plaintiff can only file a charge to cover discrete acts (such as termination, failure to promote, and
tefusal to hire) that occurred within the appropriate time period. /d.at__, 122 S.Ct. at 2073.
Accordingly, Cox’s allegations about Osco’s failure to promote her, her transfer to Waukegan,
Osco’s failure to reimburse her for mileage, Osco’s treatment related to her father-in-law’s death,
and her loss of travel and overtime are all time-barred.

The Supreme Court also found in Morgan that hostile work environment claims can
include conduct that occurs outside of the 300 days so long as “an act contributing to the claim
occurs within the filing period.” 7d. al__, 122 S.Ct. at 2074. There also must be some relation
between the conduct that occurred outside of and within the time period:

if an act on day 401 had no relation to the acts between days 1-100,
or for some other reason, such as certain intervening action by the
employer, was no longer part of the same hostile environment
claim, then the employee cannot recover for the previous acts, at

least not by reference to the day 401 act.

fd. at 122 S.Ct. at 2075, The Supreme Court affirmed the appellate court’s finding in

Morgan that the early conduct was related to the later conduct because they involved “the same
type of employment actions, occurred relatively frequently, and were perpetrated by the same
managers.” Jd. at__, 122 §.Ct. at 2076.

Here, David Stiver and Mike Luby made the only comments that occurred within the
time period, Stiver served as an assistant manager at the Osco store in Waukegan, Illinois, while
Luby was a security manager al a Jewel store that was also in Waukegan. Stiver made a
comment that Cox was a prostitute in the evenings. Luby told Cox about his sexual activity and

that a sexual partner of his was not pregnant.

None of the incidents before September 2000 have any relation to these comments by

13



of Undisputed Facts { 28.) Osco, however, has since reimbursed Cox for these miles. (fd. | 30;
R. 43-1, Pl.’s Objections to Def’s Undisputed Facts { 30.)

B. Travel in Wisconsin

Because Osco was short-slaffed in the Milwaukec area, Cox took on many dutics that
were not ordinarily a part of her job responsibilities as a senior loss prevention supervisor,
including traveling to different stores to conduct scxual harassment interviews. (R. 31-3, Def’s
Statement of Undisputed Facts f{ 31-32.) The amount of traveling and added hours caused Cox
to fecl a lot of pressure. (/d. | 35.) As carly as the Fall 1998, Cox complained to Caims about
the amount of traveling she was required to do. (/d. | 34.) She expressed concern about having
to travel to stores that she thought were located in high-crime areas. (/d.)

Cc Absence on December 31, 1999

Osco required the whole loss prevention department to work on December 31, 1999. (R.
31-3, Def’s Statement of Undisputed Facts 4] 48.) Cox expressed concern about her store
assignment, (/d. 49.) She claimed that the store was located in a high crime area and she did
not want to work there alone. (/d. | 50.) Abraham told Cox that she would not be alone there.
(id.)

Cox called her supervisors to report that she would not be working on December 31, 1999
because her father-in-law had diced. (/d. 953.) Abraham asked Cox to provide a death
certificate. (/d.) Abraham testified that he suspected that Cox intentionally did not report to
work because she was not satisficd with her assignment for that night, (7d. | 55.) Initially, Cox
refused to provide Abraham with the proof he requested. (/d. 56.) As a result, Abraham wrote

her up for insubordination. (/d.) Cox then gave Abraham a letter from a funeral director that



(2002). Ifa plaintiff is able to make her prima facie showing, then it is up to the defendant to
proffer a non-discriminatory reason for its action. Jd. The burden then shifts back to the plaintiff
to show that the defendant’s proffered reason was merely a pretext for discrimination. 7d. If the
defendant’s proffered reason goes unrebutted, it is entitled to summary judgment. /d. at 644,
Osco argues that it is entitled to summary judgment because Cox cannot establish a prima

facie case for retaliation and because she cannot rebut Osco’s proffered reason for its action,
Plaintiff's response to this contention is found only in one paragraph of her memorandum:

She was demoted, she was transferred, she was required to

continue to train De’Jcsus [sic]. Her income was diminished

substantially. The employcr has submitted nothing to rebut her

allegations other than to say her hourly wages stayed the same.

