In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4136
KERRI A. MCKENZIE,
Plaintiff-Appellant,
v.
MILWAUKEE COUNTY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-C-0325—Rudolph T. Randa, Chief Judge.
____________
ARGUED APRIL 6, 2004—DECIDED AUGUST 23, 2004
____________
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Kerri A. McKenzie, a Milwaukee
County sheriff’s deputy, sued her employer alleging em-
ployment discrimination and violations of her Equal Protec-
tion and First Amendment rights. The district court granted
summary judgment to her employer, and McKenzie appeals.
We affirm.
Because this case comes to us on review of summary judg-
ment, we view the facts in the record and all inferences from
those facts in the light most favorable to McKenzie. See
Sullivan v. Ramirez, 360 F.3d 692, 696 (7th Cir. 2004).
McKenzie became a sheriff’s deputy in 1994 and was assigned
2 No. 03-4136
to guard duty at the county jail. In 1999 she was reassigned
to the Drug Enforcement Unit, where she worked as an un-
dercover detective investigating drug crimes. The Drug
Enforcement Unit was part of the Criminal Investigation
Bureau (“CIB”), which in 2000 became headed by George
Paras, an experienced narcotics officer who was known as
a demanding boss. Paras was also part of a clique known as
the “good old boys”; he used this network to reward those he
liked and ostracize those he disliked. McKenzie had been
friends with Paras’s predecessor, Joe Delaney, who did not get
along with Paras, and she feared Paras might hold this
against her. She had a “gut feeling” that she might encounter
trouble with Paras, so she decided to keep a diary document-
ing all of their interactions. Shortly after he started, Paras
commented to McKenzie and a male officer that “they would
be on the next transfer list” if they did not immediately
greet him when he walked into the office. The male officer
interpreted Paras’s comments as a joke, but McKenzie did
not.
At the time that Paras took charge of the bureau, McKenzie
was the lead investigator in a large-scale undercover drug
investigation. Paras began to develop numerous concerns
about the case, including the pace of the investigation, which
began several months earlier. He was also concerned that
the case depended heavily on a sole informant, and that the
main target was from Mexico, making him a flight risk. In
January 2001 Paras called a meeting to discuss the status
of the investigation, during which he questioned McKenzie
about the case. McKenzie viewed the meeting as essentially a
“firing squad” intended to embarrass her and undermine her
authority. At the end of the meeting, Paras told McKenzie
to focus all of her time on the investigation, and he also as-
signed two experienced narcotics officers to assist her. Shortly
after this meeting, Paras, who was terminally ill with bone
cancer, began missing a considerable amount of work, and
he and McKenzie had little direct contact for the next four
months.
No. 03-4136 3
In May 2001 Paras called another meeting to discuss the
status of McKenzie’s investigation. McKenzie decided to se-
cretly tape-record the meeting because she had heard ru-
mors that Paras was impatient that the investigation had
not yet been completed. During the meeting, McKenzie
reported her progress on the case, and Paras and other officers
asked her questions. At one point during the meeting, Paras
told McKenzie, who was standing during her presentation,
to sit down. She said “no.” Viewing Paras’s questions as an-
other attempt to undermine her authority over the investiga-
tion, she told him that the case was hers and that she was
passionate about it. Paras again told her to sit down, and
she complied.
After the meeting, Paras informed Captain Rodney Richards
that he wanted McKenzie reassigned. Paras was angry about
her conduct during the meeting because he viewed it as dis-
respectful, and he also believed that she was not properly
handling the undercover investigation. Richards talked Paras
out of reassigning McKenzie until the investigation was com-
pleted. Later that day, Richards talked with McKenzie about
the incident at the meeting. He stated that he did not know
what the “problem” was between McKenzie and Paras. He
said, “I don’t know if it’s a gender thing, I don’t know if it’s
a blonde thing, I don’t know if it’s a Joe Delaney thing”—
referring to Paras’s predecessor. McKenzie responded that
she had been “on the defensive” during the meeting because
she thought she was not getting the same respect as her
male colleagues. She stated that she had no “bone to pick”
with Paras and that she wanted simply to be left alone to do
her job. Richards told her to stay focused on her case and
avoid challenging Paras.
