Opinion
Cause No. IP 99-0325-C-M/S.
September 15, 2000.
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant City of Indianapolis' ("City") motion for summary judgment on Plaintiff Cynthia Avery's ("Avery") claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Avery alleges that the City discriminated against her due to her sex and retaliated against her for filing a charge of discrimination and this lawsuit. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS the City's motion for summary judgment.
I. FACTUAL BACKGROUND
Avery became acting Risk Manager for the City in November 1986 and assumed the position permanently in March 1987. Stmt. of Material Facts ¶ 6. Avery applied for the Risk Manager position; she was not appointed. Pl.'s Stmt. of Add'l. Material Facts ¶ 284. The City's Risk Manager controls the office of Risk Management, which is a function of Human Resources. Stmt. of Material Facts ¶ 5. During the relevant time period, Avery reported to and was supervised by Leah Smith. Id. ¶¶ 4, 7. Smith became Director of Human Resources in 1995, and continued to serve in that position after becoming Director of the Department of Administration in October 1997. Id. ¶¶ 3-4. During the events of this case, the City's mayor was Stephen P. Goldsmith. Id. ¶ 1.
The December 1988 job description for Risk Manager states that the purpose of the position was "to administer and coordinate the City Risk Management Program in the areas of employee health and safety, workmen's compensation, and property and liability insurance." Id. ¶ 8; Def.'s Ex. D. Avery's specific duties and responsibilities as Risk Manager before the 1997 and 1998 decisions at issue in this case included the following:
1. Avery was responsible for developing policies and procedures related to health issues, safety issues, worker's compensation, and property and liability insurance, which included responsibility for the City's Safety Handbook.
2. Avery was responsible for the City's compliance with the rules and regulations of the Occupational Safety and Health Act ("OSHA").
3. As part of her OHSA responsibilities, Avery reviewed new laws, rules, regulations, and codes pertaining to OSHA, safety, worker's compensation, and insurance to ensure compliance with those laws. She also developed and plans and assisted with the implementation of programs to reduce work-related injuries and improve productivity through safety training and awareness, and compiling and maintaining statistics on all City safety activities.
4. Avery was responsible for the emergency action plans for the City-County Building that are required by OSHA.
5. Avery was involved in and supervised site inspections where equipment and procedures subject to OSHA laws, rules, and regulations are in use.
6. Based on a review of statistics on injuries of City workers and new laws, Avery and her staff conducted programs to reduce work-related injuries and improve productivity through OSHA safety training and awareness.
7. Avery maintained records of inspections and safety training performed by Risk Management, injuries, accidents, and violations.
8. Avery was involved in and supervised the City's efforts to obtain and check driving records from the Indiana Bureau of Motor Vehicles of City job applicants and employees, and her office coordinated driver physicals to ensure their fitness to drive for the City.
9. Avery was involved in and supervised duties and responsibilities related to worker's compensation, including processing of payments for claims; filing reports with the State Industrial Board; contacts with the third-party administrator ("TPA") who administered the program and with health care providers; monitoring and administering City accounts for payments to the TPA and providers; monitoring the TPA and provider contracts; and making referrals to a rehabilitation nurse to coordinate and evaluate treatment.
10. Avery's office administered the City's Wellness program and its related Employee Assistance Program ("EAP"), which involved monitoring of provider contracts, reviewing quarterly reports, participating in wellness committee meetings, chairing a subcommittee of employee representatives, taking steps to ensure City employees are using the wellness program, investigating complaints about the program, and keeping track of employees' health credits under the program.
11. Avery worked with insurance consultants to define the City's needs for property and liability insurance.
12. Avery was responsible for reviewing leases of the buildings occupied by the City to determine if the City was supposed to have insurance on the building.
13. Avery was responsible for preparing, overseeing and maintaining the budget for the Risk Management office.
14. Avery was involved in requests for proposal relating to health care providers and the wellness and EAP program.
15. Avery was involved in and supervised the City's automobile liability program, which included monitoring provider contracts, processing employee accident reports, and working with the City's lawyers to handle claims.
16. Avery was involved in and supervised the City's commercial driver's license ("CDL") self-testing program, a federally-approved drug and alcohol testing program for those holding a CDL, and a training program for the supervisors of those licensed drivers.
17. Avery was involved in coordinating the City's compliance with OSHA requirements on blood borne pathogens.
Stmt. of Material Facts ¶ 9.
After Goldsmith took office, the City's departments went through reorganization. Id. ¶ 10. Job functions were "outsourced" to the private sector and departments were downsized, causing people to bid for other jobs. Id. ¶ 11. Goldsmith's philosophy for those who ran City departments was to look for ways to save money and reduce costs. Id. ¶ 12.
