In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1678

DANA HOFFMAN-DOMBROWSKI,

Plaintiff-Appellant,

v.

ARLINGTON INTERNATIONAL RACECOURSE, INC.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 1525--James H. Alesia, Judge.

Argued January 8, 2001--Decided June 19, 2001



  Before Posner, Manion, and Kanne, Circuit
Judges.

  Kanne, Circuit Judge. After being passed
over for a promotion and transferred to
another facility, plaintiff-appellant,
Dana Hoffman-Dombrowski (Dombrowski)
filed suit in federal court alleging that
her employer, Arlington International
Racecourse, Inc., engaged in unlawful sex
discrimin-ation and retaliation in
violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. sec. 2000e,
et seq. Arlington moved for summary
judgment, and the district court granted
the motion. The district court found that
the plaintiff failed to show all of the
elements necessary to make out a prima
facie case on either claim. We agree with
the district court’s conclusion;
therefore, we affirm.

I.   History

  Arlington operates Arlington
International Racecourse, a horse racing
facility located in Arlington Heights,
Illinois. In addition to the live meet,
Arlington also owns and operates several
inter-track wagering ("ITW") and off-
track betting ("OTB") facilities where
customers can place wagers on races run
at Arlington and other racetracks. The
largest of these facilities, Trackside,
is an ITW located next door to the live
meet in Arlington Heights.

  Dombrowski began working part-time for
Arlington in 1980 while she was still in
high school. In 1982, Dombrowski accepted
a full time position at Trackside working
information windows. Between 1983 and
1995, she held various positions at
Arlington’s live meet and at Trackside
including assistant money room head,
floor supervisor, assistant mutuel/1
manager, auditor, and head trainer. In
1995, Dombrowski was named Trackside’s
building manager. As building manager,
Dombrowski was given full authority to
hire, fire, and discipline the managers
in the mutuel department as well as the
mutuel clerks. She was also given respon
sibility over the money room. According
to Dombrowski, she accepted this
transfer, which included a $17,000 pay
cut, in exchange for a promise that she
would be named the general manager of
that facility at some unspecified time in
the future. In early 1996, the acting
general manager of Trackside, Ed Jamison,
asked plaintiff to apply for a
vacantgeneral manager position at one of
Arlington’s OTB facilities, Waukegan OTB.
Plaintiff declined to apply, stating that
she would wait for a promotion at
Trackside. In June of 1996, Dombrowski
became one of three assistant managers at
Trackside.

  That same month, Scott Lager was hired
for the position that Dombrowski claims
she was promised--general manager of
Trackside. Dombrowski was angered by
this, and felt that she had been passed
over for the position because of her sex.
She spoke with Arlington’s human
resources manager, Linda Kica, as well as
Arlington’s Vice-President of Off-Track
Operations, Jim Stumpf, to express her
concern that she was being treated
unfavorably because of her sex. During
Dombrowski’s conversation with Stumpf, he
allegedly told her that she would never
be promoted because Mr. Duchossois (the
owner of Arlington) does not promote
women. Kica reportedly advised Dombrowski
to think twice about complaining to upper
management because that would be a
"career decision." Ignoring Kica’s
advice, Dombrowski proceeded to meet with
Arlington CEO Scott Mordell. In the
course of the meeting, Mordell allegedly
promised Dombrowski that if she agreed to
train Lager, who did not have prior
experience in mutuel wagering, she would
be named assistant general manager of
Trackside. At the time of this
conversation, Arlington did not employ an
assistant general manager at Trackside--
it was the only off-track facility
without an employee in this position.

  Dombrowski proceeded to train Lager in
all facets of his position, but she was
not named to the position of assistant
general manager of Trackside. Instead,
she claims, she was forced to endure
numerous instances of unfair and
discriminatory treatment. Dombrowski
claims that Lager purposefully changed
her schedule so that it would be
impossible for her to drop her children
off at daycare and still make it to work
on time. She also claims that Lager
called her a "vindictive manager" and
encouraged her to meet Stumpf for drinks
if she wanted her career to change.
Dombrowski also states that Stumpf made
it a practice of having drinks at
Trackside and on numerous occasions
insinuated that her ability to advance at
Arlington was dependent on whether or not
she began a romantic relationship with
him.

  Dombrowski also contends that Arlington
targeted her by secretly videotaping the
manager’s office. On September 5, 1997, a
written warning was issued to Dombrowski
after she was caught on video allowing
unauthorized persons into the office area
at Trackside. This warning came six
months after Lager circulated a
memorandum to all managers informing them
that only Arlington employees were
allowed in the office areas. Dombrowski
admits that she violated the policy, but
she claims that she should not have been
disciplined because the practice of
allowing "VIP" customers into the office
area was tacitly approved by management.

