Atanus, Susanne v. Perry, Stephen A. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1430
SUSANNE ATANUS,
Plaintiff-Appellant,
v.
STEPHEN A. PERRY, Administrator, GSA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 7512—Mark R. Filip, Judge.
____________
ARGUED DECEMBER 4, 2007—DECIDED MARCH 17, 2008
____________
Before RIPPLE, MANION and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Susanne Atanus filed this action in
the district court against her employer, Stephen A. Perry,
Administrator of the General Services Administration
(“GSA”). Ms. Atanus’ complaint alleges that the GSA
discriminated against her on the basis of her race, color,
religion, gender and national origin, all in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. Her complaint also includes a Title VII retaliation
claim and a claim of age discrimination in violation of
the Age Discrimination in Employment Act (“ADEA”),
2 No. 07-1430
29 U.S.C. § 621 et seq. The district court granted the GSA’s
motion for summary judgment on all claims. Ms. Atanus
timely filed a notice of appeal.
For the reasons set forth in this opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A.
Ms. Atanus has predicated her suit against the GSA on
four alleged adverse employment actions: a ten-day
suspension in December 2002, a letter of instruction issued
on January 13, 2003, verbal harassment that occurred on
February 13, 2003 and her reassignment to the position
of procurement analyst (GS-11) from her previous posi-
tion of contract specialist (also GS-11).
Ms. Atanus began working as a contract administrator
for the GSA in 1984. According to the GSA, Debra
Wauchop, who supervised Ms. Atanus from 1990 through
early 2002, began noticing problems with Ms. Atanus’ work
conduct in 1999. On February 1, 1999, Wauchop issued
Ms. Atanus a letter of instruction for her obstinate and
quarrelsome behavior toward coworkers and supervisors
during a meeting. On July 20, 2000, Wauchop issued
Ms. Atanus a warning notice for her disrespectful con-
duct during a lecture given by GSA employees. Less than
a year later, in March 2001, Wauchop issued Ms. Atanus
a third warning notice for two public verbal confronta-
tions that Ms. Atanus had with a senior GSA employee;
the warning notice explained that Ms. Atanus had taken a
harsh and disrespectful tone with the senior employee. The
No. 07-1430 3
reprimand also referenced an e-mail in which Ms. Atanus
had given written instructions akin to an order to a
coworker whom she did not supervise. The GSA claims
that Ms. Atanus’ behavior was of concern because, as a
contract specialist, she was required to have extensive
communications with contractor representatives and
other parties outside the Government.
On June 11, 2001, Wauchop assigned Ms. Atanus to an
“unassembled set of duties.”1 The GSA explains that it
reassigned her to fill a void left by a recently deceased
employee and to maximize Ms. Atanus’ contract capabili-
ties while minimizing her contact with others. Ms. Atanus
neither complains about this transfer nor questions the
GSA’s proffered explanation.
In early 2002, Kim Brown, an African-American woman,
replaced Wauchop as Ms. Atanus’ supervisor. According
to the GSA, Brown observed the same problems with
Ms. Atanus’ conduct as had Wauchop. On July 11, 2002,
Brown issued Ms. Atanus a letter of instruction—her
fourth agency action—citing Ms. Atanus’ failure to follow
Federal Acquisition Regulation (“FAR”) 4.2,2 which
requires a contract modification to be distributed within
ten working days of execution by all parties. The letter
1
The GSA defines this assignment as a group of duties and
responsibilities, assembled by management and required to be
performed for a specified period of time, that have not been
officially described and classified into a formal position descrip-
tion.
2
The GSA administers Government contracts using the Federal
Acquisition Regulations. See General Services Administration,
Federal Acquisition Regulations, http://www.acqnet.gov/FAR/
current/pdf/FAR.book.pdf (last visited February 13, 2008).
4 No. 07-1430
described two instances when Ms. Atanus had violated
this rule and thereby hindered the GSA’s ability to moni-
tor contractor performance.
The following month, on August 14, 2002, Brown issued
a letter proposing to suspend Ms. Atanus from duty for
five days because of Ms. Atanus’ disorderly conduct at
a meeting on July 16. The suspension letter stated that
Ms. Atanus had handled a FOIA request improperly
and that she had taken a loud, rude and harsh tone
when asked by her team leader to explain her conduct.
According to the letter, Ms. Atanus behaved in this
fashion until her team leader threatened to contact a
federal protective officer for assistance if Ms. Atanus did
not return to her desk.
On September 12, 2002, Richard Smith, Brown’s supe-
rior, telephoned Ms. Atanus and scheduled for 2 p.m. an
in-person meeting to discuss the proposed suspension.3
What happened next is the basis for the first of the four
adverse employment actions upon which Ms. Atanus
has predicated her case.
Ms. Atanus walked into Smith’s office two hours prior
to the scheduled start of the meeting. She began discussing
the proposed suspension and told Smith that the sus-
pension was not fair and that she did not understand the
3
During this telephone conversation, Ms. Atanus told Smith
that she had done nothing wrong and that she did not need to
meet with him in person. Smith told Ms. Atanus that she
was required to meet with him. The district court noted in its
opinion that Ms. Atanus first had admitted this fact and then
clarified that she had asked only if the meeting would be
necessary.
