Washington v. State Of Illinois et al

Filing 96

MEMORANDUM Opinion and Order: Defendant's motion for summary judgment 68 is granted in part and denied in part. The court grants summary judgment in favor of Defendant on Plaintiff's ADA claim. Plaintiff's claim that Defendant dis criminated against her on the basis of race in her salary reduction and termination survives this motion, as does her claim that Defendant retaliated against her for her protected activity. A status conference is set for April 1, 2015, at 9:00 a.m. Signed by the Honorable Rebecca R. Pallmeyer on 3/23/2015.Mailed notice (am)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALICE WASHINGTON,
Plaintiff,
v.
OFFICE OF THE STATE
APPELLATE DEFENDER,
Defendant.

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No. 12 C 8533
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Alice Washington, an African American woman, had a successful career as a
forensic social historian and investigator for Defendant Illinois Office of the State Appellate
Defender ("OSAD") until early 2008.

At that time, Michael Pelletier was appointed to lead

OSAD. Shortly after his arrival, Pelletier concluded that Ms. Washington's employment status
was misclassified and reduced her salary accordingly. Plaintiff, who received this news on the
day she returned to work following a medical leave, filed an internal grievance challenging the
reduction. Four days later, Pelletier called her into his office and demanded her resignation. In
this lawsuit, Plaintiff alleges that she had her salary reduced and was eventually forced to resign
because of her race and disability, in violation of the Americans with Disabilities Act and Title
VII, and in retaliation for the grievance she filed, in violation of Title VII. She includes a claim of
race discrimination for an earlier job reassignment as well. OSAD seeks summary judgment on
all of these claims. The court concludes the evidence does not support Plaintiff’s ADA claim,
and grants summary judgment on that claim. Plaintiff’s claims of race discrimination related to
her salary reduction and forced resignation survive this motion [68].
survives too, as further explained below.

Her retaliation claim

BACKGROUND
I.

Plaintiff's Job Responsibilities
Plaintiff Alice Washington started working at OSAD in 1997; she held the title of Forensic

Social Historian ("Social Historian") and was assigned to the Post-Conviction Unit. (Pl.'s Resp.
[85] to Def.'s Stat. of Mat. Facts [69], hereinafter "Def.'s 56.1," ¶¶ 1, 3.) The Post-Conviction
Unit "handles cases of capital defendants who are appealing their convictions." (First Am.
Compl. [30], ¶ 12.) A Social Historian researches a client's past, looking for potential mitigating
factors to present at the client's sentencing. The work requires developing and preparing "a
client's social history summarizing the significant developmental factors in the client's life and
background[.]" (First Am. Compl. ¶ 15.) Eileen McCarthy, Marylynn Kaplan, and Dana Pitts
supervised Plaintiff while she worked for the Post-Conviction Unit; Anna Ahronheim was the
Deputy Defender for the Post-Conviction Unit during the same time but was not Plaintiff's direct
supervisor. (Pl.'s Resp. to Def.'s 56.1 ¶ 4.)
In 2003, Plaintiff was transferred on a temporary basis to the Death Penalty Trial
Assistance unit ("DPTA") and worked there, at least initially, as both a Social Historian and
Investigator. (Id. ¶ 5.) Stephen Richards, Deputy Defender of the DPTA in 2003, and Edward
Watkins, Chief Investigator of the DPTA, became Plaintiff's supervisors. (Id. ¶ 9.) The DPTA
"assists indigent defendants [who] have active on-going trials in which they may be sentenced
to death" and represents defendants directly, in addition to "lending assistance to courtappointed private attorneys and private attorneys defending defendants facing the death
penalty." (First Am. Compl. ¶ 13.) Unlike a Social Historian, who looks for evidence relevant to
sentencing, an Investigator researches a client's case for facts relevant to the client's guilt or
innocence. (Pl.'s Resp. to Def.'s 56.1 ¶ 14.)
Plaintiff testified that she worked as both an Investigator and Social Historian in the
DPTA in 2003 and continued to perform the functions of both positions up to at least January 1,
2008. (See Washington Dep., Ex. 2 to Pl.'s 56.1 [85-2], 18:16–22; 89:14–90:4.) At the time of
2

her transfer in 2003, Plaintiff was the only Social Historian who was transferred to the DPTA and
asked to do Investigation work and was the only DPTA employee who worked there as both an
Investigator and Social Historian.