  Shortly thereafter, Arlington announced
its intention not to participate in the
1998 live racing season and to
indefinitely close Arlington
International Racecourse. Accordingly,
Arlington reduced its workforce from 400
to 250 employees and transferred several
managers from the live meet to Trackside.
Two Trackside managers, including
Dombrowski, were transferred to other OTB
facilities. Dombrowski learned of her
transfer on October 15, 1997 during a
meeting with Kica, Lager, and Stumpf.
During that meeting, Dombrowski was
presented with a memo informing her that
she was to be transferred to Waukegan OTB
as an assistant manager. Angered and
surprised by this news, Dombrowski told
Lager that he was incompetent and that he
would be nothing without her. Lager
responded by telling Dombrowski that she
had already been replaced and that her
career at Trackside was over. He also
told her that if she didn’t like being
transferred that she should just quit. On
the same day that plaintiff was
instructed to report to Waukegan OTB,
Arlington named Dan Majchrzak, the former
assistant manager of mutuels at the live
meet, to the newly created position of
assistant general manager at Trackside.
According to Arlington, the creation of
this position was necessitated by the
reconfiguration of the business that
resulted from the live meet closure.

  Dombrowski’s transfer to Waukegan did
not affect her title or compensation. In
fact, she earns more than both Waukegan’s
general manager and assistant
generalmanager, and is the highest paid
assistant manager at Arlington.
Nonetheless, Dombrowski feels that the
transfer to Waukegan OTB is a step down
because her responsibilities have been
greatly reduced and Waukegan is a "small,
dirty, roach infested facility so crime
ridden that guards and police officers
must escort her to her car in the
evening." Dombrowski claims that
defendants hoped that she would quit
rather than accept the transfer to the
Waukegan facility.

  Dombrowski is now one of four assistant
managers at Waukegan OTB. The parties
vigorously dispute whether Dombrowski’s
responsibilities decreased as a result of
her transfer, but she claims that she
went from preparing the mutuel budget and
payroll and staffing hundreds of clerks
to scheduling one part time and four full
time clerks. Now, she claims, her biggest
responsibility is emptying lottery
machines three times a week. On November
12, 1997, Dombrowski again met with
Mordell to express her feeling that she
was transferred because of her sex.
Mordell denied this and told her that the
transfer would be good for her career at
Arlington because working at a different
facility would allow her to see the big
picture of Arlington’s operation.
Dombrowski claims that shortly after this
meeting, her father and sister, both
Arlington employees, were subjected to
adverse employment actions.

  In March 1998, plaintiff filed suit in
federal court alleging that she was the
victim of sex discrimination as well as
retaliation for reporting sex
discrimination. Arlington moved to
dismiss certain portions of plaintiff’s
complaint as time-barred. The district
court granted the motion and issued an
order specifically limiting plaintiff’s
claims to conduct occurring after
February 6, 1997./2 On February 14,
2000, the district court granted summary
judgment for Arlington on Dombrowski’s
discrimination and retaliation claims.
The district court found that Dombrowski
failed to make out a prima facie case on
either claim, and that even if she had
been able to, that Arlington had
articulated a non-pretextual business
reason for its actions.

II.    Analysis

A.  Standard of Review
  We review de novo the district court’s
decision to grant summary judgment for
Arlington, viewing the evidence and
drawing all inferences in favor of the
nonmoving party. See Oest v. Ill. Dept.
of Corr., 240 F.3d 605, 610 (7th Cir.
2001). Summary judgment is appropriate
only 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986). A disputed
fact is only material if it "might affect
the outcome of the suit under the
governing law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986).

