In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-4136

KERRI A. MCKENZIE,

Plaintiff-Appellant,

v.

MILWAUKEE COUNTY, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-C-0325—Rudolph T. Randa, Chief Judge.

____________

ARGUED APRIL 6, 2004—DECIDED AUGUST 23, 2004

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Before RIPPLE, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Kerri A. McKenzie, a Milwaukee

County sheriff’s deputy, sued her employer alleging employment discrimination and violations of her Equal Protection and First Amendment rights. The district court granted

summary judgment to her employer, and McKenzie appeals.

We affirm.

Because this case comes to us on review of summary judgment, we view the facts in the record and all inferences from

those facts in the light most favorable to McKenzie. See

Sullivan v. Ramirez, 360 F.3d 692, 696 (7th Cir. 2004).

McKenzie became a sheriff’s deputy in 1994 and was assigned
2 No. 03-4136

to guard duty at the county jail. In 1999 she was reassigned

to the Drug Enforcement Unit, where she worked as an undercover detective investigating drug crimes. The Drug

Enforcement Unit was part of the Criminal Investigation

Bureau (“CIB”), which in 2000 became headed by George

Paras, an experienced narcotics officer who was known as

a demanding boss. Paras was also part of a clique known as

the “good old boys”; he used this network to reward those he

liked and ostracize those he disliked. McKenzie had been

friends with Paras’s predecessor, Joe Delaney, who did not get

along with Paras, and she feared Paras might hold this

against her. She had a “gut feeling” that she might encounter

trouble with Paras, so she decided to keep a diary documenting all of their interactions. Shortly after he started, Paras

commented to McKenzie and a male officer that “they would

be on the next transfer list” if they did not immediately

greet him when he walked into the office. The male officer

interpreted Paras’s comments as a joke, but McKenzie did

not.

At the time that Paras took charge of the bureau, McKenzie

was the lead investigator in a large-scale undercover drug

investigation. Paras began to develop numerous concerns

about the case, including the pace of the investigation, which

began several months earlier. He was also concerned that

the case depended heavily on a sole informant, and that the

main target was from Mexico, making him a flight risk. In

January 2001 Paras called a meeting to discuss the status

of the investigation, during which he questioned McKenzie

about the case. McKenzie viewed the meeting as essentially a

“firing squad” intended to embarrass her and undermine her

authority. At the end of the meeting, Paras told McKenzie

to focus all of her time on the investigation, and he also assigned two experienced narcotics officers to assist her. Shortly

after this meeting, Paras, who was terminally ill with bone

cancer, began missing a considerable amount of work, and

he and McKenzie had little direct contact for the next four

months.
No. 03-4136 3

In May 2001 Paras called another meeting to discuss the

status of McKenzie’s investigation. McKenzie decided to secretly tape-record the meeting because she had heard rumors that Paras was impatient that the investigation had

not yet been completed. During the meeting, McKenzie

reported her progress on the case, and Paras and other officers

asked her questions. At one point during the meeting, Paras

told McKenzie, who was standing during her presentation,

to sit down. She said “no.” Viewing Paras’s questions as another attempt to undermine her authority over the investigation, she told him that the case was hers and that she was

passionate about it. Paras again told her to sit down, and

she complied.

After the meeting, Paras informed Captain Rodney Richards

that he wanted McKenzie reassigned. Paras was angry about

her conduct during the meeting because he viewed it as disrespectful, and he also believed that she was not properly

handling the undercover investigation. Richards talked Paras

out of reassigning McKenzie until the investigation was completed. Later that day, Richards talked with McKenzie about

the incident at the meeting. He stated that he did not know

what the “problem” was between McKenzie and Paras. He

said, “I don’t know if it’s a gender thing, I don’t know if it’s

a blonde thing, I don’t know if it’s a Joe Delaney thing”—

referring to Paras’s predecessor. McKenzie responded that

she had been “on the defensive” during the meeting because

she thought she was not getting the same respect as her

male colleagues. She stated that she had no “bone to pick”

with Paras and that she wanted simply to be left alone to do

her job. Richards told her to stay focused on her case and

avoid challenging Paras.

