Vaughn v. Fox Developmental Center

Filing 37

ORDER entered by Senior District Judge Joe Billy McDade on 2/3/2024: Defendant's Motion for Summary Judgment (doc. 33 ) is GRANTED. All issueshaving been disposed of, this case is TERMINATED. SEE WRITTEN ORDER. (BL)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CANDACE VAUGHN,

)
)
)
Plaintiff,
)
v.
)
)
ILLINOIS DEPARTMENT OF HUMAN )
SERVICES,
)
)
Defendant.
)

Case No. 1:22-cv-1107

ORDER & OPINION
This matter is before the Court on Defendant Illinois Department of Human
Services’ Motion for Summary Judgment. (Doc. 33). Plaintiff has responded (doc. 35)
and filed a Memorandum in Opposition (doc. 36).1 For the following reasons,
Defendant’s Motion is granted.
BACKGROUND2
Plaintiff Candace Vaughn sued the Illinois Department of Human Services
(“IDHS”) after her employment at the Fox Developmental Center (“Fox”), a facility

Plaintiff’s legal arguments and compliance with the requirements of Local Rule
7.1(D)(2) for responses to motions for summary judgment appear in her Memorandum
in Opposition (doc. 36) rather than in her Response (doc. 35), which merely states the
procedural posture of the case and requests that the Court deny summary judgment
to Defendant. Exhibits are also attached to the Memorandum rather than the
Response. For the sake of brevity and clarity, when using the term “Response” or
“Plaintiff’s Response” in this Order, the Court refers to Plaintiff’s Memorandum in
Opposition unless otherwise noted.
1

The narrative in this section consists of undisputed facts (as indicated by
Defendant’s Motion for Summary Judgment (doc. 33) and Plaintiff’s Memorandum in
Opposition (doc. 36)) unless otherwise noted.
2

operated by Defendant, ended on December 17, 2021. (Doc. 16 at 2). Plaintiff worked
at Fox for approximately a year and a half, having been hired as a Mental Health
Technician Trainee on September 16, 2020, and later, on July 16, 2021, promoted to
a non-trainee technician position. (Docs. 33 at 1–2, 36 at 2, 33-3 at 52). Plaintiff’s
work performance and evaluations were satisfactory. (Doc. 36 at 3).
During her time at Fox, Plaintiff, who is African-American (doc. 36 at 3),
reported her coworkers’ behavior to Defendant on three occasions. In each case, the
complaint was received by a Residential Services Supervisor (“RSS”) and ultimately
forwarded to Rochelle Jackson, Director of Human Resources at Fox. (Docs. 36 at 3,
33-3 at 25, 30, 34, 44).
On March 10, 2021, Plaintiff placed a call to the RSS on duty immediately after
an altercation between herself and Angela Smith, a Registered Nurse employed by
Fox. (Docs. 36 at 2, 7, 33-1 at 30–31). Plaintiff further provided a written statement
about the incident during Defendant’s investigation of it. (Doc. 33-3 at 30–31). As a
result of that investigation, both Smith and Plaintiff were disciplined. (Docs. 33 at 2,
33-3 at 30–31). Smith was suspended for two days and then reassigned to handle
paperwork in an office setting on behalf of the nursing department. (Doc. 33-3 at 31).
Plaintiff was given a written reprimand and temporarily demoted, in that she was
reassigned to work in the dietary department rather than in patient care. (Docs. 33
at 2, 36 at 3). Both were allowed to return to their previous positions and duties
approximately one month later. (Doc. 33-3 at 32).

2

Plaintiff’s second complaint concerned Paula Hertz. (Doc. 33 at 2). In May
2021, she submitted a written, internal memo to her RSS stating that Hertz was rude
to her, singled her out for criticism, and forced Plaintiff to wait longer to go on break
than the other employees in her unit. (Doc. 33-3 at 34–35). She acknowledged that
Hertz was rude to everyone at work but “complained that she was ruder to Plaintiff
and discriminated specifically against Plaintiff.” (Doc. 36 at 3–4).
Plaintiff’s final complaint, filed with her RSS on December 3, 2021, described
an altercation she had with Veronica Wilkinson that morning. (Docs. 33-1 at 20–22,
33-3 at 44). Following an argument over Plaintiff’s work assignment, Plaintiff stated
in a written memo that Wilkinson said, in her hearing, that she hated working with
black women. (Doc. 33-4 at 4). The memos Plaintiff filed regarding Hertz and
Wilkinson did not result in discipline, either for Plaintiff or for the two employees
about whom she complained. (Doc. 33-3 at 43, 50).
In her memo regarding Wilkinson, Plaintiff additionally stated that she did
not want to work at Fox anymore and was giving two weeks’ notice of her departure.
(Docs. 33 at 2, 33-1 at 20, 33-4 at 4). Human Resources informed Plaintiff that for her
resignation to take effect, she would need to submit a separate memo; Plaintiff never
did this and, as a result, believed her resignation had not been valid. (Docs. 36 at 2,
33 at 3). Later, however, Plaintiff informed Jackson that she did not intend to resign
and wished to continue working for Defendant. After Jackson had consulted with Fox
Center Director Sybil Nash and after both had spoken on the phone with Plaintiff,
Nash decided not to accept Plaintiff’s attempt to rescind her resignation. (Docs. 33 at

