Opinion
No. 2:02-CV-294 PPS.
September 30, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff Sandra Kay Schmitt works for Defendant Portage Township School Corporation ("Portage Schools") as a custodian. She alleges that Portage Schools discriminated against her because of her age, and she commenced this action under the Age Discrimination in Employment Act. In addition, Schmitt alleges retaliation and intentional infliction of emotional distress.
This matter is before the Court on Portage Schools' Motion for Summary Judgment. Because Schmitt did not suffer an adverse employment action and was not treated less favorably than similarly situated younger employees, the Motion for Summary Judgment is granted with respect to her ADEA and retaliation claims. Furthermore, because Schmitt failed to comply with the Indiana Tort Claims Act and has failed to show any outrageous conduct or intent on the part of Portage Schools, the Motion for Summary Judgment is granted with respect to her intentional infliction of emotional distress claim.
I. FACTUAL BACKGROUND
A. Employment HistorySchmitt is a 48 year old custodian employed by Portage Schools. She was hired on a part-time basis in 1994 and became a full-time custodian in 1997. She is assigned part of the time to cleaning the Willowcreek Middle School. Nancy Busch is the custodial supervisor at Willowcreek Middle School. She has the authority to recommend discipline of a custodian at Willowcreek. Head custodians such as Nancy Busch report directly to Deborah Martin, who heads the Custodial Services department. Martin supervises all the Portage Township Schools' custodial services, which includes supervision of over 100 people. She hires, trains, disciplines, and supervises the custodial staff. Martin does not have the power to fire; she can only recommend termination of an employee.
In addition to cleaning the Willowbrook Middle School, Schmitt also is assigned for part of the day to the Instructional Media Services ("IMS") building. Lynn Duhamell is the director of media services for Portage Schools, and since there is no head custodian at the IMS building, she supervises Schmitt when she does her work there.
Schmitt initially worked a "split schedule" as a full-time custodian. She worked at Portage High School in the mornings and at IMS in the afternoons, with thirty minutes for lunch and fifteen minutes of "travel time" to account for her travel from Portage High School to IMS. In 1999, Portage Schools transferred Schmitt to Willowcreek Middle School for the morning portion of her schedule. In the summer of 2002, the school changed her hours so that she worked later, from 10:30 a.m. until 7:00 p.m. She worked the second part of her split schedule alone in the IMS building, as she is the only custodian at IMS.
B. "Sabotage" of Schmitt's Work
At some point after June or July of 2000, Schmitt found wads of bloody toilet paper on the floor of the IMS building bathroom on several occasions. Since there were only five regular employees in the building during those hours, Schmitt monitored the bathroom and claims to have "caught" P.J. Adams in two of these acts of sabotage. Adams is the receptionist for the building and used to be a custodian.
Around April of 2001, Schmitt made a verbal complaint to Martin about the toilet paper. Martin told Schmitt that she would try to resolve the situation by talking about it with Duhamell, who was in charge at IMS. Several weeks passed before Schmitt asked Martin if she had discussed the problem with Duhamell; Martin replied that she had been too busy. Martin eventually spoke with Duhamell about it, but she did not speak with Adams (the alleged saboteur) about Schmitt's complaints. Although Martin and Duhamell both knew of the toilet paper incidents, Schmitt asserts that neither of them did anything about it.
C. Change of Schmitt's Hours
Schmitt had complained to Duhamell about the intentional withholding or loss of her phone messages by Adams at some time between the summer of 2000 and February 2001. Schmitt believed that Duhamell requested a change of Schmitt's hours to 10:30-7:00 because of Schmitt's complaints about the messages and the toilet paper, and not because of a change in the workshop schedule at IMS. Schmitt filed a grievance with her Union about the change in her hours after Martin failed to address or investigate Schmitt's complaints. Martin denied the grievance in the first step of the process.
Shortly after Schmitt's hours were changed, Lenny Lasky's eight-hour position at Willowcreek was eliminated, and Schmitt took over most of his work in the cafeteria but was not given any additional time to complete it. Schmitt also had a half hour less to complete the same job duties as her coworkers.