When Smith started as the Director of Human Resources, she believed the department was overstaffed. Id. ¶ 13. Smith believed she could make the department more efficient by reducing staff. Id. ¶ 14. By late 1995 or early 1996, Smith had already downsized almost all of Human Resources and cut staff that she considered non-essential. Id. ¶ 15. The Risk Management Office was the only area in Human Resources that had not yet been affected. Id. ¶ 16. Smith began looking for ways to become more efficient with the work done by Risk Management. Id. ¶ 17. This led Smith to ask two Human Resources employees, Al Tilford and Arnie Kaptain, to perform an assessment of the functions performed by the Risk Management office. Id. ¶ 18. Al Tilford's job with the City was to audit jobs. Id. ¶ 19. Smith asked Tilford to perform an audit of Risk Management. Id. ¶ 20. Tilford and Kaptain submitted a memorandum to Smith dated May 31, 1996 containing their report of this assessment and their recommendations. Id. ¶ 21.; Def.'s Ex. E. When Smith did the assessment of Risk Management, both her department (Administration) and another City department, the Department of Public Works, provided safety training to City employees. Stmt. of Material Facts ¶ 22. There was some overlap of training provided by the two departments. Id. ¶ 23.
The Risk Management Office's safety training focused on regulations arising from OSHA. Id. ¶ 25. Among other things, the Tilford/Kaptain memo recommended consolidating the training performed by five employees in Risk Management and the Center under the responsibility of two employees in Human Resources. Id. ¶ 27; Def.'s Ex. E. In 1997, Smith decided to implement the recommendation from the Tilford/Kaptain memorandum to consolidate training, but decided to transfer one Risk Management employee, Sharon Zishka, and safety training to the Center. Id. ¶ 32. Smith determined that transferring Zishka and safety training to the Center would promote efficiency and meet the request by the controller to "hold the line on budget" in Smith's department. Id. ¶ 33. Smith made the decision to transfer Zishka and safety training duties from the office of Risk Management to the Center in the Department of Public Works. Id. ¶ 34. Smith did not discuss the 1997 decision to transfer training to the Center with Goldsmith before making it. Id. ¶ 35. Goldsmith did not participate in making this decision and has no firsthand knowledge of why Smith made this decision. Id. ¶ 36.
Avery first heard that the safety training may have been moved from her responsibilities in a telephone conversation with Zishka, during which Zishka told Avery that the City had transferred her to the Center. Id. ¶ 40. Immediately after receiving the call from Zishka, Avery called Smith to discuss the matter, and Smith confirmed Zishka's story. Id. ¶ 41. During this conversation, Smith told Avery that the decision to transfer Zishka and the safety training duties to the Center had been made. Id. ¶ 42. This conversation took place before June 10, 1997. Id. ¶ 43. At the time Smith told Avery about the transfer decision, Avery thought the decision was an act of gender discrimination. Id. ¶ 44. Within days or weeks of her conversation with Smith, Avery contacted the Equal Employment Opportunity Commission ("EEOC") to claim that the decision to transfer Zishka and safety training was an act of gender discrimination. Id. ¶ 48. Avery completed a form at the EEOC office summarizing her claim of gender discrimination relating to the 1997 training decision. Id. ¶ 50. Avery did not file her charge of discrimination with the EEOC until April 27, 1998. Id. ¶ 54. Prior to April 1998, the City's Risk Management Office managed and coordinated the City's relationship and contract with the third party administrator ("TPA") of its worker's compensation claims. Id. ¶ 66. Avery and Christina Trimmell were the only employees in Risk Management who had duties and responsibilities related to worker's compensation. Id. ¶ 67. Avery had administrative duties such as reviewing the bills and monthly injury reports from the TPA, but she also was responsible for budgeting and coordinating worker's compensation matters with the City's outside counsel. Id. ¶¶ 70-73. Avery and Trimmell also played a role in assisting employees when they were unable to return to work in their former positions due to work restrictions. Id. ¶ 74.
Sometime in 1998, the City reassigned Risk Management's worker's compensation duties to Terry Nelson, a male Compensation and Benefits Manager in Human Resources. Id. ¶ 75. The reason for the transfer is in dispute. According to the City, Smith transferred the duties to Nelson to provide City employees with one-stop shopping for the benefits and to allow the City's TPA to play a more expanded role in administering worker's compensation benefits. Id. ¶ 76. She also allegedly made her decision based upon numerous best practices happening around the United States, information from seminars, books, and periodicals. Id. ¶ 80. When Avery asked Smith why she made the decision, however, Smith told her it was because former mayor Steve Goldsmith felt that Terry Nelson could get along better with the union because he was a male. Avery Dep., Vol. II at 177-178.
