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COX v. AMERICAN DRUG STORE

April 16, 2003

KATHLEEN M. COX, PLAINTIFF,
v.
AMERICAN DRUG STORES, D/B/A OSCO DRUG STORES, DEFENDANT.



The opinion of the court was delivered by: Amy J. St. Eve, United States District Judge

MEMORANDUM OPINION AND ORDER

Kathleen Cox filed a complaint against Osco Drug Stores ("Osco") on February 7, 2002. In her amended complaint, Cox claims that Osco engaged in gender discrimination and retaliation. (R. 21-1, Am. Compl. ¶ 3.) Osco moves for summary judgment, claiming that the undisputed facts show that it is entitled to judgment as a matter of law. The Court agrees and grants summary judgment in Osco's favor, as detailed below.

FACTS

Cox worked at Osco from June 10, 1996 through June 11, 2001 as a loss prevention supervisor. (R. 31-3, Def's Statement of Undisputed Facts ¶ 2.) Her department at Osco was responsible for investigating alleged wrongdoing and policy violations, such as sexual harassment and theft. (Id. ¶ 3.) Cox specifically investigated employee wrongdoings and policy violations. (R. 42-1, Pl.'s Statement of Additional Facts ¶ 1.)

I. Cox's Work In Wisconsin

In 1998, Cox transferred from Waukegan, Illinois to Milwaukee at the request of Tom Cairns, a district loss prevention manager. (R. 31-3, Def's Statement of Undisputed Facts ¶ 8.) While working in Milwaukee, one of Cox's job duties was to conduct sexual harassment interviews at various stores. (Id. ¶ 10.) In May 1999, Cairns stopped supervising Cox because Osco transferred him from Milwaukee to Illinois. (Id. ¶ 11.) Cox began reporting to Bruce Abraham, the senior district loss prevention manager in Milwaukee. (Id. ¶ 12.)

A. Offensive Comments in Wisconsin

1. Daryl Gunter

Daryl Gunter was an operations manager at Osco Store No. 1301 in Milwaukee. (R. 31-3, Def's Statement of Undisputed Facts ¶ 14.) He had no authority to hire, fire, demote or transfer Cox. (Id. ¶ 19.) In May 1999, Gunter told Cox that in order for him to have sex with his wife he would have to take cash loans from the safe to pay her. (Id. ¶ 14.) Cox complained of this statement to Cairns, who responded that "he would handle it." (Id. ¶¶ 15-16.)*fn1 After the incident, Cox had no more contact with Gunter.

2. Security guard

Sometime between May and September 1999, Cox saw a security guard watching his children in a parked car. (R. 31-3, Def's Statement of Undisputed Facts ¶ 21.) The security guard, who was supposed to be on duty, worked for an outside vendor and was not an employee of Jewel or Osco. (Id. ¶ 27.) After Cox told the security guard that his behavior was inappropriate, he told her to "mind her own fucking business" and called her a "fucking bitch." (Id. ¶ 22.) Cox telephoned Cairns to report the incident. (Id. ¶ 23.) Cairns said that he would contact the supervisor of security. (Id.)*fn2 A her this incident, the security guard said nothing else offensive to Cox. (Id. ¶ 26.)

3. David DeJesus

David DeJesus was a store security manager at Jewel Store No. 453 in Milwaukee. (R. 31-3, Def's Statement of Undisputed Facts ¶ 39.) Cox did not report to DeJesus, even though he was a level higher than her. (Id. ¶ 40.) He had no authority to hire, fire, demote, promote or transfer Cox. (Id. ¶ 41.) Cox was training DeJesus on October 25, 1999, when he told her that she only had her job was because she was sleeping with all three of her bosses. (Id. ¶ 39.) A few days later, DeJesus told Cox that females should wear camouflage panties. (Id. ¶ 42.) Cox complained to management about DeJesus. (Id. ¶ 43.)

As a result of her complaint, two Osco employees attempted to interview Cox. (Id.) Because Cox was too embarrassed to talk about DeJesus' comment, she presented her interviewers a written statement instead. (Id. ¶ 44.) She stated that two female employees witnessed the Statement. (Id. ¶ 45.) These two female employees later admitted, however, that they, instead of DeJesus, made the comments about the panties. (Id. ¶ 46.)

4. Reimbursement for mileage

From September through November 1999, Bruce Abraham denied Cox's requests for reimbursement for mileage driven to conduct work-related interviews. (R. 31-3, Def's Statement of Undisputed Facts ¶ 28.) Osco, however, has since reimbursed Cox for these miles. (Id. ¶ 30; R. 43-1, Pl.'s Objections to Def's Undisputed Facts ¶ 30.)

B. Travel in Wisconsin

Because Osco was short-staffed in the Milwaukee area, Cox took on many duties that were not ordinarily a part of her job responsibilities as a senior loss prevention supervisor, including traveling to different stores to conduct sexual harassment interviews. (R. 31-3, Def's Statement of Undisputed Facts ¶¶ 31-32.) The amount of traveling and added hours caused Cox to feel a lot of pressure. (Id. ¶ 35.) As early as the Fall 1998, Cox complained to Cairns about the amount of traveling she was required to do. (Id. ¶ 34.) She expressed concern about having to travel to stores that she thought were located in high-crime areas. (Id.)

C. Absence on December 31, 1999

Osco required the whole loss prevention department to work on December 31, 1999. (R. 31-3, Def's Statement of Undisputed Facts ¶ 48.) Cox expressed concern about her store assignment. (Id. ¶ 49.) She claimed that the store was located in a high crime area and she did not want to work there alone. (Id. ¶ 50.) Abraham told Cox that she would not be alone there. (Id.)

Cox called her supervisors to report that she would not be working on December 31, 1999 because her father-in-law had died. (Id. ¶ 53.) Abraham asked Cox to provide a death certificate. (Id.) Abraham testified that he suspected that Cox intentionally did not report to work because she was not satisfied with her assignment for that night. (Id. ¶ 55.) Initially, Cox refused to provide Abraham with the proof he requested. (Id. ¶ 56.) As a result, Abraham wrote her up for insubordination. (Id.) Cox then gave Abraham a letter from a funeral director that indicated that she had attended the funeral services of her father-in-law on December 30, 1999. (Id. ¶ 57.) Osco eventually removed the write-up from her file. (Id. ¶ 58; R. 43-I, Pl.'s Objections to Def's Undisputed Facts ¶ 58.)

D. Cox's Wisconsin discrimination charge

On January 22, 2000, Cox filed a discrimination charge with the EEOC and Wisconsin's Equal Rights Division. (R. 31-3, Def's Statement of Undisputed Facts ¶ 59.) In that charge, Cox complained that she was sexually harassed by DeJesus, that Osco denied her a promotion, that Osco refused to reimburse her miles, and that Osco disciplined her for refusing to provide proof of her father-in-law's death. (Id. ¶ 59.) Cox did not complain about Gwiter's comment. (Id. ¶ 61.) Cox later withdrew her complaint. (Id. ¶ 60.)

II. Cox's Work in Illinois

Osco honored Cox's request to transfer to the Waukegan, Illinois area on January 24, 2000. (R. 31-3, Def's Statement of Undisputed Facts ¶ 62.) Osco assigned Cox to one store ("Waukegan store"). (Id. ¶ 66.) As a result of the transfer, she reported to Chip Huguelot, another district loss prevention manager. She was grateful for the transfer and felt well-liked in Waukegan as of February ...


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