In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2488

LEANNA KRAUSE,

Plaintiff-Appellant,

v.

CITY OF LA CROSSE, et al.,

Defendant-Appellees.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 0389--Barbara B. Crabb, Judge.


Argued November 7, 2000--Decided April 10, 2001



  Before BAUER, COFFEY, and EASTERBROOK, Circuit
Judges.

  COFFEY, Circuit Judge. On July 11, 1999,
plaintiff-appellant Leanna Krause and co-
plaintiff Nancy O’Neal/1 filed a complaint in
the Federal District Court for the Western
District of Wisconsin alleging claims of sex
discrimination, sexual harassment and retaliation
against their employer, the City of La Crosse,
Wisconsin, and their supervisors, Gene Pfaff and
Wayne Delagrave, in violation of 42 U.S.C. sec.
1983, Title VII of the Civil Rights Act, and the
Equal Pay Act. Upon motion of the defendants, the
trial judge granted summary judgment against
Krause on each of her claims. On appeal, Krause
raises only the trial court’s dismissal of her
retaliation claims under Title VII and the Equal
Pay Act. We affirm.

I.   BACKGROUND

  Leanna Krause was employed as an account
analyst for the City of La Crosse’s finance
department from October 8, 1989, through January
1999./2 As an account analyst, Krause was under
the supervision of the Director of the Finance
Department, Gene Pfaff, and the Deputy Director
of Finance, Wayne Delagrave. Prior to the
relocation of her office in March 1998, Krause
and three other Finance Department employees, Sue
Wierman, Kelley Branson, and John Gallagher, were
stationed at desks in a front office room. Krause
and the other employees were responsible for
handling customers at the counter and answering
telephone calls from the public. However,
Krause’s fellow employees (Wierman, Branson, and
Gallagher) testified that Krause would routinely
refuse to answer phone calls or wait upon members
of the public at the counter. Although Krause
denies this allegation, she does admit that she
repeatedly requested permission to move her
workspace from the front office area to an
underutilized back room in the City’s Finance
Department.

A.   Krause Complains

  As a non-union city employee, Krause was
subject to a "merit pay plan" under which annual
performance evaluations determined whether
employees were eligible for pay increases./3
Under this plan, performance evaluations were
sent to the City’s Personnel Department where the
Personnel Director evaluated the reports and
recommended a salary adjustment to the Finance
and Personnel Committee. It is undisputed that
for the years 1994 through 1998, Krause annually
received performance ratings that were
consistently below the average performance
ratings of other city employees. Consequently,
she did not receive a merit raise in any of these
years. After being informed at her annual merit
review meeting on February 23, 1998, that she
would not receive a merit-based pay raise, Krause
complained to Delagrave that she was being
discriminated against with respect to merit
increases because she is a woman.

B.   Krause Moves

  Shortly thereafter, on March 6, 1998, Delagrave
informed Krause that he had decided to grant her
long-standing request to move her work space from
the front office to the back office, explaining
that the move resulted from his recent
observation of a certain amount of tension in the
front office.

  On March 10, 1998, Delagrave issued Krause a
letter of reprimand, which stated in part:

This will confirm our discussion Friday regarding
relocation of your work space. I am putting this
in writing so that there are no misunderstandings
as to what is taking place.

As I mentioned, I have specifically taken the
opportunity to observe the front office area for
the last 2 weeks. I was extremely disappointed
at your level of professionalism, lack of
courtesy and consideration given to departmental
coworkers as well as the lack of effort to be a
departmental team player. I expect more from you
and so should you.

You have left me no choice but to relocate your
work space in order to ease office tension. As
soon as arrangements can be made, you will be
able to occupy your new space.

I have made you aware of possible conflicts and
problems in doing this relocation; auditors,
census workers, and interns sharing work space,
printer noise, different equipment, and location
of data that must be shared by everyone in the
department (most of which will have to remain in
the front office area until we can work out
another solution) all of which you have
acknowledged.