The transfer did not result in any change to Avery in her title, pay, office space or arrangements, office equipment, furniture, supplies, secretarial support, health, retirement, insurance or other benefits, take-home car privileges, professional affiliations, associations or certifications, or work hours. Id. ¶ 88. Avery retained all other duties and responsibilities of the Risk Manager position, including duties regarding Wellness and EAP, CDL drug and alcohol testing, certain OSHA training, property and liability insurance, employee orientations, the City-County Building's emergency action plans, and the City Safety Handbook. Id. ¶ 90. Avery did not think that the decision resulted in a change in prestige or authority in her position. Id. ¶ 92.
According to Avery, however, administering worker's compensation constituted a very significant part of her responsibilities as Risk Manager because she spent most of her time in that area, and the decision to transfer away those duties removed every element of her responsibility regarding worker's compensation. Avery Aff. ¶¶ 5-6; Avery III at 53. Avery had been responsible for worker's compensation issues since 1982, and it had become one of her areas of expertise. Avery I at 146-147. As Risk Manager, she was required to assess risk. After the City removed her worker's compensation and safety training duties, Avery claims that it was difficult for her to assess and analyze risk (and therefore recommend methods to prevent risk) because she no longer had access to information necessary to perform her duties. Avery I at 146-147. Avery believed that her position required less skill and intelligence to perform after the City transferred her worker's compensation duties. Plf.'s Add'l. Stmt. of Material Facts ¶ 394. Although Avery claims she had free time after the City removed her worker's compensation duties, she admits that was because she was emotionally distressed and unable to function in her job. Stmt. of Material Facts ¶ 97. After the April 1998 decision, Smith asked Avery to focus and spend more of her time in other areas. Id. ¶ 94. Avery believes she accomplished all of her job goals in 1998, and completed all of her assigned projects without receiving any complaints. Id. ¶¶ 99-100.
Some of Avery's duties with respect to worker's compensation included: (i) filling in for Trimmell when she was absent; (ii) coordinating how to resolve employee disputes over worker's compensation claims; (iii) reviewing monthly statements from the TPA; (iv) reviewing monthly reports from the TPA detailing the number of injuries, types of injuries, how much the injuries were costing the City, and making sure enough money was set aside for an anticipated particular injury; (v) using information in monthly reports from TPA to determine training needs; (vi) monitoring and determining amount different departments in City needed to budget for their respective shares of worker's compensation pools; (vii) monitoring TPA contract; (viii) coordinating with outside counsel by providing necessary documents and processing subrogation checks; and (ix) informing employees who were injured — and could not be accommodated — that their benefits had stopped and that they needed to apply for other positions within the City. Pl.'s Stmt. Add'l Material Facts ¶ 304.
Smith alleges several actions by the City were retaliatory, beginning with her raise in 1999.
Avery's salary increase for 1999 was 2.5 percent. A Id. ¶ 131. Avery's only reasons for believing her 2.5% raise was an act of retaliation are that others in Human Resources received higher raises, she completed tasks assigned to her, and Smith allegedly never complained about Avery's performance. Id. ¶ 135. Avery has no knowledge how anyone in Human Resources with a raise higher than her performed in 1998, other than Trimmell, Atterson, and Boswell. Id. ¶ 137. In 1999, Atterson received an "outstanding review" and a 2.75% increase, and Deborah Boswell received and "outstanding review" and a 3% increase. Id. ¶ 136. Avery does not know why she received a 2.5% increase in 1999, but believes her raise should have been closer to 3% to 3.5%. Id. ¶¶ 140-141.
Smith decided Avery would receive a 2.5% raise in 1999. Id. ¶ 145. Smith based her decision on her view of Avery's conduct in 1998. Id. ¶ 146. Smith thought Avery's conduct was generally satisfactory, but she had concerns about Avery's conduct affecting her performance. Id. ¶ 147. Specifically, Smith did not believe that Avery fully cooperated in the steps necessary to transfer the worker's compensation duties in 1998, did not respect Smith's authority to make decisions affecting Avery's job, and was not acting as a cooperative, team player within Human Resources. Id. ¶ 148.