No. 07-1430 5
charge. Ms. Atanus continued to talk about the suspension
for fifteen minutes until Smith told her to leave or he
would call federal protective officers.
At 2 p.m., Smith met with Ms. Atanus; Gregory Flores,
another GSA supervisor, was present as a witness. Smith
gave Ms. Atanus the final decision letter and other paper-
work attendant to her suspension. Ms. Atanus began to
discuss the suspension. Smith claims that she was becom-
ing agitated, which Ms. Atanus denies. The parties never-
theless agree that Ms. Atanus told Smith that she did not
believe Christians would act in this manner. At this point,
Smith tried to end the meeting. The parties further agree
that, when Smith stated that the meeting was over,
Ms. Atanus told Smith that he was the one who should
have been suspended because he was not performing
his job properly and that she was going to call Smith’s
superior to reverse his decision.
The following day, at about 10 a.m., Ms. Atanus saw
Smith passing through the office and asked if he would
see her. She entered his office and again began discussing
her suspension. Ms. Atanus told Smith that she was the
smartest person in the building, that she worked very
hard and that it had not been fair to suspend her.
Ms. Atanus continued speaking for fifteen minutes until
Smith dismissed her from his office. According to Smith,
Ms. Atanus grew extremely agitated, loud and aggressive.
At 11:15 that same morning, Ms. Atanus called Smith to
request another meeting; she indicated that she wanted
to smooth things over. In his office, Smith advised
Ms. Atanus of her right to grieve the suspension.
Ms. Atanus admits that she told Smith that she was a
person of God and that he would not suspend her if he too
was a person of God. Smith, who felt that Ms. Atanus had
6 No. 07-1430
become aggressive in approaching his desk, told her that
he was offended by her comment and ended the meeting.
According to Smith, Ms. Atanus continued the discussion,
and she stated that she would not leave the office; he
told her that he would call a federal protective officer if
she did not return to her work station.
At 2:45 p.m. on the same day, Ms. Atanus returned to
Smith’s office for a third time. She said that she never
had paid attention to the previous letters of reprimand
that she had received because nothing had come of them.
He told her to return to her work station. Again, Smith
told her that he would call a federal protective officer if
she did not leave. Smith made a written record of all
these events and provided a copy to Brown.
Based upon the information provided by Smith, Brown
proposed to suspend Ms. Atanus for ten days for her
disorderly conduct toward Smith. On November 19, 2002,
Wauchop reviewed Brown’s proposed suspension and
approved it. The GSA claims that Wauchop relied on the
factors set forth in the GSA’s discipline manual. Of par-
ticular concern to Wauchop, according to the discipline
notice, was the fact that Ms. Atanus continued to exhibit
the same behavior for which she had received
prior disciplinary actions, that she showed no sign of
changing and that she had not provided any explana-
tion for her behavior toward Smith.
On December 17, 2002, Ms. Atanus requested that the
GSA conduct a desk audit of her work. A desk audit
consists of a personnel specialist interviewing an em-
ployee and supervisor to obtain information about the
difficulty of the employee’s work. After this information
is obtained, the GSA determines whether the position is
classified properly. On January 7, 2003, Brown advised
No. 07-1430 7
Ms. Atanus that the GSA did not perform desk audits
for employees who were assigned an unassembled set
of duties; Ms. Atanus then requested that management
assign her to an official position and perform a desk audit.
On January 17, 2003, Brown began working with
the human resources department to develop a position
specifically for Ms. Atanus.
On January 13, 2003, Brown issued Ms. Atanus another
letter of instruction, her seventh agency action. In her
letter, Brown cited Ms. Atanus’ failure to process con-
tract modifications in a timely manner, the same viola-
tion for which she previously had received a letter
of instruction. Brown, Ms. Atanus and Henderson,
Ms. Atanus’ team leader, met on February 13, 2003 to
discuss this letter of instruction. The parties dispute
what took place at this meeting. Ms. Atanus asserts
that Brown and Henderson badgered her in a “loud,
unprofessional tone.” R.37 at 12. She does not expand any
further as to what they said. The GSA denies that this
took place and claims that it was Ms. Atanus who raised
her voice and accused Brown of harassing her.
On March 5, 2003, Ms. Atanus filed a formal complaint
of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). On April 6, 2003, the GSA assigned
Ms. Atanus to the position of procurement analyst. The
GSA claims that it was complying with Ms. Atanus’
request to be reassigned to an official position so that
a desk audit could be performed. This position, con-
sistent with Ms. Atanus’ previous positions, was classi-
fied at the GS-11 level. Ms. Atanus, however, claims that
the GSA first transferred her to the position of contract
specialist and then, in retaliation for her EEO complaint,
transferred her to the position of procurement analyst.
8 No. 07-1430
B.
