In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3789

Betty A. Stutler,

Plaintiff-Appellant,

v.

Illinois Department of Corrections
and Diane Rockett,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois, Peoria Division.
No. 97 C 1404--Michael M. Mihm, Judge.

Argued January 17, 2001--Decided August 27, 2001



  Before Easterbrook, Evans, and Williams,
Circuit Judges.

  Williams, Circuit Judge. Betty A.
Stutler, an employee of the Illinois
Department of Corrections ("IDOC") filed
this lawsuit against IDOC for
retaliation, race and age discrimination,
and against her supervisor, Diane
Rockett, for a violation of 42 U.S.C.
sec.1983./1 The district court granted
summary judgment in favor of the
defendants. Stutler appeals only the
dismissal of her retaliation claim
against IDOC. Because we find that no
reasonable jury could find that Stutler
suffered an adverse employment action, we
affirm.

I.   BACKGROUND

  The gravamen of Stutler’s claim is that
after she complained of Rockett’s conduct
in May 1996 and Rockett received a three-
day suspension in July 1996, Rockett
engaged in retaliatory behavior that was
not adequately remedied by IDOC. To
analyze Stutler’s claim, we need to set
forth the events that led to the three-
day suspension and the events that
transpired after.

  Stutler began working for IDOC in 1988
as an office associate in the clinical
services department, where she performed
secretarial duties for Diane Rockett. The
two enjoyed a friendship that extended
beyond their employment until late 1995
when Stutler complained to Assistant
Warden Wanda Bass that Rockett asked her
to do personal favors. When Rockett
learned of Stutler’s complaint, she
became angry, and threw things and
screamed at Stutler. The relationship
further deteriorated in the spring of
1996 as memorialized in a barrage of
incident reports written by Stutler. As
many of the reports complained of conduct
not protected by Title VII, we will
discuss only the ones relevant to this
appeal./2 See Hamner v. St. Vincent
Hosp. & Health Care Ctr., Inc., 224 F.3d
701, 707 (7th Cir. 2000) (holding that
the conduct complained of must be an
unlawful employment practice under Title
VII).

  In April and May 1996, Stutler filed
three incident reports complaining that:
1) Rockett stated that Stutler was "too
fucking old to run" to catch an incoming
phone call; 2) Rockett told Stutler to
"think about quitting because she was
never satisfied," and that she resented
Stutler for going to her boss and telling
lies about her; and 3) in response to
Rockett’s belief that Stutler complained
that she inappropriately ate food with an
inmate in her office, Rockett told the
inmate "to be careful of [Stutler]--that
[Stutler] was out to get him and that you
know you have to be careful around these
white women."/3 IDOC investigated the
first two reports and gave Rockett a
written reprimand pursuant to its
progressive discipline policy. It also
appears (although the record is somewhat
unclear) that the third report was
referred to the affirmative action
office, which had the responsibility of
investigating complaints of racial
discrimination. Stutler contends, and
IDOC concedes, that she engaged in Title
VII protected activity when she reported
the third incident.

  The following month, Stutler wrote a
letter to Warden Gramley complaining that
Rockett was dysfunctional and too
demanding. On that same day, Stutler
filed another incident report complaining
that Rockett told her that she was being
transferred out of the clinical services
department because she had filed a
"grievance." There is no evidence,
however, that Stutler was transferred,
but it appears that Rockett had been
instructed not to tell Stutler of the
move. This incident resulted in Rockett
receiving a one-day suspension.

  Around this time, the affirmative action
administrator completed her investigation
into Rockett’s conduct. The investigation
revealed that Rockett wore Stutler’s
shoes, borrowed money from Stutler,
yelled at her staff and believed that her
staff had formed a conspiracy against
her. On July 17, 1996, Warden Gramley
suspended Rockett for three days.

  Nine days later, Stutler saw an e-mail
that Rockett sent to the Director of IDOC
characterizing Stutler’s behavior as
"bizarre" and stating that "it would be
best if [she and Stutler] did not work
together." A few months later, Rockett
told Stutler to collect her things so
that she could move to a reception area
outside Rockett’s office that was not yet
equipped with proper lighting,
electricity, computer hook-ups or phone
jacks. Stutler, however, was not moved.
The following month, Rockett asked
Stutler to return the key to her office
because she believed items were missing.
Rockett informed Stutler that she could
continue having access to her office, but
only when it was already unlocked.

