OVERVIEW: Plaintiff filed suit against defendants alleging sexual discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e) et seq., sexual harassment and retaliation pursuant to Title VII, age discrimination pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C.S. § 621 et seq., and tortious interference of contract. Defendants filed for summary judgment and for sanctions pursuant to Fed. R. Civ. P. 11 and 28 U.S.C.S. § 1927. The court granted defendants' motions for summary judgment on plaintiff's sexual harassment claim, concluding that plaintiff failed to prove a prima facie case of sexual harassment based on her sex. The court also granted defendants' motion with respect to the retaliation claim, finding that this was not an adverse employment action. Also, the court concluded that plaintiff failed to state a prima facie case of age discrimination. Finally, the court found that sanctions were warranted under both Rule 11 and § 1927.

OUTCOME: Defendants' motions for summary judgment granted; plaintiff failed to prove a prima facie case of sexual harassment based on her sex. The court also found that sanctions were warranted.

CORE TERMS: summary judgment, gender, prima facie case, deposition, age discrimination, sexual harassment, retaliation, sex discrimination, threatening, twenty-one, harassment, phone, leave to file, sexual, sex, tortious interference, similarly situated, hostile, younger, circulated, replaced, crime of violence, violence, grievance, offensive, discovery, arrested, hostile work environment, direct evidence, protected class
 

 Civil Procedure : Summary Judgment or Summary Adjudication : Burdens of Production & Proof
 Civil Procedure : Summary Judgment or Summary Adjudication : Summary Judgment Standard

Summary judgment is proper where the pleadings and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. The court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant.

 Civil Procedure : Summary Judgment or Summary Adjudication : Summary Judgment Standard

In reviewing a summary judgment motion, the court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. No issue remains for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.

 Labor & Employment Law : Employment Discrimination : Race & Color Discrimination
 Labor & Employment Law : Employment Discrimination : Sex Discrimination
 Constitutional Law : Civil Rights Enforcement : Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e) et seq., makes it unlawful for an employer to discriminate against an employee because of the employee's race or sex. 42 U.S.C.S. § 2000e et seq. The plaintiff must prove that she was a victim of intentional discrimination. A plaintiff can satisfy her burden of proof in a sex discrimination case in two ways: through direct evidence of discriminatory intent or through indirect evidence demonstrated by the burden-shifting method presented in McDonnell Douglas Corp. v. Green.

 Labor & Employment Law : Employment Discrimination : Sex Discrimination : Coverage & Definitions

To establish a prima facie case of sex discrimination, a plaintiff must show: (1) she is in a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) that others, similarly situated but not of the protected class, were treated more favorably.

 Labor & Employment Law : Employment Discrimination : Sex Discrimination : Coverage & Definitions

Once the plaintiff establishes a prima facie case of sex discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Then the burden shifts back to the plaintiff to show the defendant's reason is in fact pretext for discrimination. The ultimate burden of proof remains with the plaintiff at all times.

 Labor & Employment Law : Employment Discrimination : Sex Discrimination : Coverage & Definitions

A materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion, evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.

 Labor & Employment Law : Employment Discrimination : Sex Discrimination : Coverage & Definitions
 Constitutional Law : Civil Rights Enforcement : Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e) et seq., prohibition against sex discrimination, 42 U.S.C.S. 2000e-2(a)(1), protects employees against unwelcome sexual advances that create an offensive or hostile working environment. Harassment encompasses all forms of conduct that unreasonably interfere with an individual's work performance or create an intimidating, hostile, or offensive working environment. Under a hostile environment theory, the harassment must be sufficiently severe or pervasive so as to alter the conditions of the victim's employment and to create an abusive working atmosphere. Employees may also sue on the basis of quid pro quo harassment, which occurs when tangible employment benefits are conditioned upon compliance with a harasser's sexual demands.

 Labor & Employment Law : Employment Discrimination : Sex Discrimination : Coverage & Definitions
 Constitutional Law : Civil Rights Enforcement : Civil Rights Act of 1964

The Supreme Court reaffirmed the principle that a Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e) et seq., sexual harassment claim is directed only at discrimination because of sex. Accordingly, the ultimate inquiry for a sexual harassment plaintiff is whether he or she can prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.

 Labor & Employment Law : Employment Discrimination : Sex Discrimination : Coverage & Definitions
 Labor & Employment Law : Employment Discrimination : Sexual Harassment : Hostile Work Environment
 Constitutional Law : Civil Rights Enforcement : Civil Rights Act of 1964

Conduct characterized as sexual harassment violates Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e) et seq., when it is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment from the perspective of a reasonable person; and when it results in the victim subjectively perceiving the work environment to be abusive or hostile. The focus is on the totality of the circumstances. Factors relevant to determining whether a particular environment is hostile include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Hostile environment claims do not grow from isolated and innocuous incidents.

