4, Plaintiff Cannot Show That Murphy Retaliated Against Her

In her unsworn statement, Plaintiff states that she complained to Murphy’s supervisor
Rose Lach about Murphy’s unfair treatment of Plaintiff, and that soon thereafter Murphy changed
Plaintiffs shift and told Plaintiff that if she had a problem with her she should not complain to
Lach. Plaintiff appears to claim that Murphy changed her shift and issued a verbal warning to

her in retaliation for complaining to Lach.°

Because Plaintiff has no direct evidence of retaliation, to prevail on her retaliation claim,
she must proceed under the McDonnell Douglas burden-shifting method. Plaintiff must show
that “(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; unless (5) the
defendant presents evidence of a reason (good or bad, provided only that it is not one that the law
forbids) for the adverse action.” Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642
(7" Cir. 2002). An adverse action is essential for a retaliation claim. Johnson v. Cambridge

Indus., Inc., 325 F.3d 892, 899-902 (7" Cir. 2003).

Plaintiff cannot establish a prima facie case of retaliation. Plaintiff's retaliation claim

5 The Court notes that Plaintiff does not specifically include a retaliation claim in any count of
her FAC. The only reference to a retaliation claim in her FAC is where Plaintiff describes the
nature of her claims as, inter alia, “retaliation by [sic] Plaintiff in her treatment while employed
by Defendant.” (R. 20-1, FAC ¥ 1.) Although Plaintiff currently proceeds pro se, she was
represented by counsel when she filed the FAC. The attorney that initially represented Plaintiff
withdrew as her counsel in September 2003. (R. 27-1, Mot. by Pl. for Appointment of Counsel.)
The Court appointed counsel on October 1, 2003 (R. 29-1, Order), but he withdrew on October
14, 2003. (R. 32-1, Order.) The Court appointed another attorney to represent Plaintiff (R. 32-1,
Order), but he withdrew on March 17, 2004 (R. 43-1, Mot. to Withdraw; R. 44-1, Order), before
Plaintiff filed her opposition to summary judgment.

13


plaintiff's submission did not conform to Local Rule 56.1).”

Plaintiff's failure to comply with Local Rule 56.1, however, does not result in an
automatic grant of summary judgment in favor of Loyola. The Court still must evaluate all facts
in the light most favorable to Plaintiff, the non-moving party. O'Donnell v. City of Chicago, No.
02 C 1847, 2003 WL 22339285, at *1 (N.D. Ill. Oct, 14, 2003).

BACKGROUND
I. Plaintiff's Employment At Loyola

Loyola hired Plaintiff, an African American, as a part-time Patient Transporter in 1999.
(R. 40-1, Def.’s Rule 56.1 Stmt. ¢ 14.) In 2001, Plaintiff applied for and received a position as a
part-time Visitor Control Liaison in the Maternity/Newborn Unit. (/d.) A Visitor Control
Liaison staffs the front desk, oversees visitors, and monitors the newborns in the unit. (Id. 4 17.)

Christine Murphy, the Nurse Manager for the Maternity/Newborn Unit, hired Plaintiff as
a Visitor Control Liaison and served as Plaintiff's direct supervisor. (Jd. 15.) Murphy had
ultimate authority to set the work schedules for the Visitor Control Liaisons. (/d. ]21.) Loyola
told the Visitor Control Liaisons that their work schedules were not final until Murphy posted the
final schedule. (Jd.) The posted work schedule for the period from December 2, 2001 through
January 12, 2002 was a “Holiday Schedule” and had a separate Notice attached to it directing
Visitor Control Liaisons to “not make any plans based on the requested Schedule,” and to

“[p]lease wait for the approved copy to be posted.” (Id. J 22.)

? Local Rule 56.2 requires a defendant who files a motion for summary judgment against a pro
se plaintiff to provide the pro se plaintiff with a plainly worded notice explaining a summary
judgment motion, local rules governing such motions, and the consequences if the plaintiff fails
to respond to the motion. L.R. 56.2. Loyola served and filed the required notice. (R. 45-1,
Notice to Pro Se Plaintiff.)



