United States District Court, N.D. Illinois
January 16, 2004.
TERRY L. BOEBEL, Plaintiff
COMBINED INSURANCE COMPANY OF AMERICA, Defendant
The opinion of the court was delivered by: DAVID COAR, District Judge
JUDGMENT IN A CIVIL CASE
? Jury Verdict. This action came before the Court for a trial by
jury. The issues have been tried and the jury rendered its verdict.
? 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
IT IS HEREBY ORDERED AND ADJUDGED that For the reasons given in the
attached Memorandum Opinion, Defendant's motion for summary judgment
[Doc. 45] is GRANTED in its entirety.
Summary Judgment is hereby entered in favor of the defendant Combined
Insurance Company of America and against the plaintiff Terry L. Boebel.
All other pending motions are moot and terminated. This case is closed.
MEMORANDUM OPINION AND ORDER
Terry L. Boebel ("Boebel" or "Plaintiff) is one of ten former and
current female employees who filed a lawsuit on December 14, 2001,
seeking to represent a class of women employed by Combined Insurance
Company of America ("Combined" or "Defendant"). This lawsuit, before the
late Judge James Alesia, alleged hostile work environment, retaliation,
and sex discrimination against women on a class wide basis. Judge Alesia
objected to the joinder of the ten named plaintiffs in a class action
suit, and instructed them to file an amended complaint. However, nine of
the ten plaintiffs (including Boebel) filed a motion to dismiss their
claims. On February 12, 2002, Judge Alesia dismissed these nine
plaintiffs without prejudice. On March 8, 2002, eight of the nine
plaintiffs, including Boebel, filed individual lawsuits. Before this
Court is Defendant's motion for summary judgment on Plaintiff's sex
discrimination/harassment, and retaliation claims. For the reasons set
forth below, Defendant's motion for summary judgment is GRANTED in its
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if, "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Schuster v. Lucent Technologies, Inc.,
327 F.3d 569, 573 (7th Cir. 2003) (quoting Fed.R.Civ.P. 56(c)).
When evaluating a motion for summary judgment, the Court views the
evidence in the light most favorable to the non-moving party and makes
all reasonable inferences in her favor. See Haywood v. Lucent
Technologies, 323 F.3d 524 (7th Cir. 2003). The Court accepts the
non-moving party's version of any disputed facts, but only if those facts
are supported by relevant, admissible evidence. Bombard v. Fort
Wavne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).
The moving party has the burden of demonstrating the absence of genuine
issues of material fact for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Hedberg v. Indiana Bell Tel. Co.,
47 F.3d 928, 931 (7th Cir. 1995). If the moving party meets this burden, the
non-moving party must set forth specific facts that demonstrate the
existence of a genuine issue for trial. Rule 56(e); Celotex,
477 U.S. at 324. To successfully oppose the motion for summary judgment,
the non-moving party cannot rest on the pleadings alone but must
designate specific facts in affidavits, depositions, answers to
interrogatories, or admissions that establish that there is a genuine
triable issue. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.
I. Overview of Plaintiff's Claims
Plaintiff's allegations of discrimination are divided into three main
categories: (1) hostile environment based upon sexual harassment; (2) sex
discrimination as a result of the disparity in the quality of assignments
Plaintiff and failure to promote because of her gender; and (3)
retaliation by Combined supervisors because of Plaintiffs complaints
of discrimination. For efficiency purposes, the Court will provide a
separate section of undisputed facts for each category of alleged
discrimination. All facts are taken from the Parties' Local
Rule 56.1(a)(3) and (b)(3) Statements of Undisputed Facts. All facts, unless
noted otherwise, are undisputed, with all inferences resolved in favor of
the non-movant. At the outset, however, the Court will set forth the
employment hierarchy system at Combined, and Plaintiff's employment
history with Combined.
A. Combined's Employment Structure*fn1
The entry-level position at Combined is a Sales Agent.*fn2 Sales
agents are primarily responsible for selling insurance door-to-door.
A Sales Agent reports to his or her Sales Manager.*fn3 Sales Managers
also sell insurance door-to-door; however, Sales Managers also provide
assistance to the Sales Agents they supervise, including training. Sales
Managers also do paperwork and recruit Sales Agents to work for Combined.
A Sales Manager reports to his or her District Manager. While District
Managers are primarily responsible for deciding how to divide assignments
between Sales Managers, Sales Managers and District Managers can work
jointly to divide assignments. (Pl. Resp. to Def. Facts, ¶ 22).*fn4
District Managers are also
responsible for the supervision of Sales Managers.