 Labor & Employment Law : Employment Discrimination : Sexual Harassment : Hostile Work Environment

An employee asserting a claim of hostile work environment sexual harassment must prove the following: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the harassment was sufficiently severe and pervasive to alter the conditions of the victim's employment and create an abusive working environment.

 Constitutional Law : Civil Rights Enforcement : Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e) et seq., is designed to protect working women from the kind of male attentions that can make the workplace hellish for women. It is not designed to purge the workplace of vulgarity.

 Labor & Employment Law : Employment Discrimination : Actionable Discrimination : Retaliation
 Constitutional Law : Civil Rights Enforcement : Civil Rights Act of 1964

A plaintiff who brings a retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e) et seq., must either present direct evidence of retaliation or proceed within the familiar burden-shifting framework set forth in McDonnell Douglas. Under the burden-shifting framework, plaintiff can establish a prima facie case of retaliation by showing, first, that he engaged in statutorily protected expression or activity--that is, that he "opposed" an employment practice made unlawful by Title VII. To constitute opposition, the conduct an employee objects to need not actually violate Title VII. Rather, the test is whether the employee "reasonably believed in good faith that the practice she opposed violated Title VII. Second, the Plaintiff must demonstrate that she suffered an adverse action by her employer. Finally, the plaintiff must establish a causal link between the protected activity or expression and the adverse action.

 Labor & Employment Law : Employment Discrimination : Actionable Discrimination : Retaliation
 Constitutional Law : Civil Rights Enforcement : Civil Rights Act of 1964

A successful prima facie case for a retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000(e) et seq., creates a rebuttable presumption of retaliation, and shifts to the defendant a burden of articulating a legitimate, non- retaliatory reason for the challenged conduct. If the defendant does so, the presumption of retaliation dissolves, and the plaintiff must then establish that the employer's proffered reason is a pretext for discrimination.

 Labor & Employment Law : Employment Discrimination : Age Discrimination : Coverage & Definitions

Under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. § 621 et seq., it is illegal for an employer to discharge an employee over forty years old because of that individual's age. 29 U.S.C.S. §§ 623(a), 631(c). To succeed in an ADEA claim, a plaintiff must establish that he would not have received adverse treatment but for his employer's intentional age-based discrimination.

 Labor & Employment Law : Employment Discrimination : Age Discrimination : Coverage & Definitions

A plaintiff may prove age discrimination either (1) by presenting direct evidence of age discrimination, or (2) by relying on the indirect, "burden- shifting" method of proof outlined in McDonnell Douglas. Under the direct method of proof, the evidence of age discrimination must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question.

 Labor & Employment Law : Employment Discrimination : Age Discrimination : Coverage & Definitions

In order to establish a prima facie case of age discrimination, a plaintiff must demonstrate that (1) she was a member of the protected class (age 40 or over), (2) she was doing the job well enough to meet her employer's legitimate expectations, (3) despite her performance, she was discharged, not hired or promoted, etc., and (4) younger, similarly-situated employees were treated more favorably, or she was replaced by someone "substantially younger," although not necessarily outside the protected class. With respect to the fourth prong, an inference of age discrimination cannot be drawn from the replacement of one worker with another insignificantly younger. Rather, a plaintiff must show that she was replaced by someone "substantially younger," although not necessarily outside the protected class. A ten-year difference in ages is presumptively "substantial" under O'Connor.

 Labor & Employment Law : Workplace Violence

See 42 U.S.C.S. § 13981(c).

 Labor & Employment Law : Workplace Violence
 Constitutional Law : Civil Rights Enforcement

The Violence Against Women Act (VAWA), 42 U.S.C.S. § 13981 et seq., does not cover random acts of violence unrelated to gender or acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender. 42 U.S.C.S. § 13981(d)(1). Rather, Congress explicitly limited the VAWA's civil rights provision to cover only crimes of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender. 42 U.S.C.S. § 13981(d)(1). Thus, to state a cause of action under the VAWA, a plaintiff must allege that he or she was a victim of a crime of violence that was committed because of his or her gender and was carried out, at least in part, on the alleged perpetrator's animus based upon the plaintiff's gender.

 Torts : Business & Employment Torts : Interference With a Contract

Under Illinois law, the elements of tortious interference with contract are: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant's awareness of this contractual relation; (3) the defendant's intentional and unjustified inducement of a breach of the contract which causes a subsequent breach by the other; and (4) damages. Inducement of the cancellation of an at-will contract, at most, constitutes interference with a prospective economic advantage, not interference with contractual relations.

