Opinion
Cause No. NA99-0120-C-H/S
August 15, 2001
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION AND RELATED MATTERS
For more than twenty years, plaintiff Ruth Ann Patton has worked in a Paoli, Indiana, grocery store operated by defendant John C. Groub Company, Inc.
("Groub"). In this action she has sued Groub for age and sex discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. Patton alleges that Groub reduced her work hours, failed to promote her by denying her additional hours, removed her from certain tasks, and paid her less because of her age and/or sex. Born in 1938, Patton was 53 years old in 1991 when she alleges the discrimination began.
Groub has moved for summary judgment on all claims in Patton's complaint on several grounds. The court grants Groub's motion for summary judgment. All but one of Patton's claims are barred by the statutory time limits for filing discrimination claims. The exception is Patton's claim based on a denial of seasonal work in late 1998, which she sometimes has described as a failure to promote claim. That claim also fails as a matter of law because the denial of seasonal work was not an adverse employment action, at least in the absence of any evidence that Patton would have made more money if she had been given the assignment.
I. Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility or about whether a reasonable inference should be drawn from circumstantial evidence of a person's intentions. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). However, the existence of "some alleged factual dispute between the parties," or "some metaphysical doubt" does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). Rather, the proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In employment discrimination cases, as in all cases, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
II. Preliminary Matters
The court must first address several preliminary matters arising from the rather convoluted procedure for the summary judgment motion, which caused Patton to file her response in two installments. Groub seeks a ruling that its statement of material facts be deemed admitted without controversy under Local Rule 56.1 because Patton failed to comply with that rule in the first portion of her response to Groub's motion. Groub also has moved to strike the affidavit Patton submitted with that response on the grounds that it contradicts her deposition testimony. Groub also has moved to strike as untimely the second portion of Patton's response to its summary judgment motion. Patton's second response included her only Local Rule 56.1 submissions, but it was filed two days late. In addition, Patton has filed a motion to "correct" the filing date of her second response to bring it within the deadline established by the briefing schedule.
A. Procedural History and Briefing Schedule
Groub moved for summary judgment on all claims in Patton's complaint on August 31, 2000. The parties were then in the midst of a discovery dispute. On September 13, 2000, Patton moved to hold Groub's motion in abeyance pending the close of discovery. During a telephone conference with counsel on September 28, 2000, Magistrate Judge Shields devised a plan for proceeding with both discovery and Patton's response to Groub's motion. Under the plan, Patton was to file a motion to compel if Groub's response to Patton's pending discovery requests was not satisfactory. On November 17, 2000, Patton filed such a motion.
On December 12, 2000, Judge Shields granted Patton's motion to compel and established a revised briefing schedule for Groub's summary judgment motion. Judge Shields wrote:
In addition, the magistrate judge has reviewed the defendant's motion for summary judgment and has determined that most of the issues raised in it can be addressed by plaintiff without any additional discovery. Accordingly, within 15 days of the date of this Entry, plaintiff shall file her response to the following arguments presented in the motion for summary judgment: (1) that all of plaintiff's claims except her promotion claim are time-barred; (2) that some or all of plaintiff's claims are outside the scope of her EEOC charge; and (3) that plaintiff suffered no adverse employment action. In the highly unlikely event that plaintiff believes she needs additional discovery to support her response to these arguments, she shall so indicate within the body of her response brief, setting forth in detail the additional discovery needed and an explanation of why that discovery has not yet been completed. Defendant's reply brief in support of its motion for summary judgment on those three issues shall be filed within 7 days of the date plaintiff's response brief is filed.
Finally, if after receiving defendant's responses to Interrogatories Nos. 9 and 10, plaintiff believes she is entitled to conduct additional discovery which is directly relevant to the fourth issue raised in defendant's motion for summary judgment — that Groub acted for legitimate, nondiscriminatory reasons — plaintiff shall file a motion pursuant to Federal Rule of Civil Procedure 56(f) on or before December 29, 2000. If no Rule 56(f) motion is filed by that date, plaintiff's response on the additional summary judgment issues shall be filed on or before January 22, 2001. . . .
