Opinion
IP 00-1187-CB/S
September 13, 2001
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction.
This is an employment discrimination case in which the plaintiff, Cheryl Hayden, alleges that her former employer, the Heart Center of Hendricks County, Inc., subjected her to a sexually hostile work environment and then fired her for complaining about the harassment. The case is before the court on defendant's motion for summary judgment as to both claims. For the reasons explained in greater detail below, we GRANT defendant's motion as to both.
Defendant asserts that Ms. Hayden has named the defendant incorrectly and that the correct name of the entity is The Care Group LLC. Since neither party has moved to correct the caption, we refer to the defendant as the "Heart Center" or "HCHC" for the sake of convenience.
II. Statement of Facts.
The following facts are either unrebutted or interpreted in a light reasonably most favorable to the plaintiff. All are supported by admissible evidence.
Ms. Hayden worked for HCHC for about fifteen months, from May 1998 to October 1999. She began work as a medical documents clerk, reporting to Vicki Harper, HCHC's Practice Manager. Def. SUMF ¶ 1; Hayden Aff. ¶ 8. Def. SUMF ¶ 2. Dr. Lloyd Greene was employed by HCHC as a staff physician. Ms. Hayden did not report to Dr. Greene, nor did Dr. Greene have authority to hire, fire, demote, promote, transfer, or discipline employees. Def. SUMF ¶ 3, 4. Ms. Hayden acknowledges that Dr. Greene was her co-employee. Pl. Brief, p. 1.
In compliance with Local Rule 56.1, defendant has filed and served a Statement of Undisputed Material Facts set forth in numbered paragraphs with references to admissible evidence. We refer to that document as "Def. SUMF" with appropriate paragraph numbers.
The Care Group has a written Employee Handbook, a copy of which Ms. Hayden received in January 1999. Def. SUMF ¶ 5. The Employee Handbook contains an anti-harassment provision which outlines prohibited conduct and an internal complaint procedure for reporting unwelcome sexual advances. It also contains an anti-retaliation provision to protect employees who complain of harassment. Def. SUMF ¶ 6, 7, 8, 9. Ms. Hayden acknowledges that she attended a sexual harassment meeting to review and discuss The Care Group's anti-harassment policies and procedures. Def. SUMF ¶¶ 10, 28.
Ms. Hayden alleges that, at unspecified times during the course of her employment, Dr. Greene engaged in eight acts of "unwelcome sexually provocative conduct," including: (1) the statement to a group of employees, "Do you think I have it in me?" in reference to his procreative abilities with his wife; (2) a reference to a medical chart that he had "down my pants"; (3) a reference to Ms. Hayden as a "wild women" [sic] relating to her sexual prowess; (4) a reference to a nurse "getting on her knees"; (5) sneaking up and touching her; (6) references to his exploits with women during his college days; (7) telling "off the wall jokes"; and (8) making a gesture about a woman being flat chested. Hayden Aff., ¶ 3.
HCHC acknowledges that Dr. Greene required some counseling about sexual harassment and that it counseled him about his conduct toward several female employees including Ms. Hayden.
During the spring and summer of 1999, Vicki Harper spoke with Dr. Greene about three incidents: (a) a report from Kathy Clodfelter that Dr. Greene stated to her that he "wondered what it would take to get her on her knees"; (b) a report from Frances Robbins that Dr. Greene told her that he had a patient's chart down his pants; and (c) reports from Cheryl Hayden that, on numerous occasions, Dr. Greene intentionally surprised her when she was not looking. Def. SUMF ¶ 11. Hayden Aff., ¶ 3.
Ms. Harper met with Dr. Greene and instructed him that his behavior was inappropriate and unacceptable and that any future conduct might result in further discipline. Def. SUMF ¶ 12. Ms.
Harper reported the substance of these discussions to Operations Manager Anita Huse, who, in turn, spoke with Dr. Greene regarding the incidents and reiterated that his conduct was unacceptable and that any future incident might subject him to further discipline. Def. SUMF ¶ 14, 15, 16.