  Stutler wrote another letter to Warden
Gramley in March 1997, informing him that
Rockett was verbally abusing her. Warden
Gramley thought that one solution to the
problem might be to temporarily relocate
Stutler out of physical contact with
Rockett, so he transferred Stutler to the
business office, where she stayed for
approximately two months. Stutler asked
to return to the clinical services
department because, although she liked
the atmosphere in the business office,
she did not like the tasks she was
required to perform, and she "loved" her
job in clinical services.

  After she returned to the clinical
services department in May 1997, Stutler
asserts that Rockett verbally abused her
by repeatedly telling her "she had to go"
up until the time she filed this lawsuit
in November 1997. Stutler also asserts
that in March 1998 Rockett told her that
she could not forgive her. The district
court granted summary judgment in favor
of the defendants on all counts, and
Stutler appeals only the dismissal of her
retaliation claim against IDOC.

II.   ANALYSIS

  We review a grant of summary judgment de
novo, drawing all inferences in the light
most favorable to the non-moving party.
Essex v. United Parcel Serv., Inc., 111
F.3d 1304, 1308 (7th Cir. 1997). Stutler
argues on appeal that the district court
erred in dismissing her retaliation claim
against IDOC because: 1) her transfer to
the business office "in itself was
retaliation"; and 2) Rockett’s continued
harassment after she reported Rockett for
making a racial comment in May 1996
constituted an adverse employment action,
and IDOC failed to adequately remedy the
situation. We do not find Stutler’s
arguments persuasive and affirm the
judgment of the district court.

  We begin our analysis with a discussion
of Title VII and the standards we must
apply. Title VII makes it unlawful for an
employer to retaliate against an employee
who "has opposed any practice made an
unlawful employment practice by this
subchapter, or [who] has made a charge,
testified, assisted, or participated in
any manner in an investigation,
proceeding or hearing under this
subchapter." 42 U.S.C. sec. 2000e-3(a).
When a plaintiff does not have direct
evidence of retaliation to defeat a
motion for summary judgment, she can
proceed under the indirect, burden-
shifting method of proof. Smart v. Ball
State Univ., 89 F.3d 437, 439 (7th Cir.
1996) (citing McDonnell Douglas v. Green
Corp., 411 U.S. 792, 802 (1973)). Under
that method, the plaintiff must first
establish a prima facie case. Id. After
doing so, the burden shifts to the
defendant to articulate a legitimate,
nondiscriminatory reason for its
employment decision. Id. If the employer
carries this burden, the plaintiff must
produce evidence that would, if believed
by a trier of fact, show that the true
reason for the employment action was
discriminatory--in this case, done in
retaliation for Stutler’s engaging in
protected conduct. Id. "Although
intermediate evidentiary burdens shift
back and forth under this framework, ’the
ultimate burden of persuading the trier
of fact that the defendant intentionally
discriminated against the plaintiff
remains at all times with the plaintiff.’"
Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000) (quoting
Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981)).

  The district court dismissed Stutler’s
claim because it found that she could not
establish a prima facie case. In order to
establish a prima facie case of
retaliation, Stutler must demonstrate
that: 1) she engaged in a
protectedactivity under Title VII; 2) she
suffered an adverse employment action;
and 3) there was a causal link between
the two. Id. at 440. Both parties agree
that Stutler satisfied the first element,
engaging in a protected activity, when
she complained of Rockett’s racial
comment in May 1996. Whether Stutler can
satisfy the last two elements of the
prima facie case are at the center of the
dispute, and strike the fatal blow to
Stutler’s appeal.


  A.   Lateral Transfer

  The district court properly found that
Stutler’s lateral transfer to the
business office in March 1997 was not an
adverse employment action. We have
repeatedly held that a lateral transfer
without a loss in benefits does not
constitute an adverse employment action.
Place v. Abbott Lab., Inc., 215 F.3d 803,
810 (7th Cir. 2000); Hill v. Am. Gen.
Fin., Inc., 218 F.3d 639, 645 (7th Cir.
2000); Williams v. Bristol-Myers Squibb
Co., 85 F.3d 270, 274 (7th Cir. 1996).
The fact that Stutler did not like the
new position is irrelevant when there is
no evidence that the transfer decreased
her responsibilities or benefits in any
way. See, e.g., Place, 215 F.3d at 810
("[B]eing shifted to an essentially
equivalent job that [the plaintiff] did
not happen to like as much does not a
Title VII claim create.").