Neither party shall expect any extension of the deadlines set forth in this Entry absence extraordinary and unforeseen circumstances.
Entry of December 12, 2000 (emphasis in original).
In her Entry of December 12, 2000, Judge Shields also noted her earlier 1 comments that "the tone of the parties' briefs" was becoming "increasingly antagonistic," as well as her recommendation that counsel "eliminate unnecessary rhetoric from their briefs," and found it "very discouraging that counsel failed to heed this advice; if anything, the uncivil tone of the parties' briefs has worsened rather than improved." The parties' later filings have continued to generate a great deal of unnecessary and counter-productive heat not related to the merits of the case.
Groub's counsel promptly asked for a delay in the briefing schedule to accommodate their long-planned vacations. Counsel for Patton objected. On December 21, 2000, Magistrate Judge Godich granted Groub an extension until January 12, 2001, to file its reply brief. (Under Magistrate Judge Shields' order, Groub's reply would have been due on or about January 3, 2001.) Magistrate Judge Godich also pushed back the due date for Patton's first response to January 2, 2001, so that the extra time could have worked primarily to Patton's benefit rather than Groub's.
B. Patton's Responses to Groub's Motion
Local Rule 56.1 governs summary judgment procedure in this district and imposes specific and detailed formal requirements. The party moving for summary judgment must submit a Statement of Material Facts consisting of numbered sentences. Each is to be "limited as far as practicable to a single factual proposition" and must be supported by specific citation to record evidence. L.R. 56.1(f)(1) (2). If a party opposing summary judgment seeks to dispute an asserted fact, she must respond specifically and with specific citation to record evidence. Id.
Local Rule 56.1(g) permits the court to assume that facts the moving party asserts and properly supports are undisputed unless the facts are "specifically controverted or objected to in compliance with L.R. 56.1(f)." However, the rule also allows the court to excuse strict compliance with Local Rule 56.1 in the interests of justice or for good cause. Local Rule 56.1(k).
On December 22, 2000, Patton filed Plaintiff's Response Brief to Defendant's Motion for Summary Judgment. That initial response did not include any direct response to Groub's statement of material facts. Instead, Patton saved her Local Rule 56.1 response to Groub's statement of material facts until the second portion of her submission, which she filed on January 24, 2001.
Groub argues that its statement of material facts should be deemed undisputed because (a) Patton included no response in her first submission and (b) her eventual submission was filed two days after the deadline for completing her response to the motion for summary judgment.
Patton's failure to include a Local Rule 56.1 response in her first submission was not the most reasonable interpretation of Judge Shields' ordered briefing schedule, but it was not contrary to explicit terms of that order.
The ultimate submission was sufficiently clear to allow both Groub and the court to come to grips with the issues and the evidence. Patton ultimately disputed so few of Groub's asserted facts that Groub was able to respond effectively on those few matters.
Patton also missed the court-ordered deadline for filing her second and final installment of her response to the motion for summary judgment. The court-ordered deadline was January 22, 2001. Patton filed her second responsive brief and supporting materials by mail. Patton's counsel mailed her submission to the courthouse on January 22, 2001. The documents were filed on January 24, 2001.
Groub has moved to strike the submission as untimely. Patton has filed a motion to "correct" the filing date on her submissions. She contends that the filing date is the date she mailed the materials. Both motions are denied.
