”

236 F.3d 368, 372 (7" Cir. 2001). Plaintiff filed her EEOC charge on May 16, 2002. Defendant
maintains that any acts occurring prior to July 20, 2001 — the 300" day before May 16, 2002 - are
time-barred.

Plaintiff responds that some of the acts about which she complains did occur within the
300-day filing period, and that the court may consider acts that occurred prior to that period
under the continuing violation doctrine. In her Statement of Additional Undisputed Material
Facts and supporting affidavit, plaintiff states thal Riba harassed her in the following ways during
the 300-day filing period:

. Riba asked plaintiff out in August 2001, and again after Labor Day 2001. When plaintiff
declined Riba’s August invitation, Riba called her a “slut,” and when plaintiff declined
his September 2001 invitation, Riba stated that plaintiff was a “fucking bitch not worth
his time anyway.”

. Riba referred to plaintiff as a “slut,” “whore,” “psycho bitch,” and “fucking bitch” in
conversations he had with others in plaintiff’s presence.

. Shortly before plaintiff's birthday in August 2001, afler plaintiff had walked by him, Riba
told an employcc,”yca, I’m going to give her some. Bang the bag for her birthday.”

. In September 2001, after plaintiff had complained to Scoleri that Riba had refused to send
a porter to get her car, Riba told plaintiff he was sorry and asked to make it up to her. As
he said this, Riba gyrated his hips back and forth, pushing his pelvis out toward her in a
sexually offensive manner.

. At least once every other week through September 24, 2001, Riba looked directly at
plaintiff and gave her “the finger.”

. Through September 24, 2001, every timc plaintiff walkcd past Riba in the service area,
she heard Riba grumble under his breath at her.

Defendant urges the court to disregard these factual assertions as a sham attempt to create
an issue of fact to survive summary judgment. Defendant notes that these assertions appear for

the first time in plaintiff's affidavit filed in support of her response to defendant's summary



may have been an inconvenience, the court finds that it does not constitute an adverse
employment action.

Although plaintiffs termination was an adverse employment action, plaintiff docs not
establish a prima facie case of rctaliation based on her termination, because plaintiff has failed to
offer evidence that any similarly situated employee who did not complain was not terminated.
Plaintiff asserts in her affidavit that other employees made negative comments about the
dealership and were not terminated or even disciplined. In addition, Scoleri testified that
although other employecs had made negative comments about the dealership before, he had
never terminated any other employee for having a bad attitude. However, plaintiff fails to offer
evidence that management had previously reccived complaints that other employees who had
made negative comments had bad attitudes, as it had about plaintiff before she made her
comment that she could not stand working at the dealership. Nor does she offer evidence that
management had previously counseled these employces about their attitudes, as it had with
plaintiff. Since plaintiff has failed to establish this element of the prima facie case, her retaliation
claim does not survive summary judgment under this analysis. See Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 465 (7" Cir.), cert. denied, 537 U.S. 820 (2002) (the inability to prove
even a single element of the prima facie case is fatal to a retaliation claim).

ORDERED: Defendant Patrick Libertyville Automobiles, Inc.’s motion for summary
judgment [18-1] is granted. Judgment in favor of defendant and against plaintiff will be set forth
on a separate document and entered in the civil docket. See Fed. R. Civ. P. 58.

ENTER:

George W {Vindberg
Senior United States District Judge

JAN 16 2004
DATED:

9



plausible. Accordingly, the court disregards these allegations.’

Without these allegations, plaintiff has no cvidence of incidents of discrimination or
harassment that occurred within the 300-day filing period. Plaintiff filed her EEOC complaint
more than 300 days after her discrimination and harassment claims accrued, and thus the
complaint was untimely. Summary judgment is entered in defendant’s favor on Counts I and II
of plaintiff's complaint.

