IL. Sexual Harassment (Count II)

To survive Gonnella’s motion for summary judgment on her sexual harassment claim,
McNichols must clear two hurdles. First, she must identify evidence she was subjected to
unwelcome sexual conduct directed at her because of her sex, the conduct was severe or
pervasive enough to create a hostile work environment, and it was both objectively and
subjectively offensive. Passananti v. Cook County, 689 F.3d 655, 664 (7th Cir. 2012). Second,
she must identify a basis for employer liability. Id.

Gonnella argues McNichols cannot establish severe or pervasive conduct that created a
hostile environment. Whether a work environment was hostile requires a consideration of all
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.” Jackson v. County of Racine, 474 F.3d 493,
499 (7th Cir. 2007).

MeNichols contends she established a hostile environment in two ways. First, she argues
coworkers subjected her to harassment sexual in nature. Specifically, she contends Alvarez
repeatedly asked her for a date over two weeks, coworkers used the Spanish word for whore
among themselves, explicit graffiti in the men’s bathroom included her name, and a coworker
walked in on her in the women’s bathroom.

The occasional use of offensive words not directed at McNichols does not create a hostile
environment. Mercer v. Cook County, Ill., No. 09 C 5565, 2012 WL 1044549, at ** 8-9 (N.D.
Ill. Mar. 28, 2012) (Ashman, J.) (words like “nigger,” “those bitches,” and “oh, bitch” not

directed at plaintiff did not create a hostile environment). Requests for a date over a short period


based on information falsified by production supervisor Vazquez, and that he did not report male
employees for the same conduct. When a plaintiff argues she was disciplined for falsified
reasons, or that an employer applied discipline in a disparate manner, the legitimate expectation
prong of the prima facie case merges with question of pretext. Good v. Univ. of Chi. Med. Ctr.,
673 F.3d 670, 678 (7th Cir. 2012) (disparate discipline); Hague v. Thompson Distrib. Co., 436
F.3d 816, 823 (7th Cir. 2006) (falsified reasons).

To show pretext, McNichols must show Gonnella’s reasons are unworthy of belief.
Gusewelle y. City of Wood River, 374 F.3d 569, 575 (7th Cir. 2004). Pretext must be “more than
just faulty reasoning or mistaken judgment;” it is a lie—a phony reason. Scruggs v. Garst Seed
Co., 587 F.3d 832. 838-39 (7th Cir. 2009). McNichols contends she established pretext with
evidence Vazquez did not discipline male employees who engaged in similar conduct. She
asserts Vazquez’s statement that he does not like working with women is further evidence she
was disciplined based on her sex. However, it is undisputed she was demoted by production
manager King, not Vazquez. Although McNichols argues Vazquez influenced King, the
statement of fact she cites (Pl. Fact { 31) does not mention Vazquez, and the court disregards her
unsupported assertion. Hunter v. Jewel-Osco, No. 11 C 8967, 2013 WL 53894, at *2 n.2 (N.D.
Ill. Jan. 3, 2013) (Kocoras, J.) (assertions unsupported by record evidence may be disregarded).

Moreover, King testified at his deposition that McNichols’ demotion was based on his
personal observations of her work. Def. Facts J 24 (citing King Dep., Dkt. 88-4, Ex. 8, at 88:18 -
89:1). In fact, he did not review, and lacked access to, her disciplinary file. King Dep., Dkt. 88-

4, Ex. 8 at 91:4-19. McNichols identified no evidence to refute that testimony.

10


III. Sex Discrimination (Count IV)

A plaintiff may prove sex discrimination under either the direct or indirect method.
Grigsby v. LaHood, 628 F.3d 354, 358 (7th Cir. 2010). McNichols relies on the indirect method,
which involves the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under McDonnell Douglas, McNichols must first establish a prima facie case
of discrimination by showing: (1) she is a member of a protected class; (2) she reasonably met
Gonnella’s legitimate job expectations; (3) Gonnella took an adverse employment action against
her; and (4) Gonnella treated her differently than similarly-situated persons outside her protected
class. See id. at 802; Burks v. Wisconsin Dep't of Transp., 464 F.3d 744, 750-51 (7th Cir. 2006).
If MeNichols satisfies her burden, Gonnella must articulate a legitimate, nondiscriminatory
reason for its actions. Burks, 464 F.3d at 751. If it does, McNichols must show Gonnella's
explanation is pretextual. McDonnell Douglas, 411 U.S. at 804; Burks, 464 F.3d at 751.