The court correctly filed Patton's second submission on January 24th. Patton's counsel confused the distinct provisions for service and filing under the Federal Rules of Civil Procedure. Patton is correct that service by mail is complete upon mailing under Fed.R.Civ.P. 5(b), but documents are filed only when received by the clerk of court. See Fed.R.Civ.P. 5(e). This provision means that a federal district court's file is not deemed to include documents the court has not yet received. (But see Fed.R.App.P. 25(a)(2) (filing of appellate briefs and appendices may be deemed filed upon first class mailing or dispatch to commercial carrier, but other appellate filings are not timely "unless the clerk receives the papers within the time fixed for filing"); Sup. Ct. R. 29.2 (filings with Supreme Court timely if sent to clerk by first class mail no later than last day for filing).) The federal rules differ in this respect from Indiana Trial Procedure Rule 5(E), under which a document is considered filed at the time it is sent by certified or registered mail.
The two-day delay should not have occurred, but Groub's motion to strike Patton's second response to its summary judgment motion is denied. The confusion between the federal and state rules is not uncommon, especially among counsel who do not practice frequently in federal court. The situation here was not as egregious or aggravated as that in Spears v. City of Indianapolis, 74 F.3d 153 (7th Cir. 1996), where the Seventh Circuit affirmed a district court's decision to strike all materials in opposition to summary judgment where they were filed one day after last of several extensions had expired.
In light of Judge Shields' expressions of concern about civility, however, 2 as well as Patton's counsel's opposition to a short extension of the briefing schedule to accommodate previously-scheduled vacations, Patton's counsel should keep in mind the fact that the legal world is usually round. A lawyer who wants to insist on rigid adherence to rules and schedules should be sure that he or she makes not even the slightest mistake on such matters.
The court's decisions on these matters have limited practical effect because Patton did not dispute most of Groub's factual assertions in her belated submission. Patton attempted to dispute only four of Groub's 51 statements of material fact. Reviewing the materials as a whole, the court had no difficulty tracing either Groub's assertions and evidence or Patton's responses and her evidence. Accordingly, the flexibility permitted by Local Rule 56.1(k), to excuse strict compliance with Local Rule 56.1, should be exercised here. See Harmon v. OKI Systems, 115 F.3d 477, 481 (7th Cir. 1997) (affirming district court's decision to overlook formal problems with moving party's submission where there was no risk of confusion or prejudice to opponent).
The court also denies Groub's motion to strike a portion of Patton's affidavit on the ground that it conflicted with her earlier deposition testimony. As explained below, the court grants Groub's motion for summary judgment without reaching the issue of the scope of Patton's EEOC charge, which is the subject of the disputed portions of the affidavit.
III. Undisputed Facts
For purposes of Groub's summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to Patton. Groub operates 27 retail food stores in southern Indiana. Groub first hired Patton at its Paoli store in 1972, and she worked initally as a cashier. Pl. Dep. at 4-6. She later worked as a vendor checker or receiving clerk. In 1983, Patton became the head checker, a position she held until 1991. Id. Between 1972 and 1991, Patton averaged about 36 hours of work per week. Id. at 92.In 1991, Patton requested a transfer to a different position because she had some conflicts with an assistant manager trainee. Id. at 8. Patton accepted a vendor checker position on the condition that she could continue working at least 36 hours a week. Id. However, Patton worked fewer than 36 hours per week during the period 1991-93. Her hours were first reduced to 33 hour per week and then, by 1992, to 30 hours per week. Id. at 92-94.
Patton sometimes performed bread merchandising work for about ten hours per week. Id. at 30. Bread merchandising involves receiving bread, sweet rolls, and similar products from the supplier, inventorying the bread products, and stocking the bread. Id.
The Paoli store came under new management in 1994. See Motsinger Dep. at 35-36. Patton's hours remained essentially the same and she continued to work fewer than 36 hours per week until 1997. See Pl. Dep. at 107.
On April 13, 1997, Groub opened a new store in Paoli. Id. at 11-12. Patton and most of the employees from the old store transferred to the new store. Lisa Harp, a cashier in her thirties, was assigned to perform bread merchandising at the new store. Id. at 32. Because the new store was larger, Patton had more work to do. Her hours remained substantially the same even without the bread merchandising work she had performed at the old store.
