In Pascua v. Jewel Food Stores, Inc., 20 C 2510, 2022 WL 1045639 (N.D.Ill. April 7, 2022), the court granted defendant’s motion for summary judgment on plaintiff’s sex-based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
After summarizing the black-letter law – including the element that the alleged harassment be “severe or pervasive enough to affect the terms and conditions of employment” – the court applied it to the facts.
This case, like many others, illustrates that conduct that might be considered “hostile” in the ordinary (non-legal, dictionary) sense is not necessarily sufficient to give rise to a “hostile work environment” under the applicable law.
The court wrote:
Even construing the record in the light most favorable to plaintiff, the acts of which she complains lack the severity or pervasiveness required to establish a hostile work environment. Plaintiff bases her claim only on a handful of isolated incidents that occurred over a two-month period. She complains that Morales changed plaintiff’s schedule from the morning shift to the closing shift, did not initially approve plaintiff’s request to work on Thanksgiving, declined to approve a vacation request based on employee seniority,3 and made rude comments such as calling plaintiff stupid and lazy and telling her to “stop her bullshit” when she asked questions. The most serious incident occurred in November, when Morales pushed a meat cart that hit plaintiff’s ankles. The physical contact, “however inappropriate, was relatively minor and occurred only once. And [Morales’s] statements, however impolite, did not constitute actionable harassment.” Pearson v. Advocate Health Care, 2017 WL 3478815, at * (N.D. Ill. Aug. 14, 2017); see also McPherson, 379 F.3d at 439 (holding that male superior’s repeated “boorish” comments did not create a hostile work environment “due to the limited nature and frequency of the objectionable conduct”). While the record indicates that Morales behaved rudely and unprofessionally, and even picked on plaintiff, no reasonable jury could find this conduct severe or pervasive enough to constitute a hostile work environment.
Further, interactions with Morales did not unreasonably interfere with plaintiff’s work performance. See Mannie v. Potter, 394 F.3d 977. 983 (7th Cir. 2005) (affirming summary judgment for defendant on a hostile work environment claim, reasoning plaintiff offered no proof that she “was unable to perform her job because of the conduct of her supervisors and coworkers”). To the contrary, plaintiff’s position remained the same, and her pay was not reduced. Courts have also routinely held that changes to an employee’s shift and denials of vacation or holiday overtime are not actionable harassment. See, e.g., Bowden v. Kirkland & Ellis LLP, 2010 WL 3526483, at *12 (N.D. Ill. 2010) (granting summary judgement for employer on hostile work environment claim when plaintiff complained of unfair criticism by superiors and receipt of unfavorable work assignments); Dyson v. Brennan, 2017 WL 3008831, at *16 (N.D. Ind. July 14, 2017) aff’d 721 Fed. App’x 550 (7th Cir. 2018) (finding “nothing objectively offensive or severe” about plaintiff’s claim that he was not scheduled to work overtime on Christmas day). No reasonable jury could find for plaintiff.
A second and independent ground warranting summary judgment for defendant is that plaintiff offers no evidence that the alleged harassment was based on her sex. See Chaparro v. City of Chi, 47 F.Supp.3d 767, 775 (N.D. Ill. 2014) (“inappropriate conduct that is inflicted without regard to the gender of the recipient is outside Title VII’s ambit”); Blazquez v. Bd. of Edu. of City of Chi., 2007 WL 2410369, at *31 (N.D. Ill. Aug. 20, 2007) (“While such acts may portray [the supervisor] as hostile or obnoxious, this does not change the fact that these actions provide no evidence that the environment made Plaintiff uncomfortable as a woman.”) (emphasis in original). The record indicates that Morales’s changes in shifts, Thanksgiving scheduling, and vacation seniority applied to both male and female employees, such that plaintiff cannot claim that these actions were taken against plaintiff because of her gender. See Chaparro, 47 F.Supp.3d at 775 (Title VII does not apply to “equal opportunity harassers”). No reasonable jury could conclude that Morales took these actions because of plaintiff’s gender.4
The only potentially gender-based incident is Morales’s statement that plaintiff was too weak to work in the meat department, and suggesting that a weight-lifting requirement should apply. As an initial matter and as discussed above, such isolated comments are neither severe nor pervasive enough to constitute a hostile work environment.
For these reasons, the court granted defendant’s motion for summary judgment, which terminated the case. (While plaintiff pursued hostile work environment claims based on her age in addition to her sex, the court concluded that her failure to address her age-based claim in her opposition brief constituted a waiver of any arguments regarding age discrimination.)