Phelan, Laura v. Cook County ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3991
LAURA PHELAN,
Plaintiff-Appellant,
v.
COOK COUNTY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 3638—George M. Marovich, Judge.
____________
ARGUED SEPTEMBER 21, 2005—DECIDED SEPTEMBER 18, 2006
____________
Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This case examines whether a
Title VII plaintiff who is wrongly terminated should be
foreclosed from pursuing her claims where her employer
eventually reinstates her with back pay. Plaintiff Laura
Phelan brought this suit against her employer and eight co-
workers and supervisors under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C.
§ 1983, alleging sexual harassment, gender discrimination,
race discrimination, and retaliation. Phelan also brought
state law claims of assault, battery and intentional inflic-
tion of emotional distress against three of her co-workers.
The district court granted summary judgment in favor of
the defendants on all of the federal claims, and then
2 No. 04-3991
declined to exercise supplemental jurisdiction over the state
claims. Primarily because the district court erroneously
found that Phelan was not subject to an adverse employ-
ment action, we reverse the grant of summary judgment
with regard to all but one of Phelan’s Title VII claims and
remand for further proceedings consistent with this opinion.
We affirm the district court’s grant of summary judgment
on Phelan’s Section 1983 Claims.
I. BACKGROUND
Laura Phelan began working as a mechanical assistant in
the boiler room (also known as the “Powerhouse”) of Cook
County Hospital on March 1, 1999. The boiler room is part
of Cook County’s Buildings and Grounds Department. Cook
County did not provide Phelan, a Caucasian woman, with
either an orientation packet or a copy of the hospital’s
sexual harassment policy at the start of her employment.
Phelan’s co-workers in the boiler room began subjecting
her to various abusive behaviors immediately after she
began working there. She was the target of sexually
offensive comments and solicitations, sexually offensive
touching and displays of pornography. On multiple occa-
sions, Phelan’s co-workers told her that, in order to sur-
vive in the department, she would need to perform sexual
acts.
On April 15, 1999, after Phelan complained to her
supervisor, Jack Callaghan, about this behavior, Callaghan
contacted Lucia Kelly-Freeman in Cook County’s Depart-
ment of Human Resources. Kelly-Freeman was respon-
sible for investigating complaints of sexual harassment. On
April 20, 1999, Phelan and Kelly-Freeman met to discuss
Phelan’s complaints. Phelan informed Kelly-Freeman that
she had been the target of sexually abusive actions. Kelly-
Freeman instructed Phelan to create a log of the incidents
and to report back to her. However, Phelan did not immedi-
No. 04-3991 3
ately do so because Callaghan told her that she should not
have further contact with Kelly-Freeman.
On July 14, 1999, Phelan again met with Kelly-Freeman
to discuss the harassment. Kelly-Freeman had taken no
action with regard to Phelan’s case since the first meet-
ing, stating that she had been waiting for Phelan to report
back to her with further details. At this second meeting,
Phelan showed Kelly-Freeman a bruise on her thigh, which
she said was the result of a July 9, 1999 incident in which
two of her co-workers physically assaulted her. Kelly-
Freeman notified her supervisor of the incident
and directed Phelan to file an incident report and receive
medical treatment. Phelan subsequently met with members
of the Cook County Hospital Police Department and the
Chicago Police Department. She identified co-workers
Ronald Jotzat and John Hussak in a photo-lineup prepared
by the Cook County Hospital Police and signed criminal
complaints against them. Phelan was notified by the
Cook County Hospital police that she needed to file a report
with the Chicago Police Department to further the prosecu-
tion of her case, but, after speaking with the CPD officers,
she did not file a report. The two hospital employees who
assaulted Phelan were suspended without pay while the
matter was investigated. Phelan was directed not to report
back to work until a suitable resolution was determined and
she was notified that she would be paid while the hospital
sought to resolve the situation.
On August 5, 1999, Phelan met with Claudette Giles, one
of the hospital’s human resources supervisors, and Paris
Partee, an assistant administrator at the hospital who was
second in command in the human resources department. In
the course of this meeting, Giles and Partee told her that
she could either accept a transfer to the hospital’s CORE
Center, where she would work as a medical assistant, or
she would be terminated. The CORE Center was also part
of the Buildings and Grounds Department. Phelan claims
4 No. 04-3991
that the two women, who are African American, made
derogatory references to her race and gender during this
meeting, including referring to her as a “stupid white
woman.” Phelan ultimately signed a memorandum acknowl-
edging her acceptance of a transfer to the CORE Center.
Phelan’s problems with co-workers continued after her
transfer to the CORE Center. At one point, one of Phelan’s
CORE Center supervisors, Ronald Silva,1 placed Phelan in a
headlock. Phelan states that she informed Callaghan of this
incident and that he stated he would address it. Callaghan
denies making these statements. The next day, Phelan
encountered Silva in an elevator, and he again put Phelan
in a headlock. One of Phelan’s supervisors at the CORE
Center, Chuck Gunther, witnessed the second attack and
forced Silva to remove Phelan from the headlock. Employ-
ees at the CORE Center also subjected Phelan to gender-
related verbal abuse and other offensive conduct. Phelan
reported these incidents to the human resources depart-
ment, but she did not file a formal complaint.
In July of 2000, Phelan did not report for work and called
in sick. The reason for her non-attendance was distress over
the treatment she had received from her co-workers and the
inadequate response from human resources and manage-
ment. She began seeing a psychiatrist, who diagnosed her
as suffering from major depression and post-traumatic
stress disorder.
As a result of these psychological and emotional problems,
in August of 2000, Phelan applied for a medical leave of
1
Phelan’s appellate brief repeatedly refers to Silva as a “supervi-
sor.” Appellees do not contest this labeling in their responsive
brief, and Silva’s deposition testimony seems to support Phelan’s
description, at least in the generic sense of the word “super-
visor.” See Deposition of Ronald Silva (Silva Dep.) at 13. We
address the question of whether any of Phelan’s harassers were
supervisors for the purposes of Title VII later in this opinion.
No. 04-3991 5
absence. Cook County denied the request. On September 20,
2000, Callaghan sent Phelan a letter notifying her of an
impending pre-disciplinary hearing to determine whether
Phelan’s absence from work necessitated her termination.
