United States District Court, N.D. Illinois, Eastern Division
September 20, 2005.
CAROL BOLTON EL, Plaintiff,
SERVICE CORPORATION INTERNATIONAL, Defendant.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Carol Bolton El has sued Defendant Service
Corporation International ("SCI")*fn1 for discrimination
based on race, color and disability in violation of Title VII of
the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981
("Section 1981"), and 42 U.S.C. § 1983 ("Section 1983"), and the
Americans with Disabilities Act of 1990 ("ADA"). Pending is SCI's
motion for summary judgment. For the reasons set forth below, the
Court grants the motion.
Except as noted, the following facts are undisputed. For the
purposes of the instant motion, the Court views any properly
disputed fact in plaintiff's favor. Plaintiff Carol Bolton El, an
African-American woman, is a citizen of Illinois. (Compl. ¶ 1).
Defendant SCI is a corporation located in Illinois. (Answer ¶ 2.)
In 1998, plaintiff applied for a position as a receptionist for
Rosehill Cemetery and Mausoleum ("Rosehill"). (Def.'s LR 56.1(a)(3) ¶ 3.) Ronald
Graeff, then general manager at Rosehill, interviewed and hired
Bolton. (Id.) In February 2001, Bolton agreed to familiarize
herself with the information contained in SCI's Employee
Handbook. (Id. ¶ 10.) In the "Rules of Conduct" section, SCI's
Employee Handbook states: "Employees are the Company's primary
asset. Therefore, it is important that all employees conduct
themselves courteously and professionally. There are some forms
of behavior that will not be tolerated, including, but not
limited to: . . . Insubordination, or refusal to comply with
reasonable instructions." (Id. ¶ 7.) Furthermore, under the
section entitled "Our Values," the Handbook states: "All clients
and employees must be treated equally regardless of race, color,
sex, national origin, age, religion, or disability." (Id. ¶ 8.)
The Handbook also contains a "Policy Against Harassment" section
which sets forth the procedures for reporting alleged harassment.
If you have reason to believe that you, a fellow
employee, or an employee who reports directly to you
is a victim of harassment, you are required to report
it immediately. Report all cases of alleged
harassment to your supervisor, who will then assist
in the investigation and problem resolution phases. . . .
If the supervisor is part of the problem, report
it to the next level of management. Complaints will
be investigated promptly and will be resolved. . . .
Employees must never be exposed to retaliation for
having made a complaint or for participating in any
(Id. ¶ 9.)
While employed by SCI, plaintiff, who suffers from sickle cell
anemia, repeatedly called in sick and occasionally came to work
late. (Pl.'s LR 56.1(b)(3)(A) ¶ 12.) In 1999, she failed to
receive her one-year anniversary pin from SCI. (Id. ¶ 57.)
Beginning in the summer of 2000 and continuing into 2001, she
complained to her supervisors that the office was too cold.
(Id. ¶¶ 13-14.) According to Bolton El, Florence Padlo, her
supervisor, and Peter Sfickes, a counselor at Rosehill,
deliberately set the temperature of the air conditioning low in
order to make Bolton ill. (Id. ¶ 14.) Plaintiff admits that the
air conditioning affected everyone in the office, not just her. (Id. ¶ 16.) According to SCI, Bolton El was permitted to
take extra breaks whenever she needed to warm up outside. (Def.'s
LR 56.1(a)(3) ¶ 15.) However, Bolton El denies that she was
allowed to take breaks. (Pl.'s LR 56.1(b)(3)(A) ¶ 15.)
In December 2000, Leonard Hayes replaced Graeff as general
manager of Rosehill. (Def.'s LR 56.1(a)(3) ¶ 20.) In April 2001,
Bolton El left the office without notifying anyone or obtaining
prior approval because the office was too cold. (Pl.'s LR
56.1(a)(3)(A) ¶ 21.) Hayes issued Bolton El a warning notice for
the incident that said Bolton El would receive another warning
and a one-day suspension if the incident occurred again. (Def.'s
LR 56.1(a)(3) ¶¶ 21-22.) Hayes told Bolton El he would make sure
the thermostat was set at seventy-two degrees. (Id. ¶ 23.)
After the incident, Hayes also bought Bolton El a space heater
for her to use at her desk. (Id. ¶ 24.)
On August 20, 2001, Hayes issued Bolton El a warning for
failure to communicate with a co-worker in Houston, Texas. (Id.
