In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1407

Cynthia Ribando,

Plaintiff-Appellant,

v.

United Airlines, Inc.,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3176--Elaine E. Bucklo, Judge.


Argued September 21, 1999--Decided December 23, 1999




       Before Easterbrook, Kanne and Evans, Circuit Judges.

      Kanne, Circuit Judge. In response to concern
with sexual harassment and discrimination in the
workplace, many companies, including defendant
United Airlines, established procedures for
reporting, investigating and resolving claims of
gender-based misbehavior. One such complaint was
lodged against Cynthia Ribando, who now contends
that those very procedures instituted to combat
harassment constituted gender-based harassment.
We are asked today to decide whether a worker who
is subjected to routine interrogation and mild
counseling has suffered an adverse employment
action sufficient to invoke the protections of
Title VII of the Civil Rights Act. Because the
essential facts are not in dispute and we find
that Ribando’s claim fails as a matter of law, we
affirm the judgment for United.

I.   History

      The facts of this case are brief and undisputed
for the purposes of the defendant’s motion for
summary judgment. Plaintiff Cynthia Ribando began
working for United Airlines as a clerk in 1984.
Within five years, she had been promoted to the
position known as "storekeeper," a job she
apparently holds to this day. In 1997, a male
employee accused Ribando of making a derogatory
or harassing sexual remark. In accordance with
United’s policy, the complaint was investigated,
and a panel of management and union
representatives was formed to mediate. Ribando
and the male employee were summoned before the
panel, and the male employee read a statement of
his complaint against Ribando. No adverse action
was taken against Ribando following the hearing,
but a "letter of concern" was placed in her
personnel file.

      At the same time, Ribando’s supervisor, Ken
Weslander, asked another employee to document
Ribando’s work and personal habits and any
inappropriate comments she might make in the
workplace. For the purposes of this appeal, we
will accept as true Ribando’s contention that
Weslander directed the compilation of this report
for the purpose of terminating Ribando’s
employment. Ribando, however, was not terminated,
and nothing came of the report. The record
reflects no adverse action against Ribando in her
work conditions, pay, position or advancement.

      Ribando timely filed charges of discrimination
with the Equal Employment Opportunity Commission
and instituted this lawsuit in the United States
District Court for the Northern District of
Illinois on May 22, 1998. Ribando claimed she
suffered "adverse terms and conditions of her
employment" by being subjected to "needless
embarrassment and psychological abuse" when she
was forced to appear before the mediation
committee. This, she contends, created a hostile
work environment on the basis of sex because
similarly situated male employees were not also
called before mediation committees. On June 4,
she filed an amended complaint, adding a
retaliation claim accusing United of placing the
letter of concern in her personnel file because
she filed a complaint with the EEOC.

      United moved for dismissal under Rule 12(b)(6)
of the Federal Rules of Civil Procedure on the
basis that Ribando had suffered no adverse
employment action and, therefore, her complaint
was insufficient as a matter of a law. Rather
than respond, Ribando sought leave of court to
file a Second Amended Complaint, which was
granted. Ribando filed her Second Amended
Complaint on July 31, 1998, adding the
allegations regarding Weslander targeting her for
termination. United again moved for 12(b)(6)
dismissal on the same ground as its first motion.


II.    Analysis

A.    Rule 12(b)(6)/Rule 56 conversion

        Rule 12(b)(6) is a method of disposing cases
that, on their face, fail to state a claim. See
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)
(holding that complaint should not be dismissed
on 12(b)(6) unless failure to state a claim is
"beyond doubt"); Maple Lanes, Inc. v. Messer, 186
F.3d 823, 824 (7th Cir. 1999). However, Rule
12(b)(6) provides that under certain
circumstances, the motion to dismiss must be
converted by the district court into a motion for
summary judgment under Rule 56. See, e.g.,
Farries v. Stanadyne/Chicago Div., 832 F.2d 374,
377 (7th Cir. 1987). The rule requires such a
conversion when "matters outside the pleading are
presented to and not excluded by the court." Fed.
R. Civ. P. 12(b). In this case, District Judge
Elaine E. Bucklo expressly relied on matters
outside the pleadings in reaching her January 26,
1999, decision to dismiss the case, see Ribando
v. United Airlines, Inc., No. 98 C 3176 (N.D.
Ill. Sept. 13, 1999) (Circuit Rule 50 order
explaining grounds for judgment), which meant the
court was required to consider United’s motion
under Rule 56. See Macklin v. Butler, 553 F.2d
525, 528 (7th Cir. 1977).

