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Wheeler v. BRADY CORPORATION
Citations: 712 F. Supp. 2d 801; 2010 U.S. Dist. LEXIS 44966; 2010 WL 1818060Docket: Case No. 08-C-1005
Court: District Court, E.D. Wisconsin; May 6, 2010; Federal District Court
Shannon M. Wheeler, the Plaintiff, has initiated a lawsuit against her former employer, Brady Corporation, citing violations of Title VII of the Civil Rights Act of 1964. Wheeler alleges gender-based discrimination, sexual harassment, a hostile work environment, retaliation for opposing discriminatory practices, and constructive discharge. The U.S. District Court for the Eastern District of Wisconsin has federal question jurisdiction over the case and confirms that venue is appropriate. Brady Corporation has filed a motion for summary judgment to dismiss the case, asserting that no genuine issues of material fact exist. In response, Wheeler claims that several material facts are in dispute, which should prevent the resolution of the case through summary judgment. The Court outlines the standard for summary judgment, stating it should be granted only if there are no genuine issues regarding material facts and the movant is entitled to judgment as a matter of law. The opposing party cannot rely solely on allegations or denials but must present specific facts demonstrating a genuine issue for trial. The Court will consider evidence in favor of the nonmoving party to determine the existence of any genuine issues of material fact. The burden rests on the movant to show that a trial is not necessary. The Court has excluded findings of fact and responses that are legal conclusions, argumentative, irrelevant, or lack sufficient evidentiary support. Under District's Civil Local Rule 56(b)(2)(B)(i), mere disagreement with the movant's facts does not counter summary judgment without specific supporting materials. Brady, an international manufacturer with about 7,800 employees based in Milwaukee, Wisconsin, has comprehensive anti-discrimination policies, including prohibitions against sexual harassment and retaliation. These policies are detailed in its Code of Ethics and Team Member Handbook, accessible to employees via the intranet. New employees receive training on the sexual harassment policy within 90 days of hire, followed by annual reminders through Code of Ethics training. Brady encourages immediate reporting of harassment concerns, conducting thorough investigations led by its Human Resources Department, which includes interviews and documentation review. Brady's North American sales division is divided into seven regions, each managed by a regional manager and supported by territory managers and customer service personnel. Wheeler, employed since 2004 as an inside sales representative, confirmed her understanding of Brady’s policies and training. She reported to Barb Bartelt, the inside sales manager with authority over hiring and performance evaluations. Wheeler's compensation consisted of a salary and commissions, with her sales territory in the Northeast region beginning in 2005, where she earned approximately $1,000 in commissions monthly. From September 2005, she worked solely as an inside sales representative, maintaining a schedule from 7:00 a.m. to 3:00 p.m., Monday to Friday. Her performance reviews from 2005 to 2007 consistently rated her as "meets expectations," while her talent reviews indicated she had "full leadership potential," a designation that suggested she lacked the qualifications for promotion. Talent reviews are generally not shared with inside sales representatives and remain with the inside sales manager. Antonacci, the Northeast regional manager since 2000, supervised territory managers but had no hiring or promotion authority for inside sales representatives. He communicated monthly with Wheeler to discuss sales objectives and provided occasional feedback on her sales techniques. In January 2007, Wheeler acknowledged receipt and understanding of Brady's Code of Ethics, including its sexual harassment policy. In June 2007, Bartelt promoted Rachel Zweck to Team Lead, a role that included supervisory authority over inside sales representatives. Wheeler perceived this promotion as unfair and believed she was qualified for the position, feeling that Bartelt compared her sales performance unfavorably to Zweck's. Following the announcement, Wheeler contacted Pam Zak from the Southwest region to discuss her feelings regarding the promotion. Wheeler and Zak engaged in a telephone conversation where they made derogatory comments about Zweck, expressing a desire for her to fail in her new role. Wheeler claimed her sales performance surpassed Zweck's and expressed intent to outperform her. Zak suggested Zweck would struggle with Bartelt's abrasive style. They agreed Wheeler should inquire with Antonacci about Zweck's selection as Team Lead. Unbeknownst to Wheeler, Brady was investigating Zak for unethical behavior and had recorded the conversation. Following this, Wheeler received a written warning from Brady on July 13, 2007, which upset her, particularly because it was her first disciplinary action. Afterward, Zweck