Kuk v. State Farm
Filing
37
MEMORANDUM OPINION AND ORDER granting 32 Motion for Summary Judgment: For the reasons stated above, Defendant's 32 Motion for Summary Judgment is GRANTED. The Clerk is DIRECTED to enter judgment in favor of Defendant and against Plaintiff. The case is now TERMINATED. The Clerk is DIRECTED to close this case.. Entered by Judge Michael M. Mihm on 8/6/2020. (AEM, ilcd)
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E-FILED
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Thursday, 06 August, 2020 03:34:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JOHN H. KUK,
)
)
)
)
)
)
)
)
Plaintiff,
v.
STATE FARM,
Defendant.
Case No. 18-cv-1155
MEMORANDUM OPINION AND ORDER
This matter is now before the Court on Defendant’s Motion for Summary Judgment. (D.
321). For the reasons stated below, Defendant’s Motion for Summary Judgment is GRANTED.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as the claim
asserted in the Complaint presents a federal question under Title VII, 42 U.S.C. § 2000e, et seq.
Venue in this Court is appropriate under 28 U.S.C. § 1391(b)(2), as the events giving rise to the
claims occurred in Bloomington, Illinois.
BACKGROUND2
Plaintiff, John Kuk, was hired by the Defendant, State Farm, as a web systems analyst in
November 2011. (D. 18 at 4). Plaintiff is a Korean American male born in Chicago, Illinois. (D.
35-2 at 63). For the first several months of his employment, he worked for different managers
and was not assigned to a specific group or project. (Id. at 10). In early 2012, Plaintiff was
selected to work on the Development Practices Team. (D. 30 at 30).
1
Citations to the docket are abbreviated as (D. __.)
To the extent possible, the information in the Background section is taken in the light most favorable to the
Plaintiff.
2
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As a member of the team, Plaintiff’s manager was required to complete periodic
Employee Performance Reviews (“EPRs”), which rated Plaintiff’s overall job performance in
two categories: (1) “Results” and (2) “Competencies”. (D. 32-2 at 1). Both categories were rated
on a scale of 1 through 3, with 1 being the lowest and 3 being the highest. Id. Plaintiff testified
that it was an ongoing joke at State Farm that everyone receives a 2-2 score on their EPRs
because that is standard and leads to a certain kind of pay and benefits increase. (D. 35-2 at 43).
In addition to the rating scale, the EPRs also included “Mid-Cycle Review Comments” and
“End-Cycle Review Comments” (hereinafter, collectively “comments”), which allowed the
manager to provide additional feedback on an employee’s performance. (D. 32-2 at 1).
During Plaintiff’s employment at State Farm, three EPRs were completed during the
following time periods:
•
•
•
First EPR: Plaintiff’s performance cycle from March 1, 2012February 28, 2013;
Second EPR: Plaintiff’s performance cycle from March 1, 2013February 28, 2014;
Third EPR: Plaintiff’s performance cycle from March 1, 2014December 31, 2014. (D. 30 at 25-47).
In all three EPRs, Plaintiff received a level 2 in “Results,” meaning he “consistently met and
occasionally exceeded expectations.” (D. 30 at 33, 42; D. 31 at 16). The comments highlighted
Plaintiff’s technical skills and prior experience as being excellent attributes he brought to the
Development Practices Team. (D. 30 at 31, 40; D. 31 at 13).
Plaintiff also received a level 2 in “competencies” in his first two EPRs and a level 1 in
“competencies” in his third EPR. Level 1 meant that he “demonstrated some competencies, but
not others.” Id. In contrast to the comments regarding Plaintiff’s technical skills, the comments
regarding his “competencies” in all three reviews were more critical. The comments in Plaintiff’s
first EPR stated, in part:
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I have received feedback indicating that some associates do not want to continue
working with [Kuk]. Critical thinking is definitely needed and constructive
feedback on State Farm practices, technical approach and architectural decisions
is helpful, but [Kuk] needs to work on understanding these items and moving on
once his suggestions have been heard.
Id. at 31. Defendant recommended Plaintiff focus on having a positive attitude and
collaborate with others in order to be a productive addition to the team. Id. at 32.
