[his] work performance in creating an intimidating, hostile, or offensive working environment that affected seriously the psychological well being of the plaintiff; and (4)
there is a basis for employer liability.
Romansizak-Sanchez v. International Union of
Operating Engineers, Local 150, AFL-CIO, 121
Fed. Appx. 140, 144-45 (7th Cir. 2005)(quoting Hall v. Bodine Electric Company, 276 F.3d
345, 354-55 (7th Cir. 2002)
See also Rhodes v. Illinois Department of Transportation, 359
F.3d 498, 505 (7th Cir. 2004).
A work environment must be both
subjectively and objectively offensive in order to be hostile.
Rhodes, 359 F.3d at 505 (quoting Hilt-Dyson v. City of Chicago,
282 F.3d 456, 463 (7th Cir. 2002)).
Whether an environment is
objectively hostile depends on "all of the circumstances, including the frequency and severity of conduct, whether it is threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interfered with an employee’s work performance."
Romansizak-Sanchez, 121 Fed. Appx. at 145 (quoting Smith v.
13
Northeastern Illinois University, 388 F.3d 559, 566 (7th Cir.
2004)).
See also Wyinger v. New Venture Gear, Inc., 361 F.3d
965, 975-76 (7th Cir. 2004).
In determining whether harassment is "based on sex" in the
context of a hostile environment claim, "[t]he critical issue
. . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the
other sex are not exposed." Oncale v. Sundowner Offshore Ser-
vices, 523 U.S. 75, 80, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201
(1998).
See also Hilt-Dyson, 282 F.3d at 462-63.
In other
words, "an employer cannot be held liable for creating or condoning a hostile working environment unless the hostility is motivated by gender." Berry v. Delta Airlines, Inc., 260 F.3d 803,
808 (7th Cir. 2001).
See also Oncale, 523 U.S. at 80, 118 S.Ct.
at 1002 (Ginsburg, J., concurring) (noting that although harassment "need not be motivated by sexual desire," it must be "clear
that the harasser is motivated by general hostility to the
presence of" a particular gender). Thus, the simple fact that a
victim is female does not satisfy the requirement that the
harassment she experienced is based on her sex.
See Herron v.
Daimlerchrysler Corporation, 388 F.3d 293, 303 (7th Cir. 2004)
(finding that the plaintiff's membership in a protected class
"does not transform" harassment related to him into harassment
14
related to his race).
In particular, harassment based on the
fact that the victim had jilted the harasser romantically does
not fall under the purview of Title VII protection.
See Hueb-
schen v. Department of Health and Social Services, 716 F.2d 1167,
1172 (7th Cir. 1983).
In addition to establishing that the harassment is based on
sex, McDaniel must establish employer liability. See Romansizak-
Sanchez, 121 Fed. Appx. at 144-45.
If the harasser is a supervi-
sor, the employer is strictly liable subject to an affirmative
defense if the harassment does not result in a tangible employment action.
See Vance v. Ball State University, 646 F.3d 461,
469-70 (7th Cir. 2011); Rhodes, 359 F.3d at 505.
A supervisor is
someone with the power to affect directly the terms of employment, including the right to hire, fire, transfer, demote,
promote, or discipline.
Vance, 646 F.3d at 470.
"We have not
joined other circuits in holding that the authority to direct an
employee's daily activities establishes supervisory status under
Title VII."
Vance, 646 F.3d at 470.
Nor does the right to
control daily activities coupled with the right to input on
performance reviews and train the harassee render someone a
supervisor under Title VII.
Hall, 276 F.3d at 355.
The harass-
ing individual must have the power to affect the victim’s employment.
Vance, 646 F.3d at 470.
15
If the harasser is not a supervisor, then McDaniel must
show that his employer was negligent in failing to discover or
remedy any harassment.
Vance, 646 F.3d at 470; Loughman v.
Malnati Organization, Inc., 395 F.3d 404, 407 (7th Cir. 2005);
Rhodes, 359 F.3d at 505.
Under the negligence standard for
coworker harassment, the court must look at the employer's total
response to the alleged harassment.
McKenzie v. Illinois Depart-
ment of Transportation, 92 F.3d 473, 480 (7th Cir. 1996).