confronted Wheeler about her disparaging remarks, to which Wheeler replied she intended to outperform Zweck. Later that month, Wheeler contacted Antonacci regarding the Team Lead selection, asserting her superiority as an employee. Antonacci suggested Wheeler consult her supervisor, Bartelt, about her talent review. There is a dispute over Antonacci's wording about her review; he claimed it was not as stellar as she believed, while Wheeler stated he said it was less than stellar. Antonacci had no involvement in the selection process for Zweck and had not reviewed Wheeler's evaluations. Bartelt clarified to Wheeler that her talent review indicated full leadership potential, contradicting Antonacci's statement. Following this, Wheeler left a heated voicemail for Antonacci expressing her frustration over not being selected. After the warning, HR representative Jason Stobba provided Wheeler with resources on managing difficult interactions and encouraged her to seek assistance with any issues. Wheeler acknowledged the need to report her experiences with Antonacci to Human Resources. On August 9, 2007, she met with Stobba to discuss allegations of harassment by Antonacci, which she had hesitated to report due to a prior negative experience with sexual harassment at another job. During this meeting and a follow-up on August 13, Wheeler detailed multiple incidents of inappropriate behavior by Antonacci dating back to June 2006. Wheeler recounted the following incidents: 1. During an after-work meeting at Tumbleweeds on July 27, 2006, Antonacci touched her leg and made inappropriate inquiries about her sexual history and preferences. 2. An IT employee informed her that Antonacci sought pornographic pictures of pregnant women. 3. Antonacci made a loud kissing noise at her cubicle to suggest an inappropriate relationship. 4. He repeatedly asked her to dinner, insisting that a mutual friend should not join them and using the phrase "three strikes and you are out" regarding her declining invitations. 5. Wheeler described an encounter at corporate headquarters where they hugged and allegedly "accidentally kissed" on the lips, with conflicting accounts on the timing of this incident. Wheeler felt that Antonacci's behavior toward her deteriorated after she rejected his dinner invitations, leading to exclusion from communications and negative comments about her performance. She requested a transfer to the Southeast region but was denied and did not communicate this to Bartelt. Wheeler reported her complaints to Stobba, who assured her of confidentiality and initiated an immediate investigation. Stobba instructed Wheeler to refrain from communicating with Antonacci and requested any supporting emails or communications related to her allegations. On August 9, 2007, the same day Wheeler reported her concerns, Stobba interviewed Antonacci, Bartelt, Klimowicz, and other potential witnesses. Follow-up interviews were conducted within the week, with Stobba taking notes throughout. During a phone interview with Stobba, Antonacci denied most of Wheeler's allegations, acknowledging only that he had met her at Tumbleweeds during a business visit, which Bartelt had facilitated. He refuted claims of inappropriate comments and behaviors, asserting that any sexual topics arose from Wheeler's own disclosures about her past work at a "gentleman's club." Antonacci admitted to a brief kiss exchanged with Wheeler during a later meeting and confirmed that Bartelt had informed him of Wheeler's intent to apologize for this incident. He also stated that he had invited Wheeler to lunch but only if Klimowicz could join. Regarding Wheeler's talent review, Antonacci claimed he never characterized it as "less than stellar," suggesting instead that she should discuss her concerns about a colleague's promotion with Bartelt. He expressed discomfort about being alone with Wheeler, citing that she gave him a "creepy" feeling, which led him to seek company during meetings. Stobba instructed Antonacci to avoid contact with Wheeler while ensuring confidentiality regarding the investigation. Bartelt corroborated Antonacci's discomfort and relayed that Wheeler had previously mentioned feeling embarrassed after accidentally kissing Antonacci. Bartelt advised Wheeler to contact Antonacci to clarify that a kiss was unintentional and to apologize for any misunderstanding. Bartelt also spoke to Antonacci to convey Wheeler's message. In July 2007, Antonacci informed Bartelt about Wheeler's inquiry into Zweck's promotion and commented that Wheeler's talent review was "less than stellar," which Bartelt believed was taken out of context. Klimowicz's interviews revealed that Wheeler felt uncomfortable around Antonacci, who had made inappropriate comments regarding Wheeler's sexual preferences and personal life. Although Klimowicz did not witness the kissing incident, she understood it was an accident during an awkward hug and noted that Wheeler did not hold Antonacci responsible for it. Klimowicz had not heard any inappropriate sounds from Antonacci towards Wheeler but had overheard him whispering to her. Wheeler later told Klimowicz that Antonacci suggested