IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KATHERINE SWIDNICKI,

Plaintiff,

v.

BRUNSWICK CORPORATION,

Defendant.

Case No. 12 C 3987

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff Katherine Swidnicki (“Swidnicki”) brings this action

against her former employer, Brunswick Corporation (“Brunswick”),

alleging that she was discriminated against on the basis of her

national origin and gender, sexually harassed, and retaliated

against for reporting to a human resource manager that she had been

instructed by a supervisor not to record overtime hours she had

worked. Swidnicki seeks relief under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), 42 U.S.C.

§ 1981 (“Section 1981”), the Fair Labor Standards Act, 29 U.S.C.

§ 201, et seq. (“FLSA”), and the Illinois Human Rights Act, 775

Ill. Comp. Stat. 5 (“IHRA”). Brunswick has moved for summary

judgment. (ECF No. 15). For the reasons stated herein, the Motion

is granted in part and denied in part.

I. BACKGROUND

The background facts are derived principally from the parties’

Local Rule 56.1 submissions and are undisputed except where noted.
Swidnicki is a native of Poland and has resided in the United

States since emigrating with her family in the 1980s. From 2008

until 2011, she worked as an Installation Analyst at Life Fitness,

a group within Brunswick that sells exercise equipment. Her duties

consisted primarily of arranging for third-party vendors to deliver

and install exercise equipment at customers’ locations. 

Between 2008 and 2010, Swidnicki worked on a team supervised

by Brent Nichols (“Nichols”). In 2009, Swidnicki received an

evaluation from Nichols rating her overall performance as

“satisfactory,” the middle of five possible ratings. Nichols’

evaluation offered positive comments and identified areas where he

believed Swidnicki’s performance could be improved. For example,

Nichols stated that Swidnicki needed to work on her efficiency and

response time to issues with third-party logistics. He further

noted that she worked late almost every day even though her

workload was “on the lower end,” and that she would benefit from a

“greater sense of urgency” and faster turnaround on her review of

certain audits.

In March 2010, Swidnicki was transferred to a team with a

different supervisor named Dan Terrien (“Terrien”). In one of

their first meetings together, Terrien asked Swidnicki about her

nationality. He expressed surprise that she was working in an area

where “not a lot of Polish people” worked and stated that “a lot of

Polish people are in cleaning services.” Terrien later mentioned

to Swidnicki that some vendors might have difficulty understanding

- 2 -
her due to her accent. On one occasion, he asked Swidnicki if she

needed a dictionary to “look up” what he was saying. On another,

he stated that her “European accent” was “getting in the way” and

told her that she needed to practice her language skills. Terrien

continued to make similar comments to Swidnicki about once per

month during the ten-month period he supervised her. 

During a meeting in the fall of 2010, Terrien changed

Swidnicki’s first name on a dry-erase board from “Kathy” to

“Katyrzyna,” a misspelling of her birth name, “Katarzyna.” This

disturbed Swidnicki because she always had used “Kathy” around the

workplace and she viewed Terrien’s changing of her name as an

attempt to upset or provoke her.

Swidnicki disagreed with Terrien’s management style and felt

that he was not providing her with enough assistance and that he

gave inconsistent direction. She was bothered by the fact that he

sometimes directed her to enter incorrect information into the

company’s tracking system and later would blame her for any

problems that arose. In addition, she felt slighted that she had

not been permitted to work using the company’s “new model” for

tracking equipment deliveries. Despite her requests to be

transferred over to the new model, Terrien told her that he

preferred her working in the “classic model” because she knew “all

of the ins and outs” of that system.

On a more general level, Swidnicki felt intimidated by Terrien

because he often raised his voice and used profanity around the

- 3 -
office. He was less friendly with female employees and, on one

occasion, referred to a female technician based on the west coast

as being the equivalent of only “half a man.”

In July 2010, Swidnicki received a mid-year evaluation in

which Terrien stated that she had “done a great job reducing

storage” at vendors’ facilities, but noted that she struggled with

meeting deadlines and that she needed to do a better job of

cleaning up third-party inventory. Terrien did not give Swidnicki

any specific rating, but Swidnicki perceived the review as being

negative and disagreed with Terrien’s criticism.

Although Swidnicki often felt that she needed to work overtime

in order to complete her work, Terrien told her that she should not

be putting in additional hours and expressed concern that she was

making “extra work” for herself. When she did not stay and work

overtime, however, Terrien would criticize her for failing to

complete her work. Terrien also told Swidnicki on several

occasions not to report the overtime hours she worked. 

