Opinion
IP 99-0697-C-T/K
March 4, 2003.
ENTRY ON MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This is a case of alleged sexual harassment and retaliation in employment. It comes before the court on the Defendant's motion for summary judgment. Having carefully considered the motion, the court rules as follows.
The Plaintiff originally brought claims under the Americans with Disabilities Act ("ADA") as well, but she concedes that she has insufficient evidence to support those claims and has abandoned them. Therefore, without further discussion, summary judgment will be GRANTED on the claims under the ADA.
I. Factual Background
These facts are undisputed unless otherwise noted, are taken from the parties' statements of facts submitted with their summary judgment briefs as well-supported by citations to evidentiary materials and are viewed in the light most favorable to the Plaintiff. The Defendant contends that the Plaintiff offers inadmissible hearsay evidence to support her claims. The court, however, disagrees. The vast majority of the statements to which the Defendant objects are offered not to prove the truth of the matter asserted but to show the effect on the listener's state of mind. Thus, the testimony is not inadmissible hearsay. See, e.g., United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993) ("An out of court statement that is offered to show its effect on the hearer's state of mind is not hearsay"). By way of illustration, the Plaintiff offers the testimony of Dedra Clymer from the arbitration proceeding of William Cornwell's grievance against the Defendant that she heard rumors of an affair between Ms. McCombs and Mr. Cornwell; an exhibit to the arbitration proceeding which states that sometime in May or June of 1998 a group of employees complained to Chrysler area manager Jim Kistler about the favorable treatment Ms. McCombs was receiving; and her own testimony about Mr. Cornwell's comments to her in September 1998. These statements are offered not for the truth of the matter asserted, but rather to show the effect on the listener's state of mind. Thus, they are appropriate for consideration on summary judgment. Accordingly, the Defendant's request that certain statements be stricken from the record is DENIED.
However, it should be noted that the majority of the statements to which the Defendant objects on hearsay grounds are statements of Mr. Cornwell to Ms. McCombs which are offered as evidence of sexual harassment. For example, the Plaintiff testified about things Mr. Cornwell said to her at various times. As the Defendant's summary judgment does not challenge whether Ms. McCombs was sexually harassed by Mr. Cornwell, most of the evidence of what he said to her is not outcome determinative at this stage anyway.
Justina McCombs was employed by Chrysler Corporation of Kokomo, now d/b/a DaimlerChrysler Corporation ("Chrysler"), as a full-time bargaining unit employee in the Trim Department at the Kokomo Casting Plant ("KCP"). She was a member of the United Auto Workers and the local union, was actively involved in union activities and held leadership positions in the union.
Beginning in 1994 through 1996, Ms. McCombs and William Cornwell had a sexual affair outside of work. Mr. Cornwell supervised Ms. McCombs at times and was her direct supervisor for an extended period of time during the summer of 1998. He pressured her for sexual favors and, in exchange, gave her preferential treatment including assigning her to the "good" or "easy" jobs, adjusting her time records to pay her for time when she was not working, and allowing her to sit in his office without doing any work. Mr. Cornwell also engaged in inappropriate touching of Ms. McCombs at work such as pressing himself against her, running his hand up her leg, and brushing his arms against her breasts.
Ms. McCombs ended the relationship in late 1996. Mr. Cornwell continued to alter her time cards to pay her for time she did not work and did so into the summer of 1998.
Mr. Cornwell engaged in two sexually-oriented incidents involving Ms. McCombs at KCP in June and July 1998. In June, Mr. Cornwell and Ms. McCombs were in a supervisor's office when he grabbed her arm, turned her around to face him, pressed his body against hers, and attempted to kiss her. In late June or early July, they were in another office when Mr. Cornwell exposed himself to her, laughed at her reaction, grabbed her hand and placed it on his leg, and said "don't you want to touch me?" (Pl.'s Dep. at 437.)
Rumors about the relationship between Ms. McCombs and Mr. Cornwell spread around the plant. On two occasions in mid 1998, a group of Ms. McCombs' coworkers complained to Chrysler management about the favorable treatment Mr. Cornwell was giving to Ms. McCombs.
Beginning in September 1998, Mr. Cornwell would pass by Ms. McCombs on a daily basis and make rude and offensive comments to her such as "I have already had it once, that's enough for me." (Pl.'s Dep. at 457-58.) On September 13, for the first time, Ms. McCombs reported to Chrysler that Mr. Cornwell had sexually harassed her. She had not complained about any misconduct by him to Chrysler at any time before that date. Ms. McCombs called in sick to work the next two days and thereafter requested a leave of absence, which was granted. She had no further contact with Mr. Cornwell at KCP.