The employer’s offer to transfer her 50 miles away is an adverse

action, even though the employer has called it a slightly longer

commute.
(R. 41-1, PI.’s Mem. in Opposition to Def.’s Mot. for Summ. J. at 13.) In this one paragraph,
Cox does not inform this Court how it can meet the prima facie showing under Stone. She does
not state which one of her complaints was the basis of Osco’s retaliation. She does not argue that
other similarly situated employees who did not complain were not subject to the same adverse
action. Additionally, Cox neither argues that she performed her job adequately nor points to any
evidence that would support such a contention. Finally, Cox does not rebut via evidence or
argument that Osco’s proffered reason for demoting her — that she was insubordinate regarding a
lottery investigation — was merely a pretext for discrimination, It is clear under these

circumstances that Osco is entitled to summary judgment on her retaliation claim. See Stone, 281

F.3d at 644.

17



in attending that program, Cairns called her and invited her to attend. (/d. | 104.) Cox then
received this training. (/d. 4] 105.)
4, Promotions

While in Waukegan, Cox held the position of senior loss prevention supervisor. (R. 31-3,
Def's Statement of Undisputed Facts 4 107.) The typical progression after senior loss prevention
supervisor is first to security manager and then to district loss prevention manager. (id, 4 108.)
Osco has never promoted an employce directly from senior loss prevention supervisor to district
loss prevention manager. (/d. J 110.)

In February 2000, Osco denied Cox's bid for promotion to two vacant district loss
prevention manager positions. (R. 31-3, Def’s Statement of Undisputed Facts 111.) At the
time, Cox had worked for Osco for four years and was two classes short of an associate’s degree
in criminal justice. (/d. 4 114.)

Osco chose to promote two security managers to those open slots. (R. 31-3, Def's
Statement of Undisputed Facts ] 113.) Paul Reddington was one of those that Osco promoted,
(/d.) Reddington had worked for Osco for sixteen years, had a bachelor’s degree in criminal
justice and had served as a temporary district loss prevention manager for one year. (/d.) The
second employee promoted, Bob Kelley, had worked for Osco for fourteen years. (/d.) Kelley
was twenty-one hours shy of a bachelor’s degree in criminal justice and served as a temporary
district loss prevention manager for almost a year. (Id.)

D. Lottery investigation

Cox conducted an unauthorized investigation into a lottery payout in March 2001 by

Osco’s store manager. (R. 31-3, Def'’s Statement of Undisputed Facts ff] 148, 155.) During the



AY Offensive Comments in Illinois
1, Duke Goesseling
Duke Goesseling was a loss prevention supervisor at an Osco store in Grayslake, Illinois,
(R. 31-3, Def’s Statement of Undisputed Facts 4] 116.) He had no authority to hire, fire, demote,
promote, or transfer Cox. (/d. 122.) In April or May 2000, Goesseling made a joke about
hearing a woman say she lost her “dildo” when she was really looking for frozen dill dough.
(id.) Goesseling also told Cox that his daughter said that his daughter’s uncle, Tom Cairns, tried
to pick her up, not knowing she was his niece. (Jd. | 120.) Cox did not report Goesscling’s
comments to anyone at Osco. (/d. |] 123.)
2. Tom Cairns
Sometime before April 2000, Cais told Cox in relation to a sexual harassment
investigation that he was conducting that a pharmacist was having sex with a pharmacy
technician. (R. 31-3, Def’s Statement of Undisputed Facts 125.) In April or May 2000, Cairns
made a comments to Cox about cclebrity Pamela Anderson’s breast reduction. (/d. 4 124.) Cox
did not report Cairns’ statements to anyone at Osco. (/d. J 127.)
3 David Stiver
David Stiver was an assistant manager at the Waukegan store. (R. 31-3, Def’s Statement
of Undisputed Facts 4] 129.) He had no authority to hire, fire, demote, promote or transfer Cox.
(id. 4 136.) In February 2001, Stiver insinuated that Cox was a prostitute in the evenings. (dd. 4
129.) Cox reported Stiver’s comments to management. (/d, J 131.) Osco interviewed Stiver,

who admitted that he jokingly asked if she was a prostitute. (/d. 4 133.) Osco counseled Stiver

on Qsco’s policy on sexual harassment and ensured that he understood the ramifications of



indicated that she had attended the funeral services of her father-in-law on December 30, 1999.
(id. { 57.) Osco eventually removed the write-up from her file. (Id. 58; R. 43-1, Pl.’s
Objections to Def’s Undisputed Facts { 58.)