(Def.'s Resp. [92] to Pl.'s Add'l Stat. of Mat. Facts [85],

hereinafter "Pl.'s 56.1," ¶ 13.) 1 Plaintiff's transfer to the DPTA became permanent on July 16,
2007 (id. ¶ 9), and at the same time her job title changed from Social Historian to Investigator.
(Pl.'s Resp. to Def.'s 56.1 ¶ 12.) Investigators earn less than Social Historians, but Plaintiff's
new supervisor, Deputy Defender Stephen Richards, assured her that her salary would not be
reduced as a result of the reassignment. (Id.) It was Theodore Gottfried, however, the thenhead of OSAD, who had sole authority to set Plaintiff's salary. As discussed below, Gottfried’s
successor, Michael Pelletier, was “bothered” by Gottfried’s decision to allow Plaintiff to keep the
higher salary even after she no longer worked as a Social Historian. (Id. ¶¶ 15, 37.)
Anna Ahronheim, Deputy Defender of the Post-Conviction Unit, told Plaintiff that the
2003 reassignment happened for two reasons.

First, Ahronheim explained that the Post-

Conviction Unit no longer had any need for a Social Historian because there was a moratorium
on the death penalty in Illinois beginning in 2003. (Pl.'s Resp. to Def.'s 56.1 ¶ 6; Def.'s Resp. to
Pl.'s 56.1 ¶¶ 12, 25.) Plaintiff disputes this; she notes that Ahronheim proceeded to rehire or
newly hire three Caucasian Social Historians (though it is unclear whether they were assigned
to the Post-Conviction Unit): Marylynn Kaplan, Dana Pitts, and Jennifer Parrack. (Def.'s Resp.
to Pl.'s 56.1 ¶ 12.) Second, at some point prior to Plaintiff's temporary transfer to the DPTA in
2003, Ahronheim told Plaintiff that Ahronheim wanted all Social Historians to have earned a
Master's Degree in Social Work ("MSW"), and as Plaintiff did not have this degree, she no
longer qualified for the position. (Pl.'s Resp. to Def.'s 56.1 ¶ 7.) Plaintiff believes Ahronheim

1

Though the parties agree Plaintiff was the only such employee, the record does
not reveal how many Social Historians there were in total at OSAD, or even how many DPTA
employees there were in 2003. Exhibit 14 states that as of January 1, 2008, the DPTA
employed 27 "individuals" (but does not specify their job titles). Of the 27, there were 14 males
(3 African American and 11 Caucasian) and 13 females (5 African American, 2 Hispanic, and 6
Caucasian).
3

used the MSW requirement as a pretext for discrimination; she asserts that at the time, "Plaintiff
was the only African-American FSH and the only FSH without an MSW in her unit." (Id.) Pitts
and Kaplan both have MSWs, and Parrack has a Masters of Arts in Forensics Psychology.
(Pl.'s Resp. to Def.'s 56.1 ¶¶ 71, 75, 78.) In her deposition, Plaintiff testified that she has both a
Bachelor's degree and a Master's degree but did not identify the field of study.

(See

Washington Dep., Ex. 2 to Pl.'s 56.1 [85-2], hereinafter "Washington Dep.", 8:15–24.)
II.

Plaintiff's Cancer Diagnosis and Treatment
In 2004, Plaintiff was diagnosed with breast cancer and went on medical leave for

treatment, which included chemotherapy, radiation, and surgery. (Pl.'s Resp. to Def.'s 56.1
¶ 10.) She returned to work in 2005 and underwent her final chemotherapy treatment in that
year, but continued to undergo various other treatments until at least November 2009. (Id.; see
Def.'s Resp. to Pl.'s 56.1 ¶ 32 (citing Washington Dep. at 111:8–9).) The chemotherapy caused
plantar fasciitis, resulting in foot pain, and a type of nerve sensitivity known as neuropathy.
(Def.'s Resp. to Pl.'s 56.1 ¶ 31.)

