Rogers v. City of Chicago, No. 02-1211.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Manion
• Citation: 320 F.3d 748
• Docket Number: No. 02-1211.
• Decision Date: 26 February 2003
• Parties: Patricia ROGERS, Plaintiff-Appellant, v. CITY OF CHICAGO, an Illinois Municipal Corporation, Defendant-Appellee.

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320 F.3d 748 Patricia ROGERS, Plaintiff-Appellant,
v.
CITY OF CHICAGO, an Illinois Municipal Corporation, Defendant-Appellee. No. 02-1211. United States Court of Appeals, Seventh Circuit. Argued November 7, 2002. Decided February 26, 2003.

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Susan Bogart (Argued), Chicago, IL, for Plaintiff-Appellant.

Suzanne M. Loose (Argued), Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendant-Appellee.

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

MANION, Circuit Judge.

Patricia Rogers has been a police officer employed by the City of Chicago since 1985. Rogers filed a two-count complaint against the City alleging that she suffered sexual harassment in the form of a hostile

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work environment and, after she complained, retaliation. Rogers appeals from the district court's entry of summary judgment for the City, and she also challenges several evidentiary rulings. We affirm.

I.

Because this case comes to us after summary judgment in the City's favor, we review the record in the light most favorable to Rogers. Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751, 755 (7th Cir. 1998). In 1985 Rogers began working for the City of Chicago as a police officer. Her career progressed until 1996, when she voluntarily transferred to the 24th district. Rogers claims that, after her transfer and between November 1996 and the end of January 1997, several statements and actions of Sgt. Robert Kelenyi created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, Rogers points to the following ten occurrences, supported by evidence within the record before the district court:

(1) a comment by Kelenyi to Rogers that he would "like to be that FOP [Fraternal Order of Police book] in [her] back pocket";

(2) when Rogers appeared to be slipping on the stairs, Kelenyi said "don't fall," caught hold of Rogers, and then asked Rogers whether she had a boyfriend or needed one;

(3) a comment by Kelenyi to Rogers and Mark Kelly, one of Rogers's partners, during an evening check off, when they were turning in their daily reports of activity (that showed high activity), that "[y]ou guys are the real police. What are you trying to do, get on the TAC team?";

(4) Kelenyi's interference with Rogers and Kelly's response to a domestic violence call;

(5) Kelenyi's threatening remarks to Rogers and Kelly that he had a problem with the two of them;

(6) Kelenyi's remark to Rogers, while exiting a locker room, that "Your breasts look nice in that turtleneck, that red turtleneck";

(7) Kelenyi's frequent appearance on jobs and calls of Rogers even when he was not her assigned Sergeant;

(8) Kelenyi's refusal to process, or to turn back, reports prepared by Rogers and Kelly;

(9) Kelenyi's ordering Rogers to put a document in a box at the end of the room, stating, "Put this in the bin so I can watch you walk over and put it in"; and

(10) Kelenyi's interference with the work of Rogers and another one of her partners in a robbery case.

On January 24, 1997, subsequent to these incidents, Rogers complained to her lieutenant, Daniel Schrager, about Kelenyi's behavior. Schrager then submitted a written report of the matter to the Police Department's Internal Affairs Division, which in turn conducted an investigation pursuant to the Department's policy for looking into claims of sexual harassment. Schrager was unhappy with Rogers's complaint, telling her that she would "get the backlash from this," which caused Rogers to tremble to the point that she "thought she was having a panic attack." Two months after Rogers filed her complaint, the Department placed Rogers in the Behavioral Alert Program ("BAP"), which is a program for employees with performance problems that requires participants to undergo a medical examination. The Department's stated reason for this decision was her excessive use of medical leave.

On March 21, 2001, the district court excluded, under Fed.R.Civ.P. 37, Rogers's

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evidence of a pattern and practice of discrimination. On December 21, 2001, the district court issued an order that: (1) excluded from evidence the affidavit of Rogers supporting her factual allegations; (2) excluded from evidence the testimony of Rogers's expert; and (3) granted the City's motion for summary judgment. Rogers challenges all four rulings on appeal.

II.

A. Evidentiary Rulings

We begin with the evidentiary issues. In order to prove that she is entitled to relief because of the exclusion of evidence, Rogers must show not only that the district court erred, but also that the exclusion prejudiced her "substantial rights." Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1266 (7th Cir.1988) (quoting Fed.R.Civ.P. 61); Crumpton v. Confederation Life Ins. Co., 672 F.2d 1248, 1253 (5th Cir.1982) (holding that parties asserting an evidentiary error on appeal bear the burden of showing that their substantial rights were affected). This is a showing that Rogers does not even attempt to make. Although her briefs are replete with arguments as to why it was error for the district court to exclude the evidence in question, Rogers never explains why the exclusion of this evidence affected her substantial rights. In the absence of Rogers's attempt to show prejudice, we decline, for that reason alone, to disturb the district court's judgment on the basis of its evidentiary rulings. Moreover, it is not obvious from the face of the proposed evidence that excluding the material was detrimental to Rogers; it is questionable that the evidence was even admissible.

As to Rogers's evidence of a pattern and practice of discrimination, nowhere does she identify exactly what this evidence was. It appears from Rogers's motion to reconsider before the district court that she is referring to "[d]ocuments in Plaintiff's counsel's possession pertaining to Plaintiff's counsel's former clients" who had discrimination suits against the City of Chicago. Given that Rogers never explained what these documents were or how they could have aided her case, her argument as to this stricken material fails.

Regarding Rogers's affidavit, as the district court meticulously delineated, this document contained numerous paragraphs that contradicted, in self-serving respects, her deposition testimony, contained inadmissible hearsay, or relied often on unauthenticated documents. Rogers argues that some paragraphs of this affidavit were nonetheless admissible, but this contention misses the mark. The district court was under no obligation to scour Rogers's affidavit in order to glean what little admissible evidence it may have contained. See Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.1995). And even if the district court had done so, it is unlikely that the document would have allowed Rogers to escape summary judgment. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.2001) (reasoning that self-serving affidavits without factual support in the record do not create a genuine issue of material fact). The district court also struck Rogers's Local Rule 56.1 submission. Because that document was largely based on Rogers's affidavit, and suffered the defects of its main source, it too would probably have aided Rogers little had it been admitted into evidence.

In a similar vein, Rogers's expert witness would likely have done little to aid her cause. The expert testimony of Dorothy Steward concerned the Department's investigatory procedures. But, in a case in which Rogers adduces no competent evidence of harassment occurring after she formally complained to the Department,

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the Department's method of investigating harassment would seem to be of little moment to the issue of harassment. Steward's testimony might have been relevant to the issue of an adverse employment action under Rogers's theory of retaliation but, as will become clear below, the retaliation claim fails to survive summary judgment even if we assume arguendo that the Department took an adverse action against Rogers. We finally note that Steward's affidavit and deposition contradicted one another, which further undermines any argument that excluding this evidence may have been prejudicial.

B. Sexual Harassment

We now turn to the district court's granting of summary judgment as to Rogers's claim of sexual harassment in the form of a hostile work environment. This court reviews the district court's grant of summary judgment de novo, construing all facts in favor of Rogers, the non-moving party. Commercial Underwriters Ins. Co. v. Aires Envtl. Services, Ltd., 259 F.3d 792, 795 (7th Cir.2001). Summary judgment is proper 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 a judgment as a matter of law." Fed. R.Civ.P. 56(c). Thus, "...