Avery also planned on attending an awards ceremony in New Orleans where the City was receiving an award for its wellness program. Id. ¶ 150-154. Avery had participated in preparing the application for the award. Id. ¶ 152. The City would not pay for Avery to travel to New Orleans. Id. ¶ 156. The City told Avery that it was denying requests for payment of travel expenses unless the travel was essential to the City or for an ongoing project. Id. ¶ 160. Smith told Avery that she could attend the program, but that she would have to take unpaid leave to do so. Id. ¶ 164. The harm Avery alleges to have suffered from the City's refusal to pay her travel expenses is the professional harm from not being recognized at the awards ceremony. Id. ¶ 163.
Kate Healy, former press secretary for Goldsmith, told Avery sometime after April 1, 1999 that Avery could not give quotes to the press. Id. ¶ 170. Healy said the reason was that only department directors and Goldsmith were authorized to give quotes to the press on behalf of the City. Id. ¶ 171. Avery claims she gave quotes to the Indianapolis Star before she filed her discrimination charge and was not told that doing so was inappropriate. Id. ¶ 173. The harm Avery claims to have suffered from not being allowed to give quotes to the press was the emotional distress of not being able to be quoted and identified with the wellness program award. Id. ¶ 177.
Avery claims she was not invited to a meeting in April 1999 during which Smith and others discussed acceptance of the wellness award. Id. ¶ 178. Avery does not know who decided not to invite her. Id. ¶ 179. Avery claims she was not invited to another meeting regarding a proposal by a company called Mercer relating to the City's wellness program. Id. ¶ 180. Avery also claims that she was not invited to a meeting in September or October 1999 between Smith and the EAP counselor about a confidentiality issue with the EAP program. Id. ¶ 181. Avery claims not being invited to these meetings made it difficult to do her job. Id. ¶ 184. Other than this, Avery was not harmed by missing the meetings. Id. ¶ 185.
On May 6, 1999, Smith counseled Avery about certain matters, including Avery's failure to respect Smith's authority. Id. ¶ 192. Other than feeling embarrassed and stressed, the only harm that resulted from this counseling was that Avery believed Smith was "building a file" on her so that the City could fire her. Id. ¶¶ 200-201.
After Avery sent an e-mail message containing a typographical error to all City employees, Smith told Avery to obtain her approval before sending memoranda to all employees. Id. ¶ 204. Avery claims this admonishment caused her stress, embarrassment, and made her less productive. Id. ¶¶ 205-206.
In June 1999, Smith asked Avery whether she was using employee social security numbers to obtain salary information from the City's automated salary verification line. Id. ¶ 208. Smith conducted the social security number investigation because she discovered that salary information for Tilford and Kaptain had been sent by fax to a machine in Avery's office from the City's automated salary verification service. Id. ¶ 209. This can only be done by using the social security numbers of these two employees. Id. ¶ 210. After the investigation, Smith told Avery she could not do the "take-home car" project, which occurred twice a year. Id. ¶¶ 219-220. For City employees with take-home cars, the City is required to report that benefit as income to the federal government. Id. ¶ 221. Avery was responsible for sending forms to these employees to complete, updating the list of those employees, sending their forms to the City's payroll department, and double-checking the number of days of use accountable to employees. Id. ¶ 222. Avery did not suffer any other adverse consequences from the social security number investigation. Id. ¶ 224.
Avery requested a shredder to help prevent confidential information from being taken from the waste paper basket. Id. ¶¶ 236-237. In 1999, Avery also requested a color printer because she thought it might be attractive to prepare the Risk Management newsletter. Id. ¶ 238. Risk Management stopped distributing this newsletter in 1998. Id. ¶ 239. She also wanted a color printer to prepare year-end reports and for Atterson to prepare brochures. Id. ¶ 240. There are color printers in Avery's building to which she and people in Risk Management have access. Id. ¶ 241. The City denied Avery's requests for a shredder and color printer. Id. ¶ 242. Avery claims that not having a shredder makes her "worried" someone will go through her trash and discipline her for throwing away what she considers confidential information. Avery did not suffer any other adverse consequences as a result of being denied a shredder and color printer. Id. ¶¶ 246-247.
In August 1999, Smith sent Avery an e-mail asking about a lock she put on her office and requesting a key. Id. ¶ 250. Smith did not think it was appropriate for Avery to have an office to which no one had access. Id. ¶ 251. As Avery's supervisor, Smith believed she needed to have a key to her office in case Avery were absent. Id. ¶ 252. Avery is not aware of any facts or evidence to support her claim that this e-mail was sent as an act of retaliation. Id. ¶ 254. Avery claims the e-mail was emotionally "tiring." Id. ¶ 255. Avery did not suffer any other adverse consequences by receiving the e-mail. Id. ¶ 256.