  Even if the transfer could rise to the
level of an adverse employment action,
summary judgment in favor of IDOC was
still appropriate because no reasonable
jury could find that Stutler was
transferred in retaliation for
complaining of Rockett’s conduct. Warden
Gramley stated that he temporarily
reassigned Stutler to the business office
because he thought that relocating
Stutler out of physical contact with
Rockett might be a solution to the
problem./4 Although IDOC’s decision to
transfer Stutler may not have been the
wisest, it was the tension that resulted
from the collapse of Stutler and
Rockett’s friendship that led to the
transfer, not retaliation. See id. at 811
(concluding that an employer’s decision
to split up two workers whose soured
romance affected the company’s progress
was not retaliatory). Accordingly, the
district court properly found that no
reasonable jury could conclude that
Stutler was transferred to the business
office in retaliation for engaging in
Title VII protected activity.

  B.   Retaliatory Harassment

  Stutler also asserts that the
"continued" harassment she endured after
reporting Rockett in May 1996 constituted
an adverse employment action. The
district court failed to address this
argument below, but because our review is
de novo, we will.

  We have broadly defined an adverse
employment action in this circuit. Smart,
89 F.3d at 441. It is not limited solely
to loss or reduction of pay or monetary
benefits, but can encompass other forms
of adversity. Id. Nevertheless, "not
everything that makes an employee unhappy
is an actionable adverse action." Id.
Negative performance reviews, a change in
job title, an increased travel distance
to work, do not by themselves qualify.
Hill, 218 F.3d at 645. Neither does the
loss of a telephone or cubicle. Place,
215 F.3d at 810. To be actionable, there
must be a "’significant change in
employment status, such as hiring,
firing, failing to promote, reassignment
with significantly different
responsibilities, or a decision causing a
significant change in benefits.’" Bell v.
Envtl. Prot. Agency, 232 F.3d 546, 555
(7th Cir. 2000) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998)). In other words, the adverse
action must materially alter the terms
and conditions of employment. Rabinovitz
v. Pena, 89 F.3d 482, 488 (7th Cir.
1996).

  Retaliatory harassment by co-workers or
a supervisor can rise to this level if it
is severe enough to cause a significant
change in the plaintiff’s employment
status. For example, in Knox v. Indiana,
93 F.3d 1327 (7th Cir. 1996), we upheld a
jury verdict in favor of a plaintiff
whose co-workers embarked on a campaign
of vicious gossip and profanity aimed at
making "her life hell" in response to her
complaints that a supervisor sexually
harassed her. We reasoned that
retaliation could come in many forms and
there was sufficient evidence to support
the jury’s verdict that the plaintiff’s
co-workers engaged in a campaign of
retaliatory harassment and the employer
failed to correct it. Id. at 1334-35.
But, in Parkins v. Civil Constructors of
Illinois, Inc., 163 F.3d 1027 (7th Cir.
1998), we found that ostracism by co-
workers that did not result in material
harm to the plaintiff was not enough to
constitute an adverse employment action.
Id. at 1039.

  Similarly, in Bell, we found that
conduct by a supervisor/5 was not
sufficiently severe to be actionable. In
Bell, the supervisor failed to greet or
speak to the plaintiff and cancelled a
meeting that the plaintiff had scheduled,
apparently in response to the plaintiff’s
sex discrimination complaint. 232 F.3d at
555. We found these matters trivial. Id.
Likewise, in Hill, we concluded that a
supervisor’s rummaging through the
plaintiff’s desk drawers and waste can
and listening to the plaintiff’s
telephone calls did not rise to the level
of actionable retaliation. 218 F.3d at
645.

  Taking the facts in the light most
favorable to Stutler, we conclude that no
reasonable jury could find that the
conduct endured by Stutler was severe
enough to rise to the level of an adverse
employment action. Rockett’s conduct
after Stutler reported her in May 1996
consisted of: 1) sending an e-mail to the
Director of IDOC in July 1996
characterizing Stutler’s behavior as
"bizarre" and stating that "it would be
best if [she and Stutler] did not work
together," 2) telling Stutler repeatedly
that "she had to go," 3) telling Stutler
in September 1996 to collect her things
so that she could move to an unfinished
reception area outside Rockett’s office,
4) asking Stutler to return the key to
her office in October 1996, and 5)
telling Stutler in March 1998 (almost one
year after Stutler asked to be returned
to the clinical services department) that
she could not forgive her for filing the
lawsuit.