On October 11, 2000, after Phelan had been absent from
work for 58 days, Cook County held the hearing, which
Phelan attended. After being selected by Callaghan, Partee
acted as the hearing officer. At the conclusion of the
hearing, Partee concluded that Phelan should be termi-
nated, and Cook County terminated Phelan’s employment.
Phelan later appealed the result of the hearing.
On February 7, 2001, Phelan filed a Charge of Discrimi-
nation with the Equal Employment Opportunity Commis-
sion (EEOC) and the Illinois Department of Human Rights.
On February 9, 2001, Cook County reversed its decision to
terminate Phelan, at which point Phelan was reinstated to
her job at the CORE Center and awarded back pay. On
April 25, 2001, Phelan received a notice of right to sue on
the basis of her EEOC Charge. Phelan filed her Complaint
in the instant case on May 17, 2001.
After discovery was completed, the district court granted
the defendants’ motion for summary judgment as to the
federal claims, and declined to exercise supplemental
jurisdiction over the remaining state law claims. This
appeal followed.
II. ANALYSIS
A. Standard of Review
Our review of the district court’s grant of summary
judgment is de novo, and we must construe all facts and
reasonable inferences in favor of Phelan. See Telemark Dev.
Group, Inc. v. Mengelt, 313 F.3d 972, 976 (7th Cir. 2002).
Summary judgment is properly granted when “the plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show that
6 No. 04-3991
there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
B. Statute of Limitations
The defendants first argue that Phelan’s claims are
barred by the statute of limitations because she failed to
timely file her EEOC Charge, and because her complaint
was filed too late for her to pursue her Section 1983 claims.
We have held that “the scope of the subsequent judicial
proceedings is limited by the nature of the charges filed
with the EEOC.” Rush v. McDonald’s Corp, 966 F.2d 1104,
1110 (7th Cir. 1992). However, in Rush, we also observed
that “the goals behind the requirement of prior resort to
administrative relief would be frustrated if the filing of a
general charge with the EEOC would open up the possibil-
ity of judicial challenges to any related conduct that took
place in connection with the employment relationship.” See
id. Here, both of the defendants’ statute of limitations
arguments fail as they are predicated upon the defendants’
incorrect assertion that Phelan’s EEOC Charge and Section
1983 claims refer only to incidents alleged to have occurred
at the Powerhouse and not in the CORE Center.
Nothing in the EEOC Charge or the Complaint’s Section
1983 paragraphs limits Phelan’s allegations to the Power-
house; the Complaint references “gender discrimination
within the Buildings and Grounds Department of the
Hospital.” Complaint ¶ 23. It is undisputed that both the
Powerhouse and the CORE Center are within the Buildings
and Grounds Department. The EEOC Charge references
discriminatory actions taken up until and including her
termination. See EEOC Charge at 12 (“As a direct and
proximate result of the Respondents’ gender discrimination,
sexual harassment, racial discrimination, and retaliation
No. 04-3991 7
against Phelan and the continued complaints she made in
connection with said conduct, Phelan was terminated from
her position at Cook County on October 11, 2000.”). The
Complaint explicitly refers to incidents that occurred after
the transfer to the CORE Center. See Complaint ¶ 30 (“In
July 2000, Phelan was put into a headlock by Defendant
Silva. In July 2000, Phelan was cornered in an elevator by
Defendant Silva who was attempting to physically choke
Phelan with his hands.”); Complaint ¶ 46 (“The Defendants
retaliated against the Plaintiff by denying her medical leave
of absence and by terminating the Plaintiff’s employment
on October 11, 2000.”). The EEOC Charge also specifically
refers to the actions taken by Silva in July of 2000. See
EEOC Charge at 9 (“Phelan was put into a head-lock by a
male worker”). Thus, the defendants’ argument that “[h]ere,
like Phelan’s Title VII Claims, all of Phelan’s Section 1983
Claims are pled to involve only those alleged discriminatory
actions that occurred while she worked at the Powerhouse
and before her transfer to the CORE Center on August 5,
1999,” is invalid. See Appellee’s Br. at 21. Since it is clear
that the allegations of the EEOC Charge and the Complaint
are sufficient to defeat the defendants’ statute of limitations
arguments, we need not address Phelan’s argument that
the defendants waived these arguments by failing to raise
them in either the motion to dismiss or the motion for
summary judgment.
C. Gender Discrimination
Phelan’s Title VII gender discrimination claim should
have gone to a jury. A Title VII gender discrimination claim
can survive summary judgment if the plaintiff presents
either direct or circumstantial evidence of discrimination
(the “direct method”) or indirect evidence that satisfies the
three-part, burden shifting test outlined in the Supreme
Court’s decision in McDonnell Douglas Corp. v. Green, 411
8 No. 04-3991
U.S. 792 (1973) (“the indirect method”). See Durkin v. City
of Chicago, 341 F.3d 606, 613 (7th Cir. 2003).
1. Direct Method of Proof
Phelan’s claim should have survived summary judg-
ment because, relying on the direct method of proof, she
provided sufficient circumstantial evidence of discrimina-
tion to meet the requirements for a Title VII claim.2 While
the typical direct method situation is an admission of
discriminatory animus by the employer, we have stated that
“[a] plaintiff can also prevail under the direct method of
proof by constructing a convincing mosaic of circumstantial
evidence that allows a jury to infer intentional discrimina-
tion by the decisionmaker.” Rhodes v. Ill. Dep’t of Transp.,
359 F.3d 498, 504 (7th Cir. 2004) (internal citation and
quotation marks omitted). For Phelan to defeat summary
judgment in this manner, “[a]ll that is required is evidence
from which a rational trier of fact could reasonably infer
that the defendant had fired the plaintiff because the latter
was a member of a protected class.” Troupe v. May Dep’t
Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). However,
“[w]hether the plaintiff proceeds by the direct or indirect
method of proof, he must show a materially adverse employ-
ment action.” Rhodes, 359 F.3d at 504. The defendants
argue that Phelan failed to demonstrate adverse employ-
ment action. We disagree.
Phelan’s four-month termination, beginning on October
11, 2000, constituted an adverse employment action. That
Phelan was reinstated to her position in February of
2001 does not negate the fact that her termination consti-
2
Because Phelan produced sufficient evidence under the direct
method, we need not address whether she should have also
prevailed under the indirect method.