In mid-1997, Harp took a leave of absence. During the leave, Patton picked up extra hours performing the bread merchandising work. She worked 40 hours per week during Harp's 15-week leave. Upon Harp's return, Patton went back to working 30 hours per week. Id. at 36-37.
Patton had been told that she would be able to perform bill entry work at the new store. Bill entry work takes approximately seven to ten additional hours per week. Id. at 34. However, when the new store opened, Todd Boseman, a younger male, received the bill entry work. Id. at 33.
During the November and December holiday season, Groub has additional candy work that consists of bagging bulk candy and displaying the candy bags. Pl. Dep. at 20. The candy work takes, at most, ten hours per week. Motsinger Dep. at 26. No more than a few minutes of training is required to perform the work. Groub considers the candy work as minimum wage work and prefers that employees with lower pay rates perform the work. Id. at 41.
In 1997, Patton performed the candy work. Pl. Dep. at 97. She did the work during "dead spots" during her regular shift as a vendor checker and did not pick up any extra hours. Id. at 98. Patton does not believe that any employees received any additional work hours as a result of performing candy work in 1997. Id. at 100.
In late October 1998, Patton asked about doing the candy work again and was told that she could. However, Patton did not get the candy work that year. Instead, three teenage employees who had lower hourly rates than Patton were assigned the work. Id. at 22, 25.
During the period 1991-1998, Patton complained about her lack of hours. See id. at 15-17 ("I complained all the time about my hours."). In November 1998, Patton complained about not getting the seasonal candy work to Steve Kiel, Groub's Director of Human Resources. Id. at 25; Kiel Dep. at 26.
In December 1998, Patton was given the bread merchandising work, which increased her hours to 40 per week. Pl. Dep. at 30; Kiel Dep. at 26-27. Patton continues to perform the bread merchandising work and continues to work 40 hours per week. Pl. Dep. at 39.
Patton filed her EEOC charge on or about February 12, 1999. Although not specifically mentioned in her EEOC charge, Patton claims three younger employees received a higher wage than she did. Patton testified that Barb Elliott, a 50-year-old cashier, Candy Wolfe, a scanning coordinator in her thirties, and Harp, a cashier in her thirties, earned 25 to 40 cents more per hour than she did. Pl. Dep. at 49-50, 60. Patton knew of the difference between her pay and Elliot's pay since before the new store opened in April 1997. Id. at 49. Patton suspected that Harp was paid more as early as 1997. Id. at 125.
IV. Discussion
Summary judgment for Groub must be granted on Patton's sex and age discrimination claims for two reasons. First, the vast majority of Patton's allegations relate to events that occurred between one and seven years outside the applicable limitations period. Second, Patton's only timely filed claim fails as a matter of law on the merits because Patton has not shown that the alleged denial of seasonal candy-bagging work was an adverse employment action.
A. Statute of Limitations
Groub contends that the statute of limitations bars all of Patton's claims except for her claim based on the denial of seasonal work in late 1998, which Patton characterizes as the denial of a promotion. In Indiana, a sex discrimination charge under Title VII must be filed with the EEOC within 300 days of the alleged violation. See 42 U.S.C. § 2000e-5(e)(1). Under the ADEA, the statute of limitations is even shorter. An age discrimination charge must be filed within 180 days of the alleged violation. See 29 U.S.C. § 626(d)(1). Patton filed her EEOC charge on February 12, 1999. Thus, the statute of limitations presumptively bars Patton from seeking relief for damages arising from adverse employment actions that occurred before April 24, 1998.
In different parts of its submissions, Groub has stated that Patton filed her 4 charge on February 12, 1999, and February 19, 1999. The charge form is dated February 19, 1999. To give Patton the benefit of the doubt, the court assumes that February 12, 1999 is the charge filing date, as alleged in Patton's complaint.