¶ 25.) The warning notice stated that should the incident occur
again, Bolton El would be discharged. (Id.) According to the
warning notice, Bolton El became defensive with a co-worker and
said to her, "You are acting as if I am trying to scam you. I am
not trying to scam you." (Id. ¶ 26.) Bolton El wrote in the
response section of the warning notice that she did not
understand why she was receiving a warning and did not understand
"[w]hat's wrong with the conversation" she had with the
co-worker. (Id. ¶ 27.) Plaintiff also denied that she was
defensive with the co-worker. (Pl.'s LR 56.1(b)(3)(A) ¶¶ 26-27.)
In 2003, SCI failed to give Bolton El her five-year anniversary
pin. (Pl.'s Dep. at 102-03.) She wrote the Houston office asking
about her pin, and yet she never received it. (Id.) At an
unspecified time, Mr. Lennahan, a sales counselor at Rosehill,
allegedly commented that "If there were more blacks in France, they wouldn't be killing off
the Jews" in response to an article about people in France
killing Jews. (Id. ¶ 83.) Bolton El did not report the comment
to her supervisors. (Id. ¶ 84.)
In February 2003, Bolton El and Jeannette Kovitz, an
administrative assistant, cemetery historian, and tour guide at
Rosehill, discussed water access rights between Turkey and India.
(Def.'s LR 56.1(a)(3) ¶ 28.) Bolton El stated that the countries
should not fight over water because it belongs to everyone.
(Id.) Kovitz responded, "Martin Luther King, Jr. thought that
way and they killed him." (Pl.'s LR 56.1(b)(3)(A) ¶ 28.) Bolton
El's supervisor, Florence Padlo, who was sitting at the table
with Kovitz and Bolton El, told Kovitz that her statement was
"not right." (Id. ¶ 29.) Bolton El did not report the incident
to a supervisor because she said her supervisor, Padlo, was
sitting at the table when the statement was made. (Id.)
At a later date, Kovitz said that something on the internet was
"Christian." (Def.'s LR 56.1(a)(3) ¶ 31.) Bolton El, then, said
there was only one God. (Id.) Kovitz began to shout at Bolton
El until Padlo told her to stop. (Id.) Kovitz left but later
returned and stared at Bolton El. (Id.) Then, Kovitz walked by
and dropped some books on the floor near Bolton El. (Id.)
In February 2003, Bolton El called SCI's Care Line, a service
provided by SCI that employees could call to voice their concerns
or complaints, to report Kovitz's "Christian" comment and to
complain about the warning she received for failure to
communicate with a co-worker. (Pl.'s LR 56.1(b)(3)(A) ¶ 32.)
After her call to the Care Line, Ruby Matthews visited Rosehill
to investigate Bolton El's complaint. (Id. ¶ 34.) Matthews,
former Regional Vice President for Human Resources for SCI,
interviewed employees that were in the office on the date of the
incident between Kovitz and Bolton El. (Id.) Matthews also met
with Bolton El and told her she was "going to see if we can . . .
make sure you have a nice life here [at work] also." (Def.'s LR 56.1(a)(3) ¶ 36.)
According to SCI, after Matthews' investigation she met with
Bolton El, Padlo, and Hayes. (Id. ¶ 37.) SCI maintains that
during this meeting Bolton El became "agitated and declined to
accept any responsibility for contributing to the conflict in the
office." (Id.) She denies that this meeting occurred and that
she became agitated with her supervisors. (Pl.'s LR 56.1(b)(3)(A)
In April 2003, another disputed incident allegedly occurred.
(Def.'s LR 56.1(a)(3) ¶¶ 38-39.) According to SCI, Bolton El
received a warning from Hayes because she was upset and
co-workers overheard her on the phone saying that "she hates this
place" and "she hates everybody." (Id. ¶ 38.) Hayes allowed her
to take a personal day in order to seek professional treatment.
(Id. ¶ 39.) Although SCI produced a copy of the warning notice,
it was not signed by Bolton El or Hayes, unlike the previous
notices which contained both signatures. (Id.) Plaintiff denies
that the incident occurred and that she received this warning.
(Pl.'s LR 56.1(b)(3)(A) ¶¶ 38-39.)
Prior to her termination, plaintiff had been helping Sfickes by
inputting data into the cemetery's memorial list, which is a
spreadsheet. (Def.'s LR 56.1(a)(3) ¶ 40.) Despite the fact that
she was asked to help Sfickes, plaintiff did not view it as her
job to help Sfickes and viewed it as optional, i.e., "whether I
felt like doing it or not." (Pl.'s Dep. at 91.) Plaintiff,
however, admits that she had been helping Sfickes ever since she
had been at SCI. (Id.) Plaintiff also admits that noone else
understood how to download the memorial list tracking log. (Id.