The district court granted the GSA’s motion for sum-
mary judgment. In setting forth the legal standards for
Title VII and ADEA claims, the district court, relying
on some of our older cases, stated that the two ways of
proving discrimination are through “direct evidence” and
“indirect evidence.” Atanus v. Perry, No. 04 C 07512, 2007
WL 257679, at *3 (N.D. Ill. Jan. 24, 2006). The court deter-
mined that Ms. Atanus offered no “direct evidence” of
discrimination. It noted that the only evidence that
might conceivably be considered direct evidence is her
claim that Wauchop allegedly had asked her during a
1996 lunch, “What’s your nationality,” to which
Ms. Atanus replied, “Assyrian.” Ms. Atanus alleges that
Wauchop had remained silent for the remainder of the
meal. The court ruled that this allegation does not consti-
tute direct evidence of discrimination because “it is not
anything from which one could infer discriminatory
animus without inference or presumption, as precedent
requires.” Id. at *4. It further explained that “Ms. Wauchop
is not alleged to have made any derogatory statement
about Assyrians, or Catholics, or women, nor did she
allegedly express anything that, by implication, could
be understood as a negative appraisal of individuals
who might fit into such groups.” Id. Independently, it
determined that Wauchop’s conduct could not create a
genuine issue of material fact because the conduct had
occurred five years prior to any of the events at issue in
this case.
The district court further determined that Ms. Atanus
had not established a prima facie case of discrimination;
nor had she presented any evidence of pretext. With re-
gard to the ten-day suspension, the court ruled that
No. 07-1430 9
Ms. Atanus had failed to show evidence of similarly
situated employees outside of her protected classes
who reacted similarly to disciplinary actions but were
treated more favorably. It further found that the GSA had
offered a legitimate, non-discriminatory explanation for
its decision to suspend Ms. Atanus for ten-days—namely,
her failure properly to handle the FOIA request and her
insubordinate conduct toward Smith—that Ms. Atanus
had not rebutted as pretextual.
With regard to the January 13, 2003 letter of instruc-
tion, the district court held that Ms. Atanus had not
established an adverse employment action. In addition,
the court ruled that, even if it were an adverse employ-
ment action, Ms. Atanus had failed to identify any simi-
larly situated employees outside her various protected
classes who were treated more favorably in similar cir-
cumstances; nor, the court added, had Ms. Atanus estab-
lished that the reason for issuing the letter—her mishan-
dling of contract modifications—was pretextual.
The court then addressed Ms. Atanus’ claim that Brown
and Henderson had verbally harassed her during the
February 13, 2003 meeting. Although noting that it was
unclear from Ms. Atanus’ complaint how she intended
to frame her claim on this issue, the court explained that
it would consider her claim as one for “hostile work
environment.” It determined that Ms. Atanus’ evidence,
which was limited to her allegations that Brown and
Henderson had “verbally harassed” and “badgered her
in a loud, unprofessional tone,” did not create a triable
question of fact as to whether she had been subjected to
a hostile workplace.
Finally, on Ms. Atanus’ retaliation claim, the court held
that her transfer from the unassembled set of duties to the
10 No. 07-1430
position of procurement analyst did not constitute an
adverse employment action. The court noted that both
positions were classified as GS-11, that it was only a
subdepartmental transfer and that, in any event, the
reason for the transfer had been her request that the
GSA move her to an official position so that a desk audit
could be performed.4
II
DISCUSSION
A.
This court reviews de novo a grant of summary judg-
ment. Hurst-Rosche Eng’rs, Inc. v. Commercial Union Credit
Ins. Co., 51 F.3d 1336, 1341 (7th Cir. 1995). All facts and
reasonable inferences must be construed in favor of the
non-moving party. Magin v. Monsanto Co., 420 F.3d 679,
4
The district court concluded that Ms. Atanus had not ad-
vanced any failure to promote claim. Ms. Atanus’ complaint
did not include a failure to promote claim under either
Title VII or the ADEA. In her memorandum in opposition to
the GSA’s motion for summary judgment, Ms. Atanus made
passing reference to the fact that she had suffered the adverse
employment action of failure to promote; however, she did not
make any argument in support of this claim. The court ruled
that, if she was making such a claim, it was barred because
she had not amended her complaint to include it; that the
other promotions had occurred long before her EEO com-
plaint, and therefore the claim was time barred; and that she
had failed to show that the individuals who were promoted
instead of her were similarly situated. Ms. Atanus does not
appeal this determination.
No. 07-1430 11
686 (7th Cir. 2005). We do not evaluate the weight of the
evidence, judge the credibility of witnesses or determine
the ultimate truth of the matter; rather, we determine
whether there exists a genuine issue of triable fact. Ander-
son v. Liberty Lobby, 477 U.S. 242, 249-50 (1986). Sum-
mary judgment is proper 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 matter of law.” Magin, 420
F.3d at 686 (citing Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)); see also Alexander v.
Wisconsin Dep’t of Health & Family Svrs., 263 F.3d 673,
681 (7th Cir. 2001) (noting that there is no heightened
summary judgment standard in the employment dis-
crimination context).
