Robert R. Schmidt v. Canadian National Railway Corp.

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 21, 2007*
Decided March 13, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1846
ROBERT R. SCHMIDT,
Plaintiff-Appellant,
v.
CANADIAN NATIONAL RAILWAY
CORP.,
Defendant-Appellee.
Appeal from the United States
District Court for the Northern District of
Illinois, Eastern Division
No. 04 C 7508
Ronald A. Guzmán,
Judge.
O R D E R
Robert Schmidt filed a complaint against his employer under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17, claiming sexual harassment
and retaliation. The district court granted summary judgment in favor of the
employer. Schmidt appeals, and we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-1846 Page 2
We recount the facts in the light most favorable to Schmidt. He began
working as a communications equipment technician for Canadian National Railway
Corporation in Homewood, Illinois, in September 1999. He was permitted to use a
company vehicle to commute and travel to work sites. In late October 2003 he went
out on medical leave and remained off the job for more than three months, though
he did not return the company vehicle before he left. Meanwhile, Bob Walker, his
immediate supervisor, learned that Schmidt had moved from Richton Park, Illinois,
where he lived when he started working for Canadian National, to North Judson,
Indiana, 67 miles away. Walker e-mailed and called Schmidt to tell him he lived
too far away to use the car for commuting purposes. Walker repeated the
instruction again when Schmidt’s medical leave ended in February 2004, but
Schmidt did not immediately stop using the car to commute. Walker e-mailed him,
saying, “Apparently you do not listen very well or value what I tell you to do.” He
ordered Schmidt to “park the company vehicle at the Homewood Administration
Building,” and not to use it to commute.
Schmidt then returned the car, but on February 29, 2004, he wrote the first
of five letters to Laurent Caron, the human resources manager. Schmidt
complained that Walker was “harassing” him by making him return the company
car and allowing its use only during work hours. These restrictions were not
imposed on other employees, he said, and he needed the company car because his
wife was using the couple’s other vehicle.
Two days later Schmidt wrote Caron a second letter, this time stating that he
had overheard Walker angrily say “Fuck Robert Schmidt” when told that Schmidt
had refused to sign a list of on-call employees. Schmidt told Caron that Walker
then called him into his office and coerced him to sign the list with a threat: “Listen,
you don’t want to mess with me! If you don’t sign this, I am going to make your life
a living hell! I’ll get you fired! Do you understand me completely?”
On March 14, Schmidt wrote Caron again. In this letter he alleged that
Walker had harassed him on four occasions by rubbing his shoulders, grabbing his
shoulder blades, and sliding both hands from his shoulders down his arms to the
elbows, and then patting him on the back. The first occurrence, he said, was in
October 1999, and the last was on October 24, 2003, the day before the start of his
medical leave. Schmidt said he feared for his safety because Walker had told him
he “gives people enough rope to hang themselves” and was under orders to make
Schmidt “go away.” Schmidt added that Walker had once leaned toward him while
speaking threateningly.
On March 26, Schmidt wrote Caron for the fourth time. He complained that
the help desk had called him several days earlier despite knowing he could not
accept emergency calls because he did not have a vehicle. Walker, he said,