Smith sent Avery an e-mail message on August 13, 1999 stating that Avery's comments at a meeting with a City contractor, Mercer, were not beneficial to the City. Id. ¶ 257. Avery claims she went to counseling over the e-mail, but suffered no other adverse consequences. Id. ¶¶ 262-263.
After Nelson resigned as Compensation Benefits Specialist, Smith gave Nelson's duties to Kaplan on an acting basis. Id. ¶ 265. Smith then eliminated Nelson's position and outsourced nearly all of his former duties. Id. ¶ 266. The only remaining duties were clerical matters related to worker's compensation and employee health insurance coverage coordination. Id. ¶ 267. Smith had Kaptain absorb these remaining duties. Id. ¶ 268. Avery claims she was not asking to assume Nelson's duties as the Risk Manager, but instead wanted the opportunity to assume Nelson's position. Avery I at 17-18; Avery IV at 127-129; 131; Nelson Dep. at 158-159. Avery claims that it was stressful not being given the opportunity to assume Nelson's duties on an acting basis. She did not otherwise suffer any adverse consequences from this decision. Id. ¶¶ 274-275.
Avery was informed that she had been accused of being a snitch concerning a Channel 13 investigation, and subsequently complained to Smith that this was a false accusation. Avery Dep., Vol. III at 242; 246. Avery felt that the accusation regarding the investigation made her appear to be a whistle-blower, an outcast, and one who could be trusted. Avery Dep., Vol. III at 250.
Avery felt humiliated as a result of Bob Jackson avoiding her. Avery Dep., Vol. III at 256-257. Finally, Avery claims that an officer from the grand jury made an unannounced visit to her office and questioned her concerning two allegedly harassing and threatening letters sent to City employees. Avery Dep., Vol. I at 25-27; Avery Dep., Vol. IV at 24-29.
The City objects to this fact and the allegations about being labeled a snitch as inadmissible hearsay. For reasons explained later, however, whether the evidence is hearsay or not becomes moot.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has recently emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994). Guided by these standards, this Court now considers the motion for summary judgment.
B. TITLE VII STANDARDS
Avery can establish that the City discriminated against her through direct or indirect means. Evidence that in and of itself suggests that the person or persons with the power to hire, fire, promote, and demote an employee were animated by an illegal employment criterion amounts to direct proof of discrimination. Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997). Evidence of discriminatory motives must have some relationship to the employment action in question; inappropriate but isolated comments that amount to no more than stray remarks are insufficient. Id. at 973. Remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based upon illegal criteria, however, will suffice as direct evidence of discrimination even if the evidence stops short of a virtual admission of illegality. Id. Proof of this nature supports the inference that a statutorily proscribed characteristic was at least a motivating factor in the adverse employment action at issue. Id. When such evidence is presented, it shifts the burden to the employer to demonstrate that it would have taken the same action even if the proscribed criterion had played no role in the decision. Id. The persuasiveness of that showing will normally be for the trier of fact to assess, unless the Court can say without reservation that a reasonable finder of fact would be compelled to credit the employer's case on this point. Id.
Avery may also utilize the burden-shifting mechanism outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the indirect method of proof, Avery must initially set forth, by a preponderance of the evidence, a prima facie case of sex discrimination. Id.; Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir. 1999). If Avery makes a showing sufficient to prove a prima facie case she will enjoy a rebuttable presumption of discrimination that shifts the burden of production to the City to articulate a "legitimate, nondiscriminatory reason" for its actions. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). The City may do so by producing evidence, whether or not persuasive, of a nondiscriminatory reason. Hicks, 113 S.Ct. at 2747 (noting that the plaintiff retains the ultimate burden of persuasion on the issue of intentional discrimination). If the City succeeds in this task, the presumption dissolves and the burden of production shifts back to Avery to demonstrate that the proffered reason for the adverse employment action is a pretext for discrimination. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1309 (7th Cir. 1997).
To establish a prima facie case of sex discrimination under the indirect method of proof, Avery must show that: (1) she was a member of a protected class; (2) she was meeting the City's legitimate performance expectations; (3) she suffered an adverse employment action; and (4) the City treated similarly situated persons not in the protected class more favorably. Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 875 (7th Cir. 1999).
Because Avery concedes she has no direct evidence of retaliation, the same McDonnell Douglas burden-shifting analysis applies to that claim. Miller v. American Family Mutual Insurance Co., 203 F.3d 997, 1007 (7th Cir. 2000). To establish a prima facie case of retaliation, Avery must establish that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse action; and (3) there is a causal link between the protected activity and the adverse action. Id. In light of these governing standards, the Court will now address Avery's claims.