B.
Ms. Atanus claims that the GSA discriminated against
her because of her race (Caucasian), color (white), religion
(Christian-Catholic), gender (female), national origin
(Assyrian) and age (born in 1958), in violation of Title VII
and the ADEA.
In a Title VII or age discrimination case, a plaintiff may
show discrimination under either the “direct” or “indirect”
methods of proof, Brown v. Illinois Dep’t Natural Res.,
499 F.3d 675, 681 (7th Cir. 2007), nomenclature which
we have explained is “somewhat misleading,” Luks v.
Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006);
Sylvester v. SOS Children’s Vills. Ill., Inc., 453 F.3d 900, 902-
03 (7th Cir. 2006). The nomenclature is misleading be-
cause the phrase “direct method” tends to imply that an
12 No. 07-1430
employee only may proceed under the direct method with
“direct evidence.” See Sylvester, 453 F.3d at 902-03. We
recently have explained, however, that this is not the
case. “’[D]irect’ proof of discrimination is not limited to
near-admissions by the employer that its decisions were
based on a proscribed criterion (e.g., ‘You’re too old to
work here.’), but also includes circumstantial evidence
which suggests discrimination through a longer chain of
inferences.” Luks, 467 F.3d at 1053 (emphasis supplied).
The focus of the direct method of proof thus is not
whether the evidence offered is “direct” or “circumstan-
tial” but rather whether the evidence “points directly” to
a discriminatory reason for the employer’s action. Burks
v. Wisconsin Dep’t of Tranp., 464 F.3d 744, 751 n.3 (7th
Cir. 2006) (noting that the “’direct method’ . . . requires
the plaintiff to put forth evidence that demonstrates that
she was a member of a protected class and ‘as a result
suffered the adverse employment action of which [s]he
complains’ ” (quoting Sylvester, 453 F.3d at 902)). Thus,
under the direct method of proof,
[c]ircumstantial evidence demonstrating intentional
discrimination includes: “(1) suspicious timing, ambig-
uous oral or written statements, or behavior toward
or comments directed at other employees in the pro-
tected group; (2) evidence, whether or not rigorously
statistical, that similarly situated employees outside
the protected class received systematically better
treatment; and (3) evidence that the employee was
qualified for the job in question but was passed over
in favor of a person outside the protected class and
the employer’s reason is a pretext for discrimination.”
Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th
Cir. 2007) (quoting Sun v. Bd. of Trs. of Univ. of Illinois,
No. 07-1430 13
473 F.3d 799, 812 (7th Cir. 2007)). Although the district
court, in considering Wauchop’s conduct during the 1996
lunch, relied on earlier cases conflating the direct and
indirect methods of proof with direct and indirect evi-
dence, we are satisfied that the error is of no consequence
to Ms. Atanus’ case.5 We therefore turn to her claims
under the indirect method of proof.
5
Ms. Atanus’ allegations about Wauchop’s conduct during the
1996 lunch are insufficient to show discrimination under the
direct methodology. Under the direct method of proof, as we
have explained in the text, an employee may use circumstan-
tial evidence that “suggests discrimination albeit through a
longer chain of inferences.” Hemsworth v. Quotesmith.com, Inc.,
476 F.3d 487, 490 (7th Cir. 2007). Nothing in the record suggests
that Ms. Atanus’ ten-day suspension occurred as a result of her
nationality or that Ms. Atanus’ nationality contributed to the
decision. The lunch occurred over five years prior to any of the
conduct at issue in this case, by which time Wauchop was no
longer Ms. Atanus’ supervisor. Cf. id. at 491 (explaining that a
comment made more than a year before the employee’s termina-
tion is too far removed to constitute evidence of discriminatory
animus); Conley v. Vill. of Bedford Park, 215 F.3d 703, 711 (7th Cir.
2000) (two years). Moreover, given Ms. Atanus’ conduct
toward Smith, who was her supervisor’s boss, and given the
GSA’s uncontradicted evidence that Brown relied on Smith’s
report of that conduct in proposing the suspension, Wauchop’s
conduct does not support a reasonable inference that the GSA’s
motivation for suspending Ms. Atanus was bound up with her
nationality or that her nationality contributed to the decision.
Nor can Wauchop’s conduct during the 1996 lunch serve as
circumstantial evidence of discrimination under the direct
methodology with regard to the other acts about which
Ms. Atanus complains because, as we shall explain, none of
those acts constitute adverse employment actions.
14 No. 07-1430
The rubric of the indirect method was first set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973).
