Rizzo, Harriet v. Sheahan, Michael F. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2494
Harriet Rizzo,
Plaintiff-Appellant,
v.
Michael F. Sheahan, in his official capacity
as Sheriff of Cook County, Illinois,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 3995--Nan R. Nolan, Magistrate Judge.
Argued January 18, 2001--Decided September 20, 2001
Before Cudahy, Kanne, and Rovner, Circuit
Judges.
Kanne, Circuit Judge. Harriet Rizzo, a
former employee of the Cook County
Sheriff’s Department, filed suit against
Michael F. Sheahan, the Sheriff of Cook
County, alleging that she was sexually
harassed by her supervisor, Michael
Mahon, and subjected to multiple acts of
retaliation, including her eventual
termination, for complaining about her
treatment. Sheahan moved for summary
judgment on both of Rizzo’s claims. The
district court granted the motion,
finding that Mahon’s alleged conduct was
not so severe or pervasive that it
created a hostile work environment and
that the Cook County Merit Board’s
decision to terminate Rizzo was not an
act of retaliation. Although we disagree
with the district court’s assessment of
the severity of the alleged conduct, we
affirm its decision as to Rizzo’s claim
of sexual harassment because we find that
Mahon’s deplorable behavior did not occur
because of Rizzo’s sex but instead was
the product of Mahon’s animosity toward
Rizzo’s husband. Additionally, we find
that the district court properly found
that Rizzo has not proven that Sheahan’s
legitimate, non-discriminatory reasons
for her termination were a pretext for
retaliation. Therefore, we will also
affirm the court’s grant of Sheahan’s
motion on this claim.
I. History
Harriet Rizzo was employed by the Cook
County Sheriff’s Department from February
1, 1985 until her termination on February
3, 1994. At the time of her termination,
Rizzo worked as an investigator in the
Electronic Monitoring Unit (the "E.M.U.")
of the Sheriff’s Department of Community
Supervision and Intervention. Rizzo began
working in this position on July 14,
1991, and her immediate supervisor was
Assistant Chief Michael Mahon.
Rizzo describes three specific incidents
of harassment by Mahon. The first
occurred some time in October of 1992.
Rizzo’s fifteen-year-old daughter,
Jennifer Simpson, was waiting for Rizzo
to finish her shift in the entranceway of
the E.M.U. Mahon noticed Simpson and
asked another officer who she was. The
officer told Mahon that Simpson was
Rizzo’s daughter. Mahon approached Rizzo,
asking her if Simpson was her daughter.
Rizzo indicated that she was, to which
Mahon responded, "Oh, you’re an old thing
aren’t you?" Taken aback by this comment,
Rizzo answered that she guessed she was.
Mahon then commented to Rizzo, "Well I’d
like to fuck her." Understandably, Rizzo
became very upset with Mahon, and she
verbally expressed her anger. Mahon
dismissed her outburst and walked away.
Rizzo told her husband, Joe Rizzo, who
worked as an investigator at the E.M.U.,
about Mahon’s comment. Mr. Rizzo told his
wife that he would report Mahon’s comment
to Chief Ricci, one of Mahon’s
supervisors.
The second incident Rizzo describes took
place on February 18, 1993. Mahon
approached Rizzo at work and told her
that he had seen Rizzo’s mother and
daughter at a restaurant the night before
and that he thought that Rizzo’s daughter
was very attractive. He again commented
to Rizzo that he "would like to fuck" her
daughter. Rizzo personally reported
Mahon’s conduct to Chief Ricci.
The third incident occurred at some
unspecified time while Rizzo was standing
at a copying machine in the E.M.U. Mahon
walked by, "looked Rizzo over," and
stated in a suggestive manner that he
wished he was Rizzo’s husband. Two other
officers who heard this comment told
Mahon to "shut his mouth." Rizzo contends
that Mahon made similar suggestive
comments to Rizzo on several other
occasions.
