Whether a change in an employee’s working conditions has been materially adverse is a
question of fact, which may be resolved on summary judgment only if the question is not fairly

contestable. See Williams v. Bristol-Myers Squib Co., 85 F.3d 270, 273 (7th Cir. 1996).

“Obviously a purely lateral transfer, that is, a transfer that does not involve a demotion in form or
substance, cannot rise to the level of a materially adverse employment action.” Id. at 274. “A
transfer involving no reduction in pay and no more than a minor change in working conditions will
not do, either.” Id.

In Williams, an employee was transferred to another sales territory and placed ina coaching
program, in order to survey the employee’s performance. Id, at 272. The Seventh Circuit held that
this transfer and placement in a coaching program did not rise to level of materially adverse
employment action. Id.

Inthe present case, Perez’ transfer is virtually indistinguishable from the “coaching program”
the employee was transferred to in Williams. Rivera decided to transfer Perez to the night shift
because the shift that Perez had supervised, the P.M. shift, had the most problems. Rivera also
transferred Perez so that she could improve her performance. Perez characterizes the transfer to the
night shift as a demotion, because she was under the supervision of another Sergeant, Facundo Allere
(“Allere”) and a Corporal, Frank Gonzalez (“Gonzalez”). However, Perez was not under the
supervision of Sergeant Allere or Corporal Gonzalez in a hierarchical sense; rather, she worked
closely with the officers on the night shift so that she could become acclimated to the procedures of
that shift. During this time, Perez retained her title as Sergeant and performed substantially the same
duties as she had performed on her previous shift. Furthermore, once this acclimation occurred,

Perez was the only Sergeant in the night shift; however, she resigned shortly thereafter. Thus, it

19


See Ghosh v. Indiana Dept. of Environmental Management, 192 F.3d 1087, 1091 (7th Cir. 1999).

IfPerez succeeds in establishing a prima facie case of discrimination, the burden then shifts to NAH,
who must explain why it failed to promote Perez, based on nondiscriminatory reasons. Id. If NAH
proffers a nondiscriminatory reason, the burden then shifts back to Perez, who then must demonstrate
that NAH’s proffered reasons are pretextual. Id. “Pretext is established if the plaintiff can show that
the defendant's proffered reasons are either lies or completely lacking in factual basis.” Id. (citing

Mills v. Health Care Serv. Corp., 171 F.3d 450, 458 (7th Cir. 1999)).

The court now addresses whether Perez’ claim of failure to promote can survive a motion
for summary judgment. Since Perez has offered no direct evidence of discrimination, her claim must
be analyzed under the McDonnell-Douglas burden-shifting framework.

Perez cannot establish a prima facie case of discriminatory failure to promote. Perez, a
female, certainly is a member of a protected group under Title VII. However, Perez has failed to
establish that she applied for the Lieutenant position. Yet this point is the essence of Perez’ failure
to promote claim - that she was denied the opportunity to apply for the position because it was never
posted. The burden-shifting framework is to be applied flexibly, and so the court will further address
this element. See Flores v, Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999) (noting
that courts must apply the McDonnell-Douglas test flexibly; for example, when an employee
concedes that she was not meeting her employer’s expectations but claims that she was treated more
harshly than other rule-breakers, it makes “tittle sense in this context to discuss whether she was
meeting her employer's reasonable expectations”).

Perez alleges that in May and June of 2000 she spoke to Byrnes inquiring about the

availability of a prospective Lieutenant position, which Byrnes was in the process of creating. After

13


conducted any meeting concerning her incident report at any time.” (PI.’s Resp. to Defs.’ 56.1
statement 47.) However, in her deposition, Perez indicates that she did meet with Dickow and
Byrnes, and further states that Byrnes indicated that he did not observe the alleged incident. (See
Pl.’s Dep. pg. 176-78) Thus, it is undisputed that on January 28, 2000, Perez, Byres and Dickow
met to discuss the incident. At this meeting, Byrnes indicated that he did not see the alleged incident
and that Dahl denied hitting Perez. Despite his denial, Dahl was talked to about the matter and told
to act in a professional manner.