  Although we in no way condone Rockett’s
conduct or believe that she acted
appropriately as a supervisor, we find
her behavior too petty and tepid to
constitute a material change in the terms
and conditions of Stutler’s employment.
Rockett’s threats never materialized or
resulted in any material harm to Stutler-
-there is no evidence that Stutler was
transferred in response to Rockett’s July
e-mail nor that Stutler was moved to the
unfinished area outside Rockett’s office.
There is also no evidence that Stutler
was unable to perform her job duties
after Rockett asked her to return the key
to Rockett’s office. Additionally,
Stutler’s own conduct in requesting to
return to the clinical services
department because she "loved" her job
there cuts against a finding that
Rockett’s behavior was anything more than
"a mere inconvenience." Rabinovitz, 89
F.3d at 488. We have no doubt that the
environment was unpleasant, but none of
the conduct complained of constituted the
material harm necessary for a Title VII
retaliation claim.

  Even if Stutler had suffered an adverse
employment action, we doubt whether
Stutler could establish a causal link
between the protected activity and
Rockett’s conduct. For one, the conduct
did not increase or "ratchet up" after
Stutler reported Rockett in May 1996 for
the racial comment. See Johnson v.
Nordstrom, Inc. et al., ___ F.3d ___, No.
00-3827, 2001 WL 818874, at *5 (7th Cir.
Jul. 20, 2001) (doubting existence of
causal connection when "there was ’no
ratcheting up of the harassment’ after
the complaint was filed"). Rockett
treated Stutler just as poorly before
Stutler reported her for making the
racial comment as she did afterward. And,
most of Rockett’s behavior appeared to be
in response to the barrage of incident
reports that Stutler filed concerning her
belief that Rockett was not following
office procedures (i.e., by allowing the
files to be moved to another area and by
using the telephone to make personal
calls), and in response to Stutler’s
complaint to Assistant Warden Bass that
Rockett had her do personal favors, which
are not protected activities under Title
VII.

  Because we find the conduct that Stutler
endured was not sufficiently severe to
rise to the level of an adverse
employment action (and probably not
causally connected to protected
activity), we need not determine whether
IDOC was vicariously liable for Rockett’s
conduct or if it could establish the
affirmative defense set forth in
Burlington Indus., Inc. v. Ellerth, 524
U.S. 742 (1998), and Faragher v. City of
Boca Raton, 524 U.S. 775 (1998). See
Knox, 93 F.3d at 1334 (holding that
"there is nothing to indicate that the
principle of employer responsibility does
not extend equally to other Title VII
claims, such as a claim of unlawful
retaliation"). Therefore, we do not
consider whether IDOC’s progressive
discipline against Rockett was adequate
or whether its decision to transfer
Stutler was a reasonable response to the
situation.

III.   CONCLUSION

  Because Stutler has failed to
demonstrate that she suffered an adverse
employment action, her retaliation claim
fails as a matter of law. Therefore, the
judgment of the district court is
AFFIRMED.

FOOTNOTES

/1 Stutler’s complaint lists only two counts against
IDOC--Count I (race discrimination) and Count II
(age discrimination). Because each count also
contained allegations of retaliation, the dis-
trict court construed Stutler’s complaint as if
it stated three counts against IDOC. We agree
with the district court’s construction of the
complaint and will treat Stutler’s complaint as
if it asserted a retaliation claim against IDOC.

/2 The majority of the incident reports written by
Stutler consisted of her perception that Rockett
was not strictly following office procedures
(i.e., Stutler thought Rockett should not have
allowed a file clerk to move files to another
area of the office, allowed an inmate to help
sort files that may have contained confidential
information, used the telephone to make personal
calls while at work, etc.).
/3 Stutler is white, and Rockett is bi-racial.

/4 By March 1997, Stutler’s incident reports were
all geared toward her beliefs that Rockett was
not following office procedures or acting profes-
sionally, i.e., by using the telephone to make
personal calls or allowing the files to be re-
viewed by an inmate. Because these are not pro-
hibited by Title VII, and therefore, reporting
them is not protected activity, the cases cited
by Stutler admonishing the employer for transfer-
ring the victim instead of the harasser are
distinguishable.

/5 We refer to the actor in Bell as a supervisor
because he was a section chief who was a member
of a panel that made the hiring decisions.