An
employer only is liable "if the employer knew or should have
known about the coworker's acts of harassment and fails to take
appropriate remedial action."
Berry, 260 F.3d at 811 (alter-
ation, citation, and quotations omitted).
See also Cardenas v.
Frito-Lay, Inc., 2002 WL 32357082, *5 (W.D. Wis. Sept. 30, 2002).
Remedial action is appropriate if it is prompt and reasonably
calculated to end the harassment under the particular circumstances of the case, although the employer's liability does not
hinge on the actual cessation of harassment. See Berry, 260 F.3d
at 811; McKenzie, 92 F.3d at 480; Saxton v. American Telephone
and Telegraph Company, 10 F.3d 526, 536 (7th Cir. 1993).
In
addition, the victim's expectations of behavior by his employer
have no bearing on the negligence analysis.
See Cardenas, 2002
WL 32357082 at *7 ("Plaintiff might disagree with how certain
aspects of the investigation and response were handled, but . . .
16
this is legally irrelevant."); Motley v. Tractor Supply Company,
32 F.Supp.2d 1026, 1050-51 (S.D. Ind. 1998)("Just because an
employee expected more from the employer, or a different response, does not mean that the employer failed to take appropriate remedial action, once it was on notice of the problem."). See
also Saxton, 10 F.3d at 535.
Although Harvey was termed a supervisor, the record reflects
that she did not have the type of authority necessary to qualify
as a supervisor within the meaning of Title VII.
Harvey was
responsible for assigning and supervising McDaniel’s daily tasks,
but she did not have the authority to affect his employment
directly.
She could not fire, demote, or discipline McDaniel.
At his deposition, McDaniel acknowledged that only Elgin had the
authority to fire, promote, demote, discipline, or suspend him.
Although Harvey allegedly threatened to fire McDaniel if he did
not succumb to her advances, McDaniel was aware that Harvey did
not have the authority to follow through with her threat.
Absent
the authority to influence McDaniel’s employment directly, Harvey
was not a supervisor within the meaning of Title VII.
Therefore,
the court must determine whether Elgin was negligent in discovering or rectifying the harassment.
See Hall, 276 F.3d at 355
(finding that harasser was not a supervisor even though he had
the authority to assess the plaintiff’s work, provided input on
17
her performance reviews, and trained the plaintiff and other less
experienced employees).
The employer is not charged with knowledge of impropriety
committed by every employee.
"[N]otice or knowledge of the
harassment is a prerequisite for liability in coemployee harassment cases."
Hall, 276 F.3d at 355.
The court begins this
analysis by considering whether the employer had a designated
channel for complaints of harassment or whether the notice was
received by someone the complainant reasonably believed could
receive and forward complaints.
The employee must set forth
enough information in the notice to make the reasonable employer
believe harassment may have occurred.
Once the employer has
knowledge of the harassment, the employer is relieved of liability if it takes reasonable steps to discover and rectify the acts
of sexual harassment.
Hall, 276 F.3d at 356.
Elgin gave the employees a handbook containing a sexual
harassment policy in September 2005.
The handbook directed the
employees to report sexual harassment as soon as possible and set
forth the ramifications for harassing a co-worker or subordinate.
McDaniel did not follow the handbook.
He first gave notice of
the harassment over two years after it began and after he filed a
charge with the EEOC.
McDaniel first gave oral notice on January
16, 2008, and written notice on January 17, 2008.
18
Elgin immedi-
ately began investigating the claim on January 18, 2008.
By this
time the harassment had ceased.
Because Elgin had a policy and was not notified of the
harassment, she was not negligent for failing to discover the
harassment sooner.
McDaniel acknowledged that he received and
was aware of the sexual harassment policy.
However, McDaniel
chose not to follow the appropriate channels.
Elgin cannot be
charged with knowledge of the co-worker harassment unless McDaniel followed the policy and notified someone of the harassment.
See Hall, 276 F.3d at 356.
Elgin was not responsible for moni-
toring every interaction among co-workers.
Therefore, Elgin
acted appropriately under the circumstances.
The more important question is whether Elgin was negligent
in rectifying the harassment once she was apprised of it.