During Plaintiff's deposition, she responded "no" to the

question of whether the breast cancer affected her "job performance or duties in any way."
(See Washington Dep. at 36:2–4.) Plaintiff submitted a post-deposition affidavit that Defendant
argues is inconsistent with this testimony. The affidavit states that "on more than one occasion,
[Plaintiff] required leave from work because of [her] breast cancer and its complications and
would return to work" when she was again able to perform her job duties. (Washington Aff., Ex.
13 to Pl.'s 56.1 [85-13], ¶¶ 3, 11.) Defendant is correct that a post-deposition affidavit that is
inconsistent with deposition testimony may be disregarded; here, however, the affidavit can be
harmonized with the testimony. As the court reads the affidavit, it explains that, in addition to
Plaintiff's FMLA leave from December 2007 to January 2008, there were other times during her
employment when her condition required her to be absent from work—but that when she was
not on leave, she remained fully capable of performing her duties.

4

Plaintiff was on leave pursuant to the Family Medical Leave Act ("FMLA") from
December 28, 2007, until January 18, 2008 for surgery related to breast cancer. The record
does not reveal the effect this surgery had on her health or on her ability to perform her job
duties upon her return. (Def.'s Resp. to Pl.'s 56.1 ¶ 30; Washington Aff., Ex. 13 to Pl.'s 56.1
¶ 10.) She also asserts that she suffered from neuropathy during her FMLA leave. 2 Pelletier
testified that he was aware Plaintiff had taken FMLA leave in December 2007 but was unaware
the leave had anything to do with breast cancer. He stated that he had heard she was "going in
to loosen some adhesions from a prior surgery" (Def.'s Resp. to Pl.'s 56.1 ¶ 33 (citing Pelletier
Dep. Ex. 3 to Pl.'s 56.1 [85-3], 34:17–35:20), but only later learned that the prior surgery was
related to breast cancer. (Id. (citing Pelletier Dep. at 34:21–36:1).)
III.

Plaintiff's Job Performance, Salary Reduction, Internal Grievance, and Termination
On January 1, 2008, Michael Pelletier became the State Appellate Defender in charge of

OSAD, and Susan Carr became OSAD's Director of Support Services. (Pl.'s Resp. to Def.'s
56.1 ¶ 18.) As one of his first acts as OSAD's head, Pelletier ordered an assessment and
evaluation of OSAD offices statewide to review the Office's treatment of its employees and
clients and to ensure that OSAD's policies were consistent throughout the state. (Def.'s 56.1
¶ 19.) Pelletier directed Carr to create a questionnaire for support staff employees to complete;
the purpose was to learn what sorts of job responsibilities the staff had and whether the staff
was fulfilling those responsibilities. (Def.'s 56.1 ¶ 20.) Stephen Richards, Plaintiff's supervisor
while she worked at the DPTA, testified that he believes Pelletier had preconceived notions
about how to reform the Office: "Frankly, I think [Pelletier] had decided on some personnel
changes as foregone conclusion [sic] within maybe a week or two after he took office, if not
before."

(Richards Dep. Ex. 5 to Pl.'s 56.1 [85-5], 16:24–17:3.)

2

Carr was tasked with

Defendant disputes this, noting that Plaintiff last received chemotherapy—which
caused her neuropathy—in 2005. (Def.'s Resp. to Pl.'s 56.1 ¶ 32 (citing Washington Dep. at
32:9–22; 111:8–9).) Again, the court sees no inconsistency; the fact that chemotherapy caused
the condition says nothing about how long that condition might persist.
5

