Pamela Mercer v. Cook County , 527 F. App'x 515 ( 2013 )

NONPRECEDENTIAL DISPOSITION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
Argued April 4, 2013
Decided June 10, 2013
Before
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-2894 Appeal from the United States District
Court for the Northern District of
PAMELA MERCER, Illinois, Eastern Division
Plaintiff-Appellant,
No. 09 CV 05565
v.
Young B. Kim,
COOK COUNTY, ILLINOIS, et al., Magistrate Judge.
Defendants-Appellees.
ORDER
Pamela Mercer is a Correctional Sergeant at the Sheriff’s Office of Cook County,
Illinois. Citing allegedly hostile verbal and physical incidents and the discovery of sexually
explicit graffiti in her workplace, Mercer filed a number of complaints with the Internal
Affairs Division of the Sheriff’s Office. Mercer was then temporarily moved to a different
department within the Sheriff’s Office during the ensuing investigation. Subsequently,
Mercer brought an action against Cook County, the Sheriff’s Office, her supervisors, and her
union, alleging gender-based harassment and discrimination in violation of Title VII and
the Equal Protection clause. After Mercer dropped the claims against her union, the
No. 12-2894 Page 2
remaining defendants moved for summary judgment. The district court granted the motion
for summary judgment and denied Mercer’s subsequent motion for reconsideration. Mercer
timely appealed. We affirm.
I. Factual Background
Pamela Mercer began working as a Corrections Officer at the Sheriff’s Office of Cook
County, Illinois, in 1988. She was promoted to the rank of Correctional Sergeant in 1993. In
2005, Mercer was assigned to the 11:00 p.m. to 7:00 a.m. shift in the Department of
Community Service and Intervention (the “Department”). Along with two other sergeants,
a female and a male, Mercer supervised approximately fifteen to twenty correctional
officers. Two male lieutenants, Gus Paleologos1 and David Pitts, supervised the sergeants.
The record reveals that in February 2007 Mercer first formally complained about
conflicts she had with fellow officers. Specifically, Mercer filed a complaint with the Internal
Affairs Division of the Sheriff’s Office alleging that Paleologos and Chief Trebilco2
intimidated her during a meeting concerning complaints made by a subordinate officer
against Mercer. Mercer also alleged that Pitts used foul language, that Paleologos touched
her on the face without her permission, and that officers often slept during their shifts.3
On August 15, 2007, Mercer discovered sexually explicit graffiti on a unisex-
bathroom door, in the female correctional officers’ locker room, and also in a stairwell. She
reported the graffiti to Paleologos and asked him to clean the unisex-bathroom door.
Paleologos promptly removed the graffiti, but he did not photograph it. Paleologos and
1
The record, the parties, and the district court use both “Paleologos” and
“Paleologus.” For consistency, we use “Paleologos”—the spelling provided in Mercer’s
complaint and on the docket sheet.
2
The parties do not identify Chief Trebilco’s first name, gender, or position within
the hierarchy of the Sheriff’s Office. Based on the title, we presume that Chief Trebilco is a
superior to both Paleologos and Mercer. Regardless, Chief Trebilco’s position does not
matter to this appeal because Mercer does not rely upon any encounter with the chief as
support for her claims.
3
On appeal, Mercer does not rely upon her allegation that Paleologos touched her on
the face as support for her claims.
No. 12-2894 Page 3
Pitts conducted an investigation but failed to locate witnesses or discover the identity of the
perpetrator. The lieutenants announced at several roll calls that such behavior would not be
tolerated and would result in discipline.
On August 31, 2007, Mercer filed a second complaint with the Internal Affairs
Division in which she named Paleologos, Pitts, seven officers, Chief Trebilco, and “various
other parties named or not named in the attached documentation.” Mercer complained of
“ghost payrolling, uniform infractions, insubordination by staff, smoking and more without
any discipline being given . . . .” Further, Mercer stated that “[s]ince I have taken the
initiative to do my job, I have been subjected to being physically pushed by a
subordinate . . . derrogatory (sic) markings and graffiti . . . .” On September 18, Mercer filed
a third complaint with the Internal Affairs Division in which she contended that Pitts
angrily confronted her about her second complaint.