 Torts : Business & Employment Torts : Interference With Prospective Advantage

The elements of tortious interference with prospective economic advantage are: (1) a reasonable expectation by the plaintiff of entering into a valid business relationship; (2) the defendant's knowledge of the plaintiff's expectancy; (3) purposeful interference by the defendant that prevents the plaintiff's legitimate interest from ripening into a valid business relationship; and (4) damages to the plaintiff resulting from such interference. "Purposeful interference" means that the defendant has committed some impropriety in interfering with the expectancy, and is an element that the plaintiff must plead and prove.

 Civil Procedure : Sanctions : Baseless Filings

Fed. R. Civ. P. 11(b) mandates that an attorney who presents a pleading to the court certify that: to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery and the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

 Civil Procedure : Sanctions : Baseless Filings

To measure the reasonableness of the party's inquiry into the factual basis of its claim, the court must look to many factors including: whether the signer of the documents had sufficient time for the investigation; the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion or other paper; whether the case was accepted from another attorney; the complexity of the facts and the attorney's ability to do a sufficient pre-filing investigation; and whether discovery would have been beneficial to the development of the underlying facts.

 Civil Procedure : Sanctions : Baseless Filings

One of the basic purposes of Fed. R. Civ. P. 11 is to deter baseless filings in the district court. To carry out this purpose, Rule 11 imposes on parties a responsibility to file papers with the court only when a party has reasonable basis in fact and law for the proposition it is advocating. If the court finds grounds for sanctions, the court has a duty, not an option, to sanction the opposing party.

 Civil Procedure : Sanctions : Baseless Filings

Because the purpose of Fed. R. Civ. P. 11 is to deter rather than punish, the type of sanction a court can impose depends on the opposing party's conduct. Sanctions may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation. Fed. R. Civ. P. 11(c)(2). The type of sanction allowed is limited. If the pleading or motion is being presented for any improper purpose, such as to harass or to cause unnecessary or needless increase in the cost of litigation, the court may award monetary sanctions against the opposing party. Fed. R. Civ. P. 11(b)(1). However, if the sanction is imposed on the grounds that the opposing party has presented claims that are not warranted by existing law or the establishment of new law, a court does not have the power to impose monetary sanctions. Fed. R. Civ. P. 11(c)(2)(A).

 Civil Procedure : Sanctions : Baseless Filings

Fed. R. Civ. P. 11(c)(1)(A) requires that the parties moving for sanctions follow two procedures. First, the motion for Rule 11 sanctions must be made separately from other motions or requests and must describe the specific conduct alleged to violate subdivision (b). Allowing a Rule 11 motion to be made along with another motion is considered an abuse of discretion. Second, the motion may not be filed with the court unless, within 21days of service, the opposing party has not withdrawn or corrected the challenged behavior. Imposing sanctions by motion without adhering to the 21day safe harbor is considered an abuse of discretion.

 Civil Procedure : Costs & Attorney Fees : Attorney Fees

28 U.S.C.S. § 1927 allows recovery of fees against an attorney if that attorney litigates "unreasonably and vexatiously." If a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and vexatious. Ordinary negligence does not give rise to § 1927 sanctions; rather some evidence must exist that an attorney acted with either subjective or objective bad faith.

 Civil Procedure : Sanctions

The Seventh Circuit has held that sanctions under 28 U.S.C.S. § 1927 are appropriate only in instances of a serious and studied disregard for the orderly processes of justice, or where a claim is without a plausible legal or factual basis and lacking in justification. It is within the sound discretion of the district court whether to grant or to deny sanctions under § 1927.

 Civil Procedure : Sanctions : Baseless Filings

A motion for sanctions under Fed. R. Civ. P. 11 shall be made separately from other motions or requests. Fed. R. Civ. P. 11(c)(1)(A).

COUNSEL: For MARCIA HARRIS, plaintiff: Charles M. Poplstein, Rodney A. Harrison, Thompson Coburn, St. Louis, MO.
 
For FRANKLIN-WILLIAMSON HUMAN SERVICES INC,  [**2]  defendant: Kevin J. Lorenz, Burton D. Garland, Jr., McMahon, Berger et al., St. Louis, MO.
 
For LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, SOUTHERN ILLINOIS LABORERS' DISTRICT COUNCIL, RANDALL J MAYHEW, defendants: Michael W. O'Hara, Patrick J. O'Hara, Cavanagh & O'Hara, Sangamon County, Springfield, IL.

JUDGES: DAVID R. HERNDON, United States District Judge.