Gonnella does not dispute that, as a woman, MeNichols is a member of a protected class.
But it argues she cannot establish she suffered an adverse employment action, was meeting its
legitimate job expectations, or that it treated male employees better.

A. Adverse Employment Action

Adverse employment actions come in three general forms: (1) termination or reduction
in benefits or financial terms of employment; (2) transfer or change in job duties that diminish an
employee's skills and future job prospects; and (3) unbearable change in job conditions, such as a
hostile work environment or conditions amounting to a constructive discharge. Barton v.

Zimmer, Inc., 662 F.3d 448, 453-54 (7th Cir. 2011). MeNichols has not established a hostile



of time and similar isolated conduct does not create a hostile environment. Weiss v. Coca-Cola
Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (plaintiff did not establish a hostile environment
with evidence coworker “asked her for dates, called her a ‘dumb blond,’ put his hand on her
shoulder several times, placed ‘I love you’ signs in her work area and attempted to kiss her in a
bar” and may have also “twice attempted to kiss her in the office”), Accordingly, McNichols has
not established that coworkers’ conduct created a hostile environment.

McNichols argues she established a hostile environment with evidence that production
supervisor Roberto Vazquez treated her more harshly than male bakers. She contends Vazquez
yelled at her, rechecked her weights, and made her up pick up crumbs of dough from under her
machine, but did not subject male employees to these requirements. She also contends that
Vazquez stated he did not like working with women.

According to McNichols, Vazquez’s hostility to her but not to male employees constitutes
sexual harassment. In support, she cites Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999).
But in Smith, female employees endured verbally abusive and physically threatening conduct,
including a violent assault that drew blood, damaged ligaments, and required surgery. Id. at 533.
Smith does not support McNichols’ argument that disparate treatment alone creates a hostile
environment. McNichols presented no evidence of the type of severe verbal abuse or physical
threats that create an abusive workplace.

MeNichols’ evidence does not establish a hostile environment. Therefore, the court need
not address whether she established a basis for employer liability. Accordingly, Gonnella’s

motion for summary judgment on her sexual harassment claim is granted.



the employee in that case requested a demotion, turned down a transfer to a different supervisory
position and, therefore, had not suffered an adverse employment action. Hicks, 677 F.3d at 788.

As for McNichols’ transfer on December 27, 2010, from the oven to pans, she has not
shown it was an adverse employment action. It did not erode her skills or adversely impact her
job prospects because she transferred back to the oven on May 9, 2011. Dkt. 104-2 at 332:10:12
(McNichols Dep.). McNichols contends it impacted her pay because on March 18, 2011, plant
manager Mazukelli denied her overtime. Denied overtime is an adverse employment action only
if its impact was significant and recurring. Lewis v. City of Chicago, 496 F.3d 645, 653-54 (7th
Cir. 2007). McNichols has not satisfied the significant or recurring standard because she did not
specify the amount of overtime lost, and contends it occurred only once while on pans.

Accordingly, MeNichols has identified evidence her suspension and demotion were
adverse employment actions. She has not shown her transfer was an adverse employment action,
and may not proceed with that part of her claim.

B. Legitimate Job Expectations

Gonnella argues McNichols’ performance did not meet its legitimate expectations when
she returned contaminated dough to the production line. McNichols does not contest that
returning contaminated dough into production violates Gonnella’s Good Manufacturing Practices
policy, or that King observed her conduct on videotape. Def. Facts 23. Therefore, McNichols
cannot show she was meeting Gonnella’s legitimate expectations when it suspended her for the
violation in April 2010, and may not proceed with that part of her claim.

