enough to create an objectively hostile or abusive work environment -- an environment
that a reasonable person would find hostile or abusive -- is beyond Title VIl’s purview.”
Harris, 510 U.S. at 21. This premise must be considered when assessing whether Wei’s
complaint of harassment mects the standard. The negative statements attributed to
McCrank, if taken as true, do not amount to harassment of the kind to be actionable under
Title VIL.

In Cerros, the court found an objectively hostile work environment where an
employee was subjected to frequent and severe verbal harassment, racial cpithcts and
racist graffiti by his co-workers and supervisor. Cerros v. Steel Tech., Inc., 288 F.3d
1040, 1046-47 (7th Cir. 2002). “It included racial remarks and symbols such as... ‘Go
Back to Mexico,’ ‘Tony Cerros is a spic,’ ‘KKK,’ and ‘White Power.”” /d, al 1042.
Further, Cerros’ slashed tires and complaints of harassment to management were not
investigated. Jd.

In contrast, in Aguilera v. Village of Hazel Crest, 234 F. Supp. 2d 840, 847-48
(N.D. Ill. 2002), the criticism of an employee’s communication skills in his performance
evaluation and four derogatory ethnic remarks by co-workers were insufficient to
constitute a finding of hostile work environment. The negative comments concerning his
communication capabilities were not directed at his ethnicity. Jd. at 847. The court also
considered the frequency of the ethnic remarks and their non-threatening, “offhand”
nature to conclude that “the type of hellish work cnvironment prohibited by Title VI”
was not present. Jd. at 848.

The facts in the instant case are more similar to Aguilera than to Cerros. As in

Aguilera, the criticisms levied in Wci’s performance evaluation were not directed at her

19



F.3d at 915-16. However, an analogy can also be drawn between Wci’s alleged adverse
actions and those in Place that did not rise to the level of an adverse employment action.
Place, 215 F.3d at 810. Considering the totality of the changes in Wei’s working
conditions and the revision to her job responsibilities and title, the Court concludes that
there is a sufficient basis for a trier of fact to conclude she suffered an adverse

employment action.

2 Similarly Situated Employees

To meet the fourth element of the prima fucie case, the plaintiff must show that
similarly situated employees who were outside the protected class were more favorably
treated. McDonnell Douglas Corp., 411 U.S. al 802. A court must examine the context
of a case and all relevant factors in determining whether two employces are similarly
situated. Radue, 219 F.3d at 617. Consideration of relevant factors does not require an
employee to “show complete identity in comparing himself to the better treated
employee, but he must show substantial similarity.” /d. Substantial similarity between
employees exists with the presence of such factors as a common supervisor, similar
standards of performance, analogous education and experience. Jd.

Wei has identified two Caucasian females, Kathy Matlin, a reference librarian and
Beverly Meyers, a materials center librarian as similarly situated employees who
received more favorable treatment. Matlin, Meyers and Wei were all librarians and
members of the faculty who reported to Dean McCrank prior to the reorganization of the
LIS. (Def.’s LR56.1(a) 9] 144, 146, 156-57.)

CSU refutes Wei’s claim that these employces were similarly situated based on

13



EEOC’s investigation of the charges before it.” /d.

Wei’s EEOC charge alleges harassment, a hostile work environment and
discrimination under violation of Title VU on the basis of national origin and sex. It also
included a complaint of age discrimination under the ADEA.* The text portion of the
complaint does not reference directly or by inference any retaliatory action by her former
employer, The complaint requests the charging party to check the appropriate boxes
indicating the cause of the discrimination. Contrary to the assertions of Wei, the EEOC
Charge form explicitly provides “retaliation” as an option under cause of discrimination.
Wei has checked sex, age and national origin. Notably, the box for retaliation was Icft
unmarked, (Def.’s Ex. E, EEOC Charge 210A13215 at 3.) Further, there is no reference
to retaliation contained in the interview conducted with Wei by the EEOC. (Del.’s Ex. E,
Interview of Wei by EEOC at 12.)

In O'Rourke v. Continental Casualty Co., 983 F.2d 94, 97 (7th Cir. 1993), the
Seventh Circuit held that retaliation and age discrimination are unrelated as a matter of
law. The court explained that retaliation is essentially the “adverse consequence[s]
deliberately attached to the exercise of a right protected by law.” Jd. Where the charge
does not include the exercise of a protected right or any resulting adverse consequence,
retaliation cannot be presumed. /d. As the claim of retaliation is not like or reasonably
related to the discrimination charged, the Court finds that her retaliation claim is not
within the scope of the charge, and therefore, Wei is barred from raising it in this

litigation.

“See supra FN1

23



or noninstructional assignment.” (Def.’s LR5G.1{a) { 86.)

race, sex or Chinese background. (Def.’s LR56.1(a) 4 59.)