III. DISCUSSION A. TITLE VII SEX DISCRIMINATION 1. 1997 Transfer of Duties
Avery's first claim is that the City discriminated against her when it transferred her safety training duties away in 1997. The City communicated its decision to Avery sometime before June 10, 1997. At the time she learned of the decision, Avery believed it to be an act of gender discrimination. Although Avery completed a form at the EEOC summarizing her claim as it related to the transfer, she did not actually file a charge until April 27, 1998.
The City initially argued that Avery was a policymaker and was thus excluded from Title VII's definition of "employee." See 42 U.S.C. § 2000e(f). Because Avery has not otherwise established her claims, the Court will not address this issue.
A prerequisite to suit under Title VII is the filing of a charge with the EEOC. Graham v. Mechanics Laundry Supply Inc. of Indiana, 2000 WL 760703, *11 (S.D.Ind. June 8, 2000), citing Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996). Because Indiana is a "deferral state,"a plaintiff usually must file a charge of discrimination within 300 days of the alleged discriminatory conduct. Id., citing 42 U.S.C. § 2000e5(e)(1); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 445 (7th Cir. 1994) (Indiana case).
It is undisputed that although the City notified Avery sometime before June 10, 1997 that it was transferring away some of her duties and that Avery believed at the time that the act was discriminatory, she nonetheless failed to file a charge until more than 300 days later. Avery contends that the City did not actually transfer the duties until sometime after June 1997, and that the 300-day clock should not have started ticking until that date. Avery's claim accrued on the date that she learned of the decision, however, and not when the effects of the decision may have been felt. See Librizzi v. Children's Mem. Med. Ctr., 134 F.3d 1302, 1306 (7th Cir. 1998) (statute of limitations on employment discrimination claim begins on the date employee learns of adverse employment decision, rather than when the financial consequences of the decision are felt), citing Delaware State College v. Ricks, 449 U.S. 250 (1980) and Chardon v. Fernandez, 454 U.S. 6 (1981). See also, Lever v. Northwestern University, 979 F.2d 552, 553 (7th Cir. 1992), cert. denied, 508 U.S. 951 (1993). Although Avery alleges that the details of the decision as communicated to her were not entirely clear, the record evidence does not support such an assertion. Accordingly, Avery's claim with respect to the 1997 transfer is time-barred and the City is entitled to summary judgment.
2. 1998 Transfer of Duties
Avery also claims that the City transferred her worker's compensation duties away from her in April 1998 because of her sex. According to Avery, Smith told her that the City took such action because Mayor Goldsmith believed a male would get along better with the union. The City argues that Smith's alleged comment to Avery about what Goldsmith told her is inadmissible hearsay. Avery is not offering the statement to prove the truth of the matter asserted. Instead, she is offering it to show the motive or state of mind of Smith, the decisionmaker. United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993) ("An out of court statement that is offered to show its effect on the hearer's state of mind is not hearsay"). Moreover, the comment from Smith to Avery appears to be admissible as an admission by a party-opponent. Rule 801(d)(2)(D) of the Federal Rules of Evidence provides that "a statement by the party's . . . servant concerning a matter within the scope of the . . . employment" is admissible if offered against the party. As Avery's direct supervisor and a decisionmaker with respect to the employment action in question, it appears that the transfer decision was a matter within the scope of Smith's employment. Accordingly, the Court finds that Smith's statement about the reason the City transferred the worker's compensation duties is admissible.
The City submitted affidavits from Smith and Goldsmith denying that Goldsmith uttered the alleged comment and that he had any involvement whatsoever in the decision to transfer the worker's compensation duties to Nelson. Viewing the facts in the light most favorable to Avery, the Court must assume for purposes of this motion that the comment was made.
Assuming Smith took her action because of Goldsmith's desire to have a male perform those duties, it appears that Avery has presented direct evidence that her sex was a motivating factor in the City's decision. It is indeed rare that an employer utters "smoking gun" remarks indicating intentional discrimination. In this case, however, there is no other way to interpret Goldsmith's alleged comment: Avery lost her worker's compensation duties to Nelson because Goldsmith thought that a male would get along better with a union. In other words, but for Avery's sex, the City would not have transferred the duties. The City disputes this, claiming that Goldsmith had no input into the decision and that Smith transferred the duties for various nondiscriminatory reasons. In view of Avery's direct evidence of the reason for the transfer of duties, and the City's competing explanation for the move, the Court finds a question of material fact as to what role, if any, Avery's sex played in the City's decision to move her worker's compensation duties to Nelson.
