HILT-DYSON, JUDITH v. CITY OF CHICAGO
In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2095
JUDITH HILT-DYSON,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6307--James F. Holderman, Judge.
ARGUED DECEMBER 5, 2001--DECIDED February 27, 2002
Before COFFEY, RIPPLE and Diane P. WOOD,
Circuit Judges.
RIPPLE, Circuit Judge. Judith Hilt-
Dyson, an officer with the Chicago Police
Department ("CPD"), filed this action
against the City of Chicago ("the City")
alleging that the conduct of her
supervisor, Lieutenant William
Sutherland, constituted sexual harassment
in violation of Title VII. Ms. Hilt-Dyson
also alleged that Sutherland retaliated
against her for reporting his purported
discriminatory conduct to the CPD. The
district court entered summary judgment
for the City on both claims. For the
reasons set forth in the following
opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A. Facts
In 1998, the CPD stationed Ms. Hilt-
Dyson, a female police officer, in its
Evidence and Recovered Property Section
("ERPS"). Operating in a caged area with
four vaults and several offices, the ERPS
functions as a repository for confiscated
property including narcotics and weapons.
In February 1998, the CPD appointed
Lieutenant William Sutherland as the
commanding officer of the ERPS.
On March 24, 1999, Sutherland approached
Ms. Hilt-Dyson as she worked on a
computer located in the ERPS. He rubbed
the middle of her back with his left
hand. Sutherland then slid his left hand
to Ms. Hilt-Dyson's right shoulder and
squeezed it. The contact between Ms.
Hilt-Dyson and Sutherland lasted less
than a minute. A third officer, Walter
Bland, was present during this incident.
On the following day, March 25, 1999,
while Ms. Hilt-Dyson ate lunch with
several of her co-workers in the ERPS'
mail room, Sutherland approached her.
Once again, Sutherland rubbed the middle
of Ms. Hilt-Dyson's back and touched her
shoulder./1 After Sutherland removed his
hand from Ms. Hilt-Dyson, she addressed
him and stated, "Lieutenant, you like
touching me." R.27 at 9. Sutherland
denied his subordinate's accusation and
contended that he merely was trying to
get her attention. When Ms. Hilt-Dyson
indicated her disapproval of the contact,
Sutherland stated, "I won't touch you
anymore." R.27 at 9. After these two
incidents, Sutherland never touched Ms.
Hilt-Dyson again.
On March 26, 1999, Ms. Hilt-Dyson filed
a "To-From Report" with the CPD in which
she contended that Sutherland's actions
constituted sexual harassment. Pursuant
to department regulations, the CPD's
Office of Professional Standards ("OPS")
began an investigation into the two
incidents. The OPS sustained Ms. Hilt-
Dyson's complaint with regard to the
March 25 contact and recommended a
suspension for Sutherland. Upon reviewing
the case, CPD officials disagreed; they
concluded that the complaint was not
sustained/2 and overruled the
determination of the OPS.
In May 1999, two months after the back
rubbing incidents, the CPD directed unit
commanding officers--including
Sutherland--to conduct an inspection of
their subordinates' spring dress
uniforms. During an inspection, the
commander seeks to ensure that his
subordinates' uniforms fit properly,
comply with CPD standards and are not
worn out. Moreover, in the ERPS, the
commanding officer attempts to conduct
the inspection in such a manner as to
enable members of the division to return
to work as quickly as possible.
On May 6, 1999, Sutherland complied with
the CPD's order and reviewed
simultaneously the uniforms of his four
subordinates--including Ms. Hilt-Dyson.
Because of limited space in the ERPS,
Sutherland held the inspection in the
hallway adjacent to the division's
administrative offices. His four
subordinates formed a line in the
hallway. Although Ms. Hilt-Dyson occupied
the second position in this line,
Sutherland reviewed her uniform first./3
According to Ms. Hilt-Dyson, Sutherland
stared at her chest during the
inspection. He then informed Ms. Hilt-
Dyson that her uniform blazer fit too
snugly; he ordered her to raise her arms.