On the day of her termination, August 19, 2003, according to
plaintiff, Padlo, her supervisor, told her to turn her computer
on. (Id.) When Bolton El turned on her computer, she noticed
that the memorial list was on the computer screen of Mary
Derring, an administrative assistant. (Id.) Bolton El assumed her supervisor wanted
Derring to work on the memorial list. (Id.) At the end of the
day, Hayes "called her in" and asked her if she was still working
on the memorial list. (Id. at 87-88.) When she told him "no,"
he terminated her for insubordination. (Id. at 89.)
On August 21, 2003, Bolton El filed a charge with the Illinois
Department of Human Rights ("IDHR") and the Equal Employment
Opportunity Commission ("EEOC") alleging harassment, unequal
wages and termination based on her race. (Compl. ¶¶ 7-9.) She did
not include any claims of color or disability discrimination in
her charge. (Id.) On December 22, 2003, the EEOC issued a
right-to-sue letter to Bolton El. (Id. ¶ 6.) Bolton El filed
her complaint on February 12, 2004.
Pursuant to Federal Rule of Civil Procedure ("Rule") 56(c), the
court may grant summary judgment "if the pleadings, depositions,
answers to interrogatories, and admissions of 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 a
judgment as a matter of law." FED. R. CIV. P. 56(c). The court
does not "weigh the evidence or determine the truth of the
matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). All facts must be viewed and all reasonable inferences
drawn in the light most favorable to the nonmoving party. NLFC,
Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.
1995). Therefore, "[s]ummary judgment is appropriate if, on the
record as a whole, a rational trier of fact could not find for
the non-moving party." Commercial Underwriters Ins. Co. v. Aires
Envtl. Servs., Ltd., 259 F.3d 792, 795 (7th Cir. 2001).
Local Rule 56.1 sets forth the obligations of each party moving
for and opposing summary judgment. N.D. ILL. LR 56.1. A moving party must serve
and file any affidavits and other materials referred to in Rule
56(e), a supporting memorandum of law, and a statement of
material facts as to which the moving party contends there is no
genuine issue and that entitle the moving party to a judgment as
a matter of law. N.D. ILL. LR 56.1(a). A party opposing a motion
for summary judgment is required to serve and file any opposing
affidavits and other materials referred to in Rule 56(e), a
supporting memorandum of law, a concise response to the movant's
statement of facts and a statement of additional facts that
require the denial of summary judgment. N.D. ILL. LR
56.1(b)(3)(A)-(B). The opposing party's failure to controvert the
moving party's statement of facts results in the moving party's
version of the facts being deemed admitted. N.D. ILL. LR
56.1(b)(3)(B). The Seventh Circuit has repeatedly upheld the
strict enforcement of Local Rule 56.1. See Bell, Boyd, & Lloyd
v. Tapy, 896 F.2d 1101, 1102-03 (7th Cir. 1990) (discussing
application of Local Rule 12(m), the predecessor to Local Rule
56.1); see also Waldridge v. Am. Hoechst Corp., 24 F.3d 918,
922 (7th Cir. 1994) (same).
SCI argues that Bolton El's Local Rule 56.1(b)(3)(A) statement
should be stricken in its entirety because it does not comply
with the local rules. The Court denies this request because she
has provided her own declaration as to each of her responses.
See 28 U.S.C. § 1746. Unfortunately for plaintiff, however, the
Court's denial of the request to strike the statement in its
entirety does not mean that her responses are sufficient to
create a genuine issue of material fact for trial.
I. Section 1983 Claim
In her complaint, Bolton El alleges that SCI discriminated
against her based on her race and color in violation of Section
1983. (Compl. ¶ 3.) Section 1983 provides: Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress. . . .
42 U.S.C. § 1983. To prevail on a claim pursuant to Section 1983,
the plaintiff must show that she (1) "held a constitutionally
protected right;" (2) was "deprived of this right in violation of
the Constitution;" (3) "defendant? intentionally caused this
deprivation;" and (4) "defendant? acted under color of law."
