Rhodes v. Illinois Dept. of Transp.

• Decision Date: 26 February 2004
• Docket Number: No. 03-1651.,03-1651.
• Citation: 359 F.3d 498
• Parties: Donna M. RHODES, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

359 F.3d 498

Donna M. RHODES, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

No. 03-1651.

United States Court of Appeals, Seventh Circuit.

Argued November 6, 2003.

Decided February 26, 2004.

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Steven A. Miner (argued), Barrington, IL, for Plaintiff-Appellant.

John P. Schmidt (argued), Office of the Attorney General, Civ. App. Div., Chicago, IL, for Defendant-Appellee.

Before CUDAHY, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Rhodes filed this Title VII action alleging discrimination against her former employer, the Illinois Department of Transportation ("IDOT"). She appeals the district court's decision to grant IDOT's motion for summary judgment dismissing with prejudice her claims of sex discrimination, sexual harassment, and retaliation. We affirm.

I.

Rhodes was employed by IDOT as a full-time, seasonal highway maintainer at the Arlington Heights Maintenance Yard ("Yard") for three winter seasons from 1996 through 1999. Other workers generally refer to seasonal highway maintainers as "snowbirds." As a snowbird, Rhodes' job duties included plowing roadways during and after snowstorms, patching potholes, trimming trees, washing and cleaning snow trucks, and general Yard maintenance.

The chain of command at the Yard where Rhodes worked includes the Technician position, the Lead Lead Worker, and the Lead Worker. Don Morrison and Jon Bondi alternated as the Lead Worker during Rhodes' tenure. Michael Poladian served as the Lead Lead Worker during all three of Rhodes' seasons. During Rhodes' first two seasons, John Nicholas was the Technician and Matt Mara took the Technician position during her third and final season. The Lead Lead Worker is in charge of employees, but the Technician had the ultimate responsibility for all employees at the Yard, including the Lead Lead Worker. The Technician and Lead Lead Worker are responsible for assembling crews and assigning tasks to employees. These positions are the top two jobs at the Yard, but neither the Technician nor Lead Lead Worker are authorized to hire, fire, transfer, promote, demote, or discipline employees. Instead, these decisions are made by the Department Administrative Services Manager, an off-site employee. If the Technician believes that an employee has violated Department policy, the Technician may issue a "Report of Rule Infraction" and recommend the imposition of sanctions to the Department Administrative Services Manager.

Approximately 32 full and part-time employees worked at the Yard, and Rhodes was the only female during her first two seasons. Rhodes did not experience any serious documented problems at work during her first two seasons, and her reviews at the end of both seasons indicated that she was meeting IDOT's expectations. However, during Rhodes' second season, Poladian received some complaints from motorists that her snow route was not sufficiently plowed or that plowing took too long. For these reasons, Poladian suggested to Mara that Rhodes should be assigned to a shorter route. Accordingly, at the beginning of Rhodes' third season, her route was changed to a shorter route. She met with Poladian to discuss her disagreement with this change. This meeting led to a verbal altercation in which Rhodes asked for her old route back. Poladian refused to reassign Rhodes to her old route. According to Rhodes, she then asked to speak to Mara about the matter, and Poladian "threatened to strangle her." Poladian denies that he made such a threat.

After the altercation with Poladian, Rhodes proceeded to speak to Mara about the changed route and also discussed Poladian's alleged threat. Mara asked Rhodes to put her allegations in writing so that he could investigate, but she refused. Regardless, Mara brought Rhodes' allegations to the attention of his superior, Les Aling. Aling was an off-site Operations Engineer for IDOT. After speaking with Aling, Rhodes still did not get her old route back. Morrison, the Lead Worker, testified that he did not have a problem with Rhodes' work and did not receive an answer when he asked Poladian why her route was changed.

Rhodes claims that after complaining about the route change, work conditions deteriorated for her at the Yard. She claims that Poladian called her names such as "bitch" and "cunt" after she complained about the route changes. She also claims that Poladian forced her to wash a truck in sub-zero temperatures, that he assigned her to work in the Yard instead of on a road crew for several days, and that he ordered Morrison to prohibit her from driving the foreman's truck while other workers were patching potholes. Morrison testified that Poladian told him to not allow Rhodes to drive the foreman's truck, and that he was never told to prohibit anyone other than Rhodes from driving the truck. In addition, Rhodes submitted evidence that she was prohibited from riding in the foreman's truck.