After the inspection, a male officer
described this latter order as demeaning.
During previous inspections, however,
Sutherland, as well as other commanders,
had required male and female officers to
lift their arms to determine if their
blazers fit properly./4 Continuing with
the inspection, Sutherland asked Ms.
Hilt-Dyson to remove her uniform hat; he
noted deficiencies in the condition of
the hat including scratches on the brim
as well as a dull shield. He next ordered
Ms. Hilt-Dyson to open her blazer. After
inspecting Ms. Hilt-Dyson's service
revolver, Sutherland told Ms. Hilt-Dyson
to correct the problems with her uniform
and then dismissed her from the
inspection. Shortly after the inspection,
Ms. Hilt-Dyson ordered a new blazer,
uniform hat and shield. Sutherland did
not touch Ms. Hilt-Dyson in any manner
during the inspection.
Ms. Hilt-Dyson promptly requested that
the CPD initiate a Complaint Register
("CR") against Sutherland. Specifically,
she alleged that the orders directing her
to raise her arms and remove her hat
during the inspection constituted sexual
harassment. The OPS agreed and
recommended that the CPD suspend
Sutherland for two days. Upon reviewing
this determination, CPD officials
disagreed with the OPS' findings and
concluded that the complaint was not sus
tained.
Six months after the inspections--
January 8, 2000--an incident occurred
between Ms. Hilt-Dyson and a fellow
officer, Ellen Rake. According to Ms.
Hilt-Dyson, Rake became involved in a
verbal dispute with a CPD property
custodian over the possible location of a
missing item. Rake called for Ms. Hilt-
Dyson and inquired whether anyone had
recovered the item during Ms. Hilt-
Dyson's shift. After approaching Rake,
Ms. Hilt-Dyson contends that she briefly
touched Rake's elbow and then immediately
apologized for the contact./5
Immediately after the incident,
Sutherland met with both officers in his
office. He inquired whether Rake wished
to file an Injury on Duty ("IOD") report
and to initiate a CR against Ms. Hilt-
Dyson. Rake initially declined this
invitation. However, while gathering
paper to write a To-From Report on the
incident, Rake experienced tenderness in
her back. Because she had a preexisting
back injury, Rake believed that she
needed "to cover" herself and thus
requested that an IOD report be
completed./6
Once Rake requested the IOD report, a CR
had to be initiated against Ms. Hilt-
Dyson pursuant to CPD regulations.
According to Ms. Hilt-Dyson, Rake
approached her shortly after requesting
the IOD and stated, "He [Sutherland] told
me I have to get a CR number." R.27 at
23. After investigating the complaint,
the OPS recommended that the CPD suspend
Ms. Hilt-Dyson for seven days. A review
panel, however, disagreed; it concluded
that it could not sustain the allegation
that Ms. Hilt-Dyson had intentionally
touched Rake.
B. District Court Proceedings
1.
On September 24, 1999, Ms. Hilt-Dyson
filed this action against the City in the
district court. She alleged that
Sutherland had subjected her to sexual
harassment in violation of Title VII. In
particular, she claimed that the back
rubbing incidents as well as the uniform
inspection created a hostile work
environment in the ERPS. Ms. Hilt-Dyson
further submitted that Sutherland
retaliated against her because she had
reported his alleged discriminatory
conduct to the CPD. Specifically, Ms.
Hilt-Dyson contended that Sutherland
retaliated by the manner in which he con
ducted the inspection and by ordering
Rake to file a false complaint--the CR--
against her.
The City moved for summary judgment on
Ms. Hilt-Dyson's hostile work environment
and retaliation claims. In particular,
the City submitted that Sutherland's
alleged discriminatory conduct was not
sufficiently severe or pervasive to
constitute sexual harassment as that term
is employed under Title VII. The City
emphasized that Sutherland's alleged
harassment involved isolated incidents
that were neither egregious nor
pervasive. Turning to the claim of
retaliation, the City noted that the
inspection procedure required that the
commanding officer inspect the fit of the
officers' blazer and that the procedure
employed by Sutherland was the one
employed on other occasions. The City
further argued that the CPD regulations
required the filing of the CR against Ms.