OPINIONBY: DAVID R. HERNDON

OPINION:  [*896] 

MEMORANDUM AND ORDER
 
HERNDON, District Judge:

I. Introduction

Pending before the Court are Defendants' three motions for summary judgment and Defendants' three motions for sanctions pursuant to FEDERAL RULE OF CIVIL PROCEDURE 11 and 28 U.S.C. § 1927 against Marcia Harris and her attorneys (Docket Entry Nos. 88, 98, 105, 62, 120, and 124, respectively). As to the motions for summary judgment, Defendants maintain that they are entitled to summary judgment on all counts of Harris' First Amended Complaint. Specifically, they maintain that Harris has not established a prima facie case under any of the counts.

As to the sanctions, Defendants assert that Harris filed this lawsuit for the sole purpose of harassing Defendants, causing undue delay, and  [**3]  needlessly increasing the costs of litigation. Specifically, they maintain that many of the allegations in her First Amended Complaint are not supported by the evidence and that Harris and her attorneys knew that some of the allegations were not supported by evidence when they filed the First Amended Complaint. Harris objects to Defendants' request for sanctions arguing that she and her attorneys have acted in good faith throughout the litigation. Furthermore, Harris contends that Defendants' failure to recognize the twenty-one day "safe harbor" rule contained in Rule 11 merits denial of their motions for sanctions. Having reviewed the pleadings and the applicable case law, the Court rules as follows.  [*897] 

II. Procedural Background

Initially, Marcia Harris filed suit against Franklin-Williamson Human Services, Inc. ("FWHS"), Laborers' International Union of North America ("LIUNA"), Southern Illinois Laborers' District Council ("SILDC"), and Randall Mayhew ("Mayhew") on September 16, 1998 (Docket Entry No. 1). Subsequently, Harris filed a five-count amended complaint against Defendants (Docket Entry No. 3). The First Amended Complaint alleges: (a) sexual discrimination  [**4]  pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 200042 U.S.C. § 2000(e) et seq. (Count I); (b) sexual harassment and retaliation pursuant to Title VII (Count II); (c) age discrimination pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 29 U.S.C. § 621 et seq. ("ADEA") (Count III); (d) violations of the Violence Against Women Act, 42 U.S.C. § 13981 42 U.S.C. § 13981 et seq. ("VAWA") (Count IV); and (e) tortious interference of contract (Count V). Counts I, II and IV are against all Defendants; Count III is against FWHS and Count V is against LIUNA, SILDC and Mayhew.

On February 17, 1999, the Court heard oral argument on several of Defendants' motions to dismiss and for summary judgment and took the matters under advisement. In March of 1999, the Court denied FWHS' motion for partial summary judgment; Mayhew, LIUNA and SILDC's motion to dismiss and/or summary judgment; and FWHS' motion to dismiss, to strike or for more definite statement (Docket Entry Nos. 40, 41 and 42, respectively).

The parties proceeded with discovery and in April 1999, Harris' deposition was taken. In all, the parties  [**5]  deposed nineteen people from May 1999 to June 1999. After reviewing the depositions, Defendants Mayhew, LIUNA and SILDC served Harris' attorneys with their Rule 11 sanctions on May 25, 1999. In response to the sanctions, Harris filed a motion for leave to file a second amended complaint on June 15, 1999 (Docket Entry No. 56). On June 16, 1999, Mayhew, LIUNA and SILDC filed Rule 11 sanctions with the Court (Docket Entry No. 62). Subsequently, Defendants moved for summary judgment on all counts of the First Amended Complaint (Docket Entry Nos. 88, 98 and 105).

On August 16, 1999, the Court held a hearing on Harris' motion for leave to file a second amended complaint. The Court orally denied the motion for to leave file a second amended complaint finding:

I've seen a lot of cases where individuals, such as the plaintiff in this case, come to me or the magistrates and complain about all of the fishing expeditions that defense wants to take and how they want to go into discovery, that they shouldn't be allowed, because the standard argument is that the plaintiff's lawyer is not getting paid by the hour and the defendant's lawyer is. But this case is extraordinarily  [**6]  different because here we have the plaintiff coming in, an individual who says they should have gone on a fishing expedition because they should have known that I would have gone from specific allegations to general allegations and try to open this thing up simply because I couldn't prove it against one guy. I now want to see who else is out there and open this thing wide open, so they should have contemplated that and given me and done the discovery in advance. I think it's a disingenuous argument.
I think that it is clear in this case that the defendants, the employer and the other defendants would be extraordinarily prejudiced by the amendment of this complaint because they, at the very least, would have to come in and ask for an extension of time for discovery. If I didn't grant it, they would be stuck. If I granted it, they would be delayed. The motion is simply denied.

 
(August 16, 1999 hearing on motion for leave to file second amended complaint, pages 44-45, lines 24-23).
 
