success in a dangerous profession. Stricker made the final decision to terminate Thiel. But Thiel was not alone: Proctor also did not complete the probationary period. Like Thiel, he chose to resign rather than to be terminated.
The court notes that Thiel's testimony does not, for the most part, run at all contrary to its findings. The court finds that her testimony was generally credible. Thiel did not dispute the alleged deficiencies in her performance, although she subjectively thought that her overall performance improved during her employment. However, the court finds that Thiel's attitude during her tenure at the Department was often apathetic and, at times, hostile.
III. CONCLUSIONS OF LAW
A. Generic Gender Discrimination
To establish a case of wrongful termination based on gender in violation of Title VII, Thiel must show that she performed her job duties in a satisfactory manner and that the Department treated her differently than similarly-situated male employees. Samuelson v. Durkee/French/Airwick, 976 F.2d 1111, 1113 (7th Cir. 1992). She has not done so.
First, she has not shown that she performed satisfactorily. The court is far from satisfied that Thiel met the skill or personality qualifications necessary to succeed as a police officer, a dangerous position in which both skill and personality may mean the difference between life and death.
As discussed above, the Village produced evidence of numerous, documented, deficiencies in Thiel's performance and personality which made her unsuitable for employment as a police officer. Although Thiel produced minimal evidence of sporadic times when she showed acceptable performance and improvement throughout her tenure with the Department, the overwhelming testimony and documentary evidence leads to the inference that Thiel, although she may have had some unexercised potential, was not performing as necessary. The court notes, "An employee's self-serving statements about [her] ability . . . are insufficient to contradict an employer's negative assessment of that ability." Gustovich v. AT&T Comms., Inc., 972 F.2d 845, 848 (7th Cir. 1992) (citation omitted). Thiel herself admitted that the majority of the evidence in the reports and write ups was accurate. Although she offered explanations for her failure to perform, she did not show that she actually did perform satisfactorily. Thus, the Village takes the position that she was terminated not because of her sex, but because she was incompetent. The court agrees with the Village's position and finds that Thiel has not demonstrated that she performed her duties as a police officer in a satisfactory manner.
Second, Thiel has not shown that any male employees were "similarly situated." To have done so, Thiel must have pointed to male employees who had similar work and attendance records but were not terminated. See Rush v. McDonald's Corp., 966 F.2d 1104, 1112 (7th Cir. 1992). Such a comparison must "demonstrate more than occasional leniency toward other employees who had engaged in conduct of a similar nature." Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 771 (7th Cir. 1994).
Thiel made no such comparison. Thiel herself admitted on the witness stand that her monthly and daily evaluations were relatively accurate, and that the several specific problems and misconduct noted was, for the most part, true. She did not object or complain about the reports. Indeed, she affixed her signature to them. Thiel has not shown that any male probationary employees were similarly situated, much less that similarly situated male probationary employees were treated differently. Indeed, the evidence shows that another probationary officer was also terminated, and that the other officer was a male. The court does not know the reasons for his termination.
B. Sexual Harassment
To establish that she was sexually harassed in violation of Title VII, Thiel would have had to show harassment which was sufficiently severe or pervasive to alter the terms, conditions, or privileges of employment and that male employees were not subjected to similar treatment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). She did not do so. For her sexual harassment claim, Thiel relies entirely upon Stricker's reference to her twice as "sweetheart" while patting her head, Schamal's single reference to her as a "cunt," Schamal's written report that Thiel missed work because of "cramps," and the business card and daily progress report procedures.
The Seventh Circuit has declared, "It is obvious that a single, isolated . . . comment could not reasonably be thought to constitute sexual harassment or to cause a harm sufficiently great to repay the expense of suit." Galloway v. General Motors Serv. Parts Ops., 78 F.3d 1164, 1167 (7th Cir. 1996) (noting that the use of the term "sick bitch" "may be defensive; may be playful rather than hostile or intimidating; may be colored by tone or body language; . . . may be done in a placating, conciliatory, or concessive manner in an effort to improve relations with hostile or threatening coworkers" (citations omitted)).
Despite Stricker's denial that he twice asked Thiel, "How's it going, Sweetheart," the court finds that he probably did so. Thiel's testimony was credible on that point. However, other than the two incidents with Stricker, Thiel testified that Stricker treated her fairly. She did not recall the date of either "sweetheart" incident and she did not complain about the incidents. The court finds that the comments were simply made in passing as an expression of concern about a probationary officer, and were in no way sexual. However, the "Sweetheart" reference did likely relate to Thiel's gender, as the court doubts that Stricker would have referred to a male probationary officer as "sweetheart." The court notes that Thiel has produced no evidence which suggests a nexus between Stricker's remarks and the contested termination. See Cheek v. Peabody Coal Co., 97 F.3d 200, 203 (7th Cir. 1996).