Ms. McCombs' complaint was referred to Workforce Diversity, a department at Chrysler's headquarters responsible for investigating and handling claims of harassment and discrimination. Shortly thereafter, investigators were sent to KCP to meet with her, Mr. Cornwell and other employees. Chrysler determined that her claims could not be substantiated based on the interviews it conducted; however, it also concluded that Mr. Cornwell exercised poor judgment in having a longstanding sexual affair with a subordinate employee and discharged him on November 20, 1998.
Ms. McCombs was released by her psychiatrist to return to work with the restriction that she not return to KCP effective March 1, 1999. Her short-term disability benefits ended in June 1999 and, because she did not comply with Chrysler's request to provide medical information and contact them, her employment was terminated. Subsequently, Ms. McCombs submitted the information requested of her, was reinstated, retroactively paid short-term disability benefits, and then placed on long-term disability leave. She has remained on disability leave since September 1999. Chrysler has not denied her the opportunity to return to work at KCP.
Ms. McCombs had requested a transfer to Chrysler's Indiana Transmission Plant ("ITP"), in March 1998. Since then she has not provided any other written requests for a transfer to any other plant. Under the applicable collective bargaining agreement, Chrysler employees at ITP and employees at the Kokomo Transmission Plant ("KTP") have a right of first selection when requesting a transfer to an open position at ITP or KTP. No employee has been transferred from KCP to ITP since March 1999.
Chrysler had in place at all relevant times a sexual harassment prevention policy, which was published in the collective bargaining agreement. The policy defined "sexual harassment" as including "any unwanted conduct of a sexual nature that adversely affects an individual's work environment" such as "unlawful sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." (Heflin Aff., Ex. A.) The policy advised employees who believed they had been subjected to sexual harassment to promptly report such harassment to immediate management, the Personnel Office and/or the Corporate Diversity and Work/Family Office, (id.), also apparently known as Workforce Diversity. The policy provided for the timely and impartial investigation of all sexual harassment complaints. The policy also provided for confidentiality throughout the investigation process and the protection of complaining employees against retaliation.
II. Summary Judgment
Summary judgment is proper only "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). A party moving for summary judgment bears the burden "of informing the district court of the basis for its motion, and identifying those portions of . . . [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, then the nonmovant must "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). Thus, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588 (1986).
"The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). The substantive law determines which facts are material. Id. When deciding a summary judgment motion, the court views the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in that party's favor. Id. at 255.
III. Discussion
The Plaintiff alleges that the Defendant discriminated against her because of her sex by subjecting her to sexual harassment and retaliated against her for complaining about the harassment, all in violation of Title VII of the Civil Rights Act of 1964. The Defendant contends that it is entitled to summary judgment on all claims. Chrysler argues that: (1) Ms. McCombs cannot show that it may be held liable for the alleged harassment as (a) Mr. Cornwell was not its alter-ego or proxy, (b) his actions did not culminate in a tangible employment action against her, (c) Chrysler is entitled to the affirmative defense; and (2) Ms. McCombs cannot demonstrate a prima facie case of retaliation.
The Defendant also argued that some of the acts upon which the Plaintiff bases her sexual harassment claim are time-barred. However, in the case of a hostile work environment, a plaintiff may base her claim on acts which occurred outside the limitations period as long as an act that is part of the hostile environment occurred within the limitations period. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, ___, 122 S.Ct. 2061, 2075 (2002). Some of the acts that support Ms. McCombs' hostile work environment claim occurred within 300 days of the filing of her charge. Thus, the Defendant's time preclusion argument is unavailing.
A.
The Plaintiff claims that the Defendant subjected her to unlawful sexual harassment by a supervisor. Title VII prohibits, inter alia, harassment of an employee because of her sex by a supervisor "that is sufficiently severe to worsen substantially h[er] conditions of employment as they would be perceived by a reasonable person in the position of the employee." Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 745 (7th Cir. 2002) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 786-88 (1998)); Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462-63 (7th Cir.), cert. denied, 123 S.Ct. 97 (2002)). As stated, that Mr. Cornwell's conduct constitutes unlawful sexual harassment is not challenged on summary judgment. Thus, the court assumes that his conduct toward Ms. McCombs constituted sexual harassment in violation of Title VII and focuses on whether Chrysler may be held liable for that harassment.In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court identified the criteria under which an employer may be liable for sexual harassment by employees. An employer is vicariously liable for the acts of those employees "indisputably within that class of an employer organization's officials who may be treated as the organization's proxy," Faragher, 524 U.S. at 789, such as "a president, owner, proprietor, partner, corporate officer, or supervisor 'hold[ing] a sufficiently high position in the management hierarchy of the company for his actions to be imputed automatically to the employer.'" Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (citing Faragher, 524 U.S. at 789-90). An employer also is vicariously liable "when the supervisor's harassment culminates in a tangible employment action[.]" Faragher, 524 U.S. at 790; see Ellerth, 524 U.S. at 760. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761; see also Faragher, 524 U.S. at 790.
