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May 16, 1994



The opinion of the court was delivered by: MILTON I. SHADUR

Shirley Anne White ("White") has sued her employer Dial Corporation ("Dial"), charging that she has been the victim of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). *fn1" Although never actually terminated, White contends that her supervisors and fellow employees made her working environment so miserable that she was forced to transfer from her job in the traditionally-male Chemical Processing Department ("Department") to another department in Dial's facility. White asserts that she suffered disparate treatment in such matters as safety training and salary increases as well as verbal harassment.

 Dial has responded with a Fed. R. Civ. P. ("Rule") 56 motion for summary judgment. Because White has not demonstrated the existence of any genuine issues of material fact, and because the material facts compel a judgment in Dial's favor, its motion must be granted.

 White has worked at Dial's Montgomery, Illinois soap-making facility ever since February 1975 (D. 12(m) PP 4-5). Though she had stints in various departments, the bulk of her tenure has been spent in the Soap Finishing Department: She worked there until January 30, 1989, when she successfully bid onto the job of A-5 Operator in the Department (id. PP 6-7). White was the sole female A-5 Operator until March 27, 1989, when Arlene Dougherty ("Dougherty") *fn3" came on board (id. PP 27-28). Dougherty still holds that job (id. P 30).

 A-5 Operators are responsible for a wide variety of diverse tasks, such as unloading raw materials from train cars, pretreatment of fats and oils for processing, carbon treatment and filtration of refined glycerine, and operation of all kinds of tools and equipment (P. Ex. III). P. 12(m) P 19 acknowledges that White was trained for those tasks on the job by co-workers John Stathis ("Stathis"), Carl Cox ("Cox"), Lorenzo Beach ("Beach") and someone whom she calls "Juan Rodriguez" ("Martinez" *fn4" ). She worked under a number of supervisors, but most commonly on a shift overseen by Daniel Huber ("Huber"). During her 2-1/2 months as an A-5 Operator White received no raises in salary, earning the training rate of $ 13.79 throughout (White Aff. P 4).

 As will be explored more fully below, the employment relationship between White and Huber was one that she found distressing. Because she says that her working conditions were intolerable, White eventually bid off the Department job voluntarily on April 17 and transferred to a job as a bander back in the Soap Finishing Department. White asserts that while in the Department she was verbally abused, forced to perform mundane tasks and discriminatorily denied breaks, adequate safety training and the pay raises that she felt were her due.

 After her claim was denied by the EEOC, White obtained a right-to-sue letter on June 24, 1991 and brought this action in timely fashion. After a few false starts, the TAC sought to couple White's claim of sexual discrimination (Count I) with a second count charging Dial with negligent infliction of emotional distress (brought under the supplemental jurisdiction provision of 28 U.S.C. § 1367) and with a third count titled "Discriminatory Representation/Failure to Represent," brought against the Union. As n.1 reflects, Counts II and III are long gone from the case. That leaves only Count I and the current motion for resolution.

 Summary Judgment Principles

 Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to nonmovant White ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) and cases cited there). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir.1992)), that does not foreclose the potential for summary judgment in such cases ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir.1992)). Moreover, "a plaintiff facing the prospect of summary adjudication cannot 'sit back and simply poke holes in the moving party's summary judgment motion'" ( Young In Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir.1993)).

 Analytical Format

 Under the now-familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), White must first establish a prima facie case of sexual discrimination. *fn5" If she did so, that would create a presumption of unlawfulness and would shift to Dial the burden (of production, not of persuasion) to advance a "legitimate, nondiscriminatory" explanation for the adverse employment action ( St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2746-47 (1993)). And if Dial could produce evidence to that effect, White would then have the burden of production (as well as her always-present burden of persuasion) to show that Dial's proffered explanation was merely pretextual ( Burdine, 450 U.S. at 253).

 In this case there is no need to carry the analysis beyond the initial step--the prima facie case--because White cannot surmount it. To establish a prima facie case of sexual discrimination, White needs to show that (1) she belongs to the statutorily protected class of women employees; (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly-situated male employees ( Hughes v. Brown, 20 F.3d 745, 1994 U.S. App. LEXIS 6031, at *4-*5 (7th Cir. Mar. 31)). It is unnecessary to discuss the first two factors, the first because it is so obviously satisfied and the second because a moment's thought tells us the same. *fn6" But White fails on each of the other two factors, even with all reasonable inferences drawn in her favor. This opinion therefore proceeds directly to those elements of the prima facie case.