On March 9, 1993, Rizzo tendered a
written memorandum to Chief Randy
Pietrowski, alleging that Mahon had sexu
ally harassed her. Investigator Barbara
Bennett of the Internal Investigations
Division ("IID") of the Cook County
Department of Corrections conducted an
investigation of Rizzo’s allegation.
After interviewing fifteen different peo
ple, including Rizzo, Mahon, Simpson, Mr.
Rizzo, and Rizzo’s mother, Bennett
reported the following findings:
Assistant Chief Michael Mahon has a
strong dislike and animosity against
Investigator Harriet Rizzo’s Husband, Joe
Rizzo, and has succeeded in directing his
hostility against Joe Rizzo through his
Wife, Harriet Rizzo, which by his conduct
has the purpose and the effect of
unreasonably interfering with Harriet
Rizzo’s work performance and creating an
intimidating, hostile and offensive
working environment.
Although it is clear that this
Investigator is unable to sustain the
Charges of sexual harassment against
Assistant Chief Michael Mahon as it is
written under the General Order 3.7A, it
is clear that Assistant Chief Mahon is
unable to perform effectively, fairly and
with reason as Assistant Chief of the
E.M.U., therefore his appointment to that
position should be seriously
reconsidered.
Based on the information obtained through
this Investigation, this Investigator
would classify the Charge in this Case as
"Simple Harassment," with the
understanding that there are no General
Orders written that would sustain that
Charge.
Therefore, the evidence that is presented
in its present state is such that it is
recommended that this Investigation be
classified as:
"INCONCLUSIVE"
Insufficient evidence to either prove or
disprove the Allegation.
After filing her complaint, Rizzo
contends that she was subjected to
multiple threats and acts of retaliation.
On February 21, 1993, Assistant Acting
Deputy Director Dioguardi visited Rizzo
at her home to discuss her complaint.
According to Rizzo, Dioguardi sought to
intimidate her into withdrawing her
complaint against Mahon. He told her that
she would be fired if she insisted on
pursuing her claim. Dioguardi then became
upset with Rizzo and began screaming at
her. Both Rizzo’s mother and daughter
heard Dioguardi tell Rizzo that she
should not have reported this matter to
IID and that she should consider
transferring out of the E.M.U.
After Mahon learned of Rizzo’s
complaint, he ordered her into his office
and proceeded to threaten to have her
terminated if she did not withdraw her
complaint. Mahon warned Rizzo that he had
a lot of "clout" at the E.M.U., that all
of the chiefs at the E.M.U. would back
him up, and that he had the ability to
make her and her husband’s lives very
miserable at work. Additionally, Rizzo
received threatening phone calls at work
and at home, warning that she and her
family would suffer if she did not
withdraw her complaint. She also contends
that after she submitted her written memo
in March, she was confronted at the
E.M.U. by Mahon, Dioguardi, and
Pietrowski. According to Rizzo, Mahon
told her that "supervisors don’t say
they’re sorry." Furthermore, Rizzo
alleges that Mahon threatened to alter
her work schedule, purposefully
interfered with her ability to take a
lunch break, and saw to it that she
received two disciplinary warnings and
was eventually transferred out of the
E.M.U. to the records department.
Rizzo asserts that an investigation into
her educational background and her
eventual termination were acts of
retaliation for her having filed a
complaint against Mahon. According to
Rizzo, the review of her educational
credentials was a sham, designed to set
her up to be terminated, and that the
review did not begin until after she was
interviewed by Investigator Bennett
regarding her complaint in early May
1993. Although the Sheriff’s policy
addressing internal investigations of
sexual harassment complaints requires
investigators to observe "strict
confidentiality" and explains that "only
those with an immediate need to know may
become privy to the identity of the
parties," twoadditional investigators
from the Sheriff’s Inspector General’s
Office, Investigators Beckman and
Podolsky, sat in on the interview.
Investigator Beckman later interviewed
Rizzo on September 15, 1993 regarding her
educational background. At the interview,
Rizzo presented Beckman with a GED
certificate she alleged to have received
in November 1976, under her maiden name
of Harriet Nuzzo. Beckman then showed
Rizzo a copy of a GED certificate that he
said he had retrieved from her file
bearing the name Harriet Wagner. Rizzo
denied having any knowledge of how that
certificate ended up in her personnel
file. According to Rizzo, Beckman took
the certificate she brought to the
interview and she has not seen it since.