      In contrast to Rule 12(b)(6) motions, which
require the judge to accept as true all well-
pleaded facts, see LeBlang Motors Ltd. v. Subaru
of America, Inc., 148 F.3d 680, 690 (7th Cir.
1998), Rule 56 expressly grants the trial court
discretion to look outside of the complaint to
make determinations based on the evidence
provided. See Fed. R. Civ. P. 56(c). The motion
for summary judgment allows the trial court to
resolve cases where the relevant facts are
undisputed and there has been a "complete failure
of proof concerning an essential element" of the
plaintiff’s case. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).

      Ordinarily, a court should not consider a Rule
56 motion for summary judgment without providing
both parties ample notice and time to prepare.
See Farries, 832 F.2d at 377. From the record, it
is unclear whether Ribando was aware that Judge
Bucklo would render a Rule 56 judgment based on
material outside of the pleadings. However, in
Farries we found the failure to give adequate
notice of a Rule 12(b)(6) conversion to be
reversible error only if there is a "potentially
disputed material issue of fact." Id. In this
case, neither side disputes any factual
allegation, only the legal conclusions that are
drawn from them. When the facts are clear and
only a question of law must be resolved, the
moving party may be entitled to summary judgment.
See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986)

      For the purposes of this motion, United has not
contested Ribando’s version of the facts.
Pointedly, there is no reason for United to deny
the facts. According to Ribando’s complaint,
United held a hearing to resolve a charge made by
a coworker against Ribando and placed a letter of
concern in her file, and one supervisor attempted
to document Ribando’s on-the-job behavior.
Ribando contends that these facts constitute a
hostile work environment and discrimination, but
the facts themselves are not in dispute.
Therefore, notice was unnecessary under Farries
before Judge Bucklo converted the 12(b)(6) motion
into a summary judgment proceeding. See Farries,
832 F.2d at 377.

B.   Adverse Employment Action

      No actionable claim for retaliation or
discrimination will lie unless the plaintiff has
suffered some adverse employment action. See
Cheek v. Peabody Coal Co., 97 F.3d 200, 204 (7th
Cir. 1996); Smart v. Ball State Univ., 89 F.3d
437, 440 (7th Cir. 1996). The district court
found Ribando failed to show that she suffered
any adverse job action. We review de novo the
district court grant of summary judgment. See
Haefling v. United Parcel Serv., 169 F.3d 494,
497 (7th Cir. 1999).

      Although we have defined the term broadly, the
adverse job action must be "materially" adverse,
meaning more than "a mere inconvenience or an
alteration of job responsibilities." Crady v.
Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d
132, 136 (7th Cir. 1993). We have explained, "a
materially adverse change might be indicated by
a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less
distinguished title, a material loss of benefits,
significantly diminished material
responsibilities, or other indices that might be
unique to a particular situation." Id.; see
Burlington Indus. v. Ellerth, 524 U.S. 742, 118
S. Ct. 2257, 2268-69 (1998) ("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.").

      Ribando suffered nothing even remotely as
significant as these punishments. According to
Ribando, the retaliation consisted entirely of
United placing a letter in her personnel file. In
Smart, we said "not everything that makes an
employee unhappy is an actionable adverse
action," and held that negative employee
evaluations are not by themselves actionable
adverse employment actions. Smart, 89 F.3d at
441. Standing alone, a letter of concern or
counseling, such as that which the plaintiff
received in this case, does not rise to the level
of an adverse employment action. See Sweeney v.
West, 149 F.3d 550, 556-57 (7th Cir. 1998).
Because the facts of the retaliation claim were
undisputed and counseling letters are not
actionable as a matter of law, United was
entitled to summary judgment on the retaliation
claim.

      Ribando points to the union-management mediation
hearing and Weslander’s "malicious" supervision
of her as the factual basis for her hostile work
environment claim. In McKenzie v. Ill. Dep’t of
Transp., 92 F.3d 473, 479 (7th Cir. 1996), we
held that in the context of hostile work
environment claims, "[f]or the harassment to be
actionable, it must be sufficiently severe or
pervasive so as to alter the conditions of the
victim’s employment and to create an abusive
working atmosphere." See also Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993). The standard
is whether an objective, reasonable person would
find that the harassment constitutes a hostile
working environment. See McKenzie, 92 F.3d at
478. We cannot say that all the actions taken by
United combined create such an environment. To
the contrary, it seems United did what an
employer should do when an employee lodges a
complaint of sexual harassment against another:
it investigated, documented and counseled. This
falls so far short of "severe or pervasive" that
we sympathize with the district court’s
consideration of Rule 11 sanctions in this case.
Accordingly, United was entitled to summary
judgment on the discrimination claim.

III.   Conclusion

      Ribando failed to establish a claim for
discrimination or retaliation under Title VII,
and therefore we AFFIRM the district court’s
disposition.
