Herring spoke with Blackmond, who informed Herring that Myart had told her about Battle’s
comment as he exited the bathroom. Blackmond told Herring that Myart responded, “I don’t care.
(ll cut the mother-fucker off.” Blackmond also told Herring that Myart told her “[Battle] is going
to be suspended.” Thereafter, Herring spoke with Helmer Burrows, a security officer, who informed
Ilerring that Myart had told her that she had made a sexual harassment complaint against Battle and
“|t}hat [the] mother fucker is going to be fired.” Herring had warned Myart in the past about
inappropriately discussing sensitive matters.

Herring did not work on January 14 and 15,2001. Upon his return to work, Herring notified
Judith Talbott, Director of Human Resources, of Myart’s complaint. As Myart was not scheduled
to work again until January 17", Herring and Talbott attempted to call Myart at home twice, but were
unsuccessful in reaching her.

At Herring’s request, Myart prepared an incident report recounting Battle’s comment as he
exited the men’s bathroom, as well as other incidents that occurred during the prior week. In the
incident report, Myart complained that Battle asked Myart to “sit on my lap and whatever comes up
we will talk about.” Myart also complained that Battle told her, “you better watch out before I stick
you” after she accidently touched him. Myart interpreted Battle’s comment to mean that he was
going to stick her with his penis. Myart relayed that Battle had told a co-worker in her presence,
“don’t lick your tongue out like that, it makes me horny.” Battle then told the co-worker to “go and
pick up her black [drawers],” meaning “underwear.” Myart complained that Battle’s comments

made her feel uncomfortable.


evidence in Myart’s favor, a reasonable jury could find Myart sincerely and reasonably believed that
Battle’s sexual comments over the one week period leading up to her complaint violated Title VI.
2. Adverse Employment Action

Doubletree next argues that Myart’s first suspension with pay is not an adverse employment
action under Title VII. An adverse employment action “constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus.,
Inc. y. Ellerth, 524 U.S. 742, 761 (1998). In most cases, a tangible employment action inflicts direct
cconomic harm. /d. Therefore, reprimands and poor performance reviews are not considered
adverse employment actions for purposes of Title VII. See, ¢.g., Oest v. Illinois Department of
Corrections, 240 F.3d 605, 613 (7th Cir. 2001)(oral and written reprimands); Smart, 89 F.3d at 442
(negative performance reviews).

Myart’s suspension without pay is similar to the progressive discipline found not to be an
adverse employment action in Oest and Smart. Indeed, Myart does not provide any evidence that
the suspension with pay significantly changed her employment status through economic harm or
otherwise. Without such evidence, Myart cannot prove a prima facie case of retaliation based on
the suspension with pay. However, Myart can prove the second element of her retaliation claim
through her subsequent suspension and termination. See Worth, 2001 WL 1657331, at *12 (“there
is no question that termination constitutes an adverse action under Title VII”).

3. Causation
In order to shift the burden of production to Doubletree, Myart must also establish a causal

connection between the protected activity and the adverse employment action. The timing of the


Spalla, Herring and Talbott compared the handwriting on the Nacore shipping forms with Myart’s
handwriting and determined Myart had completed the Nacore shipping forms.

Herring confronted Myart with the Nacore shipping forms. Myart admitted that she
completed the tracking numbers on the UPS form, but did not recognize the shipping forms. Myart
is not certain whether her handwriting appears on the forms, but admits it is possible that it is her
handwriting. In consultation with Spalla and John Powers, General Manager, Talbott and Herring
suspended and ultimately terminated Myart’s employment for the shipping error, as well as her prior
performance record.

DISCUSSION
1. Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. National Human Resource
Committee, Inc., 218 F.3d 719, 723 (7" Cir. 2000). Once a moving party has met its burden, the non-
moving party must go beyond the pleadings and set forth specific facts showing there is a genuine
issue for trial. Fed. R. Civ. P. 56 (e); Silk v. City of Chicago, 194 F.3d 788, 798 (7" Cir. 1999). The
court considers the record as a whole and draws all reasonable inferences in the light most favorable
to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7" Cir. 2000).
A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7" Cir, 2000). The summary judgment standard

is applied with special scrutiny to employment discrimination cases because the outcome may


On January 19, 2001, Herring and Talbott met with Battle in Talbott’s office. Battle admitted
he made the comment as he exited the men’s bathroom. Herring and Talbott suspended Battle for
three days without pay for improper conduct.

That same day, Herring and Talbott met with Myart. During the meeting, Myart denied
making the comment to Battle. Herring did not believe Myart’s denial. Herring and Talbott
suspended Myart for three days with pay for breach of confidentiality and using profane language.

