Zepeda v. Cook County, Illinois et al

Filing 93

MEMORANDUM Opinion and Order Signed by the Honorable Ruben Castillo on 11/1/13. Judicial staff mailed notice(gl, ) Modified on 11/1/2013 (gl, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ESTHER M. ZEPEDA,
Plaintiff,
v.
COOK COUNTY, ILLINOIS,
and CLERK OF THE CIRCUIT
COURT OF COOK COUNTY,
ILLINOIS,
Defendants.

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No. 11 C 1604
Chief Judge Ruben Castillo

MEMORANDUM OPINION AND ORDER
Esther M. Zepeda (“Plaintiff”) brings this action under Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et. seq., against Cook County and the Clerk of the Circuit Court of
Cook County, Illinois (collectively, “Defendants”), alleging national origin discrimination, age
discrimination, and retaliation. (R. 19, Am. Compl.) Presently before the Court is Defendants’
motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For
the reasons stated below, the Court grants Defendants’ motion.
RELEVANT FACTS 1
Plaintiff, a fifty-three-year-old Latin American female of Salvadorian descent, has been
employed by the Clerk of the Circuit Court of Cook County (the “Clerk” or “Clerk’s Office”)

1

The Court takes the undisputed facts from the parties’ Local Rule 56.1 statements of material
facts. (R. 71, Defs.’ Local Rule 56.1(a)(3) Statement of Material Facts and Supporting Exhibits
(“Defs.’ Rule 56.1 Facts”); R. 85, Pl.’s Resp. to Defs.’ Rule 56.1 Facts (“Pl.’s Rule 56.1 Resp.”);
R. 86, Pl.’s Local Rule 56.1(b)(3)(C) Statement of Undisputed Facts (“Pl.’s Rule 56.1 Facts”); R.
90, Defs.’ Reply to Pl.’s Rule 56.1 Facts (“Defs.’ Rule 56.1 Resp.”).)

since 2002. 2 (Pl.’s Rule 56.1 Resp. ¶ 1.) Plaintiff began her employment as a grade 9 clerk in
the Traffic Division of the Second Municipal District located in Skokie, Illinois, and was
transferred in 2004 to serve in the position of Cashier 2 in the Criminal Division, where she
currently remains. (Id. ¶¶ 5, 7.) In 2007, Plaintiff was promoted to a grade 10 position. (Id. ¶
8.)
Plaintiff has had a difficult relationship with some of her supervisors at the Clerk’s
Office. (Id. ¶¶ 12-13, 17-21.) Vicki Vasquez, a Latino-American female, supervised Plaintiff
when she worked in the Traffic Division and for some of the time she worked in the Criminal
Division. (Id. ¶ 6; R. 71-2, Ex. B, Pl.’s Dep. at 38:18-39:16.) Plaintiff felt uncomfortable
working with Vasquez; she found Vasquez’s personal questions to be disrespectful and her
questions about transactions Plaintiff performed to be accusatory. (Pl.’s Rule 56.1 Resp. ¶ 12.)
Plaintiff alleges that Vasquez once said to her: “why should I respect you when you are older
than me, when you are old.” (Id. ¶ 13.) On another occasion, Vasquez told Plaintiff that
Plaintiff was Spanish and she was American. (Id. ¶ 53.) Plaintiff also felt uncomfortable
working with John Chatz, another of her supervisors. (Id. ¶ 17.) Plaintiff felt disrespected by the
tone of voice Chatz used and the facial expressions he exhibited when he corrected her mistakes.
(Id. ¶ 17.) Plaintiff understood that Chatz, as her supervisor, was entitled to criticize her, but she
felt discriminated against when he accused her of things she did not do. (Id. ¶ 18.)

2

Defendants state in their Local Rule 56.1 Statement of Facts, filed on June 28, 2013, that
Plaintiff is fifty-nine years old, and Plaintiff admits as much. (Pl.’s Rule 56.1 Resp. ¶ 1.)
Plaintiff states in her amended complaint, filed on August 15, 2011, that she is fifty-one years
old. (R. 19, Am. Compl. ¶ 82.) Additionally, in her response to Defendants’ motion for
summary judgment, Plaintiff states that she was fifty-one years old at the time of filing her
complaint. (R. 84, Pl.’s Mem. at 1.) The Court will therefore assume that Plaintiff was fifty-one
years old on August 15, 2011, and that Defendants incorrectly recorded her age in their Local
Rule 56.1 Statement.
2