CONCLUSION

The Court grants Loyola’s motion for summary judgment in its entirety. Summary
judgment is granted in favor of Loyola as to Count I (racial discrimination) because Plaintiff has
no direct evidence of discrimination and cannot establish a prima facie case of discrimination.
Summary judgment is granted in favor of Loyola as to Count II (breach of contract) because
Plaintiff has failed to establish that Loyola’s employment policies created an enforceable contract
right to be free from a hostile work environment, and in any event, there is no evidence that
Loyola subjected Plaintiff to an objectively hostile work environment. Summary judgment is
granted in favor of Loyola as to Count III (intentional infliction of emotional distress) because it

is undisputed that Plaintiff has abandoned this claim.

L
DATED: Junef,, 2004
AMY J. ST. EVE
United States District Court Judge

17



1. Loyola Did Not Constructively Discharge Plaintiff

To establish that Loyola constructive discharged her, Plaintiff must first “demonstrate
that she was, in fact, constructively discharged—i.e., that the defendant made the working
conditions so intolerable as to force a reasonable employee to leave. Once a plaintiff has shown
that a constructive discharge occurred, [she] must prove, as with any other discharge claim under
Title VII, that [she] was constructively discharged because of [her] membership in a protected
class.” Vitung y, Multistate Tax Comm’n, 88 F.3d 506, 517 (7" Cir. 1996.) Working conditions
for constructive discharge must be even more egregious than the high standard for hostile work
environment because “in the ‘ordinary’ case, an employee is expected to remain employed while
seeking redress.” Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7" Cir. 2000)

(quoting Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7" Cir. 1998)).

There are no facts showing that Plaintiff suffered working conditions that were “so
intolerable as to force a reasonable person to leave.” Neither Murphy nor anyone else at Loyola
made race-related comments to Plaintiff. Plaintiff appears to complain that Murphy allowed a
family to bring an unrelated child into a visiting ward and another to remain in a visiting area
rather than stay in the staging area as Plaintiff directed; instructed Plaintiff to sign off of her
computer when she went to lunch; did not allow Plaintiff to go to the bathroom or accept
personal telephone calls during working hours; and generally was not cordial or friendly to
Plaintiff. (R. 40-1, Def.’s Rule 56.1 Stmt. 49] 74, 85-93.) There is no evidence that Murphy

engaged in any of this conduct because Plaintiff is African American, or that Murphy treated


Americans, three Hispanics, and seven Caucasian applicants who were more qualified than
Plaintiff. (/d. 69.) Loyola has no record of Plaintiff applying to any other positions at Loyola.
(Id. 470.)

IV. Loyola’s Policies and Employee Handbook

Loyola has a written policy prohibiting employment discrimination on the basis of race
according to federal and state anti-discrimination laws and statutes. (Id. {/4.) The written policy
establishes Loyola as an Equal Opportunity/A ffirmative Action employer. (Id. 44.)

Loyola also published and distributed to all employees an “Employee Handbook” which
set forth the rules governing employees’ conduct and responsibilities at Loyola. (/d. 5.) The
Employee Handbook required employees to “fulfill all responsibilities and service expectations
of the job as contained in the job description and/or as further defined in work instructions given
by the supervisor” and to “report to work at the scheduled time.” (Jd. {{] 6-7.) The Employee
Handbook further provided that “[IJength and time of shifts and assignments to a specific shift
are set by the department to meet operational needs and are subject to change,” and that “absence
for personal business is allowed only by prior arrangement.” (Id. {| 6, 8.) The Empioyee
Handbook warned that employees may be disciplined when “they violate established
departmental and University/Medical Center policies and procedures,” and that violations of
standards of employee conduct and departmental work rules may result in discipline that may
consist of an oral warning, written warning, suspension or termination. (Jd. 7.) Plaintiff
received a copy of the Employee Handbook and agreed to become familiar with and abide by
Loyola’s policies, procedures, and work rules. (Id. 5.)

Loyola also published and distributed a “Corrective Action and Work Improvement”



It. Plaintiff Failed To Work Her Assigned Shift

Murphy initially assigned Plaintiff to work from 7:00 a.m to 3:30 p.m. on December 24,
2001. On or about December 21, 2001, Murphy posted the final work schedule in which she
reassigned Plaintiff to work from 3:00 p.m. to 11:30 p.m. (/d. 23.) Plaintiff did not work her
assigned shift. (/d. 30.) Rather, Plaintiff switched her shift with another employee and worked
from 7:00 a.m to 3:30 p.m. on December 24, 2001. (Jd. 431.) Plaintiff did not notify Murphy of
the switch and did not obtain Murphy’s prior approval before working a different shift than the
one Murphy assigned to her. (/d. J 25-27.)