Hilt-Dyson after the incident with Rake.
Accordingly, the City submitted that the
CR could not have been filed to retaliate
against Ms. Hilt-Dyson.
In response, Ms. Hilt-Dyson submitted
that, when viewing the facts in the light
most favorable to her, a reasonable jury
could conclude that Sutherland's conduct
constituted sexual harassment. In
particular, she argued that the back
rubbing incidents coupled with the
uniform inspection created a hostile work
environment. Finally, Ms. Hilt-Dyson
argued that she had alleged sufficient
facts to indicate that Sutherland had
ordered Rake to file a false complaint
against her.
2.
The district court entered summary
judgment for the City. It concluded that
Ms. Hilt-Dyson could not demonstrate that
an objectively reasonable person would
have found her working conditions
hostile. In particular, the back rubbing
incidents and the uniform inspection were
isolated occurrences. According to the
district court, a reasonable person would
not perceive these events to be so
abusive or hostile as to amount to sexual
harassment.
Similarly, the district court rejected
Ms. Hilt-Dyson's claims of retaliation.
According to the district court, Ms.
Hilt-Dyson failed to establish a prima
facie case of retaliation concerning
Sutherland's inspection of her uniform.
In particular, she could not demonstrate
how the inspection amounted to an adverse
employment action. As for her other claim
of retaliation--the filing of the CR
against her--the court concluded that
City had a legitimate reason for its
actions. CPD regulations required the
filing of the CR once Rake filed the IOD
report. Therefore, concluded the court,
the CR had not been filed to retaliate
against Hilt-Dyson for her complaints
against Sutherland.
II
DISCUSSION
A.
We review de novo the district court's
grant of summary judgment. See Thomas v.
Pearle Vision, Inc., 251 F.3d 1132, 1136
(7th Cir. 2001). Summary judgment is
appropriate "if the pleadings,
depositions, answers to interrogatories,
and admissions on file, together with
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); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The
court's function is not to weigh the
evidence but merely to determine if
"there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). We must ask whether
"there are genuine factual issues that
can properly be resolved only by a finder
of fact because they may reasonably be
resolved in favor of either party." Id.
at 250. In assessing whether a genuine
issue of material fact exists, we must
construe all facts and draw all
reasonable inferences in the light most
favorable to the nonmoving party. See id.
at 255; Basith v. Cook County, 241 F.3d
919, 926 (7th Cir. 2001).
B.
Ms. Hilt-Dyson submits that Sutherland's
conduct created a hostile work
environment at ERPS and thus constituted
sexual harassment in violation of Title
VII. To maintain an actionable claim
under this theory, an employee must
demonstrate that her co-worker or
supervisor harassed her because of her
sex. See Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998). In
addition, this harassment must be "so
severe or pervasive as to alter the
conditions of [the victim's] employment
and create an abusive working
environment." Faragher v. City of Boca
Raton, 524 U.S. 775, 786 (1998) (quoting
Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 67 (1986)). Moreover, a hostile
work environment is one that is "both
objectively and subjectively offensive,
one that a reasonable person would find
hostile or abusive, and one that the
victim in fact did perceive to be so."
Faragher, 524 U.S. at 787; Hostetler v.
Quality Dining, Inc., 218 F.3d 798, 807
(7th Cir. 2000). In determining whether
contested conduct actually creates an
objectively hostile work environment, a
number of factors may be considered
including "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." Faragher, 524 U.S. at 787-
88; Hostetler, 218 F.3d at 806. Moreover,
the alleged discriminatory conduct cannot
be considered in a vacuum; rather, an em
ployee's claim must be evaluated in light
of the social context in which events
occurred. See Oncale, 523 U.S. at 82.
Simply put, Title VII does not prohibit
all verbal or physical harassment in the
workplace. See Oncale, 523 U.S. at 81.
Although a bright line does not exist
separating innocuous from actionable
behavior, this court has noted that
isolated and minor incidents of
questionable conduct generally will not
warrant a conclusion of sexual
harassment. See Koelsch v. Beltone Elecs.