A few days later Paras met with both McKenzie and her

sergeant, Fred Hagedorn, and told her that he was upset

about her conduct during the meeting. He explained that he

thought she had been uncooperative ever since he took

charge of the bureau, and added that if she had spoken to
4 No. 03-4136

1 Hagedorn disputed that he made this comment, asserting that

it was in fact McKenzie’s statement. For the purposes of summary

judgment, the defendants adopted McKenzie’s version of the

meeting.

other command staff the way she spoke to him during the

meeting, she would have had her “head handed to her.” Paras

then left, and McKenzie continued to discuss the issue with

Sergeant Hagedorn, telling him of her concern that Paras

disliked her because she was a female overseeing a large

investigation. At one point Hagedorn stated, “George thinks

women are only good for fucking.”1

 The meeting concluded

with Hagedorn telling McKenzie that Paras would not “be

around forever.”

In June 2001 McKenzie’s undercover investigation came

to fruition, and several suspects were arrested. Officers also

seized a kilogram of cocaine and several vehicles. When

McKenzie returned to the office after the arrests, Paras congratulated her and told her she did a good job, but she perceived his comments to be “sarcastic” and “half-hearted.”

On August 7, 2001, Captain Richards informed McKenzie

that she was being transferred to the patrol bureau. When

she asked why, Richards replied that Paras believed she

had a “poor attitude.” McKenzie stated that she had been

treated unfairly and told Richards that she had been keeping a “book” on the events of the past few months, gesturing

with her index finger and thumb that the book was about

an inch thick. Richards asked if he was in the book, and

McKenzie replied that he and numerous other command

staff were mentioned in the book. Richards became angry,

believing that McKenzie was trying to threaten or intimidate him into reconsidering her transfer.

The following day, Richards conveyed the incident to Paras,

who then met with McKenzie and asked her about the book.

She responded that she did not have it with her but that it
No. 03-4136 5

was “somewhat of a daybook” detailing her interactions

with various staff during the past six months. Paras immediately walked McKenzie down to the Office of Professional

Standards, where she was interviewed by two officers about

the book. During the interview, she did not reveal the precise contents of the book except to characterize it as a “personal diary” containing information about her personal life.

Upon returning to her office, she was told that due to her

transfer she was required to turn in her weapon, cell phone,

pager, and the keys to her undercover vehicle. Another officer escorted her through the office while she closed her files

and gathered her belongings, but she was not permitted to

retrieve any personal items from her vehicle. On her way

out of the office, McKenzie met with Sheriff Leverett

Baldwin, who asked her about the book she had been keeping. She replied that the book was essentially a “personal

diary.” Sheriff Baldwin told McKenzie that he understood

she wanted to be reassigned to the “courts and auxiliary”

bureau. She replied that she would prefer to be transferred

to another area within the detective bureau, but Sheriff

Baldwin stated, “That’s not an option for you.” He told her

that if she wanted to go to courts, she would be reassigned

to courts, and that the transfer was effective immediately.

McKenzie ultimately received a written reprimand for her

conduct during the meeting with Captain Richards, because

officials concluded that she had mentioned the book to

Richards in an attempt to intimidate or coerce him into

allowing her to stay in the drug unit.

After obtaining a right-to-sue letter from the U.S. Equal

Employment Opportunity Commission, McKenzie in April

2002 filed a complaint against Milwaukee County, Sheriff

Baldwin, Paras (by that time deceased), Richards, and

Hagedorn. She raised hostile work environment and disparate treatment claims under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq.; an Equal Protection

claim also based on gender discrimination; and a First
6 No. 03-4136

Amendment claim alleging unlawful retaliation based on

her speech, namely, the book she kept detailing her workplace interactions.

The district court granted summary judgment to the

defendants on each claim. As for her Title VII claims, the

court determined that McKenzie failed to establish that her

work environment was objectively hostile or that she

suffered a materially adverse employment action. For the

same reasons, her Equal Protection claim also failed. As for

her First Amendment claim, the court concluded that

McKenzie’s book was not constitutionally protected, nor was

it a motivating factor in the decision to reassign her, since

she was notified of her reassignment before she ever

revealed the existence of the book to her superiors. The court

accordingly awarded summary judgment to the defendants.

We review the district court’s grant of summary judgment

de novo. Volovsek v. Wis. Dep’t of Agr., Trade & Consumer

Prot., 344 F.3d 680, 686 (7th Cir. 2003). Summary judgment

is appropriate when, viewing the evidence in the light most

favorable to the non-moving party, 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; Volovsek, 344

F.3d at 686.