To survive the City's motion, however, Avery must also establish that she suffered an adverse employment action. See Lyons v. Long Cooling Systems, 2000 WL 682658, *2 at fn. 1 (S.D.Ind. February 22, 2000) ("Lyons concedes that his transfer to the second shift did not amount to a materially adverse employment action, so the transfer would not have violated the ADEA even if Long Cooling admitted it made the transfer because of Lyons' age."). It is well settled that Title VII does not cover "everything that makes an employee unhappy." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Therefore, even assuming Avery's sex was a motivating factor in the City's decision to transfer her duties, Avery still must establish that she suffered an adverse employment action. A material adverse change in the terms and conditions of employment must be more disruptive 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). Such a material change "might be indicated by a 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. Id. The City argues that Avery suffered no such material change in her employment, pointing to the list of other duties she retained after the transfer and the fact that Avery admits that she completed all of her assigned tasks in 1998 without receiving any complaints. The City also highlights that the transfer did not result in any change to Avery's title, pay, office space or arrangements, office equipment, furniture, supplies, secretarial support, health, retirement, insurance or other benefits, take-home car privileges, professional affiliations, associations or certifications, or work hours.
In addition to Crady, the City further relies upon Spring v. Sheboygan Area School Dist., 865 F.2d 883 (7th Cir. 1989) and Flaherty v. Gas Research Institute, 31 F.3d 451 (7th Cir. 1994) as examples of cases where the Seventh Circuit has found no adverse employment actions. In Crady, although the plaintiff showed that his job title had changed, he presented no evidence that his responsibilities were any less significant. Moreover, the plaintiff in Sheboygan did not think that the transfer was to a "lesser job," and the only negative about the new job was that it required her to travel a farther distance to work. Finally, the plaintiff in Flaherty had been asked to transfer to a new position that had comparable responsibilities and offered greater growth potential.
In response, Avery argues that over the last 18 years she had developed an expertise in the area of worker's compensation and that worker's compensation, along with health and safety issues, was the area of her job that took up most of her time. This seems to be consistent with the City's job description for her position, which lists worker's compensation as one of only three areas listed in the "Purpose Of Position" section. Avery also states in conclusory fashion that after losing her worker's compensation duties, the job required less skill and intelligence to perform. Although she does not go into great detail, Avery maintains that losing that responsibility impeded her ability to perform her Risk Manager duties, as she no longer had access to information necessary to analyze and assess this risk. On the other hand, Avery admits that she performed well in 1998 and completed all assigned tasks. Finally, Avery submits that after losing her worker's compensation duties she was left with a lot of free time. Based upon Avery's deposition testimony, however, it appears that this free time not necessarily the result of a lack of things to do, but from the fact that she was emotionally distressed and unable to function in her job.
In a case with similar facts, Fortier v. Ameritech Mobile Communicaitons, Inc., 161 F.3d 1106 (7th Cir. 1998), Mr. Fortier had been responsible for developing a new safety and security function and for Equal Employment Opportunities issues. Id. at 1108. Ameritech later assigned Fortier's EEO responsibilities to a younger female, leaving him with only his safety and security duties. Id. Stressing that EEO work was his area of expertise, Fortier felt that Ameritech's relieving him of those duties was the "beginning of the end" of his career with the company. The Seventh Circuit, although not ruling on the issue, strongly indicated that Ameritech's actions in removing Fortier's EEO responsibilities did not amount to an adverse employment action:
In Mr. Fortier's case, his compensation and salary grade remained unchanged, and there is no evidence that his office space changed. He did not lose supervisory authority over other employees. (His staffing responsibilities, which involved supervision of two to four corporate recruiters, had been removed at a previous time not at issue in this suit.) There is no evidence that the job responsibilities that Mr. Fortier was left with (safety and security) required less skill than his previous combination of duties. . . . Id. at 1112, fn. 7.
The Seventh's Circuit's analysis of Fortier's loss of duties — which is very similar to what happened to Avery — is a strong indication that it would not have found an adverse employment action. This is consistent with its earlier decision in Crady, where the plaintiff had been transferred from a bank branch manager position at one branch to a collections officer position at a different branch. Crady, 993 F.2d at 135-136. Although his new responsibilities were different, he maintained a management-level position at the same salary and benefits, and he failed to show that is new duties were less significant that those that he had previously enjoyed as a branch manager. As a result, the Court found that he had not shown that he had suffered an adverse employment action. Id. at 136.