No. 04-3991 9
tuted an adverse employment action. It is undisputed that
Phelan was terminated in October of 2000, and, were we to
disregard her subsequent reinstatement, this termination
would unquestionably constitute an adverse employment
action, as a member of the class of “[c]ases in which the
employee’s compensation, fringe benefits, or other financial
terms of employment are diminished.” See Herrnreiter v.
Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002); see
also Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir.
2005) (termination was adverse employment action); Lang
v. Illinois Dep’t of Children and Family Servs., 361 F.3d
416, 419 (7th Cir. 2004) (“The parties do not dispute that
Lang engaged in protected activity by filing his charge with
the EEOC, or that his termination constituted an adverse
employment action.”). The only question is whether the fact
that Cook County later reinstated Phelan and awarded her
back pay somehow negates her right to pursue her Title VII
claims. We believe that it does not, since the only purpose
of the adverse employment action requirement is to provide
a reasonable limiting principle for the type of conduct
actionable under the statute. See Hunt v. City of Markham,
Ill., 219 F.3d 649, 653 (7th Cir. 2000) (“The idea behind
requiring proof of an adverse employment action is simply
that a statute which forbids employment discrimination is
not intended to reach every bigoted act or gesture that a
worker might encounter in the workplace.”). Consistent
with Title VII’s goal of deterring discrimination, we decline
to endorse a rule that would allow employers to escape
liability by merely reinstating the aggrieved employee
months after termination, whenever it becomes clear that
the employee intends to pursue her claims in court. Such a
rule could create an unintended economic incentive for
employers to reinstate an employee who files a discrimina-
tion suit as means to avoid Title VII penalties whenever the
costs of reinstating the employee are lower than the em-
ployer’s exposure in an Title VII suit. As the Supreme Court
has explicitly stated, the “primary objective” of Title VII “is
10 No. 04-3991
not to provide redress but to avoid harm.” Faragher v. City
of Boca Raton, 524 U.S. 775, 805-06 (1998).
We find persuasive the reasoning of the Second and Sixth
Circuits, which have concluded that the reinstatement of an
employee after a lengthy suspension from work does not
prevent the employee from pursuing Title VII claims, even
where back pay was awarded. See White v. Burlington
Northern & Santa Fe R. Co., 364 F.3d 789, 791 (6th Cir.
2004) (“a thirty-seven day suspension without pay consti-
tutes an adverse employment action regardless of whether
the suspension is followed by a reinstatement with back
pay.”), aff’d, 548 U.S. ___, 126 S. Ct. 2045 (2006) (No. 05-
259);3 Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d
208, 223 (2d Cir. 2001) (finding that one-week “suspension
without pay is sufficient to constitute an adverse employ-
ment action” even where plaintiff was later reimbursed). If
a suspension that ends in reinstatement and reimburse-
ment can constitute an adverse employment action, it
follows that reinstatement and reimbursement do not bar
a finding of adverse employment action where there was an
actual termination, which is a more serious action than
suspension. As our sister circuit concluded in White, a rule
3
The Supreme Court recently rendered its opinion in White,
affirming the Sixth Circuit and defining the appropriate test
for Title VII retaliation claims. While the Sixth Circuit’s dis-
cussion of “adverse employment action” addressed this concept for
the purposes of both discrimination and retaliation claims, the
Supreme Court specifically limited its analysis to retaliation
claims, drawing a distinction between the “materially adverse”
action required to sustain a retaliation claim and the action
required to sustain a discrimination claim. See White, 126 S. Ct.
at 2414-2416. Nevertheless, our conclusion that Phelan suffered
an adverse employment action is not undermined by the Court’s
conclusion that the Title VII retaliation provision protects an
employee from a wider range of conduct than the discrimination
provision does.
No. 04-3991 11
that prevented the finding of an adverse employment action
where the terminating or suspending employer later
reinstated the employee would “allow[ ] an employer
unilaterally to cut off the employee’s claims for other
damages, which have been explicitly authorized by Title VII
since the Civil Rights Act of 1991, such as interest on the
back pay, attorney’s fees, emotional suffering, and punitive
damages.” See White, 364 F.3d at 802 (citing 42 U.S.C.
§§ 1981a(b); 2000e-5(g), (k)). Phelan’s time away from work
was longer than the 37-day suspension in White or the one-
week suspension in Lovejoy—her termination lasted for four
months. This was certainly enough time for Phelan to be
measurably injured by the termination, both financially and
emotionally, regardless of whether back pay was later
awarded.
Having addressed this prerequisite, we find that a
reasonable trier of fact, examining the mosaic of evidence in
this case, could infer that Phelan’s termination was moti-
vated by intentional discrimination. This court has observed
that there are three means by which a plaintiff can defeat
summary judgment using circumstantial evidence under
the direct method. See Rudin v. Lincoln Land Cmty. Coll.,
420 F.3d 712, 720-21 (7th Cir. 2005) (citing Troupe, 20 F.3d
at 726). The first is through the demonstration of “suspi-
cious timing, ambiguous statements oral or written,
behavior toward or comments directed at other employees
in the protected group, and other bits and pieces from which
an inference of discriminatory intent might be drawn.” Id.
The second is through evidence that a similarly situated
employee received more favorable treatment, and the third
is through “evidence that the plaintiff was qualified for the
job in question but passed over in favor of (or replaced by)
a person not having the forbidden characteristic and that
the employer’s stated reason for the difference in treatment
is unworthy of belief.” Id.
12 No. 04-3991
Phelan has produced an abundant body of evidence
sufficient to establish a question of material fact under the
first circumstantial evidence method described in Rudin;
the record contains numerous gender-related comments
from supervisors and co-workers. There is undisputed
evidence that Phelan was physically assaulted by
multiple employees, including one of her supervisors, and
evidence that their motivations were gender-related.
In Volovsek v. Wisconsin Department of Agriculture,
Trade, and Consumer Protection, 344 F.3d 680, 689-90 (7th
Cir. 2003), we concluded that the plaintiff had produced
sufficient evidence to reach the jury under the direct
method where she overheard her supervisors speaking
about “keeping them barefoot and pregnant” shortly
before she was denied a promotion. We observed that the
temporal proximity of the gender-related comment to the
alleged act of discrimination created an issue of mate-
rial fact. See id.