Under this methodology, Ms. Atanus may create a pre-
sumption of discrimination by establishing a prima facie
case of discrimination. Bahl v. Royal Indem. Co., 115 F.3d
1283, 1290 (7th Cir. 1997). This presumption shifts the
burden to the GSA to produce a legitimate, noninvidious
reason for its actions. Id. If the GSA satisfies its burden of
production by rebutting her prima facie case of discrim-
ination, the burden then shifts back to Ms. Atanus to
show that the GSA’s reasons “are false and only a
pretext for discrimination.” Id. To establish a prima facie
case of discrimination under Title VII or the ADEA,
Ms. Atanus must proffer evidence that: (1) she belongs to
a protected class; (2) she performed her job according to
the GSA’s legitimate expectations; (3) she suffered an
adverse employment action; and (4) similarly situated
employees outside the protected class were treated more
favorably by the GSA. Wyninger v. New Venture Gear, Inc.,
361 F.3d 965, 978 (7th Cir. 2004). Summary judgment is
appropriate if the employee fails to establish any of the
foregoing elements of the prima facie case. Kampmier v.
Emeritus Corp., 472 F.3d 930, 939 (7th Cir. 2007).
Ms. Atanus presents four contentions on appeal. She
submits that the district court erred in determining that
she had not established a prima facie case of discrimina-
tion on her Title VII and ADEA claims and that she
had not presented any evidence that the GSA’s non-
discriminatory explanations were pretextual with regard
to her ten-day suspension, the January 13, 2003 letter of
instruction, the alleged verbal harassment from the Febru-
ary 13, 2003 meeting and the GSA’s alleged retaliation
for her EEO complaint. We shall examine each.
No. 07-1430 15
1. Ten-Day Suspension
There is no dispute that the ten-day suspension was an
adverse employment action or that Ms. Atanus is a mem-
ber of various protected classes. We thus shall discuss only
the two remaining aspects of this suspension that are
disputed.
a.
Ms. Atanus, claiming that she was treated differently
than other employees, submits that a material issue of
fact exists regarding the alleged inappropriate conduct
for which the GSA suspended her. According to
Ms. Atanus, Smith “was unreceptive to [her] concerns
and rebuffed her attempt to discuss” her suspension, and
his treatment of her “illustrates the discrimination she
faced by the Agency’s management.” Appellant’s Br. at 13.
She further asserts that the GSA’s rationale for sus-
pending her was pretextual because it was “false, self-
serving and one-sided” and because she was not “loud,
rude, or aggressive as Smith alleges.” Id.Ms. Atanus maintains that she was singled out for
worse treatment than other similarly situated employees
in the GSA. On this fourth prong of the McDonnell Douglas
test, a plaintiff must show that members of the compara-
tive group are “directly comparable to her in all material
respects.” Burks, 464 F.3d at 751 (internal quotation marks
and citation omitted) (noting that relevant factors include
“whether the employees reported to the same super-
visor, whether they were subject to the same standards
and whether they had comparable education, experience
and qualification”). Keeping in mind that this prong ought
not be applied in an “unduly rigid” or “narrow[]” manner,
16 No. 07-1430
Ms. Atanus has not put forth any evidence of employees
outside of her various protected classes who acted in a
materially similar manner but were treated more favorably.
Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 845-46
(7th Cir. 2007) (noting that the plaintiff must show that
“members of the comparison group are sufficiently com-
parable to her to suggest that she was singled out for
worse treatment”). Indeed, Ms. Atanus has failed to
point the court to any other GSA employee to serve as a
basis for comparison. Rather, Ms. Atanus claims that the
“record is devoid of others in [her] division receiving
similar treatment from Smith” and the GSA. Appellant’s
Br. at 13. This contention, however, ignores that the bur-
den of establishing a prima facie case is on her,
McDonnell Douglas, 411 U.S. at 802, and, in any event,
leaves us without any basis for comparing whether other
employees in her division who were insubordinate,
disorderly and rude to their supervisor’s boss received
similar treatment, Henry v. James, 507 F.3d 558, 566 (7th Cir.
2007) (holding that an employee had not established a
prima facie case because “[h]is conduct was more egre-
gious than that of the non-white officers he highlights”).
b.
Even if she had established a prima facie case of dis-
crimination, Ms. Atanus has not shown that the GSA’s
reasons for her ten-day suspension are pretextual. A
plaintiff may show pretext with “evidence that the em-
ployer’s explanation is not credible.” Sarsha v. Sears,
Roebuck & Co., 3 F.3d 1035, 1039 (7th Cir. 1993). In this
regard, an employee may show that the employer’s
reason had “no[] basis in fact,” that the explanation was
not the real reason for its action or that the reason stated
No. 07-1430 17
was insufficient to warrant the adverse job action. Bahl,
115 F.3d at 1291 (internal quotation marks and citation
omitted). The main inquiry in determining pretext is
whether the employer “honestly acted” on the stated
reason rather than “whether the reason for the [adverse
employment action] was a correct business judgment.” Id.(noting that this court will not “take on the mantle of a
super-personnel department reviewing the business
decisions of [the] employer”); Ptasznik v. St. Joseph Hosp.,
464 F.3d 691, 696 (7th Cir. 2006) (“An employer’s mistaken
belief that the plaintiff’s conduct merited termination
is not unlawful, so long as the belief was honestly held.”).