The
reasonableness of the employer’s response depends on the severity
of the harassment and how much the employer knows about the
alleged harassment.
Fuller v. Caterpillar, Inc., 124 F.Supp.2d
610, 615 (N.D. Ill. 2000).
"In general, an employer fails to act
reasonably when it unduly delays taking remedial action, or when
the action it does take is not reasonably likely to prevent
continued harassment."
Fuller, 124 F.Supp.2d at 615.
The test
is not whether the remedial action succeeded, but whether the
19
employer’s response was reasonable under the circumstances.
McKenzie, 92 F.3d at 480.
Elgin immediately began to investigate the charge.
a meeting with McDaniel on January 18, 2008.
She held
McDaniel told Elgin
that Harvey asked him to dinner and that the harassment and
intimidation began in February 2007.
He claimed that Harvey
would harass him on the floor during work hours, constantly
called him into her office, and at the Christmas party she
touched him and asked if he wanted to take some food home.
Harvey denied the charges.
Elgin also interviewed other employ-
ees who McDaniel identified as having knowledge of the incidents.
The employees denied observing harassment and did not believe
Harvey called McDaniel into her office more than others or that
she assigned him more service slips.
with Harvey and McDaniel.
Elgin then held a meeting
At the meeting, McDaniel’s complaints
were limited to job related disagreements, including Harvey
leaving slips on his desk, complaining about his work, and coming
out onto the floor where he worked.
Elgin’s investigation did not reveal the type of pervasive
misconduct that McDaniel now alleges. McDaniel’s chief complaints
during the investigation concerned the assignment of service
slips, Harvey’s criticism of his work, and feeling uncomfortable.
Beyond his complaint that Harvey touched him at the Christmas
20
party to ask if he wanted to take food home and his broad allegations of harassment, he did not cite one incident that was sexual
in nature.
Notice of conduct that is not sexual in nature, such
as a personality conflict, does not trigger the employer’s duty
Zimmerman v. Cook County Sheriff’s Dept., 96 F.3d
to respond.
1017, 1018 (7th Cir. 1996) (explaining that notice of a personality conflict did not put employer on notice of sexual harassment).
Because the extent of sexual harassment was not confirmed
by Elgin’s investigation, Elgin acted reasonably under the circumstances by offering to transfer McDaniel.
See Zimmerman, 96
F.3d at 1018; Fuller, 124 F.Supp.2d at 616 (finding that employer
acted reasonably by promptly investigating the complaint, informing employees of the harassment policy, and moving the plaintiff’s desk).
In light of the absence of sexual harassment
revealed by the investigation, Elgin could not have been expected
to do more.
Elgin’s motion for summary judgment is GRANTED on
this issue.
McDaniel also alleges that he was terminated and denied a
promotion and wage increase.
It is not clear from McDaniel’s
complaint why he believes these actions were taken.
However,
McDaniel checked the box on the EEOC charge for gender discrimination.
To the extent he believes these actions were the result
21
of gender discrimination, his claim cannot be sustained under
Title VII or 42 U.S.C. §1983.
Title VII enables a plaintiff to prove discrimination by
direct evidence of discriminatory intent or, where no direct
evidence exists, by using the indirect-burden shifting method
established in McDonnell Douglas Corporation v. Green, 411 U.S.
792, 802-805, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and
refined in Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253, 101 S.Ct. 1089, 1092, 67 L.Ed.2d 207 (1981).
See
Moser v. Indiana Department of Corrections, 406 F.3d 895, 900-01
(7th Cir. 2005).
The direct method requires the plaintiff to
show through either direct or circumstantial evidence that the
employer's adverse employment action was impermissibly motivated.
Wilkins v. Riveredge Hospital, 130 Fed. Appx. 823, 828 (7th Cir.
2005).
The most general statement of the McDonnell Douglas method
of proof is that the plaintiff has the initial burden of showing
that: 1) he belongs to a protected group; 2) he was performing to
the employer’s legitimate expectations; 3) he suffered an adverse
employment decision; and 4) the employer treated similarly situated employees who are not in the protected group more favorably.
See Moser, 406 F.3d at 900; O'Neal v. City of Chicago, 392 F.3d
909, 911 (7th Cir. 2004); Williams v. Waste Management of Illi-
22
nois, Inc., 361 F.3d 1021, 1029 (7th Cir. 2004).
