The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
When Postmaster General John Potter filed a Fed.R.Civ.P.
("Rule") 56 motion for summary judgment in the sex discrimination
action brought by Postal Service employee Charlene Webster
("Webster"),*fn1 this Court followed its invariable practice
of providing Webster, as a pro se plaintiff, with the attached
explanation of Rule 56 and this District Court's LR 56.1, adopted
to facilitate the handling of summary judgment motions.*fn2
Despite the clarity of this Court's letter and LR 56.1(b) (3),
what Webster tendered on the last day of the month long period
that this Court had allowed for her response is a packet of miscellaneous papers that neither responds to the
United States' LR 56.1(a) (3) statement nor sets out her own
statement of material facts as required by LR 56.1(b) (3). Just
to look at that undifferentiated and motley set of documents
serves as a graphic illustration of why this District Court
adopted LR 56.1 as a vehicle to smoke out the existence or
nonexistence of factual issues that would contraindicate the
granting of summary judgment and, just as importantly, why our
Court of Appeals has consistently met noncompliance with the LR's
requirements with strict enforcement of its terms.
In that respect LR 56.1's enforcement provision states that
"[a]ll material facts set forth in the statement required of the
moving party will be deemed admitted unless controverted by the
statement of the opposing party." And our Court of Appeals has
"consistently hold that failure to respond by the nonmovant as
mandated by the local rules results in an admission" (Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003)). Hence this opinion
proceeds on the basis of the facts adduced by the United States
which are not only an eminently fair presentation but are also
not effectively controverted by Webster's submissions.
As already indicated, as prescribed by LR 56.1(a) (3) the
United States has submitted its comprehensive statement of
material facts, properly crediting Webster's earlier factual submissions for purposes of the present motion. Because those
facts are accurately summarized in the United States' supporting
memorandum, this opinion attaches and incorporates the "Factual
Background" section of that memorandum as the factual matrix for
decision of the issues.
Summary Judgment Principles
Every Rule 56 movant bears the burden of establishing the
absence of any genuine issue of material fact (Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts
consider the evidentiary record in the light most favorable to
nonmovants and draw all reasonable inferences in their favor
(Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.
2002)). But to avoid summary judgment a nonmovant must produce
"more than a scintilla of evidence to support his position" that
a genuine issue of material fact exists (Pugh v. City of
Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth
specific facts that demonstrate a genuine issue of triable fact"
(id.). Ultimately, summary judgment is warranted only if a
reasonable jury could not return a verdict for the nonmovant
(Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Those standards have been employed in the discussion that
Application of the Summary Judgment Principles
Familiar caselaw teaches that the plaintiff in a Title VII case
may establish the requisite genuine issue or issue of material fact either through direct evidence of discrimination or
via the burden-shifting approach of McDonnell Douglas Corp. v.
Green, 411 U.S. 792
(1973). Here Webster has adduced no direct
evidence, so she must follow the McDonnell Douglas path that
begins with establishment of the oft-repeated four-factor prima
facie case as set out in Gusewelle v. City of Wood River,
374 F.3d 569
, 574 (7th Cir. 2004) (adapted to a female plaintiff):
To do this, a plaintiff must show: (1) [s]he is a
member of a protected class; (2) [s]he was qualified
for the position; (3) [s]he suffered an adverse
employment action; and (4) a similarly situated
employee not of the protected class was treated more
By definition any woman employee meets the first of those
conditions. And on Webster's version of events, which must be
credited for Rule 56 purposes, it cannot be said that she does
not satisfy the second condition as a matter of law. Where
Webster's claim succumbs instead are on both the third and the
fourth elements of the prima facie case.
As for the existence of an "adverse employment action," that
concept has been extended in this circuit beyond such obvious
examples as a firing or a reduction in benefits or pay. But even
so some really meaningful detriment must be involved Smart v.
Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) exemplifies
the sensible judicial approach to the issue, following this
articulation of the principle with several other examples that,
as in Smart, were found not to meet the standard: While adverse employment actions extend beyond
readily quantifiable losses, not everything that
makes an employee unhappy is an actionable adverse
action. Otherwise, minor and even trivial employment
actions that "an irritable, chip-on-the-shoulder
employee did not like would form the basis of a
None of the minor essentially trivial sex-oriented
complaints voiced by Webster, either singly or in the aggregate,
meet the test. Instead the only four instances of purported sex
discrimination that she has adduced occurred when (1) she was
denied assistance with her route, (2) she was not allowed to go
home for lunch, (3) a male was once permitted to leave work early
but marked as working overtime and (4) she was once disciplined
for running out of gas. Such cases as Griffin v. Potter,
356 F.3d 824, 829-30 (7th Cir. 2004) (involving a strikingly
parallel series of complaints brought under the age
discrimination rubric, which follows the same principles) and
Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 505 (7th
Cir. 2004) (involving the sex discrimination area) spell doom for
Webster's claim of having suffered "adverse employment action."
As if that alone were not enough to call for dismissal of this
action (and it is), Webster has also not raised a material
factual issue as to similarly situated male employees having been
treated more favorably. In that respect she "must demonstrate
that there is someone who is directly comparable to [her] in all
material respects" (Grayson v. O'Neill, 308 F.3d 808
(7th Cir. 2002)). Radue v. Kimberly-Clark Corp., 219 F.3d 612
617-18 (7th Cir. 2000) (citations omitted) spells out the
operative ground rules:
In determining whether two employees are similarly
situated a court must look at all relevant factors,
the number of which depends on the context of the
case. For example, in disciplinary cases-in which a
plaintiff claims that he was disciplined by his
employer more harshly than a similarly situated
employee based on some prohibited reason-a plaintiff
must show that he is similarly situated with respect
to performance, qualifications, and conduct. This
normally entails a showing that the two employees
dealt with the same supervisor, were subject to the
same standards, and had engaged in similar conduct
without such differentiating or mitigating
circumstances as would distinguish their conduct or
the employer's treatment of them.
Again Webster's claims fall short, either because both some male
and some female mail carriers were treated more favorably (thus
undercutting any notion of sex-based discrimination) or that
there has been no showing that "similarly situated" mail carriers
were treated differently. Moreover, there has also been no
showing of an identity of supervisors or as to the reasons for
the actions complained of.
Two final comments are in order. Here they are:
1. Webster's grab bag of complaints, other than the
few mentioned above, reflect personality conflicts
and obvious animosities between her and her managers
(indeed, she really admits as much). Those issues
simply do not qualify as sex discrimination.
2. As the attached "Factual Background" has
reflected, much of what Webster asserts falls in the category of
hearsay. That type of assertion, because it would be
inadmissible in evidentiary terms at trial, is not
cognizable for summary judgment purposes either see
Rule 56(e) and, e.g., Russell v. Acme-Evans Co.,
51 F.3d 64, 68 (7th Cir. 1995).
For the several reasons stated in this memorandum opinion and
order, Webster's assertions take at their best ...