leader who interacted well with others and could make decisions
independently, even though these qualifications were not specifically
listed in the job announcement. This court additionally notes that these
job skills were included on the interview form used to evaluate
candidates for the position. Plaintiff also argues that the reason given
was pretextual because Olson had always been interviewed for the position
before and "the only thing that really changed between 1995 and 1997 was
that Olson's gender became an issue as a result of the 1996 sexual
harassment investigation." However, again, Plaintiff has conceded that
LaRocque, who was involved in the decision not to interview Olson,
believed that Olson was not qualified for the position. This court also
notes that it finds it hard to believe that Defendant was not aware of
Olson's gender prior to the sexual harassment investigation.
Because Plaintiff has not shown that one of the reasons given by
Defendant, that Olson lacked the qualifications for the leader position,
was pretextual, this court does not need to address the other reason
given by Defendant, that Olson was not interviewed because she was in the
discipline process. This court does note, however, that it does not find
persuasive Plaintiff's argument that this reason is pretextual because
Dandurand was allowed to continue working as a fill-in leader after he
was disciplined. It is undisputed that Dandurand was already working as a
fill-in leader and was not "promoted" following his discipline. Plaintiff
has not presented any evidence that any other employee was allowed to
interview for a promotion while in the discipline process. This court
concludes that Plaintiff has not met its burden to show that the reasons
given by Defendant for not interviewing and promoting Olson were a
pretext for discrimination based upon Olson's sex. Therefore, Defendant is
entitled to summary judgment on Plaintiff's claim of sex discrimination.
Plaintiff also claims that Defendant retaliated against Olson in
violation of Title VII when Olson was denied an interview and a promotion
in April 1997 and also when Defendant disciplined Olson and denied her
request for a transfer in August 1996. Title VII makes it unlawful "for
an employer to discriminate against any of his employees . . . because he
[or she] has opposed any practice made an unlawful employment practice
[by Title VII]." Murray v. Chicago Transit Auth., 252 F.3d 880, 889-90
(7th Cir. 2001), quoting 42 U.S.C. § 2000e-3(a). The familiar
framework of McDonnell Douglas applies to retaliation cases. Pafford, 148
F.3d at 670; Knox v. State of Ind., 93 F.3d 1327, 1333 (7th Cir. 1996).
To establish a prima facie case of retaliation under Title VII, Plaintiff
must establish that: (1) Olson engaged in "statutorily protected
expression," (i.e. reporting or otherwise opposing conduct prohibited by
Title VII, such as sexual harassment); (2) Olson suffered an adverse,
job-related action by Defendant; and (3) there was a causal link between
her opposition to unlawful discrimination and the adverse action.
Murray, 252 F.3d at 890; see also Hall v. Bodine Elec. Co., 276 F.3d 345,
357. If a plaintiff succeeds in establishing a prima facie case, the
employer must articulate a legitimate, non-retaliatory reason for its
actions and, if it does, the burden shifts back to the plaintiff to show
that the proffered reasons are pretextual. Knox, 93 F.3d at 1334; see
also Hall, 276 F.3d at 357-58.
This court concludes that Olson's reports regarding the inappropriate
conduct of Scroggins and Dandurand are sufficient to establish the first
element of Plaintiff's prima facie case, even though
Olson did not formally complain following the incident but only related
what happened when she was approached during the investigation. The
Seventh Circuit has recently recognized that informal complains of
discrimination may constitute protected expression under Title VII.
Krause v. City of LaCrosse, 246 F.3d 995, 1000 (7th Cir. 2001).
This court concludes, however, that Plaintiff cannot establish a prima
facie case of retaliation regarding Defendant's failure to promote her
because she has not shown a causal connection between Olson's complaint
of sexual harassment and the failure to promote her approximately eight
months later. This length of time between the protected speech and the
adverse employment action, without more, is too long to support a
reasonable inference of causation. See Horwitz v. Board of Educ. of Avoca
Sch. Dist. No. 37, 260 F.3d 602, 613 (7th Cir. 2001) (six months too
long); Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001) (four months
too long). In fact, the Seventh Circuit has held that a substantial time
lapse is considered counter-evidence of a causal connection. Oest v.