A few days later Paras met with both McKenzie and her
sergeant, Fred Hagedorn, and told her that he was upset
about her conduct during the meeting. He explained that he
thought she had been uncooperative ever since he took
charge of the bureau, and added that if she had spoken to
4 No. 03-4136
other command staff the way she spoke to him during the
meeting, she would have had her “head handed to her.” Paras
then left, and McKenzie continued to discuss the issue with
Sergeant Hagedorn, telling him of her concern that Paras
disliked her because she was a female overseeing a large
investigation. At one point Hagedorn stated, “George thinks
women are only good for fucking.”1 The meeting concluded
with Hagedorn telling McKenzie that Paras would not “be
around forever.”
In June 2001 McKenzie’s undercover investigation came
to fruition, and several suspects were arrested. Officers also
seized a kilogram of cocaine and several vehicles. When
McKenzie returned to the office after the arrests, Paras con-
gratulated her and told her she did a good job, but she per-
ceived his comments to be “sarcastic” and “half-hearted.”
On August 7, 2001, Captain Richards informed McKenzie
that she was being transferred to the patrol bureau. When
she asked why, Richards replied that Paras believed she
had a “poor attitude.” McKenzie stated that she had been
treated unfairly and told Richards that she had been keep-
ing a “book” on the events of the past few months, gesturing
with her index finger and thumb that the book was about
an inch thick. Richards asked if he was in the book, and
McKenzie replied that he and numerous other command
staff were mentioned in the book. Richards became angry,
believing that McKenzie was trying to threaten or intimi-
date him into reconsidering her transfer.
The following day, Richards conveyed the incident to Paras,
who then met with McKenzie and asked her about the book.
She responded that she did not have it with her but that it
1
Hagedorn disputed that he made this comment, asserting that
it was in fact McKenzie’s statement. For the purposes of summary
judgment, the defendants adopted McKenzie’s version of the
meeting.
No. 03-4136 5
was “somewhat of a daybook” detailing her interactions
with various staff during the past six months. Paras imme-
diately walked McKenzie down to the Office of Professional
Standards, where she was interviewed by two officers about
the book. During the interview, she did not reveal the pre-
cise contents of the book except to characterize it as a “per-
sonal diary” containing information about her personal life.
Upon returning to her office, she was told that due to her
transfer she was required to turn in her weapon, cell phone,
pager, and the keys to her undercover vehicle. Another offi-
cer escorted her through the office while she closed her files
and gathered her belongings, but she was not permitted to
retrieve any personal items from her vehicle. On her way
out of the office, McKenzie met with Sheriff Leverett
Baldwin, who asked her about the book she had been keep-
ing. She replied that the book was essentially a “personal
diary.” Sheriff Baldwin told McKenzie that he understood
she wanted to be reassigned to the “courts and auxiliary”
bureau. She replied that she would prefer to be transferred
to another area within the detective bureau, but Sheriff
Baldwin stated, “That’s not an option for you.” He told her
that if she wanted to go to courts, she would be reassigned
to courts, and that the transfer was effective immediately.
McKenzie ultimately received a written reprimand for her
conduct during the meeting with Captain Richards, because
officials concluded that she had mentioned the book to
Richards in an attempt to intimidate or coerce him into
allowing her to stay in the drug unit.
After obtaining a right-to-sue letter from the U.S. Equal
Employment Opportunity Commission, McKenzie in April
2002 filed a complaint against Milwaukee County, Sheriff
Baldwin, Paras (by that time deceased), Richards, and
Hagedorn. She raised hostile work environment and dis-
parate treatment claims under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.; an Equal Protection
claim also based on gender discrimination; and a First
6 No. 03-4136
Amendment claim alleging unlawful retaliation based on
her speech, namely, the book she kept detailing her work-
place interactions.
The district court granted summary judgment to the
defendants on each claim. As for her Title VII claims, the
court determined that McKenzie failed to establish that her
work environment was objectively hostile or that she
suffered a materially adverse employment action. For the
same reasons, her Equal Protection claim also failed. As for
her First Amendment claim, the court concluded that
McKenzie’s book was not constitutionally protected, nor was
it a motivating factor in the decision to reassign her, since
she was notified of her reassignment before she ever
revealed the existence of the book to her superiors. The court
accordingly awarded summary judgment to the defendants.
We review the district court’s grant of summary judgment
de novo. Volovsek v. Wis. Dep’t of Agr., Trade & Consumer
Prot., 344 F.3d 680, 686 (7th Cir. 2003). Summary judgment
is appropriate when, viewing the evidence in the light most
favorable to the non-moving party, there is no genuine issue
of material fact and the moving party is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56; Volovsek, 344
F.3d at 686.