In Ellerth and Faragher, the Supreme Court held:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable 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.
Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. The Court offered this guidance:
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.
Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765.
Ms. McCombs has insufficient evidence to raise a triable issue as to whether Mr. Cornwell may be treated as a proxy for Chrysler. Instead, the evidence reveals that he had supervisors with authority over him. Thus, he cannot properly be treated as a proxy for Chrysler. See Johnson, 218 F.3d at 730 (concluding that plaintiff's supervisor could not be treated as a proxy although he had an important title, "Chief of Police," he had at least two supervisors over him and had no authority to change the terms and conditions of the plaintiff's employment other than signing off on her performance appraisals).
It is, however, undisputed for purposes of the summary judgment motion that Cornwell was a supervisor of the Plaintiff; the Defendant has not argued otherwise.
Ms. McCombs also has insufficient evidence to raise a triable issue as to whether Mr. Cornwell's harassment culminated in a tangible employment action against her. She argues that she suffered a tangible employment action in that she was constructively discharged. Title VII prohibits constructive discharge where the employer has made the job unbearable for the employee. See Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 745 (7th Cir. 2002) (citations omitted). The Seventh Circuit has not yet decided whether a constructive discharge constitutes a tangible employment action within the meaning of Ellerth and Faragher. See Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1142 (7th Cir.), cert. denied, 534 U.S. 1028 (2001). It makes no difference in this case, however, because the Plaintiff has insufficient evidence to create a genuine issue of material fact as to whether she was constructively discharged.
A few circuits have concluded that a constructive discharge is not a tangible employment action, others have reached the opposite conclusion. Compare, e.g., Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294 (2d Cir. 1999), cert. denied, 529 U.S. 1107 (2000), with, e.g., Jackson v. Ark. Dep't of Educ., Vocational Technical Educ. Div., 272 F.3d 1020, 1026 (8th Cir. 2001), cert. denied, 122 S.Ct. 2366 (2002).
An employee is constructively discharged if forced to resign because her working conditions, from the standpoint of a reasonable employee, have become unbearable. Wolf, 250 F.3d at 1142. "[F]ailure to object to egregious conditions, or to seek some form of redress is compelling evidence that the employee, or any reasonable worker, would not find the conditions intolerable. Absent extraordinary conditions, a complaining employee is expected to remain on the job while seeking redress." Id. at 1142-43 (citations and quotation omitted). Thus, "an employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged." Grube v. Lau Indus., Inc., 257 F.3d 723, 728 (7th Cir. 2001).
Ms. McCombs first complained to Chrysler about Mr. Cornwell's alleged harassment on September 13, 1998; she called in sick the next two days; and she then commenced her disability leave. She thus deprived Chrysler of any opportunity to respond to her complaints of harassment while she was still working. Her failure to complain sooner is compelling evidence that a reasonable employee would not have found her working conditions intolerable.
The Plaintiff states that her working conditions became unbearable in September 1998 because that is when Mr. Cornwell began publicly humiliating her on a daily basis by making comments such as he had "already had it once. That's enough for me." Such comments, even if rude, offensive, inappropriate and repeated daily for approximately two weeks, are insufficient to support a constructive discharge claim. See Drake v. Minn. Min. Mfg. Co., 134 F.3d 878, 886-87 (7th Cir. 1998) (white employees who resigned after several days of shunning by coworkers for being friends with and assisting black workers could not prevail on constructive discharge claim; though the experience was unpleasant it was not so intolerable as to cause them to resign).
Ms. McCombs states that she sought and obtained a restraining order in September 1998, but there is no evidence that she sought such an order before she began her leave from work, or that Chrysler was aware of the protective order before she reported the harassment. Ms. McCombs also points out that Chrysler advised her in 2000 that she would not be permitted to work at any of its other facilities. But, as the Defendant observes, she offers no evidence to establish that this last event and her alleged constructive discharge, separated by two years, are causally connected.
