In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1513

Karla J. Markel,

Plaintiff-Appellant,

v.

Board of Regents of the University

of Wisconsin System,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00 C 254--Barbara B. Crabb, Chief Judge.

Argued December 4, 2001--Decided January 3, 2002

 Before Bauer, Posner, and Easterbrook,

Circuit Judges.

 Bauer, Circuit Judge. From October 1998

through June 1999, Karla Markel was

employed on a fixed-term nine month

contract by the University of Wisconsin

Learning Innovations. A month prior to

the end of Markel’s contract she was

dismissed from her position, but she was

still paid in full until her contract

expired. Markel later filed a complaint

in the Western District of Wisconsin

claiming that she was discriminated

against on the basis of her gender, in

violation of the Civil Rights Acts of

1964, as amended, 42 U.S.C. sec. 2000 et

seq., and that she was paid less than her

male counterparts for the same work, in

violation of the Equal Pay Act of 1963,

29 U.S.C. sec. 206(d). The University of

Wisconsin moved for summary judgment on

both claims, and the district court

granted the motion finding there was no

genuine issue of material fact and that

summary judgment was warranted as a

matter of law. Markel filed a timely

appeal with this court, and after

briefing and oral argument we conclude

that the district court correctly granted

summary judgment and affirm.

BACKGROUND
 The University of Wisconsin Learning

Innovations (UWLI) is a division of the

University of Wisconsin Extension. The

mission of the Extension is to promote

various University programs and resources

to the citizens of Wisconsin not enrolled

in the University. Karla Markel was hired

by UWLI pursuant to a nine month fixedterm contract, which was to run from

October 1998 until June 1999. The

contract did not provide for renewal and

disavowed any right to notice of

nonrenewal. Included with the contract

was a non-compete clause and an agreement

not to disclose any proprietary

information. As part of UWLI, which

provided web-based services to

corporations and governmental entities,

her job duties included developing sales

of web-based services to health care

organizations. Markel was to receive a

3.5% bonus based on gross revenues

generated, if certain conditions were

met. Markel’s supervisors were Michael

Offerman, the Dean and Director of UWLI,

and Philip LaForge, Marketing Manager.

 In April 1999, Offerman and LaForge were

informed that Markel, Richard Schafer,

and Jeffery Sledge were involved with a

competing company, called Learning W@rks,

and were trying to recruit UWLI employees

to staff it. A meeting occurred at a

restaurant among the employees,

supposedly to recruit John Ashley and

discuss business strategy. Offerman,

together with LaForge and Holly

Breitkreutz, Associate Dean & Director of

UWLI, went to the restaurant and saw four

employees there, seated together. After

the meeting, when Ashley returned to the

office, Offerman confronted him. Ashley

told Offerman the business plan and gave

him some documents from the new business.

 It seems that the employees intended to

take advantage of Schafer’s connection,

through his wife, to an existing

enterprise called Leadership Online,

which performed services similar to that

of UWLI. They also planned to use

Sledge’s involvement with a nonprofit

company called Learning Works Group.

Learning Works Group, because of its

connections to former University regents,

appeared to be affiliated with the

University. Apparently, Leadership Online

was supposed to take over Learning Works

Group and use some of its’ name

recognition and inferred associations
with the University to attract business.

 In May 1999, armed with this

information, Offerman and Breitkreutz

confronted Markel. They asked Markel

about her involvement with Learning

W@rks, and gave her written notice of the

charges of dismissal and a chance to

respond. Offerman told her that in order

to avoid dismissal she needed to either

write out and sign a statement outlining

what she knew about the new business or

resign. Markel refused to sign a

statement and said she would need to

consult with an attorney before answering

Offerman’s questions. The meeting ended,

and Markel was forced to cease work

immediately and return all UWLI property.

However, the next step in the process to

terminate Markel was not taken, and she

was paid in full until the end of her

contract on June 30, 1999. Markel later

filed an appeal of the dismissal and

requested a hearing, but because her

contract had already ended and it was

nonrenewable, Offerman withdrew the

dismissal charges.

