Rhonda Swinney v. Illinois State Police

* Swinney moved to waive argument in this case, and we granted her motion. United
States v. Swinney, No. 08‐2698 (7th Cir. Feb. 10, 2009). Thus, the appeal is submitted on the
briefs and the record. See FED. R. A PP. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2009 *
Decided May 8, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐2698
RHONDA SWINNEY,
Plaintiff‐Appellant,
v.
ILLINOIS STATE POLICE,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 06‐cv‐644‐JPG
J. Phil Gilbert,
Judge.
O R D E R
Rhonda Swinney sued the Illinois State Police (ISP), her former employer, alleging
that ISP retaliated against her for complaining about sexual harassment in violation of Title
VII of the Civil Rights Act. The district court granted summary judgment for ISP. We
affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐2698 Page 2
In October 2003, Swinney’s supervisor, Sandra Robinson, forwarded four emails to
Swinney and several other people at ISP. The first was a joke about “why women are
crabby,” that ended with “women are the ‘weaker sex’? Yeah right.” The second and third
contained sexually‐themed jokes. The fourth, sent three weeks after the first two, contained
four pictures of men in sexually‐themed Halloween costumes. Robinson’s supervisor,
Steve Avedisian, appears to have received at least one of the emails, as he told her the
emails were inappropriate for the workplace and not to send any more. She did not.
In February 2004 Swinney was given her annual evaluation, which stated that she
met expectations except for her use of time, but also noted that she had trouble with
meeting deadlines and that a large number of vouchers she filled out were rejected by the
central fiscal office due to clerical errors. Swinney formally disputed some of the criticisms
in the evaluation.
Later in February, Swinney complained to Avedisian’s supervisor, Arlene Hall, that
she felt “harassed and intimidated” by Robinson. She stated that she and Robinson had
been good friends, but their relationship had deteriorated as they worked together. She
said she felt picked on for errors in her work that other supervisors did not address with
their own subordinates. She also cited the fact that she had been denied a request for a
four‐day work week. Swinney showed Hall two of the emails and said that she was not
sure why they had been sent to her but that she thought Robinson might have been trying
to harass and intimidate her with the emails. After the meeting with Hall, Swinney asserts
that her workload increased and that Robinson and Avedisian began to yell at her for poor
job performance. Eventually, in November 2005, she was diagnosed with post‐traumatic
stress disorder and took a leave of absence from work. She has not returned to work at ISP.
Swinney sued, alleging that she was treated poorly in retaliation for complaining
about harassment from Robinson, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e‐3(a). The State Police moved for summary judgment, which the district
court granted. The court concluded first that no reasonable jury could find that Swinney’s
complaints to Hall in February 2004 concerned being harassed sexually. If Swinney was
not complaining of sexual harassment, then she was not engaging in protected activity
under Title VII. Second, the district court determined that there was no evidence from
which a reasonable jury could find a causal connection between Swinney’s complaints and
any allegedly retaliatory conduct. The court noted that much of the conduct that Swinney
characterized as retaliatory preceded her complaints to Hall in February 2004. The later
conduct (such as being yelled at and assigned more work than co‐workers) did not start
until months after the complaints, suggesting that it was not caused by the complaints.
Although Swinney may have been treated badly, the court concluded that there was no
evidence to suggest she had been subjected to treatment that was unlawful under Title VII.

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No. 08‐2698 Page 3
On appeal, Swinney argues that she did, in fact, engage in a statutorily protected
activity. She argues that her complaints to Hall about the emails were complaints about
sexual harassment. Although Swinney did not specifically tell Hall she felt sexually
harassed, she asserts that it “should have been obvious” to Hall from the emails’ contents
that she was complaining about sexual harassment.
But Swinney has not produced evidence from which a jury could have concluded
that her employer was aware the complaint concerned sexual harassment. See Dey v. Colt
Const. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994). Although Swinney did not need to use
“magic words” like “sex” or “gender discrimination,” she needed to say something to make
clear to Hall that her sex was an issue. Sitar v. Ind. Dept. of Transp., 344 F.3d 720, 727 (7th
Cir. 2003); Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1007‐08 (7th Cir. 2000).
Swinney argues that Hall should have known that her complaints concerned sexual
harassment, but we do not consider what employers should have known about complaints,
and instead hold them responsible for what the record shows they actually knew. Nagle v.
Village of Calumet Park, 554 F.3d 1106, 1122 (7th Cir. 2009); Tomanovich v. City of Indianapolis,
457 F.3d 656, 668 (7th Cir. 2006). Furthermore, Swinney presented the emails to Hall while
complaining that she felt “harassed and intimidated” because, she said, Robinson picked on
her for things other supervisors did not mention to their subordinates. An employee does
not engage in protected activity merely by complaining of being “picked on” unless that
complaint makes clear that he or she is being mistreated because of sex or gender. Sitar, 344
F.3d at 727; see also Miller, 203 F.3d at 1007‐08 (complaints about matters other than
pregnancy discrimination implied that pregnancy discrimination was not the issue).
Finally, Hall’s investigation revealed that the emails were also sent to Avedisian. This
suggests that they were not directed to Swinney because of her sex, and undercuts the
notion that Hall should have known the complaint was one of sexual harassment.
Swinney has not produced evidence from which a reasonable jury could conclude
that her employer more likely than not knew that her complaint was about sexual
harassment, and so summary judgment in favor of the State Police was appropriate. See
Miller, 203 F.3d at 1008 (affirming grant of summary judgment on retaliation claim where
employee’s complaint to employer failed to implicate Title VII).
AFFIRMED.

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