elements, AAM may still be entitled to summary judgment if it
“presents unrebutted evidence of a noninvidious reason for the
adverse action.” Id.

Once again, the parties clash over whether Gunning-Sluby
suffered an adverse employment action after she filed her
discrimination charge and her lawsuit. Gunning-Sluby argues that she
was constructively discharged by AAM in retaliation for her actions.
Constructive discharge, however, requires that Gunning-Sluby
establish two prongs: “First, a plaintiff needs to show that [her]
working conditions were so intolerable that a reasonable person would
have been compelled to resign. Second, the conditions must be
intolerable because of unlawful discrimination." Simpson v.
Borg-Warner Auto., Inc., 196 F.3d 873, 877 (7th Cir. 1999) (internal
quotation marks and citation omitted). The Seventh Circuit has found
constructive discharge in cases where the plaintiff faced serious
physical threats, see, e.g., Taylor v. W. & S. Life Ins. Co., 966
F.2d 1188 (7th Cir. 1992) (plaintiff's employer placed a gun to
plaintiff’s head, took a photograph of the scene and circulated it at
a company meeting while stating that “this is what a nigger looks
like with a gun to his head”), or where the plaintiff was
relentlessly degraded based on her sex, had her property mutilated
and defaced, and endured male workers exposing themselves to her.
Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007
(7th Cir. 1994). In contrast, the Court found that plaintiffs fell

“well short” of the constructive discharge standard in Drake v. Minn.

- 13 -


a matter of law.” Fesp. R. Civ. Pp. 56(c). A fact is “material” if it
could affect the outcome of the suit under the governing law; a
dispute is “genuine” where 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).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the movant’s claim,
the court must view all the evidence and any reasonable inferences
that may be drawn from that evidence in the light most favorable to
the nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997,
1003 (7th Cir. 2000). Once the moving party has met its burden, the
nonmoving party “may not rest upon the mere allegations” contained in
its pleading, but rather “must set forth specific facts showing that
there is a genuine issue for trial.” Fep. R. Civ. P. 56(e); Becker v.
Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990);
Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.
1989). It “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the
employment discrimination context, summary judgment is warranted
where “the evidence, interpreted. favorably to the plaintiff, could
[not] persuade a reasonable jury that the employer had discriminated
against the plaintiff.” Palucki v. Sears, Roebuck & Co., 879 F.2d

1568, 1570 (7th Cir. 1989).


Indeed, in January 2002, Livney was told to work from home and on
February 15, 2002, Mavrogenes resigned because of the work
environment. Neither Livney nor Mavrogenes had filed EEOC claims or
lawsuits against AAM.

Due to Gunning-Sluby’s failure to establish the basic elements

of a retaliation claim, this Court need not address the

nondiscriminatory reasons that AAM puts forward \s actions.

CONCLUSION
For the reasons set forth above, Aon for Summary
Judgment is granted to Counts I and II.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: Via)


Dep. at 61.) Gunning-Sluby suffered no loss of benefits or salary
and instead received a $10,000..raise with her new position. And
while her new title as Marketing Coordinator was arguably less
prestigious than her COO title that is not sufficient, on its own, to
establish a materially adverse employment action. Crady, 993 F.2d at
136. Without proof of an adverse employment action, Gunning-Sluby
cannot establish a prima facie case of discrimination.

Moreover, Gunning-Sluby essentially ignores the fourth prong of
the McDonnell Douglas test, and provides no evidence that she was
treated differently than similarly situated male employees. She
merely suggests, in her discussion of pretext, that Getman was
similarly situated and treated more favorably than she was. Even if
this Court takes that vague reference as an attempt to establish the
final prong of the prima facie case, it would fail. A plaintiff must
demonstrate that another employee who is “directly comparable to her
in all material respects” was treated more favorably. Patterson v.
Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). In
determining whether an employee is directly comparable for purposes
of this prong, courts look at factors such as experience, education
and qualifications if those factors were considered by the employer
in making its personnel decisions. Id. In the reorganization that
stemmed from the June 2001 Operating Agreement, AAM expanded the COO
role to COO and Deputy Chief Investment Officer, a role that required
someone with investment experience. Getman had an MBA from Columbia

University while Gunning-Sluby had just begun to take classes toward

-9-


F.3d at 886. If AAM is successful, the burden shifts back to
Gunning~Sluby to show that AAM’s proffered reason for termination is
pretextual. Id. Gunning-Sluby need not provide direct evidence of
discrimination, but must merely meet her respective burdens. Id.