The GSA’s stated reason for suspending Ms. Atanus
was her insubordinate, disorderly and rude conduct
toward her supervisor’s boss, her similar past conduct
and her failure to explain herself. Ms. Atanus admits
that she told Smith that “she did not believe Christians
would act in this manner,” that he would not suspend
her “if he was a person of [G]od,” that he was the one
who should be suspended because he was doing his
job improperly and that she would have his superior
overturn his decision. R.37 ¶ 39, at 6 (responding to R.34
¶ 39, at 6). Ms. Atanus does not contest that Brown’s
decision to suspend her was based upon Smith’s report
of Ms. Atanus’ conduct. Ms. Atanus, in short, offers
nothing more than her belief that her conduct toward
Smith did not warrant a ten-day suspension to show that
the GSA did not act honestly and in good faith.6 Cowan v.
6
We note that Ms. Atanus also does not proffer any evidence
of pretext regarding the GSA’s reason for suspending her for
five days (which was the reason that Ms. Atanus was required
(continued...)
18 No. 07-1430
Glenbrook Sec. Srvs., Inc., 123 F.3d 438, 444 (7th Cir. 1997)
(perpetually tardy employee could not defeat a motion
for summary judgment with mere speculative inference
that termination was due to racial animus rather than
record of tardiness). Indeed, she flatly asserts that a trial
is warranted because this issue hinges on credibility
and intent. Given the facts that Ms. Atanus has ad-
mitted, however, and given that she has no evidence of
pretext, no reasonable jury could find that the GSA’s stated
reasons have no basis in fact, are not the real reasons for
her suspension or that her conduct was insufficient to
warrant the suspension. Fane v. Locke Reynolds, 480 F.3d
534, 541 (7th Cir. 2007) (affirming a grant of summary
judgment where an employee was terminated for “rude
behavior, insubordination, and not recognizing her own
inappropriate behavior” and where the employer be-
lieved that such conduct warranted termination and
honestly acted pursuant to that belief); Gadsby v. Norwalk
Furniture Corp., 71 F.3d 1324, 1337-38 (7th Cir. 1995) (Flaum,
J., concurring).
2. Letter of Instruction
Next, Ms. Atanus submits that she presented a prima
facie case of discrimination regarding the letter of instruc-
tion that she received on January 13, 2003. The letter
stated that she had not been following GSA guidelines
for the modification and extension of contracts. Ac-
cording to Ms. Atanus, a comparison of the letter that
6
(...continued)
to meet with Smith) for her improper handling of a FOIA
request.
No. 07-1430 19
she received with letters received by employees outside
of her protected classes reveals that the letters received
by other employees were boilerplate, much less severe
in tone and did not threaten termination.
Ms. Atanus has not shown that the January 13, 2003
letter of instruction was an adverse employment action.
In Sweeney v. West, 149 F.3d 550, 556-57 (7th Cir. 1998),
we declined to consider “two counseling statements,”
which admonished the employee to improve, as adverse
employment actions or as having tangible job con-
sequences because the employee had not pointed to any
immediate consequences of the reprimands, such as an
eligibility for promotion, transfer to a favorable location,
an advantageous increase in responsibilities or similar
benefits. See Johnson v. Cambridge Indus., Inc., 325 F.3d
892, 901, 902 (7th Cir. 2003) (noting that, although the
“definition of an adverse employment action is gener-
ous,” an employee “must show some quantitative or
qualitative change in the terms or conditions of his em-
ployment” or some sort of “real harm”); Oest v. Illinois
Dep’t of Corr., 240 F.3d 605, 613 (7th Cir. 2001); cf. Coolidge
v. Consol. City of Indianapolis, 505 F.3d 731, 735 (7th Cir.
2007) (explaining that two reprimands followed by termi-
nation constitute an adverse employment action). The
same is true here. The letter itself does not state that
Ms. Atanus is being disciplined for her second failure
to follow FAR 4.2; rather, it warns that disciplinary
action may be taken if she fails to comply with the di-
rective of the letter. Ms. Atanus was not terminated or
demoted, and she does not allege that her job responsi-
bilities were changed because of the letter. Indeed, after
Ms. Atanus requested that the GSA conduct a desk audit,
the agency developed an official position, specifically
20 No. 07-1430
for her and at the same GS-11 grade, to comply with her
request.7
Ms. Atanus, moreover, has not established that the
employees who received letters of instruction were simi-
larly situated. The letter that Ms. Atanus received
was not written by the manager who issued letters to the
other employees. Additionally, this letter was Ms. Atanus’
second letter of instruction for failing to follow the
same GSA regulation. The letter references the prior
letter of instruction that Ms. Atanus had received, in
which Ms. Atanus had been warned that further viola-
tions of FAR 4.2 “could lead to disciplinary action, up
to and including removal.” R.37, Ex. 5 at 2. Because em-
ployers are justified in reprimanding employees more
severely for repeated errors and because Ms. Atanus has
not submitted any evidence indicating that the two other
employees who received less severe letters had been
reprimanded in the past, she has failed to show that
these employees were similarly situated. Accordingly,
Ms. Atanus has not established a prima facie case of
discrimination with regard to the January 13, 2003 letter
of instruction.