In the second EPR, the comments again highlighted issues, stating:
While admirable and overall a positive competency, [Kuk] at times is perceived
as more tenacious than called for or pushing alternatives to the point of becoming
a negative influence. [Kuk] and I have discussed these situations and while better
than a year ago, still have risen occasionally. Listening, collaborating and at times
following options brought forth by others on the team are facets of working
within the Development Practices team that I expect [Kuk] to embrace. [Kuk]’s
approach can put individuals on the defensive, creating a less than productive
environment. Recognizing when this starts to occur and choosing a different
approach are definite aspects to work on going forward… [Kuk] has a lot of
potential and is someone who could operate consistently at a very high level if he
can avoid putting individuals on the defensive and exhibits a willingness to accept
input.
Id. at 40. Defendant recommended that Plaintiff be more aware of when he put individuals on the
defensive, exhibit a positive approach and attitude, and be receptive to input from others. Id. at
41.
In response to the second EPR, Plaintiff submitted a written rebuttal regarding the
comments he did not agree with. Id. at 43-47. In addition to his written rebuttal, Plaintiff had
four separate “rebuttal” meetings in June 2014 with management to discuss his concerns and
disagreements with the comments in his second EPR. (D. 31 at 1-6).
Plaintiff’s third EPR again provided similar feedback and concerns, stating:
Feedback regarding [Kuk] also indicates he needs to work on a more collaborative
approach when engaging in dialogue. Understanding how others are receiving the
information he is delivering would be greatly beneficial to [Kuk]. Working on his
influence with others would also assist him in helping people understand the
benefits of his ideas, namely being more succinct and recognizing what
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parameters have already been established. This would allow him to understand the
entire initiative and what can be controlled or changed.
(D. 31 at 11). His manager went on to state in the comments:
I encourage [Kuk] to work on methods to become more self-aware and to
approach his work with more humility and selflessness. Doing so will enable him
to focus on the changes needed to improve his communication, relationship with
others, and performance as a team member. Ultimately, this will produce a wellrounded degree of credibility that will enhance his influence and results.
Id. at 13. Plaintiff again submitted rebuttals to these comments and refused to sign the EPR. In
response, his manager, the manager’s supervisor, various human resources (“HR”) personnel,
and division leadership met with him at least seven times between January 2015 and the end of
his employment in May 2015 to help him improve his performance deficiencies. (D. 32-2).
Outside the EPR process, Plaintiff continued to have performance issues. In March 2015,
a performance memorandum was issued to Plaintiff addressing several ongoing concerns
regarding his interpersonal skills and deficiencies in core competencies over the previous six
months and expectations to correct his interactions with others. Id. at p. 2; D. 36-1 at 49. At that
point, he was warned that if he failed to demonstrate immediate and sustained improvement in
his performance, it might lead to further disciplinary action and possibly termination of his
employment. Id.
Plaintiff then requested two meetings with the assistant vice president and HR manager
and disagreed with them regarding the matters discussed and the plan of action going forward.
(D. 32-3, p. 2). In April 2015, Plaintiff’s manager, his manager’s supervisor, and several HR
personnel met with him again regarding his “competencies.” (D. 36-1 at 53). Throughout the
meeting, Plaintiff interrupted and tried to talk over his superiors as they attempted to outline their
expectations of the meeting in order to make comments about his EPR. Id. At the end of the
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meeting, Plaintiff was instructed to have a positive attitude and an open mind when participating
in future conversations. Id.
During the first several months of 2015, Plaintiff also filed several Compliance and
Ethics Complaints regarding having to work in a hostile environment where bullying and
discrimination could take place. Id. at pp. 72-75, 88-95. Each complaint was investigated, but the
investigations did not reveal that any policy violations had occurred. Id.
By May 2015, it became clear to Defendant that Plaintiff’s issues were not going to be
resolved and his employment was terminated effective May 9, 2015. Id. at pp. 63-67. The reason
for his termination: repeatedly demonstrating a lack of self-awareness by blaming others for his
poor performance, consistently and excessively arguing against any feedback provided, failing to
acknowledge that he needed to improve his performance, and refusing to accept any coaching or
feedback offered. (Id. at 68-69).
PROCEDURAL HISTORY
Plaintiff previously filed a charge before the United States Equal Employment
Opportunity Commission (“EEOC”). (D. 1 at 7). Specifically, Plaintiff alleged that he was
discriminated against because of his race, sex, and in retaliation for engaging in protected
activity. Id. The EEOC was “unable to conclude that the information obtained establishes a
violation of the statutes” and denied his claim. Id.
