Washington v. Board of Trustees of Com. College Dist. 509

Full title: SLYVIA E. WASHINGTON, Plaintiffs, v. BOARD OF TRUSTEES OF COMMUNITY…

Court: United States District Court, N.D. Illinois, Eastern Division

Date published: Jan 19, 2001

No. 98 C 5632 (N.D. Ill. Jan. 19, 2001)

Opinion

No. 98 C 5632

January 19, 2001

MEMORANDUM ORDER

EDWARD A. BOBRICK, U.S.M.J.

Before the court is the motion of defendant Board of Trustees of Community College District No. 509. Elgin Community College for summary judgment on the complaint of plaintiff Sylvia Washington.

Plaintiff brings her complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging defendant, her employer, has discriminated against her because of her race and gender.¹ Essentially, plaintiff contends she is subjected to a hostile work environment at the community college where she teaches. The defendant now moves to dismiss the claims plaintiff brings against it.

1 Plaintiff has abandoned her claims against the faculty association, as well as her retaliation claim.

II. FACTS

The parties have filed the requisite Local Rule 56.1 submissions.² The court relies on these submissions to form an understanding of the facts of this case and to determine whether those facts entitle the movant to summary judgment as a Inatter of law. Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999). In this case, the plaintiff has failed to fully comply with the local rule: of the 124 paragraphs of responses and facts in her submission, only six include citations to the record. An answer that does not deny the movant's asserted facts in the numbered paragraphs with citations to the record constitutes an admission. Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 689 (7th Cir. 2000). Accordingly, the court is left to consider only those facts the defendant has properly asserted.

2 Rule 56.1(a) requires the party moving for summary judgment to file, among other items, a "statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." Local Rule 56.l(a)(3). The required statement is to consist of short numbered paragraphs, including within each paragraph specific cites to the record which support the facts set forth. Id. Rule 56.1(b) then requires the opposing party to file among other items:

a concise response to the movant's statement that shall contain: (A) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and (B) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials.

Local Rule 56.1(b)(3). Rule 56.1(b) further provides that "all material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Id. The district court, with the approval of the Seventh Circuit, has long enforced the requirements of these rules. Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999) (discussing Local General Rule 12, the predecessor to Rule 56.1).

Plaintiff, an African-American woman, has been employed by defendant since August of 1993, most recently as an assistant professor in the math and science department. She claims she was forced to work in a hostile environment due to her race and gender. As plaintiff has failed to file an adequate Rule 56.1 submission, we are left to consider only her allegations, devoid of any evidentiary support, of the conditions that created the hostile work environment of which she complains. Obviously, these allegations are insufficient to stave off summary judgment, Shermer v. Illinois Department of Transportation, 171 F.3d 475, 478 (7th Cir. 1999), but they at least provide a framework for our discussion of this case.

In May of 1996, plaintiff began complaining about discrimination to the faculty union president, David Sujak. The faculty union is no longer a defendant in this matter, having been voluntarily dismissed by the plaintiff. Plaintiffs complaints at that time were general, without any specific references to individuals or actions. Sujak was unable to uncover any evidence of discrimination in his investigations following plaintiff's complaints. This is not surprising: the record currently before the court is such that it is difficult to get a handle on just how plaintiff feels she was discriminated against.

Plaintiff does appear to have a few slightly more concrete concerns. According to her allegations, she was not asked to serve on any faculty committees. ( Plaintiff's Memorandum of Law (" Pl.Mem."), at 4). While standing faculty committees are created by the college president, appointments to committees are handled by the faculty union. Any perceived slights in that area, then, would be the result of the union's actions. There are other, ad-hoc committees that volunteers staff in response to memos the college sends out to the faculty, bLit it is not clear whether plaintiff volunteered for any of those. In any event, she was appointed to the diversity committee in July of 1997.