Perez states that after the alleged incident, Dahl never again came into physical contact with
her, nor did any other employee of NAH. During her deposition, Perez was asked: “Aside from
Steve Dahl, was there anyone at the hospital in all the time you worked there who did something
hostile or offensive towards you?” Perez responded: “No.” This admission seems to contradict the
majority of Perez’ claims. Yet, Perez alleges that in May and June of 2000, her co-workers “shunned
her and isolated her and perpetuated rumors that she would be demoted” after they learned of her
complaint against Dahl. In addition, Perez alleges that between July and September of 2000, Dahl
would “watch her” and take notes. Sometime in mid-June of 2000, NAH posted a notice of anewly
created Lieutenant position, in order to solicit applications. Perez alleges that notice of this position
was never posted. However, evidence from other sources indicates that the position was posted.
Subsequently, Perez did not apply for this position, and the position was awarded to the only
applicant, Rivera, in late June or early July of 2000.

On July 27, 2000, Rivera called Perez to a meeting to discuss her performance, and areas of
concern. Rivera drafted a memo that detailed his areas of concern by listing numerous infractions

which Perez allegedly committed. As a result of this meeting, Rivera determined that Perez would



cannot be argued that Perez suffered “significantly diminished material responsibilities.” Hilt-Dyson,

282 F.3d at 466 (citing Ribando, 200 F.3d at 510).

Perez also attempts to establish an adverse employment action by arguing that she was
constructively discharged. Perez seeks to establish this claim by repeating the incidents of which
she complains in a blunderbuss fashion, arguing that the totality of the circumstances establish that
she was constructively discharged. In order to establish a constructive discharge claim, a plaintiff
must show that their working conditions were so intolerable as to force resignation involuntarily.

See Harriston v. Chicago Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993). Absent extraordinary

circumstances, a complaining employee is expected to remain on the job while seeking redress.
Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997).

As indicated earlier, none of these alleged incidents, individually or collectively, establish
an adverse employment action. Perez resigned her employment with NAH voluntarily. While Perez
may have subjectively believed that these incidents were so severe that she had no option other than
to resign, the fact remains that these subjective beliefs amount to no more than speculation.
“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition
of which is a primary goal of summary judgment.” Tyler v. Runyon, 70 F.3d 458, 469 (7th Cir.
1995).

4, Pendent Claims:

Having concluded that Perez’ federal claims cannot survive a motion for summary judgment,
the court declines to exercise supplemental jurisdiction over her state law intentional battery and
intentional infliction of emotional distress claims. See 28 U.S.C. § 1367(c); see also Van Harken v.

City of Chicago, 103 F.3d 1346, 1354 (7th Cir.1997) (“The general rule is that when as here the

20



these concerns in a memo, which the two reviewed. Specifically, this memo set forth a list of
instances of Perez’ poor performance, including: “excessive tardiness; leaving her shift before time;
threatening some night shift officers to go to court for a certain incident; not responding to the pager
when called upon during an emergency; no discipline for attendance and punctuality; no Accutech
system check done in PM shift; no frequent check on 1121 and 1029 building alarm system; poor
scheduling of man power; scheduled herself off during Puerto Rican parade no supervision in charge;
driving the Jeep with head lights off during the night; no daily activity sheets for ex-employee
Jiminez; visitor passes left in lobby area unattended after 2130 hours; not refueling Jeep at end of
day; not being familiar with the location when fire alarm system activates; supervisor keys not given
to next shift at end of day, resulted in lost keys; no home number given, in case of emergency.”
Rivera testified that he had these concerns based on his observations of Perez while he was a
Sergeant.

However, as with other contradictions in her allegations, what Perez argues are false
allegations of policy violations are in reality undisputed facts. In her deposition, Perez testified that
she had left work before the end of her shift; she did not respond to a pager during an emergency;
she drove the security Jeep from one parking lot to another without the head lights on while it was
dark; and that she did not refuel the Jeep at the end of the day if she was busy. In addition, as to
Rivera’s allegation of excessive tardiness, when asked whether Perez was late for work, Johnson
testified: “She would be late a lot of times.” Furthermore, in regard to the remainder of Rivera’s
allegations, Perez simply denies them in a conclusory manner and fails to offer any proof to support
those denials. Therefore, Perez cannot establish the second element of her prima facie case, that she

performed her job according to NAH’s legitimate expectations, because Perez admits that she

17



that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive
to be so.’” Id, at 463 (citing Faragher, 524 U.S. at 787; Hostetler v. Quality Dining, Inc., 218 F.3d
798, 807 (7th Cir. 2000)). “In determining whether contested conduct actually creates an objectively
hostile work environment, a number of factors may be considered including ‘frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work performance.”
Id, (citing Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275; Hostetler, 218 F.3d at 806). “Title VII does
not prohibit all verbal or physical harassment in the workplace.” Id. The Seventh Circuit has stated:
“Although a bright line does not exist separating innocuous from actionable behavior, this court has
noted that isolated and minor incidents of questionable conduct generally will not warrant a
conclusion of sexual harassment.” Jd. (citing Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 708 (7th
Cir. 1995).

