Opinion
IP 00-1929-C-M/S
September 30, 2002
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on defendants', Indiana State Police Department and the State of Indiana ("ISP" collectively), Motion for Summary Judgment on the claims of plaintiff, Michelle R. Jumper ("Jumper"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. FACTUAL BACKGROUND
The facts in the light most favorable to Jumper follow. Jumper began working for the Indiana State Police Department as a trooper in June 1995 at District 16, the "Peru District," in Miami County. Def.'s Stmt. of Facts ¶¶ 1-2. Jumper was the only female trooper in Miami County, and in District 16, from 1995 to December 2000. Pl.'s Stmt. of Facts ¶ 89. Jumper lived in Peru, Indiana, which is in Miami County. Def.'s Stmt. of Facts ¶ 3.
Pl.'s Stmt. of Facts will be used to refer to Plaintiff's Statement of Additional Material Facts.
During the relevant time period, Jumper was first assigned to Miami County in 1995, subsequently reassigned to Fulton County in September 1998, and then reassigned back to Miami County in September 1999. Def.'s Stmt. of Facts ¶¶ 2, 14, 56.
At all times relevant to the complaint, the Indiana State Police has had an Equal Employment Opportunity ("EEO") policy in place that prohibits sex discrimination and harassment. Id. ¶ 4. The policy also contains a complaint procedure for employees who believe they have been harassed or retaliated against. Id. ¶ 5.
The affirmative action policy is contained in Standard Operating Procedure LEG-004 and is available in binders containing all of the State Police's standard operating procedures, which are available in each post and division. Id. ¶ 8. The policy is also contained on the State Police intranet site, to which all employees have access. Id. ¶ 9. Further, troopers are informed of the policy's existence and its contents during recruit training. Id. ¶ 10.
Two of Jumper's supervisors, Lieutenant Patrick O'Connor ("O'Connor"), and Sergeant Phil Oliver ("Oliver"), are involved in the majority of the actions that Jumper challenges. O'Connor was Jumper's first-line superior officer until his promotion to Commander of District 16 in June 1997. Id. ¶ 11.
Oliver was Jumper's Squad Sergeant first in Fulton County, and later in Miami County. Id. ¶ 17. A Squad Sergeant is a first-line supervisor who conducts performance appraisals, monitors work performance, and acts as a conduit between troopers and the District Command. Oliver Dec. ¶¶ 4-5.
A. EVENTS PRIOR TO FEBRUARY 13, 1999
The parties agree that February 13, 1999, is the appropriate accrual date for Jumper's claim based on her December 9, 1999, EEOC filing. Thus, the Court will organize the events chronologically and separate them based on the accrual date.
In January 1998, O'Connor directed Trooper Huff ("Huff") to organize a DUI Wolf Pack by determining which troopers would be interested in such an assignment. Pl.'s Stmt. of Facts ¶ 127. Wolf Pack patrols are a type of saturation patrol whereby a routine scheduled daily enforcement group travels around throughout the district to target DUI offenders. Id. ¶ 128. Officers are selected to participate in saturation patrols based upon their availability, time schedule, and the demand [for saturation patrols] the department is looking to achieve. Id. ¶ 129. Of the four officers Huff asked about participating in a Wolf Pack patrol, Jumper was the only one interested. Id. ¶ 132. Despite the fact that Jumper had the highest number of arrests in Miami County and a good working knowledge of obtaining DUI arrests, O'Connor refused to allow Jumper to participate in the Wolf Pack Patrol. Id. ¶ 133.
In April 1998, Jumper received a letter of counseling for having a defective camera in her squad car while male officers with defective cameras did not receive counseling letters. Def.'s Ex. H at 10, 15. According to O'Connor, he was not aware that the male troopers' cameras were not working. Pl.'s Stmt. of Facts ¶ 151.
In September 1998, O'Connor sent Jumper to Background Investigation School so that she could investigate female applicants. Def.'s Stmt. of Facts ¶ 12. Prior to her EEOC charge in December 1999, she was asked to conduct only one investigation. Id. O'Connor believes the following qualities are necessary in order to be part of the background investigation team: good interview techniques; a trooper's willingness to want to do the job due to the time consumption; thoroughness in preparing reports; and driving force and tenacity. Pl.'s Stmt. of Facts ¶ 234. O'Connor maintains that Jumper did not possess many of these qualities. Id. ¶ 236. O'Connor still selected Jumper to be a part of the program because she is a female. Id. ¶ 237. O'Connor also said that he will select troopers to do jobs that they do not have the necessary qualities for in order to give them opportunities to grow. Id. ¶ 235.
Also in September 1998, O'Connor reassigned Jumper to Fulton County, which is adjacent to Miami County in District 16, when Fulton County lost two of its three assigned troopers. Def.'s Stmt. of Facts ¶ 14. Jumper alleges that she was reassigned to Fulton County without legitimate reason or justification. Id. ¶ 15. The month she was transferred, Sergeant Ken Roland told Jumper he thought she was reassigned to Fulton County because of her sex. Id. ¶ 16.
It was O'Connor's decision to reassign Jumper to Fulton County. Pl.'s Stmt. of Facts ¶ 94. O'Connor's stated reasons for selecting Jumper to be reassigned to Fulton County are that Jumper lived closest to Fulton County, because Fulton County only had one trooper, and because he could afford to remove troopers from Miami County because it had the largest number of troopers over all other counties in District 16. Id. ¶ 104. In determining which trooper to move to Fulton County, O'Connor did not consider other troopers with greater seniority than Jumper. Id. ¶ 106. However, Jumper had more seniority and time in the department than male troopers working in Miami County, and O'Connor did not select those troopers for the reassignment. Id. ¶ 107.
Jumper was not happy about the reassignment because she would be leaving her home county to work in Fulton County. Id. ¶ 108. O'Connor was not concerned about the fact that Jumper did not want to be reassigned to Fulton County. Id. ¶ 109. O'Connor did not ask any male troopers because he felt they would not be interested in leaving their home county to work in Fulton County. Id. ¶ 110.