On April 13, 2018, Plaintiff filed this Complaint for employment discrimination pursuant
to Title VII, 42 U.S.C. § 2000e, alleging the Defendant intentionally discriminated against him
by: (1) terminating his employment; (2) failing to stop harassment; (3) retaliating against him
because he asserted his legal rights; and (4) coercing, intimidating, threatening, or interfering
with the exercise or enjoyment of his rights. Id. at p. 3.
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Ultimately, before the Court is Plaintiff’s Fourth Amended Complaint3 filed on
December 3, 2018. (D. 18). Defendant filed an Answer and Affirmative Defenses on December
17, 2018. (D. 19). On March 12, 2020, Defendant filed its Motion for Summary Judgment. (D.
32). On March 13, 2020, this Court filed a Rule 56 Notice regarding Defendant’s Motion for
Summary Judgment. (D. 33). On June 25, 2020, Plaintiff filed his Response4 (D. 35), and on July
9, 2020, Defendant filed its Reply. This Order follows.
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The party seeking summary judgment has the burden of establishing the lack of any
genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). “In deciding
motions for summary judgment, courts must consider the evidence as a whole,” de Lima Silva v.
Dep’t of Corrs., 917 F.3d 546, 559 (7th Cir. 2019), and “view[ ] the record and all reasonable
inferences . . . drawn from it in the light most favorable to the nonmoving party,” Laborers’
Pension Fund v. W.R. Weis Co., Inc., 879 F.3d 760, 766 (7th Cir. 2018). However, the court will
not draw inferences that are “supported by only speculation or conjecture,” Argyropoulos v. City
of Alton, 539 F.3d 724, 732 (7th Cir. 2008), and “[c]onclusory allegations alone cannot defeat a
motion for summary judgment.” Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th
Cir. 2003).
3
The facts and allegations remain the same, but the damages and relief sought in the Fourth Amended Complaint
were amended from the previously filed complaints. (D. 1; D. 18).
4
The Court granted an extension until June 1, 2020, for Plaintiff to file his Response. When no Response was filed
as required by Rule 56, the Court granted another extension until June 25, 2020.
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To avoid summary judgment, the nonmoving party must go beyond the pleadings and
“set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
250. “It is not the role of the [c]ourt to scour the record in search of evidence to defeat a motion
for summary judgment; instead, the nonmoving party bears the responsibility of identifying
evidence to defeat summary judgment.” Aberman v. Bd. of Educ. of City of Chi., 242 F. Supp.
3d 672, 685 (N.D. Ill. 2017) (citing Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099,
1104 (7th Cir. 2008)). Summary judgment is proper if the nonmoving party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Ellis v. CCA of Tenn. LLC, 650 F.3d 640,
646 (7th Cir. 2011).
The “mere existence of a scintilla of evidence in support of the
[nonmovant’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.
DISCUSSION
As a preliminary matter, the Court notes and takes into consideration the fact that the
Plaintiff is a pro se litigant, but finds that ruling on Defendant’s Motion for Summary Judgment
has been complicated by Plaintiff’s failure to comply with the Central District of Illinois’ Local
Rule 7.1 and Federal Rule of Civil Procedure 56. Specifically, Local Rule 7.1(D)(2) states:
Similar to answering a complaint, in response the party opposing the summary
judgment, shall file a separate document (entitled “Response to statement of
Undisputed Facts”) which numerically responds to each of the movant's
undisputed facts. The party will either admit or contest the fact. If the fact is
contested, the party (1) shall submit a short and plain statement of why the fact is
in dispute and (2) cite to discovery material or affidavits that support the
contention that the fact is disputed. (Emphasis in original.)
When he filed the Response, Plaintiff did not comply with the requirements of Local Rule
7.1(D). In response to paragraphs 4-7, 16-18, 20-24, 26-29, and 31 of Defendant’s Motion for
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Summary Judgment, he states that he “disagrees” and “moves to strike” the facts set forth but
does not provide citations to the record establishing material evidence to the contrary.
Additionally, Plaintiff provided this Court with little reasoned analysis explaining why summary
judgment should not be granted.