The Plaintiff cites to testimony that she was medically unable to work at KCP because of the emotional and psychological distress she suffered as a result of Mr. Cornwell's harassment. While the record does contain two notes from treatment providers, neither note raises a triable issue that only the alleged harassment in September was the trigger of her inability to work. And, even though the notes may support the finding that Ms. McCombs subjectively felt unable to return to work because of the alleged harassment, they do not address whether a reasonable employee would find the work environment unbearable.
Given the record before it, the court finds that Ms. McCombs has insufficient evidence that she was constructively discharged. Thus, even assuming that constructive discharge can be a tangible employment action under Faragher and Ellerth, the Plaintiff has not raised a triable issue as to whether Mr. Cornwell's harassment of her culminated in a tangible employment action. So, the court moves on to consider whether the Defendant has shown its entitlement as a matter of law to the Ellerth/Faragher affirmative defense.
The evidence is undisputed that Chrysler had in place during the relevant time a policy against sexual harassment which defined sexual harassment, advised employees to promptly report sexual harassment, contained procedures for the reporting of complaints, and allowed complaints to be made to persons other than the complaining employee's immediate supervisor. It is also undisputed that the policy was published in the collective bargaining agreement.
The Plaintiff urges that publication of the policy in the collective bargaining agreement is insufficient as there is no evidence the agreement was distributed to all employees or that all employees had an opportunity to review the agreement. But this is beside the point as the undisputed evidence is that Ms. McCombs did have a copy of the collective bargaining agreement. The Plaintiff asserts that the policy was not posted at KCP; however, this disputed fact is immaterial as the policy was otherwise made available to employees and, specifically, was made available to Ms. McCombs. Given the record before it, the court finds that the Plaintiff has insufficient evidence to raise a triable issue as to whether the Defendant exercised reasonable care to prevent sexual harassment.
In regard to whether the Defendant exercised reasonable care to promptly correct harassing behavior, it is undisputed that the Plaintiff did not complain to the Defendant about Mr. Cornwell's conduct until September 13, 1998. There is insufficient evidence that the Defendant had constructive notice of his alleged harassment before that date. Ms. McCombs asserts that Chrysler was aware of Mr. Cornwell's sexual relationship with her, his subordinate employee, as early as May 1998, but failed to investigate or intervene despite complaints from her coworkers. Consensual sexual relationships between superiors and their subordinates may be unwise for many different reasons, but they are not prohibited by Title VII or the Defendant's sexual harassment prevention policy. The Plaintiff's evidence does not raise an inference that her coworkers complained of harassment by Mr. Cornwell; rather the evidence shows they complained about her refusal to work. The only evidence offered by the Plaintiff to establish that her coworkers complained to managers about the preferential treatment she received from Mr. Cornwell is her own testimony based on what she heard, and even if admissible, this testimony does not raise a triable issue as to whether the coworkers complained of harassment by Mr. Cornwell.
Thus, the court finds that because the Defendant was unaware of the sexual harassment of Ms. McCombs until she reported the harassment on September 13, 1998, the Defendant was unable to take corrective action before that date. The undisputed evidence further establishes that once Ms. McCombs reported Mr. Cornwell's behavior, Chrysler promptly investigated, and, even though the Plaintiff's complaints were not substantiated, discharged Cornwell for exercising poor judgment in having a sexual affair with a subordinate. Therefore, the court finds no genuine issue of fact as to whether Chrysler exercised reasonable care to correct promptly any sexual harassment: It did.
Finally, the undisputed evidence reveals that the Plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the Defendant. The evidence is that Ms. McCombs failed to use the complaint procedure provided in the Defendant's sexual harassment prevention policy until September 13, 1998, despite the fact that the harassment had been ongoing for several months. Her delay in reporting the harassment is unreasonable. See Savino v. C.P. Hall Co., 199 F.3d 925, 933 (7th Cir. 1999) (fact that plaintiff waited about four months to complain about harassment to anyone other than alleged harasser and that when she did complain she did not report incidents that had occurred established that the plaintiff unreasonably failed to take action).
The Plaintiff offers the explanation that she was afraid to report the harassment. However, an employee's "apprehension does not eliminate the requirement that the employee report harassment: 'an employee's subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee's duty under Ellerth to alert the employer to the allegedly hostile environment.'" Hill v. Am. Gen. Fin., Inc., 218 F.3d 639, 644 (7th Cir. 2000) (quoting Shaw v. AutoZone, 180 F.3d 806, 813 (7th Cir. 1999)); accord Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001) ("[a] generalized fear of retaliation does not excuse a failure to report sexual harassment"); Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2nd Cir. 2001) ("A credible fear must be based on more than the employee's subjective belief. Evidence must be produced to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against employees in response to such complaints."). Furthermore, Chrysler's policy, like the company anti-harassment policy at issue in Mandy v. Quad/Graphics, Inc., 49 F. Supp.2d 1095, 1111 (E.D.Wis. 1999), contained provisions ensuring confidentiality and protection of an employee from retaliation. The Mandy court opined that such provisions should have reasonably allayed the plaintiff's fears of retaliation. Id. at 1111. The same can be said in this case.