Here, Phelan has introduced evidence that she was body-
slammed into her desk by two men, repeatedly placed in
a headlock by another, and instructed repeatedly that
her workplace was “no place for a woman.” There is also
evidence that when Phelan complained on multiple occa-
sions to her supervisors and to Human Resources, she was
rebuffed and even insulted. Phelan testified in her deposi-
tion that Callaghan instructed her to stop contact-
ing Human Resources regarding the harassment from her
co-workers; a reasonable factfinder could construe this
as an attempt by Phelan’s direct supervisor to prevent
Phelan’s harassment from coming to light. Callaghan also
told Phelan that her problems stemmed from the fact
that she was trying to work “in a man’s world,” and stated
that “[i]f you leave right now, it will make a better life for
you.” To the extent that the discriminatory nature of either
of these statements is ambiguous, we note that “the task of
No. 04-3991 13
disambiguating ambiguous utterances is for trial, not for
summary judgment.” See Shager v. Upjohn Co., 913 F.2d
398, 402 (7th Cir. 1990) (concluding that Title VII plaintiff
could defeat summary judgment under direct method with
ambiguous, potentially discriminatory comments made by
supervisor). Furthermore, Phelan testified that Human
Resources staff members threatened to orchestrate her
termination if she continued to complain about her gender-
related mistreatment. The importance of these facts is
underscored by Callaghan’s role in selecting Partee as the
hearing officer for Phelan’s termination hearing. Partee
made discriminatory comments to Phelan before ultimately
acting as the person who would conclude she should be
terminated. The suspicious timing in this case arises from
the fact that Phelan was terminated shortly after filing a
leave request that was arguably necessitated by the verbal
and physical abuse she had suffered. Cook County was
aware of the violence and verbal abuse Phelan had experi-
enced, and yet it undisputedly (and inexplicably) failed
to process her request for medical leave. The record also
supports the conclusion that Phelan’s termination was
unjustified—Cook County’s internal review later found that
Phelan’s leave request was appropriate and that she should
not have been terminated. We emphasize that Phelan’s
allegations and the evidence she has introduced opposing
summary judgment are not established facts. Only after a
trial can it be determined what did and did not occur. But
a reasonable jury could have considered all of this evidence
and concluded that the decision to terminate Phelan was
motivated by her gender. The district court thus erred in
granting summary judgment.
D. Hostile Work Environment
Phelan also contends that the district court erred in
granting summary judgment on her Title VII hostile work
14 No. 04-3991
environment claim. Title VII prohibits “discriminat[ion]
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). One of the implications of
this provision is that employers can become liable if
an employee’s work environment is discriminatorily
hostile or abusive. See Velez v. City of Chicago, 442 F.3d
1043, 1047 (7th Cir. 2006). Cook County “is liable for a
hostile work environment claim if the plaintiff’s super-
visor created the hostile work environment, or if a
co-worker created the hostile work environment and the
employer was negligent either in discovering or remedying
the harassment.” See id. In order to succeed on her hostile
work environment claim, Phelan was required to show that:
(1) she was subjected to unwelcome sexual harass-
ment in the form of sexual advances, requests for
sexual favors or other verbal or physical conduct of
a sexual nature; (2) the harassment was based on
her sex; (3) the sexual harassment had the effect of
unreasonably interfering with her work perfor-
mance in creating an intimidating, hostile, or
offensive working environment that seriously
affected her psychological well-being; and (4) a
basis for employer liability exists. Durkin, 341 F.3d
at 611. The only question in this appeal relates to
the fourth prong of the test— whether a “basis for
employer liability exists.”
1. Strict Liability for Sexual Harassment
“Harassment by a supervisor of the plaintiff triggers strict
liability, subject to the possibility of an affirmative defense
in the event the plaintiff suffered no tangible employment
action.” Rhodes, 359 F.3d at 505. As discussed above,
Phelan suffered an adverse employment action, so the
No. 04-3991 15
question with regard to strict liability is whether Phelan
introduced sufficient evidence that at least one of her
harassers was her supervisor for the purposes of Title VII.
Phelan cannot demonstrate the existence of an issue of
material fact with “evidence that anyone with managerial
authority engaged in sexual harassment.” See id. (emphasis
added). Rather, Phelan must demonstrate that “that the
harasser served specifically as her supervisor.” Id. The term
“supervisor” has special meaning within the context of a
Title VII lawsuit. “A supervisor is someone with the power
to directly affect the terms and conditions of the plaintiff’s
employment.” Id. (emphasis in original).
In Rhodes, we concluded that the plaintiff could not
demonstrate that her alleged harassers were Title VII
supervisors where the harassers “managed Rhodes’ work
assignments, investigated complaints and disputes, and
made recommendations concerning sanctions for rule
violations to the Department Administrative Services
Manager.” Id. at 506. Neither of the alleged harassers “had
authority to make any decisions affecting the terms and
conditions of Rhodes’ employment, i.e., the authority to hire,
fire, promote, demote, discipline or transfer Rhodes.” Id.
The situation is different here. Phelan argues that
either Callaghan or Partee, both alleged harassers, con-
stituted a Title VII supervisor.4 Callaghan supervised all of
Phelan’s work at Cook County. He testified at his deposition
4
Phelan’s brief refers to Silva as a “supervisor” and Cook County
has failed to contest the supervisory status of Silva, the most
egregious harasser. However, Phelan has not pressed the inquiry
into Silva’s Title VII supervisory status in her briefs, and the
record is insufficient for us to conclude that he is a supervisor
for Title VII purposes. We therefore do not consider him in our
assessment of whether Cook County should be subject to
strict liability.
16 No. 04-3991
that he was directly responsible for Phelan’s performance
evaluations. He held the power to call for a disciplinary
hearing, a power which he exercised in Phelan’s situation.
There is evidence that Callaghan was at least partially
responsible for the selection of the hearing officer. Ulti-
mately, because of Cook County’s system for handling
terminations, Callaghan did not have the final say as to
whether Phelan was terminated, but we do not believe that
he should avoid being a supervisor for Title VII purposes
simply because Cook County employed a final administra-
tive step involving the Human Resources Department. This
is particularly true here since Callaghan triggered the
termination hearing, selected the hearing officer, and
provided information critical to the termination decision.