In the fall of 2010, Swidnicki complained to Carol Stame

(“Stame”), the Director of Human Resources, about Terrien’s

instructions to her regarding overtime. Stame told Swidnicki that

she should record her overtime hours as permitted by law and

indicated that she would take up the matter with Terrien. However,

Swidnicki did not think Stame acted on her complaint and neither

Terrien nor Stame recall ever discussing the issue.

- 4 -
Sometime later, Terrien altered the team’s seating

arrangement, moving Swidnicki next to a co-worker named Luis Davila

(“Davila”). Davila routinely engaged in inappropriate behavior,

often making off-color sexual remarks to Swidnicki. A sampling of

his conduct includes: performing a Michael Jackson imitation

during which he grabbed his crotch; making repeated references to

his “schmeckel,” the Yiddish term for a small penis (he would say,

for example, “My schmeckel is so much bigger than these carrots,”

“My schmeckel is itching,” or “Kathy, do you want to taste my

schmeckel?”); stating that there were “ants in [his] pants” or that

there was a “party in [his] pants”; stating to Swidnicki that he

had “wet [his] crotch”; asking Swidnicki whether she wanted to feel

his “balls”; making suggestive remarks about having engaged in

homosexual relations with co-workers; stating to Swidnicki that he

had a long “shaft” and that he enjoyed eating “hairburgers,” a

vulgar reference to female genitalia; commenting that a hair he

found may have been a pubic hair and asking Swidnicki if it was

hers; suggesting to Swidnicki that she “give love” to a co-worker;

asking Swidnicki if she liked to “swallow”; whispering comments to

Swidnicki such as “I love you, Kathy. Don’t you love me back? Say

it. Don’t you love me back?”; and pulling out his waistband to

look at his genitals while in front of Swidnicki and commenting “my

crotch is sweaty.” 

Over time, Davila’s conduct grew incessant to the point where

he was making sexually explicit comments between 20 and 30 times

- 5 -
per day. Swidnicki and other employees often had to stop making

work-related telephone calls because of Davila’s loud remarks and

there were times when his comments were so crude that the whole

department, even those who usually laughed at his remarks, would go

silent.

Despite Swidnicki’s requests to stop, Davila persisted with

his behavior. When Swidnicki complained to Terrien about Davila’s

conduct, Terrien stated that Davila simply was “letting off steam”

because he had been under pressure. Swidnicki later brought her

concerns to Terrien’s supervisor, Mike Edwards (“Edwards”), but was

told that she needed to take up the issue with Terrien. 

In December 2010, Terrien and Stame issued Swidnicki a

Performance Deficiency Notice (“PDN”), identifying a number of

concerns about her work. These included problems following the

proper logistics processing procedures, failure to submit invoice

approvals in a timely manner, poor time-management and inability to

meet deadlines, failure to follow-up with Terrien about documenting

time spent on various tasks, refusal to follow processes used by

the rest of the team, failure to be a “team player,” and

insubordinate attitude. The PDN also gave Swidnicki a time frame

within which she needed to show improvement in these areas.

Near the end of the year, Swidnicki went on medical leave to

have surgery on her hand. Although she was scheduled to resume

work on January 17, 2011, she did not return. Swidnicki claims

that, while on leave, she suffered an anxiety attack over the

- 6 -
thought of returning to work. She secured a note from a family

doctor excusing her from work and began seeing a psychologist. 

Despite failing to return to work, Swidnicki continued to receive

her full salary and benefits for more than six months. Thereafter,

in July 2011, Swidnicki was terminated after having been informed

by Brunswick that her benefits under the company’s salary

continuation policy had been exhausted.

II. LEGAL STANDARD

Summary judgment is appropriate where the moving party “shows

that there is no genuine dispute as to any material fact and [it]

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). 

A dispute is “genuine” if the evidence would permit a reasonable

jury to find for the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A fact is material if it might

affect the outcome of the suit. Id. If the moving party satisfies

its burden, the non-movant must present evidence sufficient to

demonstrate that a genuine factual dispute exists. See, Celotex

Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d

265 (1986). In doing so, the non-moving party “must do more than

show that there is some metaphysical doubt as to the material

facts.” Sarver v. Experian Info. Sys., 390 F.3d 969, 970 (7th Cir.

2004). Rather, it must demonstrate “through specific evidence that

a triable issue of fact remains on issues for which the nonmovant

bears the burden of proof at trial.” Knight v. Wiseman, 590 F.3d

458, 463-64 (7th Cir. 2009).