Rhodes also alleges that pornographic magazines and movies were prevalent at the Yard. She claims to have found and removed a picture of a nude woman placed on her locker, and often removed cartoons of a sexual nature from the bulletin board. Lead Worker Morrison and Lead Worker Bondi, both of whom oversaw Rhodes' work at one time, confirm Rhodes' testimony that a TV and VCR were used to watch pornographic movies during her employment, and that they watched the movies and had seen Poladian watch as well. The record reveals that this TV and VCR were concealed in the mechanics' room of the Yard, and that when the TV and VCR were brought out, employees used lookouts to prevent women and outsiders from catching on. Morrison testified that pornographic magazines were present at the Yard during all three years of Rhodes' employment, and for several years prior. Bondi confirmed that the magazines were prevalent for 18 years at the Yard. Mara has testified that he confiscated the magazines whenever he saw them at the Yard. Rhodes never looked at or complained about the pornographic magazines and videos.

Rhodes' other allegations include the claim that Poladian accused Morrison of having "something going on" with her. In addition, Pete Caruso, the Yard mechanic, claims that he was told by Poladian to not fix the heat in Rhodes' truck. Finally, on the evening of her last day, Rhodes complains that she told Morrison, the Lead Worker, that she would be absent in order to take the highway maintainer's test¹ in the morning, but was marked absent for failing to contact the Technician or Lead Lead Worker in compliance with IDOT policy. She admits that in spite of this, IDOT did not terminate her employment, but instead asked her to return as a snowbird for the 1999-2000 season and to interview for a permanent highway maintainer position, but she declined to return to work for IDOT any longer.

In response to Rhodes' allegations, IDOT emphasizes that it has a "zero tolerance" policy regarding harassment and discrimination. IDOT employs civil rights officers who conduct yearly training sessions and post civil rights materials in the Yard. On the one occasion that Rhodes reported to Poladian that she had found a pornographic picture taped to her locker, Mara and Poladian immediately had a meeting with Yard employees and told them that such conduct was not permitted. IDOT claims Rhodes was marked absent because she failed to contact the Lead Lead Worker or the Technician as required by IDOT policy.

The district court granted IDOT's motion for summary judgment on Rhodes' sex discrimination claim by finding that she had not presented any direct evidence of sexual discrimination, and that under the burden-shifting framework, she failed to establish the last two prongs of a prima facie case: an adverse employment action and that similarly situated persons were treated more favorably. Summary judgment was granted on her harassment claim because Mara and Poladian were found not to be supervisors for purposes of Title VII and IDOT was not negligent in failing to discover and remedy the harassment. As for Rhodes' retaliation claim, the district court found that she flunked three out of the four elements required for a prima facie case because her complaints about the route change were not statutorily protected activity, she did not suffer an adverse employment action, and she was not treated less favorably than similarly situated male employees.

II.

A. Sex Discrimination Claim

We review the district court's grant of summary judgment de novo, construing all facts in favor of Rhodes, the nonmoving party. Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.2003). Summary judgment is appropriate when 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 judgment as a matter of law." Fed.R.Civ.P. 56(c).

Under Title VII of the Civil Rights Act of 1964, it is unlawful for employers with more than 15 employees "to discriminate against any individual with respect to his... conditions ... of employment, because of such individual's ... sex ...." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove intentional employment discrimination under Title VII by using either the "direct method" or "indirect method." See Cianci v. Pettibone Corp., 152 F.3d 723, 727-28 (7th Cir.1998).

The direct method of proof permits a plaintiff to show, by way of direct or circumstantial evidence, that his employer's decision to take an adverse job action against him was motivated by an impermissible purpose, such as sex. Id. at 727. Direct evidence is evidence that, if believed by the trier of fact, would prove discriminatory conduct on the part of the employer without reliance on inference or presumption. Rogers, 320 F.3d at 753; Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir.199...