Denise Shine, a forty-four-year-old Caucasian female of German-Irish descent, is one of
Plaintiff’s current supervisors. (Id. ¶¶ 9-11.) Shine became the Criminal Manager for the
Second Municipal District in 2009, and she supervises thirty courtroom clerks and approximately
ten employees of the Clerk’s Office who work in the Second Municipal District. (Id. ¶ 11.)
Shine testified in her deposition that Plaintiff is “a very good cashier. She’s customer oriented.
She’s great with customers.” (Defs.’ Rule 56.1 Resp. ¶ 1.) Shine clarified that she was referring
to “external customers,” and that Plaintiff does do not well with “internal customers” such as coworkers and managers. (Id.) Shine stated that Plaintiff is difficult to work with because she does
not take direction well; she is easily flustered and frustrated. (Id.) Shine added that Plaintiff
follows directions, but “there’s chaos and there’s dishevelness [sic] and there’s argument at any
direction that she is given.” (Pl.’s Rule 56.1 Resp. ¶ 20; R. 71-3, Ex. C, Shine Dep. at 10:16-19.)
Plaintiff’s reaction towards management has been addressed on numerous occasions. (Pl.’s Rule
56.1 Resp. ¶ 20.) Shine stated that she could have disciplined Plaintiff on a weekly basis due to
the frequency of Plaintiff’s misconduct, but chose not to due to Plaintiff’s difficult demeanor.
(Id. ¶ 21.) Plaintiff disagreed with the manner in which her supervisors handled incidents where
she was alleged to have made a mistake or conducted herself inappropriately. (Id. ¶ 48.)
Plaintiff consistently disagreed with her supervisors’ version of incidents that occurred and
thought that other co-workers or third parties should have been questioned regarding their
version of a particular incident. (Id. ¶ 49.) Plaintiff has been disciplined on several occasions
and has received a one-day suspension for violating sections of the Workplace Violence Policy,
General Rules and Regulations, and Code of Ethics. 3 (Id. ¶¶ 47-51.)

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Defendants have provided an Affidavit from Robbin Perkins, Chief Human Resource Officer
for the Clerk, which details Plaintiff’s disciplinary history, along with copies of Plaintiff’s
disciplinary letters. (R. 71-5, Ex. E, Perkins Aff. ¶ 12; R. 71-9, Ex. E, Tab 4, Disciplinary
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A collective bargaining agreement (“CBA”) entered into between the Clerk of the Circuit
Court and the AFL-CIO Union establishes the bidding process for filling vacant positions within
the Clerk’s Office. (Id. ¶ 25; R. 71-6, Ex. E, Tab 1, Collective Bargaining Agreement.) Pursuant
to the CBA, all promotions to a primary, secondary, tertiary, or lateral vacancy are determined
by assessing the bidders’ skills and abilities as determined by evaluation scores, job-related
training and education, discipline history, and time actually performing the job, along with
demonstrated ability. (Pl.’s Rule 56.1 Resp. ¶ 26.) Plaintiff bid on positions that she assumed
she was qualified for based on her seniority, knowledge, and skills. (Id. ¶ 22.) Sometime in
2008 or 2009, Plaintiff made an inquiry as to the reason she had not been promoted to vacant
positions. (Id. ¶ 24.) She received in response an inner-office memorandum from Chief Deputy
Diane Newman that explained the primary, secondary, tertiary, and lateral bid process. (Id.)
Plaintiff does not know how many employees bid for open positions or what specific criteria
were used to award the bids, but she nevertheless took issue with the awarding of vacant
positions to Luz Santiago, Izza Garcia, and Danuta Bogdan because she believed they had less
seniority than she did. (Id. ¶¶ 23, 27.) Plaintiff claims she had more experience than Santiago,
Garcia, and Bogdan because she had worked in both the Traffic Division and the Criminal
Division. (Id. ¶ 28.) Plaintiff has no knowledge, however, of these individuals’ hire dates, prior
work experience within the Clerk’s Office, disciplinary history, or individual evaluations. (Id. ¶
27.) Santiago is forty-four years old and believed by Plaintiff to be Puerto Rican; Garcia is forty-

Letters.) Plaintiff received a one-day unpaid suspension on December 10, 2008 for violating
sections of the Workplace Violence Policy, General Rules and Regulations, and Code of Ethics.
(R. 71-9, Ex. E, Tab 4, Disciplinary Letters.) Plaintiff also received written warnings on June
18, 2012 for verbal abuse of a manager, on September 22, 2011 for violations of the Clerk’s
Office General Rules and Regulations, Section 4.1.12 and the Code of Ethics, Sections 1A and
1B, and on March 4, 2009 and August 4, 2008 for insubordination, including the failure to follow
the instructions of a supervisor. (Id.)
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two years old and believed by Plaintiff to be Mexican; and Bogdan is sixty-five years old and
believed by Plaintiff to be Polish. (Id. ¶¶ 27-31.)
Employees are cross-trained when there is staff available to train the individual and cover
the needs of the individual’s office while he or she is being trained. (Id. ¶ 37.) An employee
does not need to complete cross-training to be awarded a vacant position. (Id. ¶ 34.) Employees
seeking cross-training submit a written request to Amy Przybylo, the Chief Deputy Clerk of the
Second Municipal District. (Id. ¶¶ 16, 36.) Przybylo is a sixty-two-year-old Caucasian female.
(Id. ¶ 15.) Przybylo alleges that written requests for cross-training are honored on a first-come,
first-serve basis according to a logbook she maintains. (Id. at ¶ 36.) Plaintiff denies that her
written requests were honored on a first-come, first-serve basis. (Id.) Plaintiff alleges that she
had to request cross-training on multiple occasions to receive such training, although she has not
provided any evidence of her requests. (Defs.’ Rule 56.1 Resp. ¶ 5.) Plaintiff was cross-trained
on two separate occasions in 2009 and 2011. (Pl.’s Rule 56.1 Resp. ¶ 35.) In 2009, Plaintiff was
trained in a Traffic Misdemeanor Courtroom; in 2011, Plaintiff was trained in a Felony
Courtroom. (Id.) Plaintiff’s Traffic Misdemeanor Courtroom training began in October 2009
and then was interrupted near the end of 2009 after two individuals were promoted to courtroom
clerk positions. (Id. ¶ 39; R. 19, Am. Compl. ¶¶ 11-12.) Darshna Patel, a fifty-five-year-old
Indian female, was one of the individuals promoted to that position. (Pl.’s Rule 56.1 Resp. ¶¶
32, 39; R. 84, Pl.’s Mem. at 2.) Because Plaintiff had not been awarded a position and was
merely cross-training, her training was placed on hold to allow Rose Schwartz, the Court Clerk
Trainer, to train individuals who were promoted. (Pl.’s Rule 56.1 Resp. ¶¶ 39, 42.) Plaintiff’s
cross-training resumed in June 2011 and re-started from the beginning due to the amount of time
that had lapsed as a result of the interruption. (Id. ¶ 40; R. 19, Am. Compl. ¶ 14.) Schwartz