D. Schmitt's Disagreement with Jason Martin
In December of 2001, Schmitt had a disagreement with Jason Martin, a fellow custodial worker (groundskeeper) who was in his twenties. Portage Schools had mistakenly awarded Schmitt one week extra vacation time and she confided this to Martin. Martin turned around and told a supervisor about the extra vacation time that was mistakenly awarded to Schmitt, and this caused hard feelings between the two. As a result, Schmitt and Martin did not speak to each other. The custodial supervisor, Nancy Busch, did testify, however, that Martin made an effort to maintain a civil relationship with Schmitt but she did not reciprocate, choosing instead simply to ignore him.
E. Schmitt's January 11, 2002, Evaluation and Her Written Response
Jack Friel is Portage Schools' labor-relations lawyer. Schmitt met with the Union and Friel on January 9, 2002, to address the problems caused by the change in Schmitt's hours. According to Schmitt, Friel told her that Portage Schools could do what it wanted with her hours, even though Schmitt believed that they were changed in retaliation for her complaints about her treatment by other employees. Regarding her allegations of sabotage, Friel told Schmitt, "The schools can do what they want." Friel warned Schmitt to be careful about the actions she took to resolve the allegedly hostile work environment.
Two days later, Schmitt received an impromptu Custodial Inspection and Evaluation Report which was prepared by Busch. Busch prepares these forms when she has the time, usually about once a year, but sometimes more often for full-time, non-probationary custodians like Schmitt. The evaluation contains 24 categories; there are four available ratings to give — not applicable, unsatisfactory, needs improvement, and satisfactory. Schmitt received the highest rating — "satisfactory" — in 20 of the categories, a "not applicable" in three of the categories, and a "needs improvement" in one of the categories. The category that Busch marked "needs improvement" was for "works well with others," which is under the larger category of "employee attributes." Busch wrote in the comment section that "[h]olding grudges being rude to co-workers contributes to a hostile work environment. Union Business cannot be conducted on work time."
Schmitt believes that she received the comment because of her misunderstanding with Jason Martin. Deborah Martin does not know of any such similar commentary or formal letter of reprimand in Jason Martin's personnel file (despite their last names, it does not appear that the two Martins are related).
F. Schmitt's First EEOC Charge
Schmitt filed a Form Five Charge of Discrimination with the Equal Employment Opportunity Commission on March 13, 2002. Schmitt based her charge on the Evaluation given by her supervisor, Busch. Since no equivalent evaluation was given to Jason Martin, the coworker with whom Schmitt had the disagreement which spurred her negative evaluation, and since he is not in the protected age group, Schmitt believed that she was discriminated against because of her age (46 at the time). Schmitt received a dismissal and a Notice of Right to Sue from the EEOC, dated April 29, 2002. She timely filed a Complaint, now before the Court.
G. Martin's Mistake About Portage Schools' Travel Time Policy
In May of 2002, Deborah Martin erroneously believed that Schmitt was late to work based upon Martin's misinterpretation of the fifteen minute travel time policy. Martin also placed a letter in Schmitt's employment file, warning Schmitt of falsifying time sheets to the extent that Schmitt might do so when she was late for her second shift. She later apologized to Schmitt about her mistake.
H. Schmitt's Use of Sick Time and Comp Time
In the fall of 2002, Schmitt asked Deborah Martin to have her schedule accommodated on Fridays for three months so that she could attend her son's football games. Her request was denied, but Martin suggested that Schmitt use her sick days to leave early to make it to the games. Sick days are taken in half-day increments, so even though Schmitt needed only one hour to attend the games, she used up four. It is unclear from the record whether Schmitt actually left four hours early. Just before the last football game of the season, Martin suggested that Schmitt use comp time by using a sick day on Fridays but then taking three hours of comp time. This way, Schmitt would not have to take a half day of sick time, only the one hour she needed.
Schmitt followed Martin's advice about the comp time and, upon Busch's instruction, Schmitt filled out the paperwork to use comp time. Martin's supervisor, Dean Shatz, threatened in writing to discipline Schmitt if she continued to use comp time as instructed by Martin. When Schmitt complained to Martin about being reprimanded for following Martin's and Busch's instructions on comp time, Martin replied, "Yours just got to be a little hectic for payroll." Although there clearly was some confusion over how she should account for her time off to see her son's football games, Schmitt admitted in her deposition that the matter was eventually straightened out.
