The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
On May 27, 2003, Defendant, the Illinois State Police ("ISP"), notified Plaintiff Vanessa Weathers ("Weathers"), an ISP employee, that she would receive a one-day suspension from her job. The ISP had concluded, pursuant to an investigation by its Department of Internal Investigation ("DII"), that Weathers failed to comply with a court order and committed conduct unbecoming of an ISP employee in violation of the ISP's policies. Weathers filed a grievance of her suspension. After further investigation created doubt as to the validity of the court order Weathers was accused of violating, and pursuant to negotiations between Weathers's union representatives and management, the ISP decided to return the pay Weathers lost during her oneday suspension and to expunge her records of the suspension.
Weathers subsequently filed this complaint against the ISP alleging discrimination based upon her sex, race, age, and marital status. She also alleges retaliation in violation of 42 U.S.C. § 2000e et seq. ("Title VII"). I previously dismissed Weathers's sex, race, and age discrimination claims but denied the ISP's motion to dismiss Weathers's Title VII retaliation claim and her state law marital status discrimination claim. The ISP now moves for summary judgment of the remaining claims.
Standard for Summary Judgment
Summary judgment is proper 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). A genuine issue of material fact exists when there is evidence on the basis of which a reasonable jury could find in the plaintiff's favor, allowing for all reasonable inferences drawn in a light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the plaintiff must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). If the defendant presents a prima facie case showing that it is entitled to judgment as a matter of law, the plaintiff may not rest upon the allegations or denials in the pleading but must set forth specific facts showing that a genuine issue for trial exists. See Anderson, 477 U.S. at 256-57.
Weathers claims that she was suspended in retaliation for a racial discrimination charge she filed on March 31, 2000 with the Equal Employment Opportunity Commission ("EEOC"). Title VII forbids an employer from retaliating against an employee for opposing any practice made unlawful by Title VII. 42 U.S.C. § 2000e-3(a); see also Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 727 (7th Cir. 2003). Weathers must establish a prima facie case of retaliation or her claims will be subject to summary judgment. See Luckie v. Ameritech Corp., 389 F.3d 708, 714 (7th Cir. 2004). In the absence of direct evidence, as is the case here, Weathers must establish a prima facie case of retaliation using the indirect method. Id. To do this, Weathers must show that she engaged in statutorily protected activity, performed her job according to the ISP's legitimate expectations but suffered an adverse employment action, and was treated less favorably than similarly situated employees who did not engage in the statutorily protected activity. Id. See also Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).
Adverse Employment Action
A reasonable trier of fact could not find that Weathers suffered an adverse employment action. Not everything that makes an employee unhappy is an actionable adverse action. See Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Actions such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, and a decision causing a significant change in benefits are tangible, adverse employment actions. See Burlington Indus. v. Ellerth, 524 U.S. 742, 753 (1998). In other words, only tangible employment actions that cause a significant change in employment status constitute actionable adverse actions. Id. The action must cause a materially adverse change in the terms and conditions of employment that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).
Weathers relies on an opinion from the Court of Appeals of the Seventh Circuit to support her proposition that a one-day suspension, later reversed, constitutes an adverse employment action. See Molnar v. Booth, 229 F.3d 593, 601 (7th Cir. 2000) (holding that a subsequently reversed negative performance evaluation constituted a tangible employment action). See also Ezell v. Potter, 400 F.3d 1041, 1049 (7th Cir. 2005) (removal letter constituted adverse employment action for period before it was withdrawn; otherwise, harassing employers could demote employees with impunity if they later reversed the demotions). The negative performance evaluation in Molnar, prior to its reversal, could have "spelled the end of a career." 229 F.3d at 601. In contrast, Weathers does not contend, and there is no evidence to indicate, that the one-day suspension in her record would have marked the end of her career had it not been reversed. In fact, Weathers's continued employment and subsequent promotion after having received a more serious, five-day suspension in 2000 (which was not expunged from her record) indicates that such suspensions do not generally spell the end of a career. In sum, Weathers's one-day suspension does not rise to the level of either the negative evaluation or demotion (both later rescinded) in Molnar and Ezell, and she presents no facts suggesting that her suspension posed any risk of the severe consequences posed by the disciplinary action in those cases. No reasonable jury could conclude that Weathers suffered an adverse employment action.
Similarly Situated Employees
Weathers also fails to show that similarly situated employees outside her protected class received better treatment. For cases in which the plaintiff claims to have been disciplined more harshly than another employee based on a prohibited reason, the plaintiff must show that he or she was "similarly situated with respect to performance, qualifications, and conduct." Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002) (internal quotations and citations omitted). This does not mean that the plaintiff must produce evidence of an employee outside the protected class that committed the same infraction. Rather, the plaintiff need only show that the other employees engaged in similar, or even worse, conduct. See Ezell, 400 F.3d at 1050 (concluding that the plaintiff met his burden by producing evidence of another employee who committed an offense "at least as serious" as that committed by plaintiff but who, unlike the plaintiff, was not subject to any discipline).
Although none of the employees Weathers cites was arrested for refusing to comply with a court order, some of them engaged in arguably similar conduct and were thus likely similarly situated. Like Weathers, two of the employees Weathers cites were involved in confrontations with law enforcement officers. However, neither received better treatment than Weathers. In fact, they appear to have fared more poorly: both received oral and written reprimands that are still found in their ISP files. Weathers cannot rely on these facts to establish her prima facie case. Weathers also points to a third employee who allegedly violated the law but received more favorable treatment. However, Weathers offers no facts to support her allegation. She states only that she is "aware" of an officer in another department who fared better than she. Unfortunately for Weathers, unsubstantiated and conclusory assertions do not create issues of fact. See Sample v. Aldi, Inc., 61 F.3c 544, 549 (7th Cir. 1995).
Weathers has not presented any evidence of an adverse employment action nor any evidence of a similarly situated employee that was treated more favorably than she was. As Weathers cannot establish her prima facie case, I will not consider her arguments about the pretext underlying the ISP's explanation for its actions. See Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 445 ...