Also during the August 16, 1999 hearing, the Court orally granted FWHS leave to  [*898]  file Rule 11 sanctions and 28 U.S.C. § 1927 sanctions. On September 20, 1999, FWHS  [**7]  moved for sanctions pursuant to both Rule 11 and 28 U.S.C. § 1927 (Docket Entry No. 120). Following suit, Mayhew, LIUNA and SILDC also moved for sanctions pursuant to 28 U.S.C. § 1927 on September 27, 1999 (Docket Entry No. 124).

III. Facts

Harris began working for FWHS in 1978. In 1989, she was promoted to the position of Director of Rehabilitation Services. In September of 1994, the employees of FWHS elected to become members of SILDC. Mayhew was the Director of Organizing in charge of the union organization and campaign at FWHS. Harris alleges that Mayhew committed numerous offensive acts against her and that she made repeated complaints to FWHS during her employment about Mayhew.

Specifically, Harris alleges that on September 20, 1994, Mayhew assaulted, intimidated and harassed her while she was working at the Rehabilitation Center and that after the September 20, 1994 incident, Mayhew threatened, assaulted, intimidated, sexually harassed and/or stalked Harris on more than one occasion on the premises of FWHS' Rehabilitation Center. Harris' complaint further alleges that on or about September 20, 1994, Mayhew  [**8]  contacted Kenneth Bleyer, an attorney for FWHS, and told Bleyer that he controlled the County Boards in Franklin and Williamson Counties and that unless Harris was fired, Mayhew would make things difficult for FWHS with respect to its position with the union, and after that Mayhew threatened FWHS with adverse union actions, including strikes, if FWHS did not discipline, discharge, demote or otherwise make things difficult for Harris.

She further asserts that agents and/or employees of Defendants, including Mayhew, did the following: (1) assaulted, intimidated, stalked and harassed her; (2) circulated a letter falsely implying that she had been tested for herpes; (3) circulated a flyer depicting her as a witch; (4) circulated a picture of a nude female with "call Marcia 618-996-3082" written on it; and (5) circulated a document entitled "The Great American Bitch Award" which named Harris as the recipient and stated the award was given to her for "being a c   t." Harris also claims that in January 1996, she informed First Amended Complaint Markley, then acting administrator of FWHS, that Mayhew made or caused to be made threatening comments to her and threatened to shoot her.  [**9]  She claims that right after she and Markley talked, Markley issued her two written reprimands regarding her handling of a union grievance.

At the end of June 1997, Harris initiated contact with an individual named Jimmy Fulks. n1 Harris had read news articles about Fulks' problems with Defendants. Feeling that they had something in common, Harris and Fulks developed a relationship. Eventually, Harris met with  [*899]  Fulks and his partner, corporate counsel, Paul Schoen. Fulks is paying for Harris' legal bills in connection with this suit. n2
 
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n1 Around 1989, Fulks began operating a business called Mariah Boat. At that time, Mayhew attempted to organize the employees working for Fulks at Mariah. Mayhew's organizing attempt was unsuccessful. This organization attempt caused personal problems between Fulks and Mayhew. In April 1997, Mayhew began a drive to organize another of Fulks' businesses, Chariot Marine Fabricators. Two weeks after Mayhew started his organizing efforts, Fulks closed Chariot after he caught Mayhew meeting with workers on a lunch break. The Union complained to the NLRB which issued a complaint accusing Mariah of illegally closing the business in part to "chill unionism at the Mariah facility." Thompson Coburn represented Fulks and Mariah at the proceedings before the NLRB. Ultimately, the NLRB determined that Fulks had illegally fired workers from Chariot. Subsequently, Fulks and Mariah, by and through their attorneys, Thompson Coburn, filed a lawsuit in the Southern District of Illinois against Mayhew and LIUNA for violations of the RICO statute. The Honorable J. Phil Gilbert dismissed with prejudice Fulks and Mariah's cause of action for failure to state a claim upon which relief can be granted. See Mariah Boat, Inc. v. Laborers Int'l Union of North America, 19 F. Supp. 2d 893 (S.D. Ill. 1998).  [**10] 
 
n2 Harris testified that Jimmie Fulks is financing this litigation by advancing her fees 100%. (Harris deposition, page 215). Fulks testified that Paul Schoen is co-counsel with Thompson Coburn on this case and that Schoen can make the directions and make the calls that are necessary for the purpose of prosecuting the lawsuit (Fulks deposition, page 14).
 
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Subsequently, in July of 1997, FWHS transferred Harris from her position of Director of Rehabilitation Services and assigned her to the position of Director of Development and Marketing. At this time, Harris was 49 years old and replaced (in the interim) by Karen Freitag, age 44. n3 Ultimately, the position was filled by Robert G. Ford, age 44. Harris maintains that she was transferred from her position as Director of Rehabilitation Services because of her sex, her age and in retaliation. Harris alleges that this transfer was an adverse employment action. She also alleges that her new office was infested with roaches.
 
