Palermo v. Clinton

Filing 48

MEMORANDUM Opinion and Order Signed by the Honorable George M. Marovich on 4/8/2013. (et, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY PALERMO,
Plaintiff,
v.
JOHN KERRY,
Secretary, U.S. Department of State,
Defendant.

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11 C 8303
Judge George M. Marovich

MEMORANDUM OPINION AND ORDER
Plaintiff Anthony Palermo (“Palermo”) filed suit against defendant John Kerry (“Kerry”)1
for alleged violations of Title VII of the Civil Rights Act of 1964. In Count I, Palermo asserts
that he was discriminated against on the basis of his race. In Count II, Palermo asserts that he
was discriminated against on the basis of his sex. In Count III, Palermo asserts that he was
retaliated against for having opposed discrimination made unlawful by Title VII. Defendant has
filed a motion for summary judgment. For the reasons set forth below, the Court grants
defendant’s motion for summary judgment.
I.

Background
Local Rule 56.1 outlines the requirements for the introduction of facts parties would like

considered in connection with a motion for summary judgment. The Court enforces Local Rule
56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the
Court. For example, facts included in a party’s brief but not in its statement of facts are not
considered by the Court because to do so would rob the other party of the opportunity to show

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Palermo originally filed his suit against former Secretary of State, Hillary Clinton, for
whom John Kerry has been automatically substituted pursuant to Rule 25(d) of the Federal Rules
of Civil Procedure.

that such facts are disputed. Where one party supports a fact with admissible evidence and the
other party fails to controvert the fact with citation to admissible evidence, the Court deems the
fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir.
2004). This does not, however, absolve the party putting forth the fact of its duty to support the
fact with admissible evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir.
2012). Asserted “facts” not supported by deposition testimony, documents, affidavits or other
evidence admissible for summary judgment purposes are not considered by the Court.
In this case, defendant failed to file a response to plaintiff’s statement of facts by the
Court’s deadline. Because defendant did not file a timely response and, therefore, did not
controvert plaintiff’s statement of facts with record citations, the Court deems plaintiff’s facts
admitted to the extent they are supported by the record. The Court has carefully reviewed
plaintiff’s statement of facts and has deemed admitted only those facts supported by evidence in
the record. In addition, in several instances (including with respect to paragraphs 28, 29 and 30
of defendant’s statement of facts), plaintiff denied defendant’s facts without citation to record
evidence. Thus, those facts are deemed admitted to the extent they are supported by evidence.
The following facts are undisputed unless otherwise noted.
In 1995, plaintiff Palermo, a white male, started working at the Department of State’s
Chicago Regional Passport Office. Since May 2005, Palermo has been employed as a Passport
Operations Officer, a position at the GS-11 level of the federal government’s employment
hierarchy. Palermo’s duties include serving as agency fire warden; managing the transit benefit
program, critical supplies and alternative work schedules; working with vital documents; and
overseeing operations of the mailing machine and copier.

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Since July 2009, Palermo has reported to Sean Loftus (“Loftus”), a white male. Loftus is
the Assistant Director of the Chicago Passport Office, and he, in turn, reports to Terry Green
(“Green”), the Director of the Chicago Passport Office.
In January 2010, Palermo was attacked (physically) by a contract security guard in the
lobby of the building where the Chicago Passport Office is located. Palermo reported the
incident to Loftus, who launched an investigation that led to the termination of the security
guard’s employment. Several months later, in August 2010, Palermo filed an internal equal
employment opportunity (“EEO”) complaint against Loftus and Green, who, Palermo alleged,
had delayed the processing of his worker’s compensation claim.
In February 2011, Palermo received a letter of reprimand for discourteous behavior. The
letter of reprimand stemmed from a January 2011 incident with a co-worker. As part of his
duties, Palermo was responsible for distributing employees’ transit checks. One day in January
2011, a co-worker walked up to Palermo’s desk to pick up her transit check. Palermo told her to
come back after a meeting he was about to attend. The co-worker raised her voice and became
hostile. It is undisputed that Palermo said the co-worker could “call her congressman” and that
Palermo did not direct the comment toward the co-worker. The parties dispute whether the coworker heard the comment, but it is undisputed that the co-worker promptly complained to her
supervisor about the comment. Her supervisor complained to Loftus.
Loftus launched an investigation. Loftus interviewed Palermo, the co-worker and a
witness. Loftus decided to refer the matter to human resources for disciplinary action, so he
contacted the Human Resources Division of the Office of the Executive Director, Bureau of
Consular Affairs. Geraldine Kim (“Kim”), the Executive Director, directed her staff to review
the evidence, although they did not interview Palermo. The staff determined that the request for
a letter of reprimand was appropriate, and, in February 2011, Kim issued it. The letter of