B.    Sex Discrimination

  As we know, of course, Title VII makes
it unlawful to discriminate against an
employee because of her sex. See 42
U.S.C. sec. 2000e-2(a)(1). Dombrowski
advances two claims of sex
discrimination. She argues that Arlington
violated Title VII both by failing to
promote her to assistant general manager
of Trackside/3 and also by transferring
her to Waukegan OTB. An employee alleging
sex discrimination may prove her claim
either directly or indirectly. See Oest,
240 F.3d at 611 (7th Cir. 2001).
Dombrowski has not presented evidence of
discrimination using the direct method
for either of the challenged actions,
therefore she must proceed using the
burden-shifting method articulated in
McDonnell Douglas Corp v. Green, 411 U.S.
792, 802-05, 93 S. Ct. 1817, 36 L. Ed.
2d. 668 (1973). See O’Regan v.
Arbitration Forums, Inc., 246 F.3d 975,
983 (7th Cir. 2001). To show
discrimination indirectly, Dombrowski
must first make out a prima facie case by
showing the following: (1) she is a
member of a protected class; (2) she was
performing her job in a satisfactory
manner; (3) she was subjected to an
adverse employment action; and (4)
similarly situated employees were treated
more favorably. See Russell v. Bd. of
Trs. of the Univ. of Ill., 243 F.3d 336,
341 (7th Cir. 2001). Once she has done
so, the burden shifts to the defendant to
put forth a legitimate, non-
discriminatory business reason for the
challenged action. See id. If the
defendant meets this burden, the burden
then shifts back to the plaintiff to show
that the articulated reason is
pretextual. See id.

   Arlington does not dispute that
Dombrowski has properly shown the first
two elements of her prima facie case with
respect to both of the actions she
challenges here. Nor does Arlington
dispute that Dombrowski has met the third
requirement--that she was subjected to an
adverse employment action--with respect
to the denial of promotion claim.
Arlington maintains, however, that
Dombrowski’s transfer to Waukegan OTB was
not adverse because it was a lateral move
that did not affect her salary, benefits,
or job title.

  Arlington is correct that "not
everything that makes an employee
unhappy" will suffice to meet the   adverse
action requirement. Smart v. Ball   State
Univ., 89 F.3d 437, 441 (7th Cir.   1996).
Our cases provide, however, that
anostensibly lateral transfer may   be an
adverse employment action in some
situations if it is accompanied by a
"dramatic downward shift in skill level
required to perform job
responsibilities." Dahm v. Flynn, 60 F.3d
253, 257 (7th Cir. 1994); see also
Fortier v. Ameritech Mobile
Communications, Inc., 161 F.3d 1106, 1112
n.7 (7th Cir. 1998). Dombrowski claims
that her job responsibilities were indeed
severely diminished. The district court
found that Dombrowski had put forth
sufficient evidence to create a genuine
issue of material fact as to whether or
not her transfer constituted an adverse
employment action. We agree. Viewing the
evidence in the light most favorable to
Dombrowski, as we must, we find that a
rational jury could find that her
responsibilities were diminished to such
an extent that she suffered an adverse
employment action. Therefore, we agree
with the district court that, for the
purposes of summary judgment, Dombrowski
has met the third requirement of her
prima facie case for the discriminatory
transfer claim.

  Dombrowski has not, however, met the
fourth element of her prima facie case
for either of the challenged actions
because she has not named a similarly
situated male that was treated more
favorably. Dombrowski does not even
attempt to identify any similarly
situated male with regard to her transfer
claim. With respect to the denial of
promotion claim, Dombrowski argues that
Dan Majchrzak, the individual appointed
to be assistant general manager of
Trackside, is a similarly situated male
who was treated more favorably. Although
Majchrzak did receive the position that
Dombrowski wanted, he was not similarly
situated to Dombrowski at the time of his
promotion. Dombrowski and Majchrzak were
not similarly situated because they did
not hold the same or equivalent positions
at the time that Arlington decided to
promote Majchrzak to the position of
assistant general manager at Trackside.
See Radue v. Kimberly-Clark Corp., 219
F.3d 612, 618 (7th Cir. 2000) (explaining
that an employee must show substantial
similarity in order to meet the similarly
situated requirement). At that point,
Dombrowski was an assistant manager at
Trackside while Majchrzak was employed as
the assistant director of mutuels.
Arlington submits that Majchrzak’s move
from his previous position to assistant
general manager of Trackside was a
lateral move, while it would have
unquestionably been a promotion for
Dombrowski. Dombrowski has not come
forward with any evidence to rebut this
contention. Instead, she argues that she
was entitled to the promotion because she
had more seniority than Majchrzak and
Arlington’s personnel policy provides
that seniority will be the determining
factor between two roughly equivalent
candidates. This argument fails, however,
because the personnel policy only comes
into play if the candidates are
equivalent, and as we have just stated,
Majchrzak held a higher level position
than Dombrowski.