CSU's position, which Wei disputes, is that the archives were deficient in a
number of respects, (/d, ] 11; Def.’s Ex. E, Letter from CSU to EEOC at 21.) The
expectations for Wei and the archives were communicated to her from the onset. (Def’s
LR56.1{a) | 104.) Wei understood those expectations but disputed their feasibility,
particularly with regard to implementation of encoded archival description. (/d. ff] 104,
106-07; Pl.’s LR56.1(b)(3)(A) J 107.) McCrank offered training in clcectronic records
management to Wei when she indicated she had a lack of experience in this area. (Def.’s
LR56,1(a) { 108.)

Wei and McCrank met on April 11, 2001 concerning her annual evaluation and
CUE assignment. (Jd. 4 62; Pl.’s LR56.1(b)(3)(A) 9 61.) Wei claims that McCrank told
her that if she would retire he could hire three additional staff members with her salary.
(Def.’s LR56.1(a) ff] 60, 61.) She also states that McCrank said “you should consider
either resign[ation], retire[ment] or transfer” and “you should seriously consider
retirement.” (/d. 63.) Again, no comments were made in reference lo Wei’s scx or
national origin, (7d. 65.) Wei perceived McCrank’s demeanor as cold and threatening
during that meeting. (Pl.’s LR56.1(b)(3)(A) J 65.)

Early in May 2001, Wei filed a complaint with the EEOC alleging discrimination

and a hostile work environment by McCrank and CSU based on age, sex and national

origin. (Def.’s LR56.1({a) { 39,40.) The charge did not include a claim for rctaliation or



national origin. See Aguilera, 234 F. Supp. 2d at 847. And, unlike management’s failure
to act in Cerros, Wei successfully pursued the established mechanism for grieving her
performance evaluation that resulted in its removal and replacement with one of a
satisfactory rating. See Cerros, 288 F.3d at 1042.

Lastly, the changes to Wei’s CUE assignment, title and loss of supervision of an
assistant fall short of meeting the threshold of abuse required to demonstrate the
existence of a hostile work environment. Whilc Wei characterized these actions as
discriminatory and unfounded based on her perceived performance, they do not constitute
actions that would be objectively viewed as interfering with her ability to function in her
position.

Beyond a finding of objectively hostile work conditions, the complained of
actions must relate to and be offensive because of a protected characteristic - Wei’s
national origin or scx. Here, plaintiff failed to raise a genuine issue as lo the material [act
that the alleged derogatory remarks and job actions have resulted from any
discrimination based on gender or national origin. Because Wei has not established an
objectively hostile work environment, this Court grants CSU’s motion with respect to the

harassment claim.

Cc. Constructive Discharge

Although not expressly sct out as a separate claim, Wei incorporates language in
her complaint and response that infers she has been constructively discharged. (Pl.’s
Compl. § 30, Pl.’s Mem. Opp’n. Summ. J. at 32.) Wei states: “[McCrank’s] actions
destroyed plaintiffs health to the point that she had no choice but to retire. . . [A]ctions

20



D. Retaliation Claim

CSU claims Wei cannot base her Title VII claims for relicf on retaliation because
she failed to allege retaliation in her EEOC charge filed on May 11, 2001. (Def.’s
LR56.1(a) 941.) CSU further contends that Wei is time barred from including the
retaliation charge in the instant suit because she has exceeded the 300-day statutory time
limit between the discriminatory act and the filing of the EEOC charge necessary for
ultimate recovery under Title VII. (/d.); 42 U.S.C. § 2000e-5(e)(1).

Wei states that she did not include a claim for retaliation because she was told she could
not do so before or at the same time as the filing of her employment discrimination
charge. (Pl’s LR56.1(b)(3)(A) 7.41.) Additionally, she claims retaliation is not listed as
one of the reasons for allegations of employment discrimination that the EEOC can
investigate. (Id.)

A prerequisite to filing suit under Title VII is the filing of an EEOC charge
conceming the aggrieved actions in an attempt lo tesolve disputes without litigation.
Chambers v. Am. Trans Air Inc., 17 F.3d 998, 1003 (7th Cir. 1994). A plaintiff may
pursue a claim for retaliation under Title VII that is “not explicitly included in an EEOC
complaint only if her allegations fall within the scope of the charges contained in the
EEOC complaint.” Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996). To
ascertain whether a subsequent action falls within the scope of the earlier EEOC
complaint, a court considers whether the charges are “like or reasonably related to those
of the EEOC complaint.” /d. (internal quotations omitted). If the charges are related, the
court then asks “whether the current claim could reasonably have developed from the

22



LR56.1(b)(3)(A) J 11.) Once again, Wei's own statement contradicts her acknowledged
efforts to seek outside assistance from various state resources to assist in updating
archives record retention and disposition. (Jd.) Wei also contends that the conversion of
the archives reading room to a multi-use conference room is inconsistent with SAA
Guidelines. ({d.) Even if all of this were true, it does not establish a genuine issuc as to a
material fact regarding pretext.

