Perez was asked: "Aside from Steve Dahl, was there anyone
at the hospital in all the time you worked there who did something
hostile or offensive towards you?" Perez responded: "No." This admission
seems to contradict the majority of Perez' claims. Yet, Perez alleges
that in May and June of 2000, her co-workers "shunned her and isolated
her and perpetuated rumors that she would be demoted" after they learned
of her complaint against Dahl. In addition, Perez alleges that between
July and September of 2000, Dahl would "watch her" and take notes.
Sometime in mid-June of 2000, NAH posted a notice of a newly created
Lieutenant position, in order to solicit applications. Perez alleges that
notice of this position was never posted. However, evidence from other
sources indicates that the position was posted. Subsequently, Perez did
not apply for this position, and the position was awarded to the only
applicant, Rivera, in late June or early July of 2000.
On July 27, 2000, Rivera called Perez to a meeting to discuss her
performance, and areas of concern. Rivera drafted a memo that detailed his
areas of concern by listing numerous infractions which Perez allegedly
committed. As a result of this meeting, Rivera determined that Perez
would be transferred to the night shift. Rivera indicated that the
reasons for the transfer were because the shift that Perez supervised had
the most problems, to allow Perez to improve her performance, and to
balance the shifts. Perez alleges that the infractions, which Rivera
documented, are false and that they were fabricated solely to discipline
her for filing her internal complaint against Dahl. However, once again,
Perez admits that she committed a number of the infractions which were
detailed in Rivera's memo.
Perez filed three separate claims of discrimination with the Equal
Employment Opportunity Commission ("EEOC"). The first claim was filed on
July 25, 2000, and contained the allegations of the January 10, 2000
incident, the rumors of her imminent demotion or termination, and the
denial of an opportunity for a promotion. The second claim was filed on
August 4, 2000, and contained allegations of being retaliated against for
filing the first EEOC claim; specifically, that two days after she filed
the initial EEOC claim she was transferred to another shift under the
supervision of a lower ranking employee. However, it is undisputed that
NAH first learned of the EEOC charges on August 9, 2000. The third claim
was filed on January 24, 2001, and reiterated the allegations contained
in the second claim, and alleged that she had been constructively
Plaintiff left work on September 19, 2000 and then went on sick leave.
Plaintiff did not return to NAH afterwards, and tendered her resignation
letter to Rivera and the Human Resources department on November 19,
Perez filed the present lawsuit on October 26, 2000. Perez bases her
sexual discrimination claims on a mosaic of allegations. First, Perez
contends that NAH fostered a hostile work environment, as evidenced by:
1) the January 10th incident where Dahl hit her on the buttocks, 2) NAH's
failure to investigate the incident, 3) Dahl's actions in watching her
and taking notes, and 4) the actions of her co-workers who "shunned her
and isolated her and perpetuated rumors that she would be demoted" after
they learned of her complaint against Dahl. Second, Perez contends that
she was not promoted to the position of Lieutenant, while another male
employee with equal or lesser qualifications was awarded the promotion.
Third, Perez contends that after the alleged incident on January 10, NAH
retaliated against her for reporting the complaint.
She indicates that
her co-workers ostracized her and perpetuated rumors about her demotion
or termination, false allegations of policy violations were made against
her, she was transferred to another shift, and this transfer was in
effect a demotion because she was forced to report to a subordinate
employee. In addition, Perez contends that while she and another male
employee were ineligible for "comp time," she was denied "comp time,"
which was mistakenly given to another male employee.*fn6 in short, Perez
claims that she was constructively discharged, since all of these actions
led to a "work environment so uncomfortable that no person could
reasonably be expected to endure it."
NAH filed a motion for summary judgment, which the court now
A. Standards for Summary Judgment:
Summary judgment is permissible when "there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c), "Factual disputes are `material' only
when they `might affect the outcome of the suit under the governing
law.'" Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 610 (7th
Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The nonmoving party cannot rest on the pleadings alone, but must
identify specific facts, see Cornfield v. Consolidated High School
District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more
than a mere scintilla of evidence to show a genuine triable issue of
material fact. See Murphy v. ITT Technical Services, Inc., 176 F.3d 934,
936 (7th Cir. 1999). Thus, the nonmoving party "must do more than simply
show that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). "The days are gone, if they ever existed, when the nonmoving
party could sit back and simply poke holes in the moving party's summary
judgment motion." Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254,
1256 (7th Cir. 1990). Further, in deciding a motion for summary
judgment, the court can only consider evidence that would be admissible
at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).
The court views the record and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.
Fed.R.Civ.P. 56(c); see also Perdomo v. Browner, 67 F.3d 140, 144 (7th
Cir. 1995). "In the light most favorable" simply means that summary
judgment is not appropriate if the court must make "a choice of
inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655
(1962); see also Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir.
1996). The choice between reasonable inferences from facts is a jury
function. See Anderson, 477 U.S. at 255.
B. Sexual Discrimination Claims:
1. Hostile Work Environment:
Initially, it must be noted that Count I of Perez' complaint alleges
discrimination in violation of 42 U.S.C. § 1981(a). While, a
claim under § 1981 includes the same elements and employs the same
analysis and methods of proof as a Title VII claim, see Johnson v. City
of Fort Wayne, 91 F.3d 922, 940 (7th Cir. 1996), a claim for sexual
discrimination is not cognizable under § 1981. See Friedel v. City of
Madison, 832 F.2d 965, 967 fn. 1 (7th Cir. 1987). In Friedel, the Seventh
"It is important to note here, . . . that while
section 1983 and Title VII reach both sex and race
discrimination, claims of sex discrimination are not
cognizable under section 1981, e.g., Runyon v.
McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 2592, 49
L.Ed.2d 415 (1976); St. Louis v. Alverno College,
744 F.2d 1314, 1317 (7th Cir. 1984), and we have so
construed plaintiffs' amended complaint. We urge
counsel, however, to be more mindful of the
distinctions among sections 1981 and 1983 and Title
VII; drafting complaints is the business of the bar,
not the bench."
Id. With this admonition, this court follows the advice of Friedel, and
construes Perez' complaint of sexual discrimination under Title VII, and
addresses the motion for summary judgment.