Donald v. Polk County, 836 F.2d 376, 379 (7th Cir. 1988). SCI
is a privately owned corporation (see Answer ¶ 2), and Bolton
El has failed to establish that SCI acted under color of law as a
state actor. Thus, the Court grants SCI's motion for summary
judgment as to the race and color discrimination claims under
II. ADA Claim
In her complaint, Bolton El alleges that SCI discriminated
against her in violation of the ADA. "In order to recover for
violations of Title I of the ADA, a plaintiff must file a charge
of discrimination with the EEOC. . . ." Stewart v. County of
Brown, 86 F.3d 107, 110 (7th Cir. 1996). "The condition
precedent of an EEOC charge serves the dual purpose of affording
the EEOC with the opportunity to quickly settle the dispute with
the employer and puts the employer on notice of the charges
against it." Wagner v. Ill. Dep't of Pub. Aid, No. 98 C 7268,
1999 WL 1016263, at *3 (N.D. Ill. Nov. 4, 1999). In her EEOC
charge, Bolton El alleged harassment, unequal wages and
termination based on her race. (Compl. ¶¶ 7-9.) She did not
allege disability discrimination in her EEOC charge. (Id.)
However, a plaintiff may pursue a claim not explicitly included
in her discrimination charge if the allegation falls within the scope of the EEOC
charge. Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir.
1996). In determining whether a complaint's allegation fall
within the scope of the EEOC charge, a court considers whether it
is reasonably related to the EEOC charges. Id. If they are, the
court then determines whether the claim could reasonably develop
from the EEOC investigation of the charges before it. Id.
"Claims are not alike or reasonably related unless there is a
factual relationship between them." Cheek v. W. & S. Life Ins.
Co., 31 F.3d 497, 501 (7th Cir. 1994) (finding that unless
allegations in complaint can reasonably be inferred from facts
alleged in charge then claims are not reasonably related.)
All the allegations contained in Bolton El's EEOC charge
pertain to her race. (Compl. ¶¶ 7-9.) Bolton El does not mention
her disability in her EEOC charge. (Id.) Additionally, there
are no facts in her charge that relate to a disability
discrimination claim. (Id.) Nothing in Bolton El's charge would
reasonably lead to an EEOC investigation into whether SCI
discriminated against Bolton El based on her disability.
Therefore, her claim for disability discrimination is beyond the
scope of the EEOC charge.
Although Bolton El suffers from sickle cell anemia, she
testified at her deposition that she did not consider it to be a
disability. (Pl.'s Dep. at 47-48.) Moreover, she has testified
that she is not pursuing a disability claim. (Id. at 105-06.)
Thus, the Court grants SCI's summary judgment motion as to Bolton
El's disability discrimination claim under the ADA.
III. Claims Based on Race and Color Discrimination
Bolton El alleges that SCI discriminated against her based on
her race and color in violation of Title VII and Section 1981.
"Because we evaluate [Section] 1981 claims under the same rubric
as Title VII claims, we need not address them separately."
Herron v. DaimlerChrysler Corp., 388 F.3d 293, 299 (7th Cir. 2004). Title
VII makes it "an unlawful employment practice for an employer . . .
to fail or refuse to hire or discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a)(1). SCI argues that
Bolton El's claim of color discrimination is beyond the scope of
the EEOC charge because she failed to include color
discrimination in her EEOC charge and this claim does not
"reasonably" relate or "grow out" of her race claim in the EEOC
charge. (Def.'s Mem. Supp. Summ. J. at 1-3); see Jenkins v. Blue
Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976).
The Court need not reach the issue. Even if the Court were to
assume without ruling that no distinction between race and color
should be made in the instant case, the Court would nonetheless
grant SCI's summary judgment motion.
There are two ways a plaintiff can defeat a motion for summary
judgment in a Title VII case. Pafford v. Herman, 148 F.3d 658,
665 (7th Cir. 1998). Under the direct method, a plaintiff can
offer direct or circumstantial evidence that his employer's
action was motivated by an impermissible purpose. Id.
Alternatively, the indirect burden-shifting approach allows that
plaintiff to raise an inference of discrimination by offering
sufficient evidence to establish a prima facie case. Id. To
establish a prima facie case of discrimination, a plaintiff
must show that: (1) she belongs to a protected class; (2) she
performed his job satisfactorily; (3) she suffered an adverse
employment action; and (4) her employer treated similarly
situated employees outside of his classification more favorably.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
Bolton El does not appear to attempt to establish race or color
discrimination via the direct method. As such, her claim will be reviewed under the
McDonnell Douglas burden-shifting method. Both parties agree
that Bolton El is African-American and was terminated from her
position with SCI. Thus, Bolton El satisfies the requirements of
the first and third prongs of the prima facie case. However,
for the reasons discussed below, she fails to satisfy the second
and fourth prongs.