Although Wei contends that MceCrank’s negative evaluation of her performance
was a discriminatory action, she does not rely on this issue in attempting to establish
pretext. (PI.’s Mem. Opp’n. Summ. J, at 22-24.) This is consistent with the Seventh
Circuit holding in Fortier, which states “[a]n employee’s sclf-serving statements about
his ability are insufficient to contradict an employer’s negative evaluation and do not
create a material! dispute about the employer’s honesty or establish pretext.” Fortier, 161
F.3d at 1114 (citing Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th
Cir. 1992) (internal quotations omitted).

Even if McCrank’s assessment of Wei’s capabilities and performance had been
erroneous and even if his assessment had been a factor in the reorganization plan, to
establish pretext Wci must show not a misguided decision but rather discriminatory
actions taken on the basis of her national origin and sex. While the Court recognizes that
an opportunity exists for an employer to usc a restructuring or RIF to conceal
discriminatory treatment, here, the record simply does not provide any cvidence from
which to reasonably infer a connection between the complained of actions with Wei’s
gender or national origin. For these reasons, CSU’s Motion for Summary Judgment with

respect to Wei’s discrimination claim is granted.

17



performance expectations of her employer, (3) she suffered an adverse employment
action; and (4) that her employer treated similarly situated employees outside the
protected class more favorably. Greenslade, 112 F.3d at 863.

Wei offers no admissions or statements by CSU that reflect a propensity by any
decision-maker to evaluate employees based on national origin or sex. With no direct
evidence of employment discrimination, Wei must proceed using the burden-shifting
approach of McDonnell Douglas. CSU concedes that Wei meets the first and second
elements of the prima facie case. The parties dispute whether the remaining third and

fourth clements have been met.

1. Adverse Employment Action

Title VII does not explicitly define “adverse employment action” but includes the
limiiation or classification of an employee in a manner that deprives the employce of
opportunities or “otherwise adversely affect[s] his status as an employee.” 42 U.S.C. §$
2000c-2(a)(1)-(2). The Seventh Circuit has interpreted the term quite broadly. Smart v.
Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). A material adverse employment
action has been found with termination of employment, demotion, reduction in pay or
bencfits, significantly reduced job responsibilities or “other indices that might be unique
to a particular situation.” Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132,
136 (7th Cir. 1993), Although adverse job actions are not always characterized by
monetary loss to ihe employee, the “change in the terms and conditions of employment
must be more disruptive than a mere inconvenience.” Jd. “Not cverything that makes an

employee unhappy is an actionable adverse action.” Smart, 89 F.3d at 441.

9



Lopardo, and iterated her concerns with McCrank’s criticisms of her work and claimed
continued harassment and discriminatory treatment. (/d. 114.) Finally, on April 30,
2002, Wei notified Dr. Lopardo of her retirement to be effective July 1, 2002 as a direct
result of health problems related to McCrank’s alleged discriminatory behavior toward
her. (Id. 1] 26, 38; Def.’s Ex. D, Letter from Wei to Provost of 4/30/02 at 1.)

Wei has identified two librarians as similarly situated employees who received
more favorable treatment. (/d. ff 142, 154.) Both librarians are Caucasian, female and
reported to Dean McCrank. (dd. J] 143-44, 155, 157.) Wei claims Kathy Matlin, a
reference librarian, received a more favorable evaluation than she did. (/d. J" 145, 148.)
Both Wei and Matlin did reference work, but some responsibilities of the two librarian
positions were different. (/d. {| 149-50.) Wei also stated that Matlin’s curriculum vitae
update was essentially the same as hers but Matlin was not given the negative raling she
received, (/d. § 147.)

Beverly Meyers, a materials center librarian, had technically different duties, but,
like Wei, was a librarian. (/d. J] 156, 158, 161-62.) Meyers was the recipient of Wei's
transferred assistant Beverly Bond. (Jd. 78; Def.’s Ex. D, Wei Dep. at 60.) Hor CUE

assignment was also modified by McCrank. (Def.’s LR56.1(a) | 160.)