B. Retaliation (Count UI)

Defendant also argucs that it is entitled to summary judgment on plaintiff's retaliation
claim. Plaintiff contends that following her complaint of scxual harassment and discrimination
in March 2001, defendant undertook a course of conduct designed to force plaintiff to leave
defendant’s employment, including directing plaintiff to answer telephones, which plaintiff
contends was a material change in her job duties tantamount to a demotion; ostracizing her;
denying her overtime opportunitics; and vandalizing her car. In addition, plaintiff contends that
defendant retaliated against her by terminating her and providing false information to plaintiff's
prospective employers.

To survive summary judgment where a plaintiff has no direct evidence of retaliation,
under the McDonnell! Douglas analytical framework, the plaintiff must first establish a prima
facie casc of retaliation by demonstrating that (1) she engaged in statutorily protected expression;

(2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and

> Even if these allegations were plausible, they would not support plaintiff's
discrimination and harassment claims, since there is no evidence that defendant was aware of the
incidents. See Shepherd v. Slater Stecls Corp., 168 F.3d 998, 1004 (7TM Cir. 1999) (to hold
employer liable for harassment of employee by co-worker, plaintiff must establish that employcr
knew or had reason to know about the harassment),

6



judgment motion, and that they contradict plaintiff's deposition testimony. Specifically, on
November 18, 2003, plaintiff testified in her deposition that Riba did not make any comments
dircetly to her after February 2001. At the continuation of her deposition on December 3, 2003,
plaintiff testified that she did not recall if Riba made any derogatory comments in reference to
her after May 2001, and that she was not aware of Riba referring to her as a “slut” after May
2001.

Affidavits that contradict the affiant’s deposition are entitled to no weight in summary
judgment proceedings, unless the affidavit contains a plausible explanation for the discrepancy.

Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 623-24 (7" Cir. 2002). Plaintiff concedes in her

affidavit that she recalled the incidents at issue after her deposition, but explains that “[d]ue to
the obvious stress and trauma | have been under, my memory has been effected [sic] and after
several hours of deposition, I was having difficulty remembering everything that happened to
me.” She notes in her affidavit that she had a breakdown on November 18, 2003."

The court finds plaintiff's explanation implausible. Plaintiff offers no support for her
claim that she suffered a memory loss during her deposition. To the contrary, during her
deposition, plaintiff was ablc to recall many other incidents, dating as far hack as 1999, Nor is
the court persuaded that plaintiffs November 19, 2003 breakdown adversely affected her
memory. Indeed, on December 3, 2003, plaintiff testified that she remembered more about the
time when she was employed by defendant as a result of the breakdown. Plaintiff's recent

recollection of incidents that conveniently occurred during the 300-day filing period simply is not

' Plaintiff testified on December 3, 2003 that the breakdown had occurred on November
19, 2003.



mere inconvenience or an alteration of job responsibilities. Ribando v. United Airlines, Inc,, 200

F.3d 507, 510-11 (7" Cir. 1999), Examples of materially adverse actions include termination; or
a demotion evidenced by a decrease in pay, a less distinguished title, a material loss of benefits,
or significantly diminished material responsibilities. Id.

First, plaintiffs claim that she was ostracized by co-workers and management after she
made her March 2001 complaint does not tise to the level of an adverse employment action.
Ostracism may constitute an adverse employment action where “an employer orders its
employces to shun the plaintiff, provided that this activity causes material harm to the plaintiff.”
Parkins v. Civil Constructors of TIL, Inc., 163 F.3d 1027, 1039 (7" Cir. 1998). Here, although
plaintiff testified that virtually every employee al (he dealership stopped talking to her after she
sent her March 2001 letter, she offers no evidence that defendant directed the employees to
ostracize her or that she suffered material harm as a result. In addition, although plaintiff
testified that Scoleri, her supervisor, also stopped talking to her and was hostile after March
2001, plaintiff conceded that Scoleri continued to talk to her about work-related issues. Since
there is no evidence that defendant ordered any of its employees not to talk to plaintiff, or that the
alleged ostracism resulted in material harm to plaintiff, this conduct does not amount to an
adverse employment action.

