future. I don’t feel that’s my responsibility. I also don’t feel that I should have to arrange my
schedule to accommodate Greg. Perhaps he should come in after hours if he needs to do
anything here. I will not make up the time for yesterday. I don’t feel I should have to.” (P1.’s
Ex. 21.)

This is not statutorily protected activity. Kaminski points to no facts that could possibly
lead a jury to conclude that Nettles would perceive this e-mail to be a complaint about sexual
harassment or sexual discrimination. Nettles testified in his deposition that Kaminski did not
make a complaint to him of sexual harassment after the incident on March 23, 2000, “She never
said it was sexual harassment.” (Nettles’ Dep., Defs.’ Ex. 21, at 154:21-22.) Kaminski has
provided no evidence to rebut this testimony. In fact, at her own deposition, Kaminski admitted
that she understood Freight-A-Ranger’s sexual harassment policy. She testified that she did not
invoke the policy by asking for an investigation from the company regarding Fischer’s conduct.
This court has already concluded that Fischer’s conduct did not constitute sexual harassment.
Without an express complaint by Kaminski, Nettles cannot reasonably be expected to have
presumed that her e-mail to him was a complaint about discrimination. From this record, it is
clear that Kaminski never complained to Nettles about sexual harassment.

B. EEOC Charge

On December 12, 2000, Kaminski filed a charge of discrimination with the EEOC
alleging sexual harassment against Freight-A-Ranger. (Compl. Ex. A.) There can be no dispute
that the EEOC charge satisfies the first prong of the test. In her complaint, Kaminski alleges that
“To]n or about December, 2000, Nettles received notice that Kaminski filed a charge with the

EEOC regarding the events herein.” (Compl. { 24.) “Afterward, Nettles and Fischer engaged in

13


violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg. In Counts II
through IV, she charged Fischer with assault, battery, and false imprisonment, respectively. She
brings the same claims against Freight-A-Ranger on a theory of vicarious liability. Finally, in
Count V, Kaminski charges all defendants with intentional infliction of emotional distress. This
is her only claim against Nettles in his individual capacity.
Standard of Review

Summary judgment is proper “if the pleading, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). In ruling on a motion for summary judgment, the court evaluates the admissible
evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 US. 242, 255 (1986). However, the party who bears the burden of proof on an issue may
not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of
material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). There is
no issue for trial “unless there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson, 477 U.S. at 249.
Discussion

Both Freight-A-Ranger and Nettles move for summary judgment. With respect to the
Title VII claim, Freight-A-Ranger argues that Kaminski has failed to establish either a hostile
work environment or retaliation, and that it cannot be held vicariously liable for Fischer’s
actions. With respect to the state-law claims, Freight-A-Ranger argues that the conduct at issue

in this case does not rise to the level of assault, battery, or false imprisonment, and that Freight-


A-Ranger’s counsel how she felt that Nettles had sexually discriminated against her. She
answered: “In regards to the incident [on March 23, 2000] and his comments regarding the things
that-Well, I guess that’s not sexually related, but his insensitivity about the situation where he
made a joke about it.” (Kaminski Dep., Oct. 5, 2001, Defs.’ Ex. 2 at 106:24-107:4.) When
asked about the joke, Kaminski stated: “I would have to say there were a couple instances, but
when Mr. Fischer started a dating relationship with another employee, he was like—He actually
said that he was sick.” (/d. at 107:6-9.) “I don’t remember exactly what the words are, and I had
told him—him and [another employee] had made some kind of remark and I took offense to it
and I said I didn’t think it was funny and then when he saw my seriousness about it, that’s when
he said that [Fischer] was sick.” (Jd. at 107:19-24.) She continued: “If 1 had a complaint of any
nature regarding like the e-mails or things got to be too much, his comment to me would be,
you’re as much at fault here as he is.” (Jd. at 109:4-7.) She recalled that these remarks were after
March and before November 2000. She also testified that these remarks by Nettles could be
sexual discrimination “[b]ecause I, just being the accounting manager, versus [Fischer] of the
male nature, having a college degree, and having so much-being such an asset to the company
was belittling me as a woman and my education background. To me, the whole thing, I could be
replaced.” (fd. at 113:24-114:5.)