The court now addresses whether Perez’ claim of a hostile work environment can survive a
motion for summary judgment. Perez alleges that Dahl hit her on the buttocks with a schedule book,
and the Court accepts that allegation as true for the purpose of this motion.

There can be no doubt that Perez found the incident to be offensive; however, that incident
must also be objectively offensive in order to warrant of finding of sexual harassment. Objectively
viewed, this one contact, which Perez admitted never occurred again, cannot support a hostile work
environment claim.

In Hilt-Dyson, a female police officer alleged that on two occasions her supervisor rubbed
her back, each lasting less than one minute, and in addition singled her out during a uniform

inspection and stared at her chest. See Hilt-Dyson, 282 F.3d at 463-64. The Seventh Circuit held



4) the actions of her co-workers who “shunned her and isolated her and perpetuated rumors that she
would be demoted” after they learned of her complaint against Dahl. Second, Perez contends that
she was not promoted to the position of Lieutenant, while another male employee with equal or
lesser qualifications was awarded the promotion. Third, Perez contends that after the alleged
incident on January 10, NAH retaliated against her for reporting the complaint. She indicates that
her co-workers ostracized her and perpetuated rumors about her demotion or termination, false
allegations of policy violations were made against her, she was transferred to another shift, and this
transfer was in effect a demotion because she was forced to report to a subordinate employee. In
addition, Perez contends that while she and another male employee were ineligible for “comp time,”
she was denied “comp time,” which was mistakenly given to another male employee.’ In short,
Perez claims that she was constructively discharged, since all of these actions led to a “work
environment so uncomfortable that no person could reasonably be expected to endure it.”
NAH filed a motion for summary judgment, which the court now addresses.
II. DISCUSSION

A. Standards for Summary Judgment:

Summary judgment is permissible when “there is no genuine issue as to any material fact and
. .. the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c), “Factual

disputes are ‘material’ only when they ‘might affect the outcome of the suit under the governing

‘Perez cites cases involving the Equal Pay Act, however, does not include such a count in
her complaint. In short, Perez has failed to adequately develop this argument, both legally and
factually. See United States v. Jones, 224 F.3d 621, 626 (7th Cir. 2000) (noting that an
undeveloped argument speaks to its paucity, and refusing to consider the argument). In addition,
Perez fails to link this incident into her sexual discrimination arguments based on hostile work
environment, failure to promote, and retaliation.

6


be transferred to the night shift. Rivera indicated that the reasons for the transfer were because the
shift that Perez supervised had the most problems, to allow Perez to improve her performance, and
to balance the shifts. Perez alleges that the infractions, which Rivera documented, are false and that
they were fabricated solely to discipline her for filing her internal complaint against Dahl. However,
once again, Perez admits that she committed a number of the infractions which were detailed in
Rivera’s memo.

Perez filed three separate claims of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). The first claim was filed on July 25, 2000, and contained the allegations
of the January 10, 2000 incident, the rumors of her imminent démotion or termination, and the denial
of an opportunity for a promotion. The second claim was filed on August 4, 2000, and contained
allegations of being retaliated against for filing the first EEOC claim; specifically, that two days after
she filed the initial EEOC claim she was transferred to another shift under the supervision of a lower
ranking employee. However, it is undisputed that NAH first learned of the EEOC charges on August
9, 2000. The third claim was filed on January 24, 2001, and reiterated the allegations contained in
the second claim, and alleged that she had been constructively discharged.

Plaintiff left work on September 19, 2000 and then went on sick leave. Plaintiff did not
return to NAH afterwards, and tendered her resignation letter to Rivera and the Human Resources
department on November 19, 2000.