  In response to   Delagrave’s letter, Krause gave
Finance Director   Pfaff a letter dated March 23,
1998, explaining   that she was pleased to move to
the back office,   but objected to the criticism
accompanying the   move:

This letter is in response to the letter (see
attached), written by Wayne Delagrave on March
10th, regarding my "relocation of work space":
(sic) On Friday, March 6th, Wayne asked for a
moment of my time to step into his office. He
stated to me (in a positive tone) that he had
been observing my professionalism in the office
for the last couple of weeks (since my merit
review took place). He further stated that "after
observing me" he had decided to "grant" my
request (which I have made during each and every
merit review for the last six years) to move from
the front office to the back unutilized area.

* * * *

I didn’t question being moved since I had
repeatedly requested this move and since the
other three staff members out front are union
members. I have also worked out in the front
office longer than the other three employees.
Wayne and I did discuss some of the possible
conflicts which could arise, such as covering the
union worker’s (sic) breaks and location of
needed data.

* * * *

I left Wayne’s office pleased that he had talked
to you (as requested during my merit review), and
that this move would relieve congestion and free
up workspace in the front office.

On Tuesday, March 10th, a letter written by Wayne
Delagrave was sitting on my chair when I arrived
at work. I was shocked and dismayed when I read
the letter which stated that "he had no choice
but to relocate me to relieve office tension."

* * * *

To repeat myself, the relocation of my work space
has been a positive in this department’s work
environment (of harassment against me), as agreed
in our March 12th meeting.

  Although Krause’s March 23, 1998 letter reveals
that she initially viewed the move as a positive
change, in time she grew to dislike her new
surroundings. In her appellate brief, Krause
asserts that she frequently complained to
Delagrave that her new office area had not been
renovated as she had envisioned, but instead "was
noisy and dingy and remained cluttered with old
computers, boxes and assorted junk." She also
contends that she informed Delagrave and Pfaff of
the need for renovations in the back office. Her
deposition testimony, however, reveals that she
did not inform her supervisors that her request
to move to the back office was conditioned on
renovation of that area. For example, when
examined by defense counsel, she testified:

Q: My understanding, and correct me if I’m wrong,
is that you wanted to move to the back room?

A: I had asked to move to the back unutilized
space.

Q: So if you wanted to go back there, explain to
me why you’re alleging [now] that it’s a noisy
and inappropriate location?

A: Because it was not reformulated into office
space.

  Later in her deposition, however, Krause
admitted that she had not told Pfaff or Delagrave
that her desire to move was conditioned on the
back office being renovated.

C.   Procedural History

  When Pfaff did not respond to Krause’s letter
of March 23, 1998, she went to the City’s
Personnel Director, James W. Geissner, and
complained. Geissner asked Krause to put together
a list of concerns about working with Pfaff and
Delagrave. Krause compiled a list containing
literally dozens of complaints. On May 29, 1998,
Krause and her husband met with Geissner, Pfaff,
and Delagrave in an effort to discuss her
grievance. After this meeting, Geissner decided
to bring in attorney Susan Love to investigate
Krause’s complaints and issue a report of her
findings. After reviewing Love’s report, the
City’s mayor issued a written reprimand to Pfaff
for exercising "poor judgment" in managing the
employees of the Finance Department.

  Emboldened by the reprimand to Pfaff, Krause
filed a discrimination complaint with the Equal
Rights Division on August 24, 1998. On June 11,
1999, Krause and co-plaintiff Nancy O’Neal/4
filed a complaint in the Federal District Court
for the Western District of Wisconsin against the
City, Pfaff and Delagrave asserting claims of sex
discrimination, sexual harassment, and
retaliation. On March 28, 2000, the district
court granted summary judgment to the defendants
on each of Krause’s claims. In dismissing the
retaliation claims, the only issues on appeal,
the trial court wrote:

  In order to prove retaliation, plaintiff must
make out a prima facie case that consists of
three elements: 1) she engaged in protected
expression; 2) she suffered an adverse action by
her employer; and 3) there is a causal link
between her protected expression and the adverse
action. Plaintiff has overcome the first hurdle.
The second one is more difficult. The facts and
law do not support her claim that her move and
her reprimand constitute adverse employment
actions. It is undisputed that plaintiff had been
asking for some time to make the exact move
Delagrave directed her to make. She wanted to be
away from the counter and the phones. She was
pleased when Delagrave told her she was to make
the move. Her mood did not sour until she saw
Delagrave’s written reasons for the move. Thus,
her real objection to the move, and her only one,
is that it was the result of perceived
deficiencies in her job performance, as
documented by the letter of reprimand Delagrave
left on her chair.

