In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2095

Helen L. Russell,

Plaintiff-Appellant,

v.

Board of Trustees of the
University of Illinois at Chicago,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 8385--James B. Zagel, Judge.

Argued November 6, 2000--Decided March 8, 2001



  Before Kanne, Diane P. Wood, and Williams, Circuit
Judges.

  Diane P. Wood, Circuit Judge. Helen Russell began
working for the University of Illinois at Chicago
Hospital (UIC) in the Finance Department (the
Department) in 1975. In this suit, she initially
accused UIC of violating both Title VII of the
Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et
seq., and the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. sec. 621, et seq., in
conjunction with certain discipline she received.
After some preliminary winnowing of issues, the
district court granted summary judgment for UIC
on Russell’s claims of sex discrimination, sexual
harassment in the form of a hostile work
environment, and retaliation. We agree with the
district court that Russell did not present
enough evidence to go to trial on the harassment
or retaliation claims. We conclude, however, that
she met her summary judgment burden on the sex
discrimination claim, which we now remand for
further proceedings.

I

  Because this is an appeal from a grant of
summary judgment, we naturally present the facts
in the light most favorable to Russell, although
we are aware that UIC contests many of them.
Between July 1992 and July 1993, Russell’s
supervisor at UIC was Thomas Margherone, the
Associate Director of Finance in the Finance and
Reimbursement Division. Even before he was
appointed to that position, Margherone had a
reputation for not getting along with the female
employees he supervised at UIC. When Russell and
her co-workers, Nanette Aubert and Nita Marchant,
heard that Margherone was being considered for
the supervisory position in their department,
they objected to Margherone’s boss, Patrick
O’Leary. O’Leary was not persuaded that
Margherone would be a bad choice; he made the
appointment anyway, and it was not long before
the predicted tensions arose.

  Matters got off on a bad note when, at one of
their first staff meetings in early July of 1992,
Margherone told Russell, Aubert, and Marchant
(the only three people he supervised at the time)
that they were the "staff from hell" and that he
wished he had "three Neal Coopers," a male
consultant who had more advanced accounting
skills than any of the three women. Later that
month, Margherone’s remarks became more personal.
On one occasion, he commented that he found
Aubert’s style of dress to be "sleazy" and that
she dressed "like a whore." At another time he
called Aubert a bitch and told her that she was
only hired for her looks. Margherone made a
similar remark to Marchant and, going further,
posted a computer-generated name sign at her
cubicle that included a picture of a man with a
whip. During this period, Margherone took to
referring to Russell as "grandma," and at the
Christmas party on December 18, he told her he
thought that intelligent women were unattractive.

  Russell’s own problems with Margherone came to
a head over a time card that she submitted on
December 18. On that card, Russell stated that
she had worked a full day on December 17. This
was inaccurate. In fact, Russell and Aubert had
been attending an all-day seminar that day
(perfectly legitimate in its own right), but over
the lunch break, their car got a flat tire. The
car was not fit to drive again until 3:30 p.m.,
which was too late for them to rejoin the
afternoon session of the seminar. Russell
testified that the misstatement was an innocent
mistake, that she had filled out the card ahead
of time, and that she failed to correct the
mistake the next day because it was too hectic
around the office. The following day, she went on
vacation.

  When she returned from her vacation on January
5, 1993, Margherone asked her how the seminar had
gone. She volunteered that she had not attended
the afternoon session because of the flat tire.
When Margherone then asked her about the
discrepancy on the time card, she immediately
acknowledged the error and agreed to remove the
three hours. At that point Russell assumed the
matter was closed. Margherone thought
differently. Two days later, he gave her a pre-
disciplinary action letter informing her that a
disciplinary hearing would be held January 15.
The letter indicated that she was subject to
discipline for failure to notify her supervisor
that she was taking time off and for "failure to
deduct time not worked from your time record."
Not surprisingly, Margherone recalls these events
differently, but summary judgment is a singularly
inappropriate time to resolve a "he said, she
said" kind of dispute. It is enough here to note
that under Margherone’s version Russell was not
forthcoming and admitted that the record was
erroneous only when pressed. It was this
attitude, Margherone testified, that led him to
conclude that formal discipline was needed. In
any event, between January 5 and 7 he discussed
the matter with a number of other individuals at
UIC, including O’Leary, Sherry Hearn (of Employee
Relations), Kenneth Kombrink (of the Office of
Legal Counsel), and Richard Spannraft (University
Director of Personnel Services), and let them
know that he thought formal discipline was in
order.