3

3, 36-2 at 8). Plaintiff was no longer employed at Fox after December 17, 2021. (Doc.
16 at 2).
Having filed a charge and obtained a right-to-sue letter from the Equal
Employment Opportunity Commission (“EEOC”) (docs. 16-1, 16-2), Plaintiff filed the
instant lawsuit. The operative complaint (her Second Amended Complaint) states
three claims against Defendant, all under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.: race-based discrimination, a hostile work environment created
by race-based harassment, and retaliation. (Doc. 16 at 6–7). Defendant moves for
summary judgment on all three counts. (Doc. 33 at 1).
LEGAL STANDARD
“The court shall grant summary judgment 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 dispute of material fact exists ‘if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’ ” Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “The nonmovant bears the
burden of demonstrating that such genuine issue of material fact exists.” Aregood v.
Givaudan Flavors Corp., 904 F.3d 475, 482 (7th Cir. 2018). “The parties must support
their assertions that a fact is disputed or cannot be genuinely disputed by citing to
admissible evidence in the record.” Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir.
2018).

4

However, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247–48 (1986). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment. . . . [I]t is the substantive law’s identification of which facts are
critical and which facts are irrelevant that governs.” Id. at 248. The entry of summary
judgment is required, “after adequate time for discovery and upon motion, against a
party who 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The record is viewed in
the light most favorable to the nonmovant, and the Court must draw all reasonable
inferences from the evidence in the nonmovant’s favor. BRC Rubber & Plastics, Inc.
v. Cont’l Carbon Co., 900 F.3d 529, 536 (7th Cir. 2018).
DISCUSSION
I.

Disputed Facts
In its Motion, Defendant identifies a list of “Undisputed Material Facts,”

numbered and accompanied by citations to the record, as required by Local Rule
7.1(D). (Doc. 33 at 1–3). Plaintiff, responding, disputes five of these. (Doc. 36 at 2–3).
She also offers her own version of events in the “Additional Material Facts” section of
her Response (doc. 36 at 3–4); some of these additional facts directly contradict
Defendant’s “Undisputed Material Facts,” while others address issues not mentioned
by Defendant.
5

Taken together, the parties’ filings indicate that the following facts in this
matter are in dispute: whether Smith physically pushed Plaintiff or merely closed a
door in her face; whether or not Plaintiff was willing to care for more than one patient
on the morning she and Wilkinson argued over the number of patients to whom
Plaintiff would be assigned; whether Plaintiff’s first communication to Defendant
that she wished to rescind her resignation occurred on December 16, 2021, or on the
following day, December 17; whether Defendant’s decision not to allow Plaintiff to
rescind her resignation was motivated by the untimeliness of Plaintiff’s notice or the
fact that Plaintiff had filed complaints of discrimination concerning her coworkers;
and whether any other employee at Fox had ever attempted (successfully or not) to
rescind a notice of resignation.
The details of Plaintiff’s altercations with Smith and Wilkinson are immaterial
in that they speak neither to Plaintiff’s race nor to her employer’s response to her
complaints. Plaintiff does not allege, for example, that Smith only shoved AfricanAmerican coworkers but had purely verbal conflicts with white coworkers. Nor does
it matter to Plaintiff’s allegations regarding Wilkinson whether or not Defendant
accurately described her concern that she was being assigned too much work.
Regardless of the exact number of patients Mental Health Technicians such as
Plaintiff were supposed to be caring for at one time, her claim is that a white worker
was allowed to do less work, while Plaintiff was given more work because she is black.
The final three disputed facts (the date on which Plaintiff first informed Defendant
that she wanted to rescind her resignation, Defendant’s motivation for not allowing

6

her to continue working at Fox, and whether any other Fox employee had attempted
to rescind resignations) are immaterial to this case because, as described below, they
pertain only to claims that lie outside the scope of Plaintiff’s EEOC charge.
The Court must deem Plaintiff’s other “Additional Material Facts” admitted by
Defendant, because Defendant never replied to Plaintiff’s Response. L.R.
7.1(D)(3)(a)(5); see Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 527
(7th Cir. 2000) (“[W]e have consistently and repeatedly upheld a district court’s
discretion to require strict compliance with its local rules governing summary
judgment.”). Of those facts, the Court finds the following to be material: that Plaintiff
is African-American; that Plaintiff met the performance expectations associated with
her employment at Fox and received a promotion during her time working there; and
that Plaintiff was “reprimanded and demoted to kitchen staff” after the Smith
incident.3 (Doc. 36 at 3–4).
The Court finds that none of the disputed facts is material to the resolution of
this action, and therefore the only question on summary judgment is whether
Defendant is entitled to that outcome as a matter of law.
II.