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n3 The record reveals that Freitag was almost 45 years old at the time she replaced Harris in the interim.
 
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IV. Summary Judgment

Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218 (7th Cir. 1984). n4 The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Tregenza v. Great American Communications Co., 823 F. Supp. 1409, 1411 (N.D. Ill. 1993), aff'd, 12 F.3d 717 (7th Cir. 1993), cert. denied, 511 U.S. 1085, 114 S. Ct. 1837, 128 L. Ed. 2d 465 (1994).
 
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n4 Accord Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588-89, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Jean v. Dugan, 20 F.3d 255, 259 (7th Cir. 1994).
 
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In reviewing a summary judgment motion, the Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. Harms v. Godinez, 829 F. Supp. 259, 261 (N.D. Ill. 1993). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Accord Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991).

In a 1995 case, the Seventh Circuit noted that this standard should be applied "with added rigor" in employment discrimination cases, in which intent and credibility are crucial issues. See, e.g., DeLuca v. Winer Industries, Inc., 53 F.3d 793, 797 (7th Cir. 1995) (quoting Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1162 (7th Cir. 1994) and Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993)). DeLuca affirmed prior  [**13]  Seventh Circuit pronouncements that in employment discrimination cases, which often involve issues of motive and intent, summary judgment must be approached with caution. Huhn v. Koehring Co., 718 F.2d 239, 242 (7th Cir. 1983) Huhn relied on an earlier case which recognized that, although summary judgment is improper in employment discrimination cases which involve "weighing of conflicting indications of motive and intent, "where a plaintiff has no evidence of discriminatory motive to "put on the scales for weighing," summary judgment is appropriate. Id.

V. Analysis

A. Count I - Sex Discrimination

Title VII makes it unlawful for an employer to discriminate against an employee  [*900]  because of the employee's race or sex. 42 U.S.C. § 2000e 42 U.S.C. § 2000e et seq. The plaintiff must prove that she was a victim of intentional discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). A plaintiff can satisfy her burden of proof in a sex discrimination case in two ways: through direct evidence of discriminatory intent or through indirect evidence demonstrated  [**14]  by the burden-shifting method presented in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir.1996); Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir. 1993). Here, Harris has not presented direct evidence of discrimination, and thus the Court turns to the burden-shifting method of McDonnell-Douglas.

The first step for Harris under the McDonnell-Douglas method is to establish a prima facie case of sex discrimination. Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1032 (7th Cir. 1998); Pasqua, 101 F.3d at 516. To establish a prima facie case of sex discrimination, Harris must show: (1) she is in a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) that others, similarly situated but not of the protected class, were treated more favorably. Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir. 1998) (citing Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir. 1996)).  [**15] 

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 445 (7th Cir. 1997). Then the burden shifts back to the plaintiff to show the defendant's reason is in fact pretext for discrimination. Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1290 (7th Cir.1997). The ultimate burden of proof remains with the plaintiff at all times. See Kirk v. Federal Property Management Corp., 22 F.3d 135, 138 (7th Cir. 1994).

First, the Court must determine whether Harris has established a prima facie case of sex discrimination. n5 Defendants maintain that Harris cannot set forth a prima facie case of sex discrimination. Harris responds that she was moved out of her position as Director of Rehabilitation and replaced by a man because she is a woman. She further argues that there is a genuine issue of fact as to whether she was meeting FWHS' legitimate expectations and whether FWHS' reason for transfer was pretextual. Based on the following, the Court concludes that Harris has failed  [**16]  to establish a prima facie case of sex discrimination.
 
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n5 Harris has not presented direct evidence of sex discrimination. Therefore, the Court need only address her sex discrimination claim under the indirect method.
 
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The Court finds that Harris cannot establish that she suffered an adverse employment action. The Seventh Circuit has defined an adverse action as follows:

 
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion, evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.

 
Crady v. Liberty Nat. Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).

Here, Harris was never fired from FWHS, nor was she ever demoted. FWHS  [**17]  approached Harris about transferring after a number of grievances were filed in her division. She expressed interest in the position and eventually applied for and accepted the new position of Director of Development and Marketing. In a letter to Melby, Harris stated that the new job description was acceptable. She  [*901]  retained the same benefits and the same salary she had in her old position, and her supervisor and her title remained the same. She is the third highest employee of FWHS. Her responsibilities were changed, not diminished. After Harris accepted the new position, her co-employees threw her a going away party and she cleaned out her office. Subsequently, she tried to recant her acceptance of the position. However, Harris' position had been filled by Ms. Freitag. The Court finds that this was not an adverse employment action.