- 7 -
III. ANALYSIS

A. State Law Claims

At the outset, Brunswick argues that Swidnicki’s

discrimination and harassment claims under the IHRA are barred from

review because she failed to exhaust her administrative remedies

with the Illinois Human Rights Commission (“Commission”) prior to

bringing this suit. The IHRA vests the Commission with exclusive

authority to hear complaints seeking redress for alleged violations

under the Act. Jimenez v. Thompson Steel Co., Inc., 264 F.Supp.2d

693, 695 (N.D. Ill. 2003) (citing Mein v. Masonite Corp., 485

N.E.2d 312, 315 (Ill. 1985)). Judicial review of such claims is

available only after the Commission has issued a final order on a

complaint. Flaherty v. Gas Research Institute, 31 F.3d 451, 458

(7th Cir. 1994). 

Swidnicki does not allege that she initiated any proceedings

before the Commission or received a final order on her complaint. 

Rather, she contends that her filing of a charge with the Equal

Opportunity Employment Commission (“EEOC”) and the EEOC’s

subsequent issuance of a Right to Sue Letter satisfied her

obligation to exhaust her administrative remedies because of a

workshare agreement that exists between the EEOC and the

Commission. Although Swidnicki is correct that the EEOC and the

Commission have a workshare agreement, “a right to sue letter from

the EEOC cannot be used as a substitute for a final order from the

- 8 -
Commission.” Davis v. Metro. Pier & Exposition Auth., No. 11 C

9018, 2012 WL 2576356, at *9 (N.D. Ill. July 3, 2012).

Because Swidnicki has not alleged that she received a final

order from the Commission, the Court lacks jurisdiction over her

state law claims. Accordingly, Counts VIII and IX of her Complaint

are dismissed.

B. Discrimination

Swidnicki’s Complaint charges Brunswick with national origin

and gender discrimination in violation of Title VII and

Section 1981. Because claims brought under Section 1981 are

evaluated on summary judgment under the same standards as Title VII

claims, Swidnicki’s discrimination claims may be reviewed together. 

See, Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 641 n.5

(7th Cir. 2005).

Title VII “prohibits employment discrimination on the basis of

race, color, religion, sex, or national origin.” Ricci v.

DeStefano, 557 U.S. 557, 557 (2009) (citing 42 U.S.C. § 2000e2(a)). Unlawful discrimination may be demonstrated either through

direct or circumstantial evidence of intentional discrimination, or

indirectly through a subset of circumstantial evidence that

conforms to the burden-shifting framework set forth by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03

(1973). See, Sylvester v. SOS Children’s Vills. Ill., Inc., 453

F.3d 900, 902-03 (7th Cir. 2006) (explaining the distinctions

- 9 -
between direct and indirect methods of proof). Swidnicki appears

to proceed under both methods.

1. Direct Method

Under the “direct” method of proof, a plaintiff must offer

either “direct evidence of animus – the so-called ‘smoking gun’ –

or circumstantial evidence which establishes a discriminatory

motive on the part of the employer through a longer chain of

inferences.” Van Antwerp v. City of Peoria, Ill., 627 F.3d 295

(7th Cir. 2010). Direct evidence is rare and “essentially requires

an admission by the decision-maker that his actions were based on

the prohibited animus.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d

498, 504 (7th Cir. 2004). Circumstantial evidence may include (1)

“suspicious timing, ambiguous oral or written statements, or

behavior toward or comments directed at other employees in the

protected group,” (2) “evidence, whether or not rigorously

statistical, that similarly situated employees outside the

protected class received systematically better treatment,” or (3)

“evidence that the employee was qualified for the job in question

but passed over in favor of a person outside the protected class

and the employer’s reason is a pretext for discrimination.” Good

v. Univ. of Chicago Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012). 

Swidnicki’s evidence of discrimination centers entirely on

Terrien’s conduct – specifically, his comments about vendors having

difficulty understanding her accent, his remarking on the fact that

many Polish people work “in cleaning services,” his decision to

- 10 -
change her name on a dry-erase board from an Americanized nickname

to her full Polish name, his refusal to allow her to use the

company’s new system for tracking deliveries, and his off-handed

comment about a certain female employee being the equivalent of

only “half a man.” Even assuming that this conduct is sufficient

proof of Terrien’s alleged animosity toward Swidnicki’s national

origin and gender, there is no evidence suggesting that Terrien was

at all involved in Brunswick’s decision to terminate her

employment. 

Derogatory remarks made by a non-decisionmaker or someone

without influence generally “do not suffice as evidence of

discriminatory intent.” Lucas v. Chicago Trans. Auth., 367 F.3d

714, 730 (7th Cir. 2004). Although Swidnicki apparently “felt”

that Terrien might have played a role in her termination, (Pl.’s

Resp. to Def.’s Stmt. of Uncontroverted Facts (“Pl.’s Resp. Stmt.”)