On October 2, 2007, Mercer filed a fourth complaint with the Internal Affairs
Division in which she contended that Paleologos unfairly disciplined her based on
“subjective parameters.” In this complaint, Mercer alleged that Paleologos was retaliating
against her for her prior complaints. Her fourth complaint also contained allegations that
her coworkers’ work performance was consistently sub-par, and that she was being
targeted because she worked hard and expected her subordinates to perform better.
After Mercer filed her fourth complaint, the Sheriff’s Office reassigned her, for the
duration of the investigation, to the division where she had worked before coming to the
Department. Mercer objected and requested that the persons about whom she had
complained be moved instead. Timothy Kaufmann, the Chief Investigator, denied that
request and explained that moving all of the alleged harassers would not be feasible.4
Kaufmann further observed that the decision to move Mercer was necessary to remove her
from the allegedly hostile work environment. Mercer returned to the Department in
October 2008, presumably because the investigation into her complaints had ended.5
4
Kaufmann also noted that there was a pending complaint against Mercer.
5
Although her reassignment lasted about one year, Mercer testified that she spent
nearly ten and one-half months of that time period on FMLA and medical leave.
No. 12-2894 Page 4
Additionally, Mercer identifies a number of specific incidents that she contends
constitute gender-based harassment. But she cannot recall the exact date of these incidents,
and we cannot determine from the record whether Mercer raised these specific incidents in
her above-mentioned complaints to the Internal Affairs Division. First, Mercer testified in
her deposition about an obscene remark Pitts made to her. Specifically, Mercer testified that
she was “having a silly conversation” with Pitts and another officer. She testified that she
said something to Pitts (she could not remember what), and that he responded by saying
“oh, go play with yourself.” Mercer testified that she reported this remark to Paleologos
who said that he would talk to Pitts about his language.
Second, Mercer testified that she was standing at a post near a building entrance and
that Paleologos, who was walking by, bumped into her. Mercer testified that the contact
was hard enough that she expected him to acknowledge it, but that he did not and merely
kept walking. Mercer also testified that she remarked to an officer who was present, “[I]s
my [back side] so wide that this man can’t get past me without touching me[?]”
Third, Mercer testified that a subordinate, Officer J. Faezell, showed her a bullet and
said, “I got a bullet with your name on it.” Fourth, Mercer testified that another
subordinate, Officer William Rodriguez, a large male, aggressively challenged her “on
doing [her] job” in front of inmates. Fifth, Mercer testified that a third subordinate, Officer
Donald Ford, bumped into her when he quickly removed a hoodie that he was wearing.
Mercer testified that she had ordered him to remove the hoodie because he was on duty and
out of uniform. Sixth, Mercer testified that Officer Ford flailed his arms at her when she told
him he was late for his shift. Seventh, Mercer testified that she heard a male co-worker,
Sergeant Wright, refer to “those bitches” in a conversation with other officers. Eighth,
Mercer testified that a female subordinate, Officer Reed, said “oh, bitch” to Mercer. Mercer
testified that she told Officer Reed: “[P]recious, we don’t joke like that. We don’t play like
that. I am not one of your friends. Do not ever refer to me like that again.”
Subsequently, Mercer brought an action in federal court against Cook County, the
Sheriff’s Office, her union (AFSCME Council 31—Local 3692), as well as Paleologos and
Pitts in their individual capacities. Mercer alleged gender-based and race-based harassment
and discrimination in violation of Title VII, sexual harassment in violation of the Equal
Protection clause, retaliation in violation of the First Amendment, and intentional infliction
No. 12-2894 Page 5
of emotional distress.6 She also alleged that her union had failed to represent her. Finally,
Mercer sought indemnification from Cook County pursuant to state law.
After Mercer conceded that her union should be dismissed from the action, the
remaining defendants moved for summary judgment. Mercer conceded that the defendants
were entitled to summary judgment with respect to a number of her claims, including her
race-based hostile work environment claim and First Amendment retaliation claim.
However, she opposed summary judgment on her harassment claim based on gender, her
discrimination claims based on gender and race, and her request for indemnification.7 The
district court granted summary judgment and dismissed Mercer’s action.8 Mercer appealed.
II. Discussion
On appeal, Mercer contends that the district court erred in granting the defendants
summary judgment on her gender-based harassment and discrimination claims and her
6
Mercer brought her Equal Protection and First Amendment claims via 42 U.S.C.