In contrast, Busch accommodated Jason Martin's request to modify his schedule in order to be able to pick up his daughter from school. Also, Schmitt asserts that Portage Schools altered Lasky's hours to accommodate the schedule of his second job.
I. Schmitt's Second EEOC Charge
Schmitt filed another Charge of Discrimination with the EEOC on September 18, 2002, alleging that Portage Schools retaliated against her upon finding out about her first filing. Schmitt received a dismissal and a Notice of Right to Sue from the EEOC, dated March 4, 2003. She timely filed the Amended Complaint now before the Court on May 29, 2003.
J. Schmitt's Claims Against Portage Schools
There are three counts against Portage Schools in Schmitt's Amended Complaint: (1) violation of the Age Discrimination in Employment Act, (2) retaliation, and (3) infliction of emotional distress. Specifically, Schmitt contends that Portage Schools' failure to investigate or discipline Adams's sabotage, the Evaluation of January 11, 2002, and Portage Schools' refusal to alter her work schedule on Fridays were discriminatory and violative of the ADEA. She further contends that the evaluation, the denial of a more accommodating schedule, the sick time/comp time issue, the refusal to allow her to work her "normal" summer hours, the assignment of additional duties without additional pay or time for completion, and the assignment to work alone at night were done in retaliation for filing the EEOC charge and filing grievances with the Union. Finally, Schmitt contends that as a result of the hostile work environment, she has suffered from psoriasis breakouts and an ulcer. Her doctor prescribed Zoloft for her prolonged stress and Nexium for her stomach problems.
Schmitt initially alleged both intentional and negligent infliction of emotional distress, but later admitted that "the Defendant's acts were not negligent, but rather intentional." (Resp. 17.)
Schmitt has not suffered any monetary damages or loss of benefits resulting from the alleged discrimination or retaliation by Portage Schools. She was never terminated, and she has been awarded regular pay raises throughout her employment.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if 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). The party seeking summary judgment carries the initial burden of demonstrating an absence of evidence to support the position of the non-moving party. Doe v. R.R. Donnelley Sons, Co., 42 F.3d 439, 443 (7th Cir. 1994). The non-moving party must then set forth specific facts showing that there is a genuine issue of material fact and that the moving party is not entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, 447 U.S. 242, 252 (1986). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
In making this decision, the Court must draw every reasonable inference from the record in the light most favorable to the non-moving party. Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The non-moving party must support its contentions with admissible evidence and may not rest upon mere allegations in the pleadings or conclusory statements in affidavits. Celotex, 477 U.S. at 324. The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to its case on which that party will bear the burden of proof at trial.
III. DISCUSSION
A. Age Discrimination
The ADEA precludes employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. . . ." 29 U.S.C. § 623(a)(1). In an ADEA case, an employee can defeat summary judgment by presenting direct evidence of discrimination. If there is no direct evidence, she may still defeat summary judgment by utilizing the indirect, burden-shifting approach defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Since Schmitt presents no direct evidence, she must first establish a prima facie case of discrimination under the McDonnell Douglas test.
To establish a prima facie case of age discrimination using the indirect method, a plaintiff must demonstrate that: (1) she is a member of a protected class forty years of age and older; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) substantially younger, similarly situated employees were treated more favorably. Franzoni v. Hartmarx Corp., 300 F.3d 767, 771-72 (7th Cir. 2002); Wade v. Lerner New York, Inc., 243 F.3d 319, 322 (7th Cir. 2001). Once the plaintiff establishes a prima facie case of age discrimination, the employer, to avoid liability, must then produce a legitimate, nondiscriminatory reason for the employee's termination. See, e.g., Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009 (7th Cir. 2000).
If the employer offers a legitimate, nondiscriminatory explanation for the termination, the plaintiff must then rebut that explanation by presenting evidence sufficient to enable a trier of fact to find that the employer's proffered explanation is pretextual. Id. Pretext "means a dishonest explanation, a lie rather than an oddity or an error." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000).