This framework
is flexible and may be adapted to fit each case.
Burdine, 450
U.S. at 253 n.6, 101 S.Ct. at 1094 n.6; Wohl v. Spectrum Manufac-
turing, Inc., 94 F.3d 353, 359 (7th Cir. 1996).
Title 42 U.S.C. §1983 entails a similar analysis for establishing gender discrimination.
To state a prima facie case under
§1983, the plaintiff must prove that "(1) [he] is similarly
situated to members of the unprotected class; (2) [he] was treated differently from members of the unprotected class; and (3) the
defendant acted with discriminatory intent."
Kehrer v. City of
Springfield, 104 F.Supp.2d 1001, 1008 (citing Johnson v. City of
Fort Wayne, 91 F.3d 922, 944–45 (7th Cir. 1996)).
"To establish
liability under either §1983 or Title VII, plaintiff must demonstrate that her sex was a motivating factor in defendants' decisions regarding her employment.”
Sullivan v. Village of McFar-
land, 457 F.Supp.2d 909, 915 (W.D. Wis. 2006) (citing Venters v.
City of Delphi, 123 F.3d 956, 973 n.7 (7th Cir. 1997)).
See also
Hoskins v. City of Milwaukee, 259 Fed. Appx. 868, 870 (denying
gender discrimination claim under §1983 because plaintiff did not
show that similarly situated females were treated more favorably).
Once the plaintiff has met this initial burden, "a presumption of discrimination arises, and the employer must articulate a
23
legitimate, nondiscriminatory reason for its employment action."
Moser, 406 F.3d at 895; O'Neal, 392 F.3d at 911.
The defendant’s
burden is not one of persuasion, but rather of production and
"can involve no credibility assessment."
St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 2748, 125 L.Ed.2d
407 (1993); Reeves, 530 U.S. at 142, 120 S.Ct. at 2106.
The
burden then shifts back onto the plaintiff to show that the
reason given by the defendant is just a pretext for discrimina-
Moser, 406 F.3d at 900-01. The plaintiff cannot establish
tion.
pretext merely by showing that the "reason was doubtful or mistaken."
Crim v. Board of Education of Cairo School District No.
1, 147 F.3d 535, 541 (7th Cir. 1998).
Rather, the plaintiff must
show that the employer is lying or that the employer’s reasoning
has no basis in fact.
Guerrero v. Ashcroft, 253 F.3d 309, 313
(7th Cir. 2001); Ransom v. CSC Consulting, Inc., 217 F.3d 467,
471 (7th Cir. 2000); Crim, 147 F.3d at 541.
Despite the shifting burden of production, the ultimate
burden of persuasion remains at all times with the plaintiff.
Moser, 406 F.3d at 901; Haywood v. Lucent Technologies, Inc., 232
F.3d 524, 531 (7th Cir. 2003); Stockett v. Muncie Indiana Transit
System, 221 F.3d 997, 1001 (7th Cir. 2000).
A plaintiff alleging
discrimination, however, has a lesser burden when proceeding on a
summary judgment motion.
In Anderson v. Baxter Healthcare Corp.,
24
13 F.3d 1120 (7th Cir. 1994), the Seventh Circuit stated:
Both McDonnell Douglas and [St. Mary’s Honor
Center v. Hicks, 509 U.S. at 507, 113 S.Ct.
at 2747] speak to the burden the plaintiff
bears at trial. However, for summary judgment purposes, the nonmoving party, in this
case the plaintiff, has a lesser burden. He
must only "produce evidence from which a
rational fact-finder could infer that the
company lied" about its proffered reasons for
dismissal.
13 F.3d at 1124 (quoting Shager v. Upjohn,
913 F.2d 398, 401 (7th Cir. 1994))
See also Plair v. E.J. Brach & Sons, Incorporated, 105 F.3d 343,
349 (7th Cir. 1997); Cliff v. Board of School Commissioners of
the City of Indianapolis, Indiana, 42 F.3d 403, 412 (7th Cir.
1994).
If the plaintiff is unable to meet his burden, his claims
must fail.