AAM does not contest that Gunning-Sluby is a member of a
protected class, or that she performed her job satisfactorily.
Instead, AAM argues that Gunning-Sluby did not suffer the requisite
adverse employment action when she was made Marketing Coordinator
instead of Chief Operating Officer and Deputy Chief Investment
Officer. The determination of whether an employment action is
adverse is fact-specific, however, at a minimum, the job action must
be “materially adverse” and must be “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Crady v.
Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.
1993). Instead, “an employee..must show that material harm has
resulted from... the challenged actions.” Traylor v. Brown, 295
F.3d 783, 788 (7th Cir. 2002) (internal quotation marks omitted). The
Seventh Circuit has provided examples of materially adverse job
actions, including “termination.of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a
particular situation.” Crady, 993 F.2d at 136.

Gunning-Sluby contends that she faced significantly diminished

duties as Marketing Coordinator and that this downward turn rose to

-6-


COUNT I - GENDER DISCRIMINATION

Title VII makes it unlawful for an employer to terminate or
otherwise to discriminate against an employee based on race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2{a). In
Count I, Gunning~Sluby charges. that AAM violated Title VII by
discriminating against her based on her sex.

A plaintiff may prove unlawful discrimination in an employment
discrimination action through either direct evidence of improper
motive or the indirect burden shifting approach set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Gunning-Sluby
chooses to proceed under the indirect method and, therefore, must
first establish a prima facie case of discrimination by demonstrating
that: (1) she was a member of a protected class; (2) she performed
her job according to AAM’s legitimate expectations; (3) she suffered
an adverse employment action; and (4) she was treated less favorably
than similarly situated employees outside of her protected class.
See, e.g., Markel v. Bd. of Regénts of the Univ. of Wisc. Sys., 276
F.3d 906, 910 (7th Cir. 2002); Gordon v. United Airlines, Inc., 246
F.3d 878, 885-86 (7th Cir. 2001). If Gunning-Sluby can show that
“there is some evidence from which one can infer that the employer
took adverse action against the plaintiff on the basis of a
statutorily proscribed criterion,” Leffel v. Valley Fin. Servs., 113
F.3d 787, 793 (7th Cir. 1997), a presumption of discrimination
arises, and AAM must produce evidence of a legitimate,
nondiscriminatory reason for Plaintiff’s termination. Gordon, 246

~5-


AO 450(Rey. 5/85) Judgment in a Civil Case

United States District Court

Northern District of Illinois
Eastern Division

Nancy Gunning-Sluby on JUDGMENT IN A CIVIL CASE
v. Case Number: 02 C 883

Asset Allocation & Management
Company, L.L.C.

oO Jury Verdict. This action came before.the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

Decision by Court. This action came before the Court. The issues have been tried or
heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that the Motion for Summary Judgment by
defendant Asset Allocation & Management Company is granted as to Counts J and UJ.

Michael W. Dobbi erk of Court

Date: 3/11/2003 . Ue
Wanda Parker, Deputy Clerk



her claim that the new job was vague and undefined, Gunning-Sluby
concedes that Fulkerson assigned her specific projects. As COO, she
administered personnel and company polices, oversaw AAM’s small
information technology and accounting departments, monitored the
company’s relationships with vendors, and presided over the
completion of internal financial reports. She had no involvement in
asset management or allocation..for AAM’s clients. As Marketing
Coordinator, Gunning-Sluby was assigned several substantial projects
including the creation of a sales and marketing plan, the
establishment of a competitor database, and the preparation of sales
tracking reports. Moreover, in December 2001, shortly after being
made Marketing Coordinator, Gunning-Sluby was responsible for
organizing an AAM marketing meeting and described herself as being
involved “in the processes” of numerous marketing projects covered in
that meeting. These projects included AAM’s marketing organization,
marketing budget, current and future target markets, commission
schedule, marketing brochures, new hires, process and compliance,
marketing fees, advertising, public relations, and accountability.
Gunning-Sluby offers no further evidence that the job shift
caused her material harm. She states that the Marketing Coordinator
role provided her no opportunity for advancement, but fails to
demonstrate that she had any advancement opportunities as COO which
she subsequently lost. Indeed, Gunning-Sluby does not rebut
Fulkerson’s contention that the sales and marketing areas into which