On January 23, 2001, Janine Silzer, Senior Catering Manager, received a telephone call from
Berretta Davis, Program Coordinator for Nacore International. Davis informed Silzer that
Doubletree had shipped computer items for Nacore in November 2000, but had failed to insure the
items for $3,500.00 each as requested, The computer items were damaged during shipping, resulting
in a $943.40 loss. Davis told Silzer that she had been working with the shipper, United Parcel
Service (“UPS”), to resolve the matter, but had been unsuccessful. Davis asked Silzer to look into
the matter. That same day, Silzer contacted Cara Spalla, Assistant General Manager, to inform her
that the Nacore goods had been damaged during shipment. Davis’ telephone call was the first time
that Silzer and subsequently, Spalla, became aware of the problem with the Nacore shipment.

The Nacore Shipment Request Form indicated Nacore had requested that two boxes be
insured for $3,500.00 each. The UPS billing forms indicated that Doubletree had failed to insure
the items. Spalla asked Herring to identify the security officer who was responsible for completing
the Nacore shipping forms. At that time, Spalla informed Herring some disciplinary action must
be taken against the employee at fault.

Herring determined Myart was the only security officer on duty on November 3, 2000, who

could complete shipping and receiving forms. Both Spalla and Herring notified Talbott of the issue.

w


practice under Title VII. An actual violation of Title VII by the employer is not a prerequisite for
a retaliation claim. Hamner v. St. Vincent Hospital and Heath Care Center, 224 F.3d 701, 706 (7th
Cir. 2000). The employee need only have a sincere and reasonable belief that she is challenging
conduct covered by Title VII. Id.

Sexual harassment is actionable under Title VII only if it is “so ‘severe or pervasive’ as to
“alter the conditions of the victim’s employment and create an abusive working environment.” Clark
County School District v. Breeden, 121 8.Ct. 1508, 1509 (2001), quoting Faragher v. Boca Raton,
524 U.S. 775, 786 (1998). “Workplace conduct is not measured in isolation; instead ‘whether an
environment is sufficiently hostile or abusive’ must be judged ‘by looking at all the circumstances,
including 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 employce’s work performance.” /d., quoting Faragher, 524 U.S. at 787-88. There is no magic
number of incidents required to establish a Title VII hostile environment sexual harassment claim.
Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000). Even one act suffices if
egregious. Id.

Doubletree admits in its Rule 56.1 statement of facts (“Def. Facts”) as well as its response
to Myart’s Rule 56.1 statement of additional facts (“Def. Resp.”) that Myart “lodge{d] a sexual
harassment complaint” and notified her supervisor “immediately following the sexually harassing
remark of January 13, 2001.” Def. Facts, Section III; Def. Resp., §31 (emphasis added). Thereafter,
Myart submitted a written complaint detailing four more comments made by Battle during the week,

including one instance where Battle threatened to “stick” Myart with his penis. Construing all


Minute Ores Fos (697)
VP States District Court, Northern District of Ilinois

ee
Midge

Sitting Judge if Other

Suzanne B. Conlon d
than Assigned Judge

CASE NUMBER

01 C 4083 DATE 1/16/2002

CASE VANESSA MYART vs. DOUBLETREE HOTELS CORP.
TITLE
[{n the following box (a) indicate the party filing the motion, ¢.g.. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]

DOCKET ENTRY:

(ap) oO Filed motion of [ use listing in “Motion” box above.]
(2) QO Brief in support of motion due
(3) oO Answer brief to motion due Reply to answer brief due_.
(4) o Ruling/Hearing on set for at
(3) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[hetd/continued to] [set for/re-set for] on set for at
(7) Oo ‘Trial{set for/re-set for] on at
(8) O {Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
ClFRCP4(m) O General Rule21 OO FRCP41(ay(1) OC FRCP41(a)(2).
(io) soil [Other docket entry] | Doubletree’s motion for summary judgment [10-1] is granted. ENTER
MEMORANDUM OPINION AND ORDER.
dl) [For further detail see order attached to the original minute order.
No notices required, advised in open court. Document
Number
No notices required. umber of maies
AS | Notices mailed by judge's staff,
. JAN 1 7 2002
Notified counsel by telephone, date docketed
Docketing to mail notices. 8)
Y | Mail AO 480 form. dockasihs dey nits DE
Copy to judge/magistrate judge. —_ —
2 Wore

date mailed notice

courtroom
. ° Pte
deputy's O2 TES

initials

an
SB Pa ergs an

Date/time received in
central Clerk's Office

nailing deputy initiats



of Community Affairs v. Burdine, 450 U.S. 248,256 (1981), Worth, 2001 WL 1657331, at *12. “The
indirect method requires some showing that (1) the defendant’s explanation has no basis in fact or
(2) the explanation was not the real reason, or (3) the reason stated was insufficient to warrant the
termination.” Worth, 2001 WL 1657331, at *12. Myart has not presented any direct evidence of
pretext. Therefore, Myart bears the burden of showing that Doubletree lied about its reasons for
terminating her.