§ 1983.
7
In her opposition to summary judgment, Mercer referred to Title VII and Equal
Protection retaliation claims. However, her complaint appears to lack such claims; it asserts
only a First Amendment retaliation claim. The opinion disposing of the defendants’ motion
for summary judgment does not address Title VII or Equal Protection retaliation claims.
However, the district court dismissed Mercer’s entire action, and the opinion denying
Mercer’s motion for reconsideration states that the motion for summary judgment was
granted with respect to all of Mercer’s claims. Regardless, Mercer does not pursue her
retaliation claims on appeal, so we will not consider them. See Int’l Union of Operating
Eng’rs, Local 150, AFL-CIO v. Rabine, 161 F.3d 427, 432 (7th Cir. 1998) (“On appeal, [the
appellant] has abandoned both arguments . . . since arguments not raised in a brief are
waived.”).
8
Pursuant to the parties’ joint consent, the defendants’ motion for summary
judgment was resolved by Magistrate Judge Martin C. Ashman. After Judge Ashman’s
passing, Pamela Mercer’s motion for reconsideration was resolved by Magistrate Judge
Young B. Kim.
No. 12-2894 Page 6
indemnification claim.9 We review an order granting summary judgment de novo. Sow v.
Fortville Police Dep’t, 636 F.3d 293, 299 (7th Cir. 2011). And we construe all facts and
reasonable inferences in favor of the non-moving party. Id. at 300. Summary judgment is
only 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. Id.A. Hostile Work Environment
Mercer alleges that she was subjected to a hostile work environment at the
Department based on her gender. To establish a prima facie case on this claim, Mercer must
offer evidence that: “(1) her work environment was both objectively and subjectively
offensive; (2) the harassment complained of was based on her [gender]; (3) the conduct was
either severe or pervasive; and (4) there is a basis for employer liability.” Porter v. City of
Chicago, 700 F.3d 944, 955 (7th Cir. 2012) (internal quotation marks omitted). In determining
whether her work environment was “hostile,” we consider the totality of the circumstances
including such factors as the severity of the allegedly harassing conduct, its frequency,
whether it was physically threatening or humiliating or merely offensive, and whether it
unreasonably interfered with Mercer’s work performance. Id. at 955-56; see also Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Furthermore, an employer may not be held liable for
a hostile work environment created by coworkers if the employer promptly and adequately
responds to the harassment. Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990, 994 (7th Cir.
2011).
In support of her hostile work environment claim, Mercer relies upon the sexually
explicit graffiti as well as the eight other incidents recounted above—namely, (1) Pitts’
comment to her to “go play with yourself”; (2) the occasion when Paleologos bumped into
her backside; (3) Officer Faezell’s statement that he had a bullet with Mercer’s name on it;
(4) the occasion when Officers Rodriguez aggressively challenged her in front of inmates;
(5) the occasion when Officer Ford bumped into her when removing his hoodie; (6) the
occasion when Officer Ford flailed his arms at her; (7) Sergeant Wright’s reference to “those
bitches”; and (8) Officer Reed’s comment “oh, bitch.”10
9
At oral argument, Mercer’s counsel conceded that summary judgment was
appropriate with respect to Mercer’s discrimination claims based on race.
10
In her brief, Mercer states that she “began in March 2007 documenting staff
intimidation and insubordination, discrimination and harassment . . . .” In support of this
No. 12-2894 Page 7
We conclude that these incidents were not severe or pervasive enough to create a
hostile work environment. Paleologos and Pitts promptly removed the graffiti, conducted
an investigation that failed to locate witnesses or discover the perpetrator, and announced
at several roll calls that such behavior would not be tolerated and would result in discipline.
No additional sexually graphic incidents were reported after Paleologos and Pitts issued
these warnings. Thus, this incident cannot serve as a basis for a hostile work environment
claim against the defendants because the undisputed facts demonstrate that the defendants
promptly and adequately responded to the sexually explicit graffiti.11
Sergeant Wright’s statement (“those bitches”), Officer’s Reed’s comment (“oh,
bitch”), and Pitts’ comment (“go play with yourself”) were, in context, the kind of boorish
or offensive stray remarks that were “neither severe or pervasive enough to create an
objectively hostile work environment.” Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th
Cir. 2005); see, e.g., McPherson v. City of Waukegan, 379 F.3d 430, 439 (7th Cir. 2004) (affirming
summary judgment); Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir. 2002) (same);
cf. Passananti v. Cook Cnty., 689 F.3d 655, 664–70 (7th Cir. 2012) (reversing judgment as a
matter of law for employer); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807–08 (7th Cir.