On December 27, 2001, Murphy issued Plaintiff a verbal warning for failing to work her
assigned shift and for failing to notify Murphy and to obtain prior approval before working a
different shift. (Jd. §§ 38-39.) During this meeting, Plaintiff told Murphy that she was
dissatisfied with her job and that she was resigning. (Jd. 145.) Plaintiff filled out and signed a
“Letter of Voluntary Resignation.” (Jd. | 46.) Murphy did not terminate Plaintiff. (/d. 4 47.)
WI. Plaintiff Unsuccessfully Reapplied For Employment At Loyola

After resigning from her position as a Visitor Control Liaison, Plaintiff reapplied to
Loyola for a position as a Rehabilitation Technician and a position as a Sales Representative.
(Ud. § 61.) Loyola did not hire Plaintiff for either position. (/d. 61.) At the time Plaintiff
applied, there were two open Rehabilitation Technician positions and seven applicants. (Jd. §
65.) Loyola ultimately hired an African American and a white applicant more qualified than
Plaintiff to fill the Rehabilitation Technician positions. (/d. §§ 66-67.) At the time Plaintiff
applied, there were 29 open Service Representative positions and 270 applicants. (id. J 69.)

Loyola ultimately hired only eighteen new Service Representatives, including eight African


A. There Is No Direct Evidence Of Discrimination

Direct evidence is “evidence which if believed by the trier of fact, will prove the
particular fact in question without reliance on inference or presumption.” Cowan v. Glenbrook
Sec. Servs., Inc., 123 F.3d 438, 443 (7" Cir. 1997) (quoting Plair v. E.J. Brach & Sons, Inc., 105
F.3d 343, 347 (7" Cir. 1997)). “Direct evidence essentially requires an admission by the
decision-maker that his actions were based upon the prohibited animus.” Cerutti, 349 F.3d at
1061 (quoting Rogers v. City of Chicago, 320 F.3d 748, 753 (7" Cir. 2003)).

Drawing all inferences in Plaintiff's favor, Plaintiff fails to produce any direct evidence of
discrimination. Murphy is the only Loyola employee that Plaintiff accuses of discrimination. (R.
40-1, Def.’s Rule 56.1 Stmt. { 62.) Plaintiff admits that Murphy never made any race-related
statements to her. (/d. {] 73, 76.) There are simply no facts that constitute direct evidence of
discrimination. Accordingly, to survive summary judgment, Plaintiff must establish a prima
facie case of discrimination under the burden-shifting method of McDonnell Douglas.

B. Plaintiff Cannot Establish A Prima Facie Case Of Discrimination Under The
Burden-Shifting Method Of McDonnell Douglas

Plaintiff fares no better under the indirect method of McDonnell Douglas. To establish a
prima facie case of discrimination, Plaintiff must show that (1) she is a member of a protected
class, (2) she reasonably performed to Loyola’s expectations, (3) she was subject to an adverse
employment action, and (4) she was treated differently from similarly situated employees who
were outside of her protected group. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817.
Plaintiff cannot establish a prima facie case of discrimination with respect to the alleged

constructive discharge, verbal warning, shift change, or retaliation.


st. Minute OrdetsFonn (06/97)

United States District Court, Northern District of Illinois

Aame ohassigned Judge Amy J. St. Eve Sitting Judge if Other
A or Magistrate Judge ou“ than Assigned Judge
CASE NUMBER 03 C 1915 DATE 6/2/2004
CASE Pamela Austin-Edwards vs. Loyola University Medical Center
TITLE

[In the following box (a) 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:

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

(2) o Brief in support of motion due

@) Oo Answer brief to motiondue___. Reply to answer brief due__

(4) Oo Ruling/Hearingon_____—setfor__—_—at

(5) Oo Status hearing{held/continued to] [set for/re-set for] on setfor at

(6) oO Pretrial conference[held/continued to] (set for/re-setfor]on__——ssetfor_— at.

() o Trial[set for/re-set for]on___at

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

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Cl) Local Rule 41.1 CFRCP41(a)\(1) DFRCP41(a)(2).