D. Cox’s Wisconsin discrimination charge

On January 22, 2000, Cox filed a discrimination charge with the EEOC and Wisconsin’s
Equal Rights Division. (R. 31-3, Def’s Statement of Undisputed Facts 4] 59.) In that charge, Cox
complained that she was scxually harassed by DeJesus, that Osco denied her a promotion, that
Osco refused to reimburse her miles, and that Osco disciplined her for refusing to provide proof
of her father-in-law’s death. (U/d. §| 59.) Cox did not complain about Gunter’s comment. (Id. J
61.) Cox later withdrew her complaint. (/d. 4 60.)
Tl. Cox’s Work in Illinois

Osco honored Cox’s request to transfer to the Waukegan, Illinois area on January 24,
2000. (R. 31-3, Def’s Statement of Undisputed Facts | 62.) Osco assigned Cox to one store
(“Waukegan store”). (7d. 66.) As a result of the transfer, she reported to Chip Huguelot,
another district loss prevention manager. She was grateful for the transfer and felt well-liked in
Waukegan as of February 2000. (/d. | 64.) Up until December 2000, Cox enjoyed her work at
the Waukegan store. (/d. § 67.)

Cox alleges, however, that colleagues made offensive scxual comments to her. (Id. {f
116, 124.) The transfer also caused a reduction in her hours and her duties because she was no
longer able to travel to other stores, conduct internal theft or sexual harassment interviews, cross

train security staff, or receive overtime. (/d. | 68.) The overtime that she worked diminished

substantially upon transfer. (R. 42-1, Pl.’s Statement of Add’] Facts {[ 3.)



CONCLUSION
The undisputed facts show that Osco is entitled to judgment as a matter of law.

Accordingly, the Court grants Osco’s motion for summary judgment.

DATED: April 16, 2003 ENTERED
(hu... Li q
AMY J. SY.\EVE

United Stat istrict Judge

18



cC, Reduction of Duties in Illinois
1. Interviews

After Cox’s transfer to Waukegan, she no longer conducted sexual harassment
interviews. (R. 31-3, Def’s Statement of Undisputed Facts 4] 78.) Instead, two female district
loss prevention managers interviewed female employees. (/d.) Those managers were at the same
level as the person to whom Cox reported. (/d. § 79.)

Osco did not allow Cox to conduct three or four particular theft interviews in October or
November 2000, (R. 31-3, Def’s Statement of Undisputed Facts { 84.) Osco, however, did not
pay Cox any less for not conducting those interviews. (Cox Dep. at 164-65.) Additionally, Cox
began conducting internal theft interviews again after October 2000. (R. 31-3, Def’s Statement
of Undisputed Facts ] 86.)

2. Cross-Training Security Staff

At the Waukegan store, Cox did not conduct additional training of sccurity staff. (R. 31-
3, Def’s Statement of Undisputed Facts J 89.) She concedes, however, thal she should not have
been doing this type of training. (/d. { 88.) As a result of not cross-training security staff, Cox
was not paid any less. (/d. 1 89.)

3. Overtime and training

Cox alleged in her Complaint that she was denied overtime. Cox, along with another
security manager, prepared the employees’ schedules. (R. 31-3, Def’s Statement of Undisputed
Facts {| 98.) Cox earned overtime in both 2000 and 2001. (/d. 4 99.)

Cox also claims that she was denied training because she initially was not supposed to

attend a seven-week training program in April 2000, (Jd. 4100.) Aftcr Cox expressed an interest



Minute Ores Form (0697)

LE2 BAN, United States District Court, Northern District of Illinois
ip judge “i judge if Other
sie Magisters Judge Amy J. St: Eve “than acghed Judge
CASE NUMBER 02 € 939 DATE 4/16/2003
CASE Cox vs. American Drug Stores
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bricfly the nature
of the motion being presented. |

MOTION:

DOCKET ENTRY:

() Oo Filed motion of { use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

QB) o Answer brief to motiondue___. Reply to answer brief due____

(4) Oo Ruling/Hearmgon set for at

{5} im Status hearing[held/continued to] [set for/re-set for]on__ _setfor_ at
(6) o Pretrial conference|held/continued to) [set for/re-set forlon__—ssetfor__—aat,
(7) Qa ‘Trial[set for/re-set for] on_ _at

@) oO [Bench/Jury trial] [Hearing] held/continued to __att

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to]

QFRCP4(m) Cl Local Rule 41.1. CFRCP41(a)(1) CI FRCP41(a)(2).

ce _| [Other docket entry) Enter Memorandum Opinion and Order. Defendant Osco Drug Stores‘ Motion
for Summary Judgement is granted. Status hearing set for 4/23/03 is stricken. Any other pending dates are
stricken. Any pending motions are denied as moot.

a1) @ [For further detail see order attached to the original minute order,]

No notices required, advised in open court.

