In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2948

ANITA PATT, M.D.,

Plaintiff-Appellant,

v.

FAMILY HEALTH SYSTEMS, INC., et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-C-1172--John W. Reynolds, Judge.

Argued May 14, 2001--Decided February 6, 2002



  Before Bauer, Rovner, and Diane P. Wood,
Circuit Judges.

  Rovner, Circuit Judge. Dr. Anita Patt
sued her former employer under Title VII
of the Civil Rights Act of 1964, 42
U.S.C. sec. 2000e et seq., alleging
gender-based discrimination, a hostile
work environment, and retaliation. The
district court granted summary judgment
in favor of her employer, and Patt
appeals. We affirm.

  Family Health Plan Cooperative ("Family
Health") is a Wisconsin-based health
maintenance organization that ceased
operations in 2000 and is currently in
bankruptcy. Patt joined Family Health in
1993 as a general surgeon. At that time,
the surgery department included Dr.
Kenneth Scher, department chief, and Drs.
Greg Rosner and Fred Steele, both of whom
had joined Family Health in 1991. Shortly
after Patt was hired, another surgeon,
Dr. Allan Converse, joined the
department. During her employment, Patt
was the only female surgeon in the
department.

  Sometime in 1994 Patt learned that she
was earning nearly $50,000 less than Dr.
Rosner, the other junior surgeon in the
department. Patt complained about the
discrepancy, and Family Health responded
by giving her a mid-year $15,000 raise.
Over the course of her employment, Patt
continued to receive raises equal to or
proportionately larger than Rosner, and
the gap between their salaries narrowed.
By 1999 the difference was approximately
$10,000. Patt, however, believed that
Family Health was intentionally paying
her less than Rosner because of her
gender.

  According to Patt, after she complained
about the salary discrepancy, matters
worsened. She claims the male doctors in
her department--Scher in particular--
began a subtle campaign to derail her
surgical career. This campaign was
typified by Scher’s unjustified
criticisms of her medical abilities and
his efforts to assign her to only simple
cases so that she could not progress as a
surgeon. As proof of Scher’s gender-based
animus, she points to derogatory comments
Scher made to Patt and other female
Family Healthemployees over the course of
several years. The parties do not dispute
that Patt was never formally disciplined,
demoted, suspended, or terminated, and
she continued to work for Family Health
until it ceased operations in 2000.

  In March 1997 Patt filed a complaint
with the Equal Employment Opportunity
Commission, seeking relief for the salary
discrepancy and Scher’s alleged
harassment. By this time, Converse had
replaced Scher as chief of surgery,
though Scher still worked in the
department. According to Patt, the
harassment by Scher--and subsequent
harassment by the new surgery chief
Converse--intensified after she filed her
EEOC complaint; she claims that both
doctors excessively scrutinized her work,
unfairly limited her surgical practice by
requiring that she seek assistance when
performing certain surgeries, and
unjustifiedly subjected her to "endless
peer review" in an effort to tarnish her
professional reputation.

  In 1998 Patt sued Family Health and its
for-profit parent company, Family Health
Systems, Inc. On Family Health’s motion,
the district court ruled that Patt’s
salary claim was time-barred because she
did not file her EEOC complaint within
300 days of learning of the salary
discrepancy. See 42 U.S.C. sec. 2000e-
5(e)(1). With respect to Patt’s remaining
claims, the district court granted
summary judgment in favor of Family
Health, finding that Patt had failed to
establish that she suffered an adverse
employment action. In particular, the
court found that Patt did not show that
Scher or the other male doctors had
hampered her surgical career. The court
rejected Patt’s retaliation claim on
similar grounds. The court likewise
rejected Patt’s hostile work environment
claim, finding that Patt failed to
establish severe or pervasive harassment.
Patt filed a timely notice of appeal.

  On appeal, Patt renews her contention
that she presented prima facie claims for
disparate treatment based on unequal pay
and the denial of career opportunities,
as well as claims for hostile work
environment and retaliation. Our review
is under the familiar de novo standard.
See Haugerud v. Amery Sch. Dist., 259
F.3d 678, 689 (7th Cir. 2001). Although
we view the evidence in the light most
favorable to Patt, to survive summary
judgment she must come forward with
specific facts showing that there is a
genuine issue for trial. See Miller v.
American Fam. Mut. Ins. Co., 203 F.3d
997, 1003 (7th Cir. 2000).