starting a rumor about an affair between them. Klimowicz had advised Wheeler to report any issues to Human Resources and believed both the Tumbleweeds and kissing incidents occurred in summer 2006. Orcholski recalled a conversation from summer 2005 where Antonacci mentioned attending a bachelor party and searching for inappropriate images. On August 13, 2007, Wheeler provided emails to Stobba to support her claims against Antonacci. These included a September 13, 2006, email where Wheeler expressed excitement about joining the Northeast team and Antonacci's response requesting not to be copied on automated messages. Additionally, a July 24, 2007, email from Wheeler inquired about a colleague's family matters, to which Antonacci replied he had been on vacation. As part of the investigation, Stobba obtained a copy of Antonacci's computer hard drive and reviewed all emails between him and Wheeler, as well as Antonacci's personnel file for prior harassment complaints. Antonacci had no prior accusations of harassment or disciplinary actions against him, although in 2005, a female employee interpreted one of his comments as derogatory towards working mothers. He clarified his intent and apologized for the misunderstanding. During the investigation into Wheeler's harassment complaint, attorney Kristina Ebbens issued a litigation hold mentioning Wheeler but not naming Antonacci or Bartelt. On August 23, 2007, Stobba and Bartelt informed Wheeler that her request to transfer from the Northeast to the Mideast sales region was granted; Wheeler did not object. The transfer allowed her to retain her position, salary, and benefits. An email confirming the transfer was sent to Wheeler on August 24, stating it would eliminate contact with Antonacci and instructing her to report any contact from him. However, on August 27, Wheeler expressed dissatisfaction with the transfer, believing it harmed her career and requested a transfer to the Southeast region instead, citing a fear of encountering Antonacci at a National Sales Meeting. Stobba noted that the Mideast transfer was finalized and that a new employee had already been hired for the Southeast position. Following the termination of the Southeast region's inside sales representative, Bartelt posted a job opening, which Wheeler did not see or apply for. Bartelt quickly filled the position with Joe Welch after interviewing several candidates. The National Sales Meeting, mandatory for all sales personnel, was scheduled for the following week. During a meeting on August 28, Wheeler was reminded of her transfer and the expectation of her attendance. Bartelt reassured her that Antonacci would not contact her at the event. Wheeler questioned the necessity of her attendance, recalling she was excused the previous year for a wedding, and stated she would obtain a doctor's note to avoid attending. On August 28, 2007, Wheeler informed Stobba via email, with her attorney copied, that she would not attend the National Sales Meeting due to discomfort around Antonacci and indicated her heart specialist would provide a medical excuse. She subsequently obtained two weeks of Family and Medical Leave Act (FMLA) leave for September 2007, coinciding with the meeting. Wheeler had previously not interacted with Antonacci at past meetings. Following an investigation into Wheeler's complaint, Antonacci received a final written warning on August 29, 2007, from Mark Konopacke and Stobba for sexual harassment and violations of IT policy. Evidence showed Antonacci had engaged in inappropriate sexual conversations with Wheeler and had previously requested inappropriate images from IT. He was instructed to avoid contact with Wheeler and her work area; Antonacci disputed the charges and the warning. On October 31, 2007, Wheeler emailed Stobba alleging that Bartelt had displayed an "attitude" towards her since her complaint against Antonacci, claiming Bartelt was ignoring her and not providing adequate sales leads. Bartelt denied any mistreatment, attributing reduced communication to a team restructuring and stated that Wheeler was not being denied leads. On November 1, 2007, Stobba informed Wheeler of Bartelt's denial and expressed confidence in Wheeler's success. Wheeler followed up on November 5, alleging continued issues with sales leads and expressed a desire to return to the Northeast region, where she had significantly more leads. Stobba acknowledged her concerns but noted he would discuss them in detail upon his return on November 7, 2007. On that day, Wheeler submitted her two-week resignation, stating she felt forced to resign and had secured another job, which she commenced shortly thereafter. In fiscal year 2007, the Mideast sales region had 9,546 sales leads with an average of 796 monthly dispositions, while the Northeast region had 8,896 leads and an average of 741 monthly dispositions. The Mideast region achieved 97% of its sales goals, and the Northeast region reached 96%. On September 28, 2007, Wheeler, through counsel, filed a discrimination charge with the Wisconsin Department of Workforce Development (DWD) and the U.S. Equal Employment Opportunity Commission (EEOC) against