2
No notives required,
ruber of notices
VY | Notices muiled hy judge’s staf.
Nolified counsel by telephone. PR AT 2003

dure dockcted

Docketing to mail notices.

oY | Mail AQ 450 form. paar pometsid of docketing deputy initists
Copy to judge/magistrate judge. “
4ne2003
courtroom pen } date mniled notice
HY deputy’s m
initials

DateAime received in
sentral Clerk's Office



Vv. QOsco’s Sexual Harassment Policy

Throughout Cox’s employment, Osco had a written policy that prohibiled sexual
harassment. (R. 31-3, Def’s Statement of Undisputed Facts { 4.) Osco distributed this policy to
all employees. (/d.) Additionally, Osco had a written complaint procedure that outlined the
procedures for reporting sexual harassment to management. (Jd. 95.)

Osco’s policy was to promptly investigate all allegations of sexual harassment, then
consider the nature and severity of the alleged harassment in determining the most appropriate
response. (/d, 6.) Additionally, Osco’s policy called for it to take prompt and effective
remedial measures against the harassser. (Jd. 4] 7.)

STANDARDS

Summary judgment should be granted where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine
issue of material fact exists only if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Pugh v. City of Attica Indiana, 259 F.3d 619, 625 (7" Cir.
2001) (quoting Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 §.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986)). The party seeking summary judgment has the burden of establishing the
lack of any genuine issue of material fact, Celotex Corp. v, Catrett, 477 U.S. 317, 322-23, 106
S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party that bears the burden of proof on a
particular issue, however, may not rest on its pleadings but must affirmatively demonstrate that
there is a genuine issue of material fact. Jd. at 324, 106 S.Ct. at 2553. A mere scintilla of

evidence in support of the non-movant’s position is insufficient. See Anderson, 477 U.S, at 252,

106 S.Ct. at 2512.



investigation, Cox gathered witnesses statements, which she refused to turn over to the Osco’s
director of human resources. (/d. ff] 149-51.) Cox also refused to release the names of the
people that she interviewed during her lottery investigation. (/d. 4] 152.)

E, Title change

In April 2001, Osco lowered Cox’s job title from senior loss prevention supervisor to loss
prevention supervisor. (R. 31-3, Def’s Statement of Undisputed Facts 153.) Osco changed her
title after concluding that Cox was insubordinate and in violation of company policy for refusing
to cooperate and for conducting the unauthorized lottery investigation afler Osco told her to stop
the investigation. (fd. 155.) As a result of the title change, Osco did not pay Cox any less
money. (Id. 154.) Osco did, however, transfer Cox from the Waukegan store given the
deterioration of trust between Cox and the store manager. (/d. 7 156.) Osco had given Cox the
option cither to transfer to one of several stores where she could keep her old title or to transfer to
a store closer to her home with a demotion im title only. (/d. 9 157.) Cox opted for the title
change. (/d. § 159.)
UWI. Cox’s Injuries

Tn 1999 and 2000, Cox began to get sick with dry heaves and would cry, (R. 42-1, Pl.’s
Statement of Add’l Facts 79.) She also began to get panic attacks. (/d.) In February 2001, afler
Stiver’s prostitute comments, Cox suffered from vomiting, diarrhea and sleep deprivation. (P1.’s
Dep. at 187.)
IV, Cox Files Discrimination Charges

On July 11, 2001, Cox filed a charge of discrimination with the EEOC and the Illinois

Department of Human Rights. (R. 31-3, Def’s Statement of Undisputed Facts {| 161.)