she was placed were the “key to the future of the firm.” (Fulkerson


7 Minute Osdet Horm (06/97)

\ United States District Court, Northern District of [linois

Harry D. Leinenweber Sitting Judge if Other
than Assigned Judge
CASE NUMBER 02 C 883 DATE 3/11/2003
CASE Nancy Gunning-Sluby vs. Asset Allocation & Management Co.
TITLE

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

MOTION:

DOCKET ENTRY:

() 0 Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) ao Answer brief to motion due___..: Reply to answer brief due.

(4) oO Ruling/Hearing on____sset fort

(5) Oo Status hearing[held/continued to] [set for/re-set for]}on___—sset fora

(6) ao Pretrial conference[held/continued to] [set for/re-set for] on at.
(7) o ‘Trial[sot for/re-set for]on____at

(8) oO [Bench/Jury trial] [Hearing] held/continued to, ——at__

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) © Local Rule 41.1 CIFRCP41(a)(1) OO FRCP41(a)(2).

(0) [Other docket entry] © ENTER MEMORANDUM OPINION AND ORDER: Defendant Asset
Allocation & Management Company’s Motion for Summary Judgment is granted to Counts I and II.

(dl) (For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
Number
No notices requived

umber of notices

Notices mailed by judge's st

“ MAR 12 2603 |

Notitied counsel by telephone.

Y | Docketing to mail notices.

J | Mail AO 430 form. LYNOD LOIWISIa “sn
WHI

Copy to jucdge/magistrate judge.

Tel HH ¢1 UvH eU sai af

courtvoom,

WAP deputy’s
aac

Gaaftstedted ts

central Clerk’s Office nailing deputy initials



its actions, however, she cannot prove pretext, even if those reasons
are “foolish or trivial or even baseless.” Gordon, 246 F.3d at 889
(internal quotation marks omitted). Gunning-Sluby attempts to
demonstrate pretext by arguing that: 1) she was placed in the COO
position to restructure the firm; 2) AAM’s former partners saw her as
a perfect choice for COO; 3) Getman’s poor performance as COO and
subsequent removal from the position demonstrated that he was
unqualified; 4) Hoyt and Fulkerson provided conflicting reasons for
hiring Getman; and 5) AAM has a history of sexual discrimination.
None of these arguments is persuasive.

First, Gunning-Sluby was placed in the COO position and was
viewed as a “perfect choice” for that position before the problems
between Hoyt and Mavrogenes arose, and before AAM expanded the COO
position to include investment management responsibilities. Second,
at the time Getman was hired, it was perfectly reasonable, based on
his impressive resume and on recommendations from others, for AAM to
believe that he was highly qualified. Third, Hoyt and Fulkerson
offered different reasons for hiring Getman, but these reasons were

neither mutually exclusive nor contradictory.! Finally, Gunning-~

? Gunning-Sluby argues that Fulkerson’s actual motive, to hire a man as
coo, is supported by his alleged comment that he wanted someone with “less hair.”
According to Plaintiff’s deposition, however, Fulkerson’s actual statement was
that he wanted to “bring someone else into the mix to alleviate the problems that
were going on” and that he felt he needed someone with “gray hair or less hair.”
(Pl. Dep. at 178.) No reasonable juror could infer from these comments that
Fulkerson was intent on hiring a male COO, “Gray hair” is not a gender-specific
description, and as Gunning-Sluby concedes, simply means someone older than her,
which Getman was. In this context, “less hair” means, at most, a balding male,
another way of indicating that Fulkerson wanted someone older or with more
experience as COO and Deputy Chief Investment Officer. Standing alone, an
unlikely interpretation of a fragment of Fulkerson’s comments is not sufficient

-11-


an MBA. Getman had twenty years of asset management and investment
experience and had served as.the COO of a large corporation.
Gunning-Sluby had no experience in asset management or investment
either in her position as COO or elsewhere. Getman, unlike Gunning-
Sluby, was also new to AAM and brought with him a helpful distance
from the problems between Hoyt and Mavrogenes. Getman and Gunning-
Sluby were not similarly situated candidates for the COO and Deputy
Chief Investment Officer position.