Brady, alleging sexual harassment and retaliation. Wheeler claimed that during an inside sales meeting in August 2006, Mr. Antonacci made sexually suggestive comments about her. On July 24 and August 1, 2008, Wheeler filed additional charges of retaliation with the EEOC and DWD. The DWD found Wheeler's initial sexual harassment claims time-barred and lacking probable cause, a decision later upheld by an Administrative Law Judge in July 2008. The EEOC issued Notices of Right to Sue for all of Wheeler's charges by November 10, 2008. Subsequently, on November 21, 2008, Wheeler filed a lawsuit under Title VII. Regarding her mental health, Wheeler first reported anxiety and stress to her healthcare provider, Dr. Daniel Mui, on May 11, 2005, citing her son’s deployment to Iraq. She disclosed harassment at work beginning in June 2006 on August 31, 2007, and mentioned her difficulty in transferring regions due to HR policies. By October 31, 2007, she informed Dr. Mui that she had secured new employment. Antonacci, employed at Brady from March 2001 to November 2005 as a personal computer specialist, frequently approached IT department employees to inquire about finding naked pictures of pregnant women online, as well as expressing interest in other pornography. These discussions were initiated solely by Antonacci, with no prompting from IT staff. He also made inappropriate remarks about women at a 2002 trade show in St. Louis, referring to attendees as "butt ugly" and continuing to make similar comments afterward. In the context of a legal action involving Wheeler, discovery requests were served to Brady, which included admissions and interrogatories. Brady denied admission requests related to Wheeler's transfer inquiries, claiming Bartelt informed Wheeler that the position in the Southeast region had been filled by another candidate, Welch, whose official hire date was August 7, 2007, although the position was effectively filled by July 23, 2007. Brady acknowledged that Wheeler had requested a transfer to distance herself from Antonacci, but the company denied the specific admissions regarding her request for a transfer to the Southeast region. Regarding Wheeler's sexual harassment claim, Brady argued for summary judgment on the grounds that allegations against Antonacci did not occur within the 300 days prior to her EEOC charge, asserting that the continuing violation doctrine did not apply. Wheeler contended her charge was timely, citing that in Wisconsin, a charge of discrimination must be filed with the Equal Rights Division (ERD) within 300 days of the alleged discriminatory act, applicable under federal law due to Wisconsin's status as a "deferral state." The continuing violation doctrine permits a plaintiff to seek relief for acts that are normally time-barred by connecting them to a more recent act within the limitations period, treating them as a single continuous act. Courts can consider the entire timeframe of a hostile work environment claim if at least one act occurred within the filing period. In cases of harassment claims, if a contributing act falls within the limitations period, it can support the claim. The burden of proof for the timeliness of an administrative charge lies with the defendant when a failure to file is raised as an affirmative defense. In the context of Wheeler's claim, she filed her first charge on September 28, 2007, and there are disputed facts regarding the timing of several alleged harassment incidents. Testimonies regarding specific incidents, including actions attributed to Antonacci in early 2007, may substantiate the timeliness of Wheeler's charge under the continuing violation doctrine. The determination of these dates and the credibility of witnesses cannot be resolved at the summary judgment stage. Furthermore, to establish a prima facie case of sexual harassment under Title VII, Wheeler must demonstrate that she experienced unwelcome harassment based on her sex that was severe or pervasive enough to create a hostile work environment, along with a basis for employer liability. Wheeler's complaint indicates she felt subjectively offended by Antonacci's comments, and the court recognizes that a jury could reasonably conclude her environment was hostile based on her reports. Factors for assessing whether harassment was objectively offensive include frequency, severity, physical threats, and impact on work performance. While occasional vulgar banter might not constitute a hostile environment, Wheeler's complaint lists five specific instances of harassment that could meet the criteria for a hostile work environment claim. Wheeler's complaints involve several incidents of inappropriate behavior by Antonacci. The first incident occurred at the Tumbleweeds meeting, where Antonacci inappropriately touched Wheeler below her Capri pants and made offensive comments about her appearance, sexual history, and preferences. Although the touching was not on an intimate body part and occurred outside the workplace, the remarks were deemed unwelcome and inappropriate. The second incident involved Antonacci requesting pornographic photographs of pregnant women from the IT