(10) «=x {Other docket entry] | Enter Memorandum Opinion and Order. Defendant Loyola University

Medical Center’s motion for summary judgment is granted in its entirety. Status hearing set for 7/26/04
is stricken. Any other pending dates are stricken.

dl) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices
Notices mailed by judge's staff, 4
Notified counsel by telephone. UN : : m
wo | Docketing to mail notices.
ov | Mail AO 450 form. Anni docketberdep Uo
Copy to judge/magistrate judge, . JUN US 206:

date mailed notice
courtroom

THY deputy’s
initials

Date/time received in _
central Clerk's Office mailing deputy initiats



56.1 Stmt. 44.) “[U]nfair reprimands or negative performance evaluations, unaccompanied by
some tangible job consequence, do not constitute adverse employment actions.” Grube v. Lau
Indus., Inc., 257 F.3d 723, 729 (7" Cir. 2001); see also Kersting v. Wal-Mart Stores, Inc., 250
F.3d 1109, 1118-19 (7" Cir. 2001). There is no evidence that the verbal warning was
accompanied by a “tangible job consequence” other than Plaintiffs voluntary resignation, which,

as already discussed, was not a constructive discharge.

b. Plaintiff Cannot Establish That She Was Performing
According to Loyola’s Expectations

The undisputed facts show that Plaintiff was not meeting Loyola’s legitimate expectations
at the time of the alleged adverse employment action. Departmental rules required employees to
work their assigned shifts and to give prior written notice and obtain prior approval before
switching shifts with another employee. It is undisputed that Plaintiff did not work her assigned
shift, and there is no evidence that she gave Loyola prior written notice or obtained Loyola’s

prior approval before switching shifts with another employee.

Plaintiff states in her unsworn statement that she told an unidentified “head nurse” that
she switched shifts with another employee, and that the head nurse approved of the switch and
called Plaintiff at home to confirm the switch.* Plaintiff cites no record evidence to support this
assertion, however, and cannot even identify the “head nurse” that allegedly approved the switch.
Importantly, Plaintiff does not dispute that she never gave prior written notice to anyone at

Loyola, as required by the departmental rules. Plaintiff also does not dispute that she never told

‘ The Court need not even address this additional information, because it belongs in a separate
statement of facts pursuant to Local Rule 56.1(b)(3)(B). The statements do not qualify as an
affidavit because there is no indication that Plaintiff made the statements under oath.

ll


Plaintiff differently than she treated similarly situated white employees.’ Drawing all factual
inferences in favor of Plaintiff, these working conditions are insufficient as a matter of law to
support an inference of constructive discharge. Because Plaintiff cannot establish that Loyola
constructively discharged her, Plaintiff cannot base her discrimination claim on her separation

from Loyola’s employment.

2. Loyola Did Not Discriminate Against Plaintiff By Issuing A Verbal
Warning To Her

Plaintiff cannot base her discrimination claim on the verbal warning that Murphy issued
to Plaintiff for two reasons: (1) the verbal warning does not qualify as an adverse employment
action; and (2) Plaintiff cannot establish that she was performing according to Loyola’s
reasonable expectations when she received the warning.

a. The Verbal Warning Is Not An Adverse Employment Action

An adverse employment action involves 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. Fortier v. Ameritech Mobile Communications,
Inc., 161 F.3d 1106, 1112 n.7 (7" Cir. 1998). “{N]ot everything that makes an employee
unhappy is an adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7" Cir. 1996).

The verbal warning did not cause any change, significant or otherwise, in Plaintiff's

employment status, work responsibilities, salary, or employment benefits. (R. 40-1, Def.’s Rule

> The evidence shows that Murphy had authority to determine whether to allow an unrelated
child in a patient’s room and whether to allow visitors in the “staging room” area. (Id. J 88.)
The evidence further shows that departmental rules restricted employees’ bathroom breaks and
personal use of telephones, and required employees to sign off of their computers when they
went to lunch. (/d. {{] 89-91.) There is no evidence that Murphy applied these departmental
tules to Plaintiff any differently than she applied them to similarly situated white employees.