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reprimand did not impose any discipline or affect Palermo’s benefits. Instead, it warned that,
“any further recurrences of this type of behavior will not be tolerated, and will result in much
more severe disciplinary action.”
Palermo wasted no time in filing his next complaint. On February 4, 2011, Palermo
contacted the State Department’s Office of Civil Rights to complain that he was issued a letter of
reprimand due to his race and sex and in retaliation for his prior EEO complaint (the one having
to do with his worker’s compensation claim). An EEO counselor was assigned to investigate
Palermo’s letter of reprimand. That EEO counselor interviewed Loftus, among others.
Meanwhile, back at the passport office, Loftus needed a new customer service manager.
The duties of the customer service manager would be to respond to customer complaints and
congressional inquiries, train people to accept passport applications, conduct outreach to inform
the public about the passport application process, write newsletters, help staff members improve
their customer service and build rapport among other government agencies. Loftus was allowed
to fill the customer service manager position at either the GS-12 level or the GS-13 level,
depending on who was selected for the position. (The position was to have the same duties,
either way, but promotion rules prevented Loftus from promoting someone who held a GS-11
position into a GS-13 position.)
Several people applied for the customer service manager position. The Office of
Personnel Management ranked the candidates based on their applications and sent a list of
eligible candidates to Loftus on March 14, 2011. Among the six highest-ranked candidates was
Palermo, whose place on the list was two spots below eventual-winner Linda Zramkowski
(“Zramkowski”).

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Loftus and Green interviewed the candidates. Beforehand, they developed a list of
questions to ask each candidate in an effort to determine who would be best. Loftus and Green
asked each candidate the same questions in the same order but did not develop a scoring system.
After all of the interviews, Loftus and Green chose Zramkowski. They discussed each
candidate and decided that Zramkowski was best. Loftus believed Zramkowski was better
qualified than Palermo because she had superior interpersonal and decision-making skills and
exercised better judgment. Loftus had witnessed Zramkowski’s work performance over the
course of about eighteen months, because their offices were close to one another and because
Zramkowski had worked as an acting customer service manager in the past. Zramkowski was
promoted to the position at the GS-13 level, a level to which Palermo could not have been
promoted.
The day on which Loftus and Green selected Zramkowski was March 24, 2011. That is
the same day that the EEO counselor issued his report with respect to Palermo’s February 4,
2011 complaint about the letter of reprimand. Loftus testified that he did not learn of Palermo’s
February 4, 2011 complaint until April or May of 2011.
When Palermo learned that he had not been chosen for promotion, he amended his EEO
complaint to add a claim for failure to promote. Palermo also believed he had been subjected to
a hostile work environment. For example, in February 2011, two co-workers fought near
Palermo’s work area. Palermo was not at work that day and, therefore, did not see the
altercation. A co-worker once sprayed Lysol near Palermo’s cubicle. Co-workers also
occasionally spoke to Palermo in harsh tones.
II.

Summary Judgment Standard
Summary judgment shall be granted when “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). When

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making such a determination, the Court must construe the evidence and make all reasonable
inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986). Summary judgment is appropriate, however, when the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to the 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). “A genuine issue of material fact arises only if sufficient evidence favoring the
nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair
Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005).
III.