Corp., 46 F.3d 705, 708 (7th Cir. 1995).
"[T]he occasional vulgar banter, tinged
with sexual innuendo of coarse or boorish
workers" generally does not create a work
environment that a reasonable person
would find intolerable. Baskerville v.
Culligan Int'l Co., 50 F.3d 428, 430 (7th
Cir. 1995). A limited number of
incidents, however, does not preclude
necessarily a trial on a sexual
harassment claim. On several occasions,
we have reversed the grant of summary
judgment for a defendant on a sexual
harassment claim despite the fact that
the employee alleged relatively few
incidents of objectionable conduct. See,
e.g., Hostetler, 218 F.3d at 809 (fellow
employee not only forcibly kissed
plaintiff but later cornered plaintiff
and attempted to remove her brassiere);
Smith v. Sheahan, 189 F.3d 529, 532 (7th
Cir. 1999) (fellow employee physically
assaulted plaintiff and had history of
verbally abusing female co-workers). In
these cases, however, the objectionable
conduct, even though isolated, proved so
severe as to create potentially a hostile
work environment for the employee.
We must assess whether Ms. Hilt-Dyson
has alleged an actionable claim of a
hostile work environment due to sexual
harassment. It is clear from the record
that Ms. Hilt-Dyson subjectively
considered her work environment to be
hostile and abusive. In deposition
testimony, Ms. Hilt-Dyson stated that she
felt violated after Sutherland touched
her back on two occasions. She further
indicated that she found these back
rubbing incidents demeaning and
degrading. The City, in fact, concedes
that Ms. Hilt-Dyson perceived her work
environment as hostile.
Despite Ms. Hilt-Dyson's subjective
perceptions concerning ERPS, an objective
person would not view her work
environment as hostile or abusive. In
particular, the back rubbing incidents at
issue in this case, although
inappropriate behavior in the workplace,
do not constitute by themselves
actionable harassment under Title VII.
Sutherland, her supervisor, rubbed her
back on two occasions in March 1999. On
each occasion, the back rubbing incident
was brief and involved no threats,
intimidation or humiliation. Moreover,
upon learning that this conduct troubled
Ms. Hilt-Dyson, Sutherland told her that
he would not touch her again. Indeed, the
parties agree that Sutherland never
touched nor attempted to touch Ms. Hilt-
Dyson after the second back rubbing
incident. Given these circumstances, the
back rubbing incidents did not constitute
actionable sexual harassment under Title
VII.
Ms. Hilt-Dyson also submits that the
uniform inspection could lead a
reasonable juror to conclude that she had
been subjected to sexual harassment in
violation of Title VII. Ms. Hilt-Dyson
contends that, during the inspection,
Sutherland stared at her chest and
required her to raise her arms. She also
contends that he inspected her hat and
revolver in an effort to harass and
humiliate her.
Ms. Hilt-Dyson subjectively considered
the incident severe enough to create a
hostile work environment. In arguing that
a reasonable juror would reach the same
assessment when evaluating the event
objectively, she relies on her own
account of the inspection and the
statement of another officer that, in his
opinion, the lieutenant's order that she
raise her hands over her head constituted
a "demeaning order." R.27, Ex.4. As noted
earlier, we cannot divorce conduct from
the context in which it occurred.
Sutherland did not order Ms. Hilt-Dyson
to lift her arms and to turn over her hat
for inspection during a routine workday.