Perez filed the present lawsuit on October 26, 2000. Perez bases her sexual discrimination
claims on a mosaic of allegations. First, Perez contends that NAH fostered a hostile work
environment, as evidenced by: 1) the January 10th incident where Dahl hit her on the buttocks, 2)

NAN?’s failure to investigate the incident, 3) Dahl’s actions in watching her and taking notes, and


comunitted a number, but not all sixteen, of the infractions listed in Rivera’s memo.
In addition, Perez cannot establish the third element of her prima facie case, that she suffered

a materially adverse employment action. A materially adverse employment action is “more than a

mere inconvenience or an alteration of job responsibilities.” Crady v. Liberty Nat'l Bank & Trust
Co., 993 F.2d 132, 136 (7th Cir. 1993). The Seventh Circuit has indicated:

“Although creating a precise list of activities that constitute adverse employment
actions would be impossible because of the unique circumstances of individual cases,
we have indicated that materially adverse actions may include ‘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.’”

Hilt-Dyson, 282 F.3d at 466 (citing Ribando v. United Airlines, Inc., 200 F.3d 507, 510 (7th Cir,
1999)).

Perez attempts to establish an adverse employment action by arguing that she received false
allegations of policy violations and was transferred to another shift under the supervision of a
subordinate employee, which was in effect a demotion. As just indicated, the allegation that she
received false allegations of policy violations is unsubstantiated. However, Rivera’s memo does not
evidence an adverse employment action. “Standing alone, a letter of concern or counseling ... does
not rise to the level of an adverse employment action.” Ribando, 200 F.3d at 511.

As a result of this meeting at which these problems were discussed, Rivera determined that
Perez would be transferred to the night shift. Perez retained her title as Sergeant and performed
substantially the same duties as she had performed on her previous shift. In addition, Perez did not
receive a reduction in salary. Yet, Perez argues that Rivera transferred her because he knew that it

would adversely affect her, due to family obligations.

18


violation of 42 U.S.C. § 1981(a). While, a claim under § 1981 includes the same elements and
employs the same analysis and methods of proof as a Title VII claim, see Johnson v. City of Fort
Wayne, 91 F.3d 922, 940 (7th Cir. 1996), a claim for sexual discrimination is not cognizable under

§ 1981. See Friedel v. City of Madison, 832 F.2d 965, 967 fn. 1 (7th Cir. 1987). In Friedel, the

Seventh Circuit stated:

“It is important to note here, . . . that while section 1983 and Title VII reach both sex
and race discrimination, claims of sex discrimination are not cognizable under
section 1981, e.g., Runyon v. McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 2592, 49
L.Ed.2d 415 (1976); St. Louis v. Alverno College, 744 F.2d 1314, 1317 (7th Cir.
1984), and we have so construed plaintiffs’ amended complaint. We urge counsel,
however, to be more mindful of the distinctions among sections 1981 and 1983 and
Title VII; drafting complaints is the business of the bar, not the bench.”

Id. With this admonition, this court follows the advice of Friedel, and construes Perez’ complaint

of sexual discrimination under Title VII, and addresses the motion for summary judgment.

Count I of Perez’ complaint alleges that a hostile work environment was created by: 1) the
hit on the buttocks by Dahl, 2) NAH’s failure to investigate the incident, 3) Dahl’s actions in
watching her and taking notes, and 4) actions of her co-workers who “shunned her and isolated her
and perpetuated rumors that she would be demoted” after they learned of her complaint against Dahl.
“To maintain an actionable claim under this theory, an employee must demonstrate that her co-
worker or supervisor harassed her because of her sex.” Hilt-Dyson v. City of Chicago, 282 F.3d 456,

462 (7th Cir. 2002) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998))

(emphasis added). Furthermore, the “harassment must be ‘so severe or pervasive as to alter the
conditions of the victim’s employment and create an abusive working environment.’” Id. (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998)).

“[A] hostile work environment is one that is ‘both objectively and subjectively offensive, one



Minute Order Fosmn (0497) mod

; x Ly United States District Court, Northern District of Iinois
me oDAssigned Judge Sitting Judge if Other
thesprsire ase |___ Charles R. Norte ne oe te
CASE NUMBER 00 C 6672 DATE 2/4/2003
CASE Perez vs. Norwegian-American Hospital, et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (6) state briefly the nature
of the motion being presented.)