Trooper Talbert ("Talbert"), who had been working in District 16 for nineteen years, did not know of any trooper other than Jumper who had been involuntarily reassigned due to a shortage in another county. Id. ¶ 117. While working in another district, Talbert was involuntarily reassigned because he had the lowest seniority. Id. ¶ 118. He was compensated for his drive time. Id. ¶ 119. Talbert does not believe O'Connor treated Jumper fairly when she was involuntarily reassigned to Fulton County. Id. ¶ 121.
O'Connor contends that he consulted with Captain Rollins ("Rollins") prior to reassigning Jumper to Fulton County for the purpose of determining whether she should be compensated for her drive time. Id. ¶ 96. O'Connor contends that Rollins agreed with his decision not to compensate Jumper for her drive time, but Rollins asserts that he and O'Connor never discussed whether Jumper should be compensated for the drive time. Id. ¶ 98. Rollins assumed that O'Connor would compensate Jumper for her drive time to Fulton County because the reassignment was involuntary, and because the practice of the department is to compensate troopers for drive time upon involuntary reassignments. Id. ¶ 99. Rollins first learned that Jumper was not compensated for her drive time after Jumper filed her complaint. Id. ¶ 101. According to Rollins, O'Connor's evaluation was not affected as a result of his failure to compensate Jumper for her drive time to Fulton County. Id. ¶ 102.
It is more difficult to obtain higher numbers in traffic activity in Fulton County than it is in Miami County. Id. ¶ 123. During the relevant period of time, Jumper worked primarily night shifts, and there is not a lot of traffic in the district at night. Id.
Troopers are regularly asked to participate in saturation patrols outside of their assigned county. Id. ¶ 144. However, after Jumper was reassigned to Fulton County, Oliver ordered Jumper's superiors to keep her from participating in saturation patrols outside of Fulton County. Id. ¶ 138. Trooper Brad Weaver, the only other trooper in Fulton County when Jumper was there, regularly participated in saturation patrols outside of Fulton County. Def.'s Ex. L at 3. Some saturation patrols are federally funded and allow state troopers to earn extra pay working those patrols. Pl.'s Stmt. of Facts ¶ 139. During one weekend, O'Connor requested Huff to set up a saturation patrol by determining which troopers would be interested in participating in the patrol. Id. ¶ 141. O'Connor refused to allow Jumper to participate in the patrol. Id. ¶ 142. Only troopers who are in re-evaluation status for poor performance are denied the opportunity to participate in saturation patrols. Id. ¶ 145.
In December 1998, Jumper alleges that she was ordered to complete her paperwork in Fulton County while all other officers were permitted to complete their paperwork at District 16 headquarters (in Peru) despite not being in their assigned county. Def.'s Stmt. of Facts ¶ 24. According to O'Connor, troopers were required to be in their assigned county when they went on and off-duty; thus, Jumper was expected to complete her duty shift in Fulton County because this was her assigned county. O'Connor Dec. ¶¶ 12-13. However, Huff, a male trooper who worked outside Miami County, was permitted to complete his paperwork at the District 16 headquarters. Def.'s Ex. L at 4. O'Connor asserts that Jumper was, in fact, permitted to complete her paperwork at the District 16 headquarters. O'Connor Dec. ¶ 15.
In January 1999, Jumper was selected to participate in the 58th Recruit School interviews. Def.'s Stmt. of Facts ¶ 29. According to O'Connor, when a trooper seeks to participate in recruit interviews, the trooper must submit a letter to his or her District Commander, and the District Commander decides whether or not to provide a letter of recommendation. O'Connor Dec. ¶¶ 17-18. O'Connor did not receive a letter from Jumper requesting permission to participate in the 58th Recruit School interviews. Def.'s Stmt. of Facts ¶ 33. Jumper alleges that O'Connor told her that she had no business selecting recruits, and was not qualified for such a position. Id. ¶ 30. In this case, Human Resources sought out Jumper for the 58th Recruit School interviews. Id. ¶ 34. Upon being notified of Jumper's selection, O'Connor contacted Colonel Petree to discuss Jumper's selection. Id. ¶ 35. O'Connor did not feel that Jumper was the most qualified trooper for selection to the 58th Recruit School. Id. ¶ 36. Jumper participated in the 58th Recruit School interviews. Id. ¶ 37.
Jumper alleges that on February 3, 1999, Oliver accused her of abusing sick days, and thereafter wrote "Menstrual?" in her attendance record and placed it on an administrative folder visible to other employees. Id. ¶ 38. According to Oliver, he questioned Jumper about her use of sick days because another Sergeant notified him that there was a pattern to her use of sick days. Oliver Dec. ¶ 6. Oliver claimed that the majority of Jumper's sick days were taken the day before or after a weekend, thus creating three-day weekends. Id. ¶ 8. When confronted, Jumper explained that the sick days were taken as a result of her menstrual cycle. Id. ¶ 9. Oliver then wrote "menstrual" in pencil on Jumper's attendance sheet. Id. ¶ 10.
Numerous male troopers have routinely taken sick days in conjunction with a day off. Id. ¶ 222. Many male workers have taken more sick days in conjunction with a day off than Jumper. Id. ¶ 223. No male trooper has been accused of abusing sick time. Id. ¶ 225.
B. EVENTS AFTER FEBRUARY 13, 1999
On March 30, 1999, a group of officers, including Jumper, attended a Defensive Tactics Training course conducted at Maconquah High School. Def.'s Stmt. of Facts ¶ 43. During the training, Jumper had to fight the "red man" who, during Jumper's turn, was Brad Weaver. Id. ¶ 44. The "red man" suit is used in defensive training to enable individuals to practice defensive maneuvers without being injured. Id. ¶ 45. Jumper alleges that while she was fighting the "red man," Oliver said, "Just show him your tits!" Id. ¶ 46. She did not report the comment to the State Police at the time. Id. ¶ 47. Jumper was so embarrassed by the remark that she sat out the rest of the training. Pl.'s Stmt. of Facts ¶ 266.
In April 1999, Jumper requested a schedule change so that she could attend a law enforcement banquet, and Oliver approved of the change. Jumper Dec. ¶ 54. After Oliver's approval, O'Connor subsequently denied the change without giving a reason while three male troopers were allowed to change their schedule during that week. Id.