Gonnella argues McNichols also failed to meet its legitimate expectations based on the

numerous other disciplinary warnings she received. McNichols argues these warnings were



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DORIS REDMOND and )
JEANNE MeNICHOLS, )
)
Plaintiffs, ) Civil Action No.: 12 C 1474

)
v. )

) Suzanne B. Conlon, Judge
GONNELLA BAKING COMPANY and )
CLEMENTE CASTRO. )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Jeanne McNichols sues her employer, Gonnella Baking Company, under Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e, et seq., claiming Gonnella discriminated against her
because of her sex and subjected her to sexual harassment. She also claims Gonnella retaliated
against her for reporting the discrimination and harassment. Gonnella moves for summary
judgment on all of McNichols’ claims. For the reasons set forth below, the motion is granted.

BACKGROUND

The following facts are derived from the parties’ Local Rule 56.1 statements and exhibits.
Gonnella is a wholesale manufacturer of bread products operating in Chicago. Def. Facts { 1.
McNichols began working for Gonnella in 2000 as a baker. Id. 2. In 2002, she was promoted
to the position of baker group leader. Jd. 12. As group leader, McNichols’ responsibilities

included overseeing the production line to ensure compliance with posted specifications. Id.

q13.



demotion were pretextual. Accordingly, summary judgment is granted on her sex discrimination
claim.
Ill. —_- Retaliation (Count III)

Title VII protects employees from retaliation for complaining about prohibited
discrimination. 42 U.S.C. § 2000e-3(a); Antonetti v. Abbott Labs., 563 F.3d 587, 592 (7th Cir.
2009). McNichols claims Gonnella retaliated against her for complaining about the following
instances of sexual harassment: (1) disparate treatment by Vazquez, (2) the male employee who
walked in the women’s bathroom while she was on the toilet, and (3) Echevarria’s hickey.

Retaliation can be established under either the direct or indirect methods. Harper v. C.R.
England, Inc., 687 F.3d 297, 306 (7th Cir. 2012). Common to both is the need to show the
plaintiff engaged in a statutorily protected activity. Jd. at 306, 309.

MeNichols has not shown a protected activity because she could not have reasonably
believed the conduct she challenged violated Title VII. Kodl v. Bd. of Educ., School Dist. 45,
Villa Park, No. 05 C 3837, 2006 WL 2192014, at *12 (N.D. Ill. Aug. 1, 2006) (St. Eve, J.)
(plaintiff need not succeed on her sexual harassment claim to show a protected activity, but must
have reasonably believed the conduct violated Title VID, aff'd, 490 F.3d 558 (7th Cir. 2007).
She admits she never reported the incidents involving Vazquez, the bathroom, or the hickey as
being sexual harassment. Resp. Def. Facts 4 46. She cannot reasonably have believed Vazquez
harassed her on account of her sex given the petition she and seven male coworkers signed
complaining that Vazquez was yelling at them all. It is also not reasonable to believe that

isolated offensive remarks, like Vazquez’s that he does not like working with women, violate

12



MeNichols argues King’s shifting reasons for her demotion also establish pretext.
Specifically, she notes King testified at his deposition that he disciplined McNichols for poor
product quality and a messy bakeshop. McNichols contends these reasons are not the ones King
gave at the time, which included “inconsistency” such as products made the wrong length, and
not being responsible for the equipment and the performance of others on her team. PI. Facts
31 (citing May 16, 2010 King e-mail, Dkt. 104-15, Ex. O).

Pretext can be inferred from an employer’s shifting or inconsistent explanations for an
employment decision. Silverman v. Bd. of Educ., 637 F.3d 729, 737 (7th Cir. 2011). King’s
reasons all concern poor product quality and McNichols’ failure to fulfill her responsibilities as
group leader. They are therefore not shifting or inconsistent, and do not establish pretext.
Montgomery v. DePaul Univ., No. 10 C 78, 2012 WL 3903784, at *7 (N.D. Ill. Sept. 7, 2012)
(Feinerman, J.) (additional reasons for denying tenure consistent with original reasons do not
establish pretext).