Rule 56 of the Federal Rules of Civil Procedure instructs:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record,” or “showing
that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support
the fact . . . . If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the
court may . . . consider the fact undisputed for purposes of the motion[.]
FED. R. CIV. P. 56(c)(1), (e)(2). To the extent Plaintiff introduces unsupported facts in his
Response or includes facts to which he fails to provide documentary substantiation, the Court
considers the facts undisputed for the purposes of its analysis. See Waldridge v. Am. Hoechst
Corp., 24 F.3d 918 (7th Cir. 1994) (affirming decision of district court which assumed the facts
as claimed and supported by admissible evidence by the moving party were admitted to exist
without controversy); Thomas v. Kroger, No. 13-CV-00588, 2014 WL 555086, at *1 (S.D. Ind.
Feb. 12, 2014) (“Failure to properly support a fact in opposition to a movant’s factual assertion
can result in the movant’s fact being considered undisputed, and potentially in the grant of
summary judgment.”).
Plaintiff identifies only two claims of employment discrimination in violation of the Civil
Rights Act of 1964: (1) disparate treatment via unlawful termination and (2) retaliation.
Plaintiff’s testimony also appears to hint at harassment, and because he is a pro se litigant, this
Court will address this claim as well.
I.
Disparate Treatment
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Title VII makes it unlawful for an employer to discharge or discipline an employee
because of that person’s race or sex, among other grounds. 42 U.S.C. § 2000e; Coleman v.
Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). In assessing a Title VII claim, courts often use the
McDonnell Douglas burden-shifting framework to organize the evidence, although the evidence
must ultimately be considered as a whole when deciding the summary judgment motion. See
Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).
To establish a prima facie case of discrimination, a plaintiff must offer evidence: “(1) he
is a member of a protected class; (2) his job performance met [the employer’s] legitimate
expectations; (3) he suffered an adverse employment action; and (4) another similarly situated
individual who was not in the protected class was treated more favorably than the plaintiff.”
Burks v. Wisconsin Dep’t of Transportation, 464 F.3d 744, 750-51 (7th Cir. 2006); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The failure to satisfy any one of
these elements is fatal to Plaintiff’s claim. See Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th
Cir. 2008) (affirming district court’s dismissal of discrimination claim because the plaintiff was
unable to meet either the second or fourth prongs of the McDonnell Douglas test).
Here, Plaintiff’s Response makes no citation to the legal framework applicable to
addressing his claims and cites none of the numerous cases from the Seventh Circuit addressing
disparate treatment based on race or gender. In fact, most of his Response argues the validity of
the negative comments received in his EPRs and further demonstrates his lack of accountability
and ability to accept constructive criticism, which the Court notes ultimately led to his
termination.
Plaintiff’s Response also makes no attempt to address the essential elements of a prima
facie case or the arguments and authority presented by Defendant’s summary judgment motion.
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The argument section of his Response contains one paragraph of conclusory allegations that
Defendant is hiding its systemic discriminatory behavior behind unflattering performance
reviews. (D. 35 at 13-14). Plaintiff’s Response further argues that, if given the chance to take his
case to trial, he will present stories of various scenarios of discrimination faced, but he provides
no specific facts or evidence in support of this assertion. Id.
This kind of perfunctory and underdeveloped legal argument is utterly insufficient to
survive a motion for summary judgment, and it is well settled that responses of this type result in
a waiver of all arguments. Jorden v. Walmart Stores, Inc., 322 F.Supp.2d 1172, 1177 (2004); see
also, Finance Investment Co. v. Geberit AG, 165 F.3d 526, 528-529 (7th Cir. 1998) (finding a
perfunctory and underdeveloped argument to be waived). As a result, the Court finds that
Plaintiff has waived all arguments in response to the Motion for Summary Judgment by virtue of
his perfunctory and legally undeveloped response, and Defendant is thus entitled to judgment as
a matter of law.
Assuming arguendo that Plaintiff did not waive all arguments, it is undisputed that
Plaintiff is a member of a protected class and ultimately suffered adverse employment action,
namely, termination. (D. 32 at 21). However, Defendant argues Plaintiff’s disparate treatment
claim must be denied, as he fails to demonstrate that he was meeting its reasonable expectations
and that similarly situated employees outside of his protected class were treated more favorably.