Race-based Discrimination

Plaintiff also lists “Additional Material Facts” that are more akin to conclusions of
law, such as that Plaintiff suffered an adverse employment action and that Plaintiff
complained to Defendant of racial discrimination in her workplace. (Doc. 36 at 3).
While Defendant did not dispute these conclusions in a reply, the substance of its
Motion disputes them, and the Court will consider its arguments as they pertain to
legal conclusions, although Defendant is reminded of the opportunity and
responsibility it had to file a reply indicating which, if any, of Plaintiff’s Additional
Material Facts it disputes.
3

7

In her Second Amended Complaint (hereinafter “Complaint”)4, Plaintiff
alleged that Defendant violated Title VII of the Civil Rights Act of 1964 by
discriminating against her on the basis of race. (Doc. 16 at 6).
Title VII prohibits an employer from “discriminating against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). A plaintiff may demonstrate race-based discrimination by an employer,
in violation of Title VII, by showing that she is a member of the racial classification
at issue, that she met the legitimate requirements of the job, that she suffered an
adverse employment action, and that there was either direct or indirect evidence of
race-based discrimination by the employer in relation to that action. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Comcast Corp. v. Nat’l Ass’n of Afr.
Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020).
An adverse employment action is a “significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Herrnreiter v.
Chi. Housing Auth., 315 F.3d 742, 744 (7th Cir. 2022). To be actionable under Title
VII, the decision 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). “[N]ot
every criticism or disciplinary measure is an ‘adverse employment action’ for Title

For the sake of brevity, Plaintiff’s Second Amended Complaint (doc. 16), which is
the operative complaint at this stage, will be referenced simply as the Complaint.
4

8

VII purposes.” Pantoja v. Am. NTN Bearing Mfg. Co., 495 F.3d 840, 847 (7th Cir.
2007).
In her Complaint, Plaintiff identified two adverse employment actions that
could give rise to such a claim: her reassignment to kitchen duties after she engaged
in an altercation with Smith, and her constructive discharge. (Doc. 16 at 4–5). In
responding to Defendant’s Motion for Summary Judgment, she continues to state
that she was constructively discharged and also argues (incongruously, since actual
resignation is an element of constructive discharge, Green v. Brennan, 578 U.S. 547,
555 (2016)) that she was subjected to racial discrimination when her employer
refused to allow her to rescind her resignation once she had decided she wished to
continue working.
However, when a plaintiff files an employment-discrimination suit, she must
first file a charge with the EEOC, and “the scope of the subsequent judicial
proceedings is limited by the nature” of those charges. Rush v. McDonald’s Corp., 966
F.2d 1104, 1110 (7th Cir. 1992). “An aggrieved employee may not complain to the
EEOC of only certain instances of discrimination, and then seek judicial relief for
different instances of discrimination.” Id. The standard is “whether the claims in . . .
the complaint are like or reasonably related to the allegations in the EEOC charge”
(quotation omitted). Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 501 (7th
Cir. 1994). The claims are “not alike or reasonably related unless there is a factual
relationship between them. This means that the EEOC charge and the complaint

9

must, at minimum, describe the same conduct and implicate the same individuals”
(emphasis in original). Rush, 966 F.2d at 1110.
Plaintiff’s EEOC charge, which she filed with the Court in an attachment to
her Complaint, did not allege constructive discharge, nor did it mention the fact that
Plaintiff’s employment had ended by the time she filed the charge on December 29,
2021. (Doc. 16-1 at 1). It certainly did not state that Plaintiff resigned, attempted to
rescind her resignation, and was prevented from doing so. There are no facts
whatsoever that could have put Defendant on notice that she had claims under Title
VII in connection to either her attempted resignation or Defendant’s decision not to
let her rescind that resignation. Nor could the EEOC “settle the dispute through
conference, conciliation, and persuasion” as to those claims, thus “frustrat[ing] the
EEOC’s investigatory and conciliatory role.” Cheek, 31 F.3d at 500.
Plaintiff did mention her allegation of constructive discharge in her Complaint
(doc. 1 at 6), Amended Complaint (doc. 9 at 6), and Second Amended Complaint (doc.
16 at 5). Defendant moved to dismiss Plaintiff’s first two complaints (docs. 7, 13);
however, in neither motion did Defendant move to dismiss Count I, as to Plaintiff’s
alleged constructive discharge, on the basis that it lay outside the scope of Plaintiff’s
EEOC charge. Defendant answered the Second Amended Complaint and this matter
proceeded to discovery, without this Court having had the opportunity to dismiss the
constructive-discharge claim, as the scope-of-charge rule is not jurisdictional. Id.
However, “it is a condition precedent with which Title VII plaintiffs must comply,” id.
(citing Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985)), and so this