Discussion
A.

Palermo’s race discrimination claim

In Count I, Palermo asserts that he was issued a letter of reprimand and subjected to a
hostile environment due to his race. Defendant moves for summary judgment on Count I.
1.

The letter of reprimand

In Count I, Palermo asserts that he was given a letter of reprimand due to his race.
Pursuant to Title VII of the Civil Rights Act of 1964, it “shall be an unlawful employment
practice for an employer–(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate 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.” See 42 U.S.C. § 2000e-2(a).
In his complaint, Palermo alleges that he is entitled to relief under Title VII because he
was issued a letter of reprimand due to his race. To be actionable as discrimination under Title
VII, a difference in treatment must be material. Minor v. Centorcor, Inc., 457 F.3d 632, 634 (7th
Cir. 2006). “[M]any day-to-day travails and disappointments that, although frustrating, are not
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so central to the employment relation that they amount to discriminatory terms or conditions” are
not actionable. Minor, 457 F.3d at 634. As defendant points out, letters of reprimand that do not
change the terms or conditions of one’s employment are not actionable as discrimination under
Title VII. Lloyd v. Swifty Trans., Inc., 552 F.3d 594, 602 (7th Cir. 2009). Palermo, of all people,
ought to be familiar with this principle. He regularly makes federal cases out of his employment
disputes, and the Seventh Circuit Court of Appeals has already explained to him that
performance critiques that do not affect terms or conditions of employment are not actionable as
discrimination under Title VII. Palermo v. Clinton, 437 Fed. Appx. 508, 2011 WL 3947416 at
*2 (7th Cir. 2011) (“A negative performance evaluation alone is not an adverse employment
action for a discrimination claim because it does not necessarily change the terms or conditions
of employment.”).
Here, it is undisputed that the letter of reprimand issued to Palermo was not accompanied
by any changes to his terms or conditions of employment: his benefits and pay remained the
same. Palermo’s claim is frivolous. Defendant is entitled to judgment as a matter of law on
Palermo’s claim that he was issued a letter of reprimand due to his race.
2.

Palermo’s hostile environment claim

Next, also in Count I, Palermo claims that he was subjected to a hostile environment due
to his race. Defendant is liable for creating a hostile work environment if Palermo can show:
“that [his] work environment was both objectively and subjectively offensive; (2) that the
harassment was based on [his] race; (3) that the conduct was either severe or pervasive; and (4)
that there is a basis for employer liability.” Vance v. Ball State Univ., 646 F.3d 461, 469 (7th
Cir. 2011). In considering whether the environment is hostile, a court is to consider the “totality

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of the circumstances[,]” including “‘the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Ellis v. CCA of Tenn. LLC, 650
F.3d 640, 647 (7th Cir. 2011) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998)). In addition, to “qualify as a hostile work environment, the conduct at issue must be
severe or pervasive enough to cause psychological injury.” Ellis, 650 F.3d at 647.
Defendant argues that the incidents Palermo points out do not add up to a hostile
environment and are unrelated to race. The record contains evidence of four incidents, only
three of which Palermo witnessed: (a) Palermo was attacked by a security guard; (b) Palermo
heard about (but was not present in the office to witness) two co-workers fighting near his desk;
(c) co-workers occasionally raised their voices to him; and (d) a co-worker sprayed Lysol near
Palermo’s cubicle. Palermo does not respond to the government’s motion for summary
judgment with respect to his claim that he was subjected to a hostile environment. By failing to
respond, he concedes that his claim fails.
This claim, too, strikes the Court as frivolous. With or without Palermo’s concession, the
Court agrees that defendant is entitled to judgment as a matter of law on Palermo’s claim for race
harassment. The record contains no evidence that any of the incidents was based on Palermo’s
race.
The Court grants defendant summary judgment on Count I.
B.