Partee might also be considered a Title VII supervisor
since, as a Human Resources Officer and as Phelan’s
hearing officer, she appears to have had what amounts
to ultimate authority to fire Phelan. See Rhodes, 359 F.3d
at 506. Phelan testified that Partee was a direct participant
in her sexual harassment. Partee’s role as a Human
Resources employee does not, however, fit the typical
mold of a Title VII supervisor. But Cook County’s system
seems to divest any one individual of all of the powers
that our cases have traditionally associated with the Title
VII supervisor. It would be an odd result if an employer
could escape the possibility of strict liability for super-
visor harassment simply by scattering supervisory re-
sponsibilities amongst a number of individuals, creating
a Title VII supervisory Hydra. Indeed, in the context of
Title VII discriminatory termination suits we have con-
cluded that employers are liable where a supervisor uses a
human resources committee as his “cat’s paw”—the conduit
of his prejudice. Cf. Shager, 913 F.2d 398, 405 (7th Cir.
1990) (“A committee of this sort, even if it is not
just a liability shield invented by lawyers, is apt to defer to
the judgment of the man on the spot.”). We think that
No. 04-3991 17
between Callaghan and Partee all of the supervisory
authority necessary to invoke strict liability likely existed.
There is evidence that both of these individuals were
involved in Phelan’s sexual harassment. Indeed, they
were not the worst offenders, but where supervisors par-
ticipate in the creation of a web of clear sexual harassment,
the court need not sort out how many of the strands are
attributable to the supervisors.
Ultimately, we leave for another day the question of
whether strict liability is appropriate in this situation. The
record is insufficiently developed for a complete assessment
of Callaghan and Partee’s supervisory roles. And as dis-
cussed below, Phelan has produced sufficient evidence to
defeat summary judgment under a negligence theory.
2. Negligent Liability for Sexual Harassment
Phelan’s sexual harassment claims should have sur-
vived summary judgment under a negligence theory. Under
such a theory, Phelan can defeat summary judgment by
introducing “competent evidence that [her employer] was
negligent either in discovering or remedying the harass-
ment directed at her.” Rhodes, 359 F.3d at 506.
With regard to remedying the harassment, the district
court ruled that Phelan’s hostile work environment claim
could not succeed because “[t]he evidence presented
shows that Cook County upheld its legal duty to investigate
and take remedial actions when presented with allegations
of sexual harassment.” Phelan v. Cook County, et al., No.
01-C-3638, 2004 WL 2390084, at *6 (N.D. Ill. Oct. 22, 2004).
The court concluded that Phelan’s failure to file a formal
complaint regarding the harassment she experienced at the
CORE Center negated the defendants’ burden to demon-
strate that it had taken appropriate remedial measures. In
arriving at this conclusion, the court misapplied the
Supreme Court’s ruling in Faragher, which dictates that a
18 No. 04-3991
hostile work environment defendant can raise an affirma-
tive defense when no tangible employment action is taken.
Faragher, 524 U.S. at 807. “The defense comprises two
necessary elements: (a) that the employer exercised reason-
able care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to
avoid harm otherwise.” Id.
We find that the district court erred in applying the
Faragher defense here because, as discussed above,
Phelan’s termination constituted an adverse employment
action. See id. at 808 (“No affirmative defense is available,
however, when the supervisor’s harassment culminates in a
tangible employment action, such as discharge, demotion,
or undesirable reassignment.”).5 Nevertheless, the defen-
dants argue that the harassment in the Powerhouse and the
harassment in the CORE Center represent two distinct sets
of events, one of which was adequately remedied (by the
transfer to the CORE Center). As to the harassment that
occurred after the transfer to the CORE Center, defendants
argue that Phelan has not produced sufficient evidence to
present a question of material fact as to whether Cook
County was negligent in discovering this harassment.
First, we cannot accept defendants’ argument that we
should focus only on the harassment that took place after
5
In this circuit, we have generally used the terms “adverse
employment action” and “tangible employment action” inter-
changeably. See, e.g., Herrnreiter, 315 F.3d at 744 (“The cases
paraphrase this either as ‘a tangible employment action,’ . . . or as
a ‘materially adverse employment action’); but see Lutkewitte v.
Gonzales, 436 F.3d 238, 262 (D.C. Cir. 2006) (discussing conflict
among the circuits as to whether these terms are interchange-
able). This opinion does not draw a distinction between the two
terms.
No. 04-3991 19
Phelan’s transfer to the CORE Center. The district
court observed that “Cook County, for the purpose of sum-
mary judgment, does not deny that Phelan was sexually
harassed in her original assignment. However, Cook County
contends that it took remedial actions by removing Phelan
from the original hostile work environment and that it did
not have sufficient notice of the recent incidents of sexual
harassment.” Phelan, 2004 WL 2390084, at *4. After
making this observation, the district court went on to assess
whether the transfer to the CORE Center constituted an
adverse employment action, and then, finding no adverse
employment action, only examined the defendants’ activi-
ties at the CORE Center.
The transfer to the CORE Center did not make irrelevant
the harassment that occurred in the boiler room. The
question regarding remedial steps taken by Cook County is
whether it took steps to stop the harassing activity as
a whole; the transfer to the CORE Center is simply one
measure taken by the defendants in an arguable attempt to
stop the harassment. The district court split the hostile
work environment issue into two inquiries, and then
concluded that the inquiry regarding the boiler room
harassment was sufficiently answered by the fact that Cook
County transferred Phelan to the CORE Center. Phelan
presented substantial evidence that she was subjected to
harassing language and physical contact in the boiler room.
A question of fact remained as to whether the transfer to
the CORE Center constituted a sufficient remedial mea-
sure, particularly since there was substantial evidence that
the harassment continued in the CORE Center.
Even looking at Phelan’s time at the CORE Center in
a vacuum, there is sufficient evidence for Phelan’s hostile
work environment claim to survive summary judgment.
Phelan produced evidence that Silva had repeatedly
placed her in a headlock, as well as evidence that he, along
20 No. 04-3991
with other co-workers, had subjected her to extensive,
gender-related, verbal abuse, including statements that she
needed to perform various sexual acts to appease her co-
workers. The record also contains evidence that Phelan
complained about this abuse to her superiors to no avail. All
of this goes far beyond the situations in other cases
in which we have concluded that the plaintiff produced
sufficient evidence to defeat summary judgment. See, e.g.,
Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir.
