Dixon, Gloria J. v. Dept Natural , 244 F. App'x 34 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 28, 2007*
Decided July 3, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2510 Appeal from the United
States District Court for the
GLORIA JEAN DIXON, Southern District of Illinois.
Plaintiff-Appellant,
No. 02-1208-CJP
v.
Clifford J. Proud, Magistrate
ILLINOIS DEPARTMENT OF NATURAL RESOURCES, Judge.
Defendant-Appellee.
Order
This action under Title VII of the Civil Rights Act of 1964 was tried before a
magistrate judge, with the parties’ consent. See 28 U.S.C. §636(c). At the close of
plaintiff’s case, the magistrate judge entered judgment as a matter of law for the
Illinois Department of Natural Resources, the only remaining defendant. Gloria
Dixon, the plaintiff, originally sued some of her supervisors, but claims against
them were dismissed before trial, and Dixon has not appealed. Nor has she ap-
pealed the dismissal of her claim under the Age Discrimination in Employment
Act—though she has appealed from grants of summary judgment in favor of the
Department on some additional theories under Title VII. We return to those later.
* After examining the briefs and the record, we have concluded that oral argument is unneces-
sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 06-2510 Page 2
The claim that went to trial rested on 42 U.S.C. §2000e–3(a), which forbids re-
taliation against anyone who makes or supports a charge of discrimination. Dixon,
who worked as an office assistant at Frank Holton State Park, was suspended in
December 2001, reinstated, then suspended again in March 2002 and fired that
May. She attributes these actions to her internal charge of race, sex, and age dis-
crimination, made on November 1, 2001.
The magistrate judge concluded that no reasonable juror could find that the
charge of discrimination caused the adverse actions. (The judge gave other reasons
that we need not consider.) Although the first suspension occurred in December
2001, the events that led to it occurred in September, and Ruth Kendall, Dixon’s
immediate supervisor, recommended a suspension that very month. A grievance
first lodged in November could not have caused a recommendation already on file
for more than a month. Dixon maintains that her complaints about discrimination
predate Kendall’s recommendation in September, but the evidence does not support
that position. Dixon made complaints (and in number), but under the collective bar-
gaining agreement (and outside it) rather than under federal law. Even if we accept
Dixon’s preferred date (May 1, 2001) it is hard to see a benefit to her; Kendall made
her initial complaints against Dixon through the employer’s hierarchy, charging
Dixon with both discrimination and workplace violence, in March and April 2001.
As for the second suspension and discharge: the immediate cause was an inci-
dent in which Dixon called Kendall a heifer and told her that washing her hair and
applying more makeup would improve her disposition. Kendall did not make the de-
cision to suspend or fire Dixon; that decision was made by Rick Messinger, the re-
gional manager. Although the employer could be liable under Title VII if Kendall
(who had been charged with discrimination) deceived or wheedled Messinger into
making a decision that would not have occurred but for the charge, see Shager v.
Upjohn Co., 913 F.2d 398 (7th Cir. 1990), there is no evidence of such a causal link.
The Supreme Court granted certiorari in BCI Coca-Cola Bottling Co. v. EEOC,
127 S. Ct. 852 (2007), to resolve a conflict about how the recommendations of inter-
mediate supervisors such as Kendall should be handled under §2003e–3(a). The
writ was dismissed following a settlement. 127 S. Ct. 1931 (2007). This circuit’s po-
sition, reflected in Shager, is the one most favorable to plaintiffs, so there is no need
to consider the position of other circuits. Dixon does not deny that she called Ken-
dall a cow and that the office atmosphere had been poisoned for months (though she
blames Kendall). Nor does Dixon say that the Department tolerates insolence from
other subordinates. Messinger conducted an independent investigation and made
his own decision. A reasonable jury could not find that Dixon’s charge of discrimina-
tion caused the decision to end her employment. See Brewer v. University of Illinois,
479 F.3d 908, 918–20 (7th Cir. 2007). Dixon’s brief insists that because “heifer” is
not obscene she could not be punished. No rule of federal law requires employers to
tolerate all outbursts that avoid obscenity, profanity, and battery; it may hold em-
ployees to higher standards of decorum. A public employer acts as employer, not as
regulator, when dealing with speech in the workplace. See Garcetti v. Ceballos, 126
S. Ct. 1951 (2006).
No. 06-2510 Page 3
Now let us return to the subjects on which the magistrate judge granted sum-
mary judgment. Dixon’s charge of race discrimination failed, the judge wrote, be-
cause she had not identified any other similarly situated employee who was equally
rude to a supervisor but kept her job. There are limits to how much similarity it is
sensible to demand in cases of this type; even employers with thousands of workers
rarely have any other exactly like the plaintiff. We have held that material similar-
ity is the most that can be required. See Crawford v. Indiana Harbor Belt R.R., 461
F.3d 844 (7th Cir. 2006). Even by the standard of Crawford, however, Dixon’s proof
falls short; she has not pointed to a non-black worker in a roughly equivalent situa-
tion who received better treatment.
This leaves only the claim of sex discrimination, manifested as a hostile working
environment. Dixon filed a charge with the EEOC in March 2002. Illinois is a defer-
ral state, so the period of limitations reaches back 300 days, to May 2001. Under
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), hostile working
conditions are a single discriminatory event, so everything that happened during a
campaign of harassment may be considered if any part of it extended into the period
of limitations.
Dixon contends that this requirement has been met by the charges that Kendall
filed against her during 2001. She calls these harassment. This misunderstands,
however, what a hostile-environment claim entails. See Oncale v. Sundowner Off-
shore Services, Inc., 523 U.S. 75 (1998); Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57 (1986). Formal disciplinary charges, requests for suspension, and the like
are not sexually hostile; they do not make women feel worse than men who have
been similarly charged or create differential working conditions. The only events
that even arguably might imply a working environment that was less pleasant for
plaintiff because of her sex occurred well before the 300 days preceding her admin-
istrative charge. Summary judgment therefore was proper on this claim.
AFFIRMED