Next, Kaminski complains about Nettles’s decision (and more importantly, the manner in
which he informed Kaminski) that Fischer would return to the 47th Street facility. On November
15, 2000, Nettles sent Kaminski an e-mail in which he expressed that he “was surprised to see
Greg [Fischer] here today and you not here. I understand why you’re not here, but in the future, I

want to know what your plans are for making up the time?” (Pl.’s Ex. 21.) Kaminski responded


is undisputed that both Fischer and Nettles were Kaminski’s supervisors during the events in
question. Thus, if the court concludes that the discriminatory conduct created an abusive
working environment, Freight-A-Ranger may be liable.

Defendants argue, among other things, that Fischer’s and Nettle’s conduct cannot
constitute sexual harassment because it was not based on sex. The court agrees.

A. Based on Sex

To establish her sexual harassment claim under Title VII, Kaminski must show that any
discrimination against her was because of her “being a woman or belonging to a different gender
from her tormentor.” Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d 1164, 1168 (7th
Cir. 1996), overruled in part on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 122 S.
Ct. 2061 (2002). “Title VII does not prohibit all verbal or physical harassment in the workplace;
it is directed only at ‘discriminat[ion] . .. because of . . . sex.’” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998).

The Seventh Circuit does not allow sexual harassment claims where the conduct at issue
stems solely from the harasser’s animosity arising from a failed romantic relationship. Galloway,
78 F.3d at 1168 (“The repetition of the term [“sick bitch”’] together with the other verbal conduct
that is alleged reflected and exacerbated a personal animosity arising out of the failed relationship
rather than anything to do with a belief by [defendant], of which there is no evidence, that
women do not belong in the work force or are not entitled to equal treatment with male
employees.”); see also Succar vy. Dade County Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000)
(affirming district court’s grant of summary judgment and holding that defendant’s “harassment

of Plaintiff was not the result of Plaintiff's gender but of responses to an individual because of


A-Ranger cannot be held liable on a theory of vicarious liability. Nettles moves for summary
judgment on the one claim against him: intentional infliction of emotional distress. He argues
that his statements to Kaminski that Fisher would return to the 47th Street facility cannot give
rise to such a claim.
I. Hostile Work Environment

Title VII of the Civil Rights Acts of 1964 makes it unlawful for an employer “to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin...” 42 U.S.C. § 2000¢-2(a)(1). “[A] plaintiff may establish a violation of Title VI by
proving that discrimination based on sex has created a hostile or abusive work environment.”
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “[F]or sexual harassment to be
actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s]
employment and create an abusive working environment.” Jd. “[W]hether an environment is
‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may
include 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
The test is both objective and subjective. Silk v. City of Chicago, 194 F.3d 788, 805 (7th Cir.
1999). That is, the work environment must be one that a reasonable person would find hostile or
abusive and that this particular employee subjectively perceived it this way. Id.

“[E]mployers are vicariously liable for hostile environment [sexual] harassment by

supervisors (subject to certain defenses).” Jd. at 804 (internal citations omitted). In this case, it


Kaminski argues that Fischer’s use of the term “cold hearted bitch” is a derogatory term
for women and should preclude summary judgment. The court disagrees. In this case the term
“bitch” was used as a pejorative term for a woman, not to reference Kaminski’s sexual habits or
in any other way sexually harass her. See Galloway, 78 F.3d at 1168 (concluding that the term
“bitch” “does not necessarily connote some specific female characteristic, whether true, false, or
stereotypical; it does not draw attention to the woman’s sexual or maternal characteristics or to
other respects in which women might be thought to be inferior to men in the workplace, or
unworthy of equal dignity and respect”). “Even if [the accused harasser] didn’t abuse any men,
there would not be an automatic inference from his use of the word ‘bitch’ that his abuse ofa
woman was motivated by her gender rather than by a personal dislike unrelated to gender.”
Galloway, 78 F.3d at 1168. It seems reasonably clear from context that Fischer’s “cold-hearted
bitch” comment was motivated by personal rather than gender based animus. But even if the
remark could be construed as sexist, “mere utterance of an .. . epithet which engenders offensive
feelings in a employee . . . does not sufficiently affect the conditions of employment to implicate
Title VIL.” Harris, 510 US. at 21.

Kaminski argues that it is the totality of the conduct of both Fischer and Nettles that gives
rise to a hostile work environment claim under Title VII. Regarding Nettles’s actions, Kaminski
first complains that Nettles made light of her relationship with Fischer to other employees and

otherwise belittled her about the situation. She was asked to specify at her deposition by Freight-

refusal to engage in sexual relations.” Keppler v. Hinsdale Township High Sch. Dist. 86, 715 F.
Supp. 862, 866 (N.D. Ill. 1989). It appears that she attempts to use evidence that Fischer implied
that she should leave the company as a result of their failed relationship. However, these facts
are mentioned nowhere in the complaint, which otherwise makes no indication of a guid pro

quo claim.