Palermo’s claim for sex discrimination

In Count II of his complaint, Palermo asserts that defendant discriminated against him on
the basis of his sex in three ways: by subjecting him to a hostile environment, by issuing him a

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letter of reprimand and by denying him a promotion. Defendant moves for summary judgment
with respect to all of these.
The first two can be disposed of quickly. Palermo’s claim that he was subjected to a
hostile environment on the basis of his sex fails for the same reason as did his claim for hostile
environment based on race. The record contains no evidence that any of the allegedly-hostile
instances were based on his sex, and plaintiff does not even argue that they were based on sex.
Thus, defendant is entitled to judgment as a matter of law.
Likewise, as the Court already explained, the letter of reprimand is not actionable as
discrimination under Title VII, because it did not affect the terms or conditions of Palermo’s
employment. Defendant is entitled to judgment as a matter of law on this claim as well.
Finally, Palermo asserts that he was denied a promotion on the basis of his sex. To make
out a prima facie case that defendant failed to promote him due to his sex, plaintiff must put
forth evidence that: (1) he is a member of a protected class; (2) he was qualified for the position;
and (3) he was rejected (4) in favor of someone outside of his protected class. Stockwell v. City
of Harvey, 597 F.3d 895, 901 (7th Cir. 2010).2 The “burden of establishing a prima facie case of
disparate treatment is not onerous.” Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253
(1981). It requires a plaintiff to show that he was “rejected under circumstances which give rise
to an inference of unlawful discrimination,” and the “standard is not inflexible” because facts
vary in different cases. Burdine, 450 U.S. at 253 and n.6.

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Defendant does not argue that plaintiff, who is attempting to establish reverse
discrimination, should be required to show “background circumstances’ suggesting that the
employer discriminates against the majority,” so the Court will not require the plaintiff to do so.
Stockwell, 597 F.3d at 901.
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Here, the Court concludes that Palermo has put forth enough evidence to create an issue
of fact on the prima facie case. Defendant concedes that plaintiff is a member of a protected
class and that he was rejected in favor of someone outside of his class. In addition, Palermo has
put forth enough evidence to create an issue of fact as to whether he was qualified for the job.
Specifically, Palermo put forth evidence that he was on the list of individuals deemed most
qualified (by the Office of Personnel Management) for the position.
Next, defendant has the light burden of articulating a legitimate, non-discriminatory
reason for the decision. Stockwell, 597 F.3d at 901. Defendant has done so. Defendant has put
forth evidence that the two decision-makers, Loftus and Green, discussed each candidate and
decided that Zramkowski was best. Loftus believed Zramkowski was better qualified than
Palermo because she had superior interpersonal and decision-making skills and exercised better
judgment.
In order to defeat defendant’s motion for summary judgment, Palermo has the burden to
put forth sufficient evidence from which a reasonable jury could conclude that defendant’s
reason for selecting Zramkowski over Palermo was a pretext for sex discrimination. Stockwell,
597 F.3d at 901. A pretext is a dishonest explanation, rather than an error. See Bodenstab v.
County of Cook, 569 F.3d 651, 657 (7th Cir. 2009). To show pretext, Palermo “must establish
that the explanation is a lie, which permits a jury to infer that the tale has been concocted to
conceal an unlawful truth. It is not enough to demonstrate that the employer was mistaken,
inconsiderate, short-fused, or otherwise benighted; none of those possibilities violates federal
law. Poor personnel management receives its comeuppance in the market rather than the
courts.” Yindee v. CCH Inc., 458 F.3d 599, 602 (7th Cir. 2006) (internal citations omitted).