Jumper also alleges that she was given an unfair evaluation in early 1999 because of late reports she filed. Def.'s Stmt. of Facts ¶ 48. On April 30, 1999, Jumper received a score of 96 on her performance appraisal for the period at issue. Id. ¶ 49. Jumper alleges that she received a lower evaluation than male officers who performed equally to her, and who were late on more case or crash reports than Jumper. Comp. ¶¶ 34-37. All performance appraisals rated less than 100 percent are sent to Captain Rollins for review, and Rollins is always concerned when he receives a performance appraisal reflecting a score less than 100 percent. Rollins Dep. at 8-10.
In July 1999, O'Connor assigned Jumper to bus inspection duty. Def.'s Stmt. of Facts ¶ 50. The assignment required Jumper to travel to all the counties in District 16, including Miami County. Id. ¶ 53. O'Connor's stated reason for assigning Jumper to bus duty was that Fulton County was scheduled to be covered by another officer, and Jumper was scheduled to work on the days of the detail. Pl.'s Stmt. of Facts ¶ 112. According to O'Connor, he assigned Jumper to bus inspection duty because he thought she would appreciate a break from having to drive to Fulton County. O'Connor Dec. ¶ 22. O'Conner stated that bus inspection duty was generally seen by troopers as a benefit because it provided a change of pace from their normal duties. Id. ¶ 27. According to Captain Michael Reedus ("Reedus"), Jumper expressed appreciation for the bus inspection assignment. Reedus Dec. ¶ 21. Participating in bus inspection duty provides no value to a trooper's yearly performance evaluation. Def.'s Stmt. of Facts ¶ 113. Jumper stated that no other trooper had been removed from his or her county assignment for bus inspection duty. Jumper Dec. ¶ 24. Jumper also claimed that troopers viewed bus inspection as a negative detail, that she found it degrading because it involved simple tasks any civilian could perform, and that she let Reedus know of her complaints during the investigation. Jumper Dec. ¶¶ 24-27.
During August 1999, a list was made of troopers who had late case reports. Jumper Formal Comp. to ISP at 9. Jumper had one late report and was given a disciplinary letter of counseling for it. Id. Of the other seven people on the list, Jumper only knows of one who received a similar letter of counseling. Id.
Jumper was reassigned to Miami County in September 1999 and Sergeant Beck became her Squad Sergeant. Def.'s Stmt. of Facts ¶ 56. Jumper alleges that in the same month as her reassignment, she was told by Trooper Huff that she may be sent to school to be a Field Training Officer, so that if another female was hired Jumper could train her. Id. ¶ 57. O'Connor, who would have recommended Jumper, did not consider her for the position. Id. ¶ 58. O'Connor's stated reasons for not considering Jumper for a Field Training Officer position were her lack of motivation and initiative, her inability to instruct and assist others on the job, her approach towards the job, and her experience. Pl.'s Stmt. of Fact ¶ 182. O'Connor said that Jumper failed to use her time effectively, and relied on other troopers to assist her in conducting interviews of suspects. Id. ¶ 183.
The selection criteria for Field Training Officer requires only that an officer complete his/her probationary year. Pl.'s Stmt. of Facts ¶ 205. Troopers Carmin and Weaver, both male, were selected by O'Connor to be Field Training Officers. Id. ¶ 206. Carmin, who was hired in the last quarter of 1999, has less time in the department than Jumper. Id. ¶ 207. O'Connor cannot identify what Carmin assisted or instructed other troopers on. Id. ¶ 209. Weaver has been in the department about six months longer than Jumper. Id. ¶ 208.
Jumper has been commended for her superior and outstanding ability on reporting cases. Id. ¶ 187. Jumper has also been recognized by other police agencies for her performance as an Indiana State police officer. Id. ¶ 188. Oliver, Jumper's direct supervisor, believes Jumper has no problem with her ability to take initiative, and believes her efforts as a state trooper are satisfactory. Id. ¶ 189. Oliver does not ever remember having an issue with Jumper's initiative. Id. ¶ 190.
There are no standards to measure whether a trooper is making effective use of his time. Id. ¶ 193. According to Oliver, most troopers do not make effective use of their time. Id. ¶ 194. Oliver has received no complaints from other troopers about Jumper. Id. ¶ 195. O'Connor never complained to Oliver about Jumper's performance. Id. ¶ 196.
O'Connor contends that Jumper did not make effective use of her time because she received a letter of counseling for failure to turn a case report in on time. Id. ¶ 199. It is Oliver's practice not to issue letters of counseling with respect to turning in a late crash report unless he has previously verbally counseled the trooper on the issue. Id. ¶ 201. Trooper Dormer, a male, was not docketed any points on his performance appraisal or given any counseling for submitting late reports. Id. ¶ 203. Trooper Weaver, a male, has never received written counseling for turning in his case reports late. Id. ¶ 204.
Jumper alleges that on November 16, 1999, O'Connor told Sergeant Beck to "keep an eye" on her because she was spending time with her husband at the intersection of Strawtown and 500 South. Id. ¶ 156. Strawtown and 500 South is a major intersection for drunk driving traffic and a main artery for DUI's coming from Bunkerhill. Id. ¶ 158. According to Jumper, she occasionally patrolled the intersection to look for citizens speeding and bypassing stop signs. Id. ¶ 161. Jumper also stated that troopers regularly go home and spend time with their families while on duty, and does not know of any male trooper who has been accused of spending too much time with his spouse. Jumper Dec. ¶ 64.
Jumper maintains that O'Connor is a difficult person to work with; he requires a lot out of his subordinates, and is often never satisfied with the effort troopers give. Pl.'s Stmt. of Facts ¶¶ 253-55. O'Connor is thought of as a strict disciplinarian compared to others in his position throughout the state. Id. ¶ 256. Rollins has received complaints from subordinate commanders concerning the way in which O'Connor deals with his subordinates, and about O'Connor's temper. Id. ¶ 257.
According to Jumper, she initially thought that O'Connor singled her out for different treatment not because she was a woman, but because of a personality conflict, because he resented her family background, and because he was known as a harsh supervisor. Id. ¶ 258. Also, there were no other female troopers in the district whom Jumper could compare her treatment to and determine that her gender was why she was treated differently. Id. Jumper claims that it was not until November 1999, when she was accused of spending time with her husband on duty while male troopers were allowed to go home for dinner while on duty without rebuke, that she realized that she was being discriminated against due to her gender. Id. ¶ 261.
