Opinion
No. 99 C 50017
February 26, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff Marilyn Ellman ("Ellman") has filed a six-count third-amended complaint against her employer, Woodstock #200 School District ("the school district"). Count I is a state law claim of age discrimination based on the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1-101 et seq., Count II is a claim of sex discrimination based on Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000eet seq., and the IHRA, Count III is a retaliation claim based on Title VII and the IHRA, and Count V is a state law breach of contract claim.
Per Order dated June 12, 2000, this court dismissed Count IV (a state law claim for breach of the implied covenant of good faith and fair dealing) and Count VT (an "involuntary servitude" claim based on the Thirteenth Amendment), pursuant to the school district's Fed.R.Civ.P. 12(b)(6) motion.
Currently pending before the court are the parties' cross-motions for summary judgment, filed pursuant to Fed.R.Civ.P. 56, and the school district's motion to strike. The court has jurisdiction pursuant to 28 U.S.C. § 1331, 1367, 42 U.S.C. § 2000e-5 (f)(3), and venue is proper as the complained of actions occurred in this district and division, see 29 U.S.C. § 1391.
The school district has called its motion a motion for summary judgment or in the alternative a motion to dismiss for failure to state a claim. Because materials were submitted in support of the motion, the court will consider the motion in its entirety as a motion for summary judgment filed pursuant to Rule 56.
II. Preliminary Matters
At the outset, the court notes that Ellman has failed to file a statement responding to each numbered paragraph in the school district's LR56.1(a) (formerly LR12M) statement of facts, supporting any disagreement with specific references to the record. LR56.1(b)(3)(A);Bordelon v. Chicano Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000). Thus, all material facts set forth in the school district's statement are deemed admitted. Bordelon, 233 F.3d at 527.
Ellman argues she is acting pro se and should be extended latitude in complying with the procedural rules. The court rejects this argument for several reasons. First, the school district in writing specifically informed Ellman of her obligations under LR56.1. (Def. Mem. Supp. Summ. J.) Second, Ellman is no stranger to litigation. See, e.g., Ellman v. Lisle Bd. of Educ., No. 88 C 2247, 1989 WL 157328 (N.D. Ill. Dec. 14, 1989) (Conlon, J).; Ellman v. Hentges, No. 96 C 50217, aff'd, 165 F.3d 31 (7th Cir. 1998) (unpublished); Ellman v. Hentges, No. 99 C 50269 (N.D. Ill.) (Reinhard, J.) (filed August 20, 1999); Ellman v. Harezlak, No. 00 C 50340 (N.D. Ill.) (Reinhard, J.) (filed September 27, 2000). Third, Ellman's pro se status does not relieve her of the burdens of a court's procedural requirements. See Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998).
The school district also moves to strike Ellman's statement of material facts because it does not comply with the organizational requirements of LR56.1(a)(3), contains legal arguments and legal conclusions, and does not include specific references to the record. The school district also contends her affidavit attached to her motion for summary judgment fails to comply with Fed.R.Civ.P. 56(e), in that the affidavit contains hearsay, conjecture, speculation and statements about which Ellman has no personal knowledge. The court agrees with the school district in part. Those portions of Ellman's statement of material fact which contain legal arguments and conclusions are stricken. Likewise, those portions that are unsupported by the record will also be stricken, as will be discussed in more detail infra. Regarding Ellman's affidavit, only those statements based on personal knowledge which would be admissible in evidence will be considered at the summary judgment stage. Fed.R.Civ.P. 56(e); Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1265 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994).
On October 27, 2000, Ellman filed a "Supplementary Affidavit" in support of her motion for summary judgment, and on November 15, 2000, filed a "Second Supplementary Affidavit" in support of her motion. The court finds both of these affidavits are in complete derogation of the rules. Apparently, Ellman is of the impression she can file whatever she wants, whenever she wants. However, Ellman is aware of this court's approach to her practice of filing "supplemental affidavits," based on her experience in previous litigation before this court. See Ellman v. Hentges, No. 96 C 50217, slip op. at 2-4 n. 1 (N.D. Ill. Aug. 29, 1997) (Reinhard, J.).
