                               UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53



            United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                              Submitted May 31, 2006*
                               Decided June 1, 2006

                                       Before

                     Hon. TERENCE T. EVANS, Circuit Judge

                     Hon. ANN CLAIRE WILLIAMS, Circuit Judge

                     Hon. DIANE S. SYKES, Circuit Judge

No. 05-4343

PAMELA M. SPRAGUE,                                   Appeal from the United States
    Plaintiff-Appellant,                             District Court for the Southern
                                                     District of Indiana, Indianapolis
      v.                                             Division

MAC’S CONVENIENCE STORES, LLC,                       No. 1:03-CV-01532
     Defendant-Appellee.
                                                     Larry J. McKinney,
                                                     Chief Judge.

                                     ORDER

        Pamela Sprague sued Mac’s Convenience Stores, LLC (“Mac’s”), alleging that
it violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Mac’s
successfully moved for summary judgment, and Sprague now appeals. We vacate
the district court’s grant of summary judgment and remand.




      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See Fed. R. App. P. 34(a)(2).
No. 05-4343                                                                     Page 2
       In 2003, Sprague filed a complaint against Mac’s alleging that her supervisor,
Beth Edwards, fired her in March 2003 because she did not respond to Edwards’s
sexual advances. Sprague also claimed that she was subsequently banned from
Mac’s properties in retaliation for pursuing her harassment suit. The facts
detailing her claim, which we review in a light most favorable to Sprague, see
Ballance v. City of Springfield, 424 F.3d 614, 616 (7th Cir. 2005), are as follows:

       Sprague had been a store manager for Mac’s since 1997. Up until the few
days before she was fired in March 2003 she was a successful manager. She
received good reviews from her superiors, numerous bonuses, and several “Store
Image Awards.” But in January 2003, Edwards became Sprague’s supervisor and
things began to change as Edwards began to make several “sexual advances”
toward Sprague. The most notable of these incidents are: (1) Edwards repeatedly
reminded Sprague that Edwards was gay; (2) Edwards stared at Sprague in “a way
that was very offensive,” and made Sprague uncomfortable; (3) Edwards gestured
for Sprague to sit on her lap; (4) Edwards admitted to Sprague that she read
Sprague’s personal e-mails; and (5) Edwards once brushed her breasts against
Sprague’s back when walking past her. In February 2003, Sprague told Edwards’s
supervisor, Mark Kesmodel, that “she was very uncomfortable working for
Edwards” and that she was concerned that her “obvious objections” to Edwards’s
“come-ons” would affect her job performance. Kesmodel assured Sprague that he
would talk to Edwards about her behavior. He then arranged for the three to meet
and discuss Sprague’s concerns, but Edwards quickly turned the conversation to
Sprague’s criticisms of certain company policies, such as the recently revised policy
governing the company uniform. The meeting closed with Edwards telling Sprague
to “Turn around, let me see the tag on your pants,” in a purported effort to see if she
was abiding by the new policy.

       On March 4, 2003, Edwards met with Sprague over lunch to deliver her
annual performance evaluation. Sprague received a good evaluation and a pay
raise. But after Edwards completed the evaluation, she insisted on continuing the
lunch for several more hours. During this time, Edwards told Sprague that her
domestic partner liked Sprague, and invited Sprague over to their house to swim
with them in their swimming pool. Edwards then explained that she wanted to
share a hotel room with Sprague during an upcoming company conference. Finally,
Edwards told Sprague that she “liked women who do exactly what [she] tells them
to do,” while looking at Sprague in a way that made Sprague feel uncomfortable.
Sprague repeatedly attempted to steer the conversation back to work-related topics
in an attempt to reject Edwards’s advances.

       Edwards became hostile toward Sprague shortly after Sprague’s rebuff of
Edwards at the extended lunch. For example, when Sprague questioned the
efficacy of various store and market operational procedures to corporate officials,
No. 05-4343                                                                  Page 3
Edwards confronted her, stating that she overstepped her bounds as a store
manager. The situation came to a head on March 12 when Edwards excoriated
Sprague over inquiries Sprague made to another store manager about certain
managerial decisions the manager made.

       In response to this dispute, Sprague told Kesmodel that she had “some
problems that are getting out of hand.” Edwards, in contrast, attempted to tender
her resignation because she felt she was “reduced to nothing more than a bumbling
person unable to accomplish nothing but pacifying [Sprague] on a daily basis.”
Kesmodel refused to accept Edwards’s resignation, and “told Edwards that the
decision was hers. She could discharge Sprague if she chose.” Edwards then
“decided to discharge Sprague” on March 17. Shortly thereafter, Edwards
instructed Mac’s employees to call law enforcement if Sprague entered their stores.

       The district court granted summary judgment for Mac’s because, in its view,
“Edwards had no effect on the decision to terminate Sprague’s employment,” and
because she did not show that Edwards’s behavior “was severe enough to rise to the
level of actionable sexual harassment.” The court also stated that Sprague failed to
show that she was retaliated against because she did not demonstrate that she was
treated less favorably than other similarly situated employees. We review a grant
of summary judgment de novo, Bio v. Fed. Express Corp., 424 F.3d 593, 596 (7th
Cir. 2005), and will affirm only if the record establishes that “there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law,” see Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986).