Schmitt fails to establish a prima facie case because she does not demonstrate either that she suffered an adverse employment action, or that Portage Schools treated similarly situated but significantly younger persons differently than it treated her. Further, she cannot establish that Portage Schools' explanation is pretextual.
1. Prima Facie Case
Schmitt meets the first and second prongs of her prima facie case in that she was 45-46 years old when the alleged discrimination occurred, and she was performing her job satisfactorily. However, Schmitt fails to make the third prong of her prima facie case in that she has not suffered an adverse employment action.
In order to prove that she was the victim of unlawful discrimination, a plaintiff must show that she suffered a "materially adverse employment action" on the basis of her age. Haugerud v. Amery School Dist., 259 F.3d 678, 691 (7th Cir. 2001). The Seventh Circuit has defined such an action as something "more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady v. Liberty Nat. Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). Rather, it is "a significant change in the claimant's employment status such as hiring, discharge, denial of promotion, reassignment to a position with significantly different job responsibilities, or an action that causes a substantial change in benefits." Rhodes v. Ill. DOT, 359 F.3d 498, 504 (7th Cir. 2004) ( citing Bell v. E.P.A., 232 F.3d 546, 555 (7th Cir. 2000)). It is well established that negative employment evaluations, reprimands or a bruised ego unaccompanied by some tangible job consequence do not constitute an adverse employment action. Haywood v. Lucent Tech., Inc., 323 F.3d 524, 532 (7th Cir. 2003); Murray v. Chicago Transit Auth., 252 F.3d 880, 888 (7th Cir. 2001).
Schmitt discusses a number of cases in an attempt to show that what she experienced was an adverse employment action. She cites Knox v. State of Indiana, 93 F.3d 1327 (7th Cir. 1996), for the proposition that reassignments that have absolutely no economic impact can constitute an adverse employment action. The Knox court was simply making the point that the law does not take a "laundry list" approach to defining what constitutes an adverse employment action, as the variety of acts that can constitute such an action is limited only by the employer's imagination. Id. at 1334. But this does not mean that any perceived slight experienced by the employee now rises to the level of an adverse employment action. While an economic loss is not necessary for there to be an adverse employment action, an employee's alleged adverse action must still pass muster under the standard stated in numerous Seventh Circuit cases: "a significant change in the claimant's employment status." Rhodes, 359 F.3d at 504; Haywood, 323 F.3d at 532.
Schmitt also relies on Collins v. State of Illinois, 830 F.3d 692, 704 (7th Cir. 1987). Like Knox, Collins did not significantly change the adverse employment action landscape. Rather, it is just another example of the varying array of circumstances that can make up an adverse employment action. The court in Collins found that the plaintiff had established an adverse employment action by showing that:
She was transferred away from a job she enjoyed. She was placed in a new department. Her supervisors seemed unsure of what plaintiff's responsibility and authority would be at the newly created job. Plaintiff was relegated to doing reference work instead of consulting. Plaintiff previously had her own office, a telephone at her desk, printed business cards, and listings in professional publications as a library consultant. After her transfer plaintiff was placed at a desk out in the open. She did not have her own office. Her desk was situated just outside her supervisor's office where a receptionist's desk typically would be located. Plaintiff had no telephone at her desk with which she could conduct her business responsibilities. She was not allowed to have business cards printed and she was no longer listed in professional publications as a library consultant.Id. at 704. This case merely reinforces that economic damages are not necessary and thus is really no different than the test set forth in cases like Rhodes.
The significantly diminished responsibilities, attempts at humiliation, removal of necessary equipment, and reduction in job title that made the facts in Collins add up to an adverse employment action are missing in this case. Schmitt contends that the following were adverse employment actions for age discrimination purposes: (i) she alone had to deal with the effects of the animosity between her and Adams, without the help of her supervisors; (ii) she was given a "derogatory" evaluation; (iii) her request to have her Friday work schedule changed was denied; (iv) her job responsibilities were increase; and (v) she had to work alone until 7:00 p.m.