2000) (reversing grant of summary judgment where plaintiff ’s
co-worker forcibly kissed her and attempted to remove her
bra).
In granting summary judgment for defendants, the
district court relied exclusively on the fact that Phelan did
not file a formal complaint after the events in the CORE
Center. We find, however, that Phelan was not required
to file a formal complaint regarding the harassment in
the CORE Center. It is undisputed that Phelan filed a
formal complaint regarding the harassment that she
experienced in the boiler room, and Phelan offered evidence
that, after the problem was not solved by her transfer to the
CORE Center, she verbally complained to her supervisors
and to Cook County’s Human Resources Department.
This is a very different situation from that of the plaintiff
in Durkin, cited by the district court, where we stated “[a]n
employer is not liable for co-employee sexual harassment
when a mechanism to report the harassment exists, but the
victim fails to utilize it.” Durkin, 341 F.3d at 612-13. In
Durkin, the plaintiff had made no attempt to utilize the
City’s system for handling complaints of sexual harassment,
which would have required her to simply make a verbal
complaint to her homeroom instructor (the plaintiff was a
Chicago Police Department trainee officer). Id. In that case,
the plaintiff’s verbal complaints to others within the
Department were too vague to put the City on notice, but
No. 04-3991 21
we noted that “there could be instances where this approach
is sufficient to put an employer on notice,” even where the
verbal complaints did not follow the letter of the harass-
ment policy. Id. Phelan’s situation is precisely the instance
we alluded to in Durkin, where complaints that do not
technically comply with the company’s internal procedure
are nonetheless sufficient—Cook County cannot reasonably
claim that it did not have sufficient notice of Phelan’s
harassment where she continually complained of physical
and verbal abuse in both of her work stations and various
employees were witness to such harassment.6
Because an issue of material fact remains on the question
of Cook County’s negligence in discovering and remedying
Phelan’s co-worker harassment, we reverse the grant of
summary judgment on Phelan’s hostile work environment
claim.
E. Race Discrimination
We affirm the district court’s grant of summary judgment
in favor of the defendants on Phelan’s Title VII race
discrimination claim. Phelan’s race discrimination claim
is entirely based on her allegations that Partee and Giles
made offensive references to her race during the meeting
which culminated in her transfer to the CORE Center.
Specifically, Phelan alleges that Partee and Giles referred
to her as a “stupid white woman” during the meeting in
which her CORE Center transfer was finalized. These
statements are localized around the CORE Center transfer,
6
This point is underscored by the district court’s recitation of the
facts in its opinion granting summary judgment, where the court
stated that, after Phelan had been transferred to the CORE
Center, “[a]t one point, Callaghan called HR and informed
Broussard that Phelan had been crying because the men were
yelling at her.” Phelan, 2004 WL 2390084, at *2.
22 No. 04-3991
and Phelan based her opposition to the motion for summary
judgment on the argument that these statements are direct
evidence of discriminatory animus in the transfer decision.
Because Phelan has not established, and indeed does not
continue to argue on appeal, that the transfer to the CORE
Center constituted an actionable adverse employment
action, summary judgment was appropriate. The state-
ments made by Partee and Giles are temporally discon-
nected from the broader web of sex discrimination that
creates a material question of fact with regard to Phelan’s
gender discrimination claim, and thus cannot be rationally
connected to the adverse employment action in this
case—Phelan’s termination.
F. Retaliation—Title VII
Phelan also argues that the district court erred in grant-
ing summary judgment in favor of the defendants on her
Title VII retaliation claim. We agree. The Supreme Court
recently addressed Title VII’s retaliation provision and
concluded that the range of conduct prohibited under this
provision is broader than Title VII’s discrimination provi-
sion. See White, 126 S. Ct. at 2414. The Court held that in
order to sustain a claim of retaliation in violation of Title
VII, “a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse.”
Id. at 2415. Pursuant to White, Phelan was protected from
any “materially adverse” action on the part of her employer
designed to deter Phelan from engaging in protected
activity. See id. But we have already explained that
Phelan’s termination was actionable under the narrower
discrimination provision of Title VII. The question, then,
with regard to her Title VII retaliation claim, was whether
Phelan had produced sufficient evidence to defeat summary
judgment on the question of retaliatory motive. The district
court applied the wrong standard in concluding that Phelan
No. 04-3991 23
had not established a causal link between her complaints of
sexual harassment in July and August 1999 and her
termination in October 2000. This conclusion was based
exclusively on the amount of time that elapsed between the
protected activity and the materially adverse action.
We jettisoned the “causal link” analysis in favor of a two-
method system of assessing Title VII retaliation claims,
described in our decision in Stone v. City of Indianapolis
Public Utilities Division, 281 F.3d 640 (7th Cir. 2002). See
Mannie v. Potter, 394 F.3d 977, 984 (7th Cir. 2006) (“in
Stone v. City of Indianapolis Pub. Util. Div., in an opinion
that was circulated under Rule 40(e), we held that plaintiffs
seeking to prove retaliation under the indirect method need
not show ‘even an attenuated causal link.’ ”). Under the first
method, a plaintiff can defeat summary judgment by
“present[ing] direct evidence . . . that he engaged in pro-
tected activity . . . and as a result suffered the adverse
employment action of which he complains.”7 Stone, 281 F.3d
at 644. “If [the evidence] is contradicted, the case must be
tried unless the defendant presents unrebutted evidence
that he would have taken the adverse employment action
against the plaintiff even if he had had no retaliatory
motive.” Id. In the absence of an admission of retaliatory
motive by the defendant, a plaintiff can succeed under this
first method, referred to as the “direct method,” by present-
ing sufficient circumstantial evidence such that a jury could
infer retaliation. See Culver v. Gorman & Co., 416 F.3d 540,
7
That Stone uses the term “adverse employment action” in this
context, as opposed to the term “materially adverse action,” used
by the Supreme Court in White, is irrelevant. Stone addresses
the proper test for determining whether there is sufficient
evidence of retaliatory motive, and this analysis is unaltered
by White. Going forward, of course, a court adjudicating a
retaliation claim on summary judgment must ask whether a
reasonable employee would have found the challenged action
“materially adverse.”