Rizzo was suspended from work without
pay on February 2, 1994, pending the
outcome of a hearing before the Cook
County Merit Board concerning her
educational background. The hearing
before the Board took place on June, 28,
1994, and the Board rendered its decision
on December 6, 1994, terminating Rizzo,
effective February 3, 1994. Rizzo was
terminated for (1) violating the Board’s
rule requiring a high school diploma or a
certification of equivalent formal
education in order to qualify for the
position of deputy sheriff and (2)
falsely indicating on her employment
application that she graduated from high
school or that she received a certificate
of equivalent formal education. Rizzo
sought administrative review of her
discharge in the Circuit Court of Cook
County, Illinois. The circuit court
affirmed the Merit Board’s decision to
terminate Rizzo, and she appealed that
decision to the Illinois Appellate Court.
While her challenge to her termination
was pending before the Illinois Court of
Appeals, Rizzo filed the current suit in
the United States District Court for the
Northern District of Illinois, claiming
that she had been sexually harassed by
Mahon, and then retaliated against for
complaining about his behavior in
violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. sec. 2000e
et seq. As explained above, Sheahan moved
for summary judgment on both of Rizzo’s
claims, and the district court granted
the motion. Rizzo now appeals.
II. Analysis
A. Standard of Review
We review the district court’s grant of
summary judgment de novo. See Warsco v.
Preferred Technical Group, 258 F.3d 557,
563 (7th Cir. 2001). Summary 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 a matter of law." Fed. R. Civ.
P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986). In
determining whether a genuine issue of
material fact exists, we must construe
all facts in the light most favorable to
the non-moving party and draw all
reasonable inferences in favor of that
party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986).
B. Rizzo’s Claim of Sexual Harassment
Rizzo alleges that Mahon sexually
harassed her in violation of Title VII by
subjecting her to a hostile work environ
ment. In order to prevail on this claim,
Rizzo must establish that the alleged
harassment occurred because of her sex.
See Haugerud v. Amery Sch. Dist., 259
F.3d 678, 691 (7th Cir. 2001); see also
Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80, 118 S. Ct. 998,
140 L. Ed. 2d 201 (1998) (quoting Harris
Forklift Sys., Inc., 510 U.S. 17, 25, 114
S. Ct. 367, 126 L. Ed. 2d 295 (1993)
(Ginsburg, J., concurring) ("The critical
issue, Title VII’s text indicates, is
whether members of one sex are exposed to
disadvantageous terms or conditions of
employment to which members of the other
sex are not exposed.")). Additionally, in
order to be actionable, the harassment
Rizzo complains of "must be sufficiently
severe or pervasive to alter the
conditions of [her] employment and create
an abusive working environment." Cooke v.
Stefani Mgmt. Servs., Inc., 250 F.3d 564,
566 (7th Cir. 2001) (internal quotation
omitted). "In assessing the severity and
pervasiveness of [Mahon’s] conduct, we
look to all the circumstances, including
’the frequency of the discriminatory
conduct; its severity; whether it is
physically threatening or humiliating, or
a mere offensive utterance; and whether
it unreasonably interferes with an
employee’s work performance.’" Russell v.
Bd. of Trs. of Univ. of Ill., 243 F.3d
336, 343 (7th Cir. 2001) (quoting Smith
v. Sheahan, 189 F.3d 529, 533-34 (7th
Cir. 1999)). Furthermore, Rizzo must
demonstrate that her work environment was
both objectively and subjectively
hostile. See Haugerud, 259 F.3d at 691.
We have explained that "the work
environment cannot be described as
’hostile’ for purposes of Title VII
unless a reasonable person would find it
offensive and the plaintiff actually
perceived it as such." Hostetler v.