2000) (reversing summary judgment for employer). Additionally, given that Officer Reed is
a woman, it is improbable that Officer Reed was expressing hostility based on Mercer’s
claim, she cites an interoffice memorandum, which she authored, that discusses a complaint
made against her by a subordinate officer. This memorandum addresses an incident in
which, Mercer alleges, the subordinate misused his radio and failed to perform certain job
duties. Because Mercer does not discuss this incident in her brief, we have not included it in
our discussion of Mercer’s evidence. See Rabine, 161 F.3d at 432. Even if she had, this
memorandum would not help her because nowhere in it is there any indication that the
conflict had anything to do with her gender.
11
Mercer contends that Paleologos and Pitts should have photographed the graffiti
before removing it, and that their failure to do so rendered their response inadequate.
However, in light of Paleologos and Pitts’ investigation and effective warnings, the fact that
Paleologos and Pitts did not photograph the graffiti before removing it is insufficient to
establish that their response was inadequate. See Porter v. Erie Foods Int’l, Inc., 576 F.3d 629,
637 (7th Cir. 2009) (“There is no question that a ‘stoppage of harassment shows
effectiveness . . . .’” (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir.
1998))); Sutherland, 632 F.3d at 995 (“To avoid liability, the employer must respond in a
manner reasonably likely to end the harassment.”).
No. 12-2894 Page 8
gender. See Yuknis v. First Student, Inc., 481 F.3d 552, 555 (7th Cir. 2007) (“Context may be
critical to determining the object of hostility.”). In fact, Mercer testified that she understood
Officer Reed’s comment to be a joke. Similarly, Mercer’s testimony that Pitts’ remark was
made during a “silly conversation” undermines any inference that the remark, though
certainly boorish and rude, was sufficiently severe to create a hostile work environment.
There is also nothing suggesting that the one occasion that Paleologos bumped into
Mercer was sexual in nature or based on her gender. Mercer’s testimony that she was
standing near a door that Paleologos was passing through suggests that the incident was
merely accidental—perhaps she was just in the way. But even if this incident were not
accidental, it would not constitute the kind of severe or pervasive conduct necessary to
create an objectively hostile work environment. See, e.g., Hilt-Dyson v. City of Chicago, 282
F.3d 456, 463–64 (7th Cir. 2002) (holding that the plaintiff’s allegations that her supervisor
twice rubbed her back and stared at her chest during a uniform inspection while telling her
to raise her arms and open her blazer were isolated incidents that, even when taken
together, did not create a sufficient inference of a hostile work environment); Adusumilli v.
City of Chicago, 164 F.3d 353, 361–62 (7th Cir. 1998) (holding that the plaintiff’s complaints of
teasing; comments about bananas, rubber bands, and low-neck tops; staring and attempts to
make eye contact; and four isolated incidents where a co-worker briefly touched her arm,
fingers, or buttocks did not constitute sexual harassment).
The remaining incidents identified by Mercer cannot establish a gender-based hostile
work environment because they either lack any connection to Mercer’s gender or are
insufficiently severe or pervasive. Nothing about Faezell’s comment, Rodriguez’s and
Fords’ aggressiveness, or Ford’s physical contact while removing his hoodie indicates that
any of this conduct was sexual in nature or based on Mercer’s gender. Indeed, Mercer’s
testimony about these incidents strongly suggests that the officers were angry with Mercer
because of her orders and disciplinary actions, and not because of her gender.
Therefore, the district court properly entered summary judgment on Mercer’s
gender-based hostile work environment claim.
B. Gender Discrimination
Mercer also contends that she was subjected to discrimination based on her gender.
Mercer proceeds under the indirect method derived from McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). To establish a prima facie case on this claim, Mercer must offer evidence
No. 12-2894 Page 9
“demonstrating that (1) she is a member of a protected class; (2) she met her employer’s
legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly
situated employees outside of the protected class received more favorable treatment.”
Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). If Mercer establishes a prima facie
case of discrimination, then her employer must articulate a legitimate, non-discriminatory
reason for the adverse employment action. Id. If her employer produces such a reason,
Mercer must then “submit evidence demonstrating that the employer’s explanation is a
pretext.” Id.The district court held that Mercer failed to establish her prima facie case because she
offered no evidence that she suffered an adverse employment action or that comparable
male employees received more favorable treatment. The district court also concluded that
Mercer could not show that the defendants’ explanation for moving her was a pretext for
discrimination.
Mercer argues that being reassigned constituted an adverse employment action. In
some circumstances, a transfer can be an adverse employment action. See Rhodes v. Illinois
Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004) (“[A]n adverse employment action is a
significant change in the claimant’s employment status such as . . . reassignment to a
position with significantly different job responsibilities . . . .”). However, a mere
transfer—without more, such as a reduction in pay or significantly diminished
responsibilities or working conditions—falls below the level of an adverse employment
action necessary to support a claim of discrimination or retaliation. See Washington v. Illinois
Dep’t of Revenue, 420 F.3d 658, 661 (7th Cir. 2005). Mercer concedes that her reassignment to
her prior division was not attended by any loss of salary or benefits. And she cites no
evidence that her reassignment was accompanied by substantially changed working
conditions. Thus, she cannot establish the third prong of her prima facie case.
Even if Mercer’s reassignment were an adverse employment action, the district court
correctly concluded that Mercer failed to identify similarly situated male employees who
received more favorable treatment, and failed to show that the defendants’ explanation for
reassigning her was a pretext for discrimination. On appeal, Mercer relies upon the fact that
none of the officers against whom she had leveled allegations had been reassigned. But
“[e]mployees typically are similarly situated if they had the same supervisor, were subject
to the same employment standards, and engaged in similar conduct.” Majors v. Gen. Elec. Co.,
12-2893, 2013 WL 1592072, at *8 (7th Cir. Apr. 16, 2013) (emphasis added). Here, Mercer
failed to identify a specific male officer who filed a complaint with the Internal Affairs
No. 12-2894 Page 10
Division (and at the same time had a pending complaint against him), and yet who was not
temporarily reassigned during the ensuing investigations.
Furthermore, Kaufmann, the Chief Investigator, explained to Mercer that she was
moved because she had complained that her work environment was hostile and the
Sheriff’s Office did not wish to keep her in a potentially hostile work environment. This is
certainly a legitimate justification for moving her. Cf. Rizzo v. Sheahan, 266 F.3d 705, 716–17
(7th Cir. 2001) (indicating that a temporary transfer of an employee during an investigation
is acceptable). Mercer offers no evidence that this explanation was a pretext for
discrimination. Moreover, even if the officers about whom Mercer had complained were
similarly situated, her complaint named ten officers as well as “various other parties named
or not named in the attached documentation.” Kaufmann informed Mercer that it would
not be practicable to reassign so many officers—nearly half of the entire shift. Mercer offers
no evidence contradicting this reasonable explanation.
Therefore, the district court properly entered summary judgment on Mercer’s
gender-discrimination claim premised on Title VII. A fortiori, Mercer’s discrimination claim
premised on the Equal Protection clause also fails. See Forrester v. White, 846 F.2d 29, 32 (7th
Cir. 1988) (“Since [the plaintiff] did not satisfy the lower burden of proof required under
Title VII, the trial judge axiomatically concluded that she failed to satisfy the tougher
burden of proof required under the Equal Protection clause.”).12
III. Conclusion
Mercer failed to come forward with evidence that she was subjected to severe or
pervasive harassment based on her sex, or that the defendants turned a blind eye to such
harassment. Consequently, she cannot state a Title VII gender-based hostile work
environment claim against the defendants. Mercer also failed to present sufficient evidence
that her reassignment was an adverse employment action, that comparable male employees
were not similarly reassigned, or that the defendants’ explanation for reassigning Mercer
was a pretext for sex discrimination. Thus, she cannot establish a gender-discrimination
claim under either Title VII or the Equal Protection clause. Therefore, we AFFIRM the
district court’s entry of summary judgment in favor of the defendants.
12
Because Mercer’s substantive claims fail, her indemnification claim also must fail.