¶ 47, ECF No. 23), her belief in that regard is purely speculative

and, in any event, unsupported by any facts in the record. It is

true that Terrien gave Swidnicki an arguably negative performance

evaluation and later issued her a PDN, but there is no indication

that he influenced Brunswick’s decision to fire her, whether

through his reviews of her work (however unfavorable they may have

been), the issuance of the PDN, or some other means. Nor is there

evidence that Terrien’s alleged discriminatory animus was intended

to cause an adverse employment action or was a proximate cause of

Swidnicki’s termination. See, Staub v. Proctor Hosp., ---

- 11 -
U.S. ---, 131 S.Ct. 1186, 1194 (2011). Rather, the undisputed

facts show that the decision to terminate Swidnicki’s position came

only as a result of her exhausting her available leave time under

Brunswick’s policies more than six weeks after she failed to return

to work. Because Swidnicki has identified no discriminatory

behavior in connection with Brunswick’s decision to fire her, her

claims fail under the direct method of proof.

2. Indirect Method

To proceed under the “indirect” method of proof, the plaintiff

first must establish a prima facie case of unlawful discrimination. 

Fane v. Locke Reynolds LLP, 480 F.3d 534, 538 (7th Cir. 2007). In

setting forth a prima facie case, an employee must demonstrate that

(a) she is a member of a protected class, (b) her job performance

met the employer’s legitimate expectations, (c) she was subjected

to an adverse employment action, and (d) similarly situated

employees outside of the protected class were treated more

favorably. Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 511

(7th Cir. 2012). If the plaintiff successfully makes out a prima

facie case, “a presumption of discrimination arises, and the

employer must articulate a legitimate, nondiscriminatory reason for

its employment action.” Moser v. Ind. Dep’t of Corr., 406 F.3d

895, 900 (7th Cir. 2005). Finally, if the employer provides a

nondiscriminatory rationale for its conduct, the burden shifts back

to the plaintiff to prove that the employer’s proffered explanation

- 12 -
merely was a pretext for discrimination. Stockett v. Muncie Ind.

Trans. Sys., 221 F.3d 997, 1001 (7th Cir. 2000). 

The first two elements of Swidnicki’s prima facie case are not

in dispute. (Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s

Mem.”) at 3-4, ECF No. 16). Brunswick contends, however, that

Swidnicki is incapable of demonstrating either that she was subject

to any adverse employment action or that any similarly situated

employees received more favorable treatment. (Id. at 4-7).

Without question, termination is an adverse employment action. 

O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004). 

However, Swidnicki has failed to present evidence regarding any

similarly situated non-Polish employee who engaged in comparable

conduct and was not fired. A similarly situated employee is one

whose performance, qualifications, and conduct are directly

comparable to the plaintiff’s in “all material respects.” Dandy v.

United Parcel Serv., Inc., 388 F.3d 263, 274 (7th Cir. 2004). 

Although a comparator need not be identical to the plaintiff, he or

she must at least have been subject to the same standards or

policies and engaged in similar misconduct of “comparable

seriousness.” Coleman v. Donahoe, 667 F.3d 835, 848-850 (7th Cir.

2012). Because Swidnicki has not identified any similarly situated

non-Polish employee who failed to return to work after exhausting

available leave time (or engaged in similar conduct) and received

more favorable treatment, she consequently cannot establish a prima

- 13 -
facie case of discrimination based on Brunswick’s termination of

her position. 

Swidnicki argues that her termination was not the only adverse

employment action she was subjected to while at Brunswick. 

Specifically, she contends that she suffered adverse action after

Terrien refused to allow her to use the company’s new computer

system and, later, when he issued her a PDN following an allegedly

negative mid-year performance review. However, “not everything

that makes an employee unhappy is an actionable adverse action.” 

Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 780 (7th Cir.

2007) (citation omitted). Rather, the employer’s action must be

“materially adverse” and cause “more than a mere inconvenience or

an alteration of job responsibilities.” Kersting v. Wal-Mart

Stores, Inc., 250 F.3d 1109, 1115 (7th Cir. 2001). Thus, classic

examples of adverse employment action include “termination of

employment, a demotion evidenced by a decrease in wage or salary,

a less distinguished title, a material loss of benefits, [or]

significantly diminished material responsibilities.” Hottenroth v.

Village of Slinger, 388 F.3d 1015, 1029 (7th Cir. 2004).