If allowed, Ellman's nonstop filings would force the court to spend an undue amount of time sorting through an unorganized record, rendering Local Rule 56.1 meaningless. Under the local rules, the court is entitled to limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' statements.Bordelon, 233 F.3d at 529. Thus, the court will disregard both the "supplementary affidavit" and the "second supplementary affidavit." See id.
III. Facts
References to LR56.1(a) in this section are to the school district's statement of facts. References to LR56.1(a) in section IV(B)infra, wherein Ellman's motion for partial summary judgment is discussed, are to Ellman's statement of facts.
She has been a member of a union during her employment with the school district and has been subject to a collective bargaining agreement ("Agreement") between the school district and union. (Id. ¶ 4) The Agreement addresses the issue of covered employees' salaries, which includes Ellman, based on a salary schedule reflecting an employee's education, graduate credits, and years of experience. The Agreement does not provide for overtime, and provides that the normal school day includes before and after school professional responsibilities. (Id. ¶¶ 5, 8) The Agreement also has a binding arbitration clause. (Id. ¶ 41) Under this clause, if an employee covered by the Agreement believes the school district has violated the Agreement, the employee must file a grievance; if the grievance is not resolved satisfactorily, it is submitted to arbitration. (Id.)
Ellman receives a letter at the beginning of each school year indicating her salary for that year. The job description for Ellman's position includes actively participating in staffings and special education conferences. (Id. ¶ 10) Special education conferences can be scheduled before, during, or after students are dismissed from their respective buildings to accommodate parents' schedules. (Id. ¶ 11)
From the 1997-98 school year to the present, the school district has employed three full-time psychologists, all of whom are female: Ellman (d/o/b June 10, 1937), Ann Braasch (d/o/b May 23, 1943), and Dianne Wise (d/o/b January 25, 1960), although Wise no longer works for the school district. (Id. ¶¶ 12-15) From 1996 until the present, Ellman's yearly salary has consistently been higher than that of both Braasch and Wise. (Id.) Neither Ellman, Wise, nor Braasch receive overtime pay for doing work considered to be within the school psychologist job description. (Id. ¶ 16)
Throughout Ellman's employment with the school district, she received performance evaluations in accordance with Article IV of the Agreement. (Id. ¶ 19) On July 14, 1994, Ellman requested clarification from her supervisors regarding her job responsibilities. In response, her supervisors wrote a document entitled, "Criteria for Successful Performance 1994-95," which she perceived to be a negative evaluation. (Id. ¶ 20; Hentges Aff., ¶ 16, Exh. 4) At the beginning of the 1995-96 school year, the school district and union agreed that the school district would not use this document for Ellman's evaluations and to delete any references to it. (LR56.1(a) ¶ 21; Hentges Aff., ¶ 16, Exh. 5) The document has never been used again to evaluate Ellman's job performance. (LR56.1(a) ¶ 21, Hentges Aff., ¶ 16) In Ellman's 1998-99 performance evaluation, she received positive comments in the formative appraisal and was rated either "excellent" or "satisfactory" in all categories of the summative evaluation. (LR56.1(a) ¶ 23, Hentges Aff., Exh. 6) Ellman's 1998-99 evaluation was conducted using the same procedure and format as for all other certified staff and applying the same performance criteria used for all ancillary personnel, which includes psychologists. (LR56.1(a) ¶ 24)
In the 1997-98 school year, Ellman split her time between the Westwood Early Learning Center ("Westwood") and the Woodstock High School ("Woodstock"). Westwood's principal assigned Ellman to use a custodian storage room. However, Ellman objected and as a result, shared her old office with the other psychologists. (Pl. dep., p. 129) Thus, she never used the custodian storage room as her office at Westwood. (LR56.1(a) ¶ 25; Pl. dep., p. 130) The following year, the early learning center was moved out of Westwood to another school, and was renamed the Verda Dierzen Early Learning Center ("Verda Dierzen") (Pl. dep., p. 130) Ellman worked at Verda Dierzen one day per week. (Id. p. 133) There, she was assigned and used an interior library office; on the days she did not work at Verda Dierzen, another psychologist shared the same office. (LR56.1(a) ¶ 26) After she complained about how small the library office was, she was moved to a conference room which had previously been used as the principal's office. (Id.; Pl. dep., pp. 133-34, 137) She used the library office for one or two months before being moved into the conference room. (LR56.1(a) ¶ 27)
