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Fletcher v. State

November 3, 2006


The opinion of the court was delivered by: Stiehl, District Judge


Before the Court is a motion to reconsider filed by plaintiffs Lora Walker, Michelle Groves, Diana Hankins, Wendy Holton, Vickie Howie, Rachel Nutter, Robin Rowold and Jennifer Wingerter (Doc. 93), to which defendant has filed a response (Doc. 94), and plaintiffs a reply (Doc. 95). The motion to reconsider primarily asks the Court to review that part of its orders of summary judgment (Docs. 88, 89) which granted summary judgment on these plain-tiff's claims of retaliation in light of the recent decision of the Supreme Court in Burlington, N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006). In addition, the motion asks the Court to reconsider that part of its orders which granted summary judgment on plaintiffs' sexual harassment claims.


A motion for reconsideration "allows a party to direct the district court's attention to newly discovered material evidence or a manifest error of law or fact." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996). A motion for reconsideration, however, is not an opportunity for a party to correct its own procedural failures or introduce evidence that should have been brought to the attention of the court prior to judgment. See, Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 439 (7th Cir. 1999); see, also Calumet Lumber, Inc. v. Mid-America Indus., Inc., 1996 WL 308243, at *1 (N.D. Ill. June 5, 1996).


A. Retaliation Claims after Burlington, N. & Santa Fe Ry. Co. v. White

In its June 22, 2006 ruling*fn1 the Supreme Court reviewed the issue of retaliation and held that to be actionable, retaliation "need not take the form of an adverse employment action." Nair v. Nicholson, 464 F.3d 766, 768 (7th Cir. 2006) (quoting White, 126 S. Ct at 2409). The Supreme Court noted, however, that "petty slights or minor annoyances" will not amount to retaliation. 126 S.Ct. at 2415. As the Nair court stated, "The test is whether the conduct alleged as retaliation would be likely to deter a reasonable employee from complaining about discrimination." 464 F.3d at 768-69 (citing White, 126 S.Ct. at 2415-16). Further "the motive must be to retaliate for activity protected by Title VII." 464 F.3d at 769 (emphasis supplied).The Supreme Court noted that "The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." 126 S.Ct. at 2414 (emphasis added). In further explanation, the Court stated that a plaintiff claiming retaliation must show that "a reasonable employee would have found the challenged action materially adverse, 'which in this context means it well might have "dissuaded a reasonable worker from making or supporting a charge of discrimination."'" 126 S.Ct. 2415 (quoting Rochon v. Gonzalez, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (quoting Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)).

The Court further stated that the review is based on a reasonable employee "because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings." 126 S.Ct. at 2415. Further "the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." Id. "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, (1998) quoted in White, 126 S.Ct. at 2415. The Court differentiated between a supervisor refusing to invite an employee to lunch, finding that "trivial," with "excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement [and] might well deter a reasonable employee from complaining about discrimination." 126 S.Ct. at 2415-16.

The Court further stated that:

By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.

Id. at 2416. The Court noted that "reassignment of job duties is not automatically actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case" and is judged under the reasonable person standard. Id. at 2417.

B. Defendant's Response to Plaintiffs' Motion

Defendant objects to the motion to reconsider on the grounds that plaintiffs have attempted to bring in new claims and new evidence to support those claims. Clearly a motion to reconsider is not the time to bring in new evidence or claims that were not presented to the Court at the time it ruled on the summary judgment motion. See, Johnny Blastoff, 188 F.3d at 439. Moreover, defendant asserts that the Court's decision to grant summary judgment was correct because the plaintiffs have failed to show that they were retaliated against.*fn2 In the briefing on the motion for summary judgment, defendant noted that only three plaintiffs had made retaliation arguments, and the plaintiffs did not counter this. Plaintiffs now assert, however, that they each made retaliation claims at the EEOC level, in addition to their claims of sexual harassment, and that given the change in the Supreme Court standards for retaliation, they should be able to rely on any evidence that is in the record in support of their retaliation claim under this new standard of review. Clearly, the Supreme Court decision in White represents a change in the way courts are to review retaliation claims. Plaintiffs now assert that evidence that was presented in support of their prior, now dismissed claims of discrimination, support a retaliation claim under White. Given that White established a new basis for reviewing these claims, the Court will liberally review the evidence previously presented to determine if there is any basis for a claim of retaliation as to each plaintiff that should survive summary judgment review.

C. Methods of Establishing Retaliation

The statue forbids an employer "to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). "A person who complains about discrimination cannot be expected to have anything more than an honest and reasonable belief that there has been a violation of law; and no more is required to support her retaliation claim." Nair, 464 F.3d at 769.

It is now settled that retaliation can be established under either the direct or indirect method of proof. "Under the direct approach, a plaintiff must present evidence of: (1) a statutorily protected activity; (2) an adverse action; and (3) a causal connection between the two." Burks v. Wis. Dep't of Transp., 464 F.3d 744, 758 (7th Cir. 2006) (citing White, 126 S.Ct. at 2413). To establish retaliation by the indirect method, plaintiff must "offer evidence of the following: (1) that she engaged in protected activity; (2) that she was subject to an adverse employment action; (3) that she was performing her job satisfactorily; and (4) that no similarly situated employee who did not engage in protected activity suffered an adverse employment action." 464 F.3d at 759.

"[T]he direct method does not utilize the specific circumstantial evidence that the plaintiff presents when [she] uses the indirect method of establishing discrimination." Sylvester v. SOS Children's Villages Ill., Inc., 453 F.3d 900, 902 (7th Cir. 2006). "But if [she] can prove by means of circumstantial evidence 'that [she] engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which [she] complains,' that is fine [to establish direct proof] as most of our cases. . . properly assume." Id. Therefore, in the Seventh Circuit, the direct method may use circumstantial evidence as part of the "convincing mosaic" of evidence used to establish a prima facie case. Id. at 903. As the Sylvester court stated:

A case of discrimination can. . .be made by assembling a number of pieces of evidence none meaningful in itself, consistent with the proposition of statistical theory that a number of observations each of which supports a proposition only weakly can, when taken as a whole, provide strong support if all ...

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