Further, Harris can not show that similarly situated males were treated more favorably. Harris argues that Jeff Horton and Robert Ford were similarly situated and treated more favorably than she was. The Court disagrees. Harris was replaced as Director of Rehabilitation, by Ms. Freitag and ultimately, the position was filled by Ford.

As to Horton, the  [**18]  record reveals that Horton was a supervisor at the Rehabilitation Center, while Harris was the Director of the Rehabilitation Center and that Horton answered to Harris and Harris answered directly to the Administrator of FWHS. The record also reveals that Horton did not have trouble with the Union, while the record is replete with evidence that Harris did. Clearly, Harris and Horton were not similarly situated.

Next, Harris maintains that Ford was similarly situated to her. She claims that she was not interviewed for the job even though she was qualified. This argument also fails. As stated before, the record reveals that Harris had a history of problems with the Union, while Ford was new to FWHS and he did not have a history of problems with the Union. Harris has not demonstrated that she and Ford were similarly situated. Accordingly, the Court grants Defendants' motions for summary judgment on Harris' sex discrimination claim, Count I.

B. Count II - Sexual Harassment and Retaliation

Sexual Harassment

Title VII's prohibition against sex discrimination, 42 U.S.C.2000e-2(a)(1), protects employees against unwelcome sexual advances that create an offensive or hostile  [**19]  working environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Harassment encompasses all forms of conduct that unreasonably interfere with an individual's work performance or create an intimidating, hostile, or offensive working environment. Id.; Doe v. R.R. Donnelley & Sons, Co., 42 F.3d 439, 443 (7th Cir. 1994). Under a hostile environment theory, the harassment must be sufficiently severe or pervasive so as to alter the conditions of the victim's employment and to create an abusive working atmosphere. McKenzie v. Illinois Dep't of Transportation, 92 F.3d 473, 479 (7th Cir. 1996)(citing Meritor, 477 U.S. at 67)). Employees may also sue on the basis of quid pro quo harassment, which occurs when tangible employment benefits are conditioned upon compliance with a harasser's sexual demands. Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir. 1996). The Supreme Court has recently stated that "the terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats  [**20]  are carried out and those where they are not or are absent altogether, but beyond this are of limited utility." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998).

The Supreme Court reaffirmed the principle that a Title VII sexual harassment claim is directed only at "discrimination ... because of ... sex" in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998). Accordingly, the ultimate inquiry for a sexual harassment plaintiff is whether he or she can prove "that the conduct at issue was not merely tinged with offensive sexual  [*902]  connotations, but actually constituted 'discrimination ... because of ... sex.'" Id.

Conduct characterized as sexual harassment violates Title VII when: (1) it is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" from the perspective of a reasonable person; and (2) when it results in the victim subjectively perceiving the work environment to be abusive or hostile. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1983).  [**21]  The focus is on the totality of the circumstances. Saxton v. A T & T, 10 F.3d 526, 534 (7th Cir. 1993). Factors relevant to determining whether a particular environment is hostile include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. Hostile environment claims do not grow from "isolated and innocuous incidents." McKenzie, 92 F.3d at 480 (citing Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994))(finding no hostile environment harassment where plaintiff was subject to three sexually suggestive comments in a three- month period); Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994)("Title VII is not directed against unpleasantness per se but only ... against discrimination in the conditions of employment."). To be actionable, the workplace must be "hellish." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995).  [**22] 

An employee asserting a claim of hostile work environment sexual harassment must prove the following: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the harassment was sufficiently severe and pervasive to alter the conditions of the victim's employment and create an abusive working environment. Meritor Savings Bank, 477 U.S. at 66-73 (1986). At issue here, is whether Harris can prove the second and third requirements, i.e., that she was subjected to unwelcome sexual harassment in the form of sexual advances/favors and that the harassment was based on sex.

In her deposition, Harris admitted that Mayhew never verbally threatened her with physical violence, that he never made sexual advances toward her, that he never struck her and that he never physically touched. She also conceded that the September 20, 1994 incident with Mayhew arose out of a labor dispute. There is no evidence that anyone connected with Defendants  [**23]  circulated "a letter falsely implying that Plaintiff had been tested for Herpes;" that Defendants circulated "a picture of a nude female with 'call Marcia 618-996-3082' written on it;" n6 and that Defendants circulated "a document entitled 'The Great American Bitch Award" which named Plaintiff as the recipient and stated that the award was given to her for 'being a c   t." Harris relies on the proposition that circumstantial evidence might lead to Defendants because at one time Mayhew admitted to circulating a picture depicting Harris as a witch.
 