District Managers report to their Sub-Regional Manager. A
Sub-Regional Manager will report to his or her Regional Manager. A
Regional Manager will report to his or her Divisional Manager.
Sub-Regional Managers, Regional Managers, and Divisional Managers are
able to sell insurance as well. (See Def. Resp. to Pl.'s Facts, ¶
14*fn5). However, some of the employment duties particular to
Sub-Regional Managers and Regional Managers include supervising District
Managers and Recruiting new Sales Agents.
B. Plaintiff's Employment History With Combined
Boebel began her employment with Combined in 1989, in the Midwest
Division (located in Wisconsin) as a Sales Agent. Boebel spent the
greater part of the next eleven years employed with Combined, holding
various positions, and spending time in three different states Iowa,
Wisconsin, and Illinois. Boebel's first promotion at Combined came in
1991, when she was promoted to the position of a District Manager in
Wisconsin. Boebel then occupied various sales positions in Wisconsin and
Illinois with Combined until 1994, when she resigned to work in the field
of investment insurance.
In December 1995, Boebel returned to Combined as a Sales Agent, under
the supervision of Ray Galindo ("Galindo"). In September 1996, Galindo
promoted Boebel to the position of District Manager. The Plaintiff worked
in various sales positions in Iowa, Illinois, and Wisconsin, until she
resigned from Combined, in 1998.
In December 1998, Boebel returned to Combined, this time to work in
Wisconsin. Plaintiff resigned in 1999. In July 1999, Boebel returned to
Combined as a Customer Service Agent in Iowa, working under Sales Manager
Bonnie Shaffer ("Shaffer") and District Manager Lyle Meisner ("Meisner").
Boebel was promoted to the position of Sales Manager in Iowa in December
1999. Plaintiff resigned for the final time in
II. Timeliness of Plaintiff's Allegations
Before the merits of Boebel's claims can be addressed, the Court must
address whether any of Boebel's allegations of discrimination are
time-barred. In Illinois, a plaintiff must file a charge of
discrimination with the Equal Employment Opportunity Commission ("EEOC")
or equivalent state agency within 300 days after the "alleged unlawful
employment practice." 42 U.S.C. § 2000 e-5(e)(1). The 300-day limit
begins to run when the defendant has taken the action that injures the
plaintiff and when the plaintiff knows that she has been injured.
Sharp v. United Airlines. 236 F.3d 368 (7th Cir. 2001).
Boebel filed her charge of discrimination with the EEOC on January 16,
2001. Therefore, the Defendant contends that any discrete acts of
discrimination that occurred prior to March 22, 2000 are time
barred.*fn7 The Court agrees with the Defendant, and in analyzing
Plaintiffs' sex discrimination and retaliation allegations, all discrete
acts that occurred prior to March 22, 2000 are time-barred. However, in
analyzing Defendants' sexual harassment/hostile work environment claims,
the Court will consider all events that occurred during Boebel's
employment with Combined from July 1999 until September 2000.
A recent Supreme Court decision assists in clarifying the timeliness
requirement. In National Railroad Passenger Corp. v. Morgan.
536 U.S. 101 (2002), the Court held that a plaintiff must file a charge
for discrete acts of discrimination (such as termination, failure to
promote, denial, or transfer) that occur within 300 days of the date of
the act or "lose the ability to recover from it." Id. at 110.
However, because hostile environment claims, " are based on the
cumulative effect of individual
acts" (Id. at 115), the Court held that incidents
constituting a hostile work environment are part of one unlawful
employment practice, and the employer may be liable for all acts that are
part of the single claim. Therefore, the employee need only file a charge
within 300 days of any act that is part of the hostile work environment.
Id. at 118.
However, if acts occurred outside of the limitations period, they still
must have some connection to the events that occurred within the
limitations period. Id. at 118. ("Intervening actions" may make
incidents outside the period no longer part of the same hostile
environment claim. Id.). Further, a significant gap between the
acts within the limitations period and those outside of it may be a bar
to the Plaintiff's ability to rely upon those acts outside of the
limitations period. See Garrison v. Burke. 165 F.3d 565, 570
(7th Cir. 1999) (an attack that took place outside of the limitations
period did not "reinforce" acts within period because of a two-year gap
between them. Id.)
The incidents that occurred to Boebel at Combined prior to July 1999
are not sufficiently connected to those events that occurred between July
1999 and September 2000, and do not constitute a "continuing violation."