Myart fails to offer any evidence that Doubletree did not honestly believe that she was
responsible for the $943.40 loss resulting from the Nacore shipping error. Myart herself admitted
that Talbott and Herring believed that she was responsible for the mistake. (Def. Facts, § 51). Even
more telling, however, is the fact that Myart does not deny making the error. To the contrary, Myart
admits that she completed the tracking numbers on the UPS form. Myart also admits that the
handwriting on the shipping documents may be her handwriting.

Moreover, Myart has not produced evidence that Doubletree treated any employee differently
for committing a similar error. See Johnson y, West, 218 F.3d 725, 733 (7th Cir. 2000)(pretext may
be shown by evidence that other similarly situated employees outside protected class committed
similar infractions but were not similarly disciplined). Although Myart claims that other employees
committed similar shipping mistakes, but were not terminated, she fails to demonstrate that either
Herring or Talbott were aware of the mistakes and failed to take corrective action. Without this
necessary link, Myart cannot establish that Doubletree treated similarly situated employees
differently.

Nevertheless, Myart presented evidence that her performance prior to her complaint may not

have been the real reason for her termination. In fact, Doubletree concedes that “Herring testified

11


discharge may provide the necessary causal nexus. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446,
1458 (7th Cir. 1994). A close temporal connection between the two events “is generally enough to
satisfy the third element of the prima facie test.”. McClendon v. Indiana Sugars, Inc., 108 F.3d 789,
797 (7th Cir. 1997). Additional proof is necessary only when the inference of retaliation is
weakened through the passage of time. Oe¢st, 2340 F.3d at 616.

Myart verbally complained on January 13, 2001. Doubletree received Myart’s written
complaint on January 19, 2001. On January 26, 2001, Doubletree suspended and ultimately
terminated Myart’s employment effective January 29, 2001. The short period of time that expired
between Myart’s complaint and ultimate termination, which also included Myart’s first 3-day
suspension, is sufficient to provide the causal connection required to establish a prima facie case of
retaliation.

B. Legitimate Non-Discriminatory Reason

Myart does not dispute that Doubletree offered legitimate non-discriminatory reasons for
Myart’s termination. Doubletree claims that Myart was terminated for a shipping error, which
resulted in a $943.40 loss to Doubletree, coupled with Myart’s history of poor performance. The
burden then shifts back to Myart to show that Doubletree’s reasons for her termination are pretextual.
Cc Pretext

When an employer offers multiple reasons for its employment decision, the employee must
show that all of the proffered reasons are pretextual. Ghosh v. Indiana Dep't of Environmental
Memt., 192 F.3d 1087, 1091-92 (7th Cir. 1999), Myart may establish pretext either directly, by
showing Doubletree’s decision to terminate was more likely than not motivated by discriminatory

reasons, or indirectly, by showing that Doubletree’s reasons are unworthy of belief. See Texas Dep't

10


depend on determinations of credibility and intent. Michas v. Health Cost Controls of Illinois, 209
F.3d 687, 692 (7" Cir. 2000).
Il. Myart’s Retaliation Claim

Title VII prohibits employers from retaliating against employees who oppose allegedly
discriminatory practices. See 42 U.S.C. § 2000e-3(a). In order to prevail on a claim of retaliation,
Myart must offer either direct evidence or indirect evidence of retaliation. Smart v. Ball State
University, 189 F.3d 437, 439 (7th Cir. 1996). As Myart does not offer any direct evidence of
retaliation, Myart must prove her case indirectly under the burden-shifting method set forth in
McDonnell Douglas.
A. Prima Facie Case

To establish a prima facie case of retaliation under Title VII, Myart must show that (1) she
engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3)
a causal connection exists between the protected expression and the adverse action. Worth v. Tyler,
2001 WL 1657331, at *11 (7th Cir. Dec. 27, 2001). If Myart establishes a prima facie case, the
burden of production shifts to Doubletree to produce a legitimate, non-discriminatory reason for the
adverse employment action. /d. If Doubletree sets forth a legitimate justification, the burden then
shifts back to Myart to prove that Doubletree’s reason is a mere pretext for retaliation. /d. The
ultimate burden of persuasion remains at all times with Myart. Si. Mary’s Honor Center v, Hicks,
509 U.S. 502 (1993).
1. Statutorily Protected Expression

Doubletree contends that Myart cannot establish the first element of her prima facie case

because she could not have reasonably believed that she was opposing an unlawful employment


shift. On July 15, 2000, Doubletree issued Myart a written warning for excessive tardiness.
Doubletree also placed Myart on a 90-day warning period, instructing her to “report to work on time,
complete all work assignments on time, [and] comply with [Doubletree] Policy at all times.”