DISCUSSION
L CSU’s Motion to Strike
Local Rule 56.1(a)(3) requires a party moving for summary judgment to file “a
statement of material facts as to which the moving party contends there is no genuine

issue and that entitle [it] to a judgment as a matter of law.” In response, the party

6



any allegations of retaliation. (/d. | 41.) The EEOC issued its dismissal and notice to
suc on June 29, 2001. (/d. | 2.) At approximately the same time McCrank prepared
Wei’s annual evaluation for 2000-2001, and rated her performance as highly
unsatisfactory. However, the evaluation according to Wei was not given to her until later
in October. (Pl.’s LR56.1(b)(3)(A) J 100.) The ratings decline was a significant
departure from her previous evaluations. (Def.’s LR56.1(a) 4 99; Def.’s Ex. E, Letter
from CSU to EEOC of June 1, 2001 at 23-33.) Wei admits that McCrank was not aware
of her filing with the EEOC at the time he prepared her evaluation. (Def.’s LR56.1(a) 4
109.) Wei filed a grievance regarding her evaluation in November 2001, which resulted
in its removal from her file. (Def.’s LR5S6.1(a) 110, 111.) Another evaluation, with a
satisfactory rating, was prepared by the former Dean of Library and Learning Resources.
(Ud. 4 111.)

The reorganization and restructuring of LIS created five new departments and a
new management infrastructure for LIS. (/d. | 14.) As part of the archives restructuring,
Wei’s position was transferred to faculty archivist, resulting in a modification of her
CUE assignment and removal of the supervision and coordination responsibilities she
previously held. (/d. 4 91, 118.) This change did not adversely affect her pay or
benefits. (/d. {| 140-41.) While acknowledging this move to be a lateral transfer, Wei
also contends that this change in title and responsibility was a demotion. (Jd. 4 115,
119, 124.) Although she grieved the changes to her CUE assignment, it was not pursued
due to her subsequent retirement. (dd. {| 85, 97-98.) Wei did not apply for the
administrative archivist position when it was posted, (/d. 4 129.)

On December 11, 2001, Wei sent a memo to CSU Provost, Dr. Genevieve

5



B. Harassment Claim

“Title VI affords employees the right to work in an environment free from
discriminatory intimidation, ridicule and insult.” Meritor Sav. Bank, FSB, v. Vinson, 477
U.S. 57, 65 (1986). A hostile work environment exists when the workplace is permeated
with discriminatory behavior that is sufficiently severe or pervasive and is both
objectively and subjectively offensive, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22
(1993), Whether harassment rises to the level of a hostile work environment depends
upon 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.” /d. at 23.

Wei asserts that the cumulative effects of McCrank’s statements and actions are
sufficient to support her claim of a hostile work environment. (Def.’s LR56.1(a) ¥ 3.)
CSU does not dispute that Wei subjectively believes this to be the case. The Court must
examine whether MeCrank’s conduct created a hostile work environment under the
objective standard.

Wei points to McCrank’s remarks that if she retired he could employ three
additional staff members with her salary; that she should consider a transfer or retirement
and that she and Ms. Bond had contributed very little to the archives. (/d. {i{| 48, 54.) As
part of an alleged campaign to get rid of Wei, he criticized her performance in her
evaluation, her workspace was altered, her assistant transferred and her title and CUE
assignment modified. (Jd. at §*] 49-50, 78, 102.)

Title VIT does not guarantee a perfect work cnvironment. {filt-Dyson y. City of
Chicago, 282 F.3d 456, 463 (71h Cir. 2002). “Conduct that is not severe or pervasive

18



whether a genuine issue of material fact exists, the facts and all justifiable inferences
therefrom must be construed in the light most favorable to the nonmovant. Anderson v,
Liberty Lobby Inc., 477 U.S. 242, 255 (1986). Where there is no genuine issue for trial,
which could lead a reasonable trier of fact to find for the nonmovant, an cntry of

summary judgment is mandated. Celotex Corp. v. Catrett, 477 U.S. 317, 318 (1986).

A. National Origin and Sex Discrimination Claims

Under Title VII, an employer is prohibited from discriminating against its
employees on the basis of sex or national origin “with respect to [their] compensation,
terms, conditions or privileges of employment.” 42 U.S.C. § 2000e-(a)(1). To prevail in
an employment discrimination action, the plaintiff may provide direct evidence of
discriminatory intent with respect to the employer’s alleged adverse employment actions
against the employee. Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 862 (7th
Cir. 1997). “Direct evidence essentially requircs an admission by the decision-maker
that his actions were based on the prohibited animus.” Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 616 (7th Cir. 2000). “Remarks and other evidence that reflect a propensity
by the decisionmaker to evaluate employees based on illegal criteria will suffice as direct
evidence of discrimination even if the evidence stops short of a virtual admission of
illegality.” Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997).

In the absence of direct evidence, the plaintiff must establish a prima facie case of
intentional discrimination under the burden shifting analysis set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), This method requires the plaintiff to

show that: (1) she was in a protected class; (2) she was meeting the legitimate

8



CONCLUSION

For the foregoing reasons, the Court grants defendant Chicago State University’s
Motion for Summary Judgment as to Wei’s Title VII claims [18-1]. Defendant’s Motion

to Strike is denied as moot [29-1]. The Court hereby terminates this case.