"A continuing violation is one that could not reasonably have been
expected to be made the subject of a lawsuit when it first occurred
because its character as a violation did not become clear until it was
repeated during the limitations period." Dasgupta v. University of
Wisconsin Board of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997). A
Plaintiff could receive relief for a time-barred act by linking it with
one within the limitations period. Doe v. R.R. Donnelly & Sons
Co., 42 F.3d 439, 445 (7th Cir. 1994). Boebel testified that she
resigned from Combined in 1998 and 1999 because of the intolerable
working conditions caused by sex discrimination. This testimony indicates
that Boebel was cognizant of the potentially discriminatory nature of the
incidents prior to July 1999 when they. Further, there is a significant
time gap between the events that occurred prior to July 1999. Therefore,
only those events occurring between July 1999 and September 2000 will be
considered in Plaintiff's hostile work environment claim.
III. Plaintiffs' Allegations of Sexual Harassment/Hostile Work
A. Boebel's Allegations
Boebel alleges that she was subjected to a hostile work environment on
the basis of her gender, and that the following conduct contributed to
this hostile work environment. Plaintiff alleges that Meisner: (1)
discriminated against her by giving her poor assignments, failed to
promote her, prevented her from performing the required duties of a Sales
Manager, and denied overrides; (2) harassed her when he was her District
Manger; (3) yelled, criticized, and used demeaning remarks toward her;
(4) monitored her excessively; (5) demanded more from her than from men
(including the requirement of mandatory attendance at all meetings).
Plaintiff also alleges that Meisner's supervisor, Galindo: (1) failed to
stop Meisner from harassing other women after Combined became aware of
his conduct; (2) transferred Boebel from Meisner's district to John
Miller's ("Miller") district involuntarily; (3) placed a 100 call
requirement on Boebel; and (4) failed to take effective remedial actions
when Boebel complained about Meisner. Boebel also alleges constructive
discharge as a consequence of this hostile work environment.
Before addressing Boebel's allegations of discrimination, the Court
notes that the incidents in claim 1 (poor assignments, denial of a
promotion, denial of ability to perform job duties, denial of overrides)
are the same incidents Plaintiff claims resulted in sex discrimination
and subsequent adverse employment decisions. The Court agrees with
Defendant that these incidents are more appropriately addressed in
Plaintiff's sex discriminations allegations, and should only be analyzed
under one theory of discrimination. See Morgan. 536 U.S. at
115-116 ("Hostile work environment claims are different in kind from
1. Boebel's Claims of Harassment/Hostile Work Environment
Created by Meisner
The Plaintiff suffered a heart attack in January 2000. In February
2000, Meisner commented that Boebel suffered from her heart attack
because of a lack of sex. Meisner repeated this comment to Boebel in May
2000. Boebel also divorced her husband in the year 2000. After her
divorce, Meisner would tell Plaintiff that if she had a boyfriend, she
would be in a better mood. (Pl. Facts, ¶ 236*fn8). Meisner would
comment to others that Boebel was unable to keep a husband, and would
remark that there was a gentleman with whom Boebel could have an affair.
(Id. at ¶¶ 237, 240).
During team meetings, when Meisner was Boebel's District Manager, he
would tell jokes of a sexual nature. Boebel also alleges that Meisner
constantly screamed at, demeaned, and criticized her. Meisner would often
scream at her during morning meetings. Further, Plaintiff alleges that
she and all the women were required to attend all team meetings, while
the men were not. (Pl. Facts, ¶¶ 208-219). Plaintiff had to engage in
extensive travel to complete her assignments, as they were far in
distance from one another. (Id. at ¶ 205). Boebel also felt
that Meisner and his wife, Sharon, were following up and checking up on
her, which is behavior Plaintiff does not believe occurred with male
employees. (Id. at ¶ 249). Boebel verbalized these
complaints to Lyle and Sharon Meisner.
2. Boebel's Allegations of Hostile Work Environment Created by
Boebel made various complaints to Galindo, Meisner's supervisor, about
the way she was treated by Meisner. In addition to the complaints
concerning meeting attendance requirements, Plaintiff told Galindo that
Meisner: (1) would not hand out blocks of business to her (which meant
she would only receive individual assignments), but that Miller did
receive blocks of business (Pl. Facts, ¶ 321); (2) would not allow
her to complete her Sales Manager duties (Id. at ¶ 322);
(3) would use his wife Sharon to hand out assignments (Id. at
¶ 323); and (4) would give Miller a higher
percentage of his overrides than he did to Boebel (Id. at
¶ 324). Galindo subsequently transferred Boebel to Miller's district.