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Here, there is no such evidence. To the contrary, the undisputed evidence is Loftus
actually believed Zramkowski was better qualified than Palermo, because she had superior
interpersonal and decision-making skills and exercised better judgment. This fact is undisputed,
because it was deemed admitted when Palermo failed to cite any record evidence to the contrary
in response to defendant’s statement of facts. The only evidence Palermo points to as
establishing pretext is: (1) evidence that Loftus testified that he did not know about Palermo’s
EEO complaint prior to deciding whom to promote; and (2) evidence that Loftus had been
interviewed in connection with Palermo’s EEO complaint prior to deciding to promote
Zramkowski. That evidence, however, does not suggest that defendant’s reason for hiring
Zramkowski was pretext for sex discrimination. Palermo has put forth no evidence that
defendant’s reason for not promoting Palermo was pretext for sex discrimination.
There are no issues of material fact, and defendant is entitled to judgment as a matter of
law on Palermo’s claim that he was denied a promotion due to his sex. Defendant is granted
summary judgment on Count II.
C.

Palermo’s retaliation claim

In Count III of his complaint, Palermo asserts that defendant issued him a letter of
reprimand, subjected him to a hostile environment and failed to promote him in retaliation for his
having complained about conduct that violated Title VII. Defendant moves for summary
judgment.
The Court first notes that defendant’s motion for summary judgment is granted with
respect to Palermo’s hostile environment claim. As with his other hostile environment claims,

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this claim fails because Palermo has put forth no evidence that any of the allegedly-hostile
actions were done in retaliation for his prior complaints.
1.

Palermo’s letter of reprimand

Defendant argues that it is entitled to summary judgment with respect to the letter of
reprimand, because the letter of reprimand is not a materially adverse action for purposes of a
retaliation claim. Palermo argues that it is actionable under the standard applicable to retaliation
claims.
To have an actionable claim for retaliation, “a plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 68 (2006)
(internal citations omitted). The adversity must be “material” in order “to separate significant
from trivial harms.” Id. The standard is “general” because “the significance of any given act of
retaliation will often depend upon the particular circumstances.” Burlington Northern, 548 U.S.
at 69.
The Seventh Circuit has concluded that negative performance evaluations and
performance improvement plans are not, necessarily, materially adverse actions. Cole v. Illinois,
562 F.3d 812, 816-817 (7th Cir. 2009); Sweeney v. West, 149 F.3d 550, 557 (7th Cir. 1998). In
Sweeney, the Seventh Circuit explained:
The counseling statements are similar to negative performance evaluations, and
arguably less significant. If we interpreted these simple personnel actions as
materially adverse, we would be sending a message to employers that even the
slightest nudge or admonition (however well-intentioned) given to an employee
can be the subject of a federal lawsuit; a simple statutory prohibition against
retaliation would be turned into a bizarre measure of extra protection for
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employees who–though they might genuinely need counseling–at one point
complained about their employer. We also would be deterring employers from
documenting performance difficulties, for fear that they could be sued for doing
so.
Sweeney, 149 F.3d at 556-557. Thus, in recent cases (including one involving this plaintiff), the
Seventh Circuit has concluded that minor criticisms of an employee’s performance are not
materially adverse actions. Lloyd v. Swifty Trans., Inc., 552 F.3d 594, 602 (7th Cir. 2009)
(holding that two written reprimands were not adverse actions for purposes of a retaliation
claim); Palermo v. Clinton, 437 Fed.Appx. 508, 2011 WL 3947416 at *3 (7th Cir. 2011)
(holding that criticism of Palermo’s performance within his performance review was not
actionable as retaliation and noting that “an employee who complains of discrimination is not
immune from the normal slights and disappointments that most employees experience.”).
Here, the Court concludes that Palermo’s letter of reprimand is not a material, adverse
action and, therefore, is not actionable as retaliation under Title VII. Palermo’s letter of
reprimand, which did not affect his benefits or pay, would not dissuade a reasonable employee
from complaining about discrimination. Accordingly, defendant is entitled to judgment as a
matter of law on Palermo’s claim that he was issued a letter of reprimand in retaliation for his
prior complaint about discrimination.
2.

Failure to promote

Finally, Palermo argues that he was denied a promotion in retaliation for having made a
discrimination complaint. Defendant moves for summary judgment.