 Adverse Employment Action

 As a threshold matter, this third factor presents an interesting problem for White. Because she voluntarily elected to "bid off" of her position as an A-5 Operator to return to her former job, the only way in which White could establish an adverse employment action by Dial would be in constructive terms--that is, by showing an action on her part ascribable in law to Dial's conduct. White's Mem. 4-5 *fn7" discusses the components of a constructive discharge claim, but that label is inapt because White never left the company. To prevail White would instead need to prove a constructive involuntary transfer (a transfer laid at Dial's doorstep in the causal sense) that was adverse to her. Although the parties have not pointed to any cases expressly dealing with that situation (nor has this Court been able to locate any on its own), both sides discuss the case law surrounding constructive discharges, a rubric that is clearly analogous for analytical purposes. *fn8"

 It is certainly problematic to suggest that White's transfer to a much more cushy job (White Dep. 433)--she went from handling caustic chemicals in sub-frozen temperatures to one of the easier jobs in the company--constituted a "constructive involuntary transfer" that was "adverse" to her. "Adversity" of the transfer was also somewhat questionable in financial terms. White testified at one point that she now earns $ 15.38 at her new job (id. 502). *fn9" Although she speculated that she thought she could have made $ 16.82 as an A-5 operator (id.), that is at best an estimate of what White could have earned had she progressed up the pay scale. *fn10" When she transferred out White was actually making only the training pay rate of $ 13.79 (White Aff. P 4). *fn11" In summary, White's salary in fact increased after her so-called "constructive involuntary transfer" to a job that she considered, in her own words, one of the "easier . . . jobs out there" (id. 433).

 All of this creates a major doubt whether drawing an inference in White's favor on the constructive involuntary transfer issue would be reasonable (see Bank Leumi, 928 F.2d at 236). Nevertheless this opinion will give White the benefit of that doubt, drawing the possibly unreasonable inferences (1) that White suffered monetarily considering what she could have earned and (2) that the job to which she transferred was perhaps of less stature and challenge. Neither party addressed those matters fully, so this Court is reluctant to cut off examination of the "adverse employment action" claim at the threshold.

 Constructive discharge is a judicially-created doctrine to provide recompense where "working conditions were so intolerable that a reasonable person would have been compelled to resign" ( Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir. 1994)). But intolerability alone does not suffice, absent an additional showing of a connection between the unbearable circumstances and the plaintiff's sex (id.) ("conditions, even if intolerable, do not give rise to a cause of action under Title VII" without that link). Moreover, "an employee must seek legal redress while remaining in his or her job unless confronted with an 'aggravated situation' beyond 'ordinary' discrimination" ( Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 677 (7th Cir. 1993), repeating the Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989) quotation from Bailey v. Binyon, 583 F. Supp. 923, 929 (N.D.Ill. 1984)). Here White has failed to show even "ordinary" discrimination, much less aggravation.

 To assess the severity of White's situation, this opinion will examine her allegations (Complaint PP 9-10) that she was harassed, denied adequate training and a pay increase and told that her position was not a woman's job. White's Mem. 2 proclaims that "defendant's action [sic] and failure to rectify the above instances created an unpleasant and intolerable work environment for Plaintiff." This Court has waded through the entire record (an examination aided by the framework that has been reconfirmed for the review of "hostile environment" claims in Rodgers, 12 F.3d at 674, but with very little assistance from White's counsel in pointing to specific evidence of any disputed issues of material fact). Though White's working conditions may very well have been somewhat "unpleasant," there is simply no evidence that her treatment rose (or descended) to the level of being intolerable. What follows addresses what appear to be the primary points raised in White's memorandum. *fn12"

 1. "Too Much Safety"

 One facet of White's harassment claim is the notion that she was continually followed and monitored by Huber, a charge that Huber does not deny. White herself cites to a portion of Huber's deposition (Dep. II 31, 32-33) where he explained that as a supervisor it was his responsibility to observe A-5 operators for safety reasons as they performed their duties around the plant:

My job would be to account for the amount of time that that individual was on shift and what they were doing, which would account for the entire period of time that they were there
* * *
I mean I--employees in training have to take--have special attention so that in case they would have something happen to them somebody is there.

 Even if such conduct on Huber's part were somehow offensive (as White has not shown), White's contention still fails because she has offered no evidence that she was treated differently from any other employee in that respect. White argues only that none of the male employees expressly stated that they were followed (she cites each of their depositions "see generally," without any page references), but she points to no testimony saying that the males were not similarly monitored. *fn13" Thus Huber's testimony that he observes all trainees for safety purposes stands uncontroverted. *fn14"

 2. "Too Little Safety"

 Paradoxically, White's next quarrel with the quality of her work environment is that Dial purportedly cared so little for her security that she was deprived of adequate safety training. In a vain attempt to bolster that assertion, White's Mem. 10 relies heavily on an incident that occurred during her first week on the job, when she was splashed with hot steam while undoing a trap door. *fn15" But White's own Dep. 31, 32, 34-37 exposes the emptiness of that claim:

White: Juan Martinez was training me. And he told me to open up a trap under the train. The trap was not right. So when I opened it up, the steam blew up from the train.
* * *
Q: And Mr. Martinez had been assigned to train you?
* * *
Q: In your discussions on Monday [her first day of work] about what the process of the job was, did anyone instruct you regarding the steps you had to take to ...

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