Finally, McNichols argues she has established pretext through evidence of disparate
treatment. At the time of McNichols’ demotion, King did not discipline fellow group leader Juan
Echevarria, who had accumulated even more disciplinary warnings than MeNichols. But, as
discussed above, King did not review MeNichols’ disciplinary history, and therefore could not
have known how her record compared to Echevarri’s. In any event, King terminated Echevarria
on October 4, 2010, for his poor attendance and work performance. Def. Facts 79.

MeNichols has failed to establish her transfer was an adverse employment action, that she

met her employer’s legitimate expectations when she was suspended, or that the reasons for her

11


work environment, and so the court focuses on her arguments she suffered adverse employment
actions in the form of (1) a suspension, (2) a demotion, and (3) a transfer.

McNichols’ suspension in April 2010 for returning contaminated dough to the production
line was an adverse employment action because it impacted her pay. Smith v. Sibelius, No. 09 C
7280, 2011 WL 3704146, at *4 (N.D. Ill. Aug. 17, 2011) (Kennelly, J.) (a suspension without
pay is evidence of an adverse employment action), aff'd , 484 Fed. Appx. 38 (7th Cir. 2012).
Although the parties did not explicitly state that McNichols’ suspension was without pay, during
her deposition she testified that she confirmed her suspension by looking at her pay stubs. Resp.
Def. Facts {| 22 (citing McNichols Dep., Dkt. 104-2, Ex. B at 117:13-21). As the non-moving
party, McNichols is entitled to an inference that her suspension was without pay. Fleishman v.
Continential Cas. Co., 698 F.3d 598, 603 n.1 (7th Cir. 2012) (inferences supported by evidence
are viewed in the light most favorable to the nonmoving party).

McNichols’ demotion was also an adverse employment action because it included a pay
cut. Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir. 2012) (a demotion with a pay cut is
evidence of an adverse employment action). Gonnella argues the demotion was not materially
adverse because McNichols chose it from the options King gave her while discussing her poor
work performance. But in Hicks v. Forest Preserve Dist., 677 F.3d 781 (2012), the Seventh
Circuit found a plaintiff who “was given a choice between taking a demotion or staying in his
present role to face further disciplinary action up to termination,” was essentially given “no
choice at all.” Jd. at 787-88. The Seventh Circuit explicitly distinguished the case on which

Gonnella relies, Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 876 (7th Cir. 1999), because



discrimination based on her sex, religion, and retaliation. Dkt No. 1, Ex. B at 2. She received a
right-to-sue letter dated January 30, 2012, id. at 1, and, along with co-plaintiff Doris Redmond,
timely filed this suit within 90 days on March 1, 2012. McNichols’ claims against Gonnella
consist of three counts. She alleges sexual harassment by both a supervisor, and by coworkers
that Gonnella did not adequately attempt to prevent or remedy (Count II). She alleges retaliation
in response to her complaints of harassment (Count Ill). Finally, she alleges sex discrimination
when Gonnella suspended her, demoted her, and transferred her (Count IV). She did not allege
religious discrimination.

Gonnella moves for summary judgment on all McNichols’ claims.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate if the record evidence reveals no genuine issue of
material fact and Gonnella is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c);
Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010). Gonnella bears the initial burden
of showing it is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If satisfied, this burden shifts to McNichols to go beyond the pleadings and present
specific facts that show there is a genuine issue for trial. FED. R. Civ. P. 56(e)(2); Kramer v.
Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004). There is a genuine issue of material
fact if the evidence is sufficient to support a reasonable jury verdict in McNichols’ favor. Pugh
v. City of Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001). In considering Gonnella’s motion,
all facts and reasonable inferences are viewed in the light most favorable to McNichols.

Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


“crippled and un-sellable” breadsticks on March 8, 2010, id. | 21, and put contaminated dough
back into production on an unspecified date in April 2010, id. § 22.

MeNichols disputes the bases for some of the disciplinary reports. She contends the
moulding belt tore in January 2009 not because she failed to fill the flour duster, but because it
was previously damaged. Resp. Def. Facts J 19. On other occasions, she contends she was
disciplined for violations also committed by male employees, who were not disciplined. For
example, she contends another group leader ran his line too slowly on two occasions but was not
disciplined. P]. Facts { 26.