* * * *

  It was only when she saw the letter and
realized how she had achieved the move that she
considered it to be punishment. Plaintiff cannot
characterize her move as a separate punishment
when it was the very thing she had wanted all
along.

  Finally, the causal connection [the third
hurdle] between defendants’ acts and her
complaint of sex discrimination is tenuous at
best.

* * * *

  In summary, I conclude that plaintiff Krause
cannot make out any of her claims of sex
discrimination under 42 U.S.C. sec. 1983 or
illegal retaliation under the Equal Pay Act or
Title VII.

II.    DISCUSSION

  We review the district court’s decision to
grant summary judgment de novo, viewing the
record in the light most favorable to Krause and
drawing all reasonable inferences in her favor.
Williams v. Chartwell Fin. Servs., 204 F.3d 748,
752 (7th Cir. 2000). Summary judgment is
appropriate whenever "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); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). "If no reasonable jury could find for
the party opposing the motion, it must be
granted." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).

A.  Retaliation
  Krause contends that the district court
improperly granted summary judgment on her claims
of retaliation under Title VII and the Equal Pay
Act. As is common in such suits, Krause presented
no direct evidence of discrimination, but
proceeded under the burden-shifting method set
forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under McDonnell Douglas, Krause
must make a prima facie case of retaliation. The
prima facie case includes three elements: (1)
that she engaged in statutorily-protected
expression by complaining about discrimination
covered by Title VII and/or the Equal Pay Act;
(2) that she suffered an adverse job action; and
(3) that there is a causal link between the
protected expression and the adverse job action.
Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997,
1007 (7th Cir. 2000).


  1.    Protected Expression

  With regard to the first factor, both Krause
and the district court relied upon Krause’s
informal complaint of discrimination at a
February 1998 merit review meeting as proof that
she had engaged in statutorily protected
expression. Although we have not yet ruled on the
issue, several other circuits have held that
informal complaints of discrimination constitute
protected expression under Title VII. See, e.g.,
Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir.
1999); EEOC v. Romeo Cmty. Schs., 976 F.2d 985,
989 (6th Cir. 1992); EEOC v. White & Son Enter.,
881 F.2d 1006, 1011-12 (11th Cir. 1989); Love v.
RE/MAX of America, Inc., 738 F.2d 383, 387 (10th
Cir. 1984). Because we are of the opinion that
Krause has failed to establish that she suffered
an adverse employment action, we need not address
the issue of whether Krause’s informal complaint
constituted a protected expression.


 2.   Adverse Employment Action

  Assuming arguendo that Krause’s comments at her
February 1998 performance review are protected
expression, obviously only events that occurred
after that meeting can serve as support for her
claim that she suffered an "adverse employment
action" in retaliation for engaging in the
protected expression. In an attempt to support
her claim, Krause points to two events: (1) the
letter of reprimand she received noting her low
"level of professionalism, lack of courtesy and
consideration given to department workers as well
as the lack of effort to be a department team
player;" and (2) her move to the back office.

  With regard to her claim that the letter of
reprimand constituted an adverse job action, the
plaintiff-appellant ignores firmly established
circuit precedent that a letter of reprimand is
not an adverse employment action unless the
letter is accompanied by some other action, such
as job loss or demotion. Sweeney v. West 149 F.3d
550, 556 (7th Cir. 1998); Smart v. Ball State
Univ., 89 F.3d 437, 442 (7th Cir. 1992). "This
circuit already has concluded that negative
performance evaluations, standing alone, cannot
constitute an adverse employment action . . . ."
Sweeney, 149 F.3d at 556. A review of the record
demonstrates that Krause has not suffered any job
loss or demotion, but on the contrary is still
currently employed with the City of La Crosse and
was recently given a raise. Consequently, the
letter of reprimand is not an adverse job action
under the law of this circuit.