Illinois Dept. of Corrections, 240 F.3d 605, 616 (7th Cir. 2001). This
court concludes that the undisputed facts do not support a conclusion
that Olson's protected activity (her report of sexual harassment) was the
cause of Defendant's decision not to consider her for promotion. See
Raymond, 2002 WL 187501, at *12. However, even assuming that Plaintiff
could establish a prima facie case, this court has already found that
Plaintiff has not shown that one of Defendant's stated reasons for its
decision, that Olson was not qualified for a position as leader, was
pretextual. This finding was fatal to Plaintiff's sex discrimination claim
and dooms its retaliation claim based upon the failure to promote Olson
Defendant next argues that placing Olson in the disciplinary process
for conduct she admitted was not an adverse job action. This court first
notes that it is undisputed that Olson admitted using inappropriate
language during the incident with Scroggins and Dandurand, a fact
confirmed by the account of the incident provided by Scroggins. The
Seventh Circuit has recently stated that "an employee's complaint of
harassment does not immunize her from being subsequently disciplined or
terminated for inappropriate workplace behavior." Hall, 276 F.3d at 359.
In any case, this court agrees with Defendant that the Level I written
warning issued to Olson was not an adverse, job-related action. For an
employment decision to be actionable, it must constitute a "significant
change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits." Bell v. Environmental Prot.
Agency, 232 F.3d 546, 555 (7th Cir. 2000), quoting Burlington Indus. v.
Ellerth, 524 U.S. 742, 761 (1998). Accordingly, the Seventh Circuit has
held that a letter of reprimand is not an adverse employment action
unless it is accompanied by some other action, such as job loss or
demotion. Krause, 246 F.3d at 1000; Sweeney, 149 F.3d at 556; Smart v.
Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996). Plaintiff argues that
the discipline in this case was accompanied by some other action,
Defendant's refusal to consider Olson for promotion because she was in
the discipline process. However, Defendant has presented evidence to show
that Olson was denied an interview and a promotion in April 1997 for
another legitimate reason, Defendant's belief that Olson lacked the
qualifications for the position. Therefore, this court agrees with
Defendant that Plaintiff is unable to dispute that Olson would not have
been considered for the leader position even if her record was
discipline-free. This court concludes that issuing Olson a Level I
written warning was not accompanied by some other action and was not an
adverse employment action.
Defendant also argues that the delay in completing Olson's previous bid
for a transfer to the day shift cannot be considered an adverse
employment action. This court agrees. "[N]ot everything that makes an
employee unhappy is an actionable adverse action." Murray, 252 F.3d at
888, quoting Smart, 89 F.3d at 441. A "materially adverse change in
employment conditions must be more disruptive than a mere inconvenience
or an alteration of job responsibilities." Krause, 246 F.3d at 1001,
quoting Johnson v. City of Fort Wayne, 91 F.3d 922, 932 (7th Cir. 1996).
Olson testified that she asked for an immediate transfer because she was
"nervous" working with Scroggins and Dandurand. She also testified that
she was afraid of Scroggins. However, Defendant disciplined Scroggins and
Dandurand for their behavior and required them to write a personal
improvement plan.*fn3 Olson testified that, before her transfer,
Scroggins and Dandurand did not cooperate with her. She also testified
that Dandurand was allowed to continue working as a fill-in leader and
there were occasions when Dandurand ignored her requests for assistance.
On another occasion, Dandurand asked her to help another employee clean
up. However, Olson did not testify that she was subjected to any further
sexual harassment by either Scroggins or Dandurand. Therefore, this court
concludes that the relatively brief delay in transferring Olson to the
day shift cannot be considered an "adverse job action." None of cases
cited by Plaintiff support a contrary finding. Although Plaintiff is
correct that the law does not take a "laundry list" approach to
retaliation (see Knox, 93 F.3d at 1334), the law is clear that the action
taken by the employer must constitute a "significant change in employment
status." See Bell, 232 F.3d at 555. That did not occur here.
For all of the reasons stated, this court concludes that Defendant is
entitled to summary judgment on Plaintiff's retaliation claim.
IT IS THEREFORE ORDERED THAT:
(1) Defendant's Motion for Summary Judgment (#16) is GRANTED. Judgment
is entered in favor of Defendant and against Plaintiff.
(2) This case is terminated. The parties shall be responsible for their
own court costs.