On December 9, 1999, Jumper met with Captain Reedus, the State Police's EEO Officer, and lodged a complaint of sexual discrimination and harassment against O'Connor and Oliver, requesting a complete investigation of the matter. Def.'s Stmt. of Facts ¶ 62. That same day, Jumper filed a sex discrimination charge with the EEOC. Def.'s Ex. C.
C. EVENTS AFTER FILING OF EEOC CHARGE ON DECEMBER 9, 1999
Subsequent to Jumper's complaint, Captain Reedus conducted an in-house investigation. Def.'s Stmt. of Facts ¶ 64. On January 18, 2000, Reedus interviewed Jumper. Id. ¶ 65. On February 7, 2000, Reedus interviewed Corporal Brent Ingram, Trooper Brian Dormer, Trooper Lee Williams, Master Trooper Neil Beck, Senior Trooper Jan Maller, and Master Trooper Jeff Franklin. Id. ¶ 66. On February 8, 2000, Reedus interviewed Trooper Brad Weaver and Trooper Ron Huff. Id. ¶ 67. On February 15, 2000, Reedus interviewed Master Trooper Marty Talbert, Sergeant Oliver, and Lieutenant O'Connor. Id. ¶ 68. On February 25, 2000, Reedus issued his conclusions, based on the prior interviews, to Superintendent Carraway, finding that Jumper's allegations for sex discrimination by O'Connor were unsubstantiated. Id. ¶¶ 69-70.
Reedus concluded that the allegation that Oliver made the "show him your tits" comment during the March 1999 defensive tactics training session was substantiated. Id. ¶ 71. This finding was based on his interviews with the State Police employees, who revealed that either Jeff Stinson or Oliver made the comment alleged by Jumper. Id. ¶ 72. O'Connor was not present at the training session. Id. ¶ 74.
Reedus recommended that supervisory action be taken against Oliver for the sexually offensive comment. Reedus Dec. ¶ 30. No disciplinary action was recommended for Jeff Stinson because he was retired at the time the EEOC investigation was conducted. Def.'s Stmt. of Facts ¶ 76.
On December 13, 1999, Jumper and a male trooper inspected the generator at the Peru Post. Jumper Dec. ¶ 50. As Jumper entered the garage from the generator room with the other officer, Oliver said, "That don't look good, it don't look good." Id. The other troopers laughed. Id.
Also in December 1999, Jumper complained about a sexually suggestive photograph of O'Connor and his wife in the Peru Post garage she found offensive. Pl.'s Stmt. of Facts ¶ 251. The photo was subsequently removed. Id. ¶ 252.
In January 2000, Oliver became Jumper's Squad Sergeant for the second time. Def.'s Ex. R. The first time period that Oliver was Jumper's Squad Sergeant was in September of 1998 after Jumper was reassigned to Fulton County. Def.'s Stmt. of Facts ¶ 17. Jumper was in Fulton County until September of 1999, then reassigned back to Miami County, where Sergeant Beck became her Squad Sergeant. Def.'s Ex. N at 1. Jumper was then reassigned to Oliver in Miami County in January of 2000, subsequent to her December 1999 EEOC filing. Def.'s Ex. R. According to Oliver, Jumper was reassigned to his squad because Beck took a voluntary demotion. Def.'s Ex. N at 1.
On April 18, 2000, Jumper filed an allegation of employee misconduct with the State Police, alleging that Oliver had called her a "bitch" in front of other State Police employees. Def.'s Stmt. of Facts ¶ 77. In response to Jumper's allegation of employee misconduct, O'Connor reassigned her to Squad Sergeant Rick Brown, effective April 19, 2000. Id. ¶ 78.
First Sergeant Schroder conducted a preliminary investigation into Jumper's allegation by interviewing Probationary Officer Jeffrey Carmin, Trooper David Rich, and Telecommunications Operator Patricia Denton. Id. ¶ 80. Based on this preliminary investigation, O'Connor concluded that Jumper's allegation was unsubstantiated, and no discipline was issued against Oliver. Pl.'s Stmt. of Facts ¶ 241.
On May 29, 2000, Corporal Ingram ("Ingram"), a shift supervisor, sent a memo about Jumper to O'Connor and Sergeant Dave Brown, who was Jumper's Squad Sergeant at the time. Jumper Dec. ¶ 73. The memo expressed concerns about two occasions when Jumper was assigned to respond to 911 calls, and Ingram felt that Jumper questioned the appropriateness of her being sent on those calls. Pl.'s Ex. B. Jumper did respond to the calls, and Ingram did not recommend that any disciplinary action be taken against her. Id. Jumper considered this to be secret documentation of her performance by co-workers because Ingram did not follow the formal process to allege misconduct against any trooper. Jumper Dec. ¶ 73.
On July 31, 2000, Jumper filed another charge with the EEOC, alleging retaliation. Def.'s Stmt. of Facts ¶ 83. Jumper complained that (1) she heard that Sergeant Oliver was referring to her as a bitch, (2) co-workers secretly documented her work performance, and (3) she was reassigned to Sergeant Oliver. Id. ¶ 84.
II. 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. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also 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. See 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 she relies. See 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. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the 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. See 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. See 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. See 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 [her] case, one on which [she] 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 has 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. See Holland, 883 F.2d at 1312. As the Seventh Circuit 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. See Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
III. DISCUSSION
Jumper alleges three types of Title VII claims against the Indiana State Police: (1) sex discrimination; (2) sexual harassment in the form of a hostile working environment; and (3) retaliation. ISP responded with a Motion for Summary Judgment arguing that: (1) some of the conduct of which she complains is time-barred; (2) other conduct Jumper complains of was not mentioned in the EEOC charge and thus cannot be considered by this Court; and (3) the conduct within the statutory period does not constitute sex discrimination, sexual harassment, or retaliation.
A. TITLE VII STATUTE OF LIMITATIONS
42 U.S.C. § 2000e-5(e)(1) requires that a Title VII plaintiff file a charge with the EEOC within 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). Because Jumper filed with the EEOC on December 9, 1999, the parties agree the 300-day period in this case accrued on February 13, 1999. At issue is whether Jumper may sue, based on the continuing violation doctrine, on claims that would ordinarily be barred by the February 13, 1999, accrual date.