To establish a claim of hostile work environment, McKenzie

must show that she was subjected to harassment so severe

or pervasive that it altered the conditions of her employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-

88 (1998); Twisdale v. Snow, 325 F.3d 950, 953 (7th Cir.

2003). She must also demonstrate that her workplace was

both subjectively and objectively hostile. Haugerud v. Amery

Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001). On appeal,

McKenzie argues that the district court erred in concluding

that her work environment was not objectively hostile,

asserting that Paras’s conduct made her work life “hellish.”

We must determine whether a reasonable person would find
No. 03-4136 7

McKenzie’s workplace hostile or abusive, looking to all of

the surrounding circumstances, including whether the

discriminatory conduct was frequent or severe; whether the

conduct was physically threatening or humiliating; and

whether the conduct unreasonably interfered with her work

performance. Id. We have made clear that Title VII is not a

general code of workplace civility, nor does it mandate

“admirable behavior” from employers. Id.

The facts McKenzie points to in support of her claim fall

short of establishing an objectively hostile or abusive work

environment. Several of the incidents involved other female

employees of the sheriff’s office, and the impact of such

“second-hand” harassment is not as great as harassment

directed at McKenzie herself. See Patt v. Family Health Sys.,

Inc., 280 F.3d 749, 754 (7th Cir. 2002); Black v. Zaring Homes,

Inc., 104 F.3d 822, 826 (6th Cir. 1997). The incidents involving

McKenzie consisted mainly of occasions where Paras failed

to greet her or acted “standoffish,” “unfriendly,” and “unapproachable”—none of which establishes an objectively hostile

work environment. See Patton v. Ind. Pub. Sch. Bd., 276 F.3d

334, 339 (7th Cir. 2002) (claims that supervisor was rude,

abrupt and arrogant, ignored employee’s suggestions, and

failed to inform employee about changes at work did not

establish hostile work environment); see also Minor v. Ivy

Tech State Coll., 174 F.3d 855, 858 (7th Cir. 1999) (“It is not

enough that a supervisor . . . fails to treat a female employee

with sensitivity, tact, and delicacy, uses coarse language, or

is a boor.”) One of the comments McKenzie points to—

“George thinks women are only good for fucking”—is indeed

offensive, but this isolated comment is insufficient to

establish severe or pervasive harassment. See Patt, 280

F.3d at 754; Adusumilli v. City of Chicago, 164 F.3d 353,

356 (7th Cir. 1998).

McKenzie’s other evidence pertains to Paras’s oversight

of her undercover investigation, including his apparent disinterest in her case; his frequent inquiries as to when the
8 No. 03-4136

investigation would be completed; his threats to have

another law enforcement agency take over the case; and his

status meetings, which she viewed as “firing squads.” None

of these circumstances suggest any inkling of harassment

based on McKenzie’s gender, and inappropriate workplace

conduct (assuming Paras’s actions could be characterized as

such) that is not based on gender is outside the ambit of

Title VII. See Berry v. Delta Airlines, Inc., 260 F.3d 803,

810-11 (7th Cir. 2001); Hardin v. S.C. Johnson & Son, Inc.,

167 F.3d 340, 345 (7th Cir. 1999). At most, the record shows

a personality clash between Paras, a demanding boss, and

McKenzie, his less-experienced subordinate, who was running an important investigation. The record also suggests

that Paras used his “good old boy” network to favor those he

liked and ostracize those he disliked—both men and

women. Because McKenzie failed to establish that she suffered severe or pervasive harassment based on her gender,

the district court correctly entered summary judgment in

favor of the defendants on this claim.