10

Court may and must bar the out-of-scope claim from proceeding at this stage, even
while acknowledging the time, effort, and judicial resources that would have been
saved if Defendant had properly moved to dismiss it.
Therefore, the Court will not consider Plaintiff’s Count I claim in relation to
her discharge and will instead turn to her claim that she was discriminated against
when Defendant temporarily reassigned her to the dietary department.
The parties here do not dispute that Plaintiff is African-American, that she
met the qualifications for the jobs of Mental Health Technician Trainee (and, once
promoted, Mental Health Technician), and that she performed those jobs
satisfactorily during her tenure at Fox. The parties also agree that in connection to
the Smith incident, Plaintiff was disciplined by receiving a written reprimand and
being reassigned to dietary and custodial duties (as opposed to the patient-care duties
she was hired to perform) for a period of about one month. (Docs. 33 at 2, 33-3 at 32).
Defendant has admitted Plaintiff’s characterization of her reassignment as a
demotion, although as a practical matter, no evidence has been presented showing
that Plaintiff’s job title or compensation changed as a result of this disciplinary
action—either during the month when she worked in the dietary department or
thereafter.

Still,

her

reassignment

did

involve

“significantly

different

responsibilities,” Herrnreiter, 315 F.3d at 744; she was assigned to work in the
kitchen, rather than caring for patients as she had been hired and trained to do. A
reassignment can also constitute an adverse employment action where the new job is

11

“objectively inferior,” involving “significantly harsher working conditions than the
plaintiffs’ prior positions.” Tart v. Ill. Power Co., 366 F.3d 461, 473 (7th Cir. 2004).
Courts have often found temporary reassignments do not rise to the level of an
adverse employment action. In Collins v. Meike, a teacher’s temporary reassignment
to substituting for other teachers was not “significant” enough to qualify as an
adverse employment action. 52 Fed. Appx. 835, 837 (7th Cir. 2002). In Daulo v.
Commonwealth Edison, the plaintiff was not subjected to an adverse employment
action when he was temporarily transferred to another shift, during which he
performed the same duties as before but under closer supervision for retraining
purposes. 938 F. Supp. 1388, 1398 (7th Cir. 1996). “Temporarily assigning a minor
amount of extra work is not an adverse employment action.” Watson v. Potter, 23 Fed.
Appx. 560, 563 (7th Cir. 2001). Yet Plaintiff’s reassignment to the kitchen, while
temporary, was neither insignificant nor at all related to the job she had previously
performed. (Doc. 36 at 8). Plaintiff has satisfied the adverse-employment-action
element of her race-based discrimination claim. The remaining question is whether
Plaintiff has shown, by any evidence or method of proof, that her temporary demotion
was motivated by an intent to discriminate against Plaintiff because of her race.
Discriminatory intent may be proven by the offer of direct evidence (either an
“outright admission by the decisionmaker” or “a convincing mosaic of circumstantial
evidence”), or by the indirect method, in which the plaintiff establishes a prima facie
case as described above, then offers evidence that someone similarly situated (except
for being of a different race from the plaintiff) did not suffer the same adverse

12

treatment. Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 783–84 (7th
Cir. 2004). This creates a rebuttable presumption of discrimination, shifting to the
defendant the burden of “articulat[ing] some legitimate, nondiscriminatory reason”
the plaintiff was subjected to the adverse employment action while the comparator
was not. McDonnell Douglas, 411 U.S. at 802. In order to prevail, the plaintiff must
show this proffered justification is a mere pretext, devised to cover up the employer’s
actual, discriminatory motive. Id. at 804. “To expose the employer’s reason as forming
a mere pretext for discrimination, the plaintiff may show that a discriminatory reason
was more likely to have motivated the employer than the reason given, or that the
employer’s explanation is not credible.” Anderson v. Stauffer Chem. Co., 965 F.2d 397,
400 (7th Cir. 1992). “An inquiry into pretext requires that we evaluate the honesty of
the employer’s explanation, rather than its validity or reasonableness.” Hill v.
Tangherlini, 724 F.3d 965, 968 (7th Cir. 2013).
Plaintiff offers neither direct statements nor circumstantial evidence that
could indicate Defendant took race into account when meting out her and Smith’s
respective penalties. Nor does she introduce any valid comparators. “In general, a
plaintiff who believes another individual is similarly situated must at least show that
this comparator (1) dealt with the same supervisor, (2) was subject to the same
standards, and (3) engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish his conduct or the employer’s
treatment of him.” Orton-Bell v. Indiana, 759 F.3d 768, 777 (7th Cir. 2014).
Presumably, all employees at Fox are held to the same standard regarding workplace