Nor is the court persuaded by plaintiff’s claim that being assigned to answer telephones
was equivalent to a demotion. Plaintiff testified that before she sent her March 2001 letter, she
was required to answer the telephones only a couple of times, and that others also were required
to answer the telephones. According to plaintiff, beginning in March 2001, Scoleri directed
plaintiff to answer the telephones while the person responsible for answering the telephones was
in training. Plaintiff testified that she answered the telephones from four to six hours almost
every day until June or July 2001. According to plaintiff, there were five or six other employees

who could have been assigned to answer the telephones, but that she was required to answer the

telephones ninety percent of the time during that period. While this additional temporary duty



Maule Order dim (0897)

ko United States District Court, Northern District of Ilinois
me of Assigned Jud i Sitting Judge if Other
ia Maglstrate Judge George W. Lindberg than Assigned Judge
CASE NUMBER 03 C 2488 DATE 1/16/2004
CASE Patricia Eagon vs. Patrick Libertyville Automobiles
TITLE

{ln the following box (a) indicate the party fiting the motion, e.y., plaintiff, defendunt, 3rd purty pluit
of the motion being presented.

and (b) state briefly the nature

MOTION;

DOCKET ENTRY:

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

(2) a Brief in support of motion due

Q) a Answer brief to motion due____-- Reply to answer brief due.

(4) a Ruling/Hearingon____setfor__——_at

g a Status hearing[held/continued to] [set for/te-set forlon___set for at

(6) a Pretrial conference[held/continued to] [set for/re-set for]on Set for at.

(7) oO Trial[set for/re-set for]on_— at

(8) a [Bench/Iury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant ta]
DrFRcP4(m) CLocal Rule 41.1 OFRCP41(a\(1) UC FRCP41(a)(2).

ao [Other docket entry] Defendant’s motion for summary judgment (18-1) is granted. Enter

memorandum opinion and order.

al ff {For further detail sec order attached to the original minute order.]

No notices required, advised in open court. Document

Number

2 |

No notices required. number of notices

Notices mailed by judge’s staff. JAN 9 0 200 rn

Notified counsel by telephone. ding dooketed

¥ | Docketing to mail notices.

| Mail AQ 450 form. genga sce rps ag

Copy to judge/magistrate judge.

, ‘ date mailed natce
courtroom ha . i

SLB Uepuly"s
initials

“4 Bateftime received i -
central Clerk's Office railing deputy inl:



(4) no other similarly situated cmployee who did not file a complaint was subject to the adverse

employment action, See Stone v. City of Indianapolis Pub. Utils, Div., 281 F.3d 640, 644 (7

Cir.), cert. denied, 537 U.S. 879 (2002). If the plaintiff makes this showing, the burden shifts to

the defendant to state a Icgitimate reason for the action. See id. If the defendant does so, the
burden shifts back to the plaintiff to show that the defendant’s stated reason is pretextual. See id.

Defendant does not dispute that plaintiff cngaged in statutorily protected expression when
she complained about sexual harassment, or that her termination constituted an adverse
employment action. Although plaintiff claims that incidents other than her termination also
constituted retaliation, the court finds that plaintiff has offered no evidence of some of these
incidents. For example, plaintiff has offered no evidence to support her claim that defendant
retaliated against her by providing false information to plaintiffs prospective employers, Nor
does plaintiff offer any evidence that one of defendant’s employees was responsible for
vandalizing her car. In addition, plaintiff supports het claim that she was retaliated against by
being denied overtime opportunities solely through her affidavit; plaintiff failed to mention this
claim when directly questioned about the bases for her retaliation claim at her deposition.
Therefore, the court disregards plaintiff's statements of fact relating to overtime for the same
reason as it disregards her statements relating to incidents of harassment occurring during the
300-day filing period.

Plaintifi’s remaining allegations of retaliation, other than her termination, whether

considered individually or collectively, do not amount to materially adverse employment actions.

Not every action that makes an employcc unhappy is actionable. Cullom v. Brown, 209 F.3d

1035, 1041 (7" Cir. 2000). Rather, an action must be materially adverse; it must be more than a



In September 2001, Scoleri heard plaintiff tell another cmployce that she could not stand
working at the dealership. On September 21, 2001, Scoleri met with plaintiff and directed her to
write him a note explaining why she made the comment. Plaintiff wrote Scoleri a note stating
that she had made the comment because she did not feel that she was appreciated. On September
24, 2001, Scoleri terminated plaintiffs employment.