The Court similarly finds that Avery has not established an adverse employment action. She suffered no change in job title, pay, office space or arrangements, office equipment, benefits, professional affiliations, or work hours. Like the plaintiff in Fortier, Avery claims that she had developed an expertise in worker's compensation issues and that those issues took up a large portion of her time. Avery also claims that her Risk Manager job became more difficult to perform after losing those duties, but she admits that she accomplished all of her job goals in 1998 and completed all of her assigned projects without receiving any complaints. Although Avery is undoubtedly upset about losing her worker's compensation duties, she has failed to establish that her remaining responsibilities were somehow less significant. Without such evidence, Avery has not established that she suffered an adverse employment action and the City is entitled to summary judgment.
B. TITLE VII RETALIATION
Avery also asserts that the City retaliated against her in several different ways. Most of the alleged instances of retaliation, however, are not of the nature that the Seventh Circuit has found amount to adverse employment actions. As discussed, not every action that makes an employee unhappy is covered by Title VII. Instead, to be actionable the employment action must affect the terms and conditions of the employee's employment. Gordon v. Southern Bells, Inc., 67 F. Supp.2d 966, 986 (S.D.Ind. 1999). "Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Smart, 89 F.3d at 441. Many of the actions Avery claims were retaliatory simply do not, even when considered cumulatively, amount to adverse employment actions.
Those actions include the City's refusal to pay for a trip to New Orleans; the City's instruction to Avery not to give quotes to the press; the City's failure to invite her to three meetings; Smith's counseling about her conduct; Smith's requiring her to get approval before sending memoranda to all employees; Smith's investigation into whether she used other employees' social security numbers to obtain salary information; the City's failure to provide her with a paper shredder and color printer; Smith's requiring her to give her a key to the lock on her office door; Smith's e-mail about Avery's comments at a meeting with a contractor of the City; the accusations of being a "snitch;" Bob Jackson's allegedly avoiding her; and an officer from the grand jury's questioning her about threatening letters sent to two City employees. While it is possible that a series of employment actions that in isolation do not seem retaliatory may indicate retaliation when considered together, Avery has made no attempt to show how these actions, even when considered together, affected the terms and conditions of her employment.
Only two of Avery's claims require further discussion: her allegation that she received a low raise and that she was denied Nelson's position. Even assuming these were adverse employment actions, however, Avery has failed to establish a causal connection between them and her protected activity. To establish the requisite causal connection Avery must show "that the protected activity and the adverse action were not wholly unrelated." Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000). "Speculation based on suspicious timing alone, however, does not support a reasonable inference of retaliation; instead, plaintiffs must produce facts which somehow tie the adverse decision to the plaintiffs' protected actions." Id. "The mere fact that one event preceded another does nothing to prove that the first event caused the second. Rather, other circumstances must also be present which reasonably suggest that the two events are somehow related to one another." Id.
Avery received a 2.5% increase for 1999, but claims that she should have received somewhere in the range of 3% to 3.5%. Avery concludes this decision must have been retaliatory because less than a year had elapsed since she filed her EEOC charge, and since that time Avery believed that the City had been scrutinizing her closely. Other than the alleged suspicious timing and her perception that the City began scrutinizing her more closely, Avery has produced no evidence linking the raise decision to her protected activity. Avery's subjective belief that the raise decision was retaliatory is insufficient to establish a prima facie case. Payne v. Milwaukee County, 146 F.3d 430, 434 (7th Cir. 1998). Accordingly, the City is entitled to summary judgment on that claim.
Finally, Avery claims that Smith denied her the opportunity to interview for Nelson's benefits manager position. Avery provides no details about the qualifications required for the position, whether it would have involved more pay, more benefits, a more prestigious title, greater opportunity for advancement, or any other information. In fact, the only harm she allegedly suffered from not being the opportunity to interview was that it was stressful. Moreover, assuming she suffered an adverse employment action, Avery has failed to establish that "but for" her protected activity she would have received the interview. See Gordon Bells, 67 F. Supp.2d at 985 (plaintiff must prove the causal link by showing that employer would not have taken the adverse action "but for" the protected expression). In fact, when asked what evidence she had linking the denial of an interview to her protected activity, Avery responded "I believe I was more qualified for the position." Avery IV at 129. Avery simply has failed to produce any evidence connecting her protected activity to the denial of an interview for Nelson's position. Accordingly, the City is entitled to summary judgment on that claim.
IV. CONCLUSION
Avery has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on her sex discrimination or retaliation claims. Accordingly, the City's motion for summary judgment on those claims is GRANTED.