To the contrary, the directions were
given as part of a uniform inspection--an
event that by its nature involves
scrutiny of an officer's clothing and
equipment in an effort to ensure that the
CPD's officers meet uniform requirements
and are prepared to fulfill their
responsibilities. In this context,
inspection of gun belts and uniform caps,
as well as increased scrutiny of a
subordinate's blazer, may serve a
legitimate purpose. Discipline in police
departments is quasi-military in nature
and sworn officers expect to participate
in inspections, drills and other
activities that create superior-
subordinate encounters not found in
civilian occupations. Many of these
encounters, especially inspections, are
often unpleasant and, in the eyes of the
subordinate, demeaning. On the other
hand, those in authority in such
organizations still have the obligation,
within the context of the legitimate
demands imposed by their
responsibilities, to comply fully with
the law protecting the civil rights of
their subordinates. The inspection
process neither gives a commanding
officer license to leer at the chest of a
female subordinate nor the authority to
single out a female officer for increased
scrutiny because of her sex. Mindful of
our obligation to assess the record in
the light most favorable to Ms. Hilt-
Dyson, it is indeed a close call as to
whether the record would support a
determination that Sutherland's actions
during the inspection can be
characterized as an effort to demean her
on account of her sex. We need not decide
the issue definitively, however, because,
even if we were to accept Ms. Hilt-
Dyson's assessment of the situation, we
could not conclude that the incident was
so severe or pervasive as to constitute
sexual harassment.
Even when considering the uniform
inspection in conjunction with the early
incidents, Ms. Hilt-Dyson's claim cannot
survive summary judgment. The back
rubbing incidents were simply
insufficient to state a claim for hostile
work environment sexual harassment.
Coupling these events with the uniform
inspection does not create a sufficient
inference of a hostile work environment
at the ERPS to survive summary judgment.
We must therefore conclude that the
district court properly entered summary
judgment on Ms. Hilt-Dyson's sexual
harassment claim.
C.
Finally, we turn to Ms. Hilt-Dyson's
contention that Sutherland retaliated
against her for reporting his alleged
discriminatory activity to the CPD. Title
VII prohibits an employer from
retaliating against an employee who has
"opposed any practice made an unlawful
employment practice by this subchapter or
. . . has made a charge, testified,
assisted, or participated in any manner
in an investigation, proceeding or
hearing" under the statute. See 42 U.S.C.
sec. 2000e-3(a). To demonstrate that an
employer has violated this provision of
Title VII, an employee may present either
direct or indirect evidence of the
employer's retaliatory intent. Direct
evidence, however, frequently does not
exist in these cases. As such, most
employees attempt to satisfy their burden
through the indirect method of proof.
Under this indirect methodology, an
employee must first present evidence
sufficient to establish a prima facie
case that her employer retaliated against
her in violation of Title VII. More
precisely, an employee must demonstrate
that: (1) she engaged in statutorily
protected activity; (2) she performed her
job according to her employer's
legitimate expectations; (3) despite
meeting her employer's legitimate
expectations, she suffered a materially
adverse employment action; and (4) she
was treated less favorably than similarly
situated employees who did not engage in
statutorily protected activity. See Stone
v. City of Indianapolis Pub. Utils. Div.,
No. 01-3210, 2002 WL 234239, at *1 (7th
Cir. Feb. 19, 2002). Absent direct
evidence of retaliation, failure to
satisfy any element of the prima facie
case proves fatal to the employee's
retaliation claim. Once the employee
succeeds in proving her prima facie case,
the employer must offer a legitimate,
noninvidious reason for the adverse
employment action. See Stone, 2002 WL
234239, at *3; Aviles v. Cornell Forge
Co., 241 F.3d 589, 592 (7th Cir. 2001).
Once the employer has done so, the burden
of production shifts back to the
plaintiff to demonstrate the pretextual
nature of the proffered reason. See
Stone, 2002 WL 234239, at *3; Aviles, 241
F.3d at 592. At this point, if the
employee fails to establish pretext, her
retaliation claim cannot survive summary
judgment.
1.
Ms. Hilt-Dyson first contends that the
manner in which Sutherland inspected her
uniform constituted actionable
retaliation under Title VII. Because Ms.
Hilt-Dyson does not offer any direct
evidence of retaliatory intent, she
proceeds under the indirect method of
proof. As we noted earlier, the inability
to prove even a single element of the
prima facie case proves fatal to a
retaliation claim.
We focus on the third prong of Ms. Hilt-
Dyson's prima facie case--whether the
uniform inspection constitutes an adverse
employment action. As Ms. Hilt-Dyson
aptly notes, this court has adopted a
broad definition of the phrase "adverse
employment action." See Oest v. Ill.