2
SO ORDERED enterep: — 4/324/43

HON. RONALD A, GUZ
United States Judge

24



Minuuxe Order Fore (06/97)

United States District Court, Northern District of Illinois

N f Assigned Jud; Sitting Judge if
ede Magitrate Judge Ronald A. Guzman than Assigned Judge
CASE NUMBER 01 € 7509 DATE 8/28/2003
CASE MONA WEI vs. CHICAGO STATE UNIVERSITY
TITLE

[In the following box (u) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

ql) oO Filed motion of [ use listing in “Motion” box above.]

@ ao Brief in support of motion duc

Q) oO Answer brief to motion due. Reply to answer briefdue__

(4) Oo Ruling/Hearingon_ set for at

(5) Oo Status hearing[held/continued to] [set for/re-sct for]on__setfor____at

(6) oO Pretrial conference[h¢ld/continucd to] [set for/re-set for]on__—ssetfor__—aat__
(7) o Trial{sct for/te-set for]on__—_at

(8) Q (Bench/Jury trial] [Hearing] held/continued to__at

()) a This case is dismissed [with/without] prejudice and without costs[by/agreement‘pursuant to]

OFrcP4(m) O Local Rule 41.1 CI FRCP41(a)(1) OO FRCP41(a)(2).

ao [Other docket entry) © ENTER MEMORANDUM OPINION AND ORDER: the Court grants
defendant Chicago State University’s Motion for Summary Judgment as to Wei’s Title VII claims [18-1].
Defendant’s Motion to Strike is denied as moot [29-1]. The Court hereby terminates this case.

(1) @ [For further detail sce order attached to the original minute order.]

No notices required, advised in open court. “Dodume
‘Number

Zl

No notices required.
eq sumer of notices.

AUG 2 9 2009

dave docketed

Notices muiled by judge’s stoff.

Notified counsel by telephone.

wv | Docketing to mail notices,

v Mail AO 450 form.

docketing deputy Titials

veafe
Copy to judge/magistrate judge. Iwabo rqecend sf
courtroom ’ ~ dace mniled notice
THK deputy’s MO Re
initials
: Dute/time received in
a gsritral Clerk's Office mailing depuly initints

howd



telephone, 215 F.3d 803, 806 (7th Cir, 2000), By contrast, in Collins v. Illinois, adverse
employment action was found where an employee was reassigned to a department with
unclear responsibilities, lost her office, phone and business cards. 830 F.2d 692, 704 (7th
Cir. 1987).

Unlike the employee’s complete removal from her work area and assignment of
new and ill-defined job responsibilities in Collins, Wei remained in her existing work
area, albeit reconfigured, and maintained the bulk of her prior job responsibilities, While
Wei’s changed surroundings may not be so disruptive as to be considered, standing
alone, an adverse employment action, the courts have considered the specific factual
circumstances of a case and the totality of alleged adverse actions in deciding this
question. See Bryson v. Chicago State Univ., 96 F.3d 912, 915-16 (7th Cir. 1996).

In that context the Court considers Wei’s final challenge - whether the assignment
of different CUEs by Dean McCrank was an adverse employment action. The modified
CUE assignment removed supervision and coordination of the archives department from
Wei’s position. (Def.’s LR56.1(a) | 91.) CSU considered this move as a lateral transfer
which Wei does not contest. (/d. at ] 119.) Nevertheless, Wei claims the reduction in
these administrative responsibilities, coupled with a change in her title, equate to a
demotion and adverse action. (P}.’s LR 56,1(b)(3)(A) § 23.) Under CSU’s
reorganization of the archives department, Wei went from a position as the sole archivist
managing the entire spectrum of archival scrvices to one of two archivists now reporting
to a newly created position of Administrative Archivist. (/d.) As with her performance
evaluation, Wei filed a grievance over the change in CUEs. The timing of her
subsequent retirement from the university precluded a resolution of that complaint

11



Wei asserts that she suffered adverse employment actions as a result of the
removal of “various benefits of her work conditions,” a dramatic reversal in the
evaluation of her performance and the failure to assign her the appropriate credit unit
equivalents (CUE) for her position. (Def.’s LRS6,1(a) 9] 67, 85, 99.)

First, Wei contends that an undeserved, negative performance evaluation was
evidence of CSU’s discriminatory conduct. (Def.’s LR56,1(a) § 114.) The Seventh
Circuit has repeatedly held that negative performance evaluations alone do not constitute
adverse employment action. Smart, 89 F.3d at 442, The evaluation must result in some
tangible negative conscquences with regard to the terms and conditions of employment.
Id. Wei prevailed in a grievance of her performance evaluation by Dean McCrank
resulting in its removal from her personnel file. (Def.’s LR56.1(a) J] 110-11.) A
replacement evaluation completed by another CSU Dean documented satisfactory
performance by Wei. CSU’s internal mechanism for addressing this issue effectively
negated any adverse consequence Wei claims to have suffered. Without any tangible
negative conscquence realized as a result of the negative evaluation, it cannot be
considered an adverse employment action.