II. Discussion

Summary judgment shall be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with [any] affidavits, show that there is no
genuine issue as to any matcrial fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). The court must draw all reasonable inferences in favor of
the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The moving party bears the initial burden of demonstrating that no material issue exists for trial.
Celotex Corp. v, Catrett, 477 U.S. 317, 323 (1986). Once the moving party has properly
supported its motion, the nonmoving party must offer specific facts demonstrating that a matcrial
dispute cxists, and must present more (han a scintilla of evidence to support its position.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986),
A. Discrimination and Harassment (Counts | and LI)

Defendant argucs that it is entitled to summary judgment on plaintiffs discrimination and

harassment claims because the factual allcgations contained in those claims are time-barred. In

Mllinois, a discrimination charge must be filed with the Equal Employment Opportunity

Commission (“EEOC”) within 300 days afier the alleged unlawful employment practice occurred

that forms thc basis for the charge. See 42 U.S.C. § 2000e-5(e); Sharp v. United Airlines, Inc.,



Riba’s advances and sexual comments.

On March 9, 2001, plaintiff sent a letter to defendant’s owner, complaining that Riba had
been sexually harassing her. After plaintiff sent her letter, Scoleri met with plaintiff to discuss it.
Scoleri was angry that plaintiff had gone over his head to complain directly to the owner.
Defendant retained an outside attorney to investigate plaintiffs complaint. On April 6, 2001,
after the attomey issucd a report containing his findings, defendant issued Riba a verbal and
written warning.

Plaintiff does not dispute that after March 2001, the sexual harassment she perceived
diminished, However, plaintiff claims that Riba continued to make advances to her, and make
offensive comments to her and about her, after March 2001. In addition, according to plaintiff,
after she sent the March 2001 letter, many of her co-workers stopped talking to her, and she was
given the additional duty of answering telephones.

In the summer of 2001, Scoleri observed that on some days, plaintiff would come to work
with an attitude problem. During the same period, three managers complained to Scoleni that
plaintiff had a bad attitude and that they were not able to deal with her on a day-to-day basis.

The managers advised Scoleri that plaintiff responded with disgust to their work-related
questions or requests. According to Scoleri, he performed some of plaintiff's duties because
other employces did not want to approach plaintiff.

In August 2001, Scoleri met with plaintiff to counsel her about her attitude in the
workplace and her dealings with her co-workers. After the August 2001 meeting, Scoleri did not
receive any further complaints from other managers about plaintiff, and he observed only that

plaintiff appeared very quiet at work,



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

DOCKETED

PATRICIA EAGON,
JAN 2 0 2004
Plaintiff,
03 C 2488
v.
Judge George W. Lindberg
PATRICK LIBERTYVILLE AUTOMOBILES,
INC., an Illinois corporation d/b/a PATRICK

PONTIAC-GMC TRUCK,

we SS SSS

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Patricia Eagon brought this action against defendant Patrick Libertyville
Automobiles, Inc., alleging claims of sexual harassment (Count I), sex discrimination (Count 1),
and retaliation (Count II) under Title VII of the Civil Rights Act of 1964 (“Title VII"), 42 U.S.C.
§ 20006¢ et seq. Before the court is defendant’s motion for summury judgment. For the reasons
stated below, defendant’s motion is granted.

1. Factual Background

Defendant is an automobile dealership. Plaintiff bogan working for defendant in 1986,
and became the office manager in May 1997. As office manager, plaintiff supervised six
employees. Her supervisor was Tom Scoleri.

During the time relevant to this action, Jim Riba was an assistant manager in defendant’s
service department. Riba had no supervisory authority over plaintiff. Beginning in October
1999, Riba began to make unwanted sexual advances to plaintiff. Between October 1999 and

December 2000, plaintiff made numerous complaints to Scoleri and various managers about