I.   Unequal Salary Claim

  Patt argues that she established a Title
VII disparate treatment claim based on
unequal pay because "the facts . . .
demonstrate that Dr. Patt was paid less
than her male colleagues in the surgical
department, especially Dr. Rosner." To
establish a disparate treatment claim,
Patt must show that she was a member of
a protected class; that she was meeting
Family Health’s legitimate performance
expectations; that she suffered an
adverse employment action; and that
Family Health treated similarly situated
persons outside of the protected class
more favorably. See Dunn v. Nordstrom,
Inc., 260 F.3d 778, 784 (7th Cir. 2001).

  The parties dispute whether Patt’s
unequal pay claim was timely. Normally, a
plaintiff must file an EEOC complaint
within 300 days of the employer’s
discriminatory act. See 42 U.S.C. sec.
2000e-5(e). Thus, Patt’s 1996 EEOC
complaint would not be timely with
respect to an unequal pay claim dating
back to 1994, when Patt first learned
that she was being paid less than Rosner.
But Patt seeks to avoid the statute of
limitations by relying on the "continuing
violation" doctrine. See Bazemore v.
Friday, 478 U.S. 385 (1986); Goodwin v.
Gen. Motors Corp., 275 F.3d 1005 (10th
Cir. 2002); Cardenas v. Massey, 269 F.3d
251, 255-57 (3d Cir. 2001). The doctrine
allows a Title VII plaintiff to
obtainrelief for a time-barred
discriminatory act by linking it with a
discriminatory act occurring within the
limitations period. Miller, 203 F.3d at
1003.

  We need not reach the timeliness issue,
however, because Patt cannot succeed on
the merits of her unequal pay claim. She
has not established that she was paid
less than a similarly situated male
surgeon. See Dunn, 260 F.3d at 784.
Although Rosner was paid a higher salary,
the record shows that Rosner worked at
Family Health at least a year longer than
Patt, and that Rosner had completed four
years of post-residency work to Patt’s
two years at the time she was hired. Patt
asserts that Rosner’s prior post-residen
cy work had "no bearing on nor
relationship to surgery," but Rosner’s
curriculum vitae states that he
previously served as "Director of
Surgical Critical Care" at a medical
facility in New York. Years of service
and prior experience are legitimate, non-
discriminatory reasons for a wage
disparity. See Wollenburg v. Comtech
Manuf. Co., 201 F.3d 973, 976 (7th Cir.
2000) ("Even if a man and woman are doing
the same work for different pay, there is
no violation if the wage discrepancy
stems from a factor other than gender.").
Patt has thus failed to establish an
unequal pay claim.

II.   Denial of Career Opportunities

  Patt next asserts that her male
colleagues, Scher in particular,
intentionally hampered her surgical
career because of gender-based animus. To
succeed on her disparate treatment claim,
Patt must show that she suffered a
materially adverse employment action. See
Dunn, 260 F.3d at 784. Adverse employment
actions are not limited solely to
demotions, suspensions, or terminations;
rather, "a wide variety of actions can
qualify, some blatant and some subtle."
Haugerud, 259 F.3d at 691. In assessing
whether some action by the employer
constitutes an adverse employment action,
we will consider both quantitative and
qualitative changes in the terms or
conditions of employment. Id.

  We do not doubt that, in certain
circumstances, an employer’s deliberate
denial of career opportunities could con
stitute an adverse employment action.
See, e.g., Galabya v. New York City Bd.
of Educ., 202 F.3d 636, 641 (2d Cir.
2000) (holding that change in job
responsibilities would be actionable
where it constituted "setback" to
plaintiff’s career); De La Cruz v. New
York City Hum. Res. Admin. Dep’t of Soc.
Serv., 82 F.3d 16, 21 (2d Cir. 1996)
(finding adverse employment action based
on lateral transfer to "less prestigious
unit with little opportunity for
professional growth"); Pieszak v.
Glendale Adv. Med. Ctr., 112 F. Supp. 2d
970, 994 (C.D. Cal. 2000) (holding that
medical center’s failure to forward to
state medical board documents relating to
female former medical resident was
adverse employment action sufficient to
support retaliation claim under Title
VII).

  In this case, however, Patt fails to
support her claims that the male doctors
at Family Health "derailed" her surgical
career. Patt never specifies which
operations in the "full spectrum of
general surgery" she was precluded from
performing, nor does she offer evidence
to explain how Scher (and later Converse)
"secretly screened" her cases to prevent
her from performing these surgeries. The
record shows that as of 1996, cases were
assigned to surgeons through a rotation
system, under which Patt herself assigned
cases for three months out of the year.