13

violence and hostile altercations between coworkers, although there is no evidence
before the Court on this specific subject. The question of whether Smith’s and
Plaintiff’s conduct was similar is a disputed one. However, Plaintiff and Smith
worked under different supervisors (docs. 33-1 at 26, 33-2 at 11) and had different job
titles, which created a distinction (which Plaintiff does not dispute) in the way in
which they were disciplined.
Plaintiff argues that Smith, who is white, was treated more favorably because
she was allowed to continue her nursing duties after being disciplined for the incident
in question. (Doc. 36 at 3). This description distorts the record; she may have
remained in the nursing department, but her duties involved paperwork and phone
calls, not patient care. (Docs. 33-2 at 30, 33-3 at 30–31). Furthermore, Smith was
given a punishment that was more serious than Plaintiff’s overall, in that she was
suspended for two days, while Plaintiff was only given a reprimand. (Docs. 33 at 2,
33-3 at 30–31). Both were reassigned to alternate duties for roughly the same amount
of time. (Doc. 33-3 at 32). If Plaintiff suffered an adverse action Smith did not (having
to work in the kitchen), it is also true that Smith suffered an adverse action that
Plaintiff did not (a two-day suspension).
Plaintiff argues that even though Smith was given a harsher penalty on paper,
she was allowed to spend her reassignment time in relative comfort, working at a
desk instead of in the kitchen, where the work was “hard and sweaty.” (Doc. 33-1 at
36). The difficulty and unpleasantness of Plaintiff’s temporary assignment is enough
to characterize it as an adverse employment action, but even if the Court accepts that

14

it made Plaintiff’s punishment more severe than Smith’s, it does not suffice as
evidence that she was treated worse than Smith because of the difference in their
racial classifications. In their depositions, both Smith and Jackson stated that under
their respective collective-bargaining agreements, Registered Nurses who needed to
be reassigned away from patient care for any reason would be directed to perform
nursing tasks that could be done in the office, while Mental Health Technicians would
be reassigned to the dietary department. (Docs. 33-2 at 31, 33-3 at 31).
Neither party refers to the collective-bargaining agreement (or any other
reason Smith and Plaintiff might have been temporarily reassigned to perform
different types of duties) in its lists of facts, either disputed or undisputed, or in its
argument section. However, when considering a motion for summary judgment, a
court “may consider other materials in the record,” Fed. R. Civ. P. 56(c)(3), such as
Smith’s and Jackson’s statements in their depositions. Plaintiff’s only statement on
the subject is that, when asked if she was reassigned to the kitchen pursuant to her
collective-bargaining agreement, she replied, “I don’t know. I don’t think so.” (Doc.
33-1 at 34). Where it is Plaintiff’s burden to make out a prima facie case of racial
discrimination, the Court does not find this attestation of uncertainty sufficient to
establish a genuine dispute as to whether Smith, a licensed healthcare professional,
and Plaintiff, who did not hold a nursing license, were similarly situated. Smith is an
unfit comparator to Plaintiff, and this Court finds that no reasonable jury could
conclude that the only relevant difference between the two was race.

15

Plaintiff offers Smith as the only potential comparator; she does not cite any
white Mental Health Technician (or other employee working in a similar role) who
was not reassigned to kitchen duty or disciplined as harshly as Plaintiff after a verbal
spat with a superior. No disputed facts in this matter are material to Plaintiff’s claim
of race-based discrimination, and the undisputed facts do not support a prima facie
case as to that claim. Summary judgment is granted for Defendant on Count I.
III.

Hostile Work Environment
Plaintiff’s claim that Defendant maintained a racially hostile work

environment is based on her allegation that three of Defendant’s employees harassed,
micromanaged, argued with, or overworked Plaintiff, and that they did not treat
white employees in the same manner. (Docs. 16 at 7, 36 at 12). Additionally, Plaintiff
claims one of those coworkers verbalized a negative view of black women after
arguing with her about a work assignment. (Doc. 36 at 12).
A finding of a race-based hostile work environment is appropriate when the
plaintiff was subjected to harassment, racial in nature, that was “so severe or
pervasive that it altered the conditions of her employment.” McKenzie v. Milwaukee
Cty., 381 F.3d 619, 624 (2004). “Title VII is not a general code of workplace civility,
nor does it mandate ‘admirable behavior’ from employees.” Id. (quoting Haugerud v.
Amery Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001)). “An employer ‘is essentially
strictly liable if the employee’s supervisor created the hostile work environment.’ . . .
When the harassment was inflicted by a coworker, however, an employer is liable
only if it was negligent in discovering or remedying the harassment.” Mitchell v.
Plumbers & Steamfitters Local Union No. 157, No. 2:08-cv-0230, 2010 WL 3614292
16

