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SMITH v. BROWN

September 26, 1997

MARSHA SMITH, Plaintiff,
v.
JESSE BROWN, Secretary of the Department of Veterans Affairs, Defendant.



The opinion of the court was delivered by: BUCKLO

 The plaintiff, Marsha Smith, brought suit against the defendant, Jesse Brown, the Secretary of her employer, the Department of Veterans Affairs, alleging violations of Title VII. The defendant moved for summary judgment. For the following reasons, the motion is granted.

 I. *fn1"

 Ms. Smith works for the defendant's West Side Medical Center in Chicago, Illinois ("West Side"). She began her employment in 1984 as a clerk-typist; in 1985, Ms. Smith was promoted to the position of secretary/typing, grade GS-5; and in 1990, the plaintiff became a secretary of the Chief of Police and Security Service ("PSS") at West Side. On August 1992, James Curry became the Chief of PSS at West Side. Smith's immediate supervisor during the relevant time period was Richard E. Green, the Assistant Chief of PSS.

 After complaining to Ms. Dawson, Ms. Smith received several written work directives authored by Mr. Green and prompted by Mr. Curry. Mr. Curry also requested that she twice copy her files onto diskettes and twice retrieve certain documents from the Personnel Dispensary.

 On June 3, 1994, not being able to reach an informal resolution of the conflict, Ms. Dawson advised Ms. Smith of her right to file a formal complaint with the Department of Veterans Affairs. Ms. Smith filed such a complaint on June 17, 1994 ("June 17, 1994 complaint"), complaining of sexual harassment and retaliation. On September 14, 1994, the defendant assigned an EEO Investigator to investigate Ms. Smith's complaint, who interviewed the plaintiff on October 3 and 5.

 Ms. Smith indicated to Ms. Dawson and in her June 17, 1994 complaint that she wished to be transferred out of PSS. Bernadette Biskup, the Acting Associate Medical Center Director, transferred Ms. Smith first, to the Planning and Data Management ("PDM") Division; second, to the Office of Rehabilitation and Medicine ("ORM"); and finally, to the Veterans Resource Center ("Veterans Center").

 During the same time period, Ms. Smith applied for but was denied promotions to the following two GS-6 level positions: Program Clerk at the Education Service ("Program Clerk") and Program Assistant at the Woman's Veterans Program ("Program Assistant"). Believing these denials to be retaliatory, Ms. Smith again complained to an EEO Counselor and filed another complaint with the Department of Veterans Affairs on June 22, 1995 ("June 22, 1995 complaint").

 Ms. Smith's three-count Second Amended Complaint charges the defendant with sexual harassment perpetrated by Mr. Curry (Count I) and with retaliation for complaining about the harassment (Count II and III). Ms. Smith claims that the written work directives, "redundant" work tasks, "menial" temporary assignments, and the denial of promotions constitute retaliation. The defendant has moved for summary judgment on all counts.

 II. *fn2"

 I. SEXUAL HARASSMENT

 Title VII protects employees from employers who "discriminate against an[ ] individual . . . because of such individual's . . . sex." 42 U.S.C. ยง 2000e-2(a)(1). A form of "sex" discrimination is sexual harassment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-66, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). To prove sexual harassment, the plaintiff must show (1) that the harassing conduct was motivated by her gender and (2) that the conduct created a hostile working environment. Galloway v. GM Serv. Parts Operations, 78 F.3d 1164, 1167-68 (7th Cir. 1996); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A hostile working environment exists if the defendant's conduct is "sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment." Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 708 (7th Cir. 1995) (quotation omitted).

 Ms. Smith complains that Mr. Curry used terms such as "son of a bitch" and "thumbs up their butts," while talking to male police officers in the vicinity of the plaintiff's work space. Speech that has sexual overtones does not automatically violate Title VII. Doe, 42 F.3d at 443. The comments at issue here were not directed at the plaintiff. Ms. Smith does not argue that Mr. Curry deliberately spoke the profanities within her hearing. Vulgar banter of the sort engaged in by Mr. Curry, although offensive and unpleasant, is not sufficiently severe to constitute sexual harassment. Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995).


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