To establish a claim of hostile work environment, McKenzie
must show that she was subjected to harassment so severe
or pervasive that it altered the conditions of her employ-
ment. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-
88 (1998); Twisdale v. Snow, 325 F.3d 950, 953 (7th Cir.
2003). She must also demonstrate that her workplace was
both subjectively and objectively hostile. Haugerud v. Amery
Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001). On appeal,
McKenzie argues that the district court erred in concluding
that her work environment was not objectively hostile,
asserting that Paras’s conduct made her work life “hellish.”
We must determine whether a reasonable person would find
No. 03-4136 7
McKenzie’s workplace hostile or abusive, looking to all of
the surrounding circumstances, including whether the
discriminatory conduct was frequent or severe; whether the
conduct was physically threatening or humiliating; and
whether the conduct unreasonably interfered with her work
performance. Id. We have made clear that Title VII is not a
general code of workplace civility, nor does it mandate
“admirable behavior” from employers. Id.
The facts McKenzie points to in support of her claim fall
short of establishing an objectively hostile or abusive work
environment. Several of the incidents involved other female
employees of the sheriff’s office, and the impact of such
“second-hand” harassment is not as great as harassment
directed at McKenzie herself. See Patt v. Family Health Sys.,
Inc., 280 F.3d 749, 754 (7th Cir. 2002); Black v. Zaring Homes,
Inc., 104 F.3d 822, 826 (6th Cir. 1997). The incidents involving
McKenzie consisted mainly of occasions where Paras failed
to greet her or acted “standoffish,” “unfriendly,” and “unap-
proachable”—none of which establishes an objectively hostile
work environment. See Patton v. Ind. Pub. Sch. Bd., 276 F.3d
334, 339 (7th Cir. 2002) (claims that supervisor was rude,
abrupt and arrogant, ignored employee’s suggestions, and
failed to inform employee about changes at work did not
establish hostile work environment); see also Minor v. Ivy
Tech State Coll., 174 F.3d 855, 858 (7th Cir. 1999) (“It is not
enough that a supervisor . . . fails to treat a female employee
with sensitivity, tact, and delicacy, uses coarse language, or
is a boor.”) One of the comments McKenzie points to—
“George thinks women are only good for fucking”—is indeed
offensive, but this isolated comment is insufficient to
establish severe or pervasive harassment. See Patt, 280
F.3d at 754; Adusumilli v. City of Chicago, 164 F.3d 353,
356 (7th Cir. 1998).
McKenzie’s other evidence pertains to Paras’s oversight
of her undercover investigation, including his apparent dis-
interest in her case; his frequent inquiries as to when the
8 No. 03-4136
investigation would be completed; his threats to have
another law enforcement agency take over the case; and his
status meetings, which she viewed as “firing squads.” None
of these circumstances suggest any inkling of harassment
based on McKenzie’s gender, and inappropriate workplace
conduct (assuming Paras’s actions could be characterized as
such) that is not based on gender is outside the ambit of
Title VII. See Berry v. Delta Airlines, Inc., 260 F.3d 803,
810-11 (7th Cir. 2001); Hardin v. S.C. Johnson & Son, Inc.,
167 F.3d 340, 345 (7th Cir. 1999). At most, the record shows
a personality clash between Paras, a demanding boss, and
McKenzie, his less-experienced subordinate, who was run-
ning an important investigation. The record also suggests
that Paras used his “good old boy” network to favor those he
liked and ostracize those he disliked—both men and
women. Because McKenzie failed to establish that she suf-
fered severe or pervasive harassment based on her gender,
the district court correctly entered summary judgment in
favor of the defendants on this claim.
Turning to McKenzie’s Title VII disparate treatment claim,
she must show, among other elements, that she suffered an
adverse employment action. See Tart v. Ill. Power Co., 366
F.3d 461, 472-73 (7th Cir. 2004); Herrnreiter v. Chicago
Hous. Auth., 315 F.3d 742, 743-44 (7th Cir. 2002). Adverse
employment actions include a broad array of actions such as
“hiring, firing, failing to promote, reassignment with sig-
nificantly different responsibilities, or some other action
causing a significant change in benefits.” Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998). To be actionable, an
employment action must be “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Traylor
v. Brown, 295 F.3d 783, 788 (7th Cir. 2002). The district court
concluded that McKenzie failed to make out an adverse
employment action because the most she could show was a
lateral transfer without any change in pay or benefits.