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No. 06-1846 Page 3
responded angrily when he refused to take the assignment. That night Schmidt
had chest pains, and he was admitted to the hospital the next morning and did not
return to work for nearly two weeks.
On April 4 Schmidt reported to Bob Keane, an Assistant Vice President, that
he tried to claim the foregoing incident as a work-related injury, but when he had
not received the paperwork from an administrative employee three days after he
requested it, he asked to use vacation time instead to ensure a timely paycheck.
That same day, Schmidt wrote Caron a final time accusing Walker of sexual
harassment. He pointed to Walker’s past conduct and characterized it as sexual in
nature. Caron interviewed Joseph Price, the only witness Schmidt identified, and
Walker. Price denied witnessing or experiencing any sexually inappropriate
behavior from Walker and said that, although Walker also had grabbed his
shoulders and patted his back, he did not view the contact as inappropriate. Caron
reminded Walker that some employees did not like being touched and told him to
avoid touching the arms, backs, or shoulders of his employees. Caron then wrote to
Schmidt, advising that he was unable to substantiate Schmidt’s allegations. He
explained that Canadian National was committed to preventing discrimination and
harassment and told Schmidt to call if he had further questions or concerns.
In June 2004 Schmidt filed an EEOC charge claiming sexual harassment,
and he amended it in July to allege retaliation for his sexual harassment
complaints. Schmidt took an extended leave, and when he tried to return to work on
March 14, 2005, his “heart raced” and he went to the hospital instead. The next
day, he concluded that he “had no choice” but to quit his job and resigned.
Schmidt brought this action claiming both sexual harassment and
retaliation. In addition to what he related in his letters to Caron, Schmidt alleged
that in April 2004 Walker had glanced at his own crotch and smiled while the two
were discussing work issues, which Schmidt interpreted as a request for oral sex in
exchange for allowing Schmidt to keep his job. On another occasion, Schmidt said,
Walker had told him it was “good to keep a plumber on his knees,” a comment
Schmidt viewed as reflecting Walker’s homosexual desires. And, Schmidt
continued, Walker had complimented Schmidt’s voice once in May 2004 and had
asked Schmidt to stay late one time in July 2004 because Walker was lonesome.
Schmidt also alleged that Canadian National had retaliated for his complaints to
Caron by withholding the paperwork he needed to claim that his overnight hospital
stay was work-related, assigning him to monotonous database work when he
returned to work after that incident, refusing to resolve the work vehicle issue,
ordering him to sign the list of on-call employees, omitting his name from the
recipients of an open-position notification, making him stay late before a holiday
weekend when other employees were allowed to leave early, and changing his work

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No. 06-1846 Page 4
schedule. Schmidt also alleged that Walker retaliated against him by approaching
him while he was on the phone and hitting him on the shoulder with the back of his
hand. Schmidt included these additional allegations in an affidavit submitted at
summary judgment.
On appeal, Schmidt first argues that he introduced sufficient evidence of a
hostile work environment to survive summary judgment. Schmidt needed evidence
that he was subjected to unwanted harassment, based on his sex, that was severe or
pervasive enough to alter the conditions of his employment and cause a hostile
environment. See Kampmier v. Emeritus Corp., 472 F.3d 930, 940 (7th Cir. 2007).
The purported harassment must have been offensive both subjectively and
objectively. Id. at *8. To determine if it was objectively offensive, courts examine
its frequency and severity, whether it humiliated or physically threatened the
plaintiff, and whether it unreasonably interfered with the plaintiff’s work
performance. Id. Neither vulgar banter, see id., nor occasional, non-extreme
instances of short physical contact or staring are generally sufficient to allow an
inference of an objectively hostile environment, see Hilt-Dyson v. City of Chi., 282
F.3d 456, 463-64 (7th Cir. 2002). See also Johnson v. Hondo, Inc., 125 F.3d 408,
412 (7th Cir. 1997). As the district court noted, Schmidt provided evidence that
over four years Walker rubbed his shoulders four times, used vulgar language,
stared suggestively at his own crotch, asked Schmidt to stay late one time, and
complimented his voice another time, but, like the occurrences in Hilt-Dyson and
Johnson, these isolated incidents are too insignificant, even if sexual in nature, to
allow a reasonable inference that Schmidt suffered an objectively hostile work
environment.
Schmidt also contends that he engaged in a protected activity and “offered
facts . . . to suggest that all other employees, similarly situated or otherwise,” were
treated more favorably, so the district court erred in granting summary judgment to
Canadian National on his retaliation claim. Title VII forbids an employer from
retaliating against an employee for engaging in an activity protected by Title VII.
See Kampmier, 472 F.3d at 939. Schmidt offered no direct evidence of retaliation,
so the district court properly analyzed his claim under the indirect method, which
requires him to show that he (1) engaged in a statutorily protected activity, (2) was
meeting Canadian National’s legitimate employment expectations, (3) suffered a
materially adverse action, and (4) was treated less favorably than similarly situated
employees who did not engage in protected activity. Burlington N. & Santa Fe Ry.
v. White, 126 S.Ct. 2405, 2415 (2006); Phelan v. Cook County, 463 F.3d 773, 787 (7th
Cir. 2006). We may assume that Schmidt’s evidence satisfies the first two
elements, but it does not meet the third and fourth.
For the third element, an employer’s action is considered materially adverse
if it might dissuade a reasonable employee from engaging in protected activity.