MOTION:
DOCKET ENTRY:
qd) o Filed motion of [ use fisting in “Motion” box above.]
(2) o Brief in support of motion due
(3) Oo Answer brief to motion due___. Reply to answer brief due.
(4) 0 Ruling/Hearingon___—_ssetfor__—_at
(5) im Status hearing[held/continued to] [set for/re-set for]on__——ssetfor__—s at.
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__ssetfor__—at__.
(7) oO Trial[set for/re-set for]on___at
(8) i) [Bench/Jury trial] [Hearing] held/continuedto ss at_—
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CO Local Rule 41.1 CFRCP41(a)(1) CO FRCP41(a)(2).

ao) ff [Other docket entry] | Defendants’ motion for summary judgment [38-1] granted. See attached.
ai) [For further detail see order attached to the original minute order.]

No notices required, advised in open court. "Document

No notices required. Number
umber of notices :

Notices mailed by judge’s staff.

Notified counsel by telephone, 3 - lb ~ (0) >

date.docketed

*

Docketing to mail notices.

YX | Mail Ao 450 form.

dockobing deputy initials

Copy to judge/magistrate judge.

date mailed notice

courtroom
deputy’s
initials

imme received in
ral Clerk's Office mailing deputy initials



Perez faced a hostile work environment.

First of all, the actions and rumors from Perez’ co-workers are not the type of incidents which
create an objectively hostile work environment. “Freedom from ‘public humiliation’ is not a term,
condition or privilege of employment.” See Spring v. Sheboygan Area Sch. Dist., 865 F2d 883, 886
(7th Cir. 1989). Secondly, Perez has not shown that NAH failed to investigate her complaint,
because of her gender. While Perez claims that NAH did not investigate this incident, her deposition
testimony contradicts her claim. In fact, her complaint was investigated, and Byrnes and Dickow
met with her on January 28, 2000 to discuss the matter; a meeting which Perez has admitted
attending. During this meeting, Perez was told by Byrnes that he did not witness the alleged hitting.
Furthermore, Dahl was spoken to and he denied Perez’ allegations. Dickow testified that at the end
of this meeting Perez stuck to her version of the incident, but thanked him for conducting an
investigation. Thirdly, Perez fails to link the allegations that Dahl watched her and took notes to any
type of sexual harassment. For example, she does not state that Dahl leered at her. Compare Hilt-
Dyson, 282 F.3d at 464 (employee alleged that supervisor stared at her chest). Perez also fails to
indicate how many times this behavior is alleged to have occurred, In short, a security guard
watching their surroundings fails to evidence a hostile work environment. Lastly, and most damning
is that in her deposition, when asked: “Aside from Steve Dahl, was there anyone at the hospital in
all the time you worked there who did something hostile and offensive towards you?” Perez
indicated: “No.” Perez’ admission that no one at the hospital did anything hostile and offensive
towards her seems to contradict the majority of her claims. It is clear that after the January 28, 2000
meeting that NAH conducted there was never any form of physical contact between Perez and Dahl

or any other NAH employees. The meeting was a reasonable response and presumably effective.

11



that these incidents did not equal an objectively hostile work environment, and were not severe and
pervasive. See id.

Viewed along a continuum of sexual harassment, Perez’ allegations fall well short of the
allegations that were found to be insufficient in Hilt-Dyson. In terms of the severity of the incident,
Perez does not describe the incident as having been forceful, nor as having lasting for any longer than
a fleeting second of time. In terms of the incident interfering with her work performance, Perez did
not seek to be relieved from her shift, but rather self-treated the injury and remained at work. The
schedule book touched the winter uniform covering the buttocks of Perez, who was exiting a public
elevator. The details of Perez’ self-treatment are left to speculation. There were no shouts, screams,
calls for assistance, or reactions by the veteran security officer at the time of the contact.
Furthermore, Perez has failed to show that the contact on the buttocks was of a sexual nature. See
Hilt-Dyson, 282 F.3d at 462 (“an employee must demonstrate that her co-worker or supervisor
harassed her because of her sex”). Perez does not assert that Dahl made any comments during this
incident or acted in a sexually explicit manner. This incident, while certainly unprofessional, if it
did in fact occur, may have been no more than an expression of camaraderie amongst the corps of
security guards, not unlike that observed on national television between athletes, with no intended
or perceived sexual connotation. In short, this isolated and minor incident of questionable conduct
will not support a hostile work environment claim.