10


policy governing discipline of employees where employees fail to meet work performance
standards or adhere to the written rules of conduct. (/d. { 11.) Pursuant to this policy,
“Corrective Action is utilized to document and address incidents of . . . failure to meet attendance
and punctuality standards, or a specific situation where an employee failed to follow work
instructions or fulfill job duties.” (Jd. | 13.) The Policy further provided that “[clounseling is
used when a manager verbally counsels an employee regarding work performance deficiencies
and/or misconduct. ... [A] written record of the discussion noting the date, event, and
recommended action should be placed in the employee’s departmental file for future reference.”
(Id. 13.)

ANALYSIS
I. Plaintiff Cannot Prevail On Her Discrimination Claim

A plaintiff bringing a claim under Title VII can prove discrimination using either the
“direct” method or the indirect, burden-shifting method outlined by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Cerutti v. BASF
Corp., 349 F.3d 1055, 1060-61 (7" Cir. 2003). The Court applies the same standards to Title VII
claims and claims brought under Section 1981. Gonzalez v. Ingersoll Milling Mach. Co., 133
F.3d 1025, 1035 (7" Cir. 1998).

In her FAC, Plaintiff claims that Loyola discriminated against her by constructively
discharging her because of her race. (R. 20-1, FAC § 20.) Plaintiff also appears to claim that
Loyola, through Murphy, discriminated against her by issuing a verbal warning to her, changing
her work shift, and retaliating against her for compiaining to Murphy’s supervisor about

Murphy’s alleged unfairness to Plaintiff. None of these claims survives summary judgment.


LR. 56.1(b)(3)(A). “All material facts set forth in the [Rule 56.1] statement... will be deemed
admitted unless controverted by the statement of the opposing party.” L.R. 56.1(b)(3)(B). The
opposing party may file a separate “statement, consisting of short numbered paragraphs, of any
additional facts that require the denial of summary judgment.” Id.

Plaintiff has failed to comply with Local Rule 56.1 in several respects. First, Plaintiff
responded to only a fraction of Loyola’s 99 statements of fact.' The statements in Plaintiff's
response include impermissible argument, conclusory statements, and additional, nonresponsive
information that belongs, if anywhere, in a separate statement of additional material facts
pursuant to Local Rule 56.1(b)(3)(B). Second, Plaintiff failed to file a memorandum of jaw in
opposition to summary judgment. Finally, Plaintiff submitted several typewritten pages in which
Plaintiff makes numerous statements. (R. 46-1, Pl.’s Rule 56.1 Resp.) There is no indication,
however, that Plaintiff made these statements under oath subject to penalty of perjury.
Moreover, Plaintiff cites no record evidence in support of any of these statements.

Accordingly, the Court will deem admitted each of Loyola’s statements of material fact
that is supported by the record to which Plaintiff failed to respond. Fischer v. Ameritech, No. 98
C7470, 2002 WL 1949726, at *4 (N.D. Ill, Aug. 23, 2002). Although this Court is mindful of
Plaintiffs unrepresented status, “[e]ven pro se litigants must follow the rules.” Gleash v.
Yuswak, 308 F.3d 758, 761 (7" Cir, 2002); see also Davis v. Ruby Foods, Inc., No. 00 C 5578,

2002 WL 1285797, at *1 (N.D. IIL. June 11, 2002) (deeming facts admitted where pro se

' Specifically, Plaintiff responded to the following paragraphs: 19, 20, 23, 25, 26, 27, “30 & 31,”
34, 36, 42, “45-50,” and 73. The Court notes that Plaintiff improperly responded to multiple
statements of fact with a single response.



fails with respect to the verbal warning because the verbal warning was not an adverse

employment action, and because Plaintiff was not performing according to Loyola’s expectations
at the time it issued. Plaintiff's retaliation claim fails with respect to the shift change because the
shift change is not an adverse employment action. Accordingly, summary judgment is granted in

favor of Loyola as to Count I.°
Il. Plaintiff Cannot Prevail On Her Breach Of Contract Claim

In Count I Plaintiff claims that Loyola “entered into an implied and constructive
contract, wherein they explicitly agreed that if Plaintiff provided Defendant with appropriate
service, Defendant would provide Plaintiff with employment without a hostile work
environment.” (R. 20-1, FAC 31.) Plaintiff has provided no facts or legal argument in support
of this assertion. In light of the undisputed facts, Plaintiff's breach of contract claim does not

survive summary judgment.