After the transfer to Miller's district in June 2000, Galindo imposed
upon Boebel the requirement that she "write 100 call" (meaning that she
sell 100 units of insurance in one week), in order to keep her Sales
Manager position. Galindo imposed the 100 call requirement because he
felt she had a lack of new sales, a lack of desire to attend meetings,
and a lack of desire to train new Sales Agents or have people report to
3. Sexual Harassment of Other Women Employed With Combined
a. Allegations of Harassment by Meisner
Boebel often heard Meisner remark on the size of Bonnie Shaffer's
("Shaffer") chest. After Shaffer lost a significant amount of weight,
Meisner remarked that if she lost any more weight, she would topple over.
Neither party seriously disputes that this remark was in reference to
Shaffer's chest size. Boebel also heard Meisner refer to Shaffer and
Patricia Schams as bitches.
b. Allegations of Harassment by Others
In March 2000, there was an incident at a Combined "Ardmore."*fn9
There were rumors that several of the attending Sales Agents (both male
and female) were naked in a hot tub together. Boebel was alerted to these
rumors by Eric Brown, a Sales Agent.
At the same March 2000 Ardmore, a female Sales Manager wore a short
skirt and high heels, and all of the male employees stared at this woman.
This upset Boebel because she heard that this Sales Manager engaged in
sexual relations with a number of male employees, and because of this,
received preferential treatment.
Title VII's prohibition against sex discrimination protects employees
against unwelcome sexual advances that create an offensive or hostile
work environment. Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57 (1986). Harassment need not be linked to an economic quid pro quo;
rather, it encompasses all forms of conduct that unreasonably interfere
with an individual's work performance or create an intimidating, hostile,
or offensive working environment. Id.
For the harassment to be actionable, it must be sufficiently severe or
pervasive so as to alter the conditions of the victim's employment and to
create an abusive working atmosphere. Meritor, 477 U.S. at 67.
The statute protects the worker against conduct a reasonable person might
find hostile or abusive. However, if the victim does not subjectively
regard the environment as abusive, the conduct has not actually altered
the victim's employment and there is no Title VII violation. Harris
v. Forklift Systems, Inc., 510 U.S. 17, 20 (1993). Whether
harassment is sufficiently severe or pervasive must be determined by
evaluating all of the circumstances, including, "the frequency of the
discriminating conduct, its severity, whether it is physically
threatening or humiliating, and whether it unreasonably interferes with
the worker's performance." Faragher v. City of Boca Raton,
524 U.S. 775, 787-88.
"The critical issue is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the
other sex are not exposed." Oncale v. Sundower Offshore Services.
Inc., 523 U.S. 75, 80 (1998). Inappropriate conduct that is
inflicted regardless of sex is not be addressed by Title VII. Holman
v. Indiana. 211 F.3d 399, 403 (7th Cir. 2001). "The discrimination
laws do not mandate admirable behavior from employees, through their
supervisors or other employees. Instead, the law forbids an employer from
creating an actionably hostile work environment for members of protected
classes." Russell v. Board of Trustees of University of Illinois at
Chicago. 243 F.3d 336 (7th Cir. 2001).
The Court finds that Plaintiff's claim of a hostile work environment
cannot survive summary judgment. Meisner's conduct and comments,
undoubtedly inappropriate in a work environment, and particularly
insensitive to Plaintiff's heart attack, do not rise to the level of
severe and pervasive workplace harassment based upon gender. Although
several of Meisner's comments have sexual overtones, those comments were
not sufficiently severe or pervasive for an actionable hostile work
environment cause of action.
Plaintiff argues that when Meisner's sexual and non-sexual comments are
analyzed together, she presents sufficient facts for a reasonable trier
of fact to find a hostile work environment. The Seventh Circuit has held
that a series of non-sexual incidents that singly may not constitute
adverse employment actions may collectively amount to a discriminatory
hostile work environment. See Haugerud v. Amery School
District. 259 F.3d 678, 692 (7th Cir. 2001). However, all incidents
and comments, both sexual and non-sexual, must be sufficiently severe or
pervasive to constitute a cognizable hostile work environment claim. Even
when analyzing the sexual and non-sexual incidents together as part of
one hostile environment cause of action, Boebel's claim does not rise to
the level of being sufficiently severe or pervasive that a reasonable
trier of fact could determine that Boebel's work environment was hostile
based upon her gender.