Although Swidnicki may have felt that Terrien was holding her

back by not placing her on the company’s new computer system, which

she believed was “the up and coming thing at Brunswick,” (Pl.’s

Opp. Mem. at 15), there is no evidence that his decision diminished

her job responsibilities in any material way or otherwise

negatively affected her career prospects. While the Seventh

- 14 -
Circuit has held that an adverse action may be established based

upon an employer’s denial of a valuable work opportunity, it did so

under circumstances where the plaintiff was refused permission to

attend a “once in a lifetime” training event that caused her to

lose the potential for “many hours of overtime” and would have

advanced her career substantially by opening unique work

opportunities for her. Lewis v. City of Chicago, 496 F.3d 645,

653-54 (7th Cir. 2007). Here, there is nothing to suggest that

Swidnicki was being passed over on any sort of exclusive career

opportunity. Indeed, as one of Swidnicki’s co-workers explained,

the new model did not even “go live” until June 2011 – six months

after Swidnicki left Brunswick – and employees were being trained

on the system one at a time. (Pl.’s Ex. HH (Junge Dep.) at 32,

ECF No. 21-6). Terrien told Swidnicki that she would be trained

“soon,” (Def.’s Ex. A (Swidnicki Dep.) at 115, ECF No. 15-1), and

there is no indication that Swidnicki eventually would not have

been transitioned over to the new model prior to it going live. 

Moreover, Terrien stated to Swidnicki that he was waiting to

transfer her to the new system because he valued her skills in the

classic model, (see, Def.’s Ex. A (Swidnicki Dep.) at 115, ECF

No. 15-1), and Swidnicki has offered no evidence that this plainly

legitimate explanation was a pretext for discrimination.

As for Terrien’s allegedly negative mid-year performance

evaluation and the issuance of the PDN, neither were adverse

employment actions. At the outset, “unfair reprimands or negative

- 15 -
performance evaluations, unaccompanied by some tangible job

consequence, do not constitute adverse employment actions.” Grube

v. Lau Indus., Inc., 257 F.3d 723, 729 (7th Cir. 2001). Thus, even

to the extent that Terrien’s evaluation of Swidnicki may have

contained criticism of her performance, it cannot be considered a

materially adverse action because it had no apparent effect on the

terms of Swidnicki’s employment.

Similarly, the PDN did not alter Swidnicki’s status as an

employee and was not an adverse action. Swidnicki analogizes the

PDN she received to a form of “probation,” following which her

termination would have been inevitable. Although the Seventh

Circuit has in the past suggested that placing an employee on

probation “might” constitute an adverse employment action, see,

e.g., Thompson v. Mem. Hosp. of Carbondale, 625 F.3d 394, 407 (7th

Cir. 2010), the PDN in this case does not rise to that level.

In Thompson, for example, the court was satisfied that the

plaintiff had presented sufficient evidence of an adverse action

where his employer placed him on a probationary status under which

his work schedule was altered, additional testing was imposed as a

condition of continued employment, he was assigned to perform

certain additional duties, and he was not permitted to work absent

continuous supervision. Thompson, 625 F.3d at 399-408. The court

cautioned, however, that it was “not hold[ing] that any imposition

of a probationary period constitutes an adverse employment action.” 

Id. at 408.

- 16 -
In contrast to the probationary regime that had been imposed

on the plaintiff in Thompson, the PDN in this case involved no

additional employment conditions and did not alter Swidnicki’s job

duties in the least. Rather, the PDN merely outlined a number of

alleged deficiencies in her performance and set forth a timeline

within which she was to demonstrate improvement. In this respect,

the PDN is more closely akin to what have sometimes been termed

“performance improvement plans,” which do not constitute adverse

employment action absent any tangible change in employment status. 

See, Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009)

(improvement plan that did not deprive plaintiff of

“responsibility, hours, pay, or any other relevant accoutrement of

her position” was not an actionable adverse action). Because the

basic terms and conditions of Swidnicki’s employment at Brunswick

were unaffected by the PDN, its issuance was not an adverse

employment action.

Although Swidnicki’s failure to establish a prima facie case

is enough to conclude the McDonnell Douglas analysis, it can be

noted as well that Swidnicki has presented no evidence to support

her allegation that Brunswick’s stated reason for firing her was

pretextual. Swidnicki does not dispute that she failed to return

to work after expending all of her leave time available under

Brunswick’s policies and, as previously discussed, she has

identified nothing that links Terrien’s allegedly discriminatory

conduct to Brunswick’s decision to fire her. Thus, even if she had

- 17 -
set forth a properly supported prima facie case, her discrimination

claims still would fail.

Accordingly, summary judgment is granted in favor of Brunswick

on Swidnicki’s discrimination claims.