  Similarly, Krause’s claim that the decision to
move her from the front office to the back room
constitutes "adverse action" is meritless.
Although Krause complains in her lawsuit of being
moved to the back office in March of 1998, it is
undisputed that she had repeatedly requested a
move to that area. For example, in her letter of
March 10, 1998, Krause stated: "I didn’t question
being moved since I had repeatedly requested this
move . . . ." (Emphasis added). Krause testified
at her deposition that she had asked to move to
the back room on a number of occasions to gain
more space but "did not tell my supervisor
[Delagrave] or my department head [Pfaff] that it
was conditional" on the renovation of the area.
In fact, Krause’s March 23rd letter to Pfaff
states that she considered the move a "positive"
change despite discussing the potential
"conflicts" and downsides of the move with
Delagrave.

  In short, although Delagrave may have considered
moving Krause to the back office as a form of
punishment, the fact that Krause had continually
requested such a move renders her claim that it
was an adverse employment action meritless. As we
stated in Johnson v. City of Fort Wayne, 91 F.3d
922, 932 (7th Cir. 1996), "a materially adverse
change in employment conditions must be more
disruptive than a mere inconvenience or an
alteration of job responsibilities." As is clear
from the record, including Krause’s letter of
March 1998 and her deposition testimony, she did
not feel the move was either "disruptive" or an
"inconvenience." On the contrary, she was happy
with the move itself, but unhappy about the
criticism contained in the letter that
accompanied her move. We are convinced that
employers are entitled to assume that if an
employee requests to be transferred to another
area of the office, then she actually wants the
transfer. Consequently, we refuse to construe
Krause’s move to the back office, which she had
repeatedly requested during her period of
employment with the city, to be an adverse
employment action./5

B.   Motion for Reconsideration

  On appeal, Krause also appeals the judge’s
denial of her motion to reconsider, arguing that
statements made by Bill Schmidt, a former
Assistant Police Chief for the City of La Crosse,
were admissible and should have been considered
by the trial judge./6 Specifically, Krause’s
motion to reconsider was based on statements made
by Schmidt to Susan Love, the outside
investigator hired by the city to look into the
allegations of sex discrimination. According to
the transcripts of the interview, Schmidt told
Love that he visited Krause after she had moved
to the back room of the accounting office and
found that she was in a room that contained
printers, broken computers, and other items.
Schmidt described the room as "dimly lit, often
the lights are out. There’s no decoration,
there’s no cleanliness." He went on to state
there was "[n]o way in hell I would believe her
if she told me it was a reward. She was punished.
She was placed there as a disciplinary measure
because she was upsetting someone." While
Schmidt’s statements are arguably relevant to
Krause’s retaliation claim, we agree with the
trial judge that they are inadmissable hearsay.

  As in the district court, Krause argues that
Schmidt’s statements are admissions of a party
opponent excepted from the prohibition against
hearsay under Fed. R. Evid. 801(d)(2)(D) because
Schmidt was a city employee speaking about a
matter within the scope of his employment. We
disagree.
  Schmidt was an assistant police chief and as
such we are of the opinion that he was not acting
within his scope of employment when he discussed
the alleged motivations of members of the city’s
finance department in transferring Krause to the
back office. To hold otherwise would hold a city
accountable for statements made by any city
employee, and Rule 801(d)(2)(D) does not cast
such a wide net. As such, the district court, for
the reasons set forth herein, properly refused to
consider Schmidt’s statements when denying the
motion to reconsider.

  The trial court’s entry of summary judgment is

AFFIRMED.



/1 O’Neal entered into a settlement with the
defendants and is not involved in this appeal.

/2 Krause continues to work for the City of La
Crosse and was recently promoted to Financial
Coordinator in January 1999.

/3 Defendants Delagrave and Pfaff were also subject
to the merit pay plan.

/4 The factual basis of O’Neal’s claims is not
relevant to our opinion as O’Neal has entered
into a settlement with the City and is not
involved in this appeal.

/5 As Krause has failed to prove the second factor
of her prima facie case of retaliation, there is
no need to address the district court’s
alternative finding that she also failed to
establish the third factor. Having failed to
prove an "adverse employment action," Krause can
obviously not show a causal link between her
protected action (her complaint) and the non-
existent adverse employment action.

/6 Schmidt died in 1998.