Then, in September 1999, Dr. Clifford Hallam, Managing Partner and CEO of The Care Group, wrote to Dr. Greene informing him that his conduct had a deleterious effect on his own reputation and "create[s] exposure and liability to the organization." Dr. Hallam cautioned Dr. Greene that these behaviors "must cease immediately." As a condition of Dr. Greene's continued employment, Dr. Hallam required Dr. Greene to submit, at his own expense, to "an Assessment coordinated through and satisfactory to the Indiana State Medical Association's Physician Assistance Program." Dr. Greene was to cooperate with the assessment and report to Dr. Hallam "the results and all details related to the Assessment." Def. SUMF ¶ 17. The "Conditions of Continued Employment" was reduced to a writing which Dr. Greene signed on September 20, 1999. Def. SUMF ¶ 18. Dr. Greene attended an appropriate program at his own expense and in the knowledge that he would be terminated if he did not complete the assessment. Def. SUMF ¶ 19.
On or about October 22, 1999, Vicki Harper advised Ms. Hayden that her job performance was unacceptable. Hayden Aff., ¶ 11; Def. SUMF ¶ 20 (HCHC says that the date was October 6).
Ms. Harper said that Ms Hayden was engaging in inappropriate conduct during working hours:
clipping coupons, readings books and magazines, and making an excessive number of phone calls and e-mails, among other specific acts of poor work performance.
Harper Aff., ¶ 17.
Ms. Hayden asked Ms. Harper how she could be getting a negative performance appraisal after having received consistently good job reviews and having received a raise in pay as recently as April. Ms. Hayden asked Ms. Harper whether she was being treated like Debbie Smith, a co-employee who had complained about Dr. Greene's conduct and who had been fired. Ms. Harper repeatedly said "I'm sorry." Hayden Aff., ¶¶ 9, 10, 11. After the meeting with Ms. Harper, Ms. Hayden cleared out her desk, left HCHC's premises, and did not return. Hayden Aff., ¶ 12. Def. SUMF ¶¶ 21, 25, 26. HCHC treated Ms. Hayden's absence as a voluntary job abandonment after three days. Def. SUMF ¶ 23. Ms. Hayden acknowledges that Ms. Harper did not tell her that she was fired. Def. SUMF ¶ 27.
III. Analysis.
A. The Standard on Summary Judgment
Summary judgment is appropriate 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." Fed.R.Civ.P. 56(c).
A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23, 106 S.Ct. 2548. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548; Anderson, 477 U.S. at 249-52, 106 S.Ct. 2505).
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Waldridge, 24 F.3d at 920.
B. Defendant's Motion to Strike.
Before proceeding to the merits of this case, we address defendant's Motion to Strike Plaintiff's Statement of Facts and Deem Defendant's Statement of Undisputed Material Facts Admitted as True." Local Rule 56.1 implements the mandate that the nonmoving party must serve and file, either in a separate document or in the body of a brief, a response to the moving party's Statement of Material Facts that "contains a response to each material factual assertion in the moving party's Statement of Material Facts. . . ." (Emphasis added.) She is also required to state specific facts and to point to admissible evidence in the record to support her factual assertions. Local Rule 56.1(b),(f).
These requirements are not intended to be an obstacle to trip the unwary. They are designed to "streamline the decision-making process for summary judgments by requiring the parties to identify disputed facts precisely, and to avoid the phenomenon of having the parties' papers seem like ships passing one another unseen in the night." Elghanmi v. Franklin College of Indiana, Inc., 2000 WL 1707934 (S.D.Ind. 2000) (Hamilton, J.), slip op., p. 3., citing Pike v. Caldera, 188 F.R.D. 519, 521 (S.D.Ind. 1999) (Tinder, J.). Statements of fact and responses to those statements should provide a "roadmap," guiding the decision-making process. Waldridge, 24 F.3d at 923.
Accordingly, the Seventh Circuit has repeatedly admonished parties opposing summary judgment that they must comply with local summary judgment rules which require them to point to admissible evidence in the record. Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). The requirement applies to statements of fact rebutting defendant's statements as well as to the plaintiff's own statements of additional material facts. Rule 56.1(g) requires the party opposing summary judgment to "specifically controvert" any statements of fact on penalty of having the statement admitted.
It is true that a plaintiff's affidavit is admissible evidence that may refute the factual basis of a motion for summary judgment. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994). Still, Ms. Hayden's affidavit is largely a repetition of her complaint allegations in affidavit form, so that it is the kind of "self-serving affidavit, unsupported by the record, [that] will not preclude summary judgment. Basith v. Cook County, 241 F.3d 919, 928 (7th Cir. 2001). See Haywood v. North Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir. 1997). Such affidavits do little to advance the non-movant's case. Drake v. Minnesota Mining Manufacturing Co., 134 F.3d 878, 887 (7th Cir. 1998).