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No. 06-1846 Page 5
Burlington N. & Sante Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006); Roney v.
Ill. Dep’t of Transp., 474 F.3d 455 (7th Cir. 2007). While some of the acts about
which Schmidt complains, such as altering his work schedule to make it start and
end one hour later, forcing him to use vacation time, or changing his duties may, in
some situations, be considered materially adverse, see Burlington, 126 S.Ct. at 2417
(altering plaintiff’s duties to make them more difficult and less prestigious than
before); Washington v. Ill. Dep’t of Rev., 420 F.3d 658, 662 (7th Cir. 2005) (changing
plaintiff’s work hours with knowledge that she needed set hours to care for disabled
son and thereby forcing her to use vacation time and essentially cutting her pay by
25%), Schmidt did not provide evidence that the actions were materially adverse in
this case. He gave no reason for needing his work hours to stay constant, that his
temporary reassignment to database work (after his two-week absence because of
chest pains, hospitalization, and recovery) was less prestigious or more difficult
than his ordinary duties, or that Canadian National induced him to spend his
vacation time.
The remainder of what Schmidt calls retaliation cannot possibly be
characterized as materially adverse. Schmidt says that his boss or others refused to
resolve the work vehicle issue, forced him to sign a list of on-call employees, failed
to send him one open-position notification, made him stay late before one holiday
weekend when others were permitted to leave early, that struck him on the back
with a hand while he was on the phone. As for the first, Schmidt’s commuting
privileges in the work vehicle were taken from him before he complained to
Canadian National about sexual harassment, and it would be untenable to classify
the company’s refusal to return those rights as retaliatory simply because he later
accused his boss of harassment. As for the second, Schmidt’s letters to
management indicate that the list of on-call employees included “the rest of [his] co-
workers,” not that he alone was made to sign it in retaliation for his complaints
about his boss. Also, while it would appear that it could be a materially adverse
action to omit an employee’s name from open-position notifications, in this case,
Schmidt had told Caron in a letter that it was “mandatory for [him] to live” where
he did because his wife was in poor health and needed to be near her family. The
single position notification he did not receive was for a job in Champaign, Illinois.
While he now says that he does not know if he would have applied for the position
or moved, it would contradict the letter in the record if he says he would have.
Further, even if making a reasonable employee stay later than his co-workers on
one occasion or hitting him once (apparently lightly, as there is no evidence of
injury) could ever deter that employee from engaging in a protected activity, in this
case, they do not rise to the level of a materially adverse action.
In any event, Schmidt has also failed to identify any similarly situated
employee who did not engage in protected activity and was treated more favorably,
as he must to survive summary judgment. See Kampmier, 472 F.3d at 940; Anders
v. Waste Mgmt. of Wis., Inc., 463 F.3d 670, 768 (7th Cir. 2006).

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Schmidt’s remaining contentions are without merit. To the extent he argues
that the district court erred in denying him leave to amend his complaint, we note
no abuse of discretion. See Perry v. First Nat. Bank, 459 F.3d 816, 819, 823-25 (7th
Cir. 2006); Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d 854, 861-62 (7th
Cir.2001). His other arguments warrant no discussion.
AFFIRMED.

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