(S.D. Ind. Sept. 7, 2010) (quoting Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036,
1043 (7th Cir. 2000)). “[T]he employer can avoid liability for its employees’
harassment if it takes prompt and appropriate corrective action reasonably likely to
prevent the harassment from recurring.” Williams, 361 F.3d at 1029 (citation
omitted).
The undisputed facts would not permit a reasonable jury to find that Plaintiff’s
coworkers’ conduct created a race-based hostile work environment. With respect to
her interactions with Smith and Hertz, the undisputed facts cannot support a
conclusion that their actions were race-based at all. There is no evidence that Smith’s
assault on Plaintiff (whether physical or purely verbal) was motivated by racial
animus. In fact, Smith admitted in her deposition that she was disciplined on a
subsequent occasion for an argument she engaged in with a white coworker. (Doc. 332 at 25). Plaintiff acknowledged Hertz was rude to other coworkers, not to her alone.5
While Defendant admits Plaintiff’s contention that Hertz was ruder to Plaintiff than
to anyone else and singled her out for harassment (such as micromanaging her
patient-care tasks and placing her last on the schedule to take breaks), there is no

In support of this undisputed fact (“Plaintiff also complained about Paula Hertz but
acknowledged that Paula was rude to everyone”), Defendant cites to a portion of
Plaintiff’s deposition transcript that contains no mention of Plaintiff’s impression
that Hertz was rude to all her coworkers. (Doc. 33 at 2). A statement to that effect
appears later in the transcript (doc. 33-1 at 61–62), and in the interest of the efficient
administration of justice, the Court will deem this fact undisputed and supported by
the record; however, Defendant is strenuously reminded of its duty, in appearing
before this Court, to comply with Federal Rule of Civil Procedure 56(c)(1) and Local
Rule 7.1(D)(1) by accurately citing to a portion or portions of the attached record that
support each assertion that a fact is either genuinely in dispute or not in dispute.
5

17

evidence that Hertz’s behavior was motivated by Plaintiff’s race. Plaintiff testified in
her deposition that she was not the only African-American employee who worked in
the same unit as Hertz and that Hertz did not treat those employees the way she
treated her. (Doc. 33-1 at 43–44, 60, 62). Hertz’s conduct is also comparable to other
kinds of workplace behavior that has been found not to violate Title VII. See
McKenzie, 381 F.3d at 624–25 (acting “standoffish” toward female coworkers and
using coarse language around women); Patton v. Ind. Pub. Sch. Bd., 276 F.3d 334,
339 (7th Cir. 2002) (acting arrogantly and failing to incorporate employee feedback).
Singling out an employee for disfavor, criticism, and rudeness is certainly not
desirable in the workplace, but without more, it is not race-based discrimination.
Plaintiff’s final example of racial harassment is Wilkinson’s insistence that she
care for a larger group of patients than she thought she should, followed by the antiblack comment she alleges Wilkinson made at the conclusion of their argument.
Plaintiff acknowledges mental health care technicians were often required to provide
care for more than one patient during a shift, but she says she believed Wilkinson
was asking her to attend to more patients than she should have at one time (and more
than a white Mental Health Technician was required to care for on the previous day).
(Docs. 36 at 2, 10, 36-2 at 7). Wilkinson’s account of the incident was that Plaintiff
insisted she care only for the one patient for whom she had previously been
responsible, even though she should have known employees with her job title could
be assigned additional patients. (Doc. 33 at 2). A verbal altercation ensued, and
Plaintiff called the RSS on duty to inquire whether she had to do as Wilkinson had

18

instructed. (Doc. 33-4 at 1). The RSS confirmed that she had to comply with
Wilkinson’s directives, and Plaintiff told Wilkinson she did not feel well and had been
exposed to COVID-19, and that she was going home. (Doc. 33-4 at 1–2). At that point,
according to Plaintiff, Wilkinson said that she did not like working with black women.
(Docs. 16 at 5, 36 at 10, 12).6
After Plaintiff filed an internal memo complaining about Wilkinson, Jackson
investigated the allegations by requesting a written statement from each coworker
and checking staffing levels on the day of the incident and the day before. (Doc. 33-1
at 51). She determined that the unit where Plaintiff was working on the morning in
question was shorter staffed that day than on the previous day, and that this
circumstance explained why Plaintiff had been assigned more patients than her
white counterpart. (Doc. 33-3 at 45). Wilkinson denied making the comment about
black women. (Doc. 33-3 at 48). Jackson stated that she did not know whether there
were any witnesses present who might have heard the remark and that Plaintiff did
not identify any potential witnesses for her to interview. (Doc. 33-3 at 48). No
disciplinary measures were taken towards either Plaintiff or Wilkinson as a result of
the episode. (Doc. 33-3 at 50).