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n6 As to the nude female picture, Harris testified that she knew the identify of the person who disseminated the material and knew that this person had no connection with Defendants.
 
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Harris claims that Mayhew stalked her on various occasions. These alleged stalkings consist of Mayhew pulling his car behind Harris' parked car, and sitting in a bar in a hotel in which Harris was staying. Harris also alleges that Mayhew sexually harassed her by repeatedly coming  [**24]  into her office to deliver grievances. However, Harris testified that the only thing Mayhew  [*903]  would say to Harris when he delivered the grievances was "here is another grievance." Harris also tries to link the fact that her car was egged while in the parking lot of FWHS to demonstrate that she was sexually harassed. This argument must fail. At the same time that Harris' car was egged, another FWHS male employees car was also egged. The Court does not find that this rises to a level of sexual harassment in which Title VII was meant to cover.

Next, Harris next claims that Gordon Philip subjected her to a hostile work environment. She claims that over a ten year period Philip (1) made inappropriate comments about a phone call Harris received; (2) he called her a Dragon Lady and a jerk; (3) he twice stated "women rub their eyes, men rub their balls; and (4) he told a joke while simulating masturbation; (5) he told a blond joke; and (6) he made a comment about Harris' breasts. While the Court does not condone Philip's conduct, the Court does not find that it rises to a level of hostile work environment under the Seventh Circuit. Title VII is "designed to protect working women from the  [**25]  kind of male attentions that can make the workplace hellish for women . . . It is not designed to purge the workplace of vulgarity." Baskerville v. Culligan Int'l, 50 F.3d 428, 430 (7th Cir. 1995); See Brill v. Lante, 119 F.3d 1266, 1274 (7th Cir. 1997)(Distasteful or inappropriate remarks do not rise to the level of being deeply offensive, intimidating, and sexually harassing.).

Despite Harris' numerous allegations of harassing behavior, she fails to support them with anything but her own conclusory assertions or speculation. In support of her allegations, she cites almost exclusively to her own deposition. However, these self-serving, uncorroborated assertions are not evidence of a hostile work environment. Mills v. First Fed. Sav. & Loan Ass'n of Belvidere, 83 F.3d 833, 840 (7th Cir. 1996). The evidence does not reveal that Harris was subjected to unwelcome sexual advances/favors or that she was harassed based on her sex. The Court concludes that Harris failed to prove a prima facie case of sexual harassment based on her sex. Accordingly, the Court grants Defendants' motions for summary judgment on Harris' sexual harassment  [**26]  claim, Count II.

Retaliation

A plaintiff who brings a retaliation claim under Title VII must either present direct evidence of retaliation or proceed within the familiar burden-shifting framework set forth in McDonnell Douglas; McKenzie, 92 F.3d at 482-83. Under the burden-shifting framework, Plaintiff can establish a prima facie case of retaliation by showing, first, that he engaged in statutorily protected expression or activity--that is, that he "opposed" an employment practice made unlawful by Title VII. Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187, 195 (7th Cir. 1994); 42 U.S.C. § 2000e-3(a). To constitute opposition, the conduct an employee objects to need not actually violate Title VII. Dey, 28 F.3d at 1458. Rather, the test is whether the employee "reasonably believed in good faith that the practice she opposed violated Title VII." Alexander, 40 F.3d at 195. Second, the Plaintiff must demonstrate that she suffered an adverse action by her employer. Knox v. State of Indiana, 93 F.3d 1327 at 1333. Any action qualifies, so long as it is in some way  [**27]  adverse. Id. at 1334 Id. at 1334 (observing that "There is nothing in the law of retaliation that restricts the type of retaliatory act that might be visited upon an employee who seeks to invoke her rights by filing a complaint"). Finally, the plaintiff must establish a causal link between the protected activity or expression and the adverse action. Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 938-39 (7th Cir. 1996). Such a link may be established by evidence of "a telling temporal sequence," Holland v. Jefferson National Life Ins. Co., 883 F.2d 1307 at 1315, or by demonstrating that the adverse action "took place on the heels of the protected activity." Alexander, 40 F.3d at 196. A successful prima facie case creates  [*904]  a rebuttable presumption of retaliation, cf. Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011 (7th Cir.1996), and shifts to the defendant a burden of articulating a legitimate, non- retaliatory reason for the challenged conduct. Knox, 93 F.3d at 1334. If the defendant does so, the presumption of retaliation dissolves, St. Mary's Honor Center, 509 U.S. at 511-20 (1993),  [**28]  and the plaintiff must then establish that the employer's proffered reason is a pretext for discrimination. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997).

The Court finds that Harris has not established a prima facie case of retaliation. Harris can not prove that she was retaliated against for complaining about sexual harassment. As stated earlier, Harris cannot esta