Based on the record, McDaniel cannot make a prima facie
showing of gender discrimination.
Not only has he failed to show
that he was performing at his employer’s reasonable expectations,
a claim that is contrary to the performance reviews of record, he
also has failed to show that Elgin treated similarly situated
female employees more favorably.
The evidence of record shows that McDaniel was performing at
an unsatisfactory level.
McDaniel was evaluated by multiple
supervisors and received sub-par reviews from each supervisor.
The reviews reflect excessive absenteeism, for which McDaniel was
25
punished, and unsatisfactory job performance.
McDaniel has not
come forth with any evidence to contradict this and create a
genuine issue of material fact that he was meeting his employer’s
reasonable expectations.
See Coco v. Elmwood Care, Inc., 128
F.3d 1177, 1180 (7th Cir. 1997) (finding that the plaintiff
failed to demonstrate that he met the employer’s legitimate
employment expectations).
McDaniel attempted to identify similarly situated employees
who he believed were treated more favorably by explaining that
Elgin’s family and friends were exempt from the reduction in
force and that employees with less seniority and worse performance reviews received promotions and training.
However, McDan-
iel did not identify whether the employees who he believed were
treated more favorably were within or outside the protected
class.
Absent this evidence, the court cannot deduce whether the
adverse employment actions were taken for impermissible reasons.
McDaniel has not pointed to one incident of favoritism within the
office of women over men and therefore has failed to establish a
nexus between his gender and the adverse employment actions he
alleges to have suffered.
Furthermore, McDaniel did not submit any proof that the
employees who were not terminated or who received promotions and
training were in fact similarly situated.
26
The only evidence of
record shows that the female employees Elgin retained had higher
performance ratings and met or exceeded their supervisors’
expectations.
At this stage, McDaniel cannot rest solely on his
pleadings and must come forth with some evidence to show that he
can support a prima facie case.
106 S.Ct. at 2553.
See Celotex, 477 U.S. at 324,
Absent any evidence beyond the ambiguous
allegations within McDaniel’s complaint that the retained and
more favorably treated employees were similarly situated, McDaniel has failed to meet this burden and show that a genuine issue
of material fact precludes summary judgment.
Therefore, Elgin’s
motion for summary judgment is GRANTED with regard to McDaniel’s
complaint of gender discrimination under Title VII and §1983.
McDaniel also alleges that he was terminated in reaction to
filing a charge of discrimination with the EEOC.
Title VII's
separate antiretaliation provision "seeks to prevent harm to
individuals based on what they do, i.e., their conduct."
Burl-
ington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126
S.Ct. 2405, 2412, 165 L.Ed.2d 345 (2006).
Unlawful retaliation
in violation of Title VII occurs "when an employer takes actions
that discriminate against an employee because she has opposed a
practice that Title VII forbids", or "'testified, assisted, or
participated in' a Title VII proceeding or investigation."
42
U.S.C. §2000e-3(a); Kampmier v. Emeritus Corp, 472 F.3d 930, 939
27
(7th Cir. 2007)(internal quotations omitted) (citing Burlington
Northern, 548 U.S. at 59, 126 S.Ct. at 2410).
An employer
effectively retaliates against an employee "by taking actions not
directly related to [ ] employment or by causing [ ] harm outside
the workplace." Burlington Northern, 548 U.S. at 63, 126 S.Ct. at
2412.
See also Thompson v. North American Stainless, LP, ___
U.S. ___, 131 S.Ct. 863, 868, 178 L.Ed.2d 694 (2011).
McDaniel has two ways of proving retaliation: directly or
indirectly.
Kampmier, 472 F.3d at 939.
To prove retaliation
under the indirect method, "a plaintiff must show that after
filing the complaint of discrimination only she, and not any
similarly situated employee who did not file a charge, was
subjected to an adverse employment action even though she was
performing her job in a satisfactory manner."
Kampmier, 472 F.3d
at 940 (citing Stone v. City of Indianapolis, 281 F.3d 640, 644
(7th Cir. 2002)).
As explained above, McDaniel has failed to show that he was
performing in a satisfactory manner.
McDaniel received sub-par
performance reviews, was reprimanded on multiple occasions, and
was docked pay for excessive absenteeism.