7
Ms. Atanus, as she did before the district court, intersperses
throughout her brief allegations that she was refused promo-
tion while other GS-11 contract administrators were promoted
to GS-12. Ms. Atanus, however, does not contend, nor could
she on this record, that the GSA’s failure to promote her
was related to this letter of instruction. Oest v. Illinois Dep’t of
Corr., 240 F.3d 605, 613-14 (7th Cir. 2001); cf. Spiegla v. Hull,
371 F.3d 928, 941-42 (7th Cir. 2004).
No. 07-1430 21
3. Verbal Harassment
Ms. Atanus contends that her Title VII rights were
violated when Brown and Henderson verbally harassed
her during the February 13, 2003 meeting. Ms. Atanus
claims that Brown “badgered her in a loud, unprofessional
tone” and that she perceived Brown’s comments as
“discriminatory and harassing.” Appellant’s Br. at 19.
An employee may bring a Title VII discrimination
claim alleging that the employer is responsible for a
hostile work environment. The employee must demon-
strate that: (1) “he was subject to unwelcome harassment”;
(2) the harassment was based on a protected characteristic;
(3) “the harassment was severe and pervasive so as to
alter the conditions of the employee’s environment
and create a hostile or abusive working environment”;
and (4) “there is a basis for employer liability.” Mason v.
So. Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th
Cir. 2000). Whether an employer’s conduct creates a
hostile work environment is not subject to “a mathemati-
cally precise test” and “can be determined only by
looking at all the circumstances.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 22-23 (1993). Relevant circumstances
include “the frequency and severity of the conduct;
whether it was threatening and/or humiliating or
merely an offensive utterance; and whether the harass-
ment unreasonably interfered with her work.” McPherson
v. City of Waukegan, 379 F.3d 430, 438 (7th Cir. 2004).
Ms. Atanus has not provided any specifics as to the
content of Henderson’s and Brown’s statements during
the meeting or whether their remarks referenced her
race, color, national origin, gender, religion or age. She
also does not establish that their conduct affected her
work performance. Under our case law, being addressed
22 No. 07-1430
in a loud, unprofessional tone during one meeting does
not satisfy the requirement that the offensive conduct be
severe and pervasive. Moser v. Indiana Dep’t of Corr.,
406 F.3d 895, 903 (7th Cir. 2005); Saxton v. Am. Tel. & Tel.
Co., 10 F.3d 526, 533, 537 (7th Cir. 1993) (noting that
“relatively isolated instances of non-severe misconduct
will not support a hostile environment claim” and hold-
ing that a supervisor’s conduct, though “inappropriate
and unprofessional,” was not “so serious or pervasive
that it created a hostile work environment within the
meaning of Title VII”); see also Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (remarking that Title VII
is not a code of “general civility”).8
8
We cannot accept Ms. Atanus’ claim that the district court
erred by not considering the harassment in conjunction with the
other acts that form the basis for her case. See, e.g., Silk v. City of
Chicago, 194 F.3d 788, 807 (7th Cir. 1999) (acknowledging “that,
in discrimination cases, the ‘whole can be greater than the
sum of the parts,’ and that it is quite appropriate for a plaintiff
to ‘ask the trier of fact to draw an inference of discrimination
from a pattern of behavior when each individual act might have
an innocent explanation.’ ” (quoting Vande Zande v. State of
Wisconsin Dep’t of Admin., 44 F.3d 538, 546 (7th Cir. 1995))). It is
unclear whether Ms. Atanus is claiming that the alleged verbal
harassment incident helps her establish her prima facie dis-
crimination claim or whether the other incidents of alleged
discrimination assist her in establishing the hostile work
environment claim; either way, her contention is unpersuasive.
As we have discussed above, Ms. Atanus has admitted facts
showing that she was insubordinate, disorderly and rude to
her superior, and she has failed to put forth any evidence
showing that she correctly performed the tasks for which the
GSA issued her the letters of instruction. The GSA has provided
(continued...)
No. 07-1430 23
4. Retaliation
Lastly, we turn to Ms. Atanus’ contention that the
GSA retaliated against her when it transferred her to a
different position within the same GS-11 level after
she filed a formal complaint of discrimination with the
EEOC. Title VII proscribes an employer from retaliating
against an employee who has engaged in statutorily
protected activity. See 42 U.S.C. § 2000e-3(a) (“It shall be
an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment
practice by this subchapter, or . . . has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
8
(...continued)
solid, non-discriminatory reasons for suspending her and for
issuing the letters of instruction. Ms. Atanus has not proffered
any evidence showing those reasons to be pretextual, and,
therefore, she cannot say that the alleged verbal harassment
strengthened her other claims.