C. FLSA Retaliation

In addition to her discrimination claims, Swidnicki alleges

that Terrien retaliated against her for reporting him to Stame

after he allegedly directed her not to record overtime hours she

had worked. Swidnicki argues that Terrien’s retaliation is

evidenced by his “increased badgering” of her, his refusal to allow

her to use the company’s new delivery system, his making of

allegedly false statements in connection with her PDN, and

Brunswick’s ultimate decision to terminate her employment. (Pl.’s

Mem. in Opp. to Def.’s Mot. for Summ. J. (“Pl.’s Opp. Mem.”) at 14-

19, ECF No. 20). 

The FLSA forbids employers from discharging or otherwise

discriminating against an employee who files a complaint,

institutes a proceeding, or testifies in a proceeding regarding a

complaint made under the Act. 29 U.S.C. § 215(a)(3). Oral

complaints made to company officials regarding FLSA violations are

protected under the Act’s anti-retaliation provision. Kasten v.

Saint-Gobain Performance Plastics Corp., --- U.S. ---, 131 S.Ct.

1325 (2011). 

In order to establish a prima facie case of retaliation, a

plaintiff must show that (1) she engaged in protected activity

- 18 -
under the FLSA, (2) she suffered an adverse employment action, and

(3) there was a causal link between the two. Bradford v. Village

of Lombard, No. 11 C 37, 2012 WL 1655966, at *2 (N.D. Ill. May 10,

2012) (citing Stutler v. Ill. Dept. of Corr., 263 F.3d 698, 702

(7th Cir. 2001) and Scott v. Sunrise Healthcare Corp., 195 F.3d

938, 940 (7th Cir. 1999)). Here, Swidnicki fails to establish any

causal connection between her reporting of Terrien to Stame and her

eventual termination. 

Although Swidnicki contends that Terrien retaliated against

her by making her life a “living hell” after she brought her

overtime concerns to Stame, (Pl.’s Stmt. of Add. Facts (“Pl.’s

Stmt.”) ¶ 95, ECF No. 24), there is no evidence that Terrien was

aware that Swidnicki had reported him. Indeed, neither Terrien nor

Stame could recall ever having discussed Swidnicki’s complaint

about overtime and Swidnicki herself alleges that Stame never acted

on her complaint. (Id.)

Terrien’s lack of knowledge is fatal to Swidnicki’s

retaliation claim, however, since it is axiomatic that “an employer

cannot retaliate when it is unaware of any complaints.” Sitar v.

Indiana Dept. of Transp., 344 F.3d 720, 727. Because Swidnicki has

failed to demonstrate any causal link between her complaint and her

termination, summary judgment is granted on Swidnicki’s FLSA

retaliation claim. See, e.g., Larsen v. Club Corp. of America,

Inc., 855 F.Supp. 247, 253 (N.D. Ill. 1994) (plaintiff failed to

establish causal link between her involvement in FLSA protected

- 19 -
activity and her employer’s adverse action when the alleged

retaliator was unaware of plaintiff’s participation in protected

activity).

D. Hostile Work Environment

1. Sexual Harassment

Swidnicki alleges that Davila’s persistent inappropriate

behavior created a hostile work environment. “A sexually hostile

or abusive work environment is a form of sex discrimination under

Title VII.” E.E.O.C. v. Mgmt. Hospitality of Racine, Inc., 666

F.3d 422, 432 (7th Cir. 2012). To survive summary judgment on a

hostile work environment claim based on sexual harassment, a

plaintiff must show that: “(1) she was subjected to unwelcome

conduct of a sexual nature; (2) the conduct was severe or pervasive

enough to create a hostile work environment; (3) the conduct was

directed at her because of her sex; and (4) there is a basis for

employer liability.” Roby v. CWI, Inc., 579 F.3d 779, 784 (7th

Cir. 2009). 

Swidnicki’s allegations concerning the daily barrage of sexual

comments that she received from Davila are disturbing. By

Brunswick’s own concession, Davila’s conduct was “not appropriate

for any workplace.” (Def.’s Mem. at 14). Nonetheless, Brunswick

argues that Davila was a mere “equal opportunity harasser” and that

Swidnicki therefore cannot show that Davila’s bad behavior was

directed at her because of her gender. 

- 20 -
Title VII “does not cover the ‘equal opportunity’ or

‘bisexual’ harasser . . . because such a person is not

discriminating on the basis of sex. He is not treating one sex

better (or worse) than the other; he is treating both sexes the

same (albeit badly).” Holman v. Indiana, 211 F.3d 399, 403 (7th

Cir. 2000) (emphasis and parentheticals in original). In

attempting to show that Davila’s conduct was unrelated to

Swidnicki’s gender, Brunswick relies on a number of comments in

which Davila allegedly referred to having sexual relations with

certain male co-workers. Although Davila’s sexually-charged

comments sometimes concerned male co-workers and, on occasion, were

remarks of the more general type that might have been addressed to

the whole office, the majority of his comments were directed solely

at Swidnicki.