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maintained cross-training status reports pertaining to Plaintiff’s cross-training progress, and
Przybylo reviewed the daily reports. (Pl.’s Rule 56.1 Resp. ¶¶ 42-43.) During the course of
Plaintiff’s cross-training, Shine cross-trained Plaintiff on one occasion and observed her to lack
the basic knowledge required of a courtroom clerk. (Id. ¶ 45.) Shine discussed Plaintiff’s crosstraining with Schwartz, addressing her concerns regarding Plaintiff’s inability to retain
information and difficulties listening and multi-tasking. (Id. ¶ 44.) Plaintiff alleges that she was
rebuked by Schwartz in late 2009 for speaking Spanish with Spanish-speaking persons attending
court proceedings during her courtroom clerk training session. (Defs.’ Rule 56.1 Resp. ¶ 2.)
Since Shine’s assignment to Criminal Manager, Plaintiff has been the only employee to receive
cross-training. (Pl.’s Rule 56.1 Resp. ¶ 46.)
Plaintiff alleges a difference between the manner in which she is treated and that of other
people; Plaintiff believes she is treated worse than others. (Id. ¶ 52.) Plaintiff also believes that
she was retaliated against when accusations were made regarding her work performance. (Id. ¶
54.) Plaintiff filed a charge of discrimination with the Illinois Department of Human Rights
(“IDHR”) and the Equal Employment Opportunity Commission (“EEOC”) on July 24, 2009
alleging national origin discrimination, age discrimination, and retaliation; she attached a copy of
this charge as an exhibit to her complaint. (R. 19-2, Ex. 2, IDHR & EEOC Charge at 1.) The
EEOC issued Plaintiff a right-to-sue letter on December 7, 2010. (R. 19-1, Ex. 1, Right-To-Sue
Letter.) Shine had no knowledge that Plaintiff had filed a lawsuit until the fact-finding
conference was held by the Illinois Department of Human Rights. (Pl.’s Rule 56.1 Resp. ¶ 57.)
Plaintiff remains employed by the Clerk’s Office as a Cashier 2, and her responsibilities
and duties have remained the same since filing this suit. (Id. ¶ 58.)

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PROCEDURAL HISTORY
Plaintiff initiated this action on March 7, 2011. (R. 1, Compl.) On July 11, 2011,
Defendants filed a motion to dismiss Plaintiff’s complaint. (R. 16, Defs.’ Mot. Dismiss.) On
July 14, 2011, the Court granted Defendants’ motion to dismiss without prejudice and gave
Plaintiff until August 15, 2011 to file an amended complaint. (R. 18, Min. Entry.) Plaintiff filed
her three-count amended complaint on August 15, 2011. (R. 19, Am. Compl.) In Counts I and
II, Plaintiff alleges race discrimination and retaliation in violation of Title VII. (Id. ¶¶ 1-55.) In
Count III, Plaintiff alleges age discrimination in violation of the ADEA. (Id. ¶¶ 56-85.)
On August 22, 2011, Defendants filed a second motion to dismiss, contending that
Plaintiff’s claims were time-barred. (R. 21, Defs.’ Second Mot. Dismiss.) Although Plaintiff
had initially filed suit within 90 days of receiving her right-to-sue letter, as required by Title VII
and the ADEA, Defendants argued that the Court’s dismissal of her claims without prejudice
effectively “wiped out” the tolling effect of her filing, and her amended complaint was thus timebarred. (Id.) Defendants also argued that Plaintiff’s amended complaint should be dismissed for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Id. at 2-3.) On January
17, 2012, the Court concluded that Plaintiff’s claims were time-barred and granted Defendants’
motion to dismiss. (R. 31, Order.)
Plaintiff filed a motion to alter or amend the Court’s January 17, 2012 Order pursuant to
Federal Rule of Civil Procedure 59(e) on January 28, 2012, (R. 33, Pl.’s Rule 59(e) Mot.), and
amended the motion on January 30, 2012. (R. 36, Pl.’s Am. Rule 59(e) Mot.) On September 11,
2012, the Court granted Plaintiff’s motion to alter or amend its January 17, 2012 Order. (R. 47,
Order.) The Court concluded that although its original ruling regarding the timeliness of
Plaintiff’s claims had not been in error, the doctrine of “unique circumstances” applied in this