Nor does Smith’s conduct toward Ms. Atanus during her
repeated attempts to discuss her suspension or his threats to
call a federal protective services officer if she did not calm
down and return to her work station rise to the level of a hostile
work environment, even when considered “collectively and
cumulatively” with her meeting with Henderson and Brown. Id.
at 804, 807 (explaining that a plaintiff, to defeat summary
judgment in a hostile work environment claim, must “demon-
strate that a rational trier of fact could find that his workplace
is permeated with discriminatory conduct—intimidation,
ridicule, insult—that is sufficiently severe or pervasive to alter
the conditions of his employment”).
24 No. 07-1430
subchapter.”). Ms. Atanus proceeds under the indirect
method of proof.
Under the indirect methodology, an employee must
present sufficient evidence to establish a prima facie
case of retaliation. The employee must show that
“(1) she engaged in statutorily protected activity;
(2) she performed her job according to her employer’s
legitimate expectations; (3) despite meeting her em-
ployer’s legitimate expectations, she suffered a mate-
rially adverse employment action; and (4) she was
treated less favorably than similarly situated employees
who did not engage in statutorily protected activity.” Hilt-
Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002);
see also Hudson v. Chicago Transit Auth., 375 F.3d 552,
560 (7th Cir. 2004). “Under the indirect method of proof,
failure to satisfy any one element of the prima facie case
is fatal to an employee’s retaliation claim.” Hudson, 375
F.3d at 560. Once the employee establishes a prima
facie case, the burden shifts to the employer to offer a
legitimate, non-discriminatory reason for the adverse
employment action. Hilt-Dyson, 282 F.3d at 465. The burden
then shifts back to the employee to demonstrate that the
employer’s reason is pretextual. Id. (noting that, at this
point, summary judgment is proper if the employee fails
to establish pretext).
We focus on whether Ms. Atanus has suffered a materi-
ally adverse employment action—the third prong of
her prima facie case. Adverse employment action “has
been defined quite broadly in this circuit.” Smart v. Ball
State Univ., 89 F.3d 437, 441 (7th Cir. 1996); Oest, 240 F.3d at
612. We have recognized that “creating a precise list
of activities that constitute adverse employment ac-
tions would be impossible because of the unique circum-
No. 07-1430 25
stances of individual cases,” but we have noted some
examples of adverse employment actions: “’termination
of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss
of benefits, [and] significantly diminished material re-
sponsibilities.’ ” Hilt-Dyson, 282 F.3d at 465-66 (quoting
Ribando v. United Airlines, Inc., 200 F.3d 507, 510 (7th Cir.
1999)). Given this flexible, practical approach, “we have
emphasized that an adverse employment action need not
be quantifiable in terms of pay or benefits.” Id. at 466. An
adverse employment action, nevertheless, “is one that
is materially adverse, ‘meaning more than a mere incon-
venience or an alteration of job responsibilities.’ ” Id. at
465 (quoting Crady v. Liberty Nat’l Bank & Trust Co.,
993 F.2d 132, 136 (7th Cir. 1993)). Accordingly, “not
everything that makes an employee unhappy is an action-
able adverse action.” Smart, 89 F.3d at 441. For example,
we have held that a transfer and job title change from
assistant vice-president and manager of one bank branch
to a loan officer position at a different branch is not neces-
sarily, by itself, a materially adverse employment action.
Crady, 993 F.2d at 136; see also Grayson v. City of Chicago,
317 F.3d 745, 749-50 (7th Cir. 2003) (holding that a dif-
ference in job title alone—where the positions are iden-
tical in terms of work, pay and benefits—is not materially
adverse); Flaherty v. Gas Research Inst., 31 F.3d 451, 457
(7th Cir. 1994).
Construing the record broadly,9 Ms. Atanus asserts that
9
Ms. Atanus has taken inconsistent positions with regard to
this claim. In the materials submitted in opposition to the GSA’s
summary judgment motion, she admitted that the GSA trans-
(continued...)
26 No. 07-1430
the GSA retaliated against her by transferring her from a
contract specialist (GS-11) position to the position of
procurement analyst (GS-11) after she filed her com-
plaint with the EEOC. Ms. Atanus has not explained
whether the change in title entailed any change in the
work that she was performing, whether there was a
change in geographic location or whether the position
restricted her opportunities to advance within the GSA.
Without more factual development, Ms. Atanus’ claim
that she suffered an adverse employment action is defi-
cient.
Conclusion
For the reasons set forth in this opinion, the judgment
of the district court is affirmed.
AFFIRMED
9
(...continued)
ferred her to the position of procurement analyst in an effort
to comply with her request, which was made before she filed
her complaint with the EEOC, that the GSA perform a desk
audit on the work that she was performing. See R.37 ¶¶ 70-74,
at 8 (responding to R.34 ¶¶ 70-74, at 10). In the same statement
of facts, however, she asserted that the GSA transferred her
to the position of contract specialist first and then, after her
EEO complaint, transferred her to the position of procurement
analyst. R.37 ¶¶ 34-36, at 13. Because the timing of the events
makes no difference to our decision, it is unnecessary for us
to determine whether Ms. Atanus is bound by her prior stipula-
tion to the GSA’s version of the facts.
USCA-02-C-0072—3-17-08