By failing to satisfy these.two prongs of the McDonnell Douglas
test, Gunning-Sluby has failed to establish a prima facie case of
discrimination. Even if Gunning-Sluby had cleanly hurdled the prima
facie barrier, however, she would have stumbled at the pretext stage.
As discussed, AAM explains that it hired Getman because it needed an
outsider with corporate management experience to handle the internal
turmoil, and because Getman, unlike Gunning-Sluby, had an MBA and
experience managing company assets. It placed Gunning~Sluby in the
Marketing Coordinator position because she had extensive marketing
experience and the respect of the warring parties in the marketing
department.

Gunning-Sluby may show that these reasons are pretextual by
“presenting evidence tending to prove that [AAM’s] proffered reasons
are factually baseless, were not the actual motivation for the
{action] in question, or were insufficient to motivate the [action].”
Nawrot v. CPC Int’l, 277 F.3d 896, 906 (7th Cir. 2002) (internal

quotation marks omitted). If AAM “honestly believed” its reasons for

- 10 -


the level of an adverse employment action. She argues that she went
from having clearly established responsibilities over almost all
areas of AAM to playing a vague and undefined role in the single area
of marketing, an area her supervisor knew she did not like. Gunning-
Sluby further asserts that her new position stymied her opportunities
for advancement as Fulkerson, her Marketing Coordinator supervisor,
was both temporary and rarely available. In support of her claim,
Gunning~-Sluby cites several cases in which the Seventh Circuit found
a reduction in material responsibilities severe enough to constitute
an adverse employment action. See, e.g., Dahm v. Flynn, 60 F.3d 253
(7th Cir. 1994)(changing plaintiff’s duties from a mix of
intellectually stimulating and routine job responsibilities to only
routine duties is a “dramatic downward shift in skill level” that
“can rise to the level of an adverse employment action”); Collins v.
Illinois, 830 F.2d 692 (7th Cir. 1987) (finding adverse employment
action where employee was transferred to a position with no specific
duties, taken out of her own office and placed at a receptionist-type
desk, denied a telephone, removed from professional publications, and
no longer given business cards).~

Yet while Gunning-Sluby had different responsibilities as
Marketing Coordinator, those responsibilities were not markedly less
substantial or less challenging than those she had as COO. See,
e.g., Crady, 993 F.2d at 136 (finding no materially adverse action in
transfer from assistant vice president and branch manager position to

loan officer position despite change in responsibilities). Despite

-7-


Chief Investment Officer, Peter Mavrogenes (“Mavrogenes”). BAM
explained to Gunning-Sluby that it was hiring Getman to serve under
both men and to bridge that fracture.

AAM presented the shift in Gunning-Sluby’s job responsibilities
as a promotion, and provided her with a $10,000 pay raise. Gunning-
Sluby, however, believed that the job change was a demotion based on
her sex in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e€ et seq. Accordingly, she filed a charge of
discrimination with the Equal Employment Opportunity Commission (the
“BEOC”) on November 9, 2001 and. filed suit on February 5, 2002.

Gunning-Sluby claims that AAM retaliated against her as a result
of her discrimination charges. She alleges that Fulkerson, who was
her direct supervisor, ended.all contact with her and that a
consultant hired by AAM to assess employees’ job functions behaved
aggressively toward her. Gunning-Sluby resigned from AAM on
February 21, 2002 but alleges that she was constructively discharged
due to AAM’s retaliatory behavior. She filed an additional EEOC
claim alleging retaliation on February 25, 2002 and an amended
complaint on March 5, 2002.

DISCUSSION
Summary Judgment

Summary judgment is appropriate if “the pleadings, 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

-3-


Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998), despite the
fact that the plaintiffs were..shunned by co-workers, had personal
belongings removed from a locker, and received sexually explicit and
racially offensive telephone calls at home. Similarly, in Harriston
v. Chicago Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993), where the
employer allegedly excluded plaintiff from office activities, offered
her inadequate supervisory support, assigned her to a low-performing
sales territory and failed to assign her to new accounts, the Court
held that the working conditions were not “so onerous or demeaning
that [plaintiff] was compelled to leave her employment.” Id.