Ms. Hayden has failed to comply with two of the Local Rule's most basic requirements. She has offered no statements which specifically controvert defendant's statements of undisputed material facts; and she has offered no evidence other than her affidavit to support the statement of facts that she presents at the outset of her brief.
Notwithstanding these deficiencies, we resist the temptation to grant defendant's reasonable request to strike Ms. Hayden's statements of fact. Because the case is here on summary judgment, the granting of which constitutes a final judgment on the merits; because Rule 56 imposes on us an independent obligation to determine whether the defendant is entitled to prevail as a matter of law; and because it is preferable that Ms. Hayden understand the reasons why her case must fail as a matter of law, we exercise our discretion to deny defendant's motion and determine the case on its substantive allegations. See Local Rule 56.1(g); Waldridge, 24 F.3d at 923 ("Whether to apply such a rule [as Rule 56.1] strictly or to overlook any transgression is a matter we leave to the district court's discretion."); Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 527-528 (7th Cir. 2000). We do, however, credit all of HCHC's statements of fact that are unrebutted and supported by admissible evidence. In denying defendant's motion we state our fervent hope that in doing so we will not encourage others opposing summary judgment motions to ignore the clear requirements of Rule 56.1.
B. Ms. Hayden's Substantive Claims.
Ms. Hayden's complaint alleges two distinct causes of action: hostile environment harassment; and retaliation for having complained about the alleged harassment. Ms. Hayden appears to abandon her harassment claim in her opposition brief, since she briefs only the retaliation claim. We address it here, nevertheless, because it is alleged in the complaint and because it has some impact on her retaliation claim.
1. Ms. Hayden's Hostile Environment Claim.
Title VII prohibits employers from discriminating against employees on the basis of their gender.
Its prohibitions include creating, condoning, or tolerating a hostile work environment. A `hostile" work environment is one that is "permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Shanoff v. Illinois Dept. of Human Services, 258 F.3d 696, 704 (7th Cir. 2001) (internal citations omitted); Adusumilli, 164 F.3d at 361. The issue of whether the work environment is hostile "turns on whether the alleged harassment occurred because of the sex of the complainant." Haugerud v. Amery School District, 259 F.3d 678, 692 (7th Cir. 2001). In other words, the question is whether the employee was "`exposed to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed.'" Id. quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) Proof of hostile environment is two pronged. In order to prevail, the plaintiff must present evidence sufficient to raise a reasonable inference that she subjectively experienced the environment to be abusive; she must also show, objectively, that a reasonable person in her position also would have perceived it to be hostile. Haugerud, 259 F.3d at 693; Adusumilli, 164 F.3d at 361. In order to determine whether the work environment is objectively hostile, we consider all of the circumstances, including "the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Haugerud, 259 F.3d at 693.
Since the Supreme Court's clarifying decisions in 1998, analysis of employer liability for hostile environment harassment has depended upon whether the harassment was committed by a supervisor or by a co-worker and whether or not the harassment culminated in a tangible employment action. Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
Here, it is unchallenged that Dr. Greene and Ms. Hayden were co-employees. Dr. Greene had no supervisory authority over Ms. Hayden. Instead, the parties agree that Ms. Harper was Ms. Hayden's supervisor. Where, as here, the alleged harassment was committed by a co-employee and the alleged harassment did not eventuate in an adverse employment action, the employer is not subject to strict liability. Instead, Ms. Hayden must show that HCHC was negligent in order to hold it liable for co-worker harassment. Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998), cert. denied, 528 U.S. 988, 120 S.Ct. 450, 145 L.Ed.2d 367 (1999). In other words, an employer is liable where it knows or should know of the harassment and fails to take prompt remedial action. Savino v. C.P. Hall Co., 199 F.3d 925, 933-934 (7th Cir. 1999).
With these legal criteria in mind, we resolve Ms. Hayden's harassment claim on two grounds: first, Dr. Greene's conduct did not rise to the level of actionable harassment; and second, upon learning of Dr. Greene's conduct, HCHC took prompt remedial action which was well calculated to reduce the likelihood that Ms. Hayden (or any other employee) would be exposed to any future misconduct.
We will assume for purposes of summary judgment that Dr. Greene engaged in all eight of the acts of which Ms. Hayden accuses him. Although several of the incidents are readily susceptible non-gender-related interpretations, we also will assume that a reasonable person would interpret them as gender-specific. We further assume that Ms. Hayden subjectively perceived the incidents to be abusive and hostile.