conducting the survey part of the assessment and evaluating the DPTA in Chicago, which took
place from January 3, 2008 until January 10, 2008. (Pl.'s Resp. to Def.'s 56.1 ¶ 32.)
On January 3, 2008, while she was still on FMLA leave, Plaintiff returned to the DPTA
office to pick up a message related to one of her active cases. Carr was there and spoke with
Plaintiff, asking her to complete the employee questionnaire, called the "Needs Assessment –
Support Staff Survey," as part of Pelletier's statewide office evaluation initiative. (Pl.'s Resp. to
Def.'s 56.1 ¶ 27; Carr Aff., Ex. 2 to Carr Dep., Ex. 6 to Def.'s 56.1 [69-6].) Plaintiff did, though
with some hesitation; she told Carr that she was back in the office only briefly, but Carr directed
her to fill out the questionnaire as best she could. (Pl.'s Resp. to Def.'s 56.1 ¶ 28.) Curiously,
though copies of other respondents' surveys are in the record, the parties have not provided the
court with Plaintiff's actual survey responses. Carr claims she reviewed Plaintiff's responses
and became "extremely concerned and alarmed that Ms. Washington was unable to identify any
amount of time she spent on any given activity." (Carr Aff., Ex. 2 to Carr Dep., Ex. 6 to Def.'s
56.1.) Carr states that Plaintiff told her she couldn't estimate the time spent on each activity
because "every day was different." (Id.) According to Carr, of 15 survey respondents, “Ms.
Washington was the only person who was unable to estimate time consumed by the listed
tasks." (Id.)
In addition to reviewing Plaintiff's questionnaire responses, Carr reviewed Plaintiff's case
files and "spot-reviewed" certain calendar entries from Plaintiff's computer to attempt to account
for the work Plaintiff performed on individual cases. (Pl.'s Resp. to Def.'s 56.1 ¶¶ 30–31 (citing
Carr Dep. at 63:8–18; 66:13–67:1).) Carr found no record of any work that Plaintiff performed in
her capacity as a Social Historian. (Def.'s 56.1 ¶ 31.) Carr also interviewed Plaintiff on January
3, 2008, the day that Plaintiff returned to the office to retrieve messages during her FMLA leave.
(Carr Dep. at 35:1–19; Pelletier Dep. at 50:5–22.) In response to questions about the work she
performed as an OSAD employee, Plaintiff told Carr that she assisted with mitigation, a job
responsibility typically assigned to Social Historians; Carr recorded this information in her
6

interview notes. (Pl.'s Resp. to Def.'s 56.1 ¶ 31.) Carr and Pelletier met to discuss these
findings sometime after January 10, 2008. (Id. ¶¶ 32–33.)
Plaintiff has submitted the questionnaires completed by other OSAD employees, whom
she identifies as comparators: Stephen Barry, William Bruhn, Wendi Liss, Rene Neely, and
John Price. As noted, neither she nor Defendant has produced her own questionnaire. In their
responses, the other employees do attempt to explain how much time they devoted to each
task, though a recurring response from Plaintiff’s comparators (with the exception of Mr. Bruhn,
who had time estimates for each of his tasks) is that the amount of time that an employee spent
on each task "varies" (see generally Survey Responses, Ex. 15 to Pl.'s 56.1 [85-15].) Plaintiff
explains that to the extent her responses on the questionnaire were cursory, this was a function
of the fact that she filled it out while she was on FMLA leave and had returned to the office only
briefly to pick up messages; she had planned to complete the questionnaire in more detail when
she returned from FMLA leave, but Carr did not follow up with her. (Pl.'s Resp. to Def.'s 56.1
¶ 29 (citing Carr Dep., Ex. 4 to Pl.'s 56.1 [85-4], 47:11–48:3.) In any event, on this record the
court is unable to compare Plaintiff's responses to the survey to those of her colleagues, and so
cannot assess whether Plaintiff's responses were similar, relatively less thorough, or otherwise.
Though her own survey responses are not in the record, the record does contain
substantial evidence of Plaintiff's satisfactory job performance. For example, Deputy Defender
Richards rated her work "very highly," "personally observed" the work Plaintiff did, and testified
that it was "absurd" to claim that Plaintiff "was doing no work" for the team. (Def.'s Resp. to Pl.'s
56.1 ¶ 2.) Richards' written performance evaluations of Plaintiff's work support that testimony.
For example, her 2007 review calls her "one of the test users of the DPTA calendaring system,
and of all of the users, the best at recording her work accurately and completely."