Quality Dining, Inc., 218 F.3d 798, 807
(7th Cir. 2000). The two comments Mahon
made to Rizzo regarding her daughter are
extremely severe. These sexually explicit
comments made to a mother by her
supervisor in reference to her fifteen-
year-old daughter are significantly more
offensive than the typical crass comments
we have found to be insufficient to
constitute harassment in other cases.
See, e.g., McKenzie v. Ill. Dep’t. of
Transp., 92 F.3d 473, 480 (7th Cir.
1996); Baskerville v. Culligan Int’l Co.,
50 F.3d 428, 430 (7th Cir. 1995). Indeed,
as a mother, it may be more disturbing to
be subjected to these comments than to be
personally subjected to many of the types
of unwanted sexual advances we have seen
in reviewing other harassment claims.
Thus, it is no surprise that Investigator
Bennett, after interviewing a number of
people well acquainted with Rizzo, Mahon,
and Mahon’s behavior at the E.M.U.,
observed: "Mahon . . . by his conduct
ha[d] the purpose and the effect of
unreasonably interfering with Harriet
Rizzo’s work performance and creating an
intimidating, hostile, and offensive
working environment." We agree with this
finding and conclude that a reasonable
trier of fact could find that these
comments were sufficiently severe to
create a hostile work environment.
We also find that a reasonable trier of
fact could conclude that Rizzo has
demonstrated that her work environment
was both objectively and subjectively
hostile. Not only would a reasonable
person find that Mahon’s behavior created
an offensive environment, it is likewise
clear from the record that Rizzo
perceived Mahon’s actions as having
subjected her to a hostile work
environment. After the first incident,
Rizzo expressed her distress directly to
Mahon and later pressed her husband to
report the behavior to Mahon’s
supervisor. When Mahon again graphically
suggested to Rizzo that he would like to
have sexual intercourse with her teenage
daughter, Rizzo complained directly to
Mahon’s supervisor and subsequently filed
a written complaint alleging that she had
been sexually harassed by Mahon.
Unfortunately, however, Rizzo’s claim
cannot succeed because she has produced
no evidence indicating that Mahon’s
offensive behavior towards her was based
on her sex. To the contrary, Rizzo spent
significant time both in her brief and at
oral argument documenting the animosity
Mahon harbored towards Rizzo’s husband,
and explaining that this animosity was
the reason Mahon was "going after" Rizzo.
Additionally, Investigator Bennett, who
ultimately concluded that Mahon’s
behavior constituted simple harassment,
reinforced Rizzo’s explanation, observing
that "Mahon has a strong dislike and
animosity against Investigator Harriet
Rizzo’s Husband, Joe Rizzo, and has
succeeded in directing his hostility
against Joe Rizzo through his Wife,
Harriet Rizzo." Although we have
concluded in other cases that a
reasonable trier of fact may deduce that
an individual is being harassed because
of her sex even where the harassing
behavior is not overtly gender based, see
Haugerud, 2001 WL 869361, at *9, this
case presents the unique situation where
the plaintiff has produced clear evidence
that the harassing behavior was not
motivated by sex, and thus does not
comply with the requirements of Title
VII, see Oncale, 523 U.S. at 80 ("Title
VII does not prohibit all verbal or
physical harassment in the workplace; it
is directed only at ’discriminat[ion] . .
. because of . . . sex.’"). Therefore,
Title VII does not provide a remedy for
Mahon’s conduct. Finally, because we are
unable to find that Rizzo was subjected
to a hostile work environment within the
meaning of Title VII, we need not analyze
whether Sheahan could be held vicariously
liable for Mahon’s actions.
C. Rizzo’s Claim of Retaliation
Rizzo also alleges that the
investigation into her educational
background and her eventual termination
were acts of retaliation prohibited by
Title VII for her having filed a
complaint against Mahon and then refusing
to withdraw that complaint. Sheahan
contends that the Rooker-Feldman doctrine
precludes Rizzo from pursuing this claim
because her claim merely challenges the
rulings of the Illinois courts upholding
the Merit Board’s decision to terminate
her. In the alternative, Sheahan asserts
that, even if Rizzo is permitted to
pursue this claim, the district court
properly granted his motion for summary
judgment because there is no causal link
between the filing of Rizzo’s complaint
of harassment and the proceeding before
the Merit Board, especially because the
investigation and proceedings that led to
Rizzo’s termination were initiated before
she filed those charges.