Any actions that Jumper alleges occurred between February 13, 1999, and December 9, 1999, are clearly included in the 300-day time period and should be analyzed as a Title VII claim. However, any actions prior to February 13, 1999, will only be included if there is a continuing violation. These pre-February 13, 1999, incidents include:
1. January 1998: Denial of the opportunity to participate in the DUI Wolf Pack patrol;
2. April 1998: Receipt of letter of counseling for a defective camera while male troopers with defective cameras did not receive a letter of counseling;
3. September 1998: Involuntary reassignment from Miami County to Fulton County;
4. September 1998: Completion of training for Background Investigation School, but only asked to conduct one interview;
5. December 1998: Order to complete her paperwork within her assigned county while others permitted to complete paperwork at District 16 headquarters;
6. January 1999: O'Connor's attempt to have Jumper deselected from the Recruit School interviews;
7. February 3, 1999: Confrontation regarding use of sick days and "menstrual" notation on her file.
Jumper argues that the pre-February 13, 1999, incidents are actionable because they are "related closely enough" to constitute a continuing violation. Filipovic v. K R Express Systems, Inc., 176 F.3d 390, 396 (7th Cir. 1999). ISP responds that the continuing violation theory does not salvage any of the pre-February 13, 1999, events because they were the types of events that would have made a reasonable person aware that she had a substantial Title VII claim. The parties argued under principles derived from the Seventh Circuit's test in Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d 1164 (7th Cir. 1996):
[A] plaintiff may not base [the] suit on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations.
Id. at 1167.
However, subsequent to Jumper and ISP filing their briefs, the Supreme Court addressed the issue of "whether acts that fall outside of the statutory time period for filing charges set forth in 42 U.S.C. § 2000e-5(e) are actionable under Title VII." Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct 2061, 2069 (2002) (citation omitted). The Court noted that the issue turned on the following inquiries: "What constitutes an `unlawful employment practice' and when has that practice `occurred'?" See id. at 2070. The Court concluded that the answer depends on the type of Title VII claim involved. See id.
The Court first considered discrete retaliatory or discriminatory act claims. See id. The Court held that, "discrete discriminatory acts are not actionable if time barred, even when related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred." Id. at 2072. If an employee files a discrimination claim based on acts that are themselves timely filed, then the prior acts may be considered "as background evidence in support of [the] timely claim." Id.
Based on Morgan, it is no longer necessary to inquire how "related" pre-accrual date acts are to acts within the 300-day period for a discrimination claim. See Morgan, 122 S.Ct. at 2072. Jumper "can only file a charge to cover discrete acts that `occurred' within the appropriate time period." Id. at 2073. Jumper argues that the pre-February 13, 1999, incidents were a series of discrete, discriminatory acts that can be considered despite their untimeliness due to the continuing violation doctrine. See Pl.'s Brief in Opposition to Def.'s Motion for Summary Judgment at 11. However, the Morgan Court rejected the Galloway test, and held that "only incidents that took place within the timely filing period are actionable" for a discrimination claim. Morgan, 122 S.Ct. at 2073. Morgan cited acts such as termination, failure to promote, denial of transfer, or refusal to hire as examples of discrete acts that are easy to identify and thus should be acted on promptly. See id. In the present case, the most significant discrete act that occurred either before or after the accrual date was the September 1998 involuntary reassignment from Miami to Fulton County, and Morgan clearly bars this claim as untimely. See id. The other pre-February 13, 1999, incidents are also time barred under Morgan. See id. ("While [the plaintiff] alleged he suffered from numerous discriminatory and retaliatory acts . . . only incidents that took place within the timely filing period are actionable.") Id. Thus, the alleged discrete, discriminatory acts that took place before February 13, 1999, are time barred, and are not actionable discrimination claims.
The Court notes that the incidents occurring before the accrual date may still be used as background evidence in support of a timely claim. See Morgan, 122 S.Ct. at 2072.
Turning then to hostile work environment claims, the Morgan Court stated a more inclusive view of the continuing violation doctrine:
It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct. The statute does not separate individual acts that are part of the hostile environment claim from the whole for the purpose of timely filing and liability.
Morgan, 122 S.Ct. at 2075. Under this new standard set by the Supreme Court, time does not begin to run on a hostile work environment claim, as it traditionally has, once the plaintiff has a subjective awareness she is being discriminated against. See id. at 2074-75. Rather, "in order for the charge to be timely, the employee need only file the charge within the 180 or 300 days of any act that is part of the hostile work environment." Id. at 2075. "Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 2074. Accordingly, because Jumper filed her claim within 300 days of "any act" that creates her claim, the continuing violation doctrine applies and the Court will look at all actions that Jumper alleges in her hostile work environment claim. Id.
B. CAN JUMPER PURSUE CLAIMS NOT RAISED IN HER EEOC CHARGE?
ISP also argues that Jumper is limited to pursuing claims raised in her EEOC charge. The following events were included in her complaint but not mentioned in her EEOC charge: Jumper claims that there was a photograph hanging at the post garage in which O'Connor is depicted in a suggestive pose with his wife, that Oliver made a suggestive comment when Jumper left a room with a male officer, that she was not permitted to participate in saturation patrols, and that she was not allowed to change her schedule to attend a police-related banquet.
The general rule is that a plaintiff may not bring claims under Title VII that were not originally brought in the EEOC charge. See Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995). "This rule serves two purposes: affording an opportunity for the EEOC to settle the dispute between the employee and employer and putting the employer on notice of the charges against it." Id. (citing Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). However, in Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. 1976) (en banc), cert. denied, 429 U.S. 986 (1976), the Seventh Circuit established a test that allows Title VII plaintiffs to assert claims not included in the EEOC charge. See id. at 167. "To include a discrimination claim in a federal district court complaint that was not brought in the charges filed with the EEOC a plaintiff must pass the two prong test of Jenkins: (1) the claim is like or reasonably related to the EEOC charges, and (2) the claim in the complaint reasonably could develop from the EEOC investigation into the original charges." Harper, 45 F.3d at 148 (citing Jenkins, 538 F.2d at 167). Recognizing that EEOC charges are in layman's language, the Seventh Circuit applies this standard liberally to effectuate the remedial purposes of Title VII. See Rush, 966 F.2d at 1111.