(2007

Performance Review, Ex. 2 to Richards Dep. Ex. 5 to Pl.'s 56.1 [85-5].)3 Richards testified that

3

Defendant objects to consideration of these performance evaluations on the
ground that they are not part of the record. (See Def.'s Reply [92] to Pl.'s Resp. to Def.'s 56.1,
7

he cannot recall any issues concerning Plaintiff’s failure to use the DPTA calendaring system to
record her work, at least before 2008 when Pelletier became OSAD's chief. (Richards Dep. at
13:22–14:9.) Richards's 2007 review goes on to state that Plaintiff had "outstanding talents as a
social forensic historian and investigator" and that she had "unlimited and untiring abilities [that]
make her a needed commodity, and an essential asset to this office." (Id.)
As additional evidence of her satisfactory job performance, Plaintiff presents the
testimony of private attorneys with whom she worked. For example, she worked with Attorney
Mark Kusatzky as an Investigator; according to Kusatzky, Plaintiff "never complained about the
long hours or time required," "proved to be invaluable," and "did an outstanding job." (Def.'s
Resp. to Pl.'s 56.1 ¶ 5 (citing Kusatzky Aff., Ex. 8 to Pl.'s 56.1 [85-8], ¶¶ 7, 8, 10).) Plaintiff
worked as an Investigator with attorneys Robert Gevirtz and Debra Seaton and assisted them
with mitigation around or after 2006; according to Gevirtz, Plaintiff's job performance "was
outstanding," such that "when Ms. Washington was discharged from the State Appellate
Defender's Office, we petitioned the court to have her appointed." (Id. ¶ 6 (citing Gervirtz Aff.,
Ex. 9 to Pl.'s 56.1 [85-9], ¶¶ 8, 14).) According to Seaton, Plaintiff worked "up to 12 hours per
day," "was highly effective in gaining information," and "working with her was an honor and
pleasure." Seaton too, "petitioned the court to have Alice Washington continue with [her] cases"
after Plaintiff was discharged. (Id. ¶ 7 (citing Seaton Aff., Ex. 10 to Pl.'s 56.1 [85-10], ¶¶ 9–10;
17–18).)
On January 18, 2008, the same day she returned from FMLA leave, Plaintiff received an
e-mail message from Tonya Janecek, Director of Human Resources at OSAD. The message
announced that Plaintiff's salary would be reduced from $60,000 (the salary of a Social
Historian with Plaintiff's years of experience) to $49,400 (the salary of an Investigator with

¶ 3.) It appears these materials were referred to in Richards's deposition and were made an
exhibit to that deposition. Plaintiff's failure to include additional copies as exhibits to her Local
Rule 56.1 statement is regrettable, but as it appears there is no dispute about their contents,
Defendant's objection to the court's consideration of them is overruled.
8

Plaintiff's years of experience). (Pl.'s Resp. to Def.'s 56.1 ¶ 34, see January 18, 2008 E-mail,
Ex. H to Washington Dep., Ex. 2 to Def.'s 56.1 [69-2].) Pelletier testified that he placed Plaintiff
on an Investigator's pay schedule because Plaintiff had admitted to Carr that Plaintiff was an
Investigator, not a Social Historian.

That admission prompted Pelletier to review Plaintiff's

personnel file, e-mails, and internal memoranda, which confirmed that Plaintiff was an
Investigator rather than a Social Historian. (Pl.'s Resp. to Def.'s 56.1 ¶ 35 (citing Pelletier Dep.
at 40:16–41:5).) Pelletier said he believed it was "grossly unfair to the other investigators" for
Plaintiff to be on a Social Historian pay schedule when she was only an Investigator. (Def.'s
56.1 ¶ 36.)
On January 30, 2008, Plaintiff served OSAD with a formal internal grievance regarding
her salary reduction. (Pl.'s Resp. to Def.'s 56.1 ¶ 38.) The grievance stated, in part: "On
January 18, 2008, while out of the office on FMLA, after having surgery for a problem occurring
from a previous breast cancer operation, I was sent an email pertaining to a cut in salary." (Pl.'s
Resp. to Def.'s 56.1 ¶ 39.)

Plaintiff further alleged in the grievance that Ahronheim had

harassed and discriminated against her by re-hiring two white females, Dana Pitts, and Jennifer
Parrack, as Social Historians after Plaintiff was transferred to the DPTA to work as an
Investigator. (Id.) Pitts and Parrack were hired even though Ahronheim had told Plaintiff no
work remained for Social Historians in the Post-Conviction Unit. (Pl.'s Resp. to Def.'s 56.1 ¶ 6;
Def.'s Resp. to Pl.'s 56.1 ¶¶ 12, 25.) On February 8, 2008, Pelletier denied Plaintiff's grievance
regarding her salary reduction and offered a written explanation.