Oddly, neither party lists Wilkinson’s statement as a disputed or undisputed fact.
Thus, Defendant has neither admitted nor disputed that she uttered the words in
question. The Court is also under no obligation to consider portions of the record to
which the parties have not cited. Fed. R. Civ. P. 56(c)(3). Acknowledging this, the
Court proceeds to inquire whether, even if the remark had been made, it could
constitute racial harassment giving rise to a hostile-work-environment action.
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The briefing and the record do not support the conclusion that Wilkinson told
Plaintiff to care for more patients because of her race. However, there can be no doubt
that a comment from a coworker that she hates working with people of the plaintiff’s
race is racial in nature and plainly implies a race-related motivation.
In considering whether racially harassing conduct is severe or pervasive, such
that it produces a hostile work environment, factors a court may consider “include
the severity of the allegedly discriminatory conduct, its frequency, whether it was
physically threatening or humiliating or merely offensive, and whether it
unreasonably interfered with the employee’s work performance.” Passananti v. Cook
Cty., 689 F.3d 655, 667 (7th Cir. 2012). To be actionable, isolated incidents of racial
harassment must be so severe that they “amount to discriminatory changes in the
terms or conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775,
778 (1998). In Drake v. Minnesota Mining & Manufacturing Co., the court granted
summary judgment to the defendant corporation, finding a single incident in which
the plaintiff’s coworker angrily expressed racial animus to him did not constitute
severe harassment. 134 F.3d 878, 885 (7th Cir. 1998). A supervisor’s isolated
comment to a worker of Thai descent that he should “go back East” was likewise not
enough to show harassment under Title VII. Ngeunjuntr v. Metropolitan Life Ins. Co.,
146 F.3d 464, 467 (7th Cir. 1998).
Like those remarks, Wilkinson’s words (as recounted by Plaintiff) were
subjectively and objectively offensive. However, they constituted an isolated incident
and were not coupled with physical contact or threats of force. Plaintiff alleges

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Wilkinson either muttered the remark under her breath as Plaintiff was leaving (doc.
33-1 at 20) or directed it to another nurse (doc. 36 at 12), rather than aiming it at
Plaintiff as a provocation or invective. (Doc. 33-1 at 20). The encounter with
Wilkinson may have affected Plaintiff’s ability to do her job in the short term, in that
she tendered her resignation on the same day, yet once she had “time to calm down,”
she decided to continue working at Fox. (Doc. 33-1 at 53). Although the Response
refers to this employee as “Supervisor Veronica Wilkinson” and mentions cases
finding a supervisor’s use of a “racial slur” more significant than a mere coworker’s
(doc. 36 at 12), Plaintiff does not cite to any portion of the record in support of the
assertion that Wilkinson was her supervisor.7

Frustratingly, neither the pleadings nor the summary-judgment briefing nor any
portion of the record appears to identify Plaintiff’s supervisor or supervisors. The
Complaint refers to “Josh Lynn Miles” (elsewhere spelled Jocelyn and Joshlyn Miles)
as Plaintiff’s supervisor (doc. 16 at 5); throughout the depositions, various individuals
with the title RSS (“Residential Shift Supervisor”) are also referred to as supervisors
to whom Plaintiff did or could complaint. (For example, RSS Yvonne Thweatt wrote
to Rochelle Jackson that Plaintiff had called her (Thweatt) to ask her about her work
assignment on December 3, 2021, and whether she had to follow Wilkinson’s orders.
(Doc. 33-4 at 1).) “[A]n employee is a ‘supervisor’ for purposes of vicarious liability
under Title VII if he or she is empowered by the employer to take tangible
employment action against the victim.” Vance v. Ball State University, 570 U.S. 421,
424 (2013). Although Plaintiff refers in her Response to “Supervisor Veronica
Wilkinson” (doc. 36 at 12), the only individuals who appear to have taken tangible
employment actions against Plaintiff in this case are Raymond Jackson, who
disciplined Plaintiff after the Smith incident, and Sybil Nash, who effectively
discharged her by refusing to let her rescind her resignation. This is far from
established, though, and the Court should not have to exhaustively comb the record
for evidence. However, it need not reach the question of whether Wilkinson was
Plaintiff’s supervisor, because without severe or pervasive race-based harassment,
the employer-liability element is not at issue.
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The Court finds Plaintiff cannot meet her burden of showing that Wilkinson’s
remark alone constituted severe racial harassment, and thus she has not established
a question for a jury on her claim of hostile work environment. Defendant’s Motion is
granted as to this count.
IV.

Retaliation
The briefing of Count III confronts the Court with a thorny procedural problem.