No. 03-4136 9
On appeal, McKenzie argues that her transfer was in fact a
demotion. She suggests that her reassignment constituted
an adverse employment action because “she was reassigned
from somewhere she wanted to work,” but, as we have held,
a transfer does not become an adverse employment action
solely because the employee subjectively prefers one posi-
tion over another. Herrnreiter, 315 F.3d at 745. The record
shows that sheriff’s deputies are frequently reassigned during
the course of their careers, and McKenzie’s transfer allowed
her to maintain the same pay and benefits.2 Although her
new assignment did not involve undercover work, she re-
mained a sheriff’s deputy, and the two positions “were
equivalent other than in idiosyncratic terms that do not jus-
tify trundling out the heavy artillery of federal discrimina-
tion law.” Id. Even assuming McKenzie could establish that
she suffered an adverse employment action, she also failed
to identify a similarly situated male officer—one running a
large-scale investigation under Paras’s supervision—who
was treated more favorably than she was. See Volovsek, 344
F.3d at 692. Accordingly, the district court properly granted
summary judgment to the defendants on McKenzie’s dis-
parate treatment claim. For the same reasons, McKenzie’s
discrimination claim brought under the Equal Protection
Clause also fails. See Hildebrandt v. Ill. Dep’t of Nat. Res.,
347 F.3d 1014, 1036 (7th Cir. 2003) (same standards for prov-
ing discrimination apply to Title VII and equal protection
claims).
2
McKenzie’s suggestion that the transfer was a demotion be-
cause “[d]etectives working in CIB were supposed to get 50 cents
an hour more than deputies” is not borne out by the record. A col-
lective bargaining agreement included in the record shows that
certain listed employees—longtime officers assigned to the detec-
tive bureau—were to receive an additional 50 cents an hour, but
McKenzie’s name was not on that list. Further, McKenzie admitted
during the proceedings in the district court that she received no
reduction in pay when she was transferred out of the detective
bureau.
10 No. 03-4136
We turn then to McKenzie’s First Amendment claim. The
precise contours of this claim are unclear, but McKenzie
appears to assert that the defendants improperly “demoted”
her in retaliation for exercising her free speech rights, spe-
cifically, maintaining a journal that documented the harass-
ment she had suffered. To establish a First Amendment
retaliation claim, McKenzie must show, among other ele-
ments, that she engaged in constitutionally protected
speech, and to do so she must establish that her speech
pertained to a matter of public concern. See Sullivan, 360
F.3d at 696-97. In determining whether a government
employee’s speech addresses a matter of public concern, we
look to the speech’s content, form, and context as revealed by
the record as a whole. Id. The speech must relate to a
community concern rather than “merely a personal grievance
of interest only to the employee,” and so complaints about
personnel matters generally are not constitutionally
protected. Id. at 699.
On appeal McKenzie offers only a cursory argument to re-
fute the district court’s conclusion that her journal related to
a personal grievance rather than a matter of public concern.
She suggests that any speech pertaining to sexual harassment
is per se a public concern. Sexual harassment is indeed an
important matter, but not all speech relating to sexual
harassment enjoys constitutional protection. See Hartman
v. Bd. of Trust. of Comm. Coll. Dist. No. 508, 4 F.3d 465, 471
(7th Cir. 1993). Rather, we must look to the speech’s content,
form, and context. Here, McKenzie’s speech consisted of
privately recorded notations in a book she herself character-
ized as a “personal diary” or “daybook” detailing her
interactions at work and her personal life. When asked by
her superiors, she balked at producing the book or revealing
its exact contents. Further, McKenzie suggests that her
motive in mentioning the book was to bring Paras’s wrongdo-
ing to light, but when asked by her superiors, she stated
that she did not know why she revealed the existence of the
No. 03-4136 11
book. The sheriff’s department reprimanded McKenzie
because it concluded that she was using the book to in-
timidate her superiors into reconsidering her transfer. In
light of these facts, the district court correctly concluded
that McKenzie’s book was an expression of personal rather
than public concern, and therefore was not entitled to con-
stitutional protection. See Sullivan, 360 F.3d at 700.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-23-04