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case. (Id. at 6-9.) The Court thus reconsidered its ruling on Defendants’ motion to dismiss and
declined to dismiss Plaintiff’s claims as time-barred. (Id.) The Court also declined to dismiss
Plaintiff’s claims of national origin discrimination, age discrimination, and retaliation for failure
to state a claim under Rule 12(b)(6). (Id. at 9-16.)
Defendants moved for summary judgment on June 28, 2013. (R. 70, Defs.’ Mot. Summ.
J.) Defendants argue that they are entitled to judgment as a matter of law because Plaintiff
cannot establish: (1) her national origin discrimination claim using either the direct or indirect
methods of proof; (2) her retaliation claim, because she cannot prove that she suffered an adverse
employment action by the Clerk’s Office; and (3) her ADEA claim, because she has not
identified a “similarly situated” employee or established “but for” causation. (R. 72, Defs.’
Mem. at 3-12.) In response to Defendants’ motion, Plaintiff contends that Defendant is not
entitled to summary judgment because: (1) Plaintiff has proved through both the direct and
indirect methods that Defendant discriminated against her based on her national origin; (2)
Plaintiff has proved that she was qualified for a promotion and suffered an adverse employment
action by not receiving one; and (3) Plaintiff has proved that younger co-workers who were
directly comparable to her were promoted instead of her. (R. 84, Pl.’s Mem. at 3-8.) Thus,
Plaintiff contends that there are genuine issues of material fact in dispute and that judgment as a
matter of law cannot be entered in Defendants’ favor.
LEGAL STANDARD
Summary judgment is appropriate when the record shows that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.
R. Civ. P. 56(a). A genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists,
the Court must view the evidence and draw all reasonable inferences in favor of the party
opposing the motion. Id. at 255; Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704
(7th Cir. 2011). The moving party has the initial burden of demonstrating that it is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Wheeler v.
Lawson, 539 F.3d 629, 634 (7th Cir. 2008). The moving party “can prevail just by showing that
the other party has no evidence on an issue on which that party has the burden of proof.”
Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir. 1993).
Once the moving party has met this burden, the nonmoving party must “come forward
with specific facts demonstrating that there is a genuine issue for trial.” Wheeler, 539 F.3d at
634. “The existence of a mere scintilla of evidence, however, is insufficient to fulfill this
requirement. The nonmoving party must show that there is evidence upon which a jury
reasonably could find for the plaintiff.” Id. The nonmoving party may not rely on mere
conclusions or allegations to create a genuinely disputed issue of material fact. Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003). Instead, the
nonmoving party “must make a showing sufficient to establish any essential element of her cause
of action for which she will bear the burden of persuasion at trial.” Smith ex rel. Smith v. Severn,
129 F.3d 419, 427 (7th Cir. 1997); see also Celotex Corp., 477 U.S. at 322-23. Weighing
evidence and making credibility decisions are jury functions, and it is not appropriate for a judge
to assume those functions when ruling on a motion for summary judgment. Anderson, 477 U.S.
at 255. Accordingly, the Court “appl[ies] the summary judgment standard with special scrutiny
to employment discrimination cases, which often turn on issues of intent and credibility.”
Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002).

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ANALYSIS
I.

Plaintiff’s National Origin Discrimination Claim (Count I)
In Count I, Plaintiff alleges that she was discriminated against based on her Latin

American national origin in violation of Title VII when she was denied cross-training and
promotion opportunities and was subjected to verbal abuse and harassment. (R. 19, Am. Compl.
¶¶ 22-23.) Title VII makes it unlawful to discriminate against an employee because of her race
or national origin. 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for
an employer to . . . discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race . . . or national
origin.”). A plaintiff may prove discrimination under Title VII either directly or indirectly,
through the burden-shifting approach first established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Brewer v. Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007).
Plaintiff contends that she meets the requirements of both methods of proof.
A.

Whether Plaintiff has proved national origin discrimination through the
direct method

To prove discrimination through the direct method “essentially requires an admission by
the decision-maker that his actions were based on the prohibited animus.” Jordan v. City of
Gary, Ind., 396 F.3d 825, 832 (7th Cir. 2005) (quoting Radue v. Kimberly-Clark Corp., 219 F.3d
612, 616 (7th Cir. 2000)). Such admissions are rare, however, and a plaintiff may also “prevail
under the direct method of proof by constructing a ‘convincing mosaic’ of circumstantial
evidence that ‘allows a jury to infer intentional discrimination by the decision-maker.’” Rhodes
v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004) (quoting Troupe v. May Dep’t Stores
Co., 20 F.3d 734, 737 (7th Cir. 1994)). Nonetheless, under the direct method, circumstantial

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evidence “must point directly to a discriminatory reason for the employer’s action.” Id. (quoting
Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)).
Plaintiff contends that she has presented a mosaic of circumstantial evidence from which
a fact-finder could infer intentional discrimination based on her national origin. (R. 84, Pl.’s
Mem. at 4.) Specifically, she points to the following circumstantial evidence: (1) Vasquez told
Plaintiff she was Spanish and that Vasquez herself was American; (2) Schwartz rebuked Plaintiff
in late 2009 for speaking Spanish with Spanish-speaking persons attending court proceedings
during her training session; and (3) Chatz rebuked Plaintiff at some time in 2006 or 2007 for
speaking Spanish to Spanish-speaking persons seeking the services of the Clerk’s Office. (Id.)
Plaintiff argues that these three events, taken together with the hostility displayed by her
supervisors, form a convincing mosaic of circumstantial evidence. (R. 84, Pl.’s Mem. at 4.)
Plaintiff has provided no specific evidence of the “hostility” she claims to have experienced,
however, and she admits that the incident involving Chatz occurred before the time period in
question in this case. 4 (Id.) Hence, Plaintiff has provided only two pieces of circumstantial
evidence to construct her “convincing mosaic,” and neither piece sufficiently establishes a
discriminatory reason for Defendants’ failure to promote her. See Rhodes, 359 F.3d at 504. No
reasonable jury could conclude from the evidence provided that Plaintiff’s supervisors
intentionally discriminated against her based on her national origin. See Dass v. Chi. Bd. of
Educ., 657 F.3d 1060, 1073 (7th Cir. 2012) (finding the employer’s alleged discriminatory