  On the afternoon of January 5, following their
meeting, an angry Russell approached Margherone
to request another meeting for herself and her
two female co-workers. He agreed, and the
requested meeting took place on the morning of
January 7. Russell and her co-workers accused
Margherone of treating them in a discriminatory
manner. The meeting ended on a sour note with
Margherone giving Russell her pre-disciplinary
letter. Now angrier than ever, on January 15
Russell and her co-workers took their complaints
about Margherone’s conduct to O’Leary and Charles
Stanislao, the Hospital’s Chief Financial
Officer. Later that day, a predisciplinary
hearing was held, which Russell, O’Leary,
Spannraft, and Margherone attended.
  Following the January 15 predisciplinary
hearing, an expanded disciplinary committee
(including Stanislao, O’Leary, Spannraft, Carole
Koch, and Margherone) met on January 21 and
decided to suspend Russell without pay for five
days. They listed three charges that justified
the suspension: (1) unauthorized absence from the
workplace; (2) falsification of a time record;
and (3) theft of services. The committee
explained in a written memo that its decision was
based on the fact that "the severity of the
charges warranted a suspension, and the failure
of the employees involve [sic] to acknowledge any
wrong doing on their part." On January 22,
Russell received her disciplinary suspension
notice, which repeated the three charges. She
appealed the suspension, first to O’Leary and
then to Personnel Services. Her argument was that
the decision to discipline her amounted to sexual
harassment and was in retaliation for her
complaints about Margherone’s treatment of female
staff members. Both O’Leary and the Personnel
Services group decided that Russell’s allegations
were unfounded, and they affirmed the decision of
the disciplinary committee. This was the first
blot on Russell’s record since she joined UIC.

  Russell served her suspension from January 25
to January 31, 1993. In April 1993 she applied
for early retirement, motivated by Margherone’s
mistreatment of her and her female colleagues. In
July she was properly bumped from her position in
the department by a more senior colleague and
took an accounting position in the Physical
Plant. Russell retired in 1994.

II

  Russell filed charges with the Equal Employment
Opportunity Commission (EEOC) on August 2, 1993.
Following the issuance of a right-to-sue letter,
she filed this action on December 20, 1996,
alleging discrimination on the basis of sex,
race, and age, as well as retaliation, all in
violation of Title VII and (for the age claim)
the ADEA. The district court ultimately granted
summary judgment in favor of UIC on all counts.
Russell appeals only the grant of summary
judgment on her sex discrimination, hostile work
place, and retaliation claims. Our review is
under the familiar de novo standard that applies
to appeals from decisions on summary judgment.
Myers v. Hasara, 226 F.3d 821, 825 (7th Cir.
2000).

  A.   Sex Discrimination

  We begin with the claim that we are remanding
for further proceedings: Russell’s charge that
UIC discriminated against her on the basis of
sex, through Margherone’s differential treatment
of the gravity of the time sheet misstatement and
the consequences she suffered because of it.
Russell sought to establish her claim under the
burden shifting method first articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The plaintiff must first establish four
elements, in order to go forward: (1) she is a
member of a protected class; (2) she performed
her job satisfactorily; (3) she suffered an
adverse employment action; and (4) the defendant
treated similarly situated employees outside her
class more favorably. Simpson v. Borg-Warner
Automotive, Inc., 196 F.3d 873, 876 (7th Cir.
1999). If the plaintiff succeeds in demonstrating
that prima facie case with evidentiary-quality
materials, the burden shifts to the defendant to
articulate a legitimate business justification
for the action. Once the defendant does so, the
plaintiff must present sufficient evidence to
create a triable issue with respect to whether
this justification is pretextual. See St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 508 (1993).