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Palermo attempts to defeat summary judgment using the direct method of establishing
retaliation.3 To establish retaliation under the direct method, Palermo must show: (1) he
engaged in protected conduct; (2) he suffered a material, adverse action; and (3) a causal
connection between the two. Coleman v. Donahue, 667 F.3d 835, 859 (7th Cir. 2012).
Defendant agrees that plaintiff has put forth sufficient evidence of the first and second elements.
Defendant argues that Palermo’s evidence is insufficient to allow a jury to return a verdict for
him on causation.
“Causality is typically one of the highest hurdles retaliation plaintiffs must clear.”
Benuzzi v. Board of Ed. of Chi., 647 F.3d 652, 665 (7th Cir. 2011). To establish causation,
Palermo must show that his EEO complaint was a “substantial or motivating factor” in
defendant’s decision not to promote him. Coleman, 667 F.3d at 860. Because Palermo
admittedly lacks “direct” evidence (i.e, something “akin to an admission”), he attempts to show
causation by “presenting a ‘convincing mosaic’ of circumstantial evidence’ that would permit
the same inference without the employer’s admission.” Coleman, 667 F.3d at 860.
Here, Palermo points to the timing of the decision and to Loftus’s misstatement that he
did not know about Palermo’s February EEO complaint until after he made the decision to
promote Zramkowski. The undisputed evidence is that Palermo first complained about the letter

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Had Palermo attempted to use the indirect method, he would have been unable to make
out a prima facie case of discrimination. To make out a prima facie case, he would have had to
put forth evidence that “he, and no one else who did not complain, suffered the adverse action.”
Pantoja v. American NTN Bearing Mfg. Corp., 495 F.3d 840, 849 (7th Cir. 2007). Here,
Palermo was not the only one who defendant failed to promote. At least four other candidates
were also rejected, so Palermo would need to put forth evidence that each of those others had
also filed EEO complaints in order to show that he was rejected under circumstances that suggest
discrimination (i.e., to make out a prima facie case). Palermo has not done so.
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of reprimand on February 4, 2011. Loftus and Green made the decision to promote Zramkowski
on March 24, 2011, ten days after they received a list of eligible candidates from the Office of
Personnel Management. At some point in the interim between February 4, 2011 and March 10,
2011, the EEO counselor interviewed Loftus, although Loftus later denied having known about
this particular EEO complaint prior to making the decision about the promotion.
The Court does not think this is sufficient evidence from which a reasonable jury could
conclude that retaliation was a substantial factor in the decision not to promote Palermo. Timing
is rarely indicative of causation where, as here, the timing of the decision was affected by, first,
the accident of the vacancy and, second, the timing of when Loftus received the list of eligible
candidates and was able to complete the interviews. See Hall v. Forest River, Inc., 536 F.3d 615,
622 (7th Cir. 2008) (“[T]he mere fact that one event preceded another does not prove causation.
This general principle is especially true when the claimed retaliation is the failure to promote,
because the timing of a promotion is controlled by current or forthcoming vacancies which are
beyond an employer’s control, unlike firing or other types of retaliatory actions where the timing
is in the hands of the employer.”). Furthermore, the undisputed evidence is that Loftus and
Green chose Zramkowski because they thought she was the best. It is undisputed that Loftus,
who had witnessed Zramkowski’s work performance both because her office was near his and
because she had worked as the acting customer service manager in the past, believed that
Zramkowski was better qualified than Palermo, because she had superior interpersonal and
decision-making skills and exercised better judgment. Together with the above, the fact that
Loftus denied knowing about the particular EEO claim before making the decision is not enough

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evidence from which a reasonable jury could conclude that retaliation was a substantial or
motivating factor in the decision to promote Zramkowski and not Palermo.
There are no issues of material fact, and defendant is entitled to judgment as a matter of
law on Count III. Thus, the Court grants defendant’s motion for summary judgment with respect
to Count III.
IV.

Conclusion
For the reasons set forth above, the Court grants defendant’s motion for summary

judgment. Case closed.
ENTER:

George M. Marovich
United States District Judge
DATED: April 8, 2013

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