department, which Wheeler learned about indirectly; this was considered insufficiently severe to create a hostile work environment. The third incident involved Antonacci making loud kissing noises in Wheeler's cubicle, intended to suggest an affair; while this behavior was annoying, it was not physically offensive and occurred on just one occasion. In the fourth incident, Antonacci extended unwanted dinner invitations to Wheeler and made an ambiguous comment about "three strikes and you are out," which Wheeler did not understand, leaving the implications unclear. Lastly, the fifth incident involved an unwanted kiss from Antonacci on Wheeler's lips in a hallway, accepted as true for summary judgment purposes. Wheeler experienced unexpected and upsetting physical contact from Antonacci, which she reported to her supervisor, Bartelt, and friend Klimowicz. She alleges that during an OSHA meeting in 2007, Antonacci used her as an example inappropriately, suggesting how he might approach her romantically. There is a dispute regarding the timing of this meeting and whether Antonacci made such comments. Viewed favorably for Wheeler, these remarks would be humiliating, especially given Antonacci’s previous behavior. However, his comments were isolated and not accompanied by further physical behavior. The Court noted that Antonacci did not frequently interact with Wheeler, as he worked primarily in St. Louis and visited the Milwaukee office infrequently. Despite his offensive actions, Wheeler felt comfortable enough to discuss work-related issues with him, indicating that his conduct may not have been intolerable. The Court referenced Seventh Circuit precedents, acknowledging that while unwanted physical contact is generally severe, not all unwelcome contact rises to the level of harassment. Under Wheeler's account, Antonacci's actions included unwanted touching of her leg and a kiss on the lips. The Court highlighted the challenging distinction between actionable harassment and less severe physical contact, referencing cases where more severe behaviors were deemed actionable. The excerpt evaluates various legal precedents regarding the severity of harassment in workplace environments. It highlights several cases where different forms of harassment, such as unwanted touching, suggestive comments, and attempted kisses, were deemed insufficiently severe to establish a hostile work environment. Notably, actions like prolonged touching, forced kissing, and threats were considered severe, while isolated incidents and ambiguous gestures did not meet the necessary threshold for a claim of harassment. In the specific context of Wheeler's case against Brady, the court finds that Antonacci's conduct, while close to the harassment line, was not severe enough to create an objectively hostile work environment. Brady argues that it cannot be held liable for Antonacci's actions because he was not Wheeler's supervisor and that it took reasonable steps to prevent harassment. Additionally, Brady points out that Wheeler delayed in utilizing the available reporting mechanism for harassment. Conversely, Wheeler contends that Antonacci was indeed her supervisor due to his oversight of her daily tasks and her reasonable belief in his supervisory authority. Wheeler argues that Brady lacks an affirmative defense due to her suffering a tangible employment action, specifically being assigned an undesirable role that resulted in lost compensation. Wheeler asserts that even if no tangible employment action occurred, Brady did not take reasonable steps to prevent the harassment, while Wheeler made appropriate efforts to avoid it. The legal standard for employer liability hinges on whether the harasser is a supervisor, which invokes strict liability unless the plaintiff can demonstrate no tangible employment action occurred. Conversely, if the harasser is not a supervisor, the employer may be liable for a hostile work environment only if negligence in discovering or remedying the harassment is proven. A supervisor, by legal definition under Title VII, is someone who can directly influence the terms and conditions of an employee's job, a standard not met simply by overseeing job performance. The case of Hall v. Bodine Electric Co. illustrates this, as the harasser’s authority did not qualify him as a supervisor despite involvement in performance evaluations and training. Similarly, Wheeler's claims regarding Antonacci's supervisory status are unsupported; although he provided feedback and oversight during monthly discussions, he lacked the authority to affect Wheeler's employment terms directly. Wheeler also argues that Antonacci had apparent authority, referencing Burlington Industries, Inc. v. Ellerth, which distinguishes between apparent authority and misuse of actual power. A claim of false impression of supervisory authority requires the victim's mistaken belief to be reasonable. Apparent authority is established if a third party could reasonably believe the agent was authorized. Wheeler worked exclusively in Antonacci's region and had required monthly calls with him, which he cites as evidence of apparent authority. However, Wheeler's