The Rooker-Feldman doctrine provides
that lower federal courts are precluded
from exercising jurisdiction over claims
that would require them to review a final
judgment of a state court. See Rooker v.
Fid. Trust Co., 263 U.S. 413, 44 S. Ct.
149, 68 L. Ed. 362 (1923); D.C. Court of
Appeals v. Feldman, 460 U.S. 462, 103 S.
Ct. 1303, 75 L. Ed. 2d 206 (1983). "In
order to determine the applicability of
the Rooker-Feldman doctrine, the
fundamental and appropriate question to
ask is whether the injury alleged by the
federal plaintiff resulted from the state
court judgment itself or is distinct from
that judgment." Garry v. Geils, 82 F.3d
1362, 1365 (7th Cir. 1996). "If the
injury alleged resulted from the state
court judgment itself, the Rooker-Feldman
doctrine dictates that the federal courts
lack subject matter jurisdiction, even if
the state court judgment was erroneous or
unconstitutional." Centres v. Town of
Brookfield, Wisconsin, 148 F.3d 699, 702
(7th Cir. 1998). If, however, "the injury
alleged is distinct from that judgment,
i.e., the party maintains an injury apart
from the loss in state court and not
’inextricably intertwined’ with the state
judgment . . . res judicata may apply,
but Rooker-Feldman does not." Garry, 82
F.3d at 1365-66. Thus, "the pivotal
inquiry is whether the federal plaintiff
seeks to set aside a state court judgment
or whether [she] is, in fact, presenting
an independent claim." Long v. Shorebank
Dev. Corp., 182 F.3d 548, 554 (7th Cir.
1999) (quotation omitted).
Rizzo contends that she was terminated
in retaliation for having filed a
complaint of sexual harassment
againstMahon. The decision to terminate
Rizzo was made by the Cook County Merit
Board. Rizzo appealed this decision and
both the Illinois Circuit Court and
Appellate Court affirmed the Board’s
ruling. Although Rizzo was certainly
displeased with the conclusion reached by
the Illinois courts, the injury she
alleges before this court did not result
from the state court judgment. Instead,
Rizzo filed this claim because she did
not receive the relief she sought from
the Illinois courts--a determination that
she should not have been terminated. Our
cases contemplating the applicability of
the Rooker-Feldman doctrine have
recognized the difference between "a
federal claim alleging injury caused by a
state court judgment (necessarily raising
the Rooker-Feldman doctrine) and a
federal claim alleging a prior injury
that a state court failed to remedy
(raising a potential res judicata problem
but not Rooker-Feldman)." Garry, 82 F.3d
at 1366. Thus, because the injury Rizzo
alleges in this court was incurred before
she sought relief in state court, we find
that the Rooker-Feldman doctrine does not
apply to her claim of retaliation.
Rizzo’s claim does, however, raise a
potential res judicata problem. Also
known as claim preclusion, res judicata
is an affirmative defense designed to
prevent the "relitigation of claims that
were or could have been asserted in an
earlier proceeding." D & K Props. Crystal
Lake v. Mut. Life Ins. Co. of N.Y., 122
F.3d 257, 259 (7th Cir. 1997). By asking
us to find that she was terminated in
retaliation for filing a complaint, Rizzo
essentially asks us to ignore the fact
that the Illinois courts affirmed the
Merit Board’s decision to terminate her.
See Garry, 82 F.3d at 1367. ("A plaintiff
who loses and tries again encounters the
law of preclusion. The second complaint
shows that the plaintiff wants to ignore
rather than upset the judgment of the
state tribunal.") However, because
Sheahan did not raise this affirmative
defense before the district court, it has
been waived, and therefore, we need not
further consider its applicability to
Rizzo’s claim. See Marcus v. Sullivan,
926 F.2d 604, 615 (7th Cir. 1991) Thus,
we proceed to the merits of Rizzo’s
retaliation claim.