McDaniels was obli-
gated to come forth with some evidence to support this element of
the prima facie case, but he has chosen to remain silent.
See
Coco, 128 F.3d at 1180 (explaining that the plaintiff was obliged
28
to present evidence that he was meeting his employer’s legitimate
expectations).
His claim fails on this ground alone, however,
even if McDaniel could overcome this hurdle, he again has not
pointed to one similarly situated employee who did not file a
charge with the EEOC and was treated more favorably.
McDaniel
did not set forth the credentials of any employee who he believes
was treated more favorably, including his or her seniority, performance reviews, or any other factors that may make him or her
more or less qualified.
Absent this evidence, the court has no
basis on which to judge whether the retained employees or those
who received promotions and training were in fact similarly
situated.
The only evidence of record shows that the female
employees Elgin retained during the reduction in force had performance evaluations that exceeded McDaniel’s reviews.
There-
fore, the court must assume that the employment decisions were
based on the employee’s credentials.
McDaniels cannot rest
solely on his pleadings and has failed to show that the evidence
creates a genuine issue of material fact that must be left for a
jury to resolve.
Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
McDaniel finally claims that he was retaliated against for
participating in Taneff’s federal case.
The retaliation provi-
sion of Title VII protects employees from participating in suits
that arise under Title VII.
42 U.S.C. §2000e-3(a); Kampmier, 472
29
F.3d at 939.
However, Taneff’s lawsuit was for unlawful and
politically motivated termination under 42 U.S.C. §1983 and is
unrelated to Title VII.
See Taneff v. Calumet Twp., 2009 WL
500558 (N.D. Ind. Feb. 26, 2009).
Therefore, McDaniel’s partici-
pation in Taneff’s suit is outside the scope of Title VII’s
retaliation provision.
McDaniel’s complaint also sets forth facts that may give
rise to a claim under 42 U.S.C. §1983 for unlawful politically
motivated termination.
Title 42 U.S.C. §1983 states:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory . . . subjects, or
causes to be subjected, any citizen of the
United States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable
to the party injured in an action at law,
suit in equity, or other proper proceedings
for redress. . . .
To succeed on a claim under §1983, the plaintiff must allege
that the acts were performed under the color of state law and
deprived the plaintiff of "rights, privileges, or immunities
secured by the Constitution or laws of the United States."
Bayview-Lofberg’s, Inc. v. City of Milwaukee, 905 F.2d 142, 144
(7th Cir. 1990).
Although McDaniel does not cite the constitu-
tional rights he alleges Elgin violated, it is well established
that the First Amendment protects public employees from suffering
30
adverse employment actions because of their political beliefs.
Rutan v. Republican Party of Ill., 497 U.S. 62, 71, 110 S.Ct.
2729, 111 L.Ed.2d 52 (1990). To establish a prima facie case for
unlawful political termination, the plaintiff must prove that his
conduct was constitutionally protected and was a substantial or
motivating factor in the employment decision.
Greene v. Doruff,
___ F.3d ___, 2011 WL 4839162, *2 (7th Cir. 2011) (defining
motivating factor); Hall v. Babb, 389 F.3d 758, 762 (7th Cir.
2004).
The burden then shifts to the defendant to set forth a
legitimate, nonpolitical reason for the employment decision.
Greene, 2011 WL 4839162 at *4; Hall, 389 F.3d at 762.
If the defendant is sued in her official capacity, the
plaintiff faces the additional hurdle of proving that the unconstitutional acts were taken pursuant to an official policy or
custom.
This is because government entities cannot be held
liable under a theory of respondeat superior for the actions of
their employees.
McNabola v. Chicago Transit Authority, 10 F.3d
501, 509 (7th Cir. 1993).
"A plaintiff may demonstrate an offi-
cial policy through: (1) an express policy that causes a constitutional deprivation when enforced; (2) a widespread practice
that is so permanent and well-settled that it constitutes a
custom or practice; or (3) an allegation that the constitutional
injury was caused by a person with final policymaking authority."
31
Estate of Sims v. County of Bureau, 506 F.3d 509, 515 (7th Cir.
2007).