24 No. 04-3991
546 (2005). The second method described in Stone, known
as the “indirect method,” “requires the plaintiff to show that
after filing the charge only he, and not any similarly
situated employee who did not file a charge, was subjected
to an adverse employment action.” Stone, 281 F.3d at 644.
Only the direct method is relevant to our inquiry here.
In Culver, we concluded that the plaintiff could succeed
under the direct method in part because she produced
evidence that she had received favorable performance
reviews shortly before her firing, and also because she
alleged her immediate supervisor attempted to dissuade her
from complaining to higher-ups about the supervisor’s
discriminatory actions. 416 F.3d at 546-47. Like the Culver
plaintiff, Phelan introduced evidence that her termina-
tion was inconsistent with her satisfactory performance
of her job shortly before termination. Cook County’s finding
upon reinstating Phelan was that she had made a good
faith effort to appropriately utilize the company’s leave
policy. Phelan also introduced evidence that her immediate
supervisor attempted to discourage her from complaining
about sexual harassment and failed to report her final
complaints to Human Resources. The record is replete with
the warnings of various employees that Phelan would
experience adverse consequences if she continued to
complain about her harassment. Phelan testified at her
deposition that her immediate supervisor, Jack Callaghan,
threatened to terminate her if she continued to complain
about sexual harassment. The time between Phelan’s
protected activity and her termination is not as short as the
plaintiff in Culver, where only 72 hours passed between the
plaintiff’s protected activity and her termination. But it is
sufficiently short to create a triable issue of fact. Phelan’s
attorney contacted Cook County regarding the sexual
harassment directed at Phelan on June 30, 2000, and
Phelan filed her related leave request in August. Cook
County initiated the process to terminate her the following
No. 04-3991 25
month, when it sent her a letter notifying her of the
forthcoming disciplinary hearing. A reasonable fact finder,
viewing the passage of time in the context of the other
evidence of discriminatory retaliation, could conclude that
Phelan’s termination was a prohibited act of retaliation.
G. Section 1983 Claims
The district court offered two reasons for granting
summary judgment in favor of the defendants on Phelan’s
Section 1983 claims against Cook County: (1) Cook County
had sufficiently demonstrated that it is intolerant of acts of
sexual harassment through its sexual harassment policy;
and (2) Cook County had sufficiently responded in investi-
gating Phelan’s original complaint and in attempting to
transfer her to a less hostile work environment. Phelan,
2004 WL 2390084, at *9. The district court concluded that
Phelan’s Section 1983 claims against the individual defen-
dants and her Section 1983 claims against Cook County
merge, and the parties do not contest this conclusion on
appeal. Thus, we also treat the claims as merged and
examine the sexual harassment and retaliation claims
separately.
1. Sexual Harassment
The defendants challenge Phelan’s Section 1983 sexual
harassment claim against Cook County, contending that
Phelan cannot present evidence establishing that a per-
son with final policy-making authority caused or ratified
any harassment. They further argue that Phelan cannot
demonstrate that the harassment she suffered was part of a
widespread practice. Municipal entities cannot be
held vicariously liable for the acts of their employees
under Section 1983 on a respondeat superior theory. See
Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992) (citing
26 No. 04-3991
Monell v. New York Department of Social Services, 436 U.S.
658 (1978)). To establish liability, Phelan must produce
evidence of “(1) an express policy that, when enforced,
causes a constitutional deprivation; (2) a widespread
practice that, although not authorized by written law or
express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the force of law; or
(3) an allegation that the constitutional injury was caused
by a person with final policymaking authority.” Roach v.
City of Evansville, 111 F.3d 544, 548 (7th Cir. 1997).
Phelan focuses on the second means of establishing
Monell liability, arguing that the evidence of knowledge and
condoning of her harassment on the part of various supervi-
sory officials demonstrates the existence of a widespread
practice constituting custom or usage. “If the same problem
has arisen many times and the municipality has acquiesced
in the outcome, it is possible (though not necessary) to infer
that there is a policy at work.” Calhoun v. Ramsey, 408
F.3d 375, 380 (7th Cir. 2005); see also Jackson v. Marion
County, 66 F.3d 151, 152 (7th Cir. 1995) (“The usual way in
which an unconstitutional policy is inferred, in the absence
of direct evidence, is by showing a series of bad acts and
inviting the court to infer from them that the policymaking
level of government was bound to have noticed what was
going on and by failing to do anything must have encour-
aged or at least condoned, thus in either event adopting, the
misconduct of subordinate officers.”). Phelan does not
present what might be considered the prototypical situation
of a “widespread practice” argument, which would focus on
the application of the policy to many different individuals,
but rather attempts to show that the many actions directed
at her evince widespread practice. She raises the question
of whether a reasonable jury could infer the existence of a
policy through repeated actions directed at one person.
Cook County implicitly argued that this question must be
answered in the negative when it asserted, in its motion for
No. 04-3991 27
summary judgment, that Phelan had failed to “identif[y]
any comparable cases within Cook County d/b/a Cook
County Hospital which would allow for the conclusion that
there was a widespread practice of harassment based on
sex.” The rule urged by Cook County seems to impose a
potentially unreasonable burden on a plaintiff like Phelan.
The record reflects that there were almost no women
working in a similar capacity to Phelan or in her depart-
ment;8 Phelan’s supervisor, John Callaghan, testified that
in the twelve years that he had been in charge of the
department, Phelan was the only woman to work under him
as a mechanical assistant. In such a situation, identifying
numerous individuals who have received treatment similar
to the plaintiff is impossible. Yet this is potentially the
situation in which there is the greatest likelihood that a
plaintiff will be subject to actionable discrimination.
Generally speaking, we do not believe that a plaintiff
should be foreclosed from pursuing Section 1983 claims
where she can demonstrate that repeated actions directed
at her truly evince the existence of a policy. But we are
mindful of the Supreme Court’s admonition that “the word
‘policy’ generally implies a course of action consciously
chosen from among various alternatives.” See City of
Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985). In a
similar vein, we have observed that “[b]oth in the ‘wide-
spread practice’ implicit policy cases and in the cases
attacking gaps in express policies, what is needed is
evidence that there is a true municipal policy at issue, not
a random event.” Calhoun, 408 F.3d at 380. Thus, we have
declined to find that an alleged widespread practice could
evince a true municipal policy where the plaintiff intro-
duced evidence that on three separate occasions prison
8
The record reflects that one other woman worked in the
Buildings and Grounds Department during the relevant time
period, out of 150 employees.