Two of Ms. Hayden's complaints to management appear to involve incidents that happened to other employees. Kathy Clodfelter reported to Ms. Harper that Dr. Greene asked her "what it would take to get her on her knees." And Frances Robbins reported to Ms. Harper that Dr. Greene told her that he had a medical chart down his pants. The correspondence between these two reports and Ms. Hayden's complaints raise some doubt as to whether these events happened to Ms. Hayden at all. See Russell v. Bd. of Trs. of Univ. of Ill., 243 F.3d 336, 343-344 (7th Cir. 2001) (finding insufficient evidence to sustain a hostile environment claim, where most of the offensive comments were directed at plaintiff's co-workers, and the few comments directed at plaintiff were minor). The two overlapping incidents also raise a question as to whether Ms. Hayden had first-hand knowledge of them and, therefore, whether statements about them are admissible. Since defendant has not challenged the admissibility of the two statements, we will consider them in our analysis notwithstanding our doubts.
Although Ms. Hayden places great emphasis on Dr. Greene's "touching" her, "touching" is so non-specific as to include hand-shakes and pats on the back as well as intimate contacts. Nothing in the record guides us toward her preferred inference that the touchings were based on Ms. Hayden's gender. The Seventh Circuit has found far more specific and egregious acts of touching to fall below the standard for actionable sex harassment. E.g. Adusumilli, 164 F.3d at 361-62 (touchings include a poke to plaintiff's buttocks); Saxton v. ATT Communications, Inc., 10 F.3d 526, 533-34 (7th Cir. 1993) (inappropriate remarks and impermissible touching not actionable); Weiss v. Coca Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (included unwanted touchings and attempts to kiss). Similarly, Dr. Greene's telling "off the wall jokes" raises a reasonable inference that the jokes were strange, bizarre, or unexpected, but not that they are gender specific or sexual in nature.
Objectively, however, the incidents are so innocuous as to fall below the threshold of what the law regards as hostile environment sex harassment. The eight incidents of which she complained are reminiscent of the nine incidents on which a jury found employer liability in Baskerville v. Culligan International Co., 50 F.3d 428 (7th Cir. 1995). There, however, the Seventh Circuit overturned the verdict noting that the defendant "never said anything to her that could not be repeated on primetime television" and found as a matter of law that the "handful of comments" alleged to have occurred did not give rise to liability under Title VII. Id. at 431. Even if Dr. Greene had been Ms. Hayden's immediate supervisor instead of her co-employee, we would agree with the Seventh Circuit's characterization of the alleged harasser in Stutler v. Illinois Department of Corrections, 2001 WL 965951 (7th Cir. August 17, 2001), *8 that his "behavior [was] too petty and tepid to constitute a material change in the terms and conditions of [Ms. Hayden's] employment." In other words, as the Seventh Circuit has repeatedly observed: "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Haugerud, 259 F.3d at 693 (piecing together several quotations).
Next, even if we assume for purposes of defendant's motion that the incidents rose to the level of actionable harassment, HCHC took prompt remedial action, thus satisfying its obligation under Title VII. The Seventh Circuit recently reiterated:
If an employer takes reasonable steps to discover and rectify the harassment of its employees . . . it has discharged its legal duty. An employer's response to alleged instances of employee harassment must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made. We are not to focus solely upon whether the remedial activity ultimately succeeded, but instead should determine whether the employer's total response was reasonable under the circumstances as then existed. The reasonableness of an employer's response depends, in part, on the gravity of the harassment alleged.
Berry v. Delta Airlines, Inc., 2001 WL 910781 (7th Cir. August 14, 2001), *8, quoting, McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480 (7th Cir. 1996).
We conclude that HCHC's response to Ms. Hayden's complaints — as well as to the complaints of others — was reasonable under all of the circumstances. Indeed, this is one of the rare cases in which the defendant employer acknowledges on summary judgment that it had a wrong-doer and that it made significant efforts to set him straight. It is uncontested on the record that HCHC responded on successive managerial levels. Ms. Harper met with Dr. Greene and informed him that his conduct was unacceptable and would be greeted with increased discipline should he persist. Next, Operations Manager Anita Huse spoke with Dr. Greene regarding the incidents and reiterated that his conduct was unacceptable and that any future incident might subject him to further discipline. Finally, in September 1999, Dr. Hallam informed Dr. Greene that his conduct not only reflected poorly on himself, but that it "create[s] exposure and liability to the organization." Dr. Hallam required Dr. Greene — as a condition of continued employment — to submit, at his own expense, to an assessment.