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Joan B. Gottschall Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01 C 4937 DATE 9/30/2002
CASE Donna L. Kaminski vs. Freight-A-Ranger, Inc., et al.
TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) im Answer brief to motion due. . Reply to answer brief due
(4) ao Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] (set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) im Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (Local Rule 41.1 OFRCP41(a)(1)  FRCP41(a)(2).
ao) «of {Other docket entry] Enter Memorandum Opinion and Order. Defendant Freight-A-Ranger’s and
JEN Dissolution Corp.’s motion for summary judgment [12-1] is granted. The remaining state-law claims
against all defendants are dismissed for lack of subject-matter jurisdiction. Defendant Nettles’s motion
for summary judgment [11-1] is denied as moot.
(11) a [For further detail see order attached to the original minute order.)
No notices required, advised in open court.
No notices required. unter of pcs
Notices mailed by judge’s staff. SEP 3 G 2009
Notified counsel by telephone. Seine dockeres
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TA Mail AO 450 form. 1¥n09 LamMisia ‘sin Lain on
Copy to judge/magistrate judge. 19
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[she] think [she] was telling him [she’s] not going to make up [her] time.” (Kaminski Dep., Oct.
5, 2001, Defs.’ Ex. 2 at 20:13-20.). But nothing here suggests sexual discrimination, It perhaps
shows that Nettles was becoming frustrated with the tense relationship between Kaminski and
Fischer, However, Kaminski has provided no evidence to suggest that Nettles’s profanities or his
decision to transfer Fischer was motivated by the fact that Kaminski is a woman. Freight-A-
Ranger’s motion for summary judgment is granted with respect to the sexual harassment claim.
Il. Retaliation

To establish a prima facie claim for retaliation a plaintiff must show that: (1) she engaged
in statutorily protected expression; (2) she suffered an adverse action by her employer; (3) she
was subjected to an adverse employment action; and (4) she was treated less favorably than
similarly situated employees who did not engage in such protected activity. Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640, 643-44 (7th Cir. 2002). If Kaminski establishes a
prima facie case, the burden shifts to Freight-A-Ranger to produce a legitimate nondiscriminatory
reason for the adverse action. Id. at 644. “If the defendant presents unrebutted evidence of a
noninvidious reason for the adverse action, [it] is entitled to summary judgment. Otherwise there
must be atrial.” Jd, “Establishing a causal link between the protected expression and adverse
employment action is not required under the [burden-shifting] method [of proof].” Nielsen v.
Acorn Corrugated Box Co., No. 01 C 1988, 2002 WL 1941365 (N.D. Ill. Aug. 21, 2002) (citing

Stone, 281 F.3d at 644).

‘The Seventh Circuit decided Stone after Freight-A-Ranger moved for summary
judgment. Because Stone introduced a new analysis for retaliation claims, Kaminski has not
attempted to point to any similarly situated employees who were treated more favorably than she.
The change in law does not matter here because, even assuming Kaminski establishes a prima
facie case, she fails to rebut Freight-A-Ranger’s nondiscriminatory reasons for any adverse

1


via e-mail that she did not feel that she should have to make up her time. She testified that after
Nettles read her e-mail, he called her into his office and asked her to close the door. When she
did, “he told me, you better get off your fucking high horse, and that’s when he told me that he
was bringing Greg back in March. In four months I had to make a decision, either put this whole
thing behind me, but I had four months to make a decision as to what I wanted to do, and who the
fuck did I think I was telling him I’m not going to make up my time.” (/d. at 20:13-20.)

On December 4, 2000, Fischer sent Kaminski the following e-mail: “The computer
person from GPS will be at 47th Street on Tue and Wed December 12th and 13th. I will need to
be with her both those days. I’m not sure if it will be for the whole day or what. Please confirm
that you received this message.” (Defs.’ Ex. 8, 11.) Nine minutes later, Nettles sent the
following e-mail to Kaminski: “Donna: You can either hole up in your office while Greg is here
or come in after he leaves. The third option would be to finally try and put this whole thing
behind you. I understand how you feel towards Greg, but I do have a business to run and I will
make sure he steers clear of you while he is here if that’s a concern.” (Id.)