On May 16, 2010, production manager Tom King met with McNichols to discuss her
poor work performance. Jd. { 24. King’s assessment of McNichols’ work performance was
based on his own observations—he did not review her disciplinary history. Resp. Pl. Facts 33.
During the meeting, King gave McNichols three options: (1) drastically improve her
performance and remain group leader; (2) continue her poor performance and face additional
discipline including possible termination; or (3) step down and become a baker again. Def. Facts
4[24. The following day, McNichol told production supervisor Kronfeld she would resign as
group leader. Jd. § 25. She resumed her position as a baker, and was assigned to work the oven.
Pl. Facts ¥ 37.

On December 27, 2010, Kronfeld moved McNichols from the oven position to pans. Jd.
Although the transfer did not a change to her pay or shift, she found the transfer to be degrading.
Id. 4 38; Def. Facts 68.

On October 28, 2010, McNichols filed charge of discrimination with the Equal

Employment Opportunity Commission and the Illinois Department of Human Rights alleging



MeNichols contends she was subjected to harassment on account of her sex while at
Gonnella. She alleges her production supervisor, Roberto Vazquez, referred to her as “stupid
girl” and “the girl.” Pl. Facts ¢ 10. Vazquez once said he does not like working with women.
Id. 4,7. While supervising MeNichols, he yelled at her and rechecked the weights of her
products. Jd. { 10. He once changed the setting on her oven, which ruined the bread she was
baking and for which Vazquez blamed McNichols. Jd. Male employees also complained
Vazquez yelled at them. Def. Facts 65. McNichols joined seven male employees in signing a
petition to have Vazquez removed because “he is very VERBALLY ABUSIVE he is always
YELLING and INTIMIDATING us.” Dkt. 88-10, Ex. 22.

MeNichols contends she was also harassed when a male employee walked in the
women’s bathroom while she was on the toilet. Pl. Facts 4 16. Coworker Josue Alvarez
repeatedly asked her for a date over the course of two weeks. Jd. § 19. Production supervisor
Jeff Kronfeld told her to treat dough “like a good man.” Id. ¢ 14. She learned about, but never
saw, sexually explicit graffiti in the men’s bathroom that included her name, and overheard
coworkers use the word “puta,” which is Spanish for whore. Id. 21; Def. Facts 59. She also
witnessed two male employees ask group leader Juan Echevarria if he wanted to be raped. Pl.
Facts { 17. The two male employees later gave Echevarria a hickey. Id.

While group leader, McNichols was disciplined on seven occasions. According to the
disciplinary reports, she failed to add hand-scaled ingredients to a batch of dough on December
16, 2002, id. § 14, misplaced a scraper on February 18, 2007, id. § 15, baked bread the wrong
length on December 17, 2008, id. 17, failed to fill a flour duster causing a belt to tear in half on

January 9, 2009 id. {| 19, ran a dough divider too slowly on February 10, 2010, id. | 20, made



Title VII. Buford v. Oakton Cmty. Coll., No. 11 C 9261, 2012 WL 5936291, at *3 (N.D. Ill. Nov.
27, 2012) (Guzman, J.).

MeNichols also cannot show she reasonably believed Echevarria’s hickey to have
violated Title VII. She admits after the incident, Echevarria told her he didn’t mind the hickey,
and may have even said he liked it. Def. Facts 57 (citing McNichols Dep., Dkt. 104-2, Ex. B at
265:21 - 266:4).

MeNichols has not shown she engaged in a protected activity. Accordingly, summary
judgment is granted on her retaliation claim.

CONCLUSION

Gonnella’s motion for summary judgment is granted on all of McNichols’ claims.
Gonnella is entitled to judgment on Count II for sexual harassment because MeNichols has not
shown a hostile environment. Gonnella is entitled to judgment on Count IV for sex
discrimination because McNichols has not shown pretext. Gonnella is entitled to judgment on
Count III for retaliation because McNichols has not shown she engaged in a protected activity.

ENTER:

Febmuareg Zy, Suzannd@B. Conlon
Siarciets , 2013 United States District Judge

13