10



inappropriate employee conduct. (/d. ff] 134-35.) After this incident, Stiver made no other
comments to Cox that she found to be offensive. (Je. 130.) Cox did, however, continue to
work with him. (R. 42-1, Pl.’s Statement of Add’l Facts § 21.)
4, Mike Luby

Mike Luby was a security manager at a Jewel store in Waukegan. (R. 31-3, Def’s
Statement of Undisputed Facts | 137.) He had no authority to hire, fire, demote, promote, or
transfer Cox. (Id. § 146.) In February 2001, Luby told Cox in graphic detail about his sexual
activities. (/d. 4] 137.) He also told Cox that he had received “good news” that a woman he had
intercourse with was not pregnant. (/d. 138.) Cox complained about Luby’s comments to her
supervisor, who said that he would handle the situation. (Ud. 4 140.) A female district loss
prevention manager met with Cox to investigate her allegation regarding Luby, while two males
met with Luby. (Jd. { 141-42.) After the investigation, Osco found that Cox’s accusations
against Luby were unfounded. (/d. | 144.) Luby said nothing else offensive to Cox. (Id. § 145.)

B. Travel in Iltinois

The Waukegan store was large and busy. (R. 31-3, Def"s Statement of Undisputed Facts
69.) Asa result, Cox had cnough tasks to keep her busy for a full forty-hour week. (Jd. 71.)
Other loss prevention employees were also assigned to work in only one store if the store was
large enough or in a high-crime area. (/d. {| 70, 73.) Cox replaced an employee at the

Waukegan store who worked exclusively at the store. (/d. 99] 74-75.) Cox learned in Junc or July

of 2000 that she would not be traveling anymore as a part of her new assignment. (fd. 176.)



inappropriate, he told her to “tind her own fucking business” and called her a “fucking bitch.”
(Ud. § 22.) Cox telephoned Cairns to report the incident. (Ja. | 23.) Cairns said that he would
contact the supervisor of sccurity. (Jd.)’ After this incident, the security guard said nothing clse
offensive to Cox. (Jd. 26.)

3. David DeJesus

David DeJesus was a store security manager at Jewel Store No. 453 in Milwaukee. (R.
31-3, Def’s Statement of Undisputed Facts { 39.) Cox did not report to DeJesus, even though he
was a level higher than her. (/d. 4 40.) He had no authority to hire, fire, demote, promote or
transfer Cox. (/d. 41.) Cox was training DeJesus on October 25, 1999, when he told her that
she only had her job was because she was slecping with all three of her bosses. (Jd. | 39.) A few
days later, DeJesus told Cox that females should wear camouflage panties, (/d. 442.) Cox
complained to management about DeJesus. (/d. { 43.)

As a result of her complaint, two Osco employees attempted to interview Cox. (Jd.)
Because Cox was too embarrassed to talk about DeJesus’ comment, she prescnted her
interviewers a written statement instead. (/d. {| 44.) She stated that two female employees
witnessed the statement, (Id. 145.) These two female employees later admitted, however, that
they, instead of DeJcsus, made the comments about the panties. (/d. 4 46.)

4, Reimbursement for mileage
From September through November 1999, Bruce Abraham denied Cox’s requests for

reimbursement for mileage driven to conduct work-related interviews. (R. 31-3, Def’s Statement

2 As with the Gunter incident, Cairns does not recall that Cox reported this incident to him and
Osco has no record of a complaint to management. (R. 31-3, Def’s Statement of Undisputed
Facts {ff 24-25.)



Stiver and Luby. The earlier statements were not made by Stiver, Luby, or anyone holding the
same position as them; they did not contain the same subject matter; and they occurred at
different stores.’ Further, Cox complains of only six comments during the two years that she
worked in Milwaukee and Waukegan. They were thercfore noi frequent as requited hy Morgan.
See Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7" Cir. 1995) (nine comments over seven
months not frequent enough to support hostile work cnvironment claim). The conduct can only
be viewed as “mercly discrete, isolated, and completed acts which must be regarded as individual
violations.” Doe v, R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7" Cir, 1994). Accordingly,
as the others are time-barred, the Court will only consider those comments by Stiver and Luby in
determining whether a hostile work environment existed during Cox’s employment at Osco.
Il. The Undisputed Facts Show That No Hostile Work Environment Existed