Plaintiff also appears to have a problem with part-time instructors sharing her laboratory. ( Pl. Mem. at 4). It is unclear from her memorandum of law how this adversely affects her or how it is discriminatory. Apparently, she feels that she should be consulted before such assignments are made, but there is nothing in the record to suggest that this is necessary. Unless they are "instructional coordinators", faculty members have no contractual rights to be involved in the hiring or supervision of part-time instructors. ( Defendant's Statement of Undisputed Material Facts ( "Def St."), ¶ 42-43). Plaintiff was not an instructional coordinator. Furthermore, there is no evidence that plaintiff ever complained about this or requested supervisory status. ( Def St., ¶ 53).

Plaintiff would also seem to have problems with what she calls "unique" budgetary constraints. It is her "understanding" that she is the only full-time professor whose budget is divided with part-time faculty. ( Def St., ¶ 64). Plaintiff provides no evidence with regard to this understanding; she claims that this is discriminatory based on what her former instructional coordinator, Lavoir Banks told her. Mr. Banks, however, has stated that plaintiff was not treated differently from any other faculty member based on race or sex, and that he never expressed such a belief to her. ( Def St. 65; Ex. K, ¶ 5). Plaintiff was given one-fifth of the equipment and supply budget; there is no indication in the record that this was less than others received. ( Def St., ¶ 59). In general, her funding has been adequate for her courses. ( Def St., ¶ 63).

She also complains that she did not immediately receive funding for travel costs for her to take a Ph.D. qualifying exam when she requested it. The initial denial was, however, overturned by a review committee and, thus, plaintiff's trip was not thwarted. Apparently, the denial may have been due to the fact that no one had ever been granted funds for travel to an exam before. ( Def St. ¶ 70). Plaintiff makes additional finding deficit allegations, regarding "faculty development" funding and "student overload" funding. Again, however, the only suggestion of discrimination being involved is plaintiff's understanding based on what she claims Mr. Banks told her. Mr. Banks, however, states that she was not treated differently than other faculty members. ( Def St., ¶¶ 76, 85).

Plaintiff would also appear to have a problem with timeliness of pay increases. Again, there is no evidence to support these allegations. It is very difficult to understand this allegation, which is not addressed in plaintiff's memorandum. Indeed, at her deposition, plaintiff testified that she "didn't know how much she was getting paid," and that this was discriminatory because "everybody else" did. ( Def St., Ex. C, at 130-32). She also testified that she was not sure if her salary was actually affected. ( Id. at 132). It would appear, however, that she was being overpaid. ( Def St., ¶¶ 95-98).

There were four alleged instances of epithets. Plaintiff claims the faculty association president called her a "bitch" when she refused to end her participation in a minority student program. She claims Banks called her an "oreo" and that the human resources manager, an African American Inale, called her an "Uncle Tom" and used a derogatory term for African Americans in a conversation. In addition, plaintiff alleges that three women employed at the college told her that they had been advised not to speak to her.³

3 Illustrative of the lack of support for plaintiff's case is her contention that, although this is clearly hearsay on hearsay, it is sufficient to thwart summary judgment. ( Pl.Mem. at 6). Obviously, plaintiff cites no case law for this surprising proposition because such allegations are inadmissable in summary judgment proceedings. Cowan v. Prudential Ins. Co. of America, 141 F.3d 751, 761 (7th Cir. 1998). Instead, plaintiff insists that hearsay must be dealt with "in the good old fashioned way" at trial. ( Pl Mem. at 6). This must be a very old fashioned way, because the court was unable to uncover any cases that allow inadmissable evidence in a summary judgment proceeding.

II. ANALYSIS

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To ward off summary judgment by showing that there is a genuine dispute on a material fact, the non-moving party must do more than raise a "metaphysical doubt" as to the fact's existence. Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th Cir. 1997). The non-moving party cannot merely allege the existence of a factual dispute. McPhaul v. Board of Com'rs of Madison County, 226 F.3d 558, 563 (7th Cir. 2000). That party must supply evidence sufficient to allow a jury to render a verdict in their favor. Id. Here, as already noted, plaintiff has failed to follow the local rules and, in so doing, has failed to present any evidence to support her claims.