Ellman also complained about her room assignment at Woodstock, Room 226. She complained about no windows, uncontrolled heating units, no ventilation, loose ceiling tiles, problems with the fan, and asbestos. (Id. ¶ 28) Her complaints were brought to the attention of Bruce Lane, the Assistant Principal, and Will Sivertsen, the Director of Buildings and Grounds. (Id.) Either Lane or Sivertsen took steps to investigate, address, and fix her complaints. (Id. ¶ 29) In a memo dated October 8, 1997, Lane summarized Ellman's complaints about Room 226 and explained what the staff had done to address her concerns. (Def. Exh. 14)
For some of Ellman's complaints, such as the lack of windows, there were no solutions. Lane noted that the other three classrooms and one office area in the vicinity also lacked windows. (Id.) He also noted the heating and ventilation system was the same for the other classrooms and office in that area. (Id.) As for Ellman's asbestos concerns, the school informed her of the asbestos management plan on file at the office of the Director of Buildings and Grounds, and ordered air quality tests to be performed in Room 226. (LR56.1(a) Exh. 15, 16) In a memo dated November 6, 1997, Sivertsen notified Ellman the air quality testing showed all readings for total dust and respirable dust were well below the permissible exposure limits set by law. (LR56.1(a) ¶ 31, Exh. 16) After her complaints, she was assigned another room. (LR56.1(a) ¶ 32)
According to Sivertsen's memo to Ellman, the environmental company which prepared the management plan certified there was no "friable asbestos containing material" (as defined by state regulations) located in the ceiling or ceiling tile in Ellman's part of the building. (LR56.1(a) ¶ 30, Exh. 15)
Ellman has filed one grievance for the 1997-98 through 1999-2000 school years. (Id. ¶ 42) The grievance, filed in October 1997, concerns a memo Dr. Ravitz wrote about Ellman missing several meetings and failing to fulfill her professional responsibilities. (Id.; Ravitz Aff., ¶ 7, Exh. 12) As a result of the grievance, Dr. Ravitz modified the memo; neither Ellman nor the union have pursued the grievance to arbitration. (LR56.1(a) ¶ 42)
IV. Analysis
A. Summary Judgment Standard
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The question to be determined is whether, if the record of the summary judgment proceeding were the record at trial, a reasonable fact finder could find in favor of the nonmoving party. Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993). When the parties file cross-motions for summary judgment, the court construes all inferences in favor of the party against whom the motion under consideration is made. Wilson v. Chrysler Corp., 172 F.3d 500, 511 (7th Cir. 1999). However, conclusory allegations will not win the day. Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999). Intent and credibility are crucial issues in employment discrimination cases and, therefore, the summary judgment standard is applied with added rigor in such cases, but summary judgment will not be defeated just because motive or intent are involved. Id. (citations omitted).
B. Ellman's Motion for Partial Summary Judgment
At the outset, it should be noted Ellman's "Fact" section in her motion for partial summary judgment contains no cites to any portion of the record and appears to be, by and large, a repeat of the allegations in her complaint. It is well-settled that at the summary judgment stage, Ellman must do more than repeat the pleadings, particularly if the pleadings contain allegations that are not within her personal knowledge, to win her motion. Cf. Shermer v. Illinois Dep't of Transp., 171 F.3d 475, 477 (7th Cir. 1999) (nonmovant must do more than merely rest on pleadings to overcome motion for summary judgment). Thus, the court will disregard the "Fact" section of Ellman's motion for partial summary judgment.
