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MacLean v. State8/2/1999
assignment through internal placement system "made out a prima facie . . . retaliation . . . claim").
The state also contends that MacLean "did not suffer any actionable adverse employment action during her employment at Education" and that, even if she did, she failed to establish a causal relationship. To the extent MacLean's retaliation claim is based on alleged constructive discharge resulting from her health-related complaints and requests for accommodation, we disagree with the state's position.() MacLean's counsel conceded at oral argument, and we agree, that the Department's treatment of MacLean would not constitute adverse employment action unless, as she claims, it ultimately resulted in her constructive discharge. Viewed as a whole, however, the evidence relating to how Bowman treated MacLean from mid-October until her resignation in late December presents a triable issue of fact on the adverse action and causation elements.
MacLean's affidavit sets forth the various forms of harassment and discriminatory treatment that Bowman subjected her to during her last two months at the Department. Bowman gave MacLean a poorer performance evaluation in November than he had in May, and later altered it because he felt he had treated her unfairly. More importantly, according to MacLean, Bowman "chastis for having complained about asthma and the sick building syndrome"; prohibited her from telecommuting, even though other employees could; ordered her to the Education building on a day that she had stayed home on doctor's orders due to her asthma, and then threatened to fire her; kept MacLean in the building the entire following day despite her complaint that her lungs hurt; imposed unreasonable new procedural rules on MacLean that did not apply to other employees; and generally harassed her on a daily basis during November and December. When the Department finally relocated MacLean to another building, an action Bowman later acknowledged should have occurred much sooner, he failed to equip her new space with standard office furnishings and constantly called her back to the Education building. Those factual assertions in MacLean's affidavit are not merely "sweeping generalizations and Conclusions," entitled to no weight, as the state contends.
Moreover, in his deposition, Bowman confirmed many of MacLean's allegations. He had "no question in mind" that if the Department "wants to get rid of an employee, get an employee to quit, that they can do that or they can employ means to attempt to do that." Although Bowman was not "ready to concede a hundred percent that that is the case" with MacLean, he "believe that there some percentage of the change in atmosphere that caused Diane to leave." Bowman also acknowledged that his attitude toward and treatment of MacLean in late 1995 produced a "chilling effect on their working relationship." Bowman expressed similar beliefs in his memorandum to Jackson in September 1996, concluding that "there is a good chance that [MacLean's] resignation might have been a direct result of this chilling effect," which had worked a "terrible inJustice" on her.
As the state correctly notes, "not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). An employment action is adverse only if it causes a material change in the terms or conditions of employment. See Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir. 1997); Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996). Thus, a performance evaluation that is not substandard or used as a basis for any action against the employee does not constitute adverse action. See Montandon v. Farmland Ind., Inc., 116 F.3d 3
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