Cheryl D. Allen v. AMERICAN SIGNATURE, INC., d.b.a. VALUE CITY FURNITURE

*After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See F ED. R. APP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 26, 2008 *
Decided March 31, 2008
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐3698
CHERYL D. ALLEN,
Plaintiff‐Appellant,
v.
AMERICAN SIGNATURE, INC., d.b.a.
VALUE CITY FURNITURE,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:06‐cv‐1467‐LJM‐WTL
Larry J. McKinney,
Judge.
O R D E R
Cheryl Allen, a former sales associate for Value City Furniture, filed suit under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e‐17, claiming that she was
subjected to a sexually hostile work environment and retaliated against for complaining
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 5 --

No. 07‐3698 Page 2
about it. The district court granted summary judgment for Value City. Allen appeals, and
we affirm.
We construe the facts in the light most favorable to Allen. See Healy v. City of Chicago,
450 F.3d 732, 738 (7th Cir. 2006). Value City, a furniture retailer, hired Allen as a sales
associate in November 2003. She was paid both an hourly wage and sales commissions.
Her commissions, like those of all the sales associates at Value City, were paid upon the
successful delivery of furniture to the customer.
In November 2004 Allen complained to Value City’s regional human resources
manager, David Dowty, that the warehouse manager, Jim Stonebreaker, asked her several
times to be his date at a “candlelight dinner” after assisting her with her furniture orders.
She said that she declined, and that Stonebreaker responded by purposefully damaging
furniture she had sold in order to prevent her from earning certain commissions. Allen said
that this behavior stopped in July 2004. She added that she had recently learned that
Stonebreaker had, around the same time, orchestrated a bet with some of her coworkers
whether she would lose weight if one of their supervisors flirted with her. And she also
recounted conversations in which she and other sales associates discussed sexually explicit
topics in vivid detail. When she was later deposed by Value City, Allen reiterated these
same allegations and confirmed that Stonebreaker’s harassing behavior stopped in July or,
at the latest, August. Allen, though, admitted that she has no evidence to support her
allegation that Stonebreaker’s actions affected her commission‐based income.
Dowty launched an investigation, which lasted through the end of 2004. Nothing
that he uncovered substantiated Allen’s allegations about Stonebreaker, although he was
required to attend sexual harassment training. Instead, Dowty fired a sales associate, DJ
Hill, for inappropriate behavior that had not involved Allen. Dowty also received
numerous complaints that Allen herself had engaged in disruptive behavior at work. She
was given a “final” warning for “disorderly conduct” and spreading “false rumors.” The
warning was “final” because in September 2004 she had likewise been admonished for
making offensive and false remarks about her co‐workers.
In March 2005 Allen complained to human resources that she was being retaliated
against for having complained about Stonebreaker’s harassment. For example, she opined
that Value City’s decision to discipline her under its “up” system, which governs how sales
associates are assigned to incoming customers, was retaliatory. She also said that her fellow
sales associates were criticizing her because they were upset that Hill had been fired. She
then listed about 30 acts, all related to her belief that the company was having her tracked
and followed. For example, she wrote that her coworkers were walking by her house, could

-- 2 of 5 --

No. 07‐3698 Page 3
somehow see inside her bedroom, followed her car in black Suburbans, had arranged a car
accident she had recently been involved in, and had arranged for the FBI to follow her.
Dowty found Allen’s allegations “outlandish” and thought them maybe even
intentionally fabricated. He interviewed several of her co‐workers, who denied spying on
Allen outside of work. They also reported that she herself had engaged in disturbing
behavior, such as “stalking, cat‐like” one of their managers at a late‐night promotional event
and quizzing them on what they knew about her personal life. They reported that they felt
uncomfortable, and sometimes even unsafe, around her. In April 2005 Dowty fired Allen
because she had repeatedly spread false rumors and become a “disruptive presence” in the
workplace.
Allen filed two charges of discrimination with the EEOC on December 13, 2005, and
this lawsuit in October 2006. Her claims are difficult to pin down, but she appears to claim
that (1) she was sexually harassed by Stonebreaker in the summer of 2004, resulting in a
hostile work environment, and (2) she was mistreated and subsequently fired in retaliation
for complaining about the sexual harassment. Both Allen and Value City moved for
summary judgment. The district court denied Allen’s motion and granted Value City’s.
On appeal Allen asserts that the district court erred in granting summary judgment
to Value City on both her hostile work environment and retaliation claims. We review a
grant of summary judgment de novo. See Adelman‐Reyes v. Saint Xavier Univ., 500 F.3d 662,
665 (7th Cir. 2007).
We first address Allen’s claim of a hostile work environment. In our view, this claim
is time‐barred, and thus summary judgment for Value City was appropriate. Allen was
required to submit her claim to the EEOC within 300 days of the offending conduct, so here
any claims based on discrete acts occurring before February 16, 2005, are untimely. See
Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005). Although the district court
found Value City’s untimeliness argument “persuasive[],” it nevertheless liberally
construed her claim to be that she endured a hostile work environment from the summer of
2004 through March 2005. See Nat’l R.R. Passenger, Corp., v. Morgan, 536 U.S. 101, 122 (2002);
Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1027 (7th Cir. 2003). But even affording
Allen’s complaint a liberal construction as we must, see Kaba v. Stepp, 458 F.3d 678, 681 (7th
Cir. 2006), we cannot agree that any sexual harassment occurred within the period of
limitations. Allen admitted that Stonebreaker’s inappropriate behavior stopped in August
2004, and although she insists that she was disciplined for violating the “up” system,
criticized for Hill’s firing, and tracked outside of work following the investigation, none of
these actions were taken on account of Allen’s sex, that is, because she is a woman, and they