assertion is weakened by the fact that the victim first met Antonacci in June 2006, and Antonacci had instructed Wheeler to interact more with her only after the alleged incident. While Wheeler claims observational authority, Antonacci observed Wheeler’s calls only once, and it is undisputed that Bartelt was Wheeler's immediate supervisor. The facts do not support a reasonable jury concluding that Wheeler could believe Antonacci misrepresented his supervisory role. For employer liability regarding harassment, negligence in discovering or remedying harassment must be proven. An employer is not liable for a hostile work environment unless it fails to take appropriate remedial actions after being informed of harassment. Employees must make significant efforts to notify the employer of any issues for the employer to be considered apprised of harassment. The law does not require employers to act without knowledge of harassment; they must promote general anti-harassment policies and training. An employer can defend against harassment claims by demonstrating reasonable care in discovering and addressing such behavior, meaning they must have notice or knowledge of the conduct. The presence of a designated complaint channel is crucial for determining an employer's notice of harassment. In this case, Brady has an established system for reporting and investigating discrimination, including sexual harassment, and provided training to employees within 90 days of hiring. Anti-discrimination policies at Brady are reinforced annually through training on Brady's Code of Ethics, which includes an anti-harassment policy outlining a complaint procedure for employees to report harassment concerns to supervisors or Human Resources. Wheeler claims she informed Bartelt about harassment after an incident involving Antonacci’s kiss and later requested a transfer to the Southeast region. However, there are factual disputes regarding the details and timing of her communications with Bartelt, which involve credibility issues unsuitable for resolution through summary judgment. Although Wheeler informally requested a transfer, this request occurred after her July 13, 2007, complaint to Human Resources, and the connection between her transfer request and Antonacci's behavior remains vague. Consequently, Wheeler lacks sufficient evidence to establish a second harassment complaint to Bartelt. Following her report to Human Resources, Stobba acted promptly by interviewing relevant parties and conducting further investigations. By August 23, 2007, Wheeler was informed of her transfer to a different sales region away from Antonacci. Moreover, after concluding the investigation, Brady issued a final warning to Antonacci on August 27, 2009, for sexual harassment violations and prohibited him from contacting Wheeler. These measures, including limiting contact, are aimed at preventing further harassment. Brady has not demonstrated that it took appropriate remedial action upon learning of the alleged harassment involving Wheeler and Bartelt, leaving Wheeler's claims unresolved at this stage. Additionally, Brady argues that Wheeler's retaliation claim should be dismissed due to lack of credible evidence of an adverse employment action following her complaint about Antonacci. Wheeler asserts that her transfer to the inside sales representative position for the Mideast region qualifies as an adverse action under Title VII, referencing a precedent case. To establish a prima facie case for retaliation using the direct method, Wheeler must show: 1) engagement in a statutorily protected activity; 2) an adverse action taken by her employer; and 3) a causal connection between the two. An adverse action must be significant enough to deter a reasonable employee from filing discrimination claims, with examples including termination, demotion, or loss of benefits. The court has clarified that not every negative employee experience constitutes an actionable adverse action. In support of her retaliation claim, Wheeler cites her transfer, isolation from colleagues, lack of support regarding her treatment, and the expectation to attend a National Sales Meeting despite having been excused the previous year. The cited case outlines three categories that meet the criteria for materially adverse employment actions, including any diminishment in compensation or benefits. Nominally lateral transfers that do not change financial terms can still adversely affect an employee’s career prospects if they prevent the employee from utilizing their trained skills. Additionally, changes in workplace conditions that create significant hardships, such as humiliation or unsafe environments, may also constitute adverse employment actions. In this instance, Wheeler's retaliation claim does not dispute the initial prong but faces challenges regarding the existence of an adverse employment action. Brady argues that reduced communication with Bartelt was not linked to Wheeler's complaint but rather to organizational changes. Wheeler's transfer to a similar sales position in the Southeast region, despite her preference for that location, did not show a significant