4

Plaintiff filed her EEOC charge on July 24, 2009. “In Illinois, a complainant must file a
charge with the EEOC within 300 days of the alleged discriminatory act and failure to do so
renders the charge untimely.” Filipovic v. K & R Exp. Systems, Inc., 176 F.3d 390, 396 (7th Cir.
1999). Thus, any alleged discriminatory acts that occurred before September 27, 2008, i.e. 300
days prior to the date of her EEOC filing, are time-barred. Because the alleged incident
involving Chatz occurred sometime in 2006 or 2007, it is time-barred and the court will not
consider it as evidence of discrimination.
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comment “not contemporaneous to or casually related to” the plaintiff’s discharge and that “no
rational juror could find that the nonrenewal was because of [plaintiff’s] national origin”); Davis
v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 672-73 (7th Cir. 2011) (finding that
occasional incidents that demonstrated that the employer was “boorish and tactless” were
insufficient to establish that the employer terminated the plaintiff because of his race). Thus,
Plaintiff has failed to establish her national origin discrimination claim through the direct method
of proof.
B.

Whether Plaintiff has proved national origin discrimination through the
indirect method

A plaintiff that has failed to establish discriminatory intent under the direct method may
nonetheless prevail under the indirect, burden-shifting framework articulated in McDonnell
Douglas. To succeed under the indirect method of proof, a plaintiff must first establish a prima
facie case of national origin discrimination. McDonnell Douglas, 411 U.S. at 802. To establish
a prima facie case of national origin discrimination in a failure to promote context, a plaintiff
must demonstrate that: “(1) she is a member of a protected group; (2) she was qualified for the
position sought; (3) she was rejected for the position; and (4) the employee promoted was not a
member of the protected group and was not better qualified than the plaintiff.” 5 Johnson v.

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This test is specific to establishing a prima facie case in a failure to promote context. The
general test is the following: a plaintiff must demonstrate that (1) she is a member of a protected
class; (2) she was meeting the defendants’ legitimate performance expectations; (3) she suffered
an adverse employment action; and (4) the defendants treated similarly situated employees
outside of the protected class more favorably. Fane v. Locke Reynolds, LLP, 480 F.3d 534, 538
(7th Cir. 2007). In her complaint, Plaintiff alleges that she was discriminated against by being
denied promotions and cross-training opportunities and by suffering verbal abuse and
harassment. (R. 19, Am. Compl. ¶ 22.) Plaintiff’s response to Defendants’ motion for summary
judgment, however, only addresses her denial of promotion opportunities and does not re-assert
her denial of cross-training opportunities and verbal abuse and harassment allegations. (R. 84,
Pl.’s Mem. at 3-6.) The Court will therefore consider only the alleged denials of Plaintiff’s bids
for promotions in analyzing her national origin discrimination claim. See Palmer v. Marion
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Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001). Under the McDonnell Douglas framework,
the plaintiff’s establishment of a prima facie case creates a rebuttable presumption of
employment discrimination, and the burden of production shifts to the employer “to articulate
some legitimate, nondiscriminatory reason” for its actions. Hong v. Children’s Mem’l Hosp.,
993 F.2d 1257, 1261 (7th Cir. 1993) (quoting McDonnell Douglas, 411 U.S. at 802). If the
employer satisfies that burden, the plaintiff must show that the articulated reasons were
pretextual. Id.
Defendants first argue that Plaintiff has failed to make out a prima facie case of national
origin discrimination because she has not established that she possessed the requisite
qualifications for the promotion to Courtroom Clerk I. (R. 72, Defs.’ Mem. at 5.) Plaintiff relies
on Shine’s testimony that Plaintiff is a “very good cashier” and “great with customers” to prove
that she was qualified for the position. (R. 84, Pl.’s Mem. at 5-6.) Plaintiff’s skills as a cashier,
however, do not necessarily indicate that Plaintiff is qualified for the Courtroom Clerk I position.
Other than Shine’s testimony and Plaintiff’s self-evaluation of her work, Plaintiff has provided
no evidence that she has the necessary skills to satisfactorily perform as a courtroom clerk.
Defendants, on the other hand, have provided evidence that undermine Plaintiff’s alleged
qualifications. Defendants’ evidence demonstrates Plaintiff’s history of disciplinary issues,
which includes a number of verbal and written warnings and a one-day suspension. (R. 71-5, Ex.
E, Perkins Aff. ¶ 12; R. 71-9, Ex. E, Tab 4, Pl.’s Disciplinary Docs.) In addition, Defendants

Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003) (deeming the plaintiff’s negligence claim abandoned
because he failed to delineate it in his brief in opposition to summary judgment); Laborers’ Int’l
Union v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (stating that arguments not presented to
the district court in response to summary judgment motions are waived); Oak Brook Hotel Co. v.
Teachers Ins. & Annuity Ass’n of Am., 846 F. Supp. 634, 641 (N.D. Ill. 1994) (finding the
plaintiff’s failure to defend a particular claim in response to the defendant’s motion for summary
judgment constituted abandonment of the claim).
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have provided evaluations of Plaintiff by her supervisors, which indicate that she is “incapable of
following directions, unable to handle difficult situations, deficient in multi-tasking and
uncooperative with management.” (R. 72, Defs.’ Mem. at 5; R. 71-7, Ex. E, Tab 2, Pl.’s Bid
Docs; R. 71-12, Ex. G, Pl.’s Eval.) Plaintiff’s cross-training status reports also document her
inability to retain information covered during her training. (R. 71-10, Ex. E, Tab 5, Pl.’s CrossTraining Reports.) Finally, the portion of Shine’s testimony that Plaintiff relies on is incomplete;
Shine also testified that Plaintiff was difficult to work with and argued when she was given
directions. (R. 89, Defs.’ Reply at 4; R. 71, Ex. C, Shine Dep. at 10:16-19.) Plaintiff has not met
her burden of showing that she was qualified for a courtroom clerk position, and she has
therefore failed to establish the second element of her prima facie case.
Defendants also argue that Plaintiff has failed to establish the fourth element of her prima
facie case—she has failed to show that a member of the non-protected group who was not better
qualified was promoted instead. (R. 72, Defs.’ Mem. at 7.) Defendants note that two of the
individuals Plaintiff believes were unfairly promoted over her, Garcia and Santiago, are also
Latino-American women and thus belong to the same protected group as Plaintiff. (Id.) Plaintiff
admits that she has no knowledge of the hire dates, prior work experience within the Clerk’s
Office, disciplinary history, or individual evaluations of the individuals who were promoted
instead of her. (Pl.’s Rule. 56.1 Resp. ¶ 27.) Plaintiff’s only response to Defendants’ argument
that she has failed to identify any similarly situated individuals outside the protected group who
were treated more favorably is her contention that Defendants have failed to detail superior
qualifications of the clerks who received promotions over Plaintiff. (R. 84, Pl.’s Mem. at 6.)
Plaintiff’s argument is misguided because she carries the burden to present evidence that a
“similarly situated” individual outside the protected group was treated more favorably. Ballance

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v. City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005). Plaintiff has not provided any evidence
to show that any of the employees who were promoted to courtroom clerk positions were
similarly situated, nor has she provided any evidence that proves that they were not as qualified
for the promotion as she was. Because Plaintiff has failed to prove the second and fourth prongs
of the McDonnell Douglas framework, she has not established a prima facie case of national
origin discrimination. The Court therefore does not need to address whether or not Defendants’
articulated reasons for its actions were pretextual. Accordingly, Plaintiff’s national origin
discrimination claim fails as a matter of law.
II.

Plaintiff’s Retaliation Claim (Count II)
In Count II, Plaintiff alleges that Defendants denied Plaintiff’s bids for cross-training and

promotion opportunities and verbally abused and harassed her wholly or partially in retaliation
for her filing grievances and charges with the IDHR and the EEOC. (R. 19, Am. Compl. ¶ 54.)
Title VII forbids an employer from discriminating against an employee who has “opposed any
practice” made unlawful by Title VII or who “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding or hearing under [Title VII].” 42
U.S.C. § 2000e-3(a). The purpose of this anti-retaliation provision is to “prevent employer
interference with ‘unfettered access’ to Title VII’s remedial mechanisms . . . by prohibiting
employer actions that are likely ‘to deter victims of discrimination from complaining to the
EEOC,’ the courts, and their employers.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). As with
discrimination claims, a plaintiff may establish a retaliation claim by way of either the direct or
indirect method. Roney v. Ill. Dep’t of Transp., 474 F.3d 455, 459 (7th Cir. 2007). Here, it is
unclear which method Plaintiff seeks to proceed under. Defendants analyze Plaintiff’s retaliation

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claim under the direct method of proof, (R. 71, Defs.’ Mem. at 9), and Plaintiff, in turn, responds
to Defendants’ arguments without correcting that assumption. (R. 84, Pl.’s Mem. at 7-8.)
Accordingly, the Court assumes that Plaintiff intends to prove her retaliation claim by way of the
direct method.
To prevail using the direct method of proof, Plaintiff must show: (1) that she engaged in
an activity protected by Title VII; (2) that she suffered a materially adverse action by her
employer; and (3) a causal connection between the two. Silverman v. Bd. of Educ. of Chi., 637
F.3d 729, 740 (7th Cir. 2011). Defendants argue that Plaintiff’s retaliation claim fails as a matter
of law because she has failed to prove that she suffered a materially adverse action. (R. 72,
Defs.’ Mem. at 9.) Additionally, Defendants assert that even if the allegedly retaliatory acts
were materially adverse, Plaintiff has not demonstrated a causal link between those actions and
the alleged discrimination. (R. 89, Defs.’ Reply at 11-12.)
A.