Boebel also contends that the harassment she faced, in light of the
harassment that other women at Combined were subjected to (some Plaintiff
observed and some Plaintiff did not observe), is sufficient to defeat
Defendant's motion for summary judgment on this issue. Incidents directed
at others do have some relevance in determining whether a hostile work
environment existed. (See, Hirsae-Doi v. U.S. West
Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995)); Hall
v. Gust Const. Co., Inc., 842 F.2d 1010, 1015 (8th Cir. 1988)).
However, "the impact of `second-hand harassment' is obviously not as
great as the impact of harassment directed at the plaintiff."
Gleason v. Meisrow Financial, Inc., 118 F.3d 1134, 1144 (7th
Cir. 1997) (citing Rennie
v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993)). It is
reasonable to conclude that the incidents that occurred to other women at
Combined had some impact on Boebel's work environment. However, even when
the Court analyzes Boebel's claim in light of the second hand harassment,
and the sexual and non-sexual comments directed towards Boebel, her claim
still fails to allege incidents sufficiently severe or pervasive that a
reasonable trier of fact could conclude that Boebel's work environment
was hostile because of her gender.
Also fatal to Plaintiff's claim is the fact that Boebel admits that
from July 1999 through September 2000, she would usually only see Meisner
once a month or once every other month. Further, Boebel does not have any
recollection of Meisner making any sexual or inappropriate comments after
she transferred to Miller's district in June 2000. This fact makes it
extremely difficult for Plaintiff to argue that Meisner's comments
constituted harassment so severe or pervasive as to render Combined a
hostile work environment for Boebel based on her gender. Therefore,
Boebel cannot establish that she was constructively discharged because of
her working conditions.*fn10 Defendant's Motion for Summary Judgment on
the issue of hostile environment/ sexual harassment, and constructive
discharge as a consequence of that harassment, is GRANTED.
IV. Sex Discrimination
A. Boebel's Allegations
Boebel alleges that the following incidents of sex discrimination
occurred between March 22, 2000 and September 2000. Plaintiff alleges,
because of her gender, that she was: (1) given
poor assignments under both Meisner and Miller that adversely
affected her income; (2) denied a promotion to District Manager in the
Dubuque, Iowa area (Miller was promoted to that position); (3) prevented
from performing the duties of a Sales Manager under Meisner or Miller;
(4) denied an equal share of overrides from Meisner's sales; and (5)
1. Poor Assignments Under Meisner and Miller
At her deposition, Boebel testified that Meisner would pull
renewal cards out of Boebel's assignments, and give those assignments to
his wife, Sharon, a practice that Plaintiff does not believe would occur
with Miller's assignments. (Pl. Facts, ¶ 187). Boebel also testified
that Meisner would pull out a large renewal from Boebel's assignment
claiming that there was a problem with it, when he would not pull a large
renewal from the men's assignments. (Id. at ¶ 188).*fn11
Additionally, Plaintiff testified that Meisner gave Boebel smaller
assignments on a daily or weekly basis, while he gave Miller "blocks of
business" (meaning assignments for his areas all at once).
(Id. at ¶ 194).
2. Denial of Promotion to District Manager in 2000
In June 2000, Meisner recommended that Miller be promoted to
District Manager, and in June 2000, Galindo promoted Miller to District
Manager for the Dubuque, Iowa area. Boebel would have taken a District
Manager promotion in the Dubuque area, as it was closer to her home than
her current assignments. Sometime in the year 2000, Plaintiff expressed
to Galindo that she wanted to be a District Manager in the Dubuque, Iowa
area.*fn12 Plaintiff alleges that Meisner took
steps to prepare Miller for the District Manager position,
including assigning Miller to train people, conducting field training
with Miller, and sitting in when Miller participated in meetings, steps
that Meisner failed to take with Combined's female employees. (Pl. Facts,
3. Prevention of Performance of Sales Manager Duties
At Combined, Sales Managers were typically given assignments, and
would then divide those assignments among his or her Sales Agents (PL
Fact, ¶ 161). Sales Managers were handed an actual box (called a
route box) with the "route month" in it. (Id). Each county is
broken down into route months. (Id). Boebel alleges that she
was not allowed to hand out assignments to her Sales Agents
(Id. at ¶ 163). Further, at her deposition, Boebel
testified that the only Sales Manager duty that she was allowed to
perform was to train new salespeople (which meant she had to split a
week's worth of work with that trainee). (Id).