(Id. ¶¶ 49–50; Grievance

Denial, Ex. J to Washington Dep., Ex. 2 to Def.'s 56.1 [69-2]). Specifically, the denial letter
stated that "[i]n the course of reviewing our staff and pay schedules and discussing Susan
Carr's evaluations and interviews with the staff at DPTA, I learned that Alice was an
Investigator, by her own admission, and yet she was being paid as a Social Historian[.]"
(Grievance Denial, Ex. J to Washington Dep., Ex. 2 to Def.'s 56.1 [69-2].)

9

Four days after Plaintiff submitted her internal grievance (and four days before Pelletier
denied it), on February 4, 2008, Pelletier called Plaintiff into his office and gave her the option to
resign or be fired; Plaintiff chose to resign so she could retain her health benefits. (Pl.'s Resp.
to Def.'s 56.1 ¶ 40; Def.'s Resp. to Pl.'s 56.1 ¶ 10.) Pelletier testified that he made the decision
to request Plaintiff's resignation for several reasons. For one, Carr told him that Plaintiff could
not explain what her job responsibilities were in the DPTA. (Pl.'s Resp. to Def.'s 56.1 ¶ 41.)
Carr told Pelletier that Carr could not find any documentation of work Plaintiff had performed in
the DPTA, and in particular that Plaintiff had failed to fill out the "notes" section in the DPTA's
calendaring system that would explain what she did in particular cases. (Id.) Further, Pelletier
pointed out, Plaintiff had not consistently worked eight-hour days as required by OSAD policy.
(Id.)

Pelletier chose not to interview Plaintiff's own supervisors, Richards and Watkins,

concerning her work performance, because he "thought that was a waste of time; the other
issue is, neither one of those individuals were [sic] credible." (Pl.'s Resp. to Def.'s 56.1 ¶ 51.
(citing Pelletier Dep. at 24:2–6; 89:22–91:15).) Notably, Pelletier did interview supervisors of
other OSAD employees who had not filled out the notes section in the calendaring system. For
instance, he spoke to an attorney to see whether other OSAD employees had in fact performed
work on certain cases. (Pelletier Dep. at 88:5–19.) Pelletier reviewed Richards's performance
reviews only cursorily; they were "worthless," in his view, because Richards did not have any
credibility. (Pelletier Dep. at 33:7–11.) And Pelletier did not speak with any private attorneys
Plaintiff may have worked with, either, even though he did so for other OSAD attorneys. (Def.'s
Resp. to Pl.'s 56.1 ¶¶ 17, 20.)
Plaintiff contends the reasons Pelletier gave for her forced resignation are pretextual.
Plaintiff did in fact receive a memorandum from Deputy Defender Stephen Richards explaining
that all DPTA employees were required to complete the notes section in the office’s calendaring
system, but she testified that Richards told her, either verbally or in writing, that Investigators
were not required to do this because the information in the notes section could be subject to
10

subpoena. (Pl.'s Resp. to Def.'s 56.1 ¶ 41 (citing Washington Dep. at 82:13–19); Pl.'s Resp. to
Def.'s 56.1 ¶ 42.) In addition to her own testimony, Plaintiff submitted notes from a phone
interview that IDHR conducted in the course of its investigation in Plaintiff's claims. Those notes
show that Stephen Richards told the IDHR investigator that "he instructed employees not to
record interview details in the calendar system because such details would be discoverable."
(Richards Phone Interview Notes, Ex. 2 to Pelletier Dep., Ex. 3 to Pl.'s 56.1 [85-3].) 4 Pelletier
testified, however, that he was not aware that Richards instructed DPTA employees not to
record job details in the calendaring system until this fact came out in the current litigation. (Pl.'s
Resp. to Def.'s 56.1 ¶ 43 (citing Pelletier Dep. at 91:20–92:3).)
Plaintiff was not the only employee that Pelletier fired during the same time period.
Edward Watkins and Fernando Shipley, both African Americans and Investigators in the DPTA,
were given the option to resign or be terminated. (Pl.'s Resp. to Def.'s 56.1 ¶¶ 44–45.) Steven
Berry, Caucasian and Chief Social Historian, was not given the option to resign; according to
Pelletier, Berry's conduct was "so outrageous and almost a ghost payroll," so he just fired him.
(Id. ¶ 46 (citing Pelletier Dep. at 84:15–19).) Anna Ahronheim, Caucasian and Deputy Defender
of the Post-Conviction Unit, was given the option to resign or be terminated, and Richards, too,
would have been given that option, according to Pelletier, but Richards simply resigned before
Pelletier could discuss it with him. (Id. ¶¶ 47–48.) Pelletier eventually approved the hiring of
two African-American Investigators to replace Plaintiff and Shipley. (Pl.'s Resp. to Def.'s 56.1
¶ 53.)