Schmitt suffered no tangible job consequence over how Portage Schools handled her personality conflict with Jason Martin or the denial of the request for a schedule change. She was not discharged, denied a promotion, reassigned to a substantially different position, or deprived of any pay or benefits. These allegations fall far short of what happened to the plaintiffs in Collins and Knox, and do not rise to the level of an adverse employment action.
As for the evaluation, Schmitt overstates the just how "derogatory" it really was. In fact, she received the highest possible rating in 20 categories and a "needs improvement" in one. (The other three categories were inapplicable to her). This is what separates her case from a case like Molnar v. Booth, 229 F.3d 593 (7th Cir. 2000). In Molnar, parts of that decision can be taken out of context to imply that a negative employment evaluation alone is sufficient to establish an adverse employment action. Molnar involved a student teacher, Lisetta Molnar, who was sexually harassed by her supervisor. When the supervisor was rebuffed, he retaliated against Molnar by writing her a bad review, which prevented Molnar from receiving her teacher's license. One of the issues before the Seventh Circuit was whether or not this bad review amounted to a tangible employment action. The court found it to be a "close call," but concluded that the plaintiff did show a tangible employment action. Id. at 600.
Molnar actually discusses what constitutes a "tangible employment action," but that phrase and "adverse employment action" are akin to each other. Savino v. C.P. Hull Co., 199 F.3d 925, 933 n. 8 (7th Cir. 1999).
The evaluation in the case at bar is quite a bit different than that in Molnar. As mentioned, Schmitt received an overall satisfactory performance evaluation, with one category marked as "needs improvement." Schmitt presents no evidence that there was any actual consequence or repercussions from the modestly adverse review. By contrast, Molnar's review was so poor that it prevented her from becoming licensed as a teacher.
As for the alleged danger in working alone until 7:00 p.m., Schmitt stated in her deposition that when she first started, she worked until 6:30 p.m. in the same building, IMS. Further, it appears that adjusting shift times to accommodate activities that were taking place in the buildings was a common occurrence in the school system. And at least one other custodian in the school system, Brenda Boling, had to work late hours alone. (Martin Dep. at p. 41).
In sum, taken individually or as a whole, the various acts alleged by Schmitt do not amount to a significant change in Schmitt's employment status. They are simply examples of the occasional peccadilloes that go along with working with and for other people.
Even if the Court were convinced that what Schmitt was subjected to amounted to adverse employment actions, she would still not prevail because she has also failed to establish the fourth prong of the McDonnell Douglas test. This part of the analysis requires the plaintiff to show that she "is similarly situated with respect to performance, qualifications, and conduct." Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003). Schmitt must show that Portage Schools treated someone who was directly comparable to her "in all material respects" more favorably. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002).
In attempting to establish this prong, Schmitt refers to Jason Martin, a groundskeeper in his twenties. She asserts that his schedule was accommodated to pick up his daughter at the bus stop and that he was not reprimanded for his obstinate conduct. Martin, however, is not similarly situated: while Schmitt works indoors as a custodian, Martin works outdoors. This fact is important because the indoor custodians' schedules are largely dictated by the planned activities (such as classes and meetings) that occur indoors, whereas the groundskeepers' schedules are more flexible because, with the exception of perhaps an outdoor lunch hour, there are no scheduled activities to work around. (Def.'s Ex. B, 38; Def.'s Ex. D, 40.) This is a material difference between Schmitt and Martin in regards to scheduling.
Schmitt has also failed to meet the fourth prong of the prima facie test with respect to her tiff with Martin. Schmitt felt that Martin had "stabbed her in the back" by telling Portage Schools about its mistake of giving her extra vacation time. She admitted that she stopped speaking to Martin first when she became angry with him, and Busch testified that Martin did in fact speak to Schmitt and gave her a Christmas card, which she immediately threw away (Def.'s Ex. D, 37). Such behavior demonstrates that Schmitt initiated and maintained the tension between them. As a consequence, in her review, under the category "works well with others" Schmitt was told that she "needs improvement" while Martin was not so advised. But the evidence is that Martin was attempting to put his dispute with Schmitt behind them and maintain a civil relationship, while Schmitt was not. Thus, Martin was not similarly situated to Schmitt with respect to their conduct or their evaluations.