Whether Plaintiff has suffered a materially adverse employment action

“Materially adverse actions” are those that might dissuade a reasonable employee from
making a charge of discrimination. Burlington, 548 U.S. at 68 (quoting Rochon v. Gonzales, 438
F.3d 1211, 1219 (D.C. Cir. 2006)). The adverse action must be “material” because “it is
important to separate significant from trivial harms.” Id. Whether an act is material will “often
depend upon the particular circumstances. Context matters.” Id. at 69. Accordingly, in
assessing the materiality of any given act of alleged retaliation, the Court examines “the
‘constellation of surrounding circumstances, expectations, and relationships.’” Chapin v. FortRohr Motors, Inc., 621 F.3d 673, 678 (7th Cir. 2010) (quoting Burlington, 548 U.S. at 69).
Plaintiff alleges that she was subjected to three materially adverse actions by Defendants:
(1) her denied requests for cross-training; (2) her denied bids for promotion opportunities; and

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(3) verbal abuse and harassment. (R. 19, Pl.’s Am. Compl. ¶ 54.) Plaintiff first contends that her
denied requests for cross-training constitute a materially adverse action; however, Plaintiff has
failed to provide any evidence other than her EEOC charge to support the allegation that her
requests for cross-training were denied. (See R. 19-2, Ex. 2, IDHR & EEOC Charge at 4.) The
evidence of record demonstrates that Plaintiff was in fact cross-trained on two occasions, one in
2009 and one in 2011. (R. 85, Pl.’s Rule 56.1 Resp. ¶ 35.) Plaintiff does not provide evidence
demonstrating that she requested any cross-training in addition to the training she received.
Therefore, there is no evidence that allows the Court to conclude that any requests Plaintiff made
for cross-training were denied or that any such denials constituted materially adverse
employment actions.
Plaintiff next contends that she suffered a materially adverse action when her bids for
promotion opportunities were denied. (R. 19, Am. Compl. ¶ 54.) Denial of a promotion is a
materially adverse action. Stephens v. Erickson, 569 F.3d 779, 787 (7th Cir. 2009).
Nevertheless, as discussed in detail above, Plaintiff has failed to prove that she was qualified for
the promotion she sought. Thus, Defendants’ denials of her bids for promotions cannot
constitute an adverse employment action. See Dandy v. United Parcel Serv., Inc., 388 F. 3d 263,
275 (7th Cir. 2004) (holding that the plaintiff had “not proven that she was qualified for a
promotion; therefore, her promotion denial [did] not constitute an adverse employment action”).
Finally, although Plaintiff alleged in her complaint that she was subjected to verbal abuse
and harassment, she failed to provide any evidence of such actions. Thus, the Court cannot
conclude that Plaintiff suffered materially adverse actions in the form of verbal abuse and
harassment.

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Even under the indirect method of proof, Plaintiff must still prove that she suffered an
adverse employment action. Silverman, 637 F.3d at 742 (“To establish a prima facie case of
retaliation under the indirect method, [plaintiff] must demonstrate two of the same elements
required by the direct method: first, that she engaged in a statutorily protected activity, and,
second, that she suffered an adverse employment action.”) Plaintiff has failed to prove that she
suffered any materially adverse employment actions, as she must to establish her retaliation
claim under Title VII. Id. at 740-42. Accordingly, Plaintiff’s retaliation claim fails as a matter
of law.
III.

Plaintiff’s Age Discrimination Claim (Count III)
In Count III, Plaintiff alleges that she was discriminated against on the basis of her age in

violation of the ADEA when she was denied training and promotion opportunities and subjected
to verbal abuse and harassment. (R. 19, Am. Compl. ¶¶ 83-84.) The ADEA makes it illegal for
an employer to “discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1) (2008). Defendants argue that Plaintiff’s age discrimination claim is time-barred under
the ADEA and that Plaintiff has failed to establish a prima facie case of age discrimination. (R.
72, Defs.’ Mem. at 10-14.)
A.

Whether Plaintiff’s ADEA claim is time-barred

A plaintiff seeking relief under the ADEA may sue only if she files a charge of
discrimination with the EEOC within 300 days of the alleged discriminatory act. Flannery v.
Recording Indus. Ass’n of Am., 354 F.3d 632, 637 (7th Cir. 2004). Defendants argue that
Plaintiff’s ADEA claim is time-barred because Plaintiff did not file a complaint with the EEOC
until almost three years after the alleged discrimination occurred. (R. 72, Defs.’ Mem. at 13.)

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Plaintiff filed her EEOC charge on July 24, 2009. (R. 19-2, Ex. 2, IDHR & EEOC Charge at 1.)
In it, Plaintiff alleged that she had been regularly harassed and denied cross-training and
promotion opportunities because of her age. (Id. at 5-6.) Plaintiff failed to provide any dates of
these alleged discriminatory acts and instead simply indicated that they occurred regularly and
consistently. (Id.) Any alleged discriminatory acts that occurred more than 300 days before her
EEOC filling are time-barred. See Filipovic v. K & R Exp. Systems, Inc., 176 F.3d 390, 396 (7th
Cir. 1999) (declining to consider any discriminatory acts that occurred prior to the 300-day
period unless plaintiff could show that those acts “were ‘related closely enough’ to the acts
occurring within the established time frame ‘to be considered one ongoing violation’”) (quoting
Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir. 1992)). Thus, the Court will not
consider any alleged discriminatory acts that occurred before September 27, 2008, i.e. 300 days
prior to the date of her EEOC filing.
B.