To prevail on her claim of retaliation,
Rizzo must either present direct evidence
of retaliation or use a burden-shifting
approach. See Hoffman-Dombrowski v.
Arlington Int’l Racecourse, Inc., 254
F.3d 644, 653 (7th Cir. 2001). Although
Rizzo alleges that Mahon and Chief
Dioguardi threatened to have her
terminated if she continued with her
complaint against Mahon, these
allegations do not constitute direct
evidence of her claim that the Merit
Board’s decision to terminate her was an
act of retaliation that violated Title
VII. See Fyfe v. City of Fort Wayne, 241
F.3d 597, 602 (7th Cir. 2001) ("When a
plaintiff proceeds under the direct proof
method, allegedly discriminatory
statements are relevant only if they are
both made by the decisionmaker and
related to the employment decision at
issue.") (quotation omitted). Therefore,
she must pursue her claim through the
burden-shifting framework provided in our
case law. Under this framework, Rizzo
must establish a prima facie case of
retaliation by demonstrating that: (1)
she engaged in a statutorily protected
activity; (2) she suffered an adverse
employment action subsequent to her
filing the complaint against Mahon; and
(3) there was a causal link between the
adverse action and the protected
activity. See Dunn v. Nordstrom, Inc.,
No. 00-2958, 2001 WL 898757, at *2 (7th
Cir. Aug. 10, 2001); Sanchez v.
Henderson, 188 F.3d 740, 745-46 (7th Cir.
1999). If Rizzo is able to prove these
elements by a preponderance of the
evidence, then the burden shifts to
Sheahan to present a legitimate, non-
discriminatory reason for Rizzo’s
termination. See Hoffman-Dombrowski, 254
F.3d at 653. Once Sheahan provides such a
reason, the burden shifts back to Rizzo
who must then demonstrate that Sheahan’s
stated reason for terminating her was
merely a pretext for retaliation. See
Alexander v. Wisc. Dep’t of Health and
Family Services, No. 00-2603, 2001 WL
965938, at *6 (7th Cir. Aug. 27, 2001).
A plaintiff may establish that the
reasons offered for her termination were
a pretext for retaliation by presenting
either direct evidence indicating that
the defendant was "’more likely than not
motivated by a discriminatory reason,’ or
indirect evidence showing that the
defendant[’s] stated reasons are not
credible." Id. (quoting Sarsha v. Sears,
Roebuck & Co., 3 F.3d 1035, 1039 (7th
Cir. 1993)). Because Rizzo has provided
no direct evidence of retaliation in this
case, she must rely on indirect evidence
to demonstrate that Sheahan’s stated
reasons were pretextual. To do so, Rizzo
must prove "one of the following: (1)
Defendant’s explanation of Plaintiff’s
discharge had no basis in fact, or (2)
the explanation was not the ’real’
reason, or (3) at least the reason stated
was insufficient to warrant the
[allegedly retaliatory action]." Johnson
v. Nordstrom, Inc., No. 00-3827, 2001 WL
818874, at *3 (7th Cir. July 20, 2001)
(quotation omitted).
Rizzo has met the first two requirements
of her prima facie case: she engaged in a
statutorily protected right when she
filed a complaint against Mahon for
sexual harassment and she was terminated
after she filed this complaint. It is not
as clear, however, that Rizzo has shown a
causal link between her termination and
her filing the complaint against Mahon.