4

Defendant objects that these notes, like the performance evaluations, are not
part of the summary judgment record. The IDHR notes do not in fact appear in the electronic
record, though Plaintiff furnished them to chambers in a courtesy copy set of exhibits. This
practice, and Plaintiff’s failure to include these notes in her Rule 56.1 filing, are disappointing.
The court acknowledges, as well, that the investigator’s notes are hearsay. Should she offer
them at trial, Plaintiff will be required to lay a satisfactory foundation for admission of the notes,
if she can. The court is willing to consider them at this stage because, again, there appears to
be no dispute about their contents, and they appear to bolster Plaintiff’s testimony, which is
sufficient on its own to create a dispute of fact on her assertion that she was excused from
compliance with the calendaring procedure.
11

Plaintiff filed a Charge of Discrimination with the Illinois Department of Human Rights
("IDHR") against OSAD on January 30, 2008.

On February 21, 2008, as Defendant itself

admits, Pelletier called Plaintiff's home and told her that he would interfere with her
unemployment and make sure Plaintiff never again worked for an agency of the State of Illinois.
(Pl.'s Resp. to Def.'s 56.1 ¶ 54) (citing Washington Dep. at 20:12-24:23, 58:18-59:17, IDHR
Charge, Ex. B to Wash. Dep.).) Plaintiff testified that, during the phone call, Pelletier told her
that IDHR had contacted him about her IDHR complaint.

(Washington Dep. at 59:3–17.)

Plaintiff did in fact apply to work with other State of Illinois agencies but was not hired. (Pl.'s
Resp. to Def.'s 56.1 ¶ 56.)
IV.

Plaintiff's Comparators
Plaintiff identifies several OSAD employees who were not forced out of their jobs despite

not filling out the notes section in the calendaring system. William Bruhn and Lonnie Capps,
Caucasian Investigators in the DPTA Unit in Springfield, were allowed to keep their jobs after
Carr determined that even though they had not filled out the calendar entries, they had
completed work on the cases. (Pl.'s Resp. to Def.'s 56.1 ¶ 63.) Edward Torres, a Hispanic
Investigator in the Post-Conviction Unit in Chicago and Stephen Spearie, a Caucasian
Investigator in the Post-Conviction Unit in Springfield, were also allowed to keep their jobs
despite not filling out the notes section correctly. (Id. ¶ 64.)
Plaintiff identifies Jennifer Parrack, a Caucasian employed as a Social Historian in the
Post-Conviction Unit, as having received more favorable treatment.

Parrack was hired by

Ahronheim as a Social Historian in June 2007, at a time when Ahronheim had told Plaintiff no
Social Historian work was available. (Pl.'s Resp. to Def.'s 56.1 ¶ 69.) Parrack has a Master's
Degree in Forensic Psychology. (Id. ¶ 71.) Plaintiff identifies Dana Pitts, Caucasian Social
Historian assigned to the Post-Conviction Unit, as another person treated more favorably:
because Pitts was allowed to quit and return to her position as a Social Historian with no
reduction in salary after Plaintiff had been transferred to DPTA. (Id. ¶ 72.) Pitts has an MSW
12

and is a licensed clinical social worker. (Id. ¶ 75.) Marylynne Kaplan, a Caucasian Social
Historian assigned to the Post-Conviction Unit, is also alleged by Plaintiff to have been treated
more favorably because while Kaplan was pregnant, she was allowed to work from home with
pay and then was allowed to quit and later return at a higher salary. (Id. ¶ 76.) Kaplan resigned
from OSAD on September 13, 2002 as a Social Historian and was rehired on November 16,
2009 as a “mitigation specialist”; neither party has explained the responsibilities of that job or its
relationship to the Social Historian or Investigator position. (Pl.'s Resp. to Def.'s 56.1 ¶ 77.)
Kaplan has an MSW. (Id. ¶ 78.)
V.