Perez attempts to bolster her hostile work environment claim by the mosaic of alleged
incidents which occurred after the January 10, 2000 incident. Perez claims that her complaint was
not investigated, Dahl watched her and took notes, and her co-workers “shunned her and isolated her

and perpetuated rumors that she would be demoted.” However, none of these claims establish that

10



law.’” Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 610 (7th Cir. 2001) (citing Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 248 (1986)). The nonmoving party cannot rest on the pleadings

alone, but must identify specific facts, see Cornfield v. Consolidated High School District No. 230,

991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a

genuine triable issue of material fact. See Murphy v. ITT Technical Services. Inc., 176 F.3d 934,

936 (7th Cir. 1999). Thus, the nonmoving party “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). “The days are gone, if they ever existed, when the nonmoving
party could sit back and simply poke holes in the moving party’s summary judgment motion.”

Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Further, in deciding

a motion for summary judgment, the court can only consider evidence that would be admissible at
trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers. Inc., 92 F.3d
560, 562 (7th Cir. 1996).

The court views the record and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party. Fed. R. Civ. P. 56(c); see also Perdomo v. Browner, 67 F.3d 140,
144 (7th Cir. 1995). “In the light most favorable” simply means that summary judgment is not

appropriate if the court must make “a choice of inferences.” See United States v. Diebold, Inc., 369

USS. 654, 655 (1962); see also Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The
choice between reasonable inferences from facts is a jury function. See Anderson, 477 U.S, at 255.
B. Sexual Discrimination Claims:

1. Hostile Work Environment:

Initially, it must be noted that Count I of Perez’ complaint alleges sexual discrimination in


federal claim drops out before trial . . . the federal district court should relinquish jurisdiction over
the supplemental claim.”)
Il. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted as to Counts
I - III, and the court declines to exercise supplemental jurisdiction over Counts IV - V.

IT IS SO ORDERED.

ENTER: Li Yer’

CHARLES R. NORGLE, SR.
Judge United States District Court

DATED: Z-Y-O3

21



checking the mechanical security systems in place at NAH.

In July of 1989, Perez was hired by NAH as a security officer in the Security Department.
In 1993, Perez was promoted to Officer in Charge.’ Then in late 1994 or early 1995, Perez was
promoted to the position of Sergeant. Perez’ formal evaluations indicate that she performed her
duties well throughout this time.

In 1997, Dahl, a DuPage County Sheriff Deputy, began working as a consultant to NAH, in
response to gang-related crime problems at the hospital. Dahl’s responsibilities included hiring
additional off-duty Chicago Police Department officers to serve as armed security guards for NAH.
Dahl and these armed security guards worked in the emergency room during the hours of 6:00 PM
to 2:00 AM. These off-duty police officers operated under a separate chain of command from the
unarmed security guards.

The genesis of Perez’ sexual disotimination claims can be traced to an incident that is alleged
to have occurred on January 10, 2000. On that date, Perez alleges that as she exited an elevator,
Dahl hit her on the buttocks with a schedule book that he was carrying. Dahl was waiting to enter
the elevator with Byrnes when this incident is alleged to have occurred. Perez indicated that she
suffered pain as a result of the contact, but “self-treated it,” and remained at work for the duration
of her shift.

That very day, Perez complained to Byrnes of the incident. The following day, Perez also
reported the incident to the Director of Human Resources, Russ Dickow (“Dickow”). In her

response to defendants’ Local Rule 56.1 statement, Perez states: “Ms. Perez denies that Norwegian

‘The position of Officer in Charge is the equivalent of the position of Corporal. See
footnote 3, supra.



these conversations, Byrnes took no further action in regard to creating the Lieutenant position, and
resigned his employment with NAH effective June 15, 2000. NAH then reorganized the
organizational hierarchy of the Security Department, and changed the duties of the prospective
Lieutenant position. The decision regarding the duties of this newly created Lieutenant position was
made by Dickow, Toma and the President of NAH, Michael O’Grady. This newly created position
was to replace the Director of Security position, and be responsible for general oversight of the
Security Department. The Lieutenant position was awarded to Rivera, the only employee to apply
for the position, in late June or early July of 2000.