Dr. Hallam's "Conditions of Continued Employment" were reduced to a writing which Dr. Greene signed on September 20, 1999, knowing that he would be terminated if he did not complete the assessment. HCHC's remedial action was similar to that taken by CBS in Tutman v. WBBM-TV, 209 F.3d 1044, 1049 (7th Cir. 2000).
In conclusion, we GRANT defendant's motion for summary judgment with respect to Ms. Hayden's harassment claim because the conduct of which she complains did not rise to the level of actionable sex harassment, and because, even if it had, HCHC's remedial action was reasonably calculated to prevent any recurrence of Dr. Green's objectionable behavior.
2. Ms. Hayden's Retaliation Claim.
In addition to protecting employees from harassment based on gender, Title VII prohibits an employer from retaliating against an individual who "participates" in statutorily-protected conduct or who "opposes" conduct made unlawful by the statute. 42 U.S.C. § 2000e-3(a). Ms. Hayden's claim invokes the "participation" prong of the anti-retaliation provision.
Ms. Hayden alleges that she was constructively discharged in retaliation for having complained about the eight incidents of Dr. Greene's alleged harassment. She alleges that she received a performance-based pay increase on April 21, 1999. Before August, 1999, she began complaining about Dr. Greene's conduct. Hayden Aff., ¶ 6. Then on October 22, Vicki Harper advised Ms. Hayden that her job performance was unacceptable. Hayden Aff., ¶ 11. Ms. Harper referred Ms. Hayden to specific acts of work related misconduct, including clipping coupons, reading on the job, and making excessive phone calls. Ms. Hayden questioned Ms. Harper about receiving a negative performance appraisal after having received consistently good job reviews and having received a raise in pay as recently as April. Ms. Hayden asked Ms. Harper whether she was being treated like Debbie Smith, a co-employee who had complained about Dr. Greene's conduct and who had been fired. Ms. Harper repeatedly said "I'm sorry." Hayden Aff., ¶¶ 9, 10, 11. After the meeting with Ms. Harper, Ms. Hayden cleared out her desk, left HCHC's pemises, and did not return. Hayden Aff., ¶ 12; Def. SUMF ¶¶ 21, 25, 26. As noted earlier, HCHC treated Ms. Hayden's absence as voluntary quit after three days. Def. SUMF ¶ 23. Ms. Hayden acknowledges that Ms. Harper did not tell her that she was fired. Def. SUMF ¶ 27.
In order to prevail on her retaliation claim, Ms. Hayden must show that: (1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) there is a causal relationship between the protected expression and the adverse action. Maarouf v. Walker Manufacturing Co., 210 F.3d 750, 755 (7th Cir. 2000); Alexander v. Gerhardt Enterprises Inc., 40 F.3d 187, 195 (7th Cir. 1994).
Ms. Hayden correctly asserts that she did not have to be correct in believing that Dr. Greene's conduct actually violated Title VII; she merely needed "a sincere and reasonable belief" that his conduct was unlawful. Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago, 104 F.3d 1004, 1014 (7th Cir. 1997); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1314 (7th Cir. 1989). In view of the scant facts supporting the allegation of harassment, it is at least questionable whether Ms. Hayden's belief was "reasonable."
Nevertheless, we will assume for purposes of defendant's motion for summary judgment that Ms. Hayden engaged in protected expression by complaining, reasonably and in good faith, about Dr. Greene's alleged harassment. Even so, her retaliation claim founders on the shoals of the other two elements: her evidence is legally insufficient to support a finding that HCHC took an adverse employment action against her; and, even if there were evidence of an adverse employment action, her evidence is legally insufficient to raise a reasonable inference of a causal connection between her complaining and the adverse action. Because Ms Hayden alleges that she was constructively discharged in retaliation for having complained, the two elements are intertwined. In other words, if Ms. Hayden cannot show that she was constructively discharged then she cannot prove that she suffered an adverse action, and there can be no causal connection between her complaining and the termination of her employment.
The Seventh Circuit requires a showing that the employer took a materially adverse employment action. The court has noted that "not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). A materially adverse employment action "mean[s] more than a mere inconvenience or an alteration of job responsibilities." Cullom v. Brown, 209 F.3d 1035, 1041 (7th Cir. 2000). Adverse employment actions indicate a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Harbison v. Prestige Group, Inc., 2001 WL 395786 (S.D.Ind. 2001) (Hamilton, J.), *28.