In her first response, Patton argued that Groub's calculation of the limitations period "appears to be in error" based on the February 12, 1999, filing date. See Pl. Br. at 8 n. 4. Without citing the record, Patton stated there is evidence that she filed her charge earlier, but not on any particular date. Patton has acknowledged that any "variance" in the end date of the limitations period is not material in light of the overall time line of events. Id. Accordingly, the court uses April 24, 1998, as the relevant date for deciding statute of limitations issues. The parties have not argued that there are any incidents that might be actionable under Title VII's 300-day limitations period, which is the period beginning April 24, 1998, but not actionable under the ADEA's 180-day limitations period.
Patton seeks to avoid the 300— and 180-day limits on the theory that the sex and age discrimination she experienced consisted of continuing violations of Title VII and the ADEA. The Seventh Circuit has recognized three continuing violation theories that can operate to extend time limits in employment cases. See Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992). Patton relies on two of these theories. Under the first, a continuing violation includes an employer's discriminatory acts that take place over a period of time, making it difficult to pinpoint a specific date when the alleged violation occurred. This theory usually applies to hiring and promotions decisions. In such instances, the statute of limitations begins running when the plaintiff knows that the decision has been made. See Jones v. Merchants Nat'l Bank Trust Co. of Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994).
Under the second theory, an employer commits a continuing violation if it followed a practice of discrimination, but did so covertly rather than by way of an open and notorious policy. See Selan, 969 F.2d at 565. Under these circumstances, a continuing violation is a violation that "could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period." Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998), citing Dasgupta v. University of Wisconsin Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997). This type of continuing violation is known as a "serial violation." Selan, 969 F.2d at 565.
Under both theories, in a discrimination case the relevant question is when the plaintiff knew or should have known that defendant's conduct was discriminatory and had harmed her. See Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996) (plaintiff may not base her suit on conduct that occurred outside the limitations period unless it would have been unreasonable to expect the plaintiff to sue before the statute of limitations ran on the conduct); Selan, 969 F.2d at 565-66 (separate violations are treated as a continuing violation when the plaintiff had no reason to believe she was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory treatment).
The undisputed evidence demonstrates that Patton recognized or should have recognized a pattern of allegedly harmful conduct long before April 24, 1998. Accordingly, she cannot establish a continuing violation under either theory discussed above.
First, contrary to Patton's assertions, Groub's allegedly discriminatory acts can be pinpointed to specific dates in the past. In support of her argument under the continuing act theory, Patton asserts that she was "forced out" of the front office. That incident occurred at a specific time in 1991 when she left the head checker position. According to Patton, she returned to a vendor checker job at that time on the condition that Groub continue scheduling her for at least 36 hours per week. Groub failed to do so. Although the effects of the alleged discriminatory act continued for several years, those effects all can be traced to Patton's decision in 1991 to accept a different job. Thus, even if Patton's decision to change jobs could be construed as a constructive adverse employment action by Groub, it was not a continuing act of discrimination. See Dasgupta, 121 F.3d at 1140 ("A lingering effect of an unlawful act is not itself an unlawful act, however, so it does not revive an already time-barred illegality. . . ."). Patton knew of it and could have complained about it long ago.
Patton tries to bring her claims within the continuing act variation of the continuing violation theory by arguing that discriminatory pay claims "presumptively" are continuing violations. See Pl. Br. at 11. Cf. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994) (stating in dicta: "Pay increases are typically continuing violations, because each pay check at a discriminatory rate is seen as the basis for a separate claim."). However, as the Seventh Circuit explained in Dasgupta, the mere fact that the effects of a discriminatory pay decision reach into the limitations period does not, without more, turn subsequent wage payments into continuing violations. Dasgupta, 121 F.3d at 1140 (pay claim barred by statute of limitations because it derived from a decision about base pay made at the commencement of plaintiff's employment; plaintiff's later raises were calculated as a percentage of salary and were not continuing acts of discrimination); see also Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1004 (7th Cir. 2000) (even though alleged discriminatory pay practice continued into limitations period, plaintiff was aware of alleged pay inequality well before then and therefore could not rely on the continuing violation theory).