Title VII of the Civil Rights Act of 1964 Inakes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. S 2000e-2(a)(1). The Supreme Court has determined that the phrase "terms, conditions, or privileges of employment' evinces a congressional intent "to strike at the entire spectrum of disparate treatment of men and women' in employment," which includes requiring people to work in a discrminatorily hostile or abusive environment. Faragher v. Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404 (1986). When the workplace is permeated with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated. Faragher, 524 U.S. at 788, 118 S.Ct. at 2283.

In order to maintain a hostile work environment claim, a plaintiff must demonstrate the following: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subjected to unwelcome harassment; (3) the harassment was based on the plaintiff belonging to a protected group; (4) the harassment affected a term, condition, or privilege of employment; and (5) the harassment was sufficiently severe and pervasive to alter the conditions of the victim's employment and create an abusive working environment, Meritor Savings Bank, 477 U.S. at 66-67, 106 S.Ct. at 2404-05. This standard takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury; the "mere utterance of an . . . epithet which engenders offensive feelings in a employee," does not sufficiently affect the conditions of employment to implicate Title VII. Harris v. Forkhft Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993). Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview. Id. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. Id.

In this case, in order to make out her hostile work environment, plaintiff relies on nothing more than her own allegations, many of which are based on her "understandings' of how her colleagues were being treated. Obviously, this is insufficient to ward off summary judgment; the time has come to present evidence, not speculation. Even if plaintiff were to offer proof of the conduct of which she complains, however, she would still fall short of supporting a hostile workplace claim. First, she has only her "understanding" and the alleged word of a colleague that there was a racial or sexual element to any of the adverse administrative conduct of which complains. She advances no evidence that she was treated differently from similarly situated individuals not in the protected group. She cannot rely on the opinion Mr. Banks purportedly offered her to prove discriminatory motive; she must provide evidence of a "goodly" number of comparable cases. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1141 (7th Cir. 1997). Plaintiff has made no such comparisons here, regardless of what her "understanding" might be. There is, then, nothing to suggest a discriminatory component to the conduct plaintiff alleges occurred.

Second, plaintiff has not shown, and would not be able to show, that the conduct of which she complains was sufficiently severe and pervasive to alter the conditions of the victim's employment and create an abusive working environment. See Meritor Savings Bank, 477 U.S. at 66-67, 106 S.Ct. at 2404-05. Plaintiff's allegations cover a seven-year period. During this time, she claims to have had sporadic problems with administrative red tape over budget and salary. She claims some colleagues were told not to speak to her. She claims to have been subjected to offensive language on four occasions. Even if she could prove all of these things occurred, the conduct certainly does not rise to the level of "pervasive." Courts have rejected claims based on a "handful" of incidents "spread over months" as insufficiently pervasive. Cowan v. Prudential Ins. Co. of America, 141 F.3d 751, 758 (7th Cir. 1998). The conduct which plaintiff claims occurred does not even rise to that level.

The conduct at issue is also not sufficiently severe to support a hostile work environment claim. Four allegedly offensive comments over a seven-year period, one of which was not even directed at plaintiff, do not create an abusive work environment; Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th Cir. 1999); nor does a "cold shoulder" from co-workers. Cowan, 141 F.3d at 758; Saxton v. AT T, 10 F.3d 526, (7th Cir. 1993). Furthermore, neither the "shunning" nor the comments alleged came from supervisors or decision makers. Even combining all this purported conduct with plaintiff's administrative tribulations, and assuming it was all the result of a race or gender bias, we cannot find that her depiction of her workplace is one that is so abusive that it would violate Title VII.