The court's job in analyzing Ellman's statement of facts has been rendered exceedingly difficult because many of her statements are unsupported by the record and because when Ellman "cites" to the record, she oftentimes simply refers to "exhibits" to one of her affidavits. She has filed many affidavits, two of which have been stricken, and she has filed many "exhibits." A repeated cite is, "see affidavit and supplement to affidavit of Marilyn Ellman." See, e.g., LR56.1(a) ¶¶ 3(c), (d), (f). It is not the court's job to take Ellman's unsupported statements on faith or to scour the record to unearth material factual disputes. Carter v. American Oil Co., 139 F.3d 1158, 1163 (7th Cir. 1998). Thus, paragraphs 3(c), (d), and (f) of Ellman's LR56.1(a) statement are stricken.
In deciphering Ellman's cites, it becomes apparent that Ellman is relying on her "supplementary affidavit" and "second supplementary affidavit," both of which have been stricken as discussed in section II above. Thus, paragraphs 3(a), (b) (in part), (e), and (g) of Ellman's LR56.1(a) statement are stricken. Even if the court were to consider these "affidavits," the record shows Ellman's "proof" does not support her claims. For example, Ellman claims that younger and male employees are paid for after school meetings, while she is not. (LR56.1(b) ¶ 3(a)) In claiming this, Ellman lists a host of employees who purportedly received extra pay, and has submitted a slew of documents regarding payroll information, including W-2 statements. None of these documents are supported with proper foundation and, lacking such foundation, tell the court nothing as to whether younger and/or male employees were paid for after school meetings while she was not. (The remainder of her exhibits suffer from the same defects.)
Ellman also claims, without any cite to anything in the record, that Bev Alfeld, Apollonia Reckamp, and Inez Petersen were forced to retire and/or leave the district. (LR56.1(a) ¶ 4) Likewise, Ellman claims Eugene Schaefer and Don Deller are male employees over age sixty who were not coerced to retire. (Id. ¶ 5) These statements are unsupported by the record and the court will disregard them.
In short, Ellman has proffered no admissible evidence to support her assertion that she is entitled to summary judgment on any of her claims. Ellman's motion for summary judgment is denied.
C. The School District's Motion for Summary Judgment 1. Issue and Claim Preclusion
The crux of Ellman's suit appears to center on the following complaints:
• the school district assigned Ellman to a custodian's storage room to be used as her office;
• the school district assigned her to a substandard classroom at Woodstock;
• the school district required Ellman to work overtime without compensation;
• the school district has harassed and threatened Ellman with unwarranted discipline;
• the school district continues to apply the "Criteria for Successful Performance 1994-95" to her performance evaluations; and,
• on two occasions the school district failed to notify Ellman that school was canceled due to inclement weather. (Compl. ¶¶ 13-18)
Under res judicata (now commonly referred to as claim preclusion), a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Montana v. United States, 440 U.S. 147, 153 (1979); People Who Care v. Rockford Bd. of Educ., 68 F.3d 172, 177 (7th Cir. 1995). Under collateral estoppel (now commonly referred to as issue preclusion), once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Montana, 440 U.S. at 153; Adair v. Sherman, 230 F.3d 890, 893 (7th Cir. 2000).
The court finds Ellman is collaterally estopped from pursuing her claim that defendants discriminatorily continue to apply the "Criteria for Successful Performance 1994-95" to her performance evaluations. In Ellman v. Hentges, No. 96 C 50217 (N.D. Ill. filed July 5, 1996) (Reinhard, J.), aff'd, 165 F.3d 31 (7th Cir. 1998) (unpublished) ( available at 1998 WL 560754), Ellman sued Hentges and the school district, alleging the defendants discriminated against her because of her age, in violation of the ADEA, and retaliated against her for opposing their unlawful employment practices. Hentges, No. 96 C 50217, slip op. at 1. In granting the defendants' motion for summary judgment, this court rejected Ellman's complaints regarding a remediation plan the school district applied to her during the 1994-95 school year. Hentges, slip op. at 5-6, 14. This court held the evaluation did not constitute an adverse employment action under the ADEA. Id. at 14.