  Patt also fails to support her assertion
that the actions of her male colleagues
prevented her from finding a position
elsewhere. She testified at her
deposition that she applied for two
positions during her seven years at
Family Health. She had no explanation why
she was not offered employment in either
case. Further, shortly before she filed
her complaint, Patt hired a company to
conduct a mock "background check" to
reveal what Family Health doctors might
say to a prospective employer. Although
Scher dropped hints about his negative
views of Patt during this background
check, Converse gave her a positive
recommendation. Steele also gave Patt a
complimentary letter of recommendation
before his departure from Family Health
in 1997. Because Patt has not presented
more specific evidence showing how Family
Health limited her career opportunities,
we cannot conclude that she suffered an
adverse employment action. We therefore
agree with the district court that
summary judgment was appropriate on this
claim.

III.   Hostile Work Environment

  Patt next argues that the harassment by
her male colleagues created a "malignant"
work environment actionable under Title
VII. To establish a hostile work
environment claim, Patt must show that
she was subjected to harassment so severe
or pervasive that it altered the
conditions of her employment. See
Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998). When assessing a hostile
work environment claim, we look to all
the surrounding circumstances, including
the frequency of the harassing conduct,
its severity, whether it was physically
threatening or humiliating or a mere
offensive utterance, and whether the
conduct unreasonably interfered with the
employee’s work performance. Russell v.
Board of Trs. of the Univ. of Ill., 243
F.3d 336, 343 (7th Cir. 2001).

  To substantiate her claim, Patt points
to eight gender-related comments made by
Scher during the course of her
employment. Several of these comments--
including Scher’s statement to a female
nurse that "the only valuable thing to a
woman is that she has breasts and a
vagina"--are indeed offensive, but these
comments were too isolated and sporadic
to constitute severe or pervasive
harassment. See Adusumilli v. City of
Chicago, 164 F.3d 353, 356 (7th Cir.
1998) (holding that isolated incidents
and offhand comments did not amount to
hostile work environment); Ngeunjuntr v.
Metro. Life Ins. Co., 146 F.3d 464, 467
(7th Cir. 1998) (holding that isolated
incidents made outside employee’s
presence did not constitute hostile work
environment); Baskerville v. Culligan
Int’l Co., 50 F.3d 428, 430-31 (7th Cir.
1995) (holding that a "handful of
comments spread over months" did not add
up to sexual harassment). Further, Scher
only made two of the comments directly to
Patt; the remainder were conveyed to Patt
by other Family Health employees.
Although these comments are relevant to
Patt’s claim, the impact of such "second-
hand" harassment is obviously not as
great as harassment directed toward Patt
herself. See Adusumilli, 164 F.3d at 361-
62 (citations omitted). We are mindful
that Title VII does not mandate admirable
behavior from employers, and Scher’s
conduct, though offensive, thus falls
short of "severe" or "pervasive"
harassment. Cf. Hostetler v. Quality
Dining, Inc., 218 F.3d 798, 807-08 (7th
Cir. 2000) (reversing grant of summary
judgment for employer because fact issues
existed as to whether supervisor’s
uninvited kiss, attempt to remove bra,
and lewd proposition for sex created
objectively hostile work environment).

IV.   Retaliation

  Patt finally argues that her male
colleagues unlawfully retaliated against
her for filing an EEOC complaint by
subjecting her to an "endless course" of
peer review. To establish a retaliation
claim, Patt must show that she engaged in
statutorily protected expression by
complaining about discrimination covered
by Title VII; that she suffered an
adverse action by her employer; and that
there is a causal link between the
protected expression and the adverse job
action. See Miller, 203 F.3d at 1007;
Haugerud, 259 F.3d at 691. We have
already concluded that the facts Patt has
cited in support of her "career
derailment" theory cannot establish an
adverse employment action. We similarly
agree with the district court that Patt
has not offered evidence to show that the
peer review activities constituted an ad
verse employment action. The record shows
that participating in peer review was a
requirement of Patt’s contract (like all
doctors at Family Health), and that her
male colleagues also had cases referred
to peer review. Patt has offered no basis
to conclude that the number of her cases
referred to peer review was inordinate
when compared to the number of her male
colleagues’ cases referred for review.
Nor has she offered evidence to suggest
that any of her cases were inappropriate
for peer review. Accordingly, Patt has
failed to establish an adverse employment
action, and summary judgment was
appropriate on her retaliation claim.

  Because the district court properly
granted summary judgment for Family
Health, we need not reach the other
issues raised in Patt’s briefs.

AFFIRMED.