detriment as the two regions’ sales performance was comparable. While Wheeler felt isolated and treated differently by coworkers, the evidence did not support a finding of a significantly negative alteration in her work environment. The requirement for Wheeler to attend a National Sales Meeting, from which she was able to excuse herself for medical reasons, also did not meet the threshold for a materially adverse employment action. Consequently, the court found insufficient evidence for a reasonable jury to support Wheeler's claims, leading to the dismissal of her retaliation claim, alongside her assertion of constructive discharge from her position. A plaintiff is generally expected to remain employed while pursuing claims related to employer discrimination. The Supreme Court has recognized that Title VII allows for employer liability in cases of constructive discharge, but establishing such a claim requires demonstrating that the work environment was intolerable to the extent that resignation was a reasonable response. In Wheeler's case, despite alleging harassment and a negative work environment following her complaints, the evidence presented does not support a finding that her conditions were sufficiently intolerable. After reporting the harassment, Wheeler was reassigned, had contact restrictions placed on her harasser, and received explanations for changes in her treatment. Although Wheeler perceived her new sales region as inferior and faced reduced commissions, the data did not substantiate her claims of a lesser territory. Consequently, her constructive discharge claim was dismissed, and Brady's motion for summary judgment on Wheeler's Title VII discrimination claims, including sexual harassment, retaliation, and constructive discharge, was granted. The case is therefore dismissed, and the Clerk of Court is instructed to enter judgment accordingly. Wheeler's lack of response to a proposed fact resulted in its admission, but this fact appears inconsistent with emails exchanged on July 24, 2007. Antonacci's deposition, referenced by Brady, confirms he had no further communication with Wheeler after mid to late July. The court amended the statement to clarify that Wheeler and Antonacci did not speak again after that period. There is a factual dispute regarding whether Wheeler and Antonacci had met before the Tumbleweeds meeting; Antonacci asserts they had not, while Wheeler claims they met in June 2006 during an incident where Antonacci kissed her. Notes from Wheeler's August 13, 2007, interview indicate she described the kiss as accidental and expressed embarrassment, yet she did not report the incident in an earlier meeting. During her deposition, Wheeler reiterated that Antonacci kissed her. Disputes also exist regarding the details of the kiss incident—specifically, its timing and the nature of who initiated it. Furthermore, there are conflicting accounts regarding whether Antonacci invited Wheeler for lunch or dinner and how he responded to her request for Klimowicz's presence. Additional disputes concern whether Antonacci specifically requested nude pregnant women pictures or if they were offered to him. Wheeler's challenges to Brady's proposed findings about Antonacci’s comments suggest an attempt to dispute his statements, but she has not contested what Antonacci relayed to Stobba during interviews. Lastly, there is uncertainty about whether Wheeler ever invited Antonacci to lunch, although she mentioned in late 2006 that she would consider it if there were important matters to discuss. Wheeler has not disputed the details of Stobba's interview with Bartelt regarding her knowledge of Antonacci and Wheeler, but there are factual disagreements about what Wheeler conveyed to Bartelt regarding a kiss incident, including who initiated the kiss and whether Bartelt mocked Wheeler about it. Bartelt asserts she did not mock Wheeler or inquire about any inappropriate conduct related to the kiss. There is also a disagreement on whether Wheeler ever complained to Bartelt about Antonacci; Wheeler claims to have made two complaints, while Bartelt states Wheeler did not report any issues. Klimowicz, a friend of Wheeler, described an awkward incident involving a kiss, which Wheeler found embarrassing. Wheeler disputes proposed findings based on Antonacci's testimony, challenging his credibility rather than the facts. She also argues she was denied sales leads, referencing her email, but this does not contradict Bartelt's statements. The Equal Rights Division of the DWD can investigate Title VII claims. An inconsistency regarding the date of an event was identified and corrected by the Court. Regarding Wheeler's harassment complaint about Antonacci, there is a dispute whether it included an OSHA meeting incident, as Stobba's notes do not mention it. The employer could be held constructively liable if the harassment was evident, but Wheeler does not claim Brady had such notice. Wheeler testified she communicated serious issues with Antonacci to Bartelt but did not mention harassment when requesting a transfer. Additionally, she has not established her retaliation claim using the indirect method.