  Instead of naming a similarly situated
male, Dombrowski attempts to satisfy the
fourth requirement of the prima facie
case by pointing out that from September
to November 1997, there were
approximately equal numbers of male and
female assistant managers, but a
disproportionately greater number of male
assistant general managers and general
managers. Although evidence of a glass
ceiling might be appropriate
circumstantial evidence of discrimination
under the direct-proof method, it does
not satisfy the similarly situated prong.
Moreover, such an argument would require
more than a bare recitation of the
numbers of males and females in various
positions. See Radue, 219 F.3d at 616-17
(stating that "[s]tatistical evidence
which fails to properly take into account
nondiscriminatory explanations does not
permit an inference of discrimination").
Dombrowski has not shown that she was
treated less favorably than any similarly
situated male employee.

  Even assuming, arguendo, that Dombrowski
had met all of the requirements of the
prima facie case, Arlington has presented
a legitimate, non-discriminatory reason
for transferring her to Waukegan OTB and
for declining to promote her to the
position of assistant general manager at
Trackside. According to Arlington, the
actions of which Dombrowski complains are
a result of the reorganization that
occurred once the decision was made to
suspend live racing indefinitely. It is
undisputed that following this decision,
Arlington was forced to reduce its
workforce from 400 to 250 employees.
Arlington also contends that the need to
create the assistant general manager
position at Trackside did not arise until
the closure of the live meet. At that
point, Arlington claims that additional
supervisors were needed at Trackside
because the OTBs and ITWs were to become
the mainstay of Arlington’s business.
Arlington also states that its decision
to name Majchrzak to that position was a
result of its desire to retain a core
group of management employees in the
event that live racing was resumed in the
future. Majchrzak was one of about five
managers who were transferred from the
live meet to Trackside. Arlington also
maintains that plaintiff and the other
Trackside assistant manager were
transferred to other locations to make
room for the incoming managers at
Trackside and to provide new energy and
leadership to other facilities. Arlington
has presented a legitimate, non-
discriminatory reason for the challenged
actions, thus the burden shifts back to
Dombrowski to show that the articulated
reason is pretextual.

  To show pretext, Dombrowski must
demonstrate that Arlington’s explanation
for either the denial of promotion or the
transfer (1) has no basis in fact, (2)
was not the real reason, or (3) was
insufficient to motivate the action. See
Velasco v. Ill. Dep’t of Human Servs.,
246 F.3d 1010, 1017 (7th Cir. 2001).
Dombrowski first argues that Arlington’s
explanation is pretextual because of the
comments that Lager made to her after she
was informed of her transfer. She cites
Lager’s statement that her career was
over and that she had already been
replaced as evidence that she was not
really being transferred to share her
expertise with the employees at Waukegan
OTB. We find it doubtful that these
comments, made in response to
Dombrowski’s personal attacks on Lager’s
ability to run Trackside, would be
sufficient to convince a factfinder that
Arlington’s cited reason for the transfer
is not the real reason. We need not
decide if plaintiff has presented enough
evidence to raise a genuine issue of
material fact on this issue, however,
because Dombrowski has not presented any
evidence suggesting pretext with respect
to Arlington’s claim that the indefinite
closure of the live meet necessitated
transferring her to a different facility.
See Debs v. N.E. Ill. Univ., 153 F.3d
390, 395 (7th Cir. 1998) ("Where
defendants have proffered more than one
reason for the dismissal, plaintiff must
address all the reasons suggested by the
defendants."). Dombrowski argues that
reorganization was unnecessary because
the live meet closed for several months
every year. As the district court
observed, however, there is a notable
difference between having a few off-
season months per year and having no live
racing at all. Dombrowski has not
provided any evidence tending to show
that the reorganization was not
Arlington’s real reason for deciding to
promote Majchrzak to the position of
assistant general manager and
transferring Dombrowski to the Waukegan
facility. Therefore, we find that the
district court appropriately granted
summary judgment for Arlington on
Dombrowski’s sex discrimination claims.