ANALYSIS

 We review a district court’s grant of

summary judgment de novo, to determine if

there is a genuine issue of material fact

that would necessitate a trial. Griffin

v. City of Milwaukee, 74 F.3d 824, 826-27

(7th Cir. 1996). Summary judgment is

appropriate where there is no genuine

issue of material fact and the moving

party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56. The facts are

viewed in a light most favorable to the

nonmoving party and all reasonable

inferences are drawn in favor of the

nonmoving party. In the employment

discrimination context, summary judgment

is warranted where "the evidence,

interpreted favorably to the plaintiff,

could [not] persuade a reasonable jury

that the employer had discriminated

against the plaintiff." Palucki v. Sears,

Roebuck & Co., 879 F.2d 1568, 1570 (7th

Cir. 1989).

 A. Gender Discrimination Claim

 A plaintiff in an employment

discrimination action may prove

discrimination either through direct

evidence or indirect evidence, using the
McDonnell-Douglas Corp. v. Green, 411

U.S. 792 (1973), burden shifting

approach. See Randle v. LaSalle Telecom.,

Inc., 876 F.2d 563, 565-69 (7th Cir.

1989). In either case, the burden is on

the plaintiff to demonstrate genuine

issues exist for trial. Griffin, 74 F.3d

at 827.

 1. Direct Discrimination

 As she did in the district court, Markel

contends that several statements

attributed to Offerman and LaForge are

evidence of direct discrimination.

Offerman, LaForge, and the University

deny that the statements were ever made.

At oral argument the University contended

that these statements are more

appropriately considered performance

related, and even if they are believed,

show an aversion toward age not gender.

Either way, the statements are not worth

repeating because they fail to show

direct discrimination. In order to arrive

at the conclusion Markel would have us

reach, we would need to infer

discriminatory animus into the

statements, which we cannot do. See

Randle, 876 F.2d at 569-70 (holding that

"direct evidence, if believed by the

trier of fact, will prove the particular

fact in question without reliance upon

inference or presumption") (emphasis

added). Moreover, the statements were

claimed to have been made between

November 1998 and March 1999, and Markel

was removed from her position nearly two

months later in May 1999. Therefore,

these statements were not made

contemporaneously to the adverse

employment action as required by our case

law. See id.; Conley v. Vill. of Bedford

Park, 215 F.3d 703, 711 (7th Cir. 2000)

("’To rise to the level of direct

evidence of discrimination, this Court

has stated that isolated comments must be

contemporaneous with the [adverse action]

or causally related to the [applicable]

decision-making process.’") (citations

omitted); Robin v. Espo Eng’g Corp., 200

F.3d 1081, 1089 (7th Cir. 2000). The

district court properly found Markel

failed to demonstrate any potential claim

of direct discrimination.

 2. Indirect Discrimination
 Under the McDonnell-Douglas burden

shifting approach, in order to establish

a prima facie case for gender

discrimination, the plaintiff must

demonstrate that: (1) she is a member of

a protected class; (2) she was performing

her job to her employer’s legitimate

expectations; (3) that in spite of her

meeting the legitimate expectations of

her employer, she suffered an adverse

employment action; and (4) that she was

treated less favorably than similarly

situated male employees. See, e.g., Bragg

v. Navistar Int’l Transp. Corp., 164 F.3d

373, 376 (7th Cir. 1998); Randle, 876

F.2d at 570-71.

 Markel meets the first prong of the test

because she is a member of a protected

class. However, the district court found

that Markel did not meet the second prong

because she violated the non-compete

clause in her contract. Thus, the

district court did not reach the third

prong of the test. Nevertheless, on

appeal, Markel used a considerable

portion of her brief to contend that she

suffered an adverse employment action.

This is an interesting legal question be

cause Markel was not technically

dismissed from her job; she was paid in

full until the end of her contract, and

her contract was nonrenewable. Typically,

adverse employment actions are economic

injuries such as dismissal, suspension,

failure to promote, or diminution in pay.

Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 761-62 (1998) ("A tangible

employment action in most cases inflicts

direct economic harm."); Hunt-Golliday v.

Metro. Water Reclamation Dist. of Greater

Chicago, 104 F.3d 1004, 1014-15 (7th Cir.