"To prove a causal link, the plaintiff is
required to show that the employer would
not have taken the adverse action ’but
for’ the plaintiff’s engagement in the
protected activity." Id. (citing McKenzie
v. Ill. Dep’t of Transp., 92 F.3d 473,
483 (7th Cir. 1996)). The district court
shared our concern with this aspect of
Rizzo’s prima facie case; however, it
aptly recognized that even assuming argu
endo that Rizzo has established her prima
facie case, she still cannot prevail. See
Rizzo v. Sheahan, No. 97 C 3995, 2000 WL
679982, at *16-24 (N.D. Ill. May 22,
2000). Sheahan has provided two
legitimate, non-discriminatory reasons
for Rizzo’s termination by offering the
reasoning of the Merit Board’s decision:
(1) Rizzo violated the Board’s rule
requiring a high school diploma or a
certification of equivalent formal
education in order to qualify for the
position of deputy sheriff and (2) she
misrepresented on her employment
application and questionnaire that she
graduated from Gage Park High School in
1977 and misrepresented on her
questionnaire that she received a GED
certificate from Daley College in 1978-
79. Thus, Rizzo would be required to
prove that these legitimate, non-
discriminatory reasons for her
termination were a pretext for
retaliation. See Alexander, 2001 WL
965938, at *6. A review of Rizzo’s
allegations reveals that she has failed
to meet this burden.
Rizzo argues that the following
allegations demonstrate that her
termination was an act of retaliation and
that Sheahan’s stated reasons for her
termination were a pretext for that
retaliation: Mahon threatened to have
Rizzo fired if she did not withdraw her
complaint; Chief Dioguardi told Rizzo
that she would lose her job if she
continued to pursue her complaint; she
received phone calls threatening that she
and her family would suffer if she did
not drop her complaint; Mahon interfered
with her ability to take a lunch break;
Mahon made her work overtime; she
received two disciplinary warnings; she
was transferred out of the E.M.U.; she
was suspended without pay while other
individuals under investigation were
permitted to continue working or were
suspended with pay; and she was
terminated. We cannot agree that these
allegations establish pretext.
Although pathetic, Mahon and Dioguardi’s
threats, as well as Mahon’s actions
designed to inconvenience Rizzo at work,
fail to demonstrate that the stated
reasons for Rizzo’s termination were a
pretext for retaliation. Rizzo has not
presented any evidence linking Mahon or
Dioguardi to any aspect of the
investigation of her educational
background or the Cook County Merit
Board’s decision to terminate her. Thus,
without more, these allegations are
insufficient to undermine the stated
reasons for Rizzo’s termination.
Likewise, the phone calls Rizzo received
suggesting that she and her family would
suffer if she did not drop her complaint
fail to establish pretext. Rizzo implies
that Mahon made these telephone calls;
however, she provides no evidence to
support this assertion. Furthermore, even
if Mahon did make these calls, there is
simply no evidence indicating that any of
the individuals involved in the decision
to terminate Rizzo had any knowledge of
these calls or that they affected the
Merit Board’s decision in any way.
The investigation of Rizzo’s educational
background also fails to prove that
Sheahan’s legitimate, non-discriminatory
reasons were a pretext for retaliation.
Although Rizzo correctly points out that
Investigator Beckman did not conduct a
personal interview with her regarding her
educational background until after she
had given a statement to Investigator
Bennett pertaining to her sexual
harassment complaint, this fact does not
prove that Rizzo was terminated for her
decision to file a complaint. It is
undisputed that the department-wide
investigation of individuals suspected of
having improper educational credentials
began in early September of 1992, over
six months before Rizzo filed her
complaint of sexual harassment. It is
also undisputed that Rizzo, by way of a
different last name, was on the initial
list of suspected employees compiled in
the fall of 1992. Furthermore, over five
months elapsed between Rizzo’s interview
with Bennett regarding her complaint and
her interview with Beckman about her
educational background.
Additionally, the fact that Investigator
Beckman was present during Rizzo’s
interview with Investigator Bennett does
not suggest that the grounds provided for
Rizzo’s termination were a pretext for
retaliation. While Beckman’s knowledge of
Rizzo’s complaint seems to exceed the
limits of the Sheriff’s confidentiality
policy, this fact, in the context of the
actual situation offers no evidence of
pretext. Investigator Beckman, along with
other investigators from the Sheriff’s
Inspector General’s Office, was
instructed to begin investigating some
one hundred individuals, including Rizzo,
in September of 1992, six months before
Rizzo filed her complaint.