The working conditions described by Gunning-Sluby simply do not
approach those endured by plaintiffs in successful constructive
discharge cases. Gunning-Sluby bases her constructive discharge
claim on treatment by Fulkerson. and by Barry Atkins, a consultant
hired by AAM in December 2001 to evaluate employees’ roles and job
functions as part of the company reorganization. Even construing the
facts in the light most favorable to the Plaintiff, however, it
remains that Gunning-Sluby bases her constructive discharge claim on
three tolerable events and actions: 1) a December 2001 meeting with
Atkins, in which Atkins behaved aggressively and condescendingly
towards her in their conversations about her job functions; 2) a lack
of contact with Fulkerson after. December 19, 2001 that left her
professionally adrift; and 3) a February 20, 2002 meeting with

Atkins, during which Atkins told.her that AAM’s Board felt that, in

-14-


report to Hoyt or to Hoyt’s designee. At that point it was clearly
immaterial that Fulkerson would no longer have contact with her, as
he was no longer her supervisor.

Gunning-Sluby also fails to show that the supposed constructive
discharge was retaliatory. She alleges that Fulkerson ceased contact
with her in response to her November 9, 2001 EEOC charge, yet she
concedes that she worked on a project for Fulkerson in December 2001
and participated in an AAM marketing meeting with him on December 18,
2001. Her allegation is further belied by the fact that AAM gave her
a $25,200 bonus a month after she filed her EEOC charge. In the
February 20, 2002 meeting, Atkins told Gunning-Sluby that she would
not hear from Fulkerson because of the lawsuit. It is unclear,
however, that Atkins’ request that Gunning~Sluby report to him was
linked to anything more than the Board’s company-wide mandate that
all employees report to Hoyt or to his designee.

Not only does Gunning-Sluby fail to prove that she suffered an
adverse employment action in retaliation for her EEOC claim and law
suit, she also fails, once again, to point to any similarly situated
employee who did not file an EEOC charge or lawsuit and who was not
treated adversely by AAM. Hostilities between Hoyt and Mavrogenes
and between Livney and Johnston, Gunning-Sluby’s colleagues in the
marketing department, combined with the October 2001 reorganization
and a subsequent reorganization on February 13, 2002, crippled AAM.
It seems that most AAM employees, not just Gunning-Sluby, were

stumbling their way through an increasingly troubled organization.

-~16-


responsibilities. In April 2001, AAM promoted Gunning-Sluby to Chief
Operating Officer (“COO”).

Around the time of Gunning-Sluby’s promotion, AAM changed its
operating structure from a partnership to a limited liability company
in order to facilitate a substantial investment from CenCo Investment
L.L.C. (“CenCo”). On June 1, 2001, AAM entered into an Operating
Agreement with CenCo that required the Board of Directors to appoint
all AAM officers. The Board only appointed one corporate officer at
the time, naming Barry Hoyt (“Hoyt”) as Chief Executive Officer. In
October 2001, at the suggestion of Allan Fulkerson (“Fulkerson”), the
main CenCo shareholder and a member of the AAM Board, AAM hired
Geoffrey Getman (“Getman”) as Chief Operating Officer and Deputy
Investment Officer and changed Gunning~Sluby’s position to Marketing
Coordinator.

AAM cited Gunning-Sluby’s marketing experience and the needs of
an increasingly troubled company as reasons for this reorganization.
At the time, AAM’s growth was hampered by the refusal of the two
primary marketing directors, Patrick Livney ("Livney”) and Clay
Johnston (“Johnston”), to speak to each other due to disagreements
over marketing strategy. Gunning-Sluby’s new responsibilities
included overseeing several marketing-related initiatives, but also
included mediating between these two men. Unbelievable as it may
seem, AAM was able to point to a separate dispute between its
partners to explain the decision to hire Getman. By the autumn of