Under the first prong, "[t]he claims are not alike or reasonably related unless there is a factual relationship between them. This means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals." Cheek v. W. S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994) (emphasis in original). In the present case, the same individuals are implicated in the EEOC charges and the new charges in the district court complaint. O'Connor and Oliver are the supervisors involved in almost every interaction or event that Jumper cited in the EEOC charges, and they are involved in all of charges included in the complaint that were not mentioned in the EEOC complaint. Considering the notice rationale for the general rule excluding new charges not included in the EEOC complaint, ISP, O'Connor, and Oliver, can hardly complain that they were surprised by the nature of Jumper's claims.
The incidents cited in the EEOC charges and incidents in the complaint that were not in the EEOC charges are also the same type of conduct. For example, in her EEOC charge of discrimination, Jumper noted the February 3, 1999, incident when Oliver wrote "menstrual" on her attendance sheet, and the March 30, 1999, occasion when Oliver stated to Jumper, "Just show him your tits." Pl.'s Desig. of Evid. Tab 8. In her federal complaint, Jumper alleges that Oliver commented to other troopers when she walked out of a room with a male trooper, "that don't look good, it don't look good." Jumper Dec. ¶ 50. Both instances are sexually suggestive comments made by Oliver about Jumper in front of other troopers at work. As observed in Cheek, "a Title VII plaintiff need not allege in an EEOC charge each and every fact that combines to form the basis of each claim in her complaint." Cheek, 31 F.3d at 500 (citing Taylor v. W. S. Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992)).
The EEOC charges also include incidents in which Jumper accuses O'Connor of negatively altering her work conditions because Jumper is a woman. For example, Jumper claims in her EEOC complaint that O'Connor reassigned her from Miami County to Fulton County due to her sex, and did not allow her to complete her paperwork at the Miami office although male troopers were permitted to do so. Similarly, Jumper asserts in her complaint that she was not permitted to participate in saturation patrols, or change her work schedule to attend a police banquet even though male troopers could. Although these are distinct factual incidents, the same individuals are involved and type of conduct is also similar.
The Court notes that Jumper's claim that she was denied the opportunity to participate in the DUI Wolf Pack patrol in January of 1998 is not actionable as a discrimination claim because it is untimely. See Morgan, 122 S.Ct. at 2072.
Under the second prong of Jenkins, the claims in the complaint must be the type that could reasonably develop from the EEOC investigation into the original charges. See Jenkins, 538 F.2d at 167. With the knowledge that O'Connor and Oliver were at the center of every alleged discriminatory action in the EEOC complaint, a logical place for the EEOC investigation to start would be gathering information about Jumper's interactions with O'Connor and Oliver. Interviews with Jumper, O'Connor, Oliver, and other troopers could reasonably have brought these other incidents to light.
In sum, drawing all reasonable inferences in favor of Jumper, and considering the remedial purposes of Title VII, the Court will consider the claims asserted in the district court complaint that were not specifically mentioned in the EEOC charges.
C. SEX DISCRIMINATION CLAIM
Title VII prohibits an employer from treating an employee less favorably with respect to the conditions of employment because of her sex. See 42 U.S.C. § 2000e-2(a)(1). A plaintiff must establish that she is the victim of intentional discrimination to prevail on a Title VII sex discrimination claim. See Jackson v. E.J. Branch Corp., 176 F.3d 971, 982 (7th Cir. 1999). A plaintiff may prove intentional discrimination through the "direct" method or the "indirect" method. See Jackson, 176 F.3d at 982.
Under either method, however, the plaintiff must establish that she suffered from an adverse employment action. See Oest v. Ill. Dept. of Corrections, 240 F.3d 605 (7th Cir. 2001). "Only those acts resulting in an adverse employment action are cognizable under Title VII. Although we have defined adverse employment actions `quite broadly,' adverse actions must be materially adverse to be actionable, meaning more than a `mere inconvenience or an alteration of job responsibilities.'" See id. at 612 (citations omitted). A materially adverse employment action "constitutes 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." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
The majority of incidents that Jumper asserts as adverse employment actions, including the involuntary reassignment to Fulton County, are untimely. The incidents within the limitations period are the temporary assignment to bus inspection duty in July 1999, an unfavorable performance appraisal Jumper received in April 1999, and the exclusion of Jumper from Field Training courses in September 1999.
The bus inspection duty was a temporary assignment by O'Connor that required Jumper to travel to all counties in District 16. Jumper considered the assignment degrading because she was performing menial tasks that any civilian could complete. Jumper Dec. ¶ 27. According to Jumper, her bus duty assignment lasted six weeks, and she told Reedus that she considered it a negative detail. See id. ¶¶ 23, 26. O'Connor claimed the detail lasted only two weeks, and Reedus stated that Jumper expressed appreciation for the bus inspection assignment. Reedus Dec. ¶ 21. According to O'Connor, the duty was seen as a benefit by troopers because it provided a change of pace. O'Connor Dec. ¶ 27. Viewing the disputed facts in the light most favorable to Jumper, the Court will presume that Jumper did not appreciate the bus inspection detail. However, Jumper does not allege that there was any decrease in her salary, or that this was a demotion. There is no evidence that male troopers were not assigned to this detail. Even if it increased her commute by having to drive to different counties, for a change to be materially adverse, it must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady v. Liberty Nat'l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993). Most importantly, this was a temporary alteration of her job responsibilities that lasted, at maximum, six weeks. The case might be different if Jumper were permanently reassigned from her duties as a state trooper to work as a bus inspector. The temporary bus inspection duty is not the type of significant change in employment status that gives rise to a Title VII discrimination claim.
Jumper also claims that a letter of counseling she received in February 1999 is an adverse employment action under Title VII. Jumper received a letter of counseling for failing to turn in a case report on time. Some male troopers had never received letters of counseling for turning in case reports late, and Jumper argues that the letter of counseling she received was excessive discipline amounting to a material change in the quality of the conditions of her employment. However, negative performance evaluations or minor written letters of discipline like this one do not implicate sufficiently "tangible job consequences" to constitute an independent basis for liability under Title VII. See Oest, 240 F.3d at 613 (concluding that negative performance evaluations and minor reprimands do not constitute adverse employment action).