Dep't of Corr., 240 F.3d 605, 612 (7th
Cir. 2001) (quoting Smart v. Ball State
Univ., 89 F.3d 437, 441 (7th Cir. 1996)).
An adverse employment action is one that
is materially adverse, "meaning more than
a mere inconvenience or an alteration of
job responsibilities." Id. (quoting Crady
v. Liberty Nat'l Bank & Trust Co., 993
F.2d 132, 136 (7th Cir. 1993)). Although
creating a precise list of activities
that constitute adverse employment
actions would be impossible because of
the unique circumstances of individual
cases, we have indicated that materially
adverse actions may include "termination
of employment, a demotion evidenced by a
decrease in wage or 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." Ribando v. United
Airlines, Inc., 200 F.3d 507, 510 (7th
Cir. 1999). We have emphasized that an
adverse employment action need not be
quantifiable in terms of pay or benefits.
See Smart, 89 F.3d at 441. At the same
time, though, "not everything that makes
an employee unhappy is an actionable
adverse action." Id.
Upon reviewing the record in this case,
we conclude that the uniform inspection
did not constitute an adverse employment
action. In large measure, Ms. Hilt-Dyson
contends that the uniform inspection not
only embarrassed her but also amounted to
harassment. Conditions of employment
designed to harass and humiliate an
employee because she is a member of one
of Title VII's protected classes may
constitute an adverse employment action.
See Stockett v. Muncie Ind. Transit Sys.,
221 F.3d 997, 1001 (7th Cir. 2000).
However, the harassing conduct must be
actionable harassment--severe or
pervasive--before it will be considered
an adverse employment action. See id. at
1002 (citing North v. Madison Area Ass'n
for Retarded Citizens-Developmental Ctrs.
Corp., 844 F.2d 401, 409 (7th Cir. 1988)
for the proposition that harassment must
be "severe or pervasive" to be actionable
under Title VII). In essence, then, this
aspect of Ms. Hilt-Dyson's claim of
retaliation overlaps with her claim of
sex based discrimination. We have already
concluded that, under Title VII,
Sutherland's conduct during the
inspection was not severe enough to
constitute actionable sexual harassment.
Under our case law, it follows that any
harassment or humiliation Ms. Hilt-Dyson
suffered during the inspection was not
severe enough to constitute an adverse
employment action.
Moreover, on numerous occasions, we have
stated that negative evaluations,
standing alone, do not constitute adverse
employment actions. See Grube v. Lau
Indus., Inc., 257 F.3d 723, 729 (7th Cir.
2001); Oest, 240 F.3d at 613; Ribando,
200 F.3d at 511. Sutherland's critique of
Ms. Hilt-Dyson's blazer and uniform hat
falls within this general rule. Ms. Hilt-
Dyson does not contend that this
evaluation triggered a reduction in pay
or a diminution in job responsibilities.
Although Ms. Hilt-Dyson ordered a new
blazer and shield after the inspection,
she does not submit that these purchases
amounted to an adverse employment action.
Simply put, this inspection did not
constitute an adverse employment action.
Thus, the district court properly entered
summary judgment on this portion of Ms.
Hilt-Dyson's retaliation claim.
2.
Ms. Hilt-Dyson also contends that the CR
filed against her in January 2000
constitutes actionable retaliation. More
precisely, Ms. Hilt-Dyson submits that
Sutherland ordered Rake to file a false
complaint--the CR--against her. We shall
assume, without deciding, that Ms. Hilt-
Dyson is able to establish a prima facie
case of retaliation. See, e.g., Debs v.
Northeastern Ill. Univ., 153 F.3d 390,
397 (7th Cir. 1998). The burden shifts to
the City to articulate a legitimate, non
discriminatory reason for the initiation
of the CR against Ms. Hilt-Dyson. If an
officer files an IOD report because she
has been injured due to the conduct of a
fellow officer, CPD regulations require
the initiation of a CR against the
officer who caused the injury. In this
case, the parties agree that once Rake
submitted an IOD report, a CR had to be
initiated against Ms. Hilt-Dyson. The
City, then, has proffered a legitimate,
nondiscriminatory reason for the filing
of the CR against Ms. Hilt-Dyson.