  The serious debate here focuses on the third
element of that test: whether Russell presented
evidence showing that she suffered a materially
adverse employment action. The district court
thought that she failed to do so, because a
five-day disciplinary suspension was not
important enough as a matter of law to satisfy
this criterion. This holding, however, is not
supported by our case law. To the contrary, in a
number of prior decisions this very kind of
disciplinary suspension has been found to be a
materially adverse employment action for purposes
of the prima facie case. In Conley v. Village of
Bedford Park, 215 F.3d 703, 709 (7th Cir. 2000),
this court said that "there is no dispute that a
[nine-day] suspension constitutes an adverse
employment action." In Biolchini v. General Elec.
Co., 167 F.3d 1151, 1154 (7th Cir. 1999), it was
undisputed that a one-week disciplinary
suspension was a materially adverse employment
action, and in Silk v. City of Chicago, 194 F.3d
788, 800 (7th Cir. 1999), a five-day disciplinary
suspension was considered materially adverse. It
is equally true that "minor or trivial actions
that make an employee unhappy," 194 F.3d at 800,
do not constitute materially adverse employment
actions, but a formal disciplinary suspension is
much more than that. Russell lost five days of
pay, and this was arguably the least of her
injuries. After maintaining a spotless employment
record for 30 years, her record now includes a
formal finding that she "falsified" her time
records and committed "theft of services." These
are not trivial charges, and both UIC and any
prospective employer who inquired into her
employment history would surely hold them against
her when making employment related decisions.

  The case on which the district court relied,
Williams v. Bristol-Myers Squibb, Co., 85 F.3d
270 (7th Cir. 1996), did not involve discipline
and thus sheds little light on Russell’s
situation. In Williams, the court had to decide
when an otherwise non-disciplinary employment
action might nonetheless be considered adverse.
The plaintiff claimed that a neutral-seeming
lateral transfer that resulted in a reduction in
his commission income was really (because of the
income effect) a demotion. We held that while the
"question is close," "an indirect and minor
effect on commission income (minor here because
commission income was only a small fraction of
the employee’s total income) is not sufficient to
transform a lateral transfer into a demotion."
Id. at 274. Russell’s situation is entirely
different, because she experienced an employment
action that was avowedly disciplinary, with its
attendant consequences for her pay and her
permanent employment record. The comments in
Williams about the proportion of income lost were
not directed to a situation like hers, as the
post-Williams cases mentioned above illustrate.

  The district court found that Russell had
satisfied all the other elements of her prima
facie sex discrimination claim and we agree. UIC
takes issue with the court’s conclusion that
Russell satisfied element 4 (similarly situated
person outside her protected class that was
treated differently), but we believe the district
court correctly assessed this evidence. Russell
pointed to similar time sheet error incidents
involving Margherone and Miroslaw Buchman, both
males, where no disciplinary action was taken.
UIC may be correct that Margherone, as a salaried
employee subject to different time-keeping
requirements, was not similarly situated to
Russell, but Buchman was. UIC’s best argument
against this conclusion is that Buchman, unlike
Russell, immediately acknowledged his error when
confronted by Margherone and apologetically
explained that it was an innocent mistake. But
this is precisely what Russell testified that she
did as well. In order to accept UIC’s argument,
we would have to credit Margherone’s version of
the incident over Russell’s, which we obviously
cannot do on a motion for summary judgment.

  For the same reason, we agree with the district
court that Russell has offered sufficient
evidence of pretext to survive summary judgment.
UIC’s articulated justification for its action
was that Russell was punished because the
committee honestly believed that she had
falsified her time sheet and committed theft of
services. But the committee’s own action was
tainted because of Margherone’s participation in
the decision. As the district court recognized,
any improper motives Margherone harbored had to
be imputed to the other members of the
disciplinary committee because of Margherone’s
extensive role in initiating and carrying out the
disciplinary process. UIC has not challenged that
holding on appeal. Russell’s testimony that her
response to the time sheet incident was the same
as Buchman’s, but that she suffered distinctly
worse consequences, suffices to raise a genuine
issue of fact on the issue of pretext.