Id. at 21-22. Defendant adds that it had legitimate, non-discriminatory reasons for Plaintiff’s
termination and that Plaintiff fails to demonstrate its decision is pretextual. Id. at 22-24.
The Court finds Plaintiff fails to satisfy either the second or fourth prongs of the
McDonnell Douglas framework and therefore fails to proffer sufficient evidence for a reasonable
factfinder to conclude his race or national origin caused his discharge. See Ortiz v. Werner
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Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016) (“[The] legal standard . . . is simply whether the
evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, . . . or other
proscribed factor caused the discharge.”).
Accordingly, his discrimination claim based on
disparate treatment fails.
A. Plaintiff Fails to Demonstrate Meeting Legitimate Expectations
Regarding Plaintiff’s job performance, despite some evidence demonstrating positive
feedback regarding his technical skills and experience (D. 30 at 31, 40; D. 31 at 13), Plaintiff
fails to demonstrate that he was meeting his employer’s legitimate expectations at the time of his
termination. To his detriment, the record contains ample undisputed evidence of concerns with
his performance. Plaintiff was repeatedly told he needed to improve his communication and
interpersonal skills and correct deficiencies in core competencies. (D. 30 at 31, 32, 41; D. 31 at
11, 13; D. 32-2 at 2; D. 36-1 at 49). He concedes that he received three EPRs addressing these
concerns and had numerous meetings with his managers, HR personnel, and division leadership
about these issues. (D. 35-2). Despite the subpar reviews on performance evaluations and
instructions on how to improve going forward, Plaintiff refused to accept the comments and
continued to do exactly what he was told not to do by criticizing and arguing with those giving
the feedback, because he personally did not agree with it. (D. 30 at 43-47, D. 31 at 1-6; D. 32-3
at 1-2; D. 36-1 at 53). Plaintiff simply cannot survive summary judgment on this record.
B. Plaintiff Fails to Identify Similarly Situated Employees
Even assuming Plaintiff was meeting Defendant’s legitimate expectations at the time of
his termination, he fails to demonstrate there were similarly situated employees outside of his
protected class who were treated more favorably. In order to defeat summary judgment, Plaintiff
must identify comparators who “dealt with the same supervisor, were subject to the same
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standards, and had engaged in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer’s treatment of them.” Gates,
513 F.3d at 690 (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000),
overruled on other grounds by Ortiz, 834 F.3d at 765.); Eaton v. Ind. Dep’t of Corrs., 657 F.3d
551, 559 (7th Cir. 2011) (reiterating a similarly situated employee must be comparable to a
plaintiff in all “material respects”).
Plaintiff fails to reference evidence in the record that demonstrates potential comparators,
who reported to the same supervisor or had engaged in similar conduct, were treated more
favorably. The record also fails to indicate—and Plaintiff fails to argue—that any potential
comparator had similar issues with miscommunication or misconduct (e.g., deficiencies in
communication skills, interpersonal skills, and core competencies) as Plaintiff. See Amrhein v.
Health Care Serv. Corp., 546 F.3d 854, 860 (7th Cir. 2001) (“Without a similar disciplinary
history, [the comparator] cannot be considered ‘similarly situated.’”). Finally, Plaintiff fails to
include any case law to support his argument that he has identified similarly situated employees.
(D. 35). This unsupported and undeveloped legal argument is insufficient to survive a motion
for summary judgment, and the Court finds Plaintiff fails to meet the fourth prong of the
McDonnell Douglas framework to proceed on his claim.
The legal standard in an employment-discrimination claim “is simply whether the
evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, . . . or other
proscribed factor caused the discharge.” Ortiz, 834 F.3d at 765. The Court finds Plaintiff has
failed to proffer evidence for a reasonable factfinder to conclude his race or gender caused his
discharge. He has also failed to proffer sufficient evidence to demonstrate he was meeting
Defendant’s legitimate expectations at the time of his termination or to successfully refute
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Defendant’s evidence to the contrary.
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He further failed to provide evidence that suitable
comparators, outside of his protected class, were treated more favorably. Accordingly,
Defendant’s summary judgment motion on Plaintiff’s claim of disparate treatment via unlawful
termination is GRANTED.
II.