-- 3 of 5 --

No. 07‐3698 Page 4
are more appropriately considered as part of her retaliation claim. See Orncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 79‐81 (1998).
In any event, Allen’s claim fails on its merits as well. The alleged sexual harassment
was neither severe nor pervasive, such that she could meet her burden to demonstrate that
her workplace had became both subjectively and objectively hostile. See Ezell v. Potter, 400
F.3d 1041, 1047 (7th Cir. 2005). Stonebreaker’s dinner invitations did not make Allen’s
workplace objectively hostile. See, e.g., Whittaker v. N. Ill. Univ., 424 F.3d 640, 645‐46 (7th
Cir. 2005) (supervisor’s propositions to female employee to join him for “a weekend of
drinking and other things” were “relatively isolated instances of non‐severe misconduct”
insufficient to demonstrate hostile work environment). We have also explained that
behavior of which a plaintiff is unaware, like the bet about Allen’s weight, cannot by
themselves render the workplace hostile. See, e.g., Kriescher v. Fox Hills Golf Resort and
Conference Ctr., 384 F.3d 912, 915 (7th Cir. 2004) (plaintiff failed to demonstrate that her
workplace was hostile when she was not personally exposed to incidents she recounted).
And if Allen intends to style her claim as that of “quid pro quo” harassment, it is doomed
because she has presented no evidence whatsoever demonstrating that she lost commissions
as a result of her rebuke of Stonebreaker. See Quantock v. Shared Mktg. Servs., 312 F.3d 899,
903 n.1 (7th Cir. 2002) (affirming summary judgment on plaintiff’s “quid pro quo” sexual
harassment claim where there was no evidence that plaintiff suffered an adverse
employment action).
We turn next to Allen’s retaliation claim. To the extent that it rests on Value City’s
alleged mistreatment of Allen in the months following her November 2004 internal
complaint, summary judgment for Value City was proper because that so‐called
mistreatment did not amount to a “materially adverse” action that can support a retaliation
claim. See Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006); Nichols v. S.
Ill. Univ.‐Edwardsville, 510 F.3d 772, 779 ‐80 (7th Cir. 2007). It is true that acts that would
dissuade a reasonable employee from making a claim of discrimination can constitute
actionable retaliation. See Burlington Northern, 126 S. Ct. at 2415; Lewis v. City of Chicago, 496
F.3d 645, 655 (7th Cir. 2007). But Allen’s written reprimand for violating the “up” system
and the criticism she purportedly endured from her fellow sales associates for Hill’s firing
do not rise to the “materially adverse” level. See Johnson v. Cambridge Indus., Inc., 325 F.3d
892, 902 (7th Cir. 2003) (explaining that written reprimand unaccompanied by “tangible job
consequences” is not materially adverse employment action even in context of retaliation
claim). And her allegations that she was being tracked and followed while outside of work
are wholly unsupported.
To the extent that her retaliation claim rests upon her termination, summary
judgment was also properly granted in Value City’s favor. Allen is proceeding under the

-- 4 of 5 --

No. 07‐3698 Page 5
indirect burden‐shifting method. See Moser v. Ind. Depʹt of Corr., 406 F.3d 895, 903 (7th Cir.
2005). Her claim fails under that method because even assuming that she met her initial
burden to make out her prima facie case, Allen has presented no evidence that undermines
the truthfulness of Value City’s proffered reason for firing her, namely that she had become
a disruptive presence in the workplace. Because Value City articulated this legitimate non‐
discriminatory reason for firing Allen, she must show a genuine issue of fact that the reason
is a pretext for discrimination. See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir.
2006); Peirick v. Ind. Univ.‐Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 692 (7th Cir.
2007); Forrester v. Rauland‐Borg Corp., 453 F.3d 416, 417‐18 (7th Cir. 2006). In that vein, Allen
asserts that Dowty is a liar. But a bald assertion like that is insufficient to defeat summary
judgment. See Smith v. Potter, 445 F.3d 1000, 1009 (7th Cir. 2006). Plus, it is belied both by
the fact that Allen was reprimanded for similar disruptive behavior in September 2004
before she ever engaged in protected conduct and the fact that Dowty relied—as he was
entitled to—on the statements of Allen’s co‐workers that they felt uncomfortable and even
unsafe around her. See Brewer v. Bd. of Tr. of the Univ. of Ill., 479 F.3d 908, 918 (7th Cir. 2007).
The judgment is AFFIRMED.

-- 5 of 5 --