  C.   Retaliation

  In addition to her disparate treatment
claims, Dombrowski also alleges that she
was denied the promotion to assistant
general manager and transferred to the
Waukegan facility because of her June
1996 meetings with Mordell, Kica, and
Stumpf in which she complained of sex
discrimination./4 Under Title VII,
employers are prohibited from
discriminating "against any . . .
employee . . . because [s]he . . . has
opposed any practice made an unlawful em
ployment practice by [Title VII]." 42
U.S.C. sec. 2000e-3(a). In order to prove
a claim of retaliation, a plaintiff must
either present direct evidence of
retaliation or utilize a burden-shifting
approach. See Fyfe v. City of Fort Wayne,
241 F.3d 597, 601 (7th Cir. 2001). If the
plaintiff does not have sufficient
evidence to employ the direct-proof
method, she may make out a prima facie
case by showing that: (1) she engaged in
protected expression; (2) she suffered an
adverse job action; and (3) there is a
causal link between the protected
expression and the adverse job action.
See Krause v. City of LaCrosse, 246 F.3d
995, 1000 (7th Cir. 2001). But see
Bourbon v. Kmart Corp., 223 F.3d 469, 477
(7th Cir. 2000) (Posner, J., concurring)
(suggesting that requiring proof of a
causal connection in retaliation cases is
inconsistent with a McDonnell Douglas-
type burden-shifting analysis). As in the
context of a disparate treatment claim,
fulfillment of the prima facie case
shifts the burden to the defendant to
articulate a non-retaliatory action for
the challenged action. If the defendant
does provide a legitimate explanation,
the burden shifts back to the plaintiff
to show evidence that the proffered
reason is pretextual. See Russell v. Bd.
of Trs. of the Univ. of Ill., 243 F.3d
336, 344 (7th Cir. 2001).

  Dombrowski has not shown direct evidence
of retaliation,/5 therefore she must
proceed using the burden-shifting method.
For the purposes of summary judgment, we
will assume that Dombrowski has met the
first two requirements of the prima facie
case. The district court found, however,
that Dombrowski’s retaliation claim
failed at the third prong because she
could not show a causal connection
between her complaint of sex
discrimination and either of the adverse
job actions because of the thirteen month
period between the protected expression
and the adverse action. Dombrowski
complained of sex discrimination in June
of 1996, yet she was not transferred or
denied the promotion to assistant general
manager until October of 1997. We agree
with the district court. "In order to
establish a causal connection via mere
temporal proximity, the employer’s
adverse action must follow fairly soon
after the employee’s protected conduct."
Fyfe, 241 F.3d at 603. Dombrowski argues
that thirteen months is not the relevant
time period because the retaliation began
before she was denied the promotion or
transferred to the Waukegan facility. She
argues that Lager began retaliating
against her immediately after she
complained about sex discrimination by
changing her schedule, secretly
videotaping her, giving her a warning for
allowing unauthorized persons in the
manager’s office, and encouraging her to
spend more time with Stumpf. None of
these actions are sufficient to sustain a
retaliation claim, however, because they
are not materially adverse actions. See
Crady v. Liberty Nat’l Bank & Trust Co.
of Ind., 993 F.2d 132, 136 (7th Cir.
1993) (stating that an action must be
more than "a mere inconvenience or an
alteration of job responsibilities" in
order to constitute an adverse employment
action).
  Even if Dombrowski had met all of the
requirements of a prima facie case of
retaliation, her claim would still fail,
because, as we discussed in Part II. B,
Arlington has provided legitimate
business reasons for deciding not to
promote Dombrowski to the assistant
general manager position and for
transferring her to Waukegan. She has not
provided evidence showing that the
proffered reasons are pretextual.
Therefore, we find that the district
court correctly granted summary judgment
for Arlington on plaintiff’s Title VII
retaliation claim.

III.   Conclusion

  We find that Dombrowski has failed to
establish a prima facie case on either
her disparate treatment claim or her
retaliation claim. Therefore, we AFFIRM
the decision of the district court.

FOOTNOTES

/1 "Mutuel" is a shortened form of the word "pari-
mutuel" which refers to a system of wagering in
which customers who bet on the winner share the
total stakes less a small percentage taken by the
management.

/2 Dombrowski does not appeal this order.

/3 Because the district court ruled that Dombrowski
may not pursue relief for conduct occurring
before February 6, 1997, Dombrowski is limited to
challenging Arlington’s October 1997 denial of
promotion--the promotion to the assistant general
manager position. Thus, Dombrowski may not chal-
lenge Arlington’s June 1996 decision to hire
Lager as the general manager of Trackside. Evi-
dence relating to that action, such as Stumpf’s
comment that "Mr. Duchossois does not promote
women," is therefore inadmissible.

/4 Dombrowski also appears to complain that Arling-
ton retaliated against two of her family members
who were employed at Arlington, but she has
waived this argument by failing to fully address
it. See Goren v. New Vision Int’l., Inc., 156
F.3d 721, 726-27 n.2 (7th Cir. 1998).

/5 Kica’s statement that complaining about discrimi-
nation would be a "career decision" does not
constitute direct evidence of discrimination
because Kica was not a decision maker with re-
spect to either the denial of the promotion or
the transfer.