In Kampmier v. Emeritus Corp., the Seventh Circuit found

harassing conduct aimed at both men and women to be actionable

where the female plaintiff was subjected to harassment that was

“far more severe and prevalent” than the conduct directed at other

male co-workers. Kampmier v. Emeritus Corp., 472 F.3d 930, 940-41

(7th Cir. 2007). In such circumstances, the court stated, the

plaintiff could “at the least . . . raise[] a genuine issue of

material fact as to whether [the] alleged harassment was because of

[her] sex.” Id. 

Davila’s comments toward Swidnicki can be characterized as

significantly more severe and prevalent than those that may have

- 21 -
been directed at male employees. While Davila may have made

occasional homosexual references concerning male co-workers, there

is no evidence that any of those comments were directed toward male

employees. In fact, many appear to have been addressed to

Swidnicki, perhaps in a juvenile effort to disgust her. In any

event, Davila’s comments regarding other male employees were

blander (compare, for example, “Bob doesn’t like me anymore, Brian

still loves me” with “Kathy, do you like to swallow” or “Kathy, do

you want to taste my schmeckel?”) and far less frequent than the

repeated unsavory sexual remarks he made toward Swidnicki. In

these circumstances, it would not be unreasonable for a jury to

conclude that Swidnicki was harassed because of her sex.

Brunswick also argues that Davila’s alleged conduct was not so

“severe or pervasive” that it transformed the workplace into an

objectively hostile environment. To be actionable under Title VII,

the harassing conduct must be either severe or pervasive, although

it need not be both. See, Turner v. The Saloon, Ltd., 595 F.3d

679, 686 (7th Cir. 2010). In addition, the plaintiff must

demonstrate that her work environment was both subjectively and

objectively offensive – in other words, “one that a reasonable

person would find hostile or abusive, and one that the victim in

fact did perceive to be so.” Cerros v. Steel Techs., Inc., 288

F.3d 1040, 1044 (7th Cir. 2002). 

It is undisputed that Swidnicki subjectively perceived

Davila’s conduct to be unwelcome and severe. The only question is

- 22 -
whether Davila’s conduct was objectively offensive. “[D]rawing the

line between what is and is not objectively hostile is not always

easy.” Turner, 595 F.3d at 686 (quotation marks omitted). Conduct

involving episodes of inappropriate touching undoubtedly is among

the more serious types of abuse, see, Worth v. Tyler, 276 F.3d 249,

268 (7th Cir. 2001), but sexual harassment also can and does occur

in the absence of any unwanted physical contact. Boumehdi v.

Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007) (summary

judgment inappropriate where employer “made at least eighteen

sexist or sexual comments in less than a year’s time and that

similar comments were made ‘very often’”).

Brunswick seeks to dismiss Davila’s conduct as being

“sophomoric,” but ultimately harmless. Certainly, employees are

expected to be able to withstand “the occasional vulgar banter,

tinged with sexual innuendo, of coarse or boorish workers.” 

Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir.

1995). The conduct that is alleged here, however, was far from

“occasional” and, in many cases, exceeded mere vulgarity. Davila

made repeated references to his genitals, including asking

Swidnicki to hold or “taste” them. He whispered inappropriate

comments to her and, on more than one occasion, he disturbingly

pulled out the waistband of his pants so that he could look at his

genitals while standing in front of her. Making between 20 and 30

sexually-charged comments each day, his conduct was nothing short

- 23 -
of unrelenting. A jury properly could conclude that a reasonable

person would find this type of environment to be offensive.

Brunswick relies extensively on this Court’s decision in

Hampton v. Potter, No. 01 C 9077, 2003 WL 22290404 (N.D. Ill.

Oct. 3, 2003), which granted summary judgment on a claim based upon

conduct Brunswick believes to have been more extreme. In Hampton,

the plaintiff complained that the alleged harasser made lewd tongue

gestures at her once every other week, brought a book about oral

sex to work, asked the plaintiff if he could touch her breasts,

blew into the telephone when she answered it, and once brushed a

plastic mail tub against her buttocks. Id. at *5. The frequency

of a harasser’s alleged offensive behavior, however, is highly

relevant to an assessment of its impact, Baskerville, 50 F.3d at

431, and these “infrequen[t]” incidents were spread across a period

of six years. Hampton, 2003 WL 22290404, at *6. In contrast,

Davila’s conduct was near-constant and persisted for many months. 