Moreover, a plaintiff cannot claim municipal liability
unless he can demonstrate that the enforcement of the policy was
the "moving force" behind the constitutional violation.
Corn-
field by Lewis v. Consolidated High School Dist. No. 230, 991
F.2d 1316, 1324 (7th Cir. 1993).
See also Oklahoma City v.
Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791
(1985) (plurality opinion) ("At the very least, there must be an
affirmative link between the policy and the particular constitutional violation alleged.").
McDaniel does not clearly state whether he intended to sue
Elgin in her individual or official capacity.
However, McDaniel
identified Elgin by her official title, the Calumet Township
Trustee, and the charge he filed with the EEOC was against the
Calumet Township Trustee’s Office.
From this information alone
it appears that McDaniel intended to sue Elgin in her official
capacity. McDaniel also stated at his deposition that he intended
to sue one defendant.
Because his chief complaint was for sexual
harassment under Title VII, and Title VII does not authorize suit
against supervisors in their individual capacities, the court
assumes that the one defendant McDaniel intended to sue was Elgin
in her official capacity.
Sullivan, 457 F.Supp.2d at 914.
Therefore, McDaniel must show that it was the custom or practice
32
within the Calumet Township Trustee’s Office to adversely affect
employment for failing to support candidates.
The sole allegation in McDaniel’s complaint is that Colby
told him he would be fired if he did not purchase political
tickets to support Elgin’s candidacy.
McDaniel’s deposition
later revealed that he believed he was fired because he did not
purchase political tickets between 2003 and 2008 and because
Elgin questioned him about purchasing political tickets.
How-
ever, these isolated incidents do not reveal that it was the
policy or custom of the office to punish employees for declining
to purchase or partake in political events.
McDaniel has not
pointed to one incident where an employee was punished or fired
for declining to do the same.
See Phelan v. Cook County, 463
F.3d 773, 790 (7th Cir. 2006) (stating the conduct must be widespread to constitute a policy); Crosby v. Ward, 843 F.2d 967, 983
(7th Cir. 1988) (stating that there must be more than one instance to establish a custom).
The fact that McDaniel’s consti-
tutional rights may have been violated for failing to purchase
tickets to political fundraisers or support certain candidates is
not enough to establish that the office had a policy or custom
for punishing employees for their political involvement.
McDaniel also may establish that he suffered a violation of
his constitutional rights if he can show that someone with final
33
policymaking authority caused him to suffer an adverse employment
action because of his decision or refusal to partake in political
activities.
It appears that Elgin is the only one within the
office who had final decision making authority.
Although McDan-
iel cited to one event involving Elgin, he has failed to show
that his refusal to partake in political events was the moving
force behind the adverse employment actions he suffered.
Assum-
ing Elgin did in fact ask McDaniel about purchasing tickets, he
did not explain any action Elgin took to reprimand him as a
result of his refusal.
There was a substantial span of time
between Elgin asking McDaniel to purchase tickets in October
2006, and the denial of a promotion in February 2007, and his
termination in 2008.
Nor has McDaniel made any attempt to show
how Elgin adversely affected his employment in response to his
refusal to purchase tickets from other co-workers or because of
his political affiliation.
The record does not reflect any nexus
between his constitutionally protected right to support or refuse
to support political candidates and the adverse employment
actions he faced.
McDaniel has not shown that his termination
may have been because of his political beliefs.
The mere fact
that he did not support Elgin and later was terminated is not
enough to show that his political beliefs were the motivating
factor behind Elgin’s decision.
34
_______________
Because the plaintiff did not respond to Elgin's motion for
summary judgment and the time to do so has since passed, the
Motion for Summary Disposition Regarding Defendant's Motion for
Summary Judgment [DE 90] filed by Elgin on October 5, 2011, is
GRANTED.
Based on the foregoing reasons, McDaniel was unsuccessful in
establishing a prima facie case under Title VII for sexual
harassment, gender discrimination, or retaliation, or under
§1983 for gender discrimination or unlawful political termination.
Therefore, the Motion for Summary Judgment [DE 74] filed
by the defendant, Mary Elgin, on August 15, 2011, is GRANTED.
ENTERED this 19th day of October, 2011
s/ ANDREW P. RODOVICH
United States Magistrate Judge
35
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?