Both parties proceed as though this count alleges retaliation occurred only when
Defendant refused to let Plaintiff continue working at Fox, and both parties accept
the factual narrative that Plaintiff tendered her resignation on December 3, 2021,
then attempted to rescind it, and that her employment at Fox ended after Nash
decided not to accept that rescission. Yet these facts and the retaliation claim based
upon them appear nowhere in the Complaint or in Plaintiff’s EEOC charge. Instead,
both allege retaliation occurred only when Defendant disciplined Plaintiff after she
complained about Smith’s treatment of her on March 10, 2021—nine months before
the eventual termination of her employment.
Plaintiff’s arguments in response to Defendant’s Motion on this count thus
amount to an attempt to constructively amend her Complaint at the summaryjudgment stage. This is frowned upon, though not absolutely prohibited, in this
circuit. Schmees v. HCI.com, Inc. 77 F.4th 483, 485 (7th Cir. 2023) (“We hold that
district courts retain discretion to interpret new factual allegations or claims
presented in a plaintiff’s briefs as a constructive motion to amend.”). In the instant
case, it was Defendant who first derailed the litigation of Count III by responding in
its Motion to a claim Plaintiff never made in her Complaint, and so this Court is
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sympathetic to Plaintiff’s desire both to respond to the substance of Defendant’s
argument and to capitalize on a discovery process that had proven fruitful with
respect to Defendant’s internal communications as it weighed how to handle her
resignation and subsequent announcement that she had changed her mind and no
longer wished to leave Fox.
Yet, as explained above, the Court cannot allow Plaintiff to amend her
Complaint to add a claim she never made or factually supported in her EEOC charge,
and so it must disregard both parties’ arguments on Count III as unrelated to any
claim before the Court.
Plaintiff’s original claim under Count III, that Defendant impermissibly
retaliated against her by reassigning her after the Smith incident, must still be
addressed. Defendant has not presented any argument in favor of summary judgment
on this claim as it is currently articulated in the Complaint. However, the Court is
obligated under the summary-judgment standard to evaluate independently whether
any genuine dispute of material fact exists on this point and, if not, whether
Defendant prevails as a matter of law. Here, Plaintiff bears the burden of proving the
elements of a prima facie case that Defendant retaliated against her for protected
activity when it temporarily reassigned her to kitchen duties after its investigation
of the Smith incident. She does not do so.
“In order to make out a claim for retaliation, a plaintiff must demonstrate (1)
that he engaged in statutorily protected activity; (2) that his employer took a
materially adverse action against him; and (3) that the protected activity and the

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adverse action are causally connected.” Robinson v. Perales, 894 F.3d 818, 830 (7th
Cir. 2018). Statutorily protected activity includes “(1) filing a charge . . . or
participating in any manner in an investigation . . . under Title VII or other
employment statutes; or (2) opposing an unlawful employment practice.” Alley v.
Penguin Random House, 62 F.4th 358, 362 (7th Cir. 2023). A materially adverse
action “is one which might well have dissuaded a reasonable worker from engaging
in protected activity such as making or supporting a charge of discrimination.” Id. To
satisfy the causation element, the plaintiff must prove that the employer’s retaliatory
motive was the but-for cause of the adverse action. Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 360 (2013).
Plaintiff’s claim founders on the first element. She was reassigned the day after
her altercation with Smith (doc. 33-1 at 38) and before she filed either of her other
complaints about coworkers, and so her statements to her employer about the Smith
incident are the only activity the Court may consider in evaluating whether she
engaged in protected conduct for which Defendant may have retaliated against her.
To be protected activity under Title VII, a complaint “must indicate the
discrimination occurred because of sex, race, national origin, or some other protected
class.” Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Plaintiff
presents no evidence that her complaints about the March 10, 2021, incident alleged
that Smith discriminated against her on the basis of any protected category. By
failing to file a reply, Defendant has admitted Plaintiff’s statement that she
“complained of racial discrimination and Defendant received those complaints.” (Doc.

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36 at 3). However, this undisputed fact does not specify when and about whom the
complaints were made and could refer to the memos she later filed concerning Hertz
and Wilkinson, which did allege discrimination (Hertz) and racial discrimination and
animus (Wilkinson). (Docs. 33-3 at 35, 36-2 at 10).
There is also nothing to support the idea that Plaintiff was retaliated against
for participating in an investigation. The record reflects that Defendant investigated
the Smith incident as a possible instance of workplace violence (docs. 33-3 at 30, 362 at 2); neither Plaintiff nor Jackson referred to any investigation into the possibility
that Smith argued with or pushed Plaintiff because of the latter’s race.
It is thus unnecessary to reach the remainder of the elements and inquire
whether Plaintiff’s disciplinary reassignment was a materially adverse action, or
whether her complaint against Smith or her participation in an investigation of
workplace misconduct was the but-for cause of her one-month reassignment to the
Fox kitchen. Defendant’s Motion is granted as to Count III.
CONCLUSION
Defendant’s Motion for Summary Judgment (doc. 33) is GRANTED. All issues
having been disposed of, this case is TERMINATED.

SO ORDERED.
Entered this 3rd day of February 2024.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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