A. Adverse Employment Action
Retaliatory employment actions must be materially adverse to be actionable. Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996). "Adverse job action is not limited solely to loss or reduction of pay or monetary benefits." Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987). It may be "indicated by . . . a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). The employment action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. "Not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996).
Ms. Smith reports receiving four written work directives--one on March 3, 1994, immediately after Ms. Smith complained to Ms. Dawson, one on March 16, 1994, and two on March 17, 1994. She also says that Mr. Curry requested that she twice copy her hard drive onto diskettes, and twice retrieve copies of certain documents from the Personnel Dispensary. Neither the written work directives nor the "redundant" work tasks amount to materially adverse employment actions. The written work directives explained assignments and set completion dates. The tasks, even if redundant,
were, at most, an inconvenience.
B. Direct Evidence of Retaliation
A plaintiff who asserts a claim of retaliation under Title VII may proceed under one of two methods: the "direct evidence" analysis, Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), or the "burden-shifting" approach. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Under the former method, the employee must proffer direct evidence that retaliatory motives played a substantial role in the employer's adverse employment action. Larsen v. Club Corp. of Am., Inc., 855 F. Supp. 247, 252-56 (N.D. Ill. 1994) (applying Price Waterhouse method to retaliation claim). The employee ultimately succeeds, unless the employer can show it would have taken the same action in the absence of such motives. Id.
Ms. Smith argues that she has direct evidence of retaliation. She refers to a telephone conversation in which she says Mr. Green told her that Mr. Curry was trying to force her to quit PSS. As the defendant argues, the telephone conversation, which Ms. Smith tape-recorded, is open to different interpretations. Interpreting it in Ms. Smith's favor, it is evidence that Mr. Curry's actions towards Ms. Smith prior to her transfer out of PSS, discussed above, were retaliatorily motivated. However, "an employee's . . . 'direct evidence' . . . must . . . relate to the specific employment decision in question." Oates v. Discovery Zone, 116 F.3d 1161, 1170 (7th Cir. 1997). Mr. Curry was not responsible for the two employment actions which can be deemed materially adverse: detailing Ms. Smith to three "menial" temporary positions and failing to select her for the GS-6 level positions for which she applied. The telephone conversation provides no direct evidence that the ultimate decision-makers shared Mr. Curry's motive. Therefore, the telephone conversation cannot be offered as direct evidence of retaliation.
C. Burden-Shifting Method
Ms. Smith also relies on the McDonnell Douglas "burden shifting" method. Under this method, the employee must first establish a prima facie case of retaliation. To establish a prima facie case of retaliation, Ms. Smith must show (1) that she engaged in a statutorily protected expression; (2) that she suffered an adverse action by her employer; and (3) that there is a "causal link" between her protected expression and the adverse action. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994).
Once the plaintiff has made out her prima facie case, the employer must articulate a legitimate, non-retaliatory reason for its adverse action. The burden then shifts back to the plaintiff to create a genuine issue of material fact that the offered reason was merely pretextual. Id.
1. Temporary "Menial" Assignments
Ms. Smith complains that the temporary positions to which Ms. Biskup, the Acting Associate Medical Center Director, transferred her--first, to PDM, next, to ORM, and finally, to the Veterans Center--were below her skill and grade levels, while there was a permanent secretarial position available at the office of the Chief of Psychology Service.
Ms. Biskup knew of Ms. Smith's complaint. Thus defendant concedes that the plaintiff has shown a prima facie case with respect to the three temporary assignments. The defendant has provided a legitimate, non-retaliatory reason for the nature of Ms. Smith's assignments. It is undisputed that Ms. Biskup transferred Ms. Smith out of PSS because Ms. Smith indicated that she no longer wanted to work there. Pursuant to the defendant's standard procedure, Ms. Smith was placed in a "pool" of employees in need of new positions. These employees were expected to "pitch in and help out" wherever necessary, and were therefore "detailed" to fill the temporary needs of the departments Ms. Biskup staffed.
Ms. Smith attempts to show that although the defendant treated her in accordance with its standard procedure, the defendant's reasons are pretextual, and Ms. Biskup was really motivated by retaliation. The fact that Ms. Smith was required to perform clerical, rather than secretarial, tasks does not raise an inference of pretext. Ms. Smith was in need of a new position and the departments to which she was assigned were in need of the type of assistance Ms. Smith was able to provide. The temporary positions affected neither her grade level nor her salary.
Ms. Smith also says that she was not, in fact, needed at ORM because the permanent secretary was in the office during the plaintiff's "detail." This evidence does not undermine the defendant's proffered reason. The defendant said that ORM needed help due to a secretary's illness. Secretaries perform a variety of tasks and this secretary's illness may have affected her ability to fulfill the typing needs of the department. In keeping with the defendant's standard procedure, Ms. Smith was assigned to ORM to aid them with typing.
Ms. Smith also says that a permanent position comparable to the one she held at PSS was available in the office of the Chief of Psychology Service, and that Ms. Biskup should have transferred the plaintiff to that position. The defendant says that Ms. Biskup did not have the authority to take a person from the "pool" of available employees and place him or her in that vacancy. Ms. Smith insists that the defendant had the authority to override the competitive selection process and place her in that position. (Smith Aff. P 14.) The plaintiff does not indicate which of the defendant's decision-makers had such authority or how she knows that such an override was possible. At any rate, it is undisputed that Dr. George Meschel was responsible for staffing the Department of Psychology. Dr. Meschel states that he received a list of qualified candidates from the Human Resource Management Service and chose the best qualified individual. Ms. Smith does not claim that Dr. Meschel's decision was tainted by the retaliatory motive. Therefore, the plaintiff cannot create a genuine issue of material fact with respect to pretext concerning the nature of the three temporary positions to which she was transferred.
2. Denied Promotions
Ms. Smith applied for but was denied promotions to two GS-6 level positions, Program Clerk and Program Assistant.
The defendant concedes that Ms. Smith satisfies the first two elements of her prima facie case. As to the third element, the "causal link" between the protected expression and the adverse employment action, the plaintiff must demonstrate that the adverse action would not have occurred "but for" the protected expression. McKenzie, 92 F.3d at 483. Thus, the party responsible for the action must be aware of the protected expression. Dey, 28 F.3d at 1458.
The officials responsible for selecting the Program Clerk and the Program Assistant state that they were unaware of Ms. Smith's complaint against Mr. Curry at the time they made their selections. Ms. Smith counters that her complaint against Mr. Curry undoubtedly surfaced during the selection procedure, and that Mr. Curry "would have been contacted and . . . would have tainted any possibility of her selection." (Smith. Aff. P 23.) Ms. Smith's belief is insufficient to raise a genuine issue of material fact as to the existence of a "causal link" between her complaint and the decisions to deny her the Program Clerk and the Program Assistant positions.
See Johnson v. University of Wis.-Eau Claire, 70 F.3d 469, 480 (7th Cir. 1995). Consequently, her prima facie case for retaliation fails with respect to the denied promotions.
For the reasons stated above, the defendant's summary judgment motion is granted.
Elaine E. Bucklo
United States District Judge
Dated: September 26, 1997
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that defendant's motion for summary judgment is granted. Accordingly, judgment is entered in favor of the defendant and against the plaintiff.