On September 23, 2000, Herring completed a performance review for Myart. Herring noted
that Myart’s performance in the areas of attendance, report writing, flexibility and security
department procedures “continue[d] to fall below the required standards.” Herring then placed
Myart on probation for 30 days.

On October 19, 2000, Myart was 30 minutes late fora mandatory staff meeting. She received
a written warning for her tardiness indicating that her next violation would result in a 3-day
suspension. On December 11, 2000, Myart failed to notify Doubletree of her absence two hours
before the start of her scheduled shift. Herring issued Myart a written warning rather than
suspending her employment because a severe snowstorm also delayed other employees.

On January 13, 2001, Myart, who was working at the security desk, called fellow security
officer Clarence Battle over the radio to retrieve an item from the lost and found. Battle exited the
men’s bathroom near the security desk and stated “girl, you caught me while I still had my thing in
my hand.” At the time, Tyesha Blackmond, former desk attendant, was near the security desk.

When Herring walked by the security desk, Myart immediately complained to Herring that
Battle had been “sexually harassing her.” Shortly after speaking with Myart, Herring spoke with
Battle, who admitted he made the comment. Battle also informed Herring that Myart had responded
by telling him she would “cut the mother fucker off,” meaning Battle’s penis. Battle denied making
any other inappropriate comments to Myart or any other co-worker. Herring informed Battle that

he would investigate the matter, but that Battle would most likely be suspended.


Myart’s responses to paragraphs 12, 28, 29, 30, 33, 34, 44, 46, 48 and 51 fail to cite to record
evidence supporting the denials. Myart’s denials of paragraphs 42, 43, 45, 49 and 52 are similarly
flawed as they are based, in whole or in part, on unauthenticated documents lacking the requisite
foundation. See Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000)(evidence submitted
at summary judgment must be admissible at trial under Federal Rules of Evidence). Accordingly,
Doubletree’s factual statements are deemed admitted to the extent that Myart’s denials fail to comply
with Local Rule 56.1.

Il. Facts

All facts are undisputed unless otherwise noted. Doubletree hired Myart as a security officer
for its Chicago hotel in April 1999. As a security officer, Myart’s duties included observing the
lobby area of the hotel, attending to individuals with medical issues, patrolling hotel stairwells and
floors, making keys and name tags for co-workers and shipping guest items. During the relevant
time period, Randy Herring, Director of Safety and Security, was Myart’s direct supervisor.

In November 1999, Herring completed a 90-day performance evaluation for Myart, which
was delayed “in order to provide [Myart] with some additional training and [to] improve [her]
overall evaluation scores.” Although Myart was given an additional three months to improve her
performance, she continued to be late for work, was unprepared for the start of her shift, failed to
maintain her post in the hotel lobby and took excessive breaks. Herring placed Myart on probation
for 30 days as a result of her poor performance. Myart thereafter improved her performance.

On July 2, 2000, Herring’s supervisor, Pat Liston, Director of Engineering, issued Myart a
verbal warning for violating Doubletree’s policy requiring a security officer to provide two hours

notice of an absence. Myart reported her absence five minutes prior to the start of her scheduled


DOCKETED

IN THE UNITED STATES DISTRICT COURT JAN 19 2007
la

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
VANESSA MYART )
Plaintiff, No. 01 C 4083
v. } Suzanne B. Conlon, Judge
DOUBLETREE HOTELS CORP. }
Defendant. }
)

MEMORANDUM OPINION AND ORDER

Vanessa Myart (“Myart”) sues Doubletree Corporation (“Doubletree”) for retaliation in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e ef seq.
Doubletree moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.

BACKGROUND
I. Local Rule 56.1

Local Rule 56.1 requires litigants to follow a detailed procedure in filing and responding to
summary judgment motions. In response to a motion for summary judgment, Local Rule 56.1
requires the non-moving party to submit a response “to each numbered paragraph in the moving
party’s statement [of material facts], including, in the case of any disagreement, specific references
to the affidavits, parts of the record, and other supporting materials relied upon”. Local Rule
56.1(b)(3)(A). All relevant facts denied without supporting documentation must be accepted as true.
Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000); Local Rule

56.1(b)(3)(B).

De


that prior to [Myart’s] complaint he had no intention of terminating her” for her prior performance
problems. (Def. Resp., p. 3). However, Myart has not established that Doubletree’s reasons for
terminating her are so “intertwined” or “so fishy” as to call into doubt Doubletree’s belief that the
shipping error justified Myart’s termination. See Wolfv. Buss America, Inc., 77 F.3d 914, 923 (7th
Cir, 1996), citing Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir. 1995). Therefore, Myart has
ultimately failed to carry her burden of establishing pretext.

CONCLUSION

Doubletree’s motion for summary judgment is granted.

January 16, 2002 ONE

Net 13 Corby

Suzahne B. Conlon
United States District Judge

12