4. Denial of Overrides from Meisner's Sales
For a Sales Manager, an override is the percentage he or she makes
from the renewals and new sales of their Sales Agents. Another type of
override is the percentage a Sales Manager receives from the renewals and
new sales of his or her District Manager. Sales Managers can also earn
overrides from their own renewals and new sales. District Managers have
discretion to decide whether to give a Sales Manager overrides. If a
District Manager's overrides are not put on a Sales Manager's overrides,
then the overrides revert back to Combined. Boebel alleges that Miller
received more overrides from Meisner than she did when they worked as
sales managers under him.
Because the Plaintiff has not presented any direct evidence of sex
discrimination, the Court must operate under the
McDonnell-Douglas burden shifting test. McDonnell Douglas
Green. 411 U.S. 792 (1973). Under the
McDonnell-Douglas burden shifting test, a plaintiff must
establish four elements for a prima facie case of discrimination: (1) she
is a member of a protected class; (2) she was performing her job
satisfactorily; (3) she suffered an adverse employment action; and (4)
the defendant treated similarly situated employees outside her class more
favorably. Simpson v. Borg-Warner Automotive, Inc.,
196 F.3d 873, 876 (7th Cir. 1999). If the plaintiff succeeds in
demonstrating his or her prima facie case with evidentiary-quality
materials, the burden shifts to the defendant to articulate a legitimate
business justification for the action. See St. Mary's Honor Center v. Hicks.
509 U.S. 502, 507 (1993). Once the defendant does so, the plaintiff must
present sufficient evidence to create a triable issue with respect to
whether this justification is pretextual. Id. at 508.
The two disputed factors of the McDonnell-Douglas paradigm
are the third and fourth prongs. The parties dispute whether the
decisions regarding Plaintiff's employment were materially adverse, and
secondly, whether Boebel was similarly situated to males who allegedly
received more favorable treatment by Combined. Specific examples of
adverse employment actions are identified in 42 U.S.C. § 2000
e-2(a)(1), (2), including discrimination with respect to, "compensation,
terms, conditions, or privileges of employment or limiting employees in
any way that would deprive or tend to deprive any individual of
employment opportunities." The alleged adverse action must be material.
Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996)
(citing Crady v. Liberty Nat'l Bank and Trust Co.,
993 F.2d 132, 136 (7th Cir. 1993)). Further,
A material adverse change in the terms and
conditions of employment must be more disruptive
than a mere inconvenience or an alteration of job
responsibilities. A materially adverse change
might be indicated by a termination of employment,
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.
Boebel's allegations of inferior assignments*fn13 do not constitute a
materially adverse employment action. Plaintiffs primary complaint about
her assignments concerned the level of difficulty of her assignments
compared to the assignments men received. However, the Plaintiff's
superior years of experience with Combined (compared to the men in her
district) made it reasonable that Plaintiff would receive more difficult
assignments. Additionally, these assignments did not adversely affect
Plaintiff's salary. In fact, Plaintiff made more than the men she
compares herself to. (See Pl. Resp. to Def. Facts ¶ 134).
In sum, although Boebel received assignments that she perceived to have
been more difficult than those that men received, because she has not
demonstrated an adverse impact on her salary based upon her assignments,
they cannot be deemed inferior. Therefore, the assignments she received
cannot constitute an adverse employment action.