Retaliation
Plaintiff argues he was the subject of retaliation for filing internal complaints regarding
two allegedly discriminatory instances. (D. 35-2 at 52-59). In his first complaint, Plaintiff
claimed that he witnessed a male co-worker speaking to a female co-worker in a
“condescending” manner. Id. at 55. In his second complaint, Plaintiff asserted that developers at
State Farm “bullied” Indian members of an external contractor group. Id. at 58-59.
The
retaliation, he contends, was that he was moved to a separate room to work with two other State
Farm employees, received negative performance reviews, and ultimately his termination.
To establish a claim of retaliation under Title VII, a plaintiff must show that: (1) he
engaged in protected activity; (2) he suffered an adverse employment action; and (3) a causal
connection exists between the two. King v. Ford Motor Co., 872 F.3d 833, 841 (7th Cir. 2017).
Here, Plaintiff fails to demonstrate his complaint constituted protected activity of which his
supervisor had actual knowledge. As such, his final discrimination claim fails.
The Seventh Circuit has instructed:
Although filing an official complaint with an employer may constitute statutorily
protected activity under Title VII, the complaint must indicate the discrimination
occurred because of sex, race, national origin, or some other protected class.
Merely complaining in general terms of discrimination or harassment, without
indicating a connection to a protected class or providing facts sufficient to create
that inference, is insufficient.
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Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006) (internal citation omitted).
After a thorough review of Plaintiff’s internal complaint, the Court finds that his complaint fails
to indicate, or to even create an inference, that Plaintiff was the subject of discrimination.
Moreover, Plaintiff fails to demonstrate his supervisor was aware of his complaint when
he was moved to work in a different room or when completing his EPRs. His supervisor’s
actions would only constitute retaliation if he had actual knowledge of Plaintiff’s complaint. See
Emerson v. Dart, 900 F.3d 469, 472 (7th Cir. 2018) (“[Defendants’] alleged misdeeds count as
retaliation only if they had actual knowledge of the . . . grievance.”). Additionally, although
Plaintiff argues the contrary, since all these formal complaints were made after Plaintiff’s three
EPRs, there is no way the negative feedback he received in the EPRs could have been in
retaliation to him filing complaints.
Accordingly, no reasonable jury could conclude Plaintiff suffered retaliation due to his
complaint, and Defendant’s Motion on this ground is GRANTED.
III.
Harassment
While not specifically addressed in Plaintiff’s Fourth Amended Complaint, the Court
notes that Plaintiff raises allegations of harassment. Due to Plaintiff’s pro se litigant status, the
Court will consider and address those allegations. Plaintiff alleges he was subject to a hostile
work environment because he was overqualified for his position and still required to complete
training that he found to be below him; that other unidentified persons moved his computer
screen and chair and left garbage at or around his desk in the collaboration room he was assigned
to work in; and he was asked to fill out an ADA report when he made complaints of his chair
causing him back pain before he could get a new chair. (D. 35-2).
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To survive summary judgment on his hostile work environment claim, Plaintiff must
demonstrate: (1) his work environment was both objectively and subjectively offensive; (2) the
harassment complained of was based on his race or national origin; (3) the conduct was either
severe or pervasive; and (4) there is a basis for employer liability. Scruggs v. Garst Seed Co.,
587 F.3d 832, 840 (7th Cir. 2009). “Not every unpleasant workplace is a hostile environment . . .
. The workplace that is actionable is the one that is hellish.” Perry v. Harris Chernin, Inc., 126
F.3d 1010, 1013 (7th Cir. 1997). “[S]imple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). None
of Plaintiff’s examples of misconduct rise to the level of actionable harassment, and Plaintiff’s
argument fails.
Furthermore, Plaintiff fails to provide any case law supporting his contention that these
occurrences constitute actionable harassment. (D. 35). Accordingly, Defendant’s Motion for
Summary Judgment on this claim of discrimination is GRANTED.
CONCLUSION
For the reasons stated above, Defendant’s [32] Motion for Summary Judgment is
GRANTED. The Clerk is DIRECTED to enter judgment in favor of Defendant and against
Plaintiff. The case is now TERMINATED. The Clerk is DIRECTED to close this case.
ENTERED this 6th day of August, 2020.
/s/ Michael M. Mihm
Michael M. Mihm
United States District Judge
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