Jumper also claims that a September 1999 incident when she was not selected to be a Field Training Officer was an adverse employment action under Title VII. According to Jumper, she had more seniority than one of the male troopers who was sent to Field Training courses. However, like the bus inspection detail and the letter of counseling, this non-selection does not rise to the level of an adverse employment action. Jumper has not established that officers chosen for the Field Training courses were always chosen on the basis of seniority, or that not being chosen for the courses altered her conditions of employment in any way.
In short, no material harm has been suffered from any of the challenged actions. During the relevant time period, Jumper was not seriously disciplined, terminated, or demoted, and the only significant change in her duties was temporary. Thus, the Court GRANTS ISP's Motion for Summary Judgment on the sex discrimination claim.
D. HARASSMENT/HOSTILE ENVIRONMENT CLAIM
The Morgan Court held that if "an act contributing to a [hostile work environment] claim occurs within the [timely] filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Morgan, 122 S.Ct. at 2074. In the present case, the pre- and post-accrual date acts were perpetrated by the same supervisors, occurred relatively frequently, and were the same types of employment actions. Thus, for the hostile environment claim, the Court will consider acts from both time periods as a claim of one single unlawful employment practice. See Morgan, 122 S.Ct. at 2076 (concluding that incidents involving same supervisors and same types of employment actions occurring relatively frequently may be part of same actionable hostile environment claim).
Jumper alleges that her supervisors at the ISP created a hostile work environment that constitutes sexual harassment. "An employer violates Title VII when `discrimination based on sex . . . create[s] a hostile or abusive work environment.'" Adusumilli v. City of Chi., 164 F.3d 353, 361 (7th Cir. 1998) (citation omitted). Harassment is a broad term which "encompasses all forms of conduct that unreasonably interfere with an individual's work performance or create an intimidating, hostile, or offensive working environment." McKenzie v. Ill. Dep't. of Transp., 92 F.3d 473, 479 (7th Cir. 1996).
The harassment "must be sufficiently severe or pervasive" to be actionable. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986). "In order to survive summary judgment on a hostile work environment claim, a plaintiff must present evidence that would establish that the allegedly hostile conduct was so severe or pervasive as to create an abusive working environment in violation of Title VII." Russell v. Bd. of Trs. of Univ. of Ill., 243 F.3d 336, 342-43 (7th Cir. 2001). "In assessing the severity and pervasiveness of the conduct, [the court looks] to all 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.'" Id. at 343 (quoting Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999)).
A plaintiff must show that the work environment was both subjectively and objectively hostile. See Haugerud v. Amery School District, 259 F.3d 678, 693 (7th Cir. 2001). "The requirement of subjectivity is intended to ensure that the plaintiff did actually feel harassed, because `if the victim does not subjectively regard the environment as abusive, the conduct has not actually altered the victim's employment and there is accordingly no Title VII violation.' An objectively hostile work environment is one that a reasonable person would find hostile or abusive." Id. (citations omitted).
The central focus of a district court on a harassment summary judgment motion is to "decide whether a reasonable trier of fact could find that the plaintiff was harassed, that she was harassed because of her sex, and that the conduct was severe or pervasive enough to create a subjectively and objectively hostile work environment." Id. (citing Mazzei v. Rock-Around Trucking, Inc., 246 F.3d 956, 959 (7th Cir. 2001)).
The following are the primary factual allegations made by Jumper with regard to her hostile work environment claim:
1. April 1998: Jumper received a letter of counseling for having a defective camera while male co-workers had defective cameras but did not receive letters of counseling.
2. September 1998: O'Connor involuntarily reassigned Jumper to Fulton County although male troopers with less seniority could have been reassigned.
3. September 1998: O'Connor selected Jumper to be part of the background investigative team because she is female, and prior to her filing the EEOC complaint, she was only allowed to investigate one person, a female.
4. September 1998: Jumper was not allowed to participate in saturation patrols outside of her assigned county, while the other trooper in her county, a male, was allowed to participate in saturation patrols in other counties.
5. December 1998: Jumper was required to complete her paperwork within her assigned county while male co-workers were allowed to complete their paperwork outside of their assigned counties.
6. March 1999: During a training exercise, Oliver shouted at Jumper, "Just show him your tits."
7. July 1999: Jumper was involuntarily assigned to bus inspection duty for six weeks, which involved duties that she considered more menial than her usual duties as a trooper.
8. November 1999: Jumper was accused of spending time with her husband while on duty, and there was no evidence that any male troopers were ever accused of or disciplined for spending time with their spouses while on duty.
9. December 1999: When Jumper left the police garage from another room with a male trooper, Oliver stated, "That don't look good, it don't look good."
10. April 2000: After Jumper filed her EEOC compliant, Oliver referred to her as a "bitch" in front of other troopers.
Jumper argues that this list of incidents constituted severe and pervasive harassment that altered the terms of her employment, and that similarly situated male co-workers were not treated as poorly. However, in this case, "the most salient feature of the harassment is the lack of its severity." Adusumilli, 164 F.3d at 361. Jumper was never touched inappropriately by O'Connor or Oliver, nor does she complain of any sexual advances made on her. She was never physically threatened or abused by her supervisors. Cf. King v. Board of Regents of the Univ. of Wis. Sys., 898 F.2d 533, 534-35 (7th Cir. 1990) (repeated verbal and physical harassment that continued despite plaintiff's objections were sufficient to support a hostile environment claim) (emphasis added).
Although Oliver's remarks "show him your tits," "that don't look good," and "bitch" were surely inappropriate and insensitive, Title VII does not prohibit boorish behavior. See, e.g., Russell, 243 F.3d at 343 (concluding that supervisor's habit of referring to plaintiff as "grandma," his comments that all intelligent women are unattractive, calling female employees "bitches," and saying that female co-worker dressed "sleazy" and "like a whore" were not so offensive as to constitute actionable harassment); Weiss v. Coca-Cola Bottling Co. of Chi., 990 F.2d 333, 337 (7th Cir. 1993) (finding no actionable harassment where plaintiff's supervisor asked plaintiff out on dates, called her a "dumb blond," placed hand on her shoulder several times, and attempted to kiss her several times).