Patton testified that she was aware of Groub's allegedly discriminatory practices for several years. In April 1997, about a year outside the limitations period, Patton believed that Lisa Harp, who was in her thirties, was paid more. In addition, Harp was doing the bread merchandising work at the new store in April 1997. Also around that time, Patton knew that Todd Boseman, a younger male, received the bill entry work she wanted. Even before then, Patton believed that Barbara Elliott was being paid more. See Pl. Dep. at 49; 125. Patton's belief that she was being paid less and her knowledge that she was not receiving the assignments she desired was sufficient to put her on notice that she should assert her rights. See Miller, 203 F.3d at 1004.
Second, Patton has not shown that she is complaining about covert or serial discriminatory acts by Groub. Under this continuing violation theory, Patton must produce sufficient evidence to create a fact issue on whether Groub's acts were "related closely enough to constitute a continuing violation" or were "merely discrete, isolated, and completed acts which must be regarded as individual violations." Selan, 969 F.2d at 565.
To determine whether the acts are sufficiently closely related to defeat the statute of limitations, the court considers three factors, the most significant of which is permanence. See Filipovic v. K R Express Systems, Inc., 176 F.3d 390, 396 (7th Cir. 1999) (stating that courts should consider whether acts involved in an alleged continuing violation were similar in nature, frequent in occurrence, and permanent in degree); Selan, 969 F.2d at 565 (noting that, out of the factors that help determine whether or not a continuing violation exists, the Seventh Circuit has stressed the importance of the degree of permanence of the action).
All three factors support the conclusion that Patton has not demonstrated a continuing violation. First, Patton complains about different types of discrimination — the hours reduction, the loss of bread merchandising work, pay discrimination, and the denial of seasonal candy work. Second, the acts were infrequent and occurred over a long period of time. In 1991, Patton's hours were reduced. In April 1997, Patton lost the bread merchandising work. In October or November 1998, Patton was denied the opportunity to perform the seasonal candy work. The amounts of time that elapsed between the alleged discriminatory acts demonstrate that they were not part of continuing violation. See Selan, 969 F.2d at 567 (two year span between alleged discriminatory acts was a "considerable separation" that "weigh[ed] heavily against finding a continuing violation.").
Third, and most important, each of the alleged acts of discrimination effectively was permanent. In 1991, Patton transferred from a job where she worked over 36 hours per week to a job where her hours were reduced to 33 and then 30 hours per week. Beginning that year, Patton complained that her hours were not increased while both male and younger employees were given more hours. The situation did not improve until she complained to human resources in 1998. The reduction in hours was permanent during the seven year period when she did not work the hours she wanted. Similarly, once Patton lost the bread merchandising work to Harp, she never got it back except for the discrete period of Harp's leave.
Groub's acts were sufficiently permanent to put Patton on notice that she should exercise any legal right to complain about them. See Selan, 969 F.2d at 567 (transfer along with loss of title "is precisely the type of major, permanent change in employment status that should trigger an employee's awareness of the need to assert — or else lose — his rights.").
Patton's claim that she did not subjectively perceive herself as the target of age or sex discrimination until she was denied the seasonal candy work in November 1998 is insufficient to revive time-barred claims that she reasonably should have been aware of much sooner. A reasonable person who was subjected to the treatment alleged by Patton, if she perceived harmful discrimination at all, would have perceived it at some point long before the applicable limitations period. Accordingly, Patton's claims relating to events that allegedly occurred before April 24, 1998 are time-barred.
Because Patton's pay discrimination claim is barred by the statute of limitations, the court need not decide whether it falls within the scope of her EEOC charge.