Finally, Rizzo’s transfer to a different
facility and her subsequent suspension
without pay do not prove that Sheahan’s
stated reasons for her termination were a
pretext for retaliation. Despite her
allegation that this transfer was somehow
Mahon’s doing, the only relevant evidence
in the record indicates that this
transfer in January of 1994 was
temporary, pending the Merit Board’s
review of the investigation of Rizzo’s
educational background. Rizzo has failed
to provide any evidence that this
transfer was related to her decision to
file a complaint against Mahon. Likewise,
the record indicates that Rizzo’s
suspension without pay was also a
temporary step taken in connection with
the investigation of her educational
background and that it was unrelated to
her sexual harassment complaint. Here
again Rizzo fails to rebut this evidence.
We are not persuaded by Rizzo’s
unsupported assertion that other
employees who were also under
investigation were either allowed to
continue to work or were suspended with
pay. Although we are to view the facts in
the light most favorable to Rizzo,
drawing all reasonable inferences in her
favor, we are not required to infer that
she was terminated because she filed a
complaint against Mahon based only on her
unsubstantiated statement that other
individuals under investigation were
treated more favorably. See Frost Nat’l
Bank v. Midwest Autohaus, Inc., 241 F.3d
862, 868 ("A court’s obligation to draw
all reasonable inferences in favor of a
non-moving party . . . does not require
that court to stretch existing evidence
to reach conclusions or bolster arguments
it could not otherwise support.").
Therefore, we will affirm the district
court’s grant of Sheahan’s motion for
summary judgement on Rizzo’s claim that
her termination was in retaliation for
her having filed her complaint.
D. Rizzo’s Claim of Pre-Termination
Retaliation
Rizzo’s final claim on appeal alleges
that she was subjected to various acts of
retaliation in violation of Title VII
before she was terminated. This claim
asserts that each individual allegation
she offered as evidence that her
termination was an act of retaliation is,
in and of itself, a violation of Title
VII. Adverse employment actions other
than termination can constitute
retaliation in violation of Title VII.
See Knox v. Ind., 93 F.3d 1327, 1334 (7th
Cir. 1996) ("There is nothing in the law
of retaliation that restricts the type of
retaliatory act that might be visited
upon an employee who seeks to invoke her
rights by filing a complaint. It need
only be an adverse employment action . .
. ."). However, for the reasons explained
below, we do not find any of these
allegations to be meritorious.
Rizzo alleges that her transfer out of
the E.M.U. was an act of retaliation,
orchestrated by Mahon, which resulted in
her being placed in a position that
offered significantly less responsibility
than her previous position. This claim
fails regardless of whether the position
to which she was transferred presented
such a decline in responsibility that it
constituted an adverse employment action
because she has failed to establish that
the reasons provided for her transfer
were a pretext for retaliation. As noted
above, the record indicates that Rizzo’s
transfer was a temporary step taken in
connection with the investigation into
her educational background. Although
Rizzo asserts that her transfer was
Mahon’s doing, she presents no evidence
to support this contention or rebut
Sheahan’s stated reason for her transfer.
Without more, Rizzo cannot prevail on
this claim.
Rizzo also contends that her suspension
without pay was an act of retaliation
that violated Title VII. As explained
above, however, the only evidence Rizzo
provides in support of this allegation is
her unsubstantiated statement that three
other individuals also under
investigation were either allowed to
continue working or were suspended with
pay. Without affidavits from these
individuals, or some other form of
evidence corroborating her statements,
Rizzo cannot meet her burden to establish
a claim of retaliation.
Finally, we combine the rest of the
allegations Rizzo brings before this
court because they all fail for the same
reason. Although disconcerting, we find
that the threats, phone calls, and
inconveniences Rizzo faced at work did
not "alter[ ] the terms or conditions" of
her employment such that they can be
characterized as adverse employment
actions that constitute instances of
actionable retaliation in violation of
Title VII. See Spearman v. Ford Motor
Co., 231 F.3d 1080, 1086 (7th Cir. 2000).
III. Conclusion
For the aforementioned reasons, we AFFIRM
the district court’s grant of Sheahan’s
motion for summary judgment on Rizzo’s
claims.