Perez contends that she was not given the opportunity to apply for this position, since it was
never made known to her or other employees. In response, NAH contends that it posted this position
in the employee cafeteria and the Human Resources office so that employees could view the
information and submit applications. NAH’s version of events is corroborated by another employee
of the Security Department, Princess Johnson (“Johnson”), who testified that the position was posted
in the Human Resources office. In addition, Johnson testified that Perez stated that she was not
interested in the position. Thus, the evidence indicates that Perez’ failure to apply for the position
can be attributed only to her, and not to NAH. Therefore, Perez has failed to satisfy the second
element of her prima facie case.

More significantly, Perez fails to establish that Rivera had similar or lesser qualifications for
the position than she did. Rivera had held the position of Sergeant with NAH for a full two years
longer than Perez. Perez attempts to bolster her claim by indicating that she had achieved additional
training and certification in security-related areas, which Rivera lacked. Perez also indicates that the

performance reviews of her and Rivera were essentially identical. However, the fact remains that

14


case, a presumption of discrimination has been established; the burden of production then shifts to
NAH, who must offer a nondiscriminatory reason for the adverse employment action. Id. Should
NAH offer a nondiscriminatory reason for the adverse employment action, the presumption of
discrimination has been rebutted; the burden of production then shifts back to Perez to demonstrate
the pretextual nature of the proffered reason. Id. “At this point, if the employee fails to establish
pretext, her retaliation claim cannot survive summary judgment.” Id.

Perez’ retaliation claim may be easily disposed of based solely on the lack of temporal
proximity between the reporting of the alleged sexual harassment and the alleged retaliation. Perez
reported Dahl’s conduct to Byrnes and Dickow in January of 2000. The false allegations of policy
violations and transfer to another shift under the supervision of a subordinate employee, which she
contends are retaliatory acts, occurred in late July of 2000. “The cases that accept mere temporal
proximity between an employer’s knowledge of protected activity and an adverse employmentaction
as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal
proximity must be very close.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing
Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (4-month period insufficient)). Thus,
the six month gap between the protected activity and the allegedly adverse employment actions
militate against a finding of retaliation.

Additionally, Perez’ retaliation claim fails because she cannot establish a prima facie case
of retaliation. Perez cannot establish the second element of her prima facie case, that she performed
her job according to NAH’s legitimate expectations. What Perez argues are false allegations of
policy violations stem from a meeting she had with Rivera on July 27, 2000. On that date, Rivera

and Perez discussed a number of concerns that he had with her performance. Rivera documented

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claims.

The Department of Public Security (“Security Department”) at NAH is responsible for
security at the hospital. The Security Department is organized in a para-militaristic hierarchy. Until
June 15, 2000, the highest position within the Security Department of NAH was the Director of
Security. The Director of Security reported directly to the Chief Operating Officer of NAH, Mary
Toma (“Toma”). At all times pertinent to this matter, James Byrnes (“Byrnes”) held the position of
Director of Security. Byrnes resigned in June of 2000, and thereafter NAH reorganized the structure
of the Security Department. The position of Director of Security was eliminated and replaced with
the position of Lieutenant. As implemented, the newly created position of Lieutenant reported
directly to Toma, and was responsible for general oversight of the Security Department. The
Lieutenant position was awarded to Rivera in July 2000.

The remainder of this organizational hierarchy consisted of Sergeants, Corporals’, and
security officers. The security officers were assigned to various posts during their shifts.‘ These
security officers were immediately supervised by Corporals, who were the individuals on a shift that
would assume responsibility in a Sergeant’s absence. The Sergeants had general oversight and
responsibility of the shifts to which they were assigned, and in addition, scheduled the work shifts

of security officers, relieved security officers during break times, and were also responsible for

?Rivera was hired by NAH as a security guard in June of 1989. In June of 1992, Rivera
was promoted to Sergeant, and remained in that position until his promotion to Lieutenant.
Rivera’s formal evaluations indicate that he performed his duties well throughout this time.

>The position of Corporal was formerly referred to as Officer in Charge.

“There were three shifts for security guards: the day shift from 6:30 A.M. to 2:30 P.M.;
the P.M. shift from 2:30 P.M. to 10:30 P.M.; and the night shift from 10:30 P.M. to 6:30 A.M..