A. Satisfactory Job Performance
To satisfy the second prong of the prima facie case, the
plaintiff must show that she was performing her job
satisfactorily. Id. Although Bolton El admits that she was
terminated for insubordination, she disputes that her conduct
constituted insubordination. (Pl.'s LR 56.1(b)(3)(A) ¶¶ 40-52.)
Plaintiff admits that she would receive information from
Sfickes that she needed to enter into a spreadsheet. (Compare
Def.'s LR 56.1(a)(3) ¶ 40 with Pl.'s LR 56.1(b)(3)(A) ¶ 40.)
She helped Sfickes by inputting data into the cemetery's memorial
list, which is a spreadsheet. (Id.) Despite the fact that she
was asked to help Sfickes, plaintiff did not view it as her job
to help Sfickes and viewed it as optional, i.e., "whether I
felt like doing it or not." (Pl.'s Dep. at 91.) Plaintiff,
however, concedes that she had been helping Sfickes ever since
she had been at SCI. (Id.) Plaintiff also testified that noone
else understood how to download the memorial list tracking log.
(Id. at 87.)
Plaintiff testified that on August 19, 2003, Hayes "called her
in," asked her if she was still helping Sfickes' with his
memorial list. (Pl.'s Dep. at 87-88.)*fn2 When she answered
"no," Hayes fired her for insubordination. (Id.)
Bolton El's own opinion that her conduct constituted
satisfactory job performance, i.e., that her refusal to help
Sfickes was not insubordination because she viewed any such help
as optional, does not give rise to a genuine material factual
dispute. See Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir.
1996). The mere assertion that one has performed satisfactorily
is insufficient to overcome the employer's good faith business
judgment regarding the employee's performance. Fortier v.
Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1114 (7th
Cir. 1998). Bolton El has not disputed that Hayes honestly
believed Bolton El had refused to resume assisting Sfickes with
the memorial list as she had done ever since she was first
employed by SCI or that such conduct rose to the level of
insubordination. (Def.'s LR 56.1(a)(3) ¶¶ 43-50.) Bolton El has
failed to present any genuine issue as to the material fact
regarding whether she was performing her job satisfactorily or
meeting the legitimate expectations of her employer.
B. Similarly Situated Employees
Employees are similarly situated if they are directly
comparable in all material respects. Peele v. Country Mut. Ins.
Co., 288 F.3d 319, 330 (7th Cir. 2002). When a plaintiff claims
that she was disciplined by her employer more harshly than a
similarly situated employee, a plaintiff must show that she and
the more favorably treated employee "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." Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617-18 (7th Cir. 2000). Bolton El compares herself to two other employees at Rosehill.
In her complaint, Bolton El asserts that Derring, an
administrative assistant, and Sfickes, a counselor, were not
discharged for similar acts of insubordination. (Compl. ¶ 9.)
Yet, in her Local Rule 56.1(b)(3)(A) statement she stated that
she did not know if Derring or Sfickes were ever insubordinate
while employed by SCI. (Pl.'s LR 56.1(b)(3)(A) ¶ 54.)
Because Bolton El has failed to offer facts of similarly
situated employees whom SCI treated differently from her, she has
failed to raise a genuine issue of fact as to the fourth prong of
the prima facie case. Oest v. Ill. Dep't of Corr.,
240 F.3d 605, 614 (7th Cir. 2001). Because Bolton El has failed to
establish a prima facie case of discrimination based on race
and color, the Court need not address the issue of pretext. See
Foster v. Arthur Anderson, LLP, 168 F.3d 1029, 1036 (7th Cir.
1999). Even if Bolton were able to establish a prima facie
case, SCI has provided a legitimate, nondiscriminatory reason for
her termination, which includes its belief that she had been
insubordinate, and she has failed to raise a genuine issue as to
a material fact regarding whether SCI's reasons were a pretext
for discrimination. See Hartley v. Wisc. Bell, Inc.,
124 F.3d 887, 890 (7th Cir. 1997) ("Plaintiffs lose if the company
honestly believed in the nondiscriminatory reasons it offered,
even if the reasons are foolish or trivial or even baseless.").
The Court, therefore, grants SCI's summary judgment motion as to
plaintiff's claims of racial and color discrimination.