Probably the most serious allegations that Jumper makes are that she was reassigned to Fulton County due to her gender, and that she was placed on bus inspection duty due to her gender. See Haugerud, 259 F.3d at 694-95 (concluding that harassment, even though not of a sexual nature, sufficiently interfered with terms and conditions of plaintiff's employment such that a reasonable trier of fact could find in her favor). As stated earlier, the bus duty, though a significant departure from her usual duties as a trooper to more menial tasks, was a temporary assignment. Further, Jumper has not presented record evidence that male troopers were not placed on the same temporary detail, outside of her own conclusory statement that she was the only trooper to ever be placed on bus duty involuntarily. On the reassignment incident, Jumper herself admits that at the time, she did not think the decision had anything to do with her gender. According to Jumper, she never thought the way O'Connor treated her had anything to do with her gender until shortly before she filed her EEOC claim. Then, after being questioned about spending time with her husband while on duty, Jumper realized that every single negative encounter or employment interaction with O'Connor over the past few years had been due to her gender. However, even if the reassignment had anything to do with gender, it was not a demotion, and did not substantially alter Jumper's job responsibilities. The reassignment, which lasted for about a year, simply increased Jumper's commute time.
Moreover, although O'Connor may have treated Jumper unfairly at times, there is evidence that male troopers felt the same way. Captain Rollins had received complaints from subordinate commanders about O'Connor's temper and about how he treated his subordinates. Rollins Dep. at 40-41. Beck stated that one of the reasons he took a voluntary demotion from Squad Sergeant to trooper was because of the way O'Connor treated him. Def.'s Ex. H at 9. Referring to his interactions with O'Connor, Beck said, "[I]t's not been smooth sailing . . . [Beck was] tired of battling." Id. The record shows that the work environment was difficult for many of the ISP employees whom O'Connor supervised, which undermines Jumper's claim that O'Connor made life difficult for her due to her gender. In short, the incidents of which Jumper complains, taken as a whole, do not constitute actionable harassment. Thus, the Court GRANTS ISP's Motion for Summary Judgment on the hostile work environment claim.
E. RETALIATION CLAIM
Jumper also claims that ISP violated Title VII by retaliating against her for filing the sex discrimination complaint with the EEOC. 42 U.S.C. § 2000e-3(a) provides: "It shall be an unlawful employment practice for an employer to discriminate against any one of his employees . . . because [s]he has opposed any practice made an unlawful employment practice by this subchapter . . ." 42 U.S.C. § 2000e-3(a). A plaintiff in a retaliation case has two routes to prevent summary judgment: the plaintiff may present direct evidence that she engaged in protected activity and as a result suffered an adverse employment action, or the plaintiff may present circumstantial evidence under the McDonnell Douglas framework. See Stone v. City of Indianapolis, 281 F.3d 640, 644 (7th Cir. 2002). Because Jumper has no direct evidence of retaliation in this case, she must establish a prima facie case under McDonnell Douglas. Jumper is required "to show that after filing the charge only [s]he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though [s]he was performing [her] job in a satisfactory manner." Id.
In this case, ISP does not dispute that Jumper engaged in protected conduct when she filed complaints with the EEOC and the Police Department in December 1999. ISP claims, instead, that Jumper cannot prove that she suffered any adverse employment action subsequent to filing with the EEOC. Jumper alleges that her co-workers documenting her work performance and her reassignment to Oliver were adverse employment actions taken because she filed the EEOC complaint.
On May 29, 2000, Corporal Ingram ("Ingram"), a shift supervisor, sent a memo about Jumper to O'Connor and Sergeant David Brown, who was Jumper's Squad Sergeant at the time. Jumper Dec. ¶ 73. The memo detailed concerns about two occasions when Jumper was on duty, and 911 calls were assigned to her. See Pl.'s Ex. B. Ingram felt that Jumper, although she did respond to the calls, questioned the appropriateness of her being sent on those calls. See id. Ingram did not recommend that any disciplinary action be taken against Jumper. See id. Jumper perceived this to be retaliatory conduct by Ingram because he did not follow the formal process to allege misconduct against another trooper. Jumper Dec. ¶ 73.
In Oest v. Ill. Dept. of Corrections, 240 F.3d 605 (7th Cir. 2001), the Seventh Circuit concluded that co-workers' documentation of a plaintiff's work performance after an EEOC charge did not constitute retaliation, and in Oest, the documentation was much more extensive and questionable than in the instant case. See Oest, 240 F.3d at 616-17. In Oest, there was evidence that co-workers were told to document the plaintiff's work performance more closely, that a co-worker may have forged some documents to give the plaintiff trouble, and that letters were written by the plaintiff's superiors that her EEOC charge was undermining discipline. See id. In the present case, Ingram's memo is Jumper's only evidence that her work performance was being scrutinized more closely than other similarly situated officers, and there is no evidence that Ingram was directed to monitor Jumper more extensively. Moreover, Jumper does not dispute the accuracy of the events in Ingram's memo. This is insufficient evidence to support a jury verdict in Jumper's favor on the retaliation claim.
Jumper also claims she was retaliated against by being reassigned to Oliver, the same Squad Sergeant she had problems with in the past. Though it is unclear from the record exactly when this reassignment occurred, it occurred sometime after the December 9, 1999, EEOC filing. It is clear that Oliver and Jumper had conflicts in the past, and Jumper likely would have preferred a different Squad Sergeant. Although Jumper may have been justifiably unhappy about her reassignment to Oliver, "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). Jumper does not allege that her duties changed in any way, or that she lost any tangible benefits due to the reassignment. Moreover, Jumper was reassigned to another Squad Sergeant the day after she complained about Oliver referring to her as a "bitch," and Oliver was never her Sergeant again. Jumper Dec. ¶ 71. Jumper has not raised a material issue of fact as to whether or not the reassignment to Oliver was an adverse employment action.
Because Jumper has not demonstrated that she was treated differently than other similarly situated employees who did not file an EEOC charge, or that she was subjected to an adverse employment action despite performing her job in a satisfactory manner, the Court GRANTS ISP's Motion for Summary Judgment on the retaliation claim.
IV. CONCLUSION
For the reasons discussed herein, the Court finds that Jumper has failed to demonstrate that a material issue of fact exists in this case. The Court GRANTS ISP's Motion for Summary Judgment on the sex discrimination claim. The Court GRANTS ISP's Motion for Summary Judgment on the hostile work environment claim. Finally, the Court GRANTS ISP's Motion for Summary Judgment on the retaliation claim.