Scxual conduct in the workplace only violates Title VII if it is so scvere or pervasive that
it alters the conditions of the plaintiff's employment and creates an abusive working
environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 8.Ct. 2275, 2283, 141
L.Ed. 662 (1998). The scxually objectionable environment must be both objectively and
subjectively offensive, /d. at 787, 118 S.Ct, at 2283. To determine whether an environment is
sufficiently hostile or abusive under the objective standard, a court must look at all the
circumstances, including: the frequency of the conduct, the severity of the conduct, whether it is
physically threatening or humiliating, or a mere offensive uttcrance, and whether it unreasonably

interferes with an employee’s work performance. Harris v. Forklift Sys., Inc, 510 U.S. 17, 22,

* It is unclear from the parties’ statements of fact where Tom Cairns’ comments in April or May
2000 occurred. Cairns’ comments, however, arc not part of the same hostile work environment
claim because they were otherwise unrelated to those by Stiver or Luby.

14



a hostile work environment as a matter of law. There is no evidence that anyone ever touched
her, made an advance on her, threatened her, exposed himsclf, or showed her pomographic
pictures. Only the prostitute comment had anything to do with her gender and it was not severe
enough to itsclf establish a hostile work environment. Further, (he comments were not frequent
or pervasive.’ See id. (nine comments in seven months not frequent enough); McKenzie v.
Hlinois Dep't of Transp., 92 F.3d 473, 480 (7 Cir. 1996) (three sexually suggestive comments
made over three month period not sexual harassment).

Cox simply cannot show that her work environment was objectively hostile or abusive.
Instead, the conduct falls into the Seventh Circuit’s “safe harbor for employers” because the
conduct is “too tepid or intermittent or equivocal to make a reasonable person belicve that she
has been discriminated against on the basis of her sex.” Galloway v. General Motors Servs.
Parts Operations, 78 F.3d 1164, 1168 (7" Cir. 1996), abrogated on other grounds by Morgan,
536 U.S. at 101, 122 §.Ct, at 2061. Accordingly, Osco is entitled to judgment as a matter of law
on Cox’s hostile work cnvironment claim.

Ul. Osco Is Entitled To Judgment As A Matter Of Law On Plaintiff’s Retaliation Claim

Tn order to establish a prima facie case of retaliation, a plaintiff must show thal: “(1) after
lodging a complaint about discrimination, (2) only she, and not any otherwise similarly situated
employee who did not complain, was (3) subjected to an adverse employment action even though
(4) she was performing her job in a satisfactory manner.” Stone v. City of Indianapolis Pub.

Utils. Div., 281 F.3d 640, 642 (7" Cir.), cert. denied, U.S. __, 123 S.Ct. 79, 154 L.Ed.24 134

* These points are true even if the Court considers the conduct that occurred before September
14, 2000.

16



1 Cox’s Work In Wisconsin
In 1998, Cox transferred from Waukegan, Illinois to Milwaukee at the request of Tom
Cairns, a district loss prevention manager. (R. 31-3, Def’s Statement of Undisputed Facts { 8.)
While working in Milwaukee, one of Cox’s job duties was to conduct sexual harassment
interviews at various stores. (/d. 10.) In May 1999, Cairns stopped supervising Cox because
Osco transferred him from Milwaukce to Illinois, (/d. J 11.) Cox began reporting to Bruce
Abraham, the senior district loss prevention manager in Milwaukee. (/d. J 12.)
A, Offensive Comments in Wisconsin
1, Dary!] Gunter
Daryl Gunter was an operations manager at Osco Store No. 1301 in Milwaukee. (R. 31-
3, Def’s Statement of Undisputed Facts { 14.) He had no authority to hire, fire, demote or
transfer Cox. (/d. 919.) In May 1999, Gunter told Cox that in order for him to have sex with his
wife he would havc to take cash loans from the safe to pay her. (dd. 4] 14.) Cox complained of
this statement to Caims, who responded that “he would handle it.” (/d. {| 15-16.)' After the
incident, Cox had no more contact with Gunter.
2. Security guard
Sometime between May and September 1999, Cox saw a security guard watching his
children in a parked car. (R. 31-3, Def’s Statement of Undisputed Facts § 21.) The security
guard, who was supposed to be on duty, worked for an outside vendor and was not an employee

of Jewel or Osco. (dd. 27.) Afler Cox told the security guard that his behavior was

? Caims docs not remember Cox ever complaining to him about Gunter and Osco has no record
ofacomplaint. (R. 31-3, Def's Statement of Undisputed Facts 4] 17-18.)