According to her brief, plaintiff perceives her workplace to be similar in hostility to the one described in Carr v. Allison Gas Turbine Div. Gen. Motors, 32 F.3d 1007 (7th Cir. 1994). ( Pl.Mem. at 9). Significantly, that case went to a trial in which the plaintiff actually presented evidence to support her allegations regarding her working environment, unlike the plaintiff here. Notably, the working environment in Carr involved:

derogatory comments of a sexual character to [plaintiff] on a daily basis (such as, "I won't work with any cunt"), continually referred to her in her presence by such terms as "whore," "cunt," and "split tail," painted "cunt" on her toolbox, and played various sex- or gender-related pranks on her, such as painting her toolbox pink and (without her knowledge) cutting out the seat of her overalls. They festooned her tool box and work area with signs, pictures, and graffiti of an offensive sexual character, hid and stole her tools, hid her toolbox, hung nude pin-ups around the shop, and would strip to their underwear in front of her when changing into and out of their work clothes. One of them placed an obscene Valentine Day's card, addressed to "Cunt," on her toolbox. The card shows a man carrying a naked woman upside down, and the text explains that the man has finally discovered why a woman has two holes — so that she can be carried like a six-pack. A worker named Beckham twice exhibited his penis. The first time, during an argument in which [plaintiff] told him the exit door "swings both ways," meaning that he could leave just as easily as she could, he replied that he had something that "swings," and he demonstrated. The second time, another male worker bet Beckham $5 that he would not expose himself. He lost the bet, although it is unclear whether [plaintiff] was in front of Beckham or behind him. And it was Beckham who told [plaintiff] on another occasion that if he fell from a dangerous height in the shop she would have to give him "mouth to dick" resuscitation. [Plaintiffs] male coworkers urinated from the roof of the shop in her presence, and, in her hearing, one of them accused a black employee who was only intermittently hostile to [plaintiff] of being "after that white pussy, that is why you want a woman here, you want some of that." A number of racist remarks and practical jokes of a racial nature were directed against this, the only black employee among the tinsmiths. A frequent remark heard around the shop was, "I'll never retire from this tinsmith position because it would make an opening for a nigger or a woman." Another of [plaintiff's] male coworkers threw a burning cigarette at her. At first she disregarded the harassment but beginning in 1985 and continuing until 1989, when she quit — constructively discharged, she contends, the situation having become unbearable — she complained about the harassment repeatedly to her immediate supervisor, Jim Routh. To no avail. He testified that even though some of the offensive statements were made in his presence, not being a woman himself he was not sure that the statements would be considered offensive by a woman. His perplexity was such that when he heard the statements he would just chuckle and bite down harder on his pipe.

Carr, 32 F.3d at 1009-10. Plaintiff's case and that of Carr, quite obviously, have almost nothing in common. And while the Carr case does not represent some evidentiary hurdle all Title VII plaintiffs must negotiate, plaintiffs reliance upon it to support her claims speaks volumes about her perception of her treatment at the college and sensitivity to that purported treatment. Title VII is not designed to protect the easily offended or the oversensitive; it is not a "general civility" code. Faragher, 524 U.S. at 788. 118 S.Ct. 2283-84. Workplace conduct must be "extreme to amount to a change in the terms and conditions of employment." Faragher, 524 U.S. at 788, 118 S.Ct. at 2284. That plaintiff equates her situation with that of the employee in Carr suggests that she may have a level of sensitivity that Title VII was not designed to protect. Even if plaintiff properly supported her case for the purposes of summary judgment, therefore, we would be constrained to rule for the defendant.

Because plaintiff has failed to submit a proper rule 56.1 statement, and because she has come forward with no evidence to support her allegations, it is a simple matter to grant the defendant summary judgment. Even if that were not the case, however, we have our doubts about plaintiffs claims. She presents what she cal1s a picture of "life at Elgin Community College for a black female." That picture reveals: disappointment over a committee assignment, indignation over having to share facilities with lower-level employees, frustration over budgetary red-tape, name-calling and coarse language by some, and shunning by a couple of others. Plaintiff has a sense that she was the only one treated this way; a sense she cannot support with evidence. She says someone else told her she might be a victim of discrimination. While this might indeed be the life of a black female at Elgin Community College, it is also the life of countless other persons of every race and gender who work for a living. Lousy assignments. Condescension from superiors. Disrespect from co-workers. Endless red tape. And sometimes, it feels like no one else is treated that way. Such working conditions are not covered by Title VII, however, and we cannot assume they are discriminatory based on an inkling.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is hereby GRANTED.