None of Nettles’s conduct could lead a rational trier of fact to conclude that he had
sexually harassed Kaminski or otherwise discriminated against her based on her sex. As for
Nettles’s joking about her relationship with Fischer, Kaminski admits that it was not sexually
related, and otherwise provides no evidence to indicate that Nettles’s comments constitute sexual
harassment. The most likely candidate for evidence of mistreatment is Nettles’s alleged profane
tirade on November 15, 2000 during which he told Kaminski to “get off [her] fucking high
horse,” that he would transfer Fischer back to the 47th Street facility in March, that she had four

months to put the situation behind her and decide what she would do, and “who the fuck did

10


her former intimate place in [that individual’s] life”) (internal quotation marks omitted) (quoting
Keppler v. Hinsdale Township High Sch. Dist. 86,715 F. Supp. 862, 869 (N.D. Ill. 1989));
McCollum y. Bolger, 794 F.2d 602, 610 (11th Cir. 1986) (“Title VII prohibits discrimination; it is
not a shield against harsh treatment at the work place. Personal animosity is not the equivalent of
sex discrimination. . . . The plaintiff cannot turn a personal feud into a sex discrimination case.”)
(internal quotation marks omitted).

In this case, Kaminski was subjected to alleged abuse from someone with whom she had
a previous relationship, she was made the target of one harsh comment (“cold hearted bitch”),
and she was the sole victim of the alleged harasser. Applying relevant Title VI case law,
Kaminski cannot show that she was the victim of sexual harassment. It is clear that Fischer’s e-
mails to Kaminski, their argument on March 23, 2000, and even Fischer’s alleged assault on
Kaminski stemmed from Fischer’s personal animosity arising from their failed romantic
relationship. There is no evidence indicating that Fischer’s hostility toward Kaminski was
motivated by anything other than personal animosity arising from the failure of their relationship.
Assuming Fischer’s alleged actions truly took place, they are reprehensible and perhaps
actionable. However, to succeed under Title VII Kaminski must show more than evidence that
she was mistreated by someone who was very angry with her. She must show that her
mistreatment was the result of her being a woman. No reasonable jury could find such evidence

here?

3Kaminski has not claimed quid pro quo sexual harassment, a distinct form of sexual
harassment, in either her complaint, any subsequent pleadings, or her memoranda opposing
defendants’ motions for summary judgment. Quid pro quo sexual harassment occurs when “an
employer expressly or impliedly makes sexual favors a condition for the employee to receive or
retain job benefits, or deprives the employee of job benefits on the basis of the employee’s

7


Nettles required that all of Fisher’s future communications to Kaminski were to be only via e-
mail and that Kaminski would report only to Nettles—not Fischer. However, Fischer was
otherwise still in daily contact with Kaminski, continued to supervise her work, and would
sometimes return to the 47th Street facility. On March 28, 2000, a Criminal Order of Protection
was entered in favor of Kaminski and against Fischer. On May 30, 2000, the Criminal Order of
Protection was extended to May 29, 2001.”

On or about November 15, 2000, Nettles told Kaminski that Fischer would return to the
47th Street facility, due to a corporate consolidation. The consolidation resulted from the
expiration of the Elk Grove Village facility lease. Furthermore, because of new space
configurations, there was no place to put Fischer in the new facility being built near O’Hare
Airport. Kaminski claims that when Nettles informed her of the corporate consolidation, Nettles
hurled profanities at her and told Kaminski to get over the incident with Fischer. However, she
admits that Nettles told her that when Fischer ever relocated, Nettles would make sure that
Fischer was located at the opposite side of the plant, and she admits that Nettles attempted to
allay her fears about working in the same location with Fischer. In late March or early April,
Nettles told Kaminski that Fischer would permanently return to the 47th Street facility in May
2001. The Criminal Order of Protection was still in effect through May. On April 10, 2001,
Kaminski resigned.

In her five-count complaint, Kaminski brings one Title VI claim and four state-law

claims. In Count I, she charges Freight-A-Ranger with both sex discrimination and retaliation in

?Freight-A-Ranger points out that the Criminal Order of Protection did not cover the
workplace.


a course of conduct in retaliation for Kaminski exercising her federally protected rights.” (/d.)