       The district court erred in concluding there was insufficient evidence to
support Sprague’s claim that she suffered sexual harassment that resulted in a
tangible employment action. A plaintiff can prove sexual harassment by showing “a
tangible employment action resulted from a refusal to submit to a supervisor’s
sexual demands.” Burlington Indus. v. Ellerth, 524 U.S. 742, 753-54 (1998);
Haugerud v. Amery Sch. Dist., 259 F.3d 678, 692-93 (7th Cir. 2001). The alleged
harasser must be a direct supervisor who has the authority to impose a “tangible
employment action” on the plaintiff, see Hrobowski v. Worthington Steel Co., 358
F.3d 473, 478 (7th Cir. 2004), such as the power to terminate employment, see
Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000). Whenever sexual harassment
leads to a tangible employment action, the employer is liable without more, see
Wolf, 250 F.3d at 1142; Molnar, 229 F.3d at 600.

     Contrary to the district court’s reasoning, Sprague presented evidence that
Edwards exercised her authority as a market manager to terminate Sprague’s
employment: the “Statement of Position” Mac’s submitted to the Equal Employment
Opportunity Commission that states “Edwards decided to discharge Sprague,” and
No. 05-4343                                                                    Page 4
Edwards’s deposition testimony in which she states that she had the authority to
terminate store managers prior to 2004. This evidence creates a genuine issue of
material fact that the district court could not resolve on summary judgment. See
Quantock v. Shared Marketing Servs., Inc., 312 F.3d 899, 904-05 (7th Cir. 2002)
(reversing district court’s grant of summary judgment because the district court
incorrectly concluded that there was no issue of disputed fact whether the alleged
harasser was the plaintiff’s supervisor); Haugerud, 259 F.3d at 693-97 (reversing
district court’s grant of summary judgment when the district court incorrectly found
that there was no issue of disputed fact after inaccurately summarizing plaintiff’s
numerous claims of sexual harassment).

        Moreover, for the remaining elements of her harassment claim, Sprague has
presented evidence from which a jury could reasonably infer that Edwards sexually
propositioned her and terminated her because of her rejection. Specifically, there is
evidence that Edwards repeatedly told Sprague that she was gay, invited Sprague
to sit on her lap, brushed her breasts across Sprague, invited Sprague to swim with
her and her domestic partner, and share a hotel room together. Moreover, Edwards
monitored Sprague’s personal e-mails and, after all of this, darkly warned Sprague
in the context of a sexually suggestive conversation following her performance
review that she “liked women who do exactly what [she] tells them to do.” Mac’s
argues that Edwards’s comments do not rise to the level of actionable sexual
harassment because they were not “sufficiently severe or pervasive.” However, the
several cases that Mac’s relies on do not address instances where a supervisor made
what could be reasonably inferred to be a warning about the employee’s job security
if she does not submit to the supervisor’s sexual advances. Here, Edwards’s
statement that she “liked women who do exactly what [she] tells them to do” could
be seen as constituting such a warning, and when combined with the rest of
Edward’s actions, creates a reasonable inference that, if accepted by the trier of
fact, sexual harassment occurred. See Cooke v. Stefani Mgmt. Servs., 250 F.3d 564,
565-67 (7th Cir. 2001) (upholding jury verdict finding employer liable where gay
manager subjected male employee to “sexual propositions, inappropriate touching,
and non-verbal gestures of a sexual nature” that the employee considered to be
“unwelcome, offensive, and degrading”).

       However, the district court correctly determined that Sprague failed to show
that Edwards or Mac’s retaliated against her by banning her from entering Mac’s
stores. To establish a prima facie case of retaliation, Sprague must point to
evidence showing that she was treated less favorably than similarly situated
employees who did not make complaints. See Racicot v. Walmart Stores, Inc., 414
F.3d 675, 678 (7th Cir. 2005) (citing Stone v. City of Indianapolis, 281 F.3d 640, 644
(7th Cir. 2002)). At the very least, a similarly situated employee would be another
discharged employee who did not pursue a harassment claim and who was not
banned from Mac’s stores. See Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir.
No. 05-4343                                                                    Page 5
2004) (stating that similarly situated employees “must be ‘directly comparable in all
material respects’ to the plaintiff”) (citation omitted); see also Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir. 2000) (suggesting that, in the
context of larger corporations, “similarly situated” employees must be subject to the
same decision-maker as the plaintiff). However, beyond making a conclusory claim
in her brief that similarly situated employees exist, Sprague points to no evidence
in the record of such an employee, and her retaliation claim thus fails as a matter of
law. See Racicot, 414 F.3d at 678 (citing Stone, 281 F.3d at 644).

       Accordingly, we VACATE the judgment of the district court on the sexual
harassment claim and REMAND for proceedings consistent with this opinion. Each
side shall bear its own costs.