1997) (suspension and suspension pending

termination); Hunt v. City of Markham,

Illinois, 219 F.3d 649, 654-55 (7th Cir.

2000) (denial of a raise); Ribando v.

United Airlines, Inc., 200 F.3d 507, 511

(7th Cir. 1999) (denial of a promotion).

Markel could be considered to have been

constructively discharged, though not in

the traditional sense, or suspended

pending termination. See Tutman v. WBBMTV, Inc./CBS, Inc., 209 F.3d 1044, 1050

(7th Cir. 2000) (a constructive discharge

normally occurs where an employer drives

the employee to quit by making working

conditions miserable); Hunt-Golliday, 104

F.3d at 1014-15. Even though a resolution

of this issue might create some new

insights in this area of the law, we need
not reach it because of Markel’s failure

to meet the second part of the test. 

 Markel also complains that she was

treated adversely because she was denied

"better" equipment, the ability to travel

and make presentations, and removed from

certain accounts that caused her not to

receive bonuses. Even if believed, these

complaints do not amount to

actionableadverse employment actions.

"While adverse employment actions extend

beyond readily quantifiable losses, not

everything that makes an employee unhappy

is an actionable adverse action." Smart

v. Ball State Univ., 89 F.3d 437, 441

(7th Cir. 1996); see also Stutler v.

Illinois Dept. of Corr., 263 F.3d 698,

702-03 (7th Cir. 2001) (holding that "a

lateral transfer without a loss in

benefits does not constitute an adverse

employment action."); Fyfe v. City of

Fort Wayne, 241 F.3d 597, 602 (7th Cir.

2001) (holding that denial of a request

for reimbursement for travel expenses did

not constitute an adverse employment

action); Murray v. Chicago Transit

Authority, 252 F.3d 880, 887-88 (7th Cir.

2001) (same); Miller v. Am. Family Mut.

Ins. Co., 203 F.3d 997, 1006 (7th Cir.

2000) (holding that denial of a bonus was

not an adverse employment action); Place

v. Abbott Lab., 215 F.3d 803, 810 (7th

Cir. 2000) (holding that the loss of a

telephone and cubicle were "too trivial

to amount to an adverse employment

action"); Conley, 215 F.3d at 712

(requiring village maintenance worker

plaintiff to paint water department pump

room was not an adverse employment

action). When combined with other

actions, differences in office aesthetics

between employees might aid the plaintiff

in showing discriminatory treatment,

however, standing alone they are not

readily quantifiable losses Title VII was

meant to redress. See, e.g., Wanamaker v.

Columbian Rope Co., 108 F.3d 462, 466 (2d

Cir. 1997) (noting that "the loss of

these services [office and telephone],

standing alone, has never been held

adverse action." (citing Collins v. State

of Illinois, 830 F.2d 692, 703-04 (7th

Cir. 1987))).

 Markel contends she was terminated

because of her gender, and that her

contract was "renewable on an annual

basis." In order to stave off summary

judgment a fact would need to be in
dispute and material to the case. As we

have stated before, "[a] party to a

lawsuit cannot ward off summary judgment

with an affidavit or deposition based on

rumor or conjecture." Palucki, 879 F.2d

at 1572. The facts show that another

enterprise called Learning W@rks was

formed, and that Markel had lunch with

several other employees of UWLI to

discuss job opportunities. Markel was

only confronted after management

collected information and documents

regarding this enterprise, and after she

was observed at the meeting by her

supervisors. Additionally, if Markel’s

assertion of pretext is correct, there

was absolutely no reason for UWLI to also

terminate Schafer, who was also

supposedly involved with Learning W@rks.

Yet, Schafer was terminated and other

employees who did not cooperate were

disciplined. As to Markel’s argument that

her contract was renewable, the documents

contained in her own appendix clearly

establish that her contract "did not

provide for any term of renewal," and her

"appointment [was] for the above-stated

period only and renewal [was] not

intended."

 Markel’s counsel also filed an affidavit

purporting to be that of Jeffery Sledge.

Though this affidavit adds no evidence

beneficial to Markel’s case, its unusual

nature calls for a momentary digression.

Pursuant to Rule 56(e) affidavits are

only to be "made on personal knowledge."