Next, as to Schamal referring to Thiel as a "cunt," Thiel does not state that she overheard the reference or that she knew about it until after her termination and the court finds that she did not know of it. Harassment, by definition, requires annoyance or torment. Webster's II New Riverside University Dictionary 564 (1984). The court finds that Thiel could not have been annoyed or tormented, or "harassed," by a reference of which she had no knowledge.
Alternatively, the court recognizes that the term "cunt," taken out of context, may be considered to reference particular female characteristics and to evidence sexual discrimination. See Galloway, 78 F.3d at 1167 (noting that the term is more sexual in nature than "bitch," and finding that plaintiff could not have inferred sexual discrimination from a certain use of the term "bitch," considering the context). However, as undignified and unfriendly Schamal's reference may have been, in the context of all the facts shown in this case, the court finds that it was not related to Thiel's gender, but rather to Schamal's intense frustration and dislike of Thiel because of her incompetence, indifference, and insubordination. Beyond that, the court has no evidence which would lead it to speculate about any of Schamal's deep-seated subjective feelings which could have been reflected in his reference.
As to Schamal's "cramps" reference, Schamal testified that Thiel herself, or the dispatcher, probably told Schamal that she was not at work because of cramps, and that Schamal would not have fabricated his comment. The court has no basis on which to discredit his testimony. Thiel cannot claim that she was harassed by her own comment.
Considering all conduct together, the court finds that Thiel has not shown conduct sufficiently severe or pervasive to alter the terms, conditions, or privileges of employment and that male employees were not subjected to similar treatment. Stricker's "Sweetheart" comments may have been offensive. However, they were two isolated incidents in long period of, by Thiel's own testimony, fair treatment from Stricker. Schamal's "cunt" reference would certainly be offensive, had Thiel known about it. However, again, it was clearly not the product of a discriminatory dislike of Thiel because of her gender, but rather of a genuine personality conflict, regardless of gender. Even considering all evidenced conduct together, Thiel did not establish sexual harassment at trial. She has not shown a hostile work environment which altered the terms or conditions of her employment because of her gender.
C. Business Card Procedure/Daily Progress Reports
Thiel seems to take the position that the business card procedure and daily progress reports were part of the gender discrimination and sexual harassment of which she complains. Thiel did show that male officers were not subjected to daily progress reports or to the business card procedure, and that she was annoyed by the procedure. The court is not convinced, however, that these procedures were in any way "sexual" or "because of her sex."
Also, Thiel failed to rebut the Village's explanation for employing the two procedures during her probation. The Village demonstrated credibly that it used those procedures in an attempt to help Thiel and give her guidance. In the face of deficient performance, the Village understandably wanted to test Thiel in order to discover whether she had the necessary skills to be an officer. Such procedures were not uncalled for; as police competence is vital to public safety, it is of ultimate importance that officers are carefully monitored for ability and appropriate responses. Indeed, Thiel did manifest difficulty in accepting and executing orders and directives of her superior officers. Accepting "tip-offs" from fellow officers and a willingness to chat with fellow officers about real or perceived difficulties with superiors, from the Department's point of view, work against discipline, respect for authority and quick positive reaction under demanding circumstances. Thiel neglected to submit evidence that similarly-situated male probationary officers were not subject to the business card and daily report procedures. Thiel did not prove herself to have the necessary abilities in various fields of performance, such as knowledge of city streets, obeying traffic laws, controlling arrest situations. The record and testimony demonstrate that she did not respond appropriately to orders or authority, and that she was not proactive in her approach to her work. She never complained about or discussed with her superiors any of the negative evaluations. Her own demeanor on the witness stand demonstrated the apathy and passivity complained of by her superiors. As such, the court finds that the business card procedure and daily progress reports were not part of any Title VII violation.
In sum, the court finds that Thiel did not establish a Title VII violation based on her gender, and that the Village established genuine non-discriminatory reasons for terminating Thiel. The court is not at all convinced that the Department fired Thiel because of her sex rather than because of her failure to perform and to appropriately interact with her superiors.
The court notes that the Department could fire probationary officers for any reason, or for no reason at all. Of course, that proposition is limited by the caveat that probationary officers cannot be fired for reasons prohibited by law, such as "because of sex." Unless Thiel could show that she was fired because of her sex, she could not prevail in the instant gender discrimination case, no matter how "unfair" the reasons for her termination may be. Thiel failed to offer sufficient testimony or documentary evidence from which the court could infer that she was fired because of her sex, or that she was sexually harassed. Consequently, the court finds that the Village is not liable for gender discrimination or sexual harassment.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court