Turning to McKenzie’s Title VII disparate treatment claim,

she must show, among other elements, that she suffered an

adverse employment action. See Tart v. Ill. Power Co., 366

F.3d 461, 472-73 (7th Cir. 2004); Herrnreiter v. Chicago

Hous. Auth., 315 F.3d 742, 743-44 (7th Cir. 2002). Adverse

employment actions include a broad array of actions such as

“hiring, firing, failing to promote, reassignment with significantly different responsibilities, or some other action

causing a significant change in benefits.” Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 761 (1998). To be actionable, an

employment action must be “more disruptive than a mere

inconvenience or an alteration of job responsibilities.” Traylor

v. Brown, 295 F.3d 783, 788 (7th Cir. 2002). The district court

concluded that McKenzie failed to make out an adverse

employment action because the most she could show was a

lateral transfer without any change in pay or benefits.
No. 03-4136 9

2 McKenzie’s suggestion that the transfer was a demotion because “[d]etectives working in CIB were supposed to get 50 cents

an hour more than deputies” is not borne out by the record. A collective bargaining agreement included in the record shows that

certain listed employees—longtime officers assigned to the detective bureau—were to receive an additional 50 cents an hour, but

McKenzie’s name was not on that list. Further, McKenzie admitted

during the proceedings in the district court that she received no

reduction in pay when she was transferred out of the detective

bureau.

On appeal, McKenzie argues that her transfer was in fact a

demotion. She suggests that her reassignment constituted

an adverse employment action because “she was reassigned

from somewhere she wanted to work,” but, as we have held,

a transfer does not become an adverse employment action

solely because the employee subjectively prefers one position over another. Herrnreiter, 315 F.3d at 745. The record

shows that sheriff’s deputies are frequently reassigned during

the course of their careers, and McKenzie’s transfer allowed

her to maintain the same pay and benefits.2

 Although her

new assignment did not involve undercover work, she remained a sheriff’s deputy, and the two positions “were

equivalent other than in idiosyncratic terms that do not justify trundling out the heavy artillery of federal discrimination law.” Id. Even assuming McKenzie could establish that

she suffered an adverse employment action, she also failed

to identify a similarly situated male officer—one running a

large-scale investigation under Paras’s supervision—who

was treated more favorably than she was. See Volovsek, 344

F.3d at 692. Accordingly, the district court properly granted

summary judgment to the defendants on McKenzie’s disparate treatment claim. For the same reasons, McKenzie’s

discrimination claim brought under the Equal Protection

Clause also fails. See Hildebrandt v. Ill. Dep’t of Nat. Res.,

347 F.3d 1014, 1036 (7th Cir. 2003) (same standards for proving discrimination apply to Title VII and equal protection

claims).
10 No. 03-4136

We turn then to McKenzie’s First Amendment claim. The

precise contours of this claim are unclear, but McKenzie

appears to assert that the defendants improperly “demoted”

her in retaliation for exercising her free speech rights, specifically, maintaining a journal that documented the harassment she had suffered. To establish a First Amendment

retaliation claim, McKenzie must show, among other elements, that she engaged in constitutionally protected

speech, and to do so she must establish that her speech

pertained to a matter of public concern. See Sullivan, 360

F.3d at 696-97. In determining whether a government

employee’s speech addresses a matter of public concern, we

look to the speech’s content, form, and context as revealed by

the record as a whole. Id. The speech must relate to a

community concern rather than “merely a personal grievance

of interest only to the employee,” and so complaints about

personnel matters generally are not constitutionally

protected. Id. at 699.

On appeal McKenzie offers only a cursory argument to refute the district court’s conclusion that her journal related to

a personal grievance rather than a matter of public concern.

She suggests that any speech pertaining to sexual harassment

is per se a public concern. Sexual harassment is indeed an

important matter, but not all speech relating to sexual

harassment enjoys constitutional protection. See Hartman

v. Bd. of Trust. of Comm. Coll. Dist. No. 508, 4 F.3d 465, 471

(7th Cir. 1993). Rather, we must look to the speech’s content,

form, and context. Here, McKenzie’s speech consisted of

privately recorded notations in a book she herself characterized as a “personal diary” or “daybook” detailing her

interactions at work and her personal life. When asked by

her superiors, she balked at producing the book or revealing

its exact contents. Further, McKenzie suggests that her

motive in mentioning the book was to bring Paras’s wrongdoing to light, but when asked by her superiors, she stated

that she did not know why she revealed the existence of the
No. 03-4136 11

book. The sheriff’s department reprimanded McKenzie

because it concluded that she was using the book to intimidate her superiors into reconsidering her transfer. In

light of these facts, the district court correctly concluded

that McKenzie’s book was an expression of personal rather

than public concern, and therefore was not entitled to constitutional protection. See Sullivan, 360 F.3d at 700.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-23-04