Further, Plaintiff has not provided evidence to demonstrate that her
administrative responsibilities as a Sales Manager*fn14 were any
different than those of the male Sales Managers in Meisner's or Miller's
Districts>. Boebel's evidence only shows that she did not like the duties
that Meisner's and Miller's Sales Managers had to perform. (See
Def. Resp. to Pl.'s Facts, ¶¶ 161-162). "Not everything that makes an
employee unhappy is an actionable adverse action." Smart v. Ball
State University. 89 F.3d 437, 441 (7th Cir. 1996). Because Boebel's
duties as a Sales Manager were comparable to those of all other Sales
Managers in her District, Boebel has failed to demonstrate that any
materially adverse action occurred in relation to her duties as a Sales
Finally, Boebel has not provided sufficient evidence to indicate
that Meisner's procedure for distributing overrides from his sales was an
adverse employment action. Meisner's decision to provide overrides
derived from his own sales was completely discretionary. These
overrides can be deemed "sporadic bonuses." Therefore, Plaintiff cannot
argue that these overrides were a component of her salary. A denial of a
bonus is not sufficiently materially adverse when it is, "sporadic,
irregular, unpredictable, and wholly discretionary on the part of the
employer." Fyfe v. City of Fort Wayne, 241 F.3d 597, 602-03
(7th Cir. 2001); See also Rabinovitz, 89 F.3d at 488 (the loss
of a bonus is not an adverse employment action when the employee is not
automatically entitled to the bonus). Further, the discrepancy between
the amount of overrides received between Plaintiff and Miller averaged
less than ten dollars a month. (See Def. Facts, ¶ 3).*fn15
This small discrepancy in the amount of overrides between Boebel and
Miller prevents Plaintiff from arguing that this was a materially adverse
Therefore, the only allegation sufficient for analysis under the fourth
prong of the McDonnell-Douglas burden shifting test is whether
the failure to promote Boebel to the 2000 District Manager position was
the result of sex discrimination. The Plaintiff has raised a genuine
issue of material fact as to whether she was as qualified as Miller for
the Dubuque District Manager position, based on her prior experience as a
District Manager, and largely favorable performance at Combined.
(See Pl. Facts, ¶¶ 371-374).
Assuming that Plaintiff can meet the burden of establishing a prima
facie case of discrimination under the McDonnell-Douglas
burden-shifting the test, the burden now shifts to the
Defendant to provide a legitimate, non-discriminatory reason for
the promotion of Miller over Boebel. Combined provides four reasons that
were articulated by Galindo, explaining why Galindo chose Miller over
Boebel for the District Manager position.*fn16 Miller: (1) demonstrated
more interest in the position; (2) threatened to quit if he did not
receive the position; (3) lived in the Dubuque area and had more
familiarity selling in that area; (4) was generally "more qualified" for
the Dubuque District Manager position than Boebel.*fn17
Since Combined has proffered legitimate, nondiscriminatory reasons for
the decision to promote Miller, the burden shifts to Boebel to show that
these were not the true reasons for Miller's promotion over Boebel.
See Rush v. McDonald's Corp., 966 F.2d 1104, 1115 (7th Cir.
1992). Although there is a genuine dispute as to whether Boebel and
Miller were "similarly situated", which factors into whether Miller was
"more qualified" than Boebel, Plaintiff has failed to show that the
first, second and third proffered reasons for the promotion of Miller to
District Manager were pretextual. Plaintiff has not presented sufficient
evidence to rebut the contention that Miller showed more interest in the
District Manager position. Secondly, the Plaintiff admitted that Miller
stated he would quit if he did not receive the District Manager position
in Dubuque. Finally, although Plaintiff did have some experience in
Dubuque, Miller has lived in Dubuque since 1980,
while Plaintiff lived in Seneca, Wisconsin when the District
Manager position was created.
Because Plaintiff has not established that her working conditions from
March 22, 2000 until September 2000 were discriminatory, Plaintiff cannot
successfully argue her claim of constructive discharge. Therefore,
Defendant's motion for summary judgment on the issues of sex
discrimination, and constructive discharge as a result of that
discrimination, is GRANTED.
A. Plaintiff's Allegations of Retaliation
Boebel's claim of retaliation contains three timely charges: (1)
Plaintiff was retaliated against for complaining about the discriminatory
manner in which she was treated; (2) Meisner retaliated against Boebel
for making complaints against him to Galindo and made adverse employment
decisions because of those complaints; and (3) Galindo also made
employment decisions adverse to Boebel, in retaliation for her complaints
against Meisner. Plaintiff's retaliation claim is indistinguishable from
certain allegations of her discrimination claim. "While Title VII imposes
liability for discrimination and retaliation, these are separate wrongs,
and must be argued as such." Martins. 203 F. Supp.2d 958, 971
(N.D. Ill. 2001) (citing Berry v. Delta Airlines, Inc.,
260 F.3d 803, 809-10 (7th Cir. 2001)); Heur v. Weil-McClain,
203 F.3d 1021, 1022-23 (7th Cir. 2000). However, the Court will analyze
Boebel's allegations of retaliation.
Plaintiff has alleged several of the same claims in her retaliation
claim and hostile environment claim. Therefore, the Court incorporates by
reference the facts listed in Sections III.B.I and III.B.2 of the
Discussion Section of this opinion with the following additional facts.
Meisner was aware that Boebel made complaints about him to Galindo. As
a result, Meisner did not want Boebel to work in his district anymore.