2. Pretext
Even if the Court were to assume for the purposes of this motion that Schmitt could make her prima facie case, her claim fails because Portage Schools has put forth legitimate reasons for the changes in her work schedule — to accommodate the heavier workshop schedule in the IMS building — and Schmitt has not shown that this reason was pretextual. Portage Schools has also put forth a legitimate reason for the evaluation — Busch has the authority to administer evaluations, which are usually unscheduled — and Schmitt has not shown that this alleged attempt to damage her reputation was pretext for an age discriminatory animus. Portage Schools has shown that the comp time/sick time issue was merely a mistake and a misunderstanding for which it has admitted fault, and Schmitt has not shown that Martin's poor advice and the resulting disciplinary action were purposefully given with a discriminatory intent.
As the Seventh Circuit has said many times, the federal courts do not "sit as a super personnel department to review an employer's business decisions." Ransom v. CSC Consulting, Inc., 217 F.3d 467, 471 (7th Cir. 2000) ( quoting McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)). Moreover, "it is no business of a court in a discrimination case to decide whether an employer demands too much of its workers." Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179-80 (7th Cir. 1997). It is not even the court's concern that an employer may be wrong about its employee's performance. Gusewelle v. City of Wood River, 374 F.3d 569, 576 (7th Cir. 2004). Instead, the question for the Court is whether the employer's proffered reason was pretextual, meaning it was a lie and not merely a mistake. Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996).
Schmitt's inconvenient or stressful work schedule, her additional duties upon Lasky's transfer, and Portage Schools' expectation that Schmitt get along with her co-workers may have created circumstances that were too demanding of Schmitt. However, as long as the circumstances were not created as a pretext in order to discriminate against Schmitt because of her age — and they were not — the Court cannot conclude that Portage Schools acted with a discriminatory intent. Coco, 128 F.3d at 1179-80. Also, even if the evaluation comments were erroneous, Schmitt has not shown that Portage Schools used it as a tool for discrimination, and not just as a way to communicate to her that her behavior needed improvement. Schmitt has not met her burden of showing that Portage Schools' proffered reasons were lies to cover up an age discriminatory motivation; hence, her ADEA claim cannot proceed past summary judgment.
B. Retaliation
1. Prima Facie Case
A plaintiff in a suit alleging retaliation must identify a protected activity and an adverse employment action. Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640 (7th Cir. 2002). Schmitt has identified the following as the protected activities at issue: the grievances she filed with her Union, the Charges of Discrimination she filed with the EEOC, and the Civil Complaint she filed against Portage Schools. (Resp. at p. 14.) Schmitt has identified six alleged adverse employment actions that occurred after the first grievance she filed: changing her hours, giving her an unscheduled, unfavorable evaluation, denying her request for a schedule change to watch her son's football games, incorrectly instructing her on the use of comp time, refusing to allow her to work her normal summer hours, and forcing her to work alone in the building until 7 p.m. (Resp. at p. 16.)
As with other federal anti-discrimination statutes, an ADEA plaintiff may prove disparate treatment either by presenting direct evidence of discrimination, or she may prove discrimination indirectly using the McDonnell Douglas burden-shifting method. Sitar v. Indiana Department of Transportation, 344 F.3d 720, 728 (7th Cir. 2003) (although Sitar was a Title VII case, the same standards generally apply to Title VII and ADEA claims, see Cerutti v. BASF Corp., 349 F.3d 1055, 1061 n. 4 (7th Cir. 2003) ("We employ essentially the same analytical framework to employment discrimination cases whether they are brought under the ADEA, Title VII, or § 1981.")). But whether a plaintiff proceeds under the direct or indirect method, she must still show that she suffered an adverse employment action. Williams v. Waste Mgmt. of Ill., Inc., 361 F.3d 1021, 1031 (7th Cir. 2004). Schmitt's claim fails under both methods because, much like with her age discrimination claim, she cannot show that she suffered an adverse employment action. She has lost no pay or benefits, and unfavorable changes in hours or duties, without more, do not constitute adverse employment actions. Haywood, 323 F.3d 524; Grube v. Lau Indus., 257 F.3d 723, 727 (7th Cir. 2001). In addition, the negative evaluation and working alone are not enough, as discussed in the age discrimination section above. Finally, the mistaken imposition of a penalty for misuse of comp time was quickly rectified, and had no lasting effects on her job or career, differentiating this case from Molnar. 229 F.3d at 600. No reasonable jury could find that these actions, taken alone or together, constitute an adverse employment action.