A cause of action for breach of contract for failure to provide a particular benefit may
arise where an employer makes explicit promises to employees about particular working
conditions, such as fair discharge procedures or pay for unused sick days. Wexler v. Morrison

Knudsen Corp., No. 99 C 6522, 2000 WL 1720344, at *5 (N.D. Ill. Nov. 15, 2000) (citing

° Plaintiff further appears to claim that Loyola discriminated against her in violation of Section
1981 by failing to re-hire her. (Although Plaintiff never specifically alleges this claim, Loyola
addresses the facts that might relate to such a claim.) To survive summary judgment on this
claim, Plaintiff must establish that (1) she belongs to a racial minority; (2) she applied and was
qualified for a job for which the employer was seeking applicants; (3) despite her qualifications,
she was rejected; and (4) the position was given to someone of a different race who had similar
or lesser qualifications. Malacara v. City of Madison, 224 F.3d 727, 729 (7" Cir. 2000).
Plaintiff's claim of failure to rehire—to the extent that she actually asserts such a claim—fails
because it is undisputed that Loyola only hired minorities and non-minorties who were more
qualified for the positions than Plaintiff. (R. 40-1, Def.’s Rule 56.1 Stmt. ff 65-70.)

14


of both co-workers, patients and visitors in the unit. She would accuse me of things out of order
at my position without first obtaining the correct information. She would just constantly verbally
harass me. She has also threatened me with discharge when I tried to talk to her regarding her
treatment of me.” Plaintiff does not claim that Murphy—or anyone else at Loyola—ever made

race-based comments to Plaintiff.

It is clear that no reasonable jury could conclude that Loyola subjected Plaintiff to an
objectively hostile work environment. First, Plaintiff has failed to present any evidence that
Murphy actually made these statements, other than her own unsworn, improperly submitted
statement. Second, even if Plaintiff could demonstrate that Murphy made the statements, such
statements were not physically threatening, and there is no evidence that the comments affected
Plaintiff's ability to do her job. There is simply no evidence from which a reasonable jury could
conclude that Loyola subjected Plaintiff to a hostile work environment. Accordingly, summary

judgment is granted in favor of Loyola as to Count II.
Il. Plaintiff Has Abandoned Her Intentional Infliction Of Emotional Distress Claim

Plaintiff does not dispute that she abandoned her intentional infliction of emotional
distress claim. (R. 40-1, Def.’s Rule 56.1 Stmt. ]97.) Plaintiff has submitted no evidence or
argument in support of this claim, and there is no evidence in the record before the Court that

would support such a claim. Accordingly, summary judgment is granted in favor of Loyola as to

Count III.

16


genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed, R. Civ. P. 56(c). A genuine issue of triable 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, 259 F.3d 619, 625 (7" Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 2510 (1986)). “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248, 106 S. Ct. at 2510, The party seeking summary judgment has the
burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett,
477 US, 317, 322-23, 106 S. Ct. 2548, 2552 (1986). A party will successfully oppose summary
judgment only if it presents “definite, competent evidence to rebut the motion.” Equal
Employment Opportunity Comm’n y. Roebuck & Co., 233 F.3d 432, 437 (7" Cir. 2000). The
Court “considers the evidentiary record in the light most favorable to the nonmoving party, and
draws all reasonable inferences in his favor.” Lesch v. Crown Cork & Seal Co,, 282 F .3d 467,
471 (7" Cir. 2002).
Il. Local Rule 56.1

The Court first addresses Plaintiff’s failure to comply with the requirements of Local
Rule 56.1, which governs summary judgment briefing in the Northern District of Illinois. L.R.
56.1. Local Rule 56,1(a)(3) requires the moving party to provide a “statement of material facts as
to which the moving party contends there is no genuine issue and that entitle the moving party to
a judgment as a matter of law.” L.R. 56.1(a)(3). The opposing party must then file a “supporting
memorandum of law,” L.R. 56.1(b)(2), and “a concise response to the movant’s statement” that

includes, inter alia, “a response to each numbered paragraph in the movin; ’s statement.”
Pp P iS Pi


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

EASTERN DIVISION
PAMELA AUSTIN-EDWARDS, . )

Plaintiff, }

v. } No. 03 C1915 ee OY

LOYOLA UNIVERSITY MEDICAL } o
CENTER, )

Defendant. }

MEMORANDUM OPINION AND ORDER ; cguaet ad)