This court's unpublished opinion granting defendants' motion for summary judgment in Hentges is attached as an exhibit to the school district's statement of material facts in this case.
Thus, the "Criteria for Successful Performance 1994-95" about which Ellman complains here was at issue in Hentges. The issue was actually litigated, as reflected by the court's analysis in granting defendants' motion for summary judgment in Hentges, wherein the court determined that the evaluation did not constitute an adverse employment action. This finding, in turn, was essential to this court's ultimate holding that defendants did not violate the ADEA. Finally, both Ellman and the school district were parties in the prior action.
Issue preclusion, rather than claim preclusion, applies to Count II, Ellman's sex discrimination claim, because the court in Hentges was analyzing the remediation plan in the context of the ADEA. The court does not reach the issue of whether issue or claim preclusion apply to Ellman's alleged IHRA violation in Count I, as it is being dismissed on another ground, to be discussed infra.
Ellman argues the school district has continued to impermissibly use the 1994-95 evaluation and that this continued use gives rise to a new claim which has not been litigated. The problem with this argument is Ellman's complete lack of proof. In fact, she admits the "Criteria for Successful Performance 1994-95" document has never been used again to evaluate her job performance. (LR56.1(a) ¶ 21, Hentges Aff., ¶ 16) Her 1998-99 performance evaluation was conducted using the same procedure and format as for other psychologists, and she received a positive evaluation for the 1998-99 school year. (LR56.1(a) ¶¶ 23-24, Hentges Aff., Exh. 6)
Even if the court were to consider Ellman's "supplementary affidavit" and "second supplementary affidavit," no evidence exists therein to support Ellman's bald assertion that the school district continues to use the 1994-95 evaluation.
The court also finds Ellman is collaterally estopped from arguing she is entitled to overtime pay. This court in Hentges addressed Ellman's claims regarding overtime, and found them to be wholly lacking. Hentges, slip op. at 17-18. This court found there was no evidence Ellman was entitled to overtime pay, and stated she is employed on an annual salary basis, and the collective bargaining agreement is silent on the issue.Id. at 10-11. Thus, Ellman's overtime claim here was involved inHentges, was actually litigated, a determination of the issue was essential to a finding that defendants did not violate the ADEA, and both Ellman and the school district were in the prior action.
2. Count I — The Illinois Human Rights Act
In Count I, Ellman bases her age discrimination claim on the IHRA. (Compl. ¶¶ 12(a), 21) The school district argues Ellman's claim is barred because she failed to exhaust her administrative remedies under the IHRA, and the court agrees. Courts do not have jurisdiction to hear independent actions for civil rights violations under the IHRA. 775 ILCS 5/8-111(C); Mein v. Masonite Corp., 485 N.E.2d 312, 315 (Ill. 1985); see also Talley v. Washington Inventory Serv., 37 F.3d 310, 312-13 (7th Cir. 1994). Rather, judicial review for an alleged violation of the IHRA is available only after the Illinois Human Rights Commission ("IHRC") has issued a final order on a complaint. Flaherty v. Gas Research Inst., 31 F.3d 451, 458 (7th Cir. 1994); Talley, 37 F.3d at 312-13; Rotter v. Brinker Rest. Corp., No. 98 C 50256, 1999 WL 33148742 (N.D. Ill. Sept. 3, 1999) (Reinhard, J.). Ellman never brought her IHRA claim to the IHRC and, therefore, failed to exhaust her administrative remedies. McCraven v. City of Chicago, 18 F. Supp.2d 877, 882 (N.D. Ill. 1998).
