The opinion of the court was delivered by: Stiehl, District Judge
This matter is before the Court on defendant's motion for summary judgment on the claims of plaintiff Diana Hilliard (Doc. 54), to which plaintiff Hilliard has responded (Doc. 64), and defendant has replied (Doc. 73). Plaintiff is one of twelve plaintiffs who have filed suit against the State of Illinois Department of Corrections ("IDOC") for alleged discrimination on the basis of sex in the terms, conditions and privileges of employment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.*fn1
The defendant seeks summary judgment on several grounds: (1) certain of plaintiff's claims are time barred; (2) plaintiff cannot establish a claim of sexual harassment; and (3) plaintiff cannot establish a retaliation claim because she did not suffer an adverse employment action.
Plaintiff is a female correctional officer for the Illinois Department of Corrections at the Menard prison facility. In Count XI of the complaint (filed in Cause NO. 04-153), Hilliard claims that she was subjected to various forms of sexual harassment by correctional officer Blaine Ozment, including unwanted touching and sexual comments. Hilliard alleges that on June 11, 2000, she reported the behavior to Lieutenant Robert Walker, who instructed her to "just stay away." Walker spoke to Captain Lloyd Korando concerning Hilliard's complaints. Plaintiff alleges that Korando also told her to simply avoid Ozment. Korando told Hilliard that he would speak with Ozment, and if the behaviors persisted, she would have to submit a written complaint. The unwanted behavior allegedly continued, though plaintiff cites no particular occurrences for the time period of summer of 2000 through March 22, 2001.
Plaintiff eventually requested to be assigned to work the tower so that she would avoid working directly with Ozment. While working the tower, plaintiff allegedly heard threatening comments over the intercom system, which she believes were directed at her. Hilliard attempted to meet with Captain Korando concerning these threats, but was unable to do so. She presented her complaint to Lieutenant Walker who instructed her to write up a statement. Plaintiff submitted her written statement to Walker on April 2, 2001. Major Stanley Bucheit further investigated the claims, and Tom Carroway, Director of Internal Affairs, interviewed plaintiff regarding her complaints on April 5, 2001.
Ozment allegedly called plaintiff a "bitch" on April 15, 2001. On April 26 and May 10, 2001, plaintiff found the words "snitch" and/or "bitch" written on her personal water cup.
Plaintiff claims she has found threatening notes on her car and in her mailbox at work. She alleges that she continues to be ostracized by her co-workers and supervisors as a result of her complaints of sexual harassment.
A district court will grant summary judgment "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." Fed.R.Civ.P. 56(c): see also Celotex Corp. V. Catrett, 477 U.S. 317, 322--23 (1986); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as a matter of law. See Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1999) (citing Celotex, 477 U.S. at 323). Once a motion for summary judgment has been made and properly supported, however, the non-movant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See id. In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable and justifiable inferences in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, the Court will not resolve factual disputes, weigh conflicting evidence, or make credibility determinations. See Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001); Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996).
1. The Timeliness of Plaintiff Hilliard's Complaint
The defendant asserts that certain allegations contained in plaintiff's complaint are time barred because they occurred more than 300 days before she filed her Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). Specifically, defendant claims that the court should not entertain evidence of any alleged discrete acts of sexual harassment that occurred prior to July 21, 2000. In her response, plaintiff asserts that she is not complaining of single discrete acts that amount to sexual harassment in and of themselves, but is instead complaining of a series of acts and events that, taken in sum, constitute a continuing violation. Therefore, plaintiff argues, as long as any one incident which comprises the hostile environment falls within the applicable limitation period, she is entitled to relief for all the incidence she endured as an employee of the IDOC.*fn2
Title VII requires that a plaintiff in a deferral state, such as Illinois, file a charge of discrimination with the EEOC or an equivalent state agency within 300 days of an "alleged unlawful employment practice." 42 U.S.C. § 200e-5(e)(1); Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001). Plaintiff filed her EEOC charge on May 21, 2001. (Ex. 49). Therefore, any claims regarding activities that occurred prior to July 18, 2000, would be time barred under the general rule. Like most general rules, however, there is an exception. Activity occurring beyond the 300 day limitations period can be challenged if it is part of a pattern of discrimination that extended into the limitations period. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994). This pattern of activity is referred to as a "continuing violation." Id.
The Seventh Circuit recognizes three theories under which a plaintiff may establish a continuing violation. Stewart v. CPC Int'l, Inc., 679 F.2d 117, 120-21 (7th Cir. 1982); Tinner v. United Insurance Co. of America, 308 F.3d 697, 707 (7th Cir. 2002). The first situation occurs when an employer makes employment decisions over a range of time that make it difficult for the employee to determine the actual date of discrimination. Tinner, 308 F.3d at 707. This theory does not apply to plaintiff Hilliard as she is able to point to specific dates upon which she alleges she was harassed by specific people. Further, employment decisions made by the IDOC regarding Hilliard were favorable.*fn3 The second situation arises when an employer follows an express discriminatory policy. Id. Hilliard does not allege that the IDOC followed an express discriminatory policy in its actions; therefore, the second theory is also inapplicable.
Accordingly, to survive summary judgment as to her allegations of harassment prior to July 21, 2000, Hilliard must be able to prove a continuing violation under the third theory, where individual acts are part of an ongoing pattern and at least one of the acts occurred within the applicable limitations ...