By Mitchel Wilson
In Mercer v. Cook County, the Seventh Circuit Court of Appeals, (in an unpublished opinion) upheld the trial court’s decision to dismiss Corrections Sergeant Pamela Mercer’s claims of Gender Discrimination and Hostile Work Environment. It agreed with the lower court because Mercer could not show the conduct directed at her was because of gender and her transfer was not an adverse employer action and the incidents cited were not severe/pervasive enough to alter the Officer’s working conditions.
In 1998, Pamela Mercer began working at the Cook County Sheriff’s Office as a Corrections Officer. In 2005, she was promoted to Sergeant and began supervising 15-20 Corrections Officers in the Department of Community Service during the night shift. Soon thereafter she began experiencing difficulties with her supervisors and subordinates.
In 2007, she filed a complaint when her supervisor and the Chief “intimidated” her in a meeting. One supervisor used foul language, while another touched her face inappropriately. Mercer began discovering sexually explicit graffiti in unisex bathroom, female officer’s locker room, and in a stairwell. Accordingly, her supervisor promptly removed it and warned those responsible would be disciplined.
Mercer filed a complaint about other misconduct that included, “ghost payrolling, uniform infractions, insubordination by staff, smoking and more without any discipline being given.” She alleged that a subordinate shoved her, that the male officers responsible were not disciplined, that her supervisor bumped into her, and that a female subordinate said “oh bitch.” Angry, one of Mercer’s supervisors confronted her about the second complaint and she responded by filing another complaint against him.
Upon filing her fourth complaint, the Sheriff’s Office transferred Mercer to her prior division for the duration of the investigation. The transfer was not a demotion and Mercer’s pay stayed the same. Her complaint alleged that her supervisor had improperly disciplined her as retaliation for her earlier complaint against him. The transfer and other conduct directed at her were the bases of her claims.
Under law, a “hostile work environment” occurs when conduct such as harassment is so “severe or pervasive” as to alter the conditions or terms of employment. More practically, the court questions whether an average person would quit, or otherwise be unable to perform their job satisfactorily because of those conditions.
Here, the court concluded that the most important evidence of a hostile work environment, sexually explicit graffiti, was addressed reasonably by Mercer’s supervisors because they took it down immediately. After the supervisors announced that those responsible for the graffiti would be disciplined, the vandalism ceased. The rest of the conduct either had a legitimate reason, such as accidentally bumping into Mercer, or simply resulted from unruly or defiant subordinates.
[Male subordinate’s] statement “those bitches”, [Female subordinate’s] comment “oh, bitch”, and Supervisor’s comment “go play with yourself” were the kind of boorish or offensive stray remarks that were “neither severe or pervasive enough to create an objectively hostile work environment.”
The 7th Circuit also held that Mercer’s gender discrimination claims likewise failed for two reasons. Although as a woman, she is a member of a protected class, and she is qualified for her position she did not suffer and adverse employment action and the conduct was not motivated by her gender. Although a transfer can be an adverse employer action, this transfer is not. Here, the county transferred Mercer for the duration of the investigation prompted by her complaints and she received the same pay, hours, and benefits.
As noted above, Mercer cannot rely on the sexually explicit graffiti. The court concluded that Mercer could not offer any evidence that “similarly situated employees outside of the protected class received more favorable treatment”:
[S]he offered no evidence that comparable male employees received more favorable treatment. Mercer could not show that the defendants’ explanation for moving her was a pretext for discrimination. Mercer also failed to present sufficient evidence that comparable male employees were not similarly reassigned, or that the defendants’ explanation for reassigning Mercer was a pretext for sex discrimination. Thus, she cannot establish a gender-discrimination claim under either Title VII or the Equal Protection clause.