Schmitt's Response Brief appears to allege that there was a constructive discharge, which would be an adverse employment action. "Furthermore, it is the Defendant's attempts to make Schmitt's working environment so hostile as to cause Schmitt to resign her employment, which constitutes the evidence of retaliation." (Plaintiff's Response at p. 15). But this does not make sense in this context because "to demonstrate constructive discharge, the plaintiff must show that she was forced to resign because her working conditions, from the standpoint of the reasonable employee, had become unbearable." EEOC v. Univ. of Chi. Hosps., 276 F.3d 326, 331 (7th Cir., 2002). Schmitt was not constructively discharged for two reasons. First, she was not forced to resign. In fact, it appears that she still works for the school corporation. (Schmitt Dep. at p. 113). Second, the conditions at the school were nowhere near unbearable. Constructive discharge requires a work environment "even more egregious than the high standard for hostile work environment." Tutman v. WBBM-TV, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000). In cases finding constructive discharge, the plaintiffs suffered extremely severe and sustained harassment. See, e.g., Taylor v. Western S. Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992). In Taylor, the Seventh Circuit found constructive discharge when the plaintiffs' boss constantly peppered the plaintiffs with racist comments and held a pistol to one plaintiff's head. Taylor, 966 F.2d at 1191.
The sum of Schmitt's complaints for this part of her case are that she was assigned inconvenient hours and extra tasks, that her supervisors made some mistakes as to the rules for travel, comp, and sick time, resulting in disciplinary action against her which was later rectified, and that she received a negative evaluation. She alleges little more than boorish (or perhaps incompetent) behavior by Portage Schools, and this falls far short of establishing the type of environment that can lead to a constructive discharge. For these reasons, she has failed to establish constructive discharge, and she has no adverse employment action from which to proceed under either the direct or indirect method of proof of retaliation.
2. Pretext
Even if we were to assume that Schmitt could make her prima facie case, her claim fails because Portage Schools has come up with legitimate, non-discriminatory reasons for all of their actions. Her hours were changed to fit changing schedules in the building. It is unfortunate that these changes may have forced her to work alone at night, but the nature of this sort of work is often that custodians clean empty buildings, and buildings are usually empty at night. As Schmitt was the only custodian at IMS, it seems only natural that she might have to work alone at night. The evaluation she received was only negative in one of twenty categories (and only slightly negative at that), and all the evidence supports Portage Schools' contention that that negative evaluation was warranted. As far as the mistakes the school made about the use of comp time, it appears that they acknowledged their mistake and the matter was resolved. Unless there is a material issue of fact as to whether these reasons are really just pretext for retaliation, Portage Schools is entitled to summary judgment. Hudson v. Chi. Transit Auth., 375 F.3d 552, 559 (7th Cir. 2004). Schmitt has failed to create such an issue. The environment Schmitt endured may well have been less than ideal, but she has not come forth with enough evidence from which a rational jury could conclude that any of it was done in retaliation. Rather, all the evidence points to an employer honestly trying to manage its business and sort out differences between feuding employees.
C. Intentional Infliction of Emotional Distress
1. Failure to Comply with the Indiana Tort Claims Act
The Indiana Tort Claims Act ("ITCA") requires that notice be given within 180 days of an alleged tort if the claim is against a political subdivision of the State. Kellogg v. City of Gary, 562 N.E.2d 685, 689 (Ind. 1990). For purposes of Indiana Code section 34-13-3, "political subdivision" includes school corporations such as Portage Schools. IND. CODE ANN. § 34-6-2-110(9) (2004).
The ITCA mandates that the claimant comply with specific requirements for the contents of a notice of claim:
The statement must describe in a short and plain statement the facts on which the claim is based . . . [It] must include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim . . .
IND. CODE ANN. § 34-13-10 (2004). The notice statute's purpose is "to allow investigation, determination of liability and preparation of a defense to the claim." Scott v. Gatson, 492 N.E.2d 337, 340 (Ind.Ct.App. 1986). A plaintiff must prove that she has complied with the ITCA before trial. Whether she has complied is "a legal determination to be made by the court." Lake Cty. Juvenile Ct. v. Swanson, 671 N.E.2d 429, 437 (Ind.Ct.App. 1996).
There is no indication in this case that Schmitt filed the requisite notice for her infliction of emotional distress claim. Moreover, she does not allege that she provided Portage Schools with a notice of claim. Portage Schools asserts that it has not received any such notice, (Def.'s Ex. A, ¶ 5), and Schmitt does not contest that assertion.
Since "summary judgment is appropriate when the claimant fails to file the notice within 180 days," Bradley v. Eagle-Union Comm. School Corp., 647 N.E.2d 672, 676 (Ind.Ct.App. 1995), and because Schmitt did not comply with the ITCA notice requirements, her claim of intentional infliction of emotional distress is barred.
2. Legal Insufficiency
Even if Schmitt had timely filed a proper tort claim notice, her claim for intentional infliction of emotional distress would still fail because she presents no evidence of extreme or outrageous conduct on the part of Portage Schools, and she has not shown that it intended to inflict such emotional distress upon her.
Under Indiana law, intentional infliction of emotional distress occurs when "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another." Conwell v. Beatty, 667 N.E.2d 768, 775-76 (Ind.Ct.App. 1996). The actions of the alleged tortfeasor must also be indecent, atrocious, and intolerable in order to qualify as conduct that would give rise to a claim for intentional infliction of emotional distress:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Gable v. Curtis, 673 N.E.2d 805, 809-10 (Ind.Ct.App. 1996) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)).
Schmitt has not met her burden of proving that Portage Schools' conduct even approached behavior so extreme as to constitute an intolerable atrocity. Not even the failure to address the problem of bloody toilet paper on the floor of the bathroom she was assigned to clean would lead an average member of the community to exclaim, "Outrageous!" Her inconvenient hours, assumption of additional duties, and surprise evaluation do not suffice either. When her supervisors erroneously admonished her for her use of travel, sick, and comp time, they admitted fault. Schmitt's complaints about her workplace environment add up to no more than the effects of inefficient or ineffective management and not always getting exactly what she wanted.
D. Motions to Strike
Schmitt filed a Motion to Strike involving three portions of the Defendant's Reply Brief that cited to a supplemental designation of evidence. The first piece of evidence Schmitt seeks to strike is Defendant's footnote number three, which references Schmitt's testimony about Adams. Schmitt contends that the Defendant did not designate these portions of Schmitt's deposition as evidence in their Motion for Summary Judgment, and thus cannot use them in their Reply Brief. The Court did not materially rely on this footnote in ruling on the Motion for Summary Judgment, so it can deny this part of the Motion to Strike as moot. Schmitt also seeks to strike footnote eight, which references Nancy Bush's testimony that she gives nonprobationary employees like Schmitt evaluations when she "has time" and that these employees can receive evaluations more than once per year. Schmitt argues that this evidence is also improper because it was not designated in their Motion for Summary Judgment. However, the page cited in footnote eight actually was included with Defendant's Motion for Summary Judgment, so that portion of the Motion to Strike can also be denied. Finally, Schmitt objects to footnote eleven of Defendant's Reply for the same reason. That footnote refers to Schmitt's EEOC grievance. As we did not rely on the EEOC grievance in granting the Motion for Summary Judgment, this portion of the Motion to Strike is also denied as moot.
IV. CONCLUSION
For the foregoing reasons, the Defendant's Motion for Summary Judgment [Docket No. 26] is GRANTED. Plaintiff's Motion to Strike [Docket No. 47] is DENIED. The clerk shall ENTER FINAL JUDGMENT in favor of Portage Township School Corporation, stating that Sandra Kay Schmitt is entitled to no relief. The clerk shall treat this civil action as TERMINATED. All further settings in this action are hereby VACATED.
SO ORDERED.