It is often difficult for a plaintiff to establish the requisite causal link even where there is no question that the employee suffered an adverse employment action; where, for example, there is a decisive, straightforward termination of the "you're fired" variety. See, Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1146 (7th Cir. 1997). Often enough, such claims involve evidence of "suspicious timing"; that is, the adverse action follows so closely on the heels of the protected conduct that it is reasonable to infer from the timing alone that the employer, angered by the employee's complaint, is motivated to retaliate against her at an early opportunity. E.g., Hunt-Golliday, 104 F.3d at 1014; McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 797 (7th Cir. 1997). As we noted in Gordon v. Southern Bells, Inc., 67 F. Supp.2d 966, 988 (S.D.Ind. 1997): "A short time span between protected activity and an adverse employment action may be sufficient to prove a causal connection between the two events." Ms. Hayden admits that Ms. Harper did not discharge her in that conventional sense. Def. SUMF ¶ 27.
As a practical matter, the burden of establishing a constructive retaliatory discharge is more stringent because it requires evidence that HCHC made life so miserable for Ms. Hayden that a reasonable person in Ms. Hayden's shoes would have felt compelled to resign. Grube v. Lau Industries, Inc., 2001 WL 812260 (7th Cir. July 19, 2001), *4; Townsend v. Vallis, 256 F.3d 661, 677 (7th Cir. 2001). In other words, to prevail on a constructive discharge claim the plaintiff must present evidence of a "campaign" of abuse and hostility. See, e.g., Stutler v. Illinois Department of Corrections, 2001 WL 965951 (7th Cir. August 17, 2001), *8, citing Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996) (retaliatory constructive discharge in which co-workers embarked on "a campaign of vicious gossip and profanity aimed at making `her life hell' in response to her complaints that a supervisor sexually harassed her."); Berry, 2001 WL 910781 (retaliatory constructive discharge) at *5. Except under "extraordinary" circumstances, moreover, the plaintiff also must show that she tried to resolve her complaints with her employer while she was still employed. Wolf v. Northwest Indiana Symphony Society, 250 F.3d 1136, 1143 (7th Cir. 2001); Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997). Indeed, said the Seventh Circuit in agreeing with the Tenth: "An employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged. Grube, 257 F.3d at 728, quoting Ulichny v. Merton Community School District, 249 F.3d 686, 704 n. 16 (10th Cir. 1997).
Ordinarily, therefore, the facts underlying a constructive discharge claim evolve over a period of time. In contrast to the "you're fired" sort of discharge, proof of a constructive discharge requires evidence of a campaign of unlawful conduct and evidence that the employee tried to work out her grievance while still employed. In other words, the evidence ordinarily must support a series or succession of facts. Ms. Hayden's evidence consists of one incident: Ms. Harper told her that she was performing her job unsatisfactorily. She presents no evidence of a series or succession of acts, much less a "campaign." And, instead of attempting to "work out" her grievance while still employed, Ms. Hayden left HCHC's premises never to return.
Surprisingly, Ms. Hayden's principal argument in support of a constructive discharge relies on the "suspicious timing" line of cases, for those cases are essentially irrelevant to constructive discharge claims (and are likely to be counterproductive). Ms. Hayden wishes a jury to infer that she was constructively discharged because of the close proximity in time between her protected conduct and her termination. She writes: "The temporal proximity between Cheryl Hayden's sexual harassment complaints and the adverse employment action in this case supports an inference of causation." Pl. Opp., p. 11. While evidence of a close proximity in time may support a conventional discharge of the "you're fired" variety, it militates against a constructive discharge's requirement of facts evolving over time. In sum, Ms. Hayden's evidence — that Ms. Harper criticized her work on once occasion — cannot support a constructive discharge claim. It follows that her evidence will not support an inference of an adverse employment action.
In view of these findings, we do not reach the question of whether Ms. Hayden's evidence is sufficient to prove that Ms. Harper's explanation of why she criticized Ms. Hayden's work is pretextual. Suffice to say that Ms. Hayden has not produced any evidence to show that Ms. Harper's explanation — Ms. Hayden's workplace negligence — is a lie or a phony reason for criticizing her work. Southern Bells, 67 F. Supp.2d at 985.