Ms. McCombs waited at least two months before reporting Mr. Cornwell's conduct to Chrysler. Thus, the record establishes that she unreasonably failed to take advantage of the preventive and corrective opportunities provided by the Defendant. See Ellerth, 524 U.S. 765 (stating that demonstration of an unreasonable failure to use any complaint procedure provided by the employer "will normally suffice to satisfy the employer's burden under the second element of the defense"). Had the Plaintiff reported the harassment sooner, perhaps some of it could have been avoided, a result which no doubt would have been welcome to all concerned.
Chrysler has shown that there is no genuine issue as to any material fact and as a matter of law it is entitled to the affirmative defense under Faragher and Ellerth. Therefore, summary judgment will be GRANTED Chrysler on Ms. McCombs' sexual harassment claim.
B.
The Plaintiff also alleges that the Defendant retaliated against her in violation of Title VII. "Title VII prohibits an employer from retaliating against an employee who has 'opposed any practice made an unlawful employment practice by this subchapter or . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing' under the statute." Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir.) (citing 42 U.S.C. § 2000e-3(a)), cert. denied, 123 S.Ct. 97 (2002). To establish that an employer has retaliated against her in violation of Title VII, an employee may offer either direct or indirect evidence of the employer's retaliatory intent. Id. Direct evidence often is unavailable, so most employees rely on the indirect method of proof. Id. The Plaintiff has no direct evidence so she must rely on indirect evidence.
Under the indirect method of proof, an employee must first produce evidence of a prima facie case of retaliation, namely: (1) she engaged in statutorily protected activity; (2) she performed her job according to her employer's legitimate expectations; (3) despite meeting those expectations, she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. See Hilt-Dyson, 282 F.3d at 465; but see Herrnreiter, 304 F.3d at 745-46 (suggesting in dicta that actionable retaliation does not require a materially adverse employment action). If the employee has no direct evidence of retaliation, then the failure of proof on any of these elements is fatal to her retaliation claim. Hilt-Dyson, 282 F.3d at 465. If the employee establishes her prima facie case, then the employer must offer a legitimate, nondiscriminatory reason for the adverse employment action. Id. If the employer does so, then the burden reverts to the plaintiff who must demonstrate that the proffered reason or reasons are pretextual. The failure to establish pretext is fatal to a retaliation claim. Id.
The only adverse actions the Plaintiff alleges were taken by the Defendant, however, were employment related.
The Defendant contends that the Plaintiff can offer no evidence which would tend to show that she suffered a materially adverse employment action or was treated less favorably than similarly-situated employees who did not engage in protected activity. The Plaintiff argues that she suffered an adverse action in that the Defendant denied her request for a transfer to another facility. Because her doctor's release of her to return to work excepted work at KCP, she contends that the refusal to transfer her denies her the opportunity to return to work. The Plaintiff has abandoned her ADA claims and thus, cannot rely on her alleged medical restriction as the basis for her position that she suffered an adverse action.
But even if she could raise a triable issue as to whether she suffered an adverse action, her retaliation claim fails at the summary judgment stage anyway because she has conceded that she "cannot dispute [the] assertion that no other employees have transferred" from KCP to ITP. (Pl.'s Opp'n Br. at 17.) Though the Defendant bears no burden of proof on this issue, it has offered uncontested evidence that Dave Roe, a similarly-situated employee who did not engage in protected activity, that is, did not complain about sexual harassment, requested a transfer to ITP and his request was denied. (Suppl. Aff. James Heflin ¶¶ 4-5.) Because the Plaintiff has no direct evidence of retaliation and lacks sufficient evidence to prove all elements of her prima facie case, her retaliation claim cannot withstand the motion for summary judgment. Chrysler's motion therefore will be GRANTED as to this claim.
IV. Conclusion
The Plaintiff has presented insufficient admissible evidence to reach a jury on her Title VII sexual harassment and retaliation claims, and she does not oppose the entry of summary judgment on her ADA claims. Therefore, the Defendant's motion for summary judgment will be GRANTED. An appropriate judgment will be entered.
ALL OF WHICH IS ORDERED this 4th day of March 2003.