Whether Plaintiff has proved age discrimination through the direct method

To prevail on her claim under the ADEA, a plaintiff “must prove, by a preponderance of
the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). A plaintiff may prove age
discrimination under the ADEA using the same direct or indirect methods of proof that are used
to prove discrimination under Title VII. Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008).
Under the direct method, a plaintiff must introduce direct or circumstantial evidence that raises a
genuine issue as to whether there was a discriminatory reason for the adverse employment
action. Id. at 671-72 (quoting Burks v. Wisc. Dep’t of Transp., 464 F.3d 744, 751 n.3 (7th Cir.
2006)). The only piece of evidence Plaintiff provides that directly supports her age
discrimination claim is her testimony that Vasquez told her during one of their conversations,

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“why should I respect you when you are older than me, when you are old.” (R. 85, Pl.’s Rule
56.1 Resp. ¶ 13.) This appears to be the comment Defendants rely on for their time-barred
argument, however, it is unclear from the record when Vasquez made this statement, so the
Court cannot determine that this piece of evidence is barred by the 300-day ADEA time limit.
Nevertheless, this statement, standing alone, is not enough to create a triable issue of fact. See
Merillat v. Metal Spinners, Inc., 470 F.3d 685, 694 (7th Cir. 2006) (Unless the timing or
circumstances of remarks support a discriminatory inference, “isolated comments that are no
more than ‘stray remarks’ in the workplace are insufficient to establish that a particular decision
was motivated by discriminatory animus.”) The Court therefore must determine whether
Plaintiff has established her age discrimination claim through the indirect method of proof.
C.

Whether Plaintiff has proved age discrimination through the indirect method

The McDonnell Douglas burden-shifting framework applies to ADEA claims as it does to
Title VII claims. Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006). Plaintiff
must first establish a prima facie case of discrimination by demonstrating that: (1) she is a
member of a protected group; (2) she applied for and was qualified for the position sought; (3)
she was rejected for that position; and (4) Defendants instead promoted someone younger who
was similarly situated to Plaintiff. 6 Grayson v. City of Chi., 317 F.3d 745, 748 (7th Cir. 2003).
As with Title VII claims, if Plaintiff successfully establishes a prima facie case of age
discrimination, the burden shifts to Defendants to offer a permissible, nondiscriminatory reason
6

This test is specific to establishing a prima facie case in a failure to promote context. In her
complaint, Plaintiff also alleges that she was discriminated against on the basis of her age by
being denied cross-training opportunities and being subjected to verbal abuse and harassment.
(R. 19, Am. Compl. ¶ 83.) In Plaintiff’s response to Defendants’ motion for summary judgment,
however, she only argues that she suffered age discrimination when she was denied promotion
opportunities. (R. 84, Pl.’s Mem. at 6-7.) The Court thus considers only the alleged denials of
Plaintiff’s bids for promotions in analyzing her ADEA claim. See Palmer, 327 F.3d at 597-98;
Laborers’ Int’l Union, 197 F.3d at 1197; Oak Brook Hotel, 846 F. Supp. at 641.
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for the adverse employment action. Id. If Defendants meet this burden, the burden again shifts
back to Plaintiff to show that Defendants’ purported reasons for the adverse action are pretextual.
Id.
Defendants argue that Plaintiff cannot make out a prima facie case of age discrimination
because she does not satisfy the fourth prong—she fails to establish that the younger employees
who were promoted were similarly situated to her. (R. 72, Defs.’ Mem. at 11.) To determine
whether two employees are similarly situated, the Court examines all the relevant factors,
including their job descriptions, experience, education and other qualifications, whether they
were subject to the same standards or subordinate to the same supervisor, and any other factors
the employer considered in making the personnel decision. Ajayi v. Aramark Bus. Servs., Inc.,
336 F.3d 520, 531-32 (7th Cir. 2003).
Plaintiff has identified two younger employees who were promoted to the courtroom
clerk position she sought: Garcia is forty-two years old and was promoted on December 1, 2008,
and Santiago is forty-eight years old and was promoted on May 4, 2009. (R. 84, Pl.’s Mem. at 6;
Pl.’s Rule 56.1 Resp. ¶¶ 29-30.) But Plaintiff has failed to provide any evidence to prove that
Garcia and Santiago were similarly situated to her. Plaintiff does not introduce any evidence
regarding Garcia’s and Santiago’s performance, qualifications, or conduct. In fact, Garcia and
Santiago both held different positions than Plaintiff when they were promoted: Garcia was a
Criminal Department Clerk and Santiago was a General Officer Employee assigned to the
Traffic Department. (Pl.’s Rule 56.1 Resp. ¶¶ 29-30.) Plaintiff attempts to save her claim by
arguing that Defendants do not identify any ways in which Garcia and Santiago are not similarly
situated to Plaintiff. (R. 84, Pl.’s Mem. at 7.) It is Plaintiff’s burden, however, to demonstrate
that Garcia and Santiago are similarly situated, not Defendants’ to prove that they are not.

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Durkin v. City of Chi., 341 F.3d 606, 614 (7th Cir. 2003). Plaintiff has not met this burden.
Accordingly, Plaintiff is unable to establish a prima facie case of discrimination, and her ADEA
claim fails as a matter of law.
Plaintiff has failed to provide evidence that demonstrates that there is a genuine issue for
trial. See Wheeler, 439 F.3d at 634. She has failed to provide the evidence necessary to support
her race discrimination, age discrimination, and retaliation claims. Accordingly, Defendants are
entitled to summary judgment on all three counts of the complaint.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (R. 70) is
GRANTED. The Clerk of the Court is directed to enter a final judgment in favor of Defendants
Cook County and the Clerk of the Circuit Court of Cook County, Illinois.

ENTERED:
Chief Judge Ruben Castillo
United States District Court

Dated: November 1, 2013

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