Second, with regard to her work conditions, Wei claims that the transfer of her
assistant and the conversion of the archive reading room to a multi-use conference room,
the rclocation of a copier and the transfer of fifty five book cases into the archives work
area were discriminatory actions taken by CSU on the basis of her sex and national
origin. (Def.’s LR56.1(a) 4 49, 51, 71; Pl.’s LR56.1(b)(3)(A) {¥] 74-75.)

In Place v. Abbott Laboratories, the Seventh Circuit found no adverse
employment action where the employee lost her supervisory responsibilities, office and

10


opposing the motion must provide a concise response to the movant’s statement which
shall contain, in the case of disagreement, “specific references to the affidavits, parts of
the record, and other supporting materials relied upon.” LR56.1(b)(3)(A). Local Rule
56.1 provides that unless factual disagreements are controverted with appropriate cite to
the record by the opposing party, all material facts as set forth by the moving party will
be deemed admitted, Jd. “The Seventh Circuit has repeatedly upheld the strict
enforcement of these rules.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.
1994),

CSU moves to strike Wei’s response to {{] 11, 23, 38, 58, 64, 68, 70, 74, 75, 84,
100, 105, 107 and 153 of CSU’s Local Rule 56.1(a) Statement of Facts for failure to
comply with the rule’s requirements. CSU alleges that these responses are unsupported
by a cite to the record, constitute conclusory opinions of the plaintiff or fail to admit or
deny the specific statements of fact. (PI.’s Mot. Strike fff 3-13.) The Court finds that in
many inslances Wei’s responses have failed to comply with the local rule as to several of
the challenged paragraphs. However, even if the Court were to consider Wei’s deficient
tesponses as having complied with LR 56.1, the Court would still grant CSU’s Motion

for Summary Judgment. Accordingly, the Court denies as moot CSU’s Motion to Strike.

IL. Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper
“if the pleadings, depositions, answers to interrogatories, and admissions on filc, 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.” In determining

7



taken by the defendant . . . are calculated to “squeeze” plaintiff into retirement.” (dd.)

To state a claim for constructive discharge, the plaintiff must show that working
conditions were so intolerable as a result of unlawful discrimination that a reasonable
person would be forced to resign. Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996).
Working conditions “must be even more egregious than the high standard for [a] hostile
work environment.” Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir.
2000).

Constructive discharge has been found where plaintiff's boss brandished a pistol
and held it to plaintiff's head and constantly made racist remarks. Taylor v. Western & S.
Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992). The Seventh Circuit also found
constructive discharge where an employer packed an employec’s office contents and
moved it to storage, disclosed to the employee a plan for her termination and created a
gencral environment hostile to the cmployee’s religious beliefs. EEOC v Univ, of
Chicago Hosps., 276 ¥.3d 326, 332 (7th Cir. 2002).

Wei’s claim of a hostile work environment includes as a basis for her constructive
discharge McCrank’s remarks that she consider retirement or transfer; that her
contributions to the archives were minimal and that her performance was lacking, In
addition, she points to the cffects of the reorganization - her change in title and
responsibilities; the alteration of the archives space and the loss of her assistant as the
impetus for her forced retirement. As this Court has found the statements and actions
cited by Wei have not risen to the level of a hostile work environment, by default they
are insufficient to mect the higher standard of egregious behavior required to support a
claim of constructive discharge.

21



that his actions were motivated by a discriminatory intent based on her sex and national]
origin. (Def.’s LR56.1(a) 9] 76, 77.)

Wei’s first formal meeting with McCrank was held on August 30, 2000. (fd. 4
52.) Wei claims she was repeatedly, verbally attacked and told by McCrank that she and
Bond were paid $150,000 annually and that they had contributed very little to the
archives over the last fifteen years. (/d.) Following this meeting, Wei wrote a memo on
September 11, 2000 to McCrank expressing her displeasure with his remarks and her
perception that she was being attacked. (Jd. J] 53, 54.) Her memo concluded with an
inference that his attacks were motivated by a discriminatory attitude toward her based
on race, gender and ethnicity. (/d. 53.)

On September 19, 2000, McCrank wrote a memo to Wei in an attempt to correct
what he perceived was a misrepresentation of his remarks and to establish objectives for
the archives while her job description and credit unit equivalency (“CUE”) assignment
were under reconsideration. (/d. 58.) McCrank concluded his memo with a denial of
any bias based on race, gender or ethnicity, stating his judgment focused on her technical
and professional competence. (Def,’s Ex. D, Mem. from McCrank to Wei of 9/19/00 at
3)

This generated yet another memo from Wei in which she attempted to clarify
points from McCrank’s memo of September 19, 2000 and dispel any inference that she
was not capable of performing the job of archivist. (Pl’s LR56.1(b)(3)(A) 58.) Wei

acknowledged that during the August mccting, McCrank made no statements about her

2 «4 credit unit equivalence (CUE) is the credit a faculty member receives toward his/her workload for an instructional

3



distinctions within their respective job duties as librarians serving different areas within
LIS, (Def.’s Mot. Summ. J. at 8-9.) Common sense dictates, however, that an employee
occupying a unique position, such as existed here, can draw from a wider, yet
comparable, circle of employees to establish this element of the prima facie case.