  Because Russell has offered enough evidence to
allow a jury to conclude that UIC’s reason for
disciplining her was pretextual, she is entitled
to have a jury decide whether, in the final
analysis, she was the victim of sex
discrimination--an issue, we add, on which she
will of course have the burden of proof at all
times (just as she did throughout the shifting
burdens of production that make up the McDonnell
Douglas waltz).


  B.   Hostile Work Environment

  Even after Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998), and Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), the idea of
discriminatory conduct that creates a hostile
work environment continues to play a useful part
in the law, even if it no longer serves an
important function in determining the rules for
vicarious liability. See, e.g., Gentry v. Export
Packaging Co., 238 F.3d 842 (7th Cir. 2001). In
order to survive summary judgment on a hostile
work environment claim, a plaintiff must present
evidence that would establish that the allegedly
hostile conduct was so severe or pervasive as to
create an abusive working environment in
violation of Title VII. Perry v. Harris Chernin,
Inc., 126 F.3d 1010, 1013 (7th Cir. 1997). In
assessing the severity and pervasiveness of the
conduct, we look to all the circumstances,
including "the frequency of the discriminatory
conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes
with an employee’s work performance." Smith v.
Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999).

  The district court based its decision to grant
summary judgment on this claim in part on its
conclusion that it could only properly consider
evidence of Margherone’s conduct after October
25, 1992. Russell did not file her Title VII
complaints until August 2, 1993. In general, a
plaintiff may challenge only discriminatory
conduct that occurred within 300 days of the
filing of her complaint. See Foster v. Arthur
Andersen, L.L.P., 168 F.3d 1029, 1035 n.9 (7th
Cir. 1999). Hostile environment claims, however,
are often different from complaints about a
specific action like a firing or a refusal to
promote that happen at a particular time. It is
commonly the case that the plaintiff must instead
demonstrate that the harm about which she is
complaining is part of a pattern of conduct, and
she "was reasonable not to perceive her working
conditions as intolerable until the acts of
harassment had, through repetition or cumulation,
reached the requisite level of severity." DeClue
v. Central Ill. Light Co., 223 F.3d 434, 435-36
(7th Cir. 2000). Russell believes that the
district court erred in not treating her evidence
this way, and we are inclined to agree with her.
Even giving her the benefit of that doubt,
however, we nonetheless conclude that UIC was
entitled to summary judgment on this claim.

  Reading the record in the light most favorable
to Russell, one finds evidence of offensive
behavior and boorish comments and signs, but
nothing exceeding that level. This is not enough
to sustain a claim of discrimination on a hostile
environment theory. See Minor v. Ivy Tech State
College, 174 F.3d 855, 859 (7th Cir. 1999).
Margherone’s demeaning habit of referring to
Russell as "grandma," his ridiculous idea that
all intelligent women are unattractive, his
comment about the "staff from hell," and his rude
episodes of calling each of Russell’s female
colleagues a bitch at least once, are hardly
admirable. Nor were his comments to Aubert that
she dressed "sleazy" and "like a whore," and that
she had been hired for her looks.

  But the discrimination laws do not mandate
admirable behavior from employers, through their
supervisors or other employees. Instead, the law
forbids an employer from creating an actionably
hostile work environment for members of protected
classes. Russell has not offered evidence from
which a reasonable trier of fact could conclude
that the environment in her department of UIC
violated the law. Indeed, most of Margherone’s
offensive conduct was directed not to Russell but
to her co-workers. When harassing statements are
"directed at someone other than the plaintiff,
the impact of [such] ’second hand harassment’ is
obviously not as great as the impact of
harassment directed at the plaintiff." McPhaul v.
Board of Commissioners, 226 F.3d 558, 567 (7th
Cir. 2000) (internal quotations and citations
omitted). The statements directed to Russell were
few and far between, they were not physically
intimidating or threatening, they were not
sexually suggestive, and while they may have been
offensive, they were not so offensive as to
constitute actionable conduct. See, e.g., Pryor
v. Seyfarth, Shaw, Fairweather & Geraldson, 212
F.3d 976, 977 (7th Cir. 2000) (holding that
several comments suggesting male boss would like
to see his female secretary in sexually
provocative outfits were insufficient to create
objectively hostile work environment); Ngeunjuntr
v. Metropolitan Life Ins. Co., 146 F.3d 464, 467-
68 (7th Cir. 1998) (relatively isolated comments
suggesting bias against ethnic minorities
insufficient to survive summary judgment).
Compare Hostetler v. Quality Dining, Inc., 218
F.3d 798, 807-08 (7th Cir. 2000) (uninvited kiss,
attempt to remove bra, and lewd proposition for
sex clearly sufficient to state claim for
harassment).