2



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

EASTERN DIVISION
KATHLEEN M, COX, )
)
Plaintiff, )
) :
) No. 02 C939 4
v. )
)
AMERICAN DRUG STORES d/b/a )
OSCO DRUG STORES, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, Judge:

Kathleen Cox filed a complaint against Osco Drug Stores (“Osco”) on February 7, 2002.
In her amended complaint, Cox claims that Osco engaged in gender discrimination and
retaliation. (R. 21-1, Am. Compl. 4 3.) Osco moves for summary judgment, claiming that the
undisputed facts show that it is entitled to judgment as a matter of law. The Court agrees and
grants summary judgment in Osco’s favor, as detailed below.

FACTS

Cox worked at Osco from June 10, 1996 through June 11, 2001 as a loss prevention
supervisor. (R. 31-3, Def’s Statement of Undisputed Facts { 2.) Her department at Osco was
responsible for investigating alleged wrongdoing and policy violations, such as scxual

harassment and theft. (/d. {| 3.) Cox specifically investigated employee wrongdoings and policy

violations. (R. 42-1, Pl.’s Statement of Additional Facts § 1.)



A party can successfully oppose summary judgment only if it presents “definitc,
competent evidence to rebut the motion.” E.E.0.C. v. Sears, Roebuck & Co., 233 F.3d 432, 437
(7* Cir. 2000), The Court must view ali evidence and draw all reasonable inferences in the li ight
most favorable to Plaintiff, as the non-moving party. Miller v. American Family Mut. Ins. Co.,
203 F.3d 997, 1003 (7" Cir, 2000).

ANALYSIS

Osco moves for summary judgment on several grounds. First, it argues that many of
Cox’s allegations are time-barred. Second, it maintains that Cox cannot meet her prima facie
burden of establishing a hostile work environment claim.* Third, Osco argues that Cox cannot
sustain a retaliation claim against it because Osco took no adverse action against Plaintiff.

L Most Of Plaintiff's Allegations Are Time-Barred

Osco argues that much of the conduct that Cox complaint about is time-barred because it
occurred more than 300 day before she filed an EEOC charge. See 42 U.S.C. § 2000e-5(c)(1).
Therefore, Osco maintains, the Court should not consider conduct that occurred before
September 14, 2000. Cox counters that her claims are timely because they are based on a
continuing violation theory. Both parties agree that the recent Supreme Court case National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct, 2061, 153 L.Ed.2d 106 (2002)
controls this issue.

In Morgan, the Supreme Court distinguished betwecn claims based on disercte acts of

discrimination and those alleging hostile work environments. The Supreme Court found that a

> Because Cox cannot establish a hostile work environment claim, the Court does not address
Osco’s argument that it is not liable for the alleged hostile work environment.

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114 S.Ct. 367, 371, 126 L.Ed,2d 295 (1993). Simple teasing, offhand comments, and isolated
incidents will normally not amount to a hostile work environment. Furagher, 524 U.S. at 786,
118 S.Ct. at 2283. The standard is demanding so that Title VII does not become a “general
civility code.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002,
140 L.£d.2d 201 (1998). Courts should filler out complaints attacking “sporadic use of abusive
language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 788, 118 S.Ct. at
2284 (quoting B, Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992)).
One Seventh Circuit case is especially illustrative of these stringent requirements. In

Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7" Cir. 1995), a jury found that a hostile work
environment existed because a male supervisor had made several offensive comments to a female
employee over a period of several months. The supervisor called the plaintiff a “pretty girl,” he
made a grunting sound when she (ured to leave his office, he commented that his office became
hot only after the plaintiff had entered the room, he told her that a public-address announcement
meant that “[aJll pretty girls” had to “run around naked,” and he made a masturbation gesture in
her presence. /d. at 430. The Seventh Circuit reversed the verdict because the incidents could
not reasonably add up to sexual harassment under the objective measure since:

[The supervisor] never touched the plaintiff. He did not invite her,

explicitly or by implication, to have sex with him, or to go out on a

date with him. He made no threats, He did not expose himself, or

show her dirty pictures. He never said anything to her that could

not be repeated on primetime television.
Id. at 431, The court noted that the conduct was spread out over several months, which

minimized its emotional impact on the plaintiff. Jd.

Similarly, providing Cox with all reasonable inferences, the evidence does not amount to

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