Kaminski argues that “forcing Kaminski to work under the supervision of her attacker, as
well as relocating him to her work location, could be deemed ‘adverse’ under case law.” (P1.’s
Resp. Freight-A-Ranger’s Mot. Summ. J. at 12.) This contention is dubious at best but even if
this court accepts that Kaminski has satisfied every requirement of a prima facie case, it must still
grant Freight-A-Ranger’s motion for summary judgment because Kaminski fails to show that its
legitimate nondiscriminatory reason for the employment action is pretextual.

Freight-A-Ranger claims that the actual reason that Nettles decided to transfer Fischer
back to the 47th Street facility was that the company was engaging in a corporate consolidation
and he had no choice. This reason is facially legitimate, so the burden shifts back to Kaminski to
establish that it was a “pretext” for discrimination. O’Neal v. City of New Albany, 293 F.3d 998,
1005 (7th Cir. 2002). Kaminski “may establish pretext with evidence that the defendants were
more likely than not motivated by a discriminatory reason or that their explanations are not
worthy of credence, i.e., they are factually baseless, did not actually motivate the defendants, or
were insufficient to motivate the adverse employment action.” Jd. “Because a fact-finder may
infer intentional discrimination from an employer’s untruthfulness, evidence that calls
truthfulness into question precludes a summary judgment.” Jd. (quoting Perdomo v. Browner, 67
F.3d 140, 145 (7th Cir.1995)); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 147 (2000) (“In appropriate circumstances, the trier of fact can reasonably infer from the
falsity of the explanation that the employer is dissembling to cover up a discriminatory
purpose.”).

Kaminski has failed to show pretext. First, she does not dispute that Freight-A-Ranger

14


Conclusion

For the foregoing reasons, the court grants summary judgment as to Count I. Pursuant to
28 U.S.C. § 1367(c)(3), the court declines to exercise supplemental jurisdiction over Counts I
through V, the remaining state-law claims. This action is hereby terminated.

ENTER:

BhE,

le) “GOTTSCHALL
ited’States District Judge

DATE: September 30, 2002

16


In January 2000, Kaminski ended her romantic relationship with Fischer. On the day of
the break-up, Fischer followed Kaminski to her car and they argued. Fischer wanted to rekindle
the relationship and sent Kaminski numerous e-mails at their workplace. On February 14, 2000,
Fischer sent Kaminski flowers and a note asking why she had ended the relationship. On March
13, 2000, Fischer wrote another e-mail to Kaminski indicating his desire to restart the
relationship.

On March 23, 2000, the situation escalated. Fischer sent an e-mail to Kaminski stating
that his life was thrown into an “absolute complete disaster, and it is a struggle every day just to
get through it.” (PL.’s Ex. 14.) He later sent another e-mail in which he told Kaminski that
“under these circumstance [sic] and how you have handled the end of our relationship, I don’t see
how we can work together. You have done all of this.” (P1.’s Ex. 16.) Ina follow-up e-mail he
asked Kaminski if she was going to find another job. Next, Fischer entered Kaminski’s office
and told her he loved her. When she refused to discuss the matter with him, he called her a
“cold-hearted bitch.” (Fischer Dep., P1.’s Ex. 1, 129:7.) Kaminski claims that Fischer then
“grabbed Kaminski so hard that it left a visible mark and thereafter a bruise.” (P1.’s Resp.
Freight-A-Ranger’s Mot. at 8.) (Fischer claims that he was losing his balance when he grabbed.
her arm because Kaminski had tried to punch him.) Kaminski reported the incident to the police.

On March 24, 2000, Kaminski reported the incident to defendant Nettles, the president of
Freight-A-Ranger. The next day, Fischer was transferred to another facility in Elk Grove
Village, Illinois. Nettles took other corrective action against Fischer, including stripping Fischer
of his managerial responsibilities, CEO title, position on the Board, and stock options. Nettles

also revoked Fischer’s executive contract and placed him on a one-year probation. Finally,


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS (ay
EASTERN DIVISION gene’
SEP 3 9 2002
DONNA L. KAMINSKI, )
)
Plaintiff, ) Case No. 01 C 4937
)
v. )
)
FREIGHT-A-RANGER, INC., et al. ) Judge Joan B. Gottschall
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Donna Kaminski has sued her former employer, Freight-A-Ranger, Inc., now
doing business as JFN Dissolution Corp. II, Inc. (collectively, “Freight-A-Ranger”), and former
supervisors, James F. Nettles and Gregory B. Fischer.' Defendants Freight-A-Ranger and Nettles
have each moved for summary judgment. For the reasons set forth below, the court grants
Freight-A-Ranger’s motion and dismisses the remaining claims for lack of subject-matter
jurisdiction.
Background

The following facts are undisputed. Kaminski was employed with Freight-A-Ranger
from July 1983 to April 10, 2001. She held the position of Account Manager. Defendant Fischer
was secretary of the Board of Directors and chief financial officer at Freight-A-Ranger, as well as
Kaminski’s direct supervisor. They both worked at the facility located at 5500 West 47th Street
in Chicago (“47th Street facility”). On or about August 1999, Kaminski and Fischer began a

dating relationship. It was the third relationship of its kind between them.