  The few statements Margherone made to Russell’s
co-workers, in particular to Aubert, were
arguably more serious and might have been grounds
for them to bring a claim, see McDonnell v.
Cisneros, 84 F.3d 256, 259 (7th Cir. 1996)
(recognizing that claims that female employee is
a "whore" may make workplace intolerable), but
Russell does not allege that she was ever called
a whore or a bitch. As we reiterated recently in
a similar situation involving racial
discrimination, "’the mere utterance of an . . .
epithet which engenders offensive feelings in an
employee’ is not sufficient to establish a
hostile work environment." McPhaul, 226 F.3d at
568, quoting Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993). The district court
properly granted summary judgment on this claim.


 C.   Retaliation

  Last, Russell alleges that UIC suspended her
for five days in retaliation for her complaint to
Margherone and his supervisor, O’Leary, about
Margherone’s mistreatment of female employees.
Lacking any direct evidence of retaliatory
intent, Russell again seeks to fit her claim
within the McDonnell Douglas framework. A prima
facie case of retaliation under Title VII
requires the plaintiff to present sufficient
evidence that (1) she engaged in statutorily
protected activity, (2) she suffered an adverse
employment action, and (3) there is a causal link
between the protected expression and the adverse
action. Adusumilli v. City of Chicago, 164 F.3d
353, 362 (7th Cir. 1998). If the plaintiff gets
this far, the defendant must then come forward
with a legitimate business reason for taking the
employment action; if it does so, the plaintiff
may survive summary judgment only by presenting
sufficient evidence that the defendant’s
justification is pretextual.

  The district court granted summary judgment to
UIC on the ground that Russell had no evidence
that there was a causal link between her
complaint to Margherone about his behavior and
the discipline she received. We agree. By the
time Russell and her colleagues complained to
Margherone about his conduct, on the morning of
January 7, 1993, the disciplinary process was
already well underway. This was two days after
Margherone met with Russell to discuss the
misstatement on her time sheet. The unrebutted
evidence presented by UIC is that Margherone
decided on January 5 to seek formal disciplinary
measures against Russell. Between January 5 and
7, he took steps to do so, consulting with Hearn,
Kombrink, O’Leary, and Spannraft. As the district
court pointed out, by the time Russell met with
Margherone on the 7th, he had already prepared
the disciplinary action letters. On these facts,
there can be no inference that Margherone’s own
decision to discipline Russell was causally
related to her protected activity. (Indeed,
neither O’Leary nor Spannraft, both of whom
learned about the problem before January 7 and
later participated in the final disciplinary
hearing, would have had their assessments of the
situation tainted by the yet-to-be-voiced
complaint either.)

  Because UIC’s liability is vicarious, it cannot
be held liable for something that would not stick
to Margherone himself. This is true even if
others eventually participated in the decision to
impose discipline, which was the case here. There
is no evidence that the other members of the
committee had any reason to believe that
Margherone had triggered the disciplinary
proceeding for retaliatory reasons, nor is there
any evidence that they were aware of her
complaint. On this record, UIC cannot be held
liable on a retaliation theory.

III

  For these reasons, we AFFIRM the district court’s
judgment granting summary judgment in favor of
UIC on Russell’s hostile work environment and
retaliation claims. We REVERSE the judgment on her
sex discrimination claim and REMAND for further
proceedings, because we conclude that the five-
day disciplinary suspension she suffered was
enough to constitute an adverse employment action
for purposes of Title VII, and we find no other
alternate ground on which to affirm. Each party
shall bear its own costs on appeal.