Because the City has met its burden of
production, Ms. Hilt-Dyson may survive
summary judgment only if she demonstrates
the pretextual nature of this proffered
explanation. She, however, has failed to
meet her burden. It is clear the parties
dispute the extent of the altercation
that occurred between Ms. Hilt-Dyson and
Rake. However, this particular factual
dispute is neither material to this
action nor indicative of pretext. Rake's
deposition testimony unequivocally
indicates that she filed the IOD "to
cover" herself because she had a
preexisting back injury. Regardless of
whether Ms. Hilt-Dyson tapped Rake's arm
or pulled Rake across ERPS, Rake clearly
felt the contact warranted the IOD
report. Although the record is equivocal
about whether Rake asked her sergeant or
Sutherland to initiate an IOD report on
her behalf, this lack of clarity is also
immaterial. In her deposition, Rake
indicated that she, of her own volition,
requested the IOD report. Whether she
approached Sutherland or her sergeant to
initiate the process does not change the
fact that she alone made the
determination to obtain the IOD report.
Once she made this request, department
regulations required the filing of a CR
against Ms. Hilt-Dyson.
Ms. Hilt-Dyson's primary challenge to
this evidence is a statement Rake
allegedly made on January 8. According to
Ms. Hilt-Dyson, Rake stated "He
[Sutherland] told me I have to get a CR
number." R.27 at 23. The district court
refused to consider the statement on the
grounds that it was hearsay. We cannot
accept Ms. Hilt-Dyson's submission on
appeal that the statement is admissible
as an excited utterance. More
fundamentally, although this statement
may indicate displeasure with filing the
CR, it has no bearing on whether Rake, of
her own volition, initiated the request
for an IOD report. Because Ms. Hilt-Dyson
has failed to establish pretext, the
district court properly entered summary
judgment on this portion of her claim./7
Conclusion
We conclude that none of Ms. Hilt-
Dyson's claims present a genuine issue of
triable fact. Accordingly, the judgment
of the district court is affirmed.
AFFIRMED
FOOTNOTES
/1 Sutherland contends that he merely tapped Ms.
Hilt-Dyson on her shoulder because he wanted to
say goodnight to her before he left.
/2 A finding of "not sustained" means that the CPD
concluded that insufficient evidence existed to
prove or disprove an allegation.
/3 During the inspection, Ms. Hilt-Dyson wore a
blazer, sometimes referred to as a "blouse" by
the CPD. Underneath the blazer, Ms. Hilt-Dyson
wore her uniform shirt as well as a gun belt that
held her service revolver as well as other equip-
ment.
/4 A commander asks an officer to raise his arms to
assess the officer's range of motion--particular-
ly, his ability to draw his weapon from under-
neath the blazer. See R.24 at 10 (Defendant's
Statement of Undisputed Material Facts); R.27 at
12 (Plaintiff's Local Rule 56.1(B) Statement).
/5 Rake disputes this version of events. According
to Rake, Ms. Hilt-Dyson entered the room, spun
Rake around and then forcibly pulled Rake several
feet. Although a fellow officer corroborates
Rake's account, Ms. Hilt-Dyson contends that this
officer was not present during the incident.
/6 It is unclear to whom precisely Rake made this
request. Sutherland states that Rake approached
him concerning the IOD Report and he, in turn,
relayed the request to Sergeant Victor Mitkal.
Rake submits that she approached Mitkal directly.
In deposition testimony, Mitkal stated that
Sutherland, at the direction of Rake, requested
the completion of an IOD Report.
/7 Ms. Hilt-Dyson also submitted that the filing of
the CR constituted actionable sexual harassment.
However, as the analysis indicates, the CR was
filed for a legitimate, nondiscriminatory reason.
As such, the CR, even if considered with the
uniform inspection and the back rubbing inci-
dents, would not give rise to a claim for sexual
harassment.