The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Plaintiff Suzanne Cordon alleges that Defendant Centex Homes Bank ("Centex") illegally retaliated against her for complaining of sexual harassment and for filing charges with the Equal Employment Opportunity Commission ("EEOC"). Cordon claims that Centex refused to promote her, then laid her off and refused to rehire her, in violation of 42 U.S.C. § 2000e-3. Centex now moves for summary judgment. For the reasons set forth below, Centex's motion is granted.
The relevant facts are as follows.*fn1 Centex is in the business of building and selling new residential properties throughout the United States. Cordon was hired by Centex in January of 2005 to work as a New Homes Sales Assistant ("Assistant"). As an Assistant, it was Cordon's primary responsibility to assist those working as New Home Sales Consultants ("Consultants") in a particular "sales community." Cordon's sales community was called Sable Ridge. From August 2005 until September 2006, Cordon's direct manager was Steve Atchison. However, it was Gregory Ford, the Director of Sales, who made all promotion and termination decisions.
In January of 2006, Cordon told Atchison that she had been sexually harassed by one of her co-workers. Together, Cordon and Atchison prepared a written complaint regarding Cordon's concerns. Within one week, Centex had completed its investigation into the complaint; Cordon was informed that the alleged harasser's employment had been terminated. Cordon agrees that Centex took her complaint seriously. After that incident, neither Atchison nor Ford ever mentioned the complaint to Cordon, nor did they ever indicate any disapproval of Cordon for filing a complaint.
Centex Assistants, together with their immediate supervisors, complete "Growth Reviews," wherein the Assistants list a series of goals for the next quarter and award themselves a "self score" letter grade for various qualitative achievements. These Growth Reviews may be modified by the Assistant's supervisor. In April of 2006, Cordon completed a Growth Review; upon evaluation, Atchison downgraded some of the letter grades Cordon had awarded herself. Thereafter, due to the decrease in home sales and home prices, Centex began eliminating sales positions. In September of 2006, Atchison's position was eliminated and Andreas Rubien became Cordon's new supervisor. In October of 2006, Cordon's Growth Review was evaluated by Rubien; again, he downgraded some of Cordon's self-awarded ratings. In both the April and October 2006 Growth Reviews, Cordon's final evaluation contained all A's or B's.
After working as an Assistant for a year, Cordon felt she deserved to be promoted to a Consultant or junior Consultant*fn2 position. Cordon could only be promoted if there was an open position, and during her time with Centex, just two opportunities for a promotion occurred. Cordon was not promoted. Instead, in December of 2006, April Mayse and James Hall were promoted to Consultant positions.
In January of 2007, Cordon was "mystery shopped" by a third-party vendor hired for the purpose of secretly evaluating Centex employees. After the mystery shopper left the sales office, Cordon complained to Rubien that the customer made her feel unsafe; she speculated that the customer was a mystery shopper who would give her a low score. Indeed, Cordon received an overall score of 28.47%; the one-word description given by the mystery shopper was "unprofessional." Cordon told Rubien that she thought the evaluation was unfair. She mentioned her sexual harassment complaint and claimed that she had been targeted for a mystery shop in order to "sabotage" her chances at a promotion. Rubien told Cordon that the shopper's report was not a true reflection of her work and that he would not use the report to evaluate or criticize Cordon's performance. Rubien also told Cordon that he did not know much about the sexual harassment complaint, but that the harassment allegations were not the reason why she had been selected for evaluation by the mystery shopper.
On February 1, 2007, Rubien provided Cordon with a written action plan. In the plan, he identified five general areas of improvement and provided a number of specific action items. For instance, Rubien noted that Cordon's objectives should include improving her knowledge of the sales process, competitors, and financing.
Later that month, Centex performed an additional round of layoffs. Cordon was let go. At the same time, three other Assistants-Jennifer Trautvetter, Brent Elstrom, and Nancy Ann Stuecklan, none of whom ever made claims of sexual harassment-were also let go. Rubien was not involved in the decisionmaking process; instead, he was given the names of the people selected and told to "handle it." Cordon was informed of the decision by telephone on February 12, 2007. Cordon had been informed by phone because she indicated she could not attend a meeting due to a doctor's appointment; at the time, Cordon was being evaluated for breast cancer. A few days later, Rubien and Ford told Cordon that although her position had been eliminated because of market circumstances, she would be allowed to remain an employee without a position so that she could maintain health insurance and disability benefits. She was also told that upon her release to work, she would be considered for any open positions for which she was qualified in lieu of immediate termination.
Although neither party's statement of material facts makes mention of the EEOC, it appears that Cordon filed charges with the EEOC on February 26, 2007, alleging that Centex illegally retaliated against her in response to her sexual harassment complaint by failing to promote her and terminating her employment. The next day, the EEOC sent a notice to Centex's human resource manager informing Centex of the charges. Cordon was cleared to return to work in mid-March 2007, and Centex considered her for the only two positions available at that time: Assistant Controller and Financial Analyst. Cordon was not qualified for either position. Rubien thus informed Cordon that Centex would be terminating her employment due to the reduction in force. Cordon's employment was terminated March 15, 2007.
In January of 2008, Centex rehired two people, David Hojnacki and Michael Hamilton, as Consultants. Both had been Consultants for several years before voluntarily resigning their positions in June of 2007. Amber Nebren-an Assistant who was let go in September of 2007-was also rehired in January of 2008 and worked at least occasionally in the Sable Ridge sales community. In addition, Veronica Garcia was transferred to the Sable Ridge community in February of 2007. Cordon was never rehired.