2001, an unpleasant “rift” had also developed between Hoyt and AAM’s


IN THE UNITED STATES DISTRICT Col
~1LED

FOR THE NORTHERN DISTRICT OF ILLIN
EASTERN DIVISION
MAAR: 1.1 2003

JUDGE HARRY D. LEINENWEBER
U.S. DISTRICT COURT JUDGE

Plaintiff, Case No. 02 C 0883

NANCY GUNNING-SLUBY,

Vv.
Hon. Harry D. Leinenweber
ASSET ALLOCATION & MANAGEMENT
COMPANY, L.L.C.,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Nancy Gunning-Sluby (“Gunning-Sluby” or “Plaintiff”)
filed a two-count complaint against Asset Allocation & Management
Company, L.L.c. (“AAM”) alleging gender discrimination and
retaliation. Before the Court is AAM’s Motion for Summary Judgment
filed pursuant to Fep. R. Civ. P. 56. For the following reasons, the
Court grants the motion.

BACKGROUND

The backdrop of this case is that AAM, an investment company, in
2001 and 2002, faced repeated structural reorganization and petty
squabbles and breakdowns in communication between partners and
directors. Plaintiff had begun her career at AAM in 1989, in what
appears to have been a less dysfunctional time at the company. From
her initial position as a marketing assistant, Gunning-Sluby moved
through AAM’s ranks, serving as Marketing Manager and eventually

taking on the duties of Office Manager in addition to her marketing

ol



Sluby’s allegations of sexual discrimination are often
unsubstantiated and vague and she adduces no evidence linking any
decision maker in this case to any incidents of sexual
discrimination. Moreover, none of those alleged incidents involved
Gunning-Sluby or the employment action at issue. See Schaffner v.
Glencoe Park Dist., 256 F.3d 616, 623 (7th Cir. 2001) (“[S]tray
remarks, unrelated to the employment decision in question [are]
insufficient to support an inference of pretext.”)
COUNT II - RETALIATION CLAIM

Title VII not only prohibits certain forms of job
discrimination, but also prohibits employers from retaliating against
employees who complain about such forms of discrimination. Miller,
203 F.3d at 1007. In Count II, Gunning-Sluby alleges that AAM
retaliated against her for filing both the November 9, 2001 EEOC
charge and the February 5, 2002 lawsuit alleging sex discrimination.
Gunning-Sluby chooses to demonstrate retaliation through the indirect
route, which requires that she prove “that after filing the charge
only [she], and not any similarly situated employee who did not file
a charge, was subjected to an adverse employment action even though
[she] was performing [her] job ina satisfactory manner.” tone v.
City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.

2002). If Gunning-Sluby successfully establishes the required

evidence to combat AAM’s reasonable explanations for its personnel decisions.
See Jones v. Union Pac. R.R. Co., 302 F.3d 735, 742 (7th Cir. 2002) (“To establish
pretext, [a plaintiff] must show that [the discriminatory reason] was the
determining factor in [the] discharge.”) (emphasis in original)

-12-


light of her lawsuit, Fulkerson should cease contact with Gunning-
Sluby and that she should report to Atkins.

No reasonable juror could find that these incidents created an
unendurable workplace. Although Gunning-Sluby asserts that Atkins
failed “to assure her that she had a future role in the
organization,” her deposition testimony reveals that Atkins told her
that she should view the company uncertainty as an opportunity to
determine the parameters of her new role. Atkins’s other comments
merely indicate that he was unfamiliar with AAM’s structure and with
Gunning-Sluby’s role in the company, not that he saw no future for
Gunning-Sluby at AAM. Atkins perhaps should have been more conscious
of his demeanor and tone, but his unpleasant manner did not make AAM
an intolerable workplace. As for Fulkerson, Gunning-Sluby adduces no
evidence to show that his lack of contact with her had any effect on
her career. Shunning is only an adverse employment action when it
“causes material harm to the plaintiff.” Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1039 (7th Cir. 1998); see
also McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 485 (7th Cir.
1996). Before filing her EEOC charge, and before the alleged
shunning, Gunning-Sluby had undertaken several marketing projects
with little interaction with Fulkerson and, therefore, should not
have been materially affected by his continued absence. Indeed,
Atkins told Gunning-Sluby that she had control over the direction she
could take as Marketing Coordinator. Gunning-Sluby also acknowledges

that on February 13, 2002, AAM!s Board ordered all employees to

-15-