Wei’s discrimination claims are based on national origin and sex. Because she
has identified two similarly situated female cmployees as having been more favorably
treated, she has failed to present similarly situated employees not in her protected class
with regard to her gender discrimination claim and accordingly that claim must fail. As
the two employees are not Asian, the analysis of disparate treatment procceds on the
basis of national origin only.

Wei asserts that Kathy Matlin received a more favorable evaluation than she did
from Dean MeCrank. (Def.’s LR5S6.1(a) ff] 144, 147.) Additionally, Wei identifies
Beverly Meyers as having been more favorably treated as the recipient of Wei’s
transferred assistant, Beverly Bond. (Def.’s LR56.1(a) { 78; Def.’s Ex. D, Wei Dep. at
60.) Superficially, a poor evaluation and loss of her only assistant would be viewed as
less favorable treatment of Wei, notwithstanding a legitimate basis for it. Because CSU
limits its argument on this element to the differences in job responsibilities between Wei
and the similarly situated persons identified, CSU has not addressed whether either
Matlin or Meyers were treated more favorably.’ Thus, in viewing all facts and justifiable
inferences therefrom in a light most favorable to the plaintiff, the Court finds that Wei

has identified similarly situated employees outside of her protected class who have been

CSU states that Bond was transferred bascd on her computer skills, interest in carly child development and
department need. However, they do not address Wei’s need or the impact the loss of staff would have on the archives
to demonstrate this action was not more favorable treatment of Meyers.

14



construction of a new library facility that resulted in changes to the work conditions and
position of the University Archivist. (Def.’s LR56.1(a) ff 10, 12, 14, 118.) Wei does
not contest that McCrank was charged by CSU with the responsibility for the LIS
restructuring. (P1.’s LR56.1(b)(3)(A) { 10.)

The alteration of space and the modifications to staff CUE assignments were not
limited to Wei alone. (Def’s. LR56.1(a) § 160.) Adjustments were made to the CUE
assignment for faculty librarian, Beverly Meyers, as well. (/d.) CSU, in support of its
position that the actions taken were directed at the library including the archives and not
at Wei personally, references the letter from Kathy Matlin, librarian and faculty union
representative, to the EEOC expressing the entire library faculty’s concerns regarding
various position postings and search procedures undertaken by McCrank. In the face of
this broader staff dissatisfaction with McCrank’s approach, Wei provides no evidence
which links the changes to her particular position responsibilities to a discriminatory
motive based on her sex or national origin.

While the parties dispute whether the archives were deficient in operation, Wei’s
response to the Motion for Summary Judgment states “the constraints around the
University Archives/Records Management operations were, and arc, very simple: lack of
money, lack of personnel and lack of space.” (P1.’s Mem. Opp’n Summ. J. at 24.)
Wei’s own comment supports the non-discriminatory reason offered and the attention
CSU was placing on the library and archival restructuring and facility renovation.

Wei states in response to CSU’s contention that the archives did not meet
appropriate standards that “[t]he archives cannot be functional nor can it provide better
and satisfactory serviccs to its patrons if the operation is deficient.” (PI.’s

16



Tn August 2000, CSU hired Dr. Lawrence McCrank (“McCrank”) as Dean of
Library and Learning Resources later renamed Library & Information/Leaming &
Instructional Services (“LIS”). (/d. 4 9.) McCrank was responsible for reorganizing,
restructuring and administering the LIS and library facility, which includes the archives.
(id. 4" 10, 11.) Wei reported directly to McCrank in his capacity as Dean. (Jd. {| 37.)
During this time the University was also constructing a new library facility. (/d. ] 12.)

As a result of the reorganization plan, the archives staff was to be expanded from
Wei and her assistant, Beverly Bond, to include an archives administrator, records
management associate and student aides. (/d. 4 23.) CSU initiated recruitment for the
administrative archivist sometime between June and September of 2001. (/d. 24; Pl.’s
LR56.1(b)(3)(A) J 24.) In September 2001, prior to the hiring of additional staff, Bond
was transferred to another librarian Icaving Wei as the sole employee assigned to the
archives, (Def.’s R56.1(a) ff] 25, 78.) Wei perceived the loss of her assistant as an
example of McCrank’s unlawful discriminatory treatment of her. (/d. ] 78; Def.’s Ex. D,
Wei Dep. at 60; Def.’s Ex. D, Letter from Wei to Lopardo of 12/11/01 at 2.)