28 No. 04-3991
guards improperly sprayed inmates with pepper spray. See
Estate of Moreland v. Dieter, 395 F.3d 747, 760 (7th Cir.
2005) (“these incidents do not amount to ‘a widespread
practice’ that is ‘permanent and well settled’ so as to
constitute an unconstitutional custom or policy about which
the sheriff was deliberately indifferent”). Similarly, we
rejected a plaintiff’s attempt to demonstrate a widespread
practice amounting to a policy where the plain-
tiff introduced evidence of two situations in which the
prison had placed black inmates in “gladiator cell blocks”
that posed a threat to their safety. See Palmer v. Marion
County, 327 F.3d 588, 595 (7th Cir. 2003). The unifying
theme in these decisions is the acknowledgment that
the word “widespread” must be taken seriously. It is not
enough to demonstrate that policymakers could, or even
should, have been aware of the unlawful activity be-
cause it occurred more than once. The plaintiff must
introduce evidence demonstrating that the unlawful
practice was so pervasive that acquiescence on the part of
policymakers was apparent and amounted to a policy
decision.
Phelan falls short of this mark. Although she has pre-
sented evidence that multiple Cook County employees
subjected her to sexual harassment and gender discrimina-
tion, she has failed to weave these separate incidents
together into a cognizable policy. The incidents in this
case are insufficient to conclude that the practice of ignor-
ing sexual harassment had the “permanent and well-set-
tled” quality required by our precedents. See Roach, 111
F.3d at 548. Thus, we affirm the district court’s grant of
summary judgment to the defendants on Phelan’s Sec-
tion 1983 sexual harassment claim.
2. Retaliation
The defendants also argue that Phelan’s Section 1983
retaliation claim fails because Phelan’s protests regarding
No. 04-3991 29
her harassment do not speak to matters of public concern.
A Section 1983 claim that alleges the defendants retali-
ated in response to the plaintiff’s proper exercise of her
First Amendment rights must satisfy a three-step test in
order to survive summary judgment. See Kokkinis v.
Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999). The first step in
that test is assessing whether the plaintiff’s speech
is constitutionally protected. Id. Next, the court must assess
whether the plaintiff has demonstrated that the alleged
retaliatory activity was motivated by the constitutionally
protected speech. Id. Finally, if the plaintiff satisfies the
first two steps, the court must assess whether the defendant
has demonstrated that it would have taken the same action
irrespective of the plaintiff’s speech. Id. The defendants
argue that Phelan cannot pass the first step.
To determine whether Phelan’s speech is constitutionally
protected, we must employ the two-part test derived from
the Supreme Court’s rulings in Connick v. Myers, 461 U.S.
138 (1983) and Pickering v. Bd. of Educ. of Twp. High
School Dist. 205, 391 U.S. 563, 568 (1968). See Wernsing v.
Thompson, 423 F.3d 732, 750 (7th Cir. 2005). The first part
of the Connick-Pickering test requires the court to deter-
mine whether Phelan’s speech addressed a matter of public
concern. Connick, 461 U.S. at 147-48; Wernsing, 423 F.3d at
751.
In Connick, the Supreme Court found that a terminated
assistant district attorney’s expressive activity did not
involve a matter of public concern where she disseminated
a questionnaire to her co-workers soliciting their views
on office morale and dynamics, including whether they
felt pressure to work in political campaigns. See Connick,
461 U.S. at 141. The Court ruled that “when a public
employee speaks not as a citizen upon matters of public
concern, but instead as an employee upon matters only
of personal interest, absent the most unusual circum-
stances, a federal court is not the appropriate forum in
30 No. 04-3991
which to review the wisdom of a personnel decision taken by
a public agency allegedly in reaction to the employee’s
behavior.” Id. at 147. The Court further held that
“[w]hether an employee’s speech addresses a matter of
public concern must be determined by the content, form,
and context of a given statement, as revealed by the
whole record.” Id. at 147-48. In Kokkinis, this court,
applying Connick, held that while “[t]he issue of sex
discrimination in public employment is, of course, a matter
of public concern,” the plaintiff, a police officer who criti-
cized the Police Chief’s record on sex discrimination on a
local television news show, was not speaking on a matter of
public concern because the record reflected that he “had a
limited interest in speaking on the subject of sex discrimi-
nation within the police department.” See Kokkinis, 185
F.3d at 844.
Here, we conclude that Phelan’s speech does not address a
matter of public concern. “The fact that an employee has a
personal stake in the subject matter of the speech does not
necessarily remove the speech from the scope of public
concern.” Button v. Kibby Brown, 146 F.3d 529, 529 (7th
Cir. 1998). However, “speech lacks the public concern
element if it concerns a subject of public interest but the
expression addresses only the personal effect upon the
employee.” Id. at 529-30 (internal citation and quotation
marks omitted). Phelan has not alleged or introduced
evidence supporting a conclusion that she expressed
concerns about sexual harassment beyond concerns specifi-
cally related to her treatment at Cook County. She argues
only that her complaints regarding harassment at Cook
County were also intended to vindicate the rights of the one
other woman who worked in the Buildings and Grounds
Department. This additional motivation of Phelan’s, while
laudable, is insufficient to meet the public concern require-
ment. The “content, form and context” of Phelan’s com-
plaints reveal that her purpose was to advance her personal
No. 04-3991 31
interests. See Connick, 461 U.S. at 147-48. There is no
evidence in the record that she complained about the
treatment of the other woman in the Buildings and Grounds
Department at any point. Nor is there any evidence that
she attempted to bring her situation to the attention of
anyone other than the parties that were in a position to
remedy her personal situation. See Button, 146 F.3d at 531.
Thus, we affirm the district court’s grant of summary judg-
ment with regard to Phelan’s Section 1983 retaliation claim.
III. CONCLUSION
This matter is AFFIRMED in part, REVERSED in part, and
REMANDED for proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-18-06