Moreover, Ellman's EEOC Right to Sue Notice does not serve as a substitute for a final order from the IHRC. Rotter, 1999 WL 33148742, at *1; see also Zamani v. American Dental Ass'n, No. 98 C 1022, 1998 WL 812545, at *3 (N.D. Ill. Nov. 18, 1998); Moore v. Jewel Food Stores, Inc., No. 97 C 6501, 1998 WL 102629, at *4 (N.D. Ill. Mar. 3, 1998). The IHRC's workshare agreement with the EEOC does not alter the IHRC's exclusive jurisdiction over the IHRA. Zamani, 1998 WL 812545, at *3. To hold otherwise would allow Ellman to easily circumvent the IHRA's comprehensive scheme of remedies and administrative procedures, a result the Illinois legislature did not intend. Rotter, 1999 WL 33148742, at *3; Moore, 1998 WL 102639, at *4. Thus, the school district's motion is granted as to Count 1. 3. Count II — Sex Discrimination Based On Title VII
The court's holding also applies to Ellman's sex discrimination and retaliation claims brought pursuant to the IHRA in Counts II and III. (Compl. ¶¶ 28, 37)
Excluding those complaints the court has found Ellman is collaterally estopped from pursuing, Ellman's Title VII sex discrimination claim is based on the following conduct: (1) the school district assigned her to a custodian's storage room to be used as her office; (2) the school district assigned her to a substandard classroom at Woodstock; (3) the school district has harassed and threatened Ellman with unwarranted discipline; and, (4) on two occasions the school district failed to notify Ellman that school was canceled due to inclement weather.
Ellman has produced no direct evidence of sex discrimination. Therefore, the court will analyze her claims under the indirect,McDonnell Douglas burden-shifting test. Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 876 (7th Cir. 1999). Thus, Ellman must show: (1) she is a member of a protected class; (2) she was meeting the school district's legitimate expectations; (3) she suffered an adverse employment action; and, (4) the school district treated similarly situated, non-protected employees more favorably. Id. If Ellman establishes a prima facie case, the school district must articulate a legitimate, non-discriminatory reason for the adverse employment decision. Id. Ellman may then present evidence from which a reasonable factfinder could conclude the school district's proffered reason was pretextual. Id.
Ellman has not successfully established a prima facie case of sex discrimination with respect to any of her claims for the simple reason that none of her complaints rise to the level of an adverse employment action. For an employment action to be considered adverse within the meaning of Title VII, the employee must suffer a materially adverse change in the terms and conditions of her employment that is more disruptive than a mere inconvenience or alteration of job responsibilities. Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000); Bell v. EPA, 232 F.3d 546, 555 (7th Cir. 2000). As this court explained to Ellman in Hentges, slip op. at 13, "`not everything that makes an employee unhappy is an actionable adverse action.'" (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). The action must constitute 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. Burlington Indus., Inc. v. Ellerth, 542 U.S. 742, 761 (1998).
None of Ellman's room assignments amount to an adverse employment action within the meaning of Title VII. Ellman admits that after she complained about her room assignment at Westwood, she never actually used the "custodian storage room." Instead, she shared her former office with other psychologists. As for the library room to which Ellman was assigned at Verda Dierzen, she claims it was too small and lacked privacy. While Ellman may have felt the area was too small, there is no evidence it was at the level of a "dingy closet" rendering her wholly incapable of doing her job. See Place v. Abbott Lab., 215 F.3d 803, 810 (7th Cir. 2000),cert. denied, ___ U.S. ___, 121 S.Ct. 768 (2001). On the contrary, the space was big enough for a table, two student chairs, two adult chairs, and cabinets and shelves for storage space. (LR56.1(a) ¶ 26) Another school psychologist shared the same office and used it on days Ellman was not there. (Id.) Regardless, after only one or two months, Ellman was transferred to a conference room which had previously served as a principal's office. Obviously, this was an acceptable substitute. As for Woodstock, Ellman's room, Room 226, was similar to a number of other classrooms and an office in the same area. In fact, Room 226 was used as a classroom with room for up to ten students plus a teacher for four years without complaint. (LR56.1(a) ¶ 28) School officials addressed Ellman's concerns and ultimately transferred her to another office.
These facts show none of the room assignments at issue materially adversely changed the terms and conditions of her employment. At most, Ellman was unhappy about her room assignments but, as stated above, this does not constitute an adverse employment action.