IV. Hostile Work Environment
Bolton El alleges that she was subject to harassment because of
her race and color. Defendant's request that the Court not
consider those incidents that are beyond the 300-day statute of
limitations is denied. Title VII requires that an employee file a
charge of discrimination with the EEOC within 300 days "after the alleged
unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e).
In National Railroad Passenger Corp. v. Morgan, the Supreme
Court interpreted the statute of limitations filing requirement
in Title VII. 536 U.S. 101 (2002). The Court held that a hostile
work environment claim under Title VII includes events that
occurred outside of the 180- or 300-day limitations period, as
long at least one act occurred within the applicable filing
period. Id. at 118. The Court noted that a hostile work
environment results from the cumulative effect of individual
acts. Id. at 117. Therefore, an "employee need only file a
charge within 180 or 300 days of any act that is part of the
hostile work environment." Id. at 118.
Bolton El alleges seven incidents of harassment: (1) the
temperature of the office in 2000 and 2001; (2) the warning
notice she received for her conversation with a co-worker in
Texas in August 2001; (3) Kovitz's comment regarding Martin
Luther King, Jr. in February 2003; (4) the response from Matthews
to her complaint to Rosehill's Care Line in March 2003; (5) her
termination in August 2003; (6) SCI's failure to give her
one-year and five-year anniversary pins; and (7) Mr. Lennahan's
comment regarding the killing of Jews in France. (Def.'s LR
56.1(a)(3) ¶ 57.) Bolton El filed her charge with the EEOC on
August 21, 2003. (Compl. ¶ 2.) Three of the incidents occurred
within 300 days of the date she filed a charge with the EEOC;
therefore, all seven events will be considered by the Court.
To establish a claim for a hostile work environment, the
plaintiff must prove that the workplace was objectively offensive
so that "a reasonable person would find [it] hostile or abusive."
Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir.
2002) (internal quotations omitted). "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." McKenzie v. Ill. Dep't of Transp., 92 F.3d 473,
479 (7th Cir. 1996). "[I]solated and innocuous incidents will not
support a hostile environment claim." Id. at 480. "[T]he
workplace that is actionable is the one that is hellish."
Herron, 388 F.3d at 303 (internal quotations omitted). To
determine whether an actionable hostile work environment claim
exists, the Court looks to "all the circumstances," including
"the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
an employee's work performance." Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993).
The seven incidents as a whole are not severe, persuasive or
humiliating enough to rise to the level of a hostile work
environment. Bolton El has not introduced any evidence that any
of these incidents were connected in any way to her race or
color. The comments made by Bolton El's co-workers, Lennahan and
Kovitz, were stray remarks that do not constitute an actionable
hostile work environment. See Oest, 240 F.3d at 611. Moreover,
there is no evidence that the comments were directed at her or
that she reported those comments to SCI. Bolton El admitted that
she did not follow the procedure outlined in the SCI Employee
Handbook's section for reporting harassment. (Def.'s LR
56.1(a)(3) ¶¶ 9-10.) Thus, SCI cannot be liable for harassment
that Bolton El failed to report. See Murray v. Chi. Transit
Auth., 252 F.3d 880, 899 (7th Cir. 2001) (holding that an
employer is not liable for harassment by another employee when a
policy to report harassment exists, but the victim fails to use
it). When Bolton El did complain to her supervisors, SCI
responded. SCI sent a representative to investigate her claims
after Bolton El called the Care Line to report alleged
harassment. (Pl.'s LR 56.1(b)(3)(A) ¶ 34.) When Bolton El
complained about the cold temperature of the office, Hayes
responded by purchasing her a space heater to use at her desk.
(Id. ¶ 24.) Furthermore, the fact that Bolton El disputes the reasons for
her warning notice for her failure to communicate with a
co-worker and her termination does not create a hostile work
environment. See Ransom v. CSC Consulting, Inc., 217 F.3d 467,
471 (7th Cir. 2000) (stating that the court "does not sit as a
super personnel department to review an employer's business
decisions"). Nor do her allegations that SCI failed to give her
yearly anniversary pin or that the office was too cold rise to
the level of a hostile work environment. See Bethea v. LaSalle
Bank, N.A., 287 F. Supp. 2d 877, 881 (N.D. Ill. 2003) (holding
that "petty slights and normal workplace frictions" do not
constitute a hostile work environment). Therefore, the Court
grants SCI's motion as to the claims for racial and color
For the reasons set forth above, the Court grants SCI's motion
for summary judgment [doc. no. 22-1]. This case is hereby
© 1992-2005 VersusLaw Inc.