B. Denial of Seasonal Work
The only claim not barred by the statute of limitations is Patton's claim that she suffered discrimination because of her sex and her age when Groub denied her request to perform seasonal work around the winter holidays in 1998. The work consisted of bagging bulk candy.To support her claims of sex and age discrimination, Patton has come forward with evidence from a former store manager that, at some unspecified times between 1990 and 1997, Groub's district manager Dave Motsinger "repeatedly made comments in regards to Ruth Ann Patton: 'Haven't you found a way to get rid of her yet' and 'Haven't you got rid of that old bitch yet?'" Williams Aff. ¶ 3. Patton has not linked this vague evidence to the decision about who bagged candy in late 1998. The court must assume of course that Motsinger made those comments, but the comments alone do not support a claim under Title VII or the ADEA. Patton understandably has not attempted to assert a claim for hostile environment discrimination. To establish a claim for age or sex discrimination, she must come forward with evidence that she suffered a material adverse employment action.
Groub contends that Patton cannot establish a case of discrimination as a matter of law because she cannot show that the denial of seasonal candy-bagging work constituted an adverse employment action. The court agrees.
The Seventh Circuit has defined "adverse employment action" broadly, see Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996), but not broadly enough to reach Patton's claim. An adverse employment action is "not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well." Collins v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987). However, it is well established that "not everything that makes an employee unhappy is an actionable adverse action." E.g., Bell v. E.P.A., 232 F.3d 546, 555 (7th Cir. 2000) (citations omitted).
For an employment action to support a lawsuit, the action must be materially adverse, "meaning more than a mere inconvenience or an alteration of job responsibilities." Cullom v. Brown, 209 F.3d 1035, 1041 (7th Cir. 2000) (internal quotations and citations omitted). "It must be 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." Bell, 232 F.3d at 555, citing Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998). See also Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."); accord, Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1001 (7th Cir. 2000); Biolchini v. General Elec. Co., 167 F.3d 1151, 1154 (7th Cir. 1999) (noting that suspension and removal of lead job responsibilities were adverse employment actions).
Groub's denial of Patton's request to perform seasonal candy was not an adverse employment action for purposes of Title VII and the ADEA. There is no record evidence that tends to show that the denial materially affected Patton's employment status. Patton performed seasonal candy work in 1997, but she testified that her work hours did not increase. Pl. Dep. at 98. She completed the work during the course of her regular work hours, during "dead spots." In response to Groub's motion for summary judgment, Patton has not come forward with any evidence that would allow a reasonable jury to find that she suffered any adverse effects — economic or otherwise — when she was not assigned to do the seasonal candy work in 1998.
Patton tries to make her denial of seasonal work claim sound more viable by sometimes calling it a failure to promote claim. Patton appears to describe her various complaints about not getting enough hours as a failure to promote because "additional hours would entail additional job duties for Patton." See Pl. Br. at 6 n. 2. That characterization is unsupported argument because there is no evidence that she would have worked more hours and made more money. The seasonal work would not have been a promotion; it did not pay well. The undisputed evidence shows that Groub preferred to have the seasonal candy work done by employees with wages much closer to minimum wage than Patton's wage rate. In addition, not surprisingly, no evidence suggests that the seasonal work carried with it any special title, authority, opportunities, or benefits, and it did not require any special training. On this record, Patton's request for seasonal work was not an application for a promotion. The claim fails as a matter of law because Groub's decision to assign the work to others was not a sufficiently serious employment action to fall within the purview of Title VII and the ADEA.
Conclusion
Plaintiff Patton's ADEA and Title VII claims are insufficient as a matter of law because she has not produced any evidence that she experienced an adverse employment action during the applicable limitations period. The court therefore grants summary judgment to defendant John C. Groub, Inc. The court also denies all motions to strike, as well as Patton's claim to correct the filing date and Groub's motion to deem facts admitted. Final judgment shall be entered.
So ordered.