As for Ellman's claim that the school district has harassed and threatened her with unwarranted discipline, apparently this claim is based on two incidents. First, Dr. Ravitz wrote a memo in October 1997 about Ellman missing several meetings and failing to fulfill her professional responsibilities. (LR56.1(a) ¶ 34) The union grieved the memo and Dr. Ravitz modified it. Ellman, however, was not disciplined. (Id.) Second, a school administrator had a discussion with Ellman in August 1997 regarding her refusal to work with other psychologists in scheduling available working space at Westwood. (Id. ¶ 35) Again, however, Ellman was not disciplined as a result of this incident. (Id.) These two incidents, which did not result in a suspension or loss of pay, or were even considered discipline, do not constitute adverse employment actions under Title VII. Likewise, Ellman's complaint that the school district failed to call her on two occasions about snow days, although inconvenient, also does not rise to the level of an adverse employment action. The school district's motion is granted with respect to Count II.
4. Count III — Retaliation Under Title VII
In Count III, Ellman alleges she was retaliated against for filing charges of discrimination. Title VII prohibits an employer from retaliating against an employee who makes a charge of discrimination. 42 U.S.C. § 2000e-3 (a). In keeping with the McDonnell Douglas burden-shifting approach, Ellman must initially establish a prima facie case of retaliation. Oest v. Illinois Dep't of Corr., ___ F.3d ___, 2001 WL 122111, at *10 (7th Cir. Feb. 14, 2001). To do so, Ellman must show: (1) she engaged in protected activity; (2) she suffered an adverse employment action subsequent to the protected activity; and (3) a causal connection exists between the adverse employment action and her participation in the protected activity. Id. Construing Ellman's claim broadly, it appears all of the behavior which supports her Title VII sex discrimination claim also forms the basis of her retaliation claim in Count III. Thus, Ellman's Title VII retaliation claim fails for the same reason as her Title VII sex discrimination claim — she has failed to show she suffered an adverse employment action. The school district's motion is granted with respect to Count III.
5. Count V — Breach of Contract
In her Complaint, Ellman alleges she and the school district were parties to a written employment contract. (Compl. ¶ 51) Ellman alleges the school district breached the contract "both in spirit and as written" by subjecting her to work without compensation, by subjecting her to different standards than other employees, and by discriminating against her due to her age and sex. (Id.) The school district argues Ellman's state law breach of contract claim is preempted by the IHRA, relying on Geise v. Phoenix Co. of Chicago, Inc., 639 N.E.2d 1273 (Ill. 1994).
In Maksimovic v. Tsogalis, 687 N.E.2d 21 (Ill. 1997), the Illinois Supreme Court, in clarifying its holding in Geise, stated that whether a court may exercise jurisdiction over a state law claim depends on whether the claim is inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the IHRA itself. Here, Ellman alleges she was subjected to different standards than other employees and was discriminated against because of her age and sex. These claims are inextricably linked to the IHRA because without a violation of the Act, there is no breach of contract claim. Thus, these claims are preempted by the IHRA. See Wootten v. Fortune Brands, Inc., No. 98 C 4603, 1999 WL 705763, at *2-3 (N.D. Ill. Aug. 27, 1999) (breach of contract claim based on promise of harassment-free environment inextricably linked to alleged civil rights violation and preempted by IHRA, but remaining two breach of contract claims, based on an alleged breach of a termination policy and employer's promise to thoroughly investigate harassment claims were not preempted). Ellman's claim that she was forced to work without compensation, however, is not inextricably linked to an alleged civil rights violation because the court need not examine whether the IHRA was violated to determine whether a contract has been breached. See id. at *3. However, her claim based on compensation fails for another reason: this is simply her unpaid overtime claim cloaked in another form. As discussed in section IV(C)(1) above, she is collaterally estopped from pursuing this claim. Thus, the school district's motion is granted as to Count V.
V. Conclusion
For the reasons set forth above, the school district's motion to strike is granted in part and denied in part. Ellman's Rule 56 motion for summary judgment is denied. The school district's Rule 56 motion for summary judgment is granted. This cause is hereby dismissed in its entirety.