AMY J. ST. EVE, District Court Judge:

Plaintiff Pamela Austin-Edwards filed a three count First Amended Complaint (“FAC”)
against Loyola University Medical Center (“Loyola”), alleging that Loyola violated her civil
rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, er seg., and 42 U.S.C.
§ 1981. In Count I, Plaintiff alleges that Loyola discriminated against her on the basis of her
race. In Count II, Plaintiff alleges that Loyola breached an implied and constructive contract by
failing to provide Plaintiff with a non-hostile work environment. In Count III, Plaintiff alleges
that Loyola intentionally inflicted emotional distress on Plaintiff. Loyola moved for summary
judgment on all counts. For the reasons stated herein, summary judgment is granted in favor of
Loyola on all counts.

LEGAL STANDARDS
L Summary Judgment
Summary judgment is proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no


Murphy about the switch or obtained Murphy’s prior consent before switching shifts. Given
Plaintiff's failure to work her assigned shift and her failure to follow proper procedures for
switching shifts with another employee, Plaintiff cannot demonstrate that she was performing
according to Loyola’s legitimate expectations when she received the verbal warning.
Accordingly, Plaintiff cannot show that Loyola discriminated against her by issuing a verbal

warning.
3. The Shift Change Is Not An Adverse Employment Action

Plaintiff alleges in her FAC that “Ms. Murphy routinely altered Plaintiff's work schedule
at the last minute, contrary to written hospital policy, to cause undue inconvenience to Plaintiff.

Particularly near or during holidays.” (R. 20-1, FAC ff 13,15.)

Loyola’s decision to change Plaintiff's working hours from first shift to second shift does
not rise to the level of an adverse employment action. Plaintiff's pay and job title remained the
same, and she suffered no significantly diminished job responsibilities. Plaintiff offers no
support for the proposition that a mere transfer from first to second shift, unaccompanied by a
reduction in pay or significantly diminished job responsibilities, can constitute an adverse action.
Grube, 257 F.3d at 728 (altered work hours do not qualify as an adverse employment action); see
also Griffin v. Potter, No. 03-1342, 356 F.3d 824, 2004 WL 193578, at *4 (7" Cir. Feb. 3, 2004)
(neither change of shift, lengthened commute, unfair discipline, unfavorable evaluation, difficult
assignments, refusal to approve annual leave request, nor denial of parking permit constitutes
adverse action). Accordingly, Plaintiff cannot show that Loyola discriminated against her by

changing her schedule.

12


Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (Ill. 1987)). In this case,
however, there is no evidence that Loyola promised employees “tangible benefits” or “clearly
promised property interests.” Rather, the evidence shows that Loyola’s policies simply reflected
summaries of existing federal and state anti-discrimination law. Plaintiff cannot base a breach of
contract claim on the intangible condition of working free of a hostile work environment. See
Wexler, 2000 WL 1720344, at *5 (granting summary judgment in favor of defendant where
plaintiff based his breach of contract claim on the “intangible condition of working free from
retaliation,” and noting that “[o]ur legal system boasts an extensive regime under Title VII that

would have been better suited to Plaintiff's retaliation claim.”)

In any event, Plaintiff’s underlying hostile work environment claim fails on the merits
because there is no evidence to support an inference that Loyola subjected her to an objectively
hostile work environment. To survive summary judgment on a hostile work environment claim,
“a plaintiff must present evidence that would establish that the allegedly hostile conduct was so
severe or pervasive as to create an abusive working environment in violation of Title VIL”
Robinson v. Sappington, 351 F.3d 317, 329 (7" Cir. 2003) (quoting Russell v. Board of Trs. of
the Univ. of Ill. at Chicago, 243 F.3d 336, 342-43 (7" Cir. 2001)). “Title VII protects a worker
against conduct which is sufficiently severe or pervasive that a reasonable person would find it
hostile and which the victim himself subjectively sees as abusive.” Ngeunjuntr v. Metropolitan
Life Ins. Co., 146 F.3d 464, 467 (7" Cir. 1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17,
114 §. Ct. 367 (1993)). “The workplace that is actionable is the one that is ‘hellish.”” Logan v.

Kautex Textron N. Am., 259 F.3d 635, 641 (7" Cir. 2001) (citation omitted).

In her unsworn statement, Plaintiff complains that Murphy “would discredit me in front

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