By at least one other co-worker’s account, his comments were

extraordinarily disruptive, (Pl.’s Resp. Stmt. ¶¶ 164-66), and

there is ample evidence upon which a reasonable jury could conclude

that they were severe or pervasive. Therefore, there is, at a

minimum, a genuine factual question as to whether Davila’s conduct

created an objectively hostile work environment. See, e.g.,

E.E.O.C. v. Continental Airlines, Inc., No. 04 C 3055, 2006 WL

14510, at *10-11 (N.D. Ill. Jan. 3, 2006) (summary judgment denied

where employer made fifteen to twenty gender-related comments in a

- 24 -
year). For this reason, summary judgment on Swidnicki’s sexual

harassment claim is denied.

2. National Origin Discrimination

Swidnicki alleges that she was subjected to a hostile work

environment based upon Terrien’s alleged animus toward her national

origin. Brunswick takes issue with the fact that her complaint

omits any mention of such a claim, but a plaintiff ordinarily is

not required to plead specific legal theories where the defendant

has fair notice of the types of claims the plaintiff is pursuing. 

See, Jajeh v. County of Cook, 678 F.3d 560, 567 (7th Cir. 2012). 

In any event, the point is not worth exploring further, as

Swidnicki’s claim clearly is without merit. Even when viewed in

the light most favorable to Swidnicki, Terrien’s conduct does not

approach what reasonably might be considered severe or pervasive

behavior. The handful of tepid comments about her accent, the

remark about Polish people working in cleaning services, and the

isolated incident when Terrien referred to Swidnicki by her birth

name all are so insignificant that no reasonable juror could find

this conduct to be objectively offensive. Accordingly, summary

judgment is granted in favor of Brunswick on Swidnicki’s national

origin hostile work environment claim.

E. Constructive Discharge Claim

Finally, Swidnicki alleges that conditions at Brunswick were

so intolerable that she effectively was forced to resign. This

often is referred to as a “constructive discharge.” Absent

- 25 -
extraordinary circumstances, employees are expected to remain

employed while seeking redress for alleged workplace violations. 

Witte v. Wisc. Dep’t of Corr., 434 F.3d 1031, 1035-36 (7th Cir.

2006). Thus, to prevail on a constructive discharge claim, an

employee must show that “quitting was the only way [she] could

extricate herself from the intolerable conditions.” Gawley v.

Indiana Univ., 276 F.3d 301, 315 (7th Cir. 2001). In doing so the

plaintiff is required to “demonstrate a work environment that is

even more egregious than that needed for a hostile work

environment” and one that “from the standpoint of a reasonable

employee, had become unbearable.” Thompson v. Mem’l Hosp. of

Carbondale, 625 F.3d 394, 401-02 (7th Cir. 2010). 

“[I]t is difficult for a plaintiff to show constructive

discharge.” Cooper-Schut v. Visteon Automotive Sys., 361 F.3d 421,

428 (7th Cir. 2004). Although Swidnicki has demonstrated

sufficient evidence of a hostile work environment to proceed beyond

summary judgment on her sexual harassment claim, she has not met

the higher standard of showing that her work conditions objectively

were unbearable. Constructive discharge typically is found only in

cases involving threats of physical harm or truly outrageous

emotional abuse. See, e.g., Taylor v. W. & S. Life Ins. Co., 966

F.2d 1188, 1191 (7th Cir. 1992) (constructive discharge where boss

held a pistol to plaintiff’s head); Brooms v. Regal Tube Co., 881

F.2d 412, 417 (7th Cir. 1989) (human resource manager grabbed

plaintiff and threatened to kill her); Porter v. Erie Foods Int’l,

- 26 -
Inc., 576 F.3d 629, 640 (7th Cir. 2009) (presence of multiple

nooses in the workplace and implied threats of physical violence). 

Davila’s harassment, even if highly offensive and extremely

pervasive, simply is not the type of conduct that would justify a

reasonable person to feel they had no other choice but to quit.

Although a constructive discharge may also occur when “an

employer acts in a manner so as to have communicated to a

reasonable employee that she will be terminated,” Chapin v. FortRohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010), Swidnicki has

made no showing that Brunswick ever communicated to her that she

would be fired. Swidnicki may have believed that once she had been

issued the PDN her fate at Brunswick had all but been sealed, but

there is no evidence to suggest that this was the case. 

Accordingly, summary judgment on Swidnicki’s constructive discharge

claim is granted.

IV. CONCLUSION

For the reasons stated herein, Brunswick’s Motion for Summary

Judgment [ECF No. 15], is granted in part and denied in part.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Date:3/6/2014

- 27 -