Tn addition to the staff changes, McCrank reorganized library space which
affected the archives. (/d. 420.) Due to a shortage of meeting space, he converted the
archives reading room into a multi-use public conference room and relocated fifty-five
bookcases from special collections into the archives work area. (Jd. J 69, 74.)
According to Wei, these changes, along with the relocation of a copier, resulted in
compromises to the convenience and functionality of the archives. (PI.’s
LR56.1(b)(3)(A) 4 75.) Although Wei acknowledged that it was within McCrank’s

responsibilities to carry out these changes under the reorganization plan, she contends

2



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

CKETED
MONA WE1, ) DO
) AUG 2 9 2003
Plaintiff, )
)
v. ) 01 C 7509
)
CHICAGO STATE UNIVERSITY, ) Judge Ronald A, Guzman
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Plaintiff, Mona Wei (“Wei”) has sued Chicago State University (“CSU”), her
former employer, and alleges employment discrimination, retaliation and hostile work
envitonment on the basis of national origin and gender in violation of Title VII, 42
U.S.C. § 2000¢ et seg. (1994).' CSU has moved for summary judgment pursuant to Fed.
R. Civ. P. 56. For the reasons provided in this Memorandum Opinion and Order, the

Court grants CSU’s motion.

FACTS
Unless otherwise noted, the following facts are undisputed. Mona Wei is a
Chinese-American female hired by CSU in 1967 as a catalog librarian. (Def.’s
LR56,1(a) 9 32.) From 1985 until her retirement in July 2002, Wei was assigned to the

CSU archives during which time she attained the rank of full professor. (Jd. J] 33, 36.)

'This Court dismissed Wei's ADEA claim on June 24, 2002,

3\



through internal channels. (/d. at § 98.)

Lateral transfers, which do “not involve a demotion in form or substance, cannot
rise to the level of a materially adverse employment action.” Williams v. Bristol-Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996), While Wei suffered no loss in pay or
material benefits, the question is whether the change in job responsibilities is a demotion
in form.

In Bryson v. Chicago State University, the court found an adverse employment
action where a tenured professor lost her title and was banished from committee work.
96 F.3d at 915-16. The court considered the “indicia of job status and reward” in an
academic setting, noting that the contcxt of this environment may confer prestige and
importance on factors that would not be so construed in other venues. Jd. at 916.

Similarly, the transfer of the plaintiff, a consulting librarian, in Collins, noted
supra, was considered a demotion based upon an unclear job assignment, loss of
responsibility for specific projects and her listing as a library consultant in professional
publications. 830 F.2d at 704. The Collins court, as in Bryson, gave weight to these
indicia of job status in finding adverse employment action. /d.; Bryson, 96 F.3d at 915-
16, These cases stand in contrast to the posture adopted in Place, discussed supra. See
Place, 215 F.3d at 810. The Place court held there was no adverse employment action
despite similar circumstances - a change in job responsibilities; loss of a supervisory
position and less desirable working accommodations. Jd.

Wei’s change in title and the concomitant loss of her administrative
responsibilities are characteristic of the types of actions found sufficient in Collins and
Bryson to constitute adverse employment action. Collins, 830 F.2d at 704, Bryson, 96

12



more favorably treated,

3. Pretext

Assuming a prima facie case is established, the burden of production shifis to the
defendant to provide a legitimate, nondiscriminatory reason for its actions, Stutler v,
Illinois Dep't of Corr., 263 F.3d 698, 702 (7th Cir. 2001). If the defendant sustains this
burden, the plaintiff must provide evidence that the reason was a mere pretext for the
employment action. Jd. “{A] reason honestly described but poorly founded is not a
pretext as that term is used in the law of discrimination,” Kariotis v. Navistar Int'l
Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997), The proffered reason must be factually
baseless, not the actual motivation for the action, or insufficient to motivate the action.
Jackson v. E.J, Brach Corp., 176 F.3d 971, 983 (7th Cir, 1999).

The Seventh Circuit in Abioye v. Sundstrand Corp, granted summary judgment
for a Title VII defendant, regardless of whether a prima facie case had been established,
based on plaintiff's failure to create a genuine issue of material fact as to age, race and
national origin discrimination. 164 F.3d 364, 368 (7th Cir. 1998). The court stated
““when the defendant has proffered an explanation for [its actions] that the court
determines to be non-pretexual, the court may avoid deciding whether the plaintiff has
met his prima facie case and instead decide to dismiss the claim because there is no
showing of pretext.” /d.

Although Wei has established a prima facie case of discrimination, CSU has
offered a legitimate, non-discriminatory reason for its actions. In August 2000, CSU

undertook a restructuring and reorganization of its library services concurrent with the

15