(Pl. Facts, ¶ 335). Every time she made a complaint about Meisner,
Boebel's assignments became further away from her home, under both Miller
and Meisner. (Id. at ¶ 338). As a result of her complaints
about Meisner, Galindo involuntarily transferred her to Miller's
district. (Id. at ¶ 388).
Employers are prohibited from punishing employees for complaining
about discrimination or other practices that violate Title VII.
42 U.S.C. § 2000e-3(a); Miller v. Am. Family Mutual Ins. Co.,
203 F.3d 997, 1007 (7th Cir. 2000). A plaintiff may establish a prima facie
case of retaliation under the direct or indirect method. Stone v.
City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir. 2002).
Under the direct method, the plaintiff must present direct evidence of
(1) a statutorily protected activity; (2) an adverse action taken by the
employer; and (3) a causal connection between the two. Id. at
Under the indirect method, a plaintiff must show: (1) she engaged in
statutorily protected activity; (2) she performed her job according to
her employer's legitimate expectations; (3) despite her satisfactory job
performance, she suffered an adverse employment action; and (4) she was
treated less favorably than similarly situated employees who did not
engage in statutorily protected activity. Id.; Hilt-Dyson
v. City of Chicago. 282 F.3d 456, 466 (7th Cir. 2002). Once the
plaintiff establishes a prima facie case, the burden of production shifts
to the defendant to assert a legitimate, non-retaliatory reason for its
actions. Griffin v. Board of Regents of Regency Universities.
795 F.2d 1281, 1294 (7th Cir. 1986). If the defendant rebuts the
plaintiff's prima facie case in this manner, then she will have a chance
to show that the defendant's proffered reasons are pretextual.
Johnson v. University of Wisconsin-Eau Claire. 70 F.3d 469,
478-79 (7th Cir. 1995).
For the same reasons Plaintiff's sex discrimination claim fails, her
retaliation claim fails. Boebel has failed to meet her burden of
persuasion and show that she complained that she was discriminated
against because of her sex.*fn18 "An employee need not use the magic
words `sex' or `gender discrimination' to bring her speech within Title
VII's retaliation protections." Sitar v. Indiana Dept. of
Transp., 344 F.3d 720, 727 (7th Cir. 2003). However, "she has to at
least say something to indicate her [gender] is an issue. An employee can
honestly believe she is the object of discrimination, but if she never
mentions it, a claim of retaliation is not implicated, for an employer
cannot retaliate when it is unaware of any complaints." Id.
(quoting Miller. 203 F.3d at 1008). Plaintiff's own testimony
indicates that she did not sufficiently allege gender discrimination.
(Boebel Dep. II., p.218, line; p.219, line 5 (Def. Ex. B)).
Even assuming, arguendo, that Plaintiff did sufficiently
allege sex discrimination when she made her complaints, Plaintiff has not
shown that an adverse employment decision resulted because of these
complaints. The one employment decision that has yet to be analyzed is
Boebel's involuntary transfer from Meisner to Miller's district in June
2000, a decision made by Galindo. However, based on Plaintiff's reaction
to this transfer, this transfer appears to be a reasonable measure to
mediate the conflicts between Plaintiff and Meisner. The evidentiary
record before the Court indicates that Boebel made repeated complaints
about Meisner to Galindo, who then transferred Boebel to Miller's
district. After the transfer, Boebel testified her job was less
stressful, and that she was more comfortable with Miller, compared to
Meisner. (See Pl.'s Resp. to Def.
Facts, ¶¶ 114-15). This leads to the reasonable conclusion that
the transfer was desirable to the Plaintiff. Further, although the
transfer resulted in a longer commute for Boebel, this factor will not
assist Plaintiff in establishing a prima facie case of discrimination.
"The adverse action must materially alter the terms and conditions of
employment. Negative performance reviews, a change in job title, an
increased travel distance to work, do not by themselves qualify."
Marting, 203 F.3d at 970-71 (citing Stutler v. Illinois
Department of Corrections, 263 F.3d 698, 703 (7th Cir. 2000)).
Because the Plaintiff cannot establish a prima facie case of
retaliation. Defendant's motion for summary judgment on the issue of
retaliatory discharge is GRANTED.
Plaintiff's claims of hostile work environment sex harassment, sex
discrimination, and retaliation cannot survive summary judgment.
Therefore, Defendant's Motion for Summary Judgment is GRANTED in its