Fed. R. Civ. P. 56(e). Put another way,

affidavits "must show that the affiant is

competent to testify to the matters at

hand, and must contain facts that would

be admissible in evidence." Rhine v.

Loyola Univ. Chicago, 1998 WL 456550 at

*2 (N.D. Ill. July 31, 1998); Thompson v.

Exposition Serv., 2001 WL 321998 at *1

(N.D. Ill. April 2, 2001); New Hampshire

Ins. Co. v. Farmer Boy AG, Inc., 2000 WL

33125128 at *5 (S.D. Ind. Dec. 19, 2000);

cf. Palucki, 879 F.2d at 1572. Jeffery

Sledge’s affidavit was not sworn to or

certified, and it was not signed by him,

it was signed by Alan Olson, counsel for

Markel. This affidavit should not, and

indeed cannot, be considered as evidence

because it fails to meet the requirements

of Rule 56(e). See Vanni v. City of New

York, 1988 WL 1956 at *10 (E.D.N.Y. Jan.

5, 1988).

 After our own review of the facts, we
find that the district court correctly

concluded that summary judgment was

warranted because no issues of material

facts were in dispute.

 B. Unequal Pay Claim

 To demonstrate a prima facie case for a

violation of the Equal Pay Act, a

plaintiff must establish: "(1) that

different wages are paid to employees of

the opposite sex; (2) that the employees

do equal work which requires equal skill,

effort, and responsibility; and (3) that

the employees have similar working

conditions." Fallon v. State of Illinois,

882 F.2d 1206, 1208-09 (7th Cir. 1989).

The plaintiff would have to show that the

jobs compared are substantially equal,

"based upon ’actual job performance and

content--not job titles, classifications

or descriptions.’" EEOC v. Mercy Hosp.

and Med. Ctr., 709 F.2d 1195, 1197 (7th

Cir. 1983) (citations omitted). After a

plaintiff has demonstrated a prima facie

case, the employer may respond with

affirmative defenses to show the pay

differential is due to: "(1) a seniority

system; (2) a merit system; (3) a system

which measures earnings by quantity or

quality of production; or (4) any other

factor other than sex." Fallon, 882 F.2d

at 1211.

 Markel compared her position to that of

Brent Parks and Richard Schafer, both of

whom were paid more than Markel. Thus,

the first part of the test was met, and

we move on to consider the second and

third parts. Parks was a consultant who

did not receive benefits, and there was

no evidence demonstrating he performed

work that was substantially equal to

Markel’s work. Schafer, however, was part

of the marketing team and was an account

manager like Markel. Thus, Markel

demonstrated a prima facie case as to the

pay disparity between her and Schafer.

 The burden then shifted to the

University to explain the pay disparity.

The University explained that Schafer was

justifiably paid more than Markel based

on the number of years he had worked for

the University and the fact he had been a

program director. The district court

found that these reasons showed the pay

disparity was based on factors "other

than sex." In their affidavits, Markel

and Schafer averred that there were no
grounds, other than sex, for the pay

disparities between Markel, Parks, and

Schafer. However, apart from their bald

assertions there is no evidence to

support these contentions. Parks and

Markel were not substantially equal, and

there was a legitimate reason not based

on sex for Schafer’s higher compensation.

See Dey v. Colt Constr. & Dev. Co., 28

F.3d 1446, 1462 (7th Cir. 1994) ("The

factor need not be ’related to the

requirements of the particular position

in question,’ nor must it even be

business-related.") (citations omitted). 

 Markel further asserts that Schafer was

not entitled to notice prior to

termination and severance pay. The

University demonstrated and district

court found that because of his length of

tenure at UWLI, Schafer was entitled to

notice under the applicable

administrative code. Our reading of the

code comports with that of the district

court, and Markel never provided any

evidence to contradict this basic reading

of the text. Based on the applicable

rules, UWLI was required to give notice

and severance pay to Schafer, but was not

required to do so for Markel.

 

CONCLUSION

 Applying the relevant legal principles

to the facts of this case led us to the

same conclusion as the district court: no

reasonable jury could find that the

employer discriminated against the

plaintiff. Affirmed.