'Kaminski and Fischer entered into a settlement agreement and this court dismissed with
prejudice all claims against Fischer on April 16, 2002.

\>


Kaminski points to two different events that would show the first element of a prima facie
case: (a) her November 15, 2000 e-mail complaining to Nettles about Fischer’s temporary visits
to the 47th Street facility; and (b) her EEOC charges. She claims that the adverse employment
action is Nettles’s decision to transfer Fischer back to the 47th Street location.

A. November 15 E-mail

Statutorily protected expression generally includes any opposition to an unlawful
employment practice. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 706
(7th Cir. 2000). “[O]ur cases hold that an employee may engage in statutorily protected
expression under section 2000e-3(a) even if the challenged practice does not actually violate
Title VIL.” Jd. “It is sufficient if the plaintiff has a sincere and reasonable belief that he is
opposing an unlawful practice.” Jd. at 706-07. “That means, for example, that even if the degree
of discrimination does not reach a level where it affects the terms and conditions of employment,
if the employee complains and the employer fires because of the complaint, the retaliation claim
could still be valid.” Jd. at 707. However, in order for the employer to retaliate, it must be aware
of the employee’s statutorily protected expression. McKay v. Town & Country Cadillac, Inc.,
No. 97 C 2102, 2002 WL 664024, at *10 (N.D. Ill. Apr. 23, 2002). If the employer did not, and
reasonably could not have understood that the plaintiff's opposition was directed at conduct
prohibited by the statute, then any adverse employment action cannot constitute retaliation. Id.

On November 15, 2000, Nettles sent Kaminski the e-mail in which he asked how she
would make up her time when she was absent from work because Fischer was present. Kaminski

responded: “I feel that if Greg needs to come here then perhaps he should clear it with you in the

employment action.

12


was in fact experiencing a corporate consolidation and otherwise provides no evidence that the
reason offered by Nettles for Fischer’s return is a lie. Moreover, Kaminski fails to point to any
evidence that would suggest that Nettles was motivated by a desire to retaliate against Kaminski
for filing her EEOC charge. The only incident to which Kaminski refers after December 2000,
when she filed her EEOC charge, is the following exchange between Kaminski and Nettles: “In
Late March/early April, 2001, Kaminski went in to Nettles’ office and asked if Fischer would
still be returning to 47th street. Nettles replied ‘yes.’ Kaminski then resigned from her
employment. Nettles states he was sorry the situation turned out this way.” (P1.’s Statement
Add’1 Facts J 140.) Without more evidence, the court cannot reasonably infer that Nettles’s
decision to transfer Fischer was motivated by discriminatory intent. The motion for summary

judgment is granted as to the retaliation claim.*

Although not expressly set out in her complaint, Kaminski attempts to raise a
constructive discharge claim against Freight-A-Ranger. A constructive discharge “occurs when
an employee’s discriminatory working conditions become so intolerable that a reasonable person
in her position would be compelled to resign.” Sweeney v. West, 149 F.3d 550, 557 (7th Cir.
1998). “In other words, an employee can be constructively discharged only if the underlying
working conditions were themselves unlawful (i.e., discriminatory in some fashion).” Jd.

In this case, Kaminski points to the impending return of Fischer to the 47th Street facility as the
sole reason for the intolerable conditions at her job. She concedes that before she resigned,
Fischer had not yet returned. It is undisputed that Nettles told Kamisnki that if Fischer relocated,
he would try to separate them in the workplace. Even if the court were to accept that a
reasonable employee would have been motivated to resign under similar circumstances,
Kaminski has provided no evidence to indicate that the reasons for her departure were
discriminatory. See Sweeney, 149 F.3d at 558 (rejecting plaintiffs constructive discharge claim
because “we already have determined that her working conditions were not
discriminatory——specifically, there is insufficient evidence that they existed in retaliation for her
EEO complaint, and no evidence of an actionable hostile environment”).

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