2



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

EASTERN DIVISION
VALENTINA PEREZ, )
)
Plaintiff, )
)
v. ) Case No. 00 C 6672
) HONORABLE CHARLES R. NORGLE
NORWEGIAN-AMERICAN HOSPITAL, )
IVAN RIVERA, and STEVE DAHL ) DOCKETED
)
Defendants. ) FEB 6 2003

OPINION AND ORDER
CHARLES R. NORGLE, SR., District Judge
Before the court is Defendants’ motion for summary judgment. For the following reasons,
the motion is granted.
I. BACKGROUND'

Valentina Perez (“Perez”) filed suit against her former employer, Norwegian-American
Hospital (“NAH”), and former co-workers, [van Rivera (“Rivera”) and Steve Dahl (“Dah]”), based
on events occurring between January and September of 2000. Specifically, Perez’ complaint
contains five counts: Count I, sexual discrimination under 42 U.S.C. § 1981(a); Count IJ, failure to
promote under 42 U.S.C. § 2000e-2; Count III, retaliation under 42 U.S.C. § 2000e-3; Count IV,
state law intentional battery; and Count V, state law intentional infliction of emotional distress. The
distillate of Perez’ federal claims, which are brought solely against NAH, are that she had been

discriminated against because of her gender, alleging a mosaic of incidents in support of those

'The court takes the facts from the parties’ Local Rule 56.1 statements and accompanying

briefs. Disputed facts are noted in the text.


In conclusion, Perez has failed to establish her hostile work environment claim.

2. Failure to Promote:

Count I of Perez’ complaint alleges that she was not promoted to the position of Lieutenant,
while another male employee with equal or lesser qualifications was awarded the promotion, in
violation of 42 U.S.C. § 2000e-2. ,

Title VII provides that it is an unlawful employment practice for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2.

A plaintiff claiming some form of actionable discrimination under Title VII can overcome
an employer’s motion for summary judgment in one of two manners. “The first is by putting in
enough evidence (whether direct or circumstantial) to raise a genuine issue concerning the
employer’s motivation in carrying out the challenged employment action.” Brill v. Lante Corp., 119
F.3d 1266, 1269 (7th Cir. 1997). This direct method is rarely utilized, and is best exemplified by
a plaintiff offering “smoking gun” types of evidence, such as admissions or strong circumstantial

evidence. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997). “The second

is the so-called McDonnell-Douglas method, the frequently used burden-shifting framework first set

out in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).” Brill, 119 F.3d at 1270.

Under the McDonnell-Douglas method, in order to make a prima facie showing of
discrimination in a failure to promote case, Perez must demonstrate that (1) she was a member of
a protected group; (2) she applied for and was qualified for the position sought; (3) she was rejected

for the position; and (4) those who were promoted had similar or lesser qualifications for the job.

12



Rivera had more years of experience in positions of supervision and leadership, both at NAH and
another hospital, and the Lieutenant position was essentially a supervisory and leadership position.
Therefore, Perez has also failed to satisfy the fourth element of her prima facie case.

3. Retaliation:

Count III of Perez’ complaint alleges that she was retaliated against for reporting Dahl’s
conduct by receiving false allegations of policy violations and being transferred to another shift
under the supervision of a subordinate employee, in effect a demotion.

Title VII prohibits an employer from retaliating against an employee who has “opposed any
practice made an unlawful employment practice by this subchapter or . . . has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under
the statute. See 42 U.S.C. § 2000e-3(a). As with other Title VII claims, a plaintiff seeking to prove
such a violation may present either direct or indirect evidence of the employer’s intent. See Hilt-

Dyson, 282 F.3d at 465. Perez seeks to establish her claim by the indirect burden-shifting method.

Under the indirect methodology, Perez must first present evidence sufficient to establish a
prima facie case that NAH retaliated against her in violation of Title VII. Id. In this case, a prima
facie case is established if Perez can demonstrate that: (1) she engaged in statutorily protected
activity; (2) she performed her job according to NAH’s legitimate expectations; (3) despite meeting
NAH’s legitimate expectations, she suffered a materially adverse employment action; and (4) she
was treated less favorably than similarly situated employees who did not engage in statutorily
protected activity. Id.; see also Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th
Cir, 2002). If Perez fails to establish any element of the prima facie case, her retaliation claim fails

and cannot survive summary judgment. Id. If, on the other hand, Perez establishes a prima facie

15