Procedural History
On March 26, 2008, Plaintiff filed a Charge of Discrimination with the Equal Employment

Opportunity Commission ("EEOC") and received her right-to-sue letter on July 26, 2012. (First
Am. Compl. ¶ 5.) In Plaintiff's EEOC charge, she claims that "[o]n July 17, 2007, [she] was
demoted to an Investigator. On January 16, 2008, [she] received a pay-reduction. On March
14, 2008, [she] was discharged." (Pl.'s Resp. to Def.'s 56.1 ¶ 58.) The charge further states:
"On January 28, 2008, I engaged in a protected activity when I complained to Respondent that I
was being treated differently because of my race, sex, and disability." (EEOC Charge, Ex. 1 to
First Am. Compl. [30-1], 2.) Plaintiff filed an initial pro se complaint in this court on October 24,
2012 against OSAD and Pelletier in his individual capacity.

(Compl. [1].)

Her amended

complaint, filed by counsel on April 30, 2013, is before the court. Claims asserted against
Pelletier in his individual capacity have been dismissed. (See Sept. 12, 2013 Order [44].) The
remaining Defendant, OSAD, now moves for summary judgment on all of Plaintiff's claims.
DISCUSSION
I.

Summary Judgment Standards
The standards governing this motion are familiar.

The court will grant summary

judgment 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); Anderson v. Liberty Lobby, Inc., 477 U.S.
13

242, 247 (1986). Summary judgment "is the put up or shut up moment in a lawsuit, when a
party must show what evidence it has that would convince a trier of fact to accept its version of
the events." Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (internal quotation marks
and citation omitted). In ruling on this motion, the court evaluates the evidence “through the
summary judgment lens, giving plaintiff the benefit of all conflicts in the evidence and all
reasonable inferences that might be drawn from the evidence, without necessarily vouching for
their objective accuracy.” Malin v. Hospira, Inc., 762 F.3d 552, 554 (7th Cir. 2014).
II.

Race Discrimination
Title VII makes it unlawful for employers 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[.]" 42 U.S.C. § 2000e–2(a)(1).

Plaintiff has elected to prove her claim of intentional

discrimination by the indirect method of proof.

Under that method, Plaintiff proceeds by

presenting evidence that (1) she is a member of a protected class; (2) her job performance met
OSAD's legitimate expectations; (3) she suffered an adverse employment action; and (4) a
similarly-situated individual outside her protected class was treated more favorably.
Swearnigen-El v. Cook Cnty. Sheriff's Dept., 602 F.3d 852, 860 (7th Cir. 2010). If Plaintiff
makes this showing, then Defendant may counter Plaintiff's prima facie case by presenting
evidence of legitimate, nondiscriminatory reasons for its actions.

Plaintiff must then

demonstrate that Defendant's proffered reasons are pretextual. Id.
In this case, it is undisputed that Plaintiff belongs to a protected class. The questions for
the court, therefore, are whether she suffered an adverse employment action, whether she met
OSAD's legitimate job expectations, and whether a similarly-situated employee outside her
protected class was treated differently. The court discusses each element in turn.

14

A.

Adverse Employment Actions

Plaintiff identifies three separate adverse employment actions that she claims violate
Title VII: (1) her 2007 transfer to the DPTA from the Post-Conviction Unit; (2) her 2008 salary
reduction; and (3) Pelletier's February 2008 demand for her resignation. 5 Defendant admits that
the salary reduction and demand that she resign constitute adverse employment actions but
disputes that the 2007 transfer qualifies. To be adverse, "an employment action 'must be a
significant change in employment status or a decision causing a significant change in benefits.'"
Alexander v. Casino Queen, Inc., 739 F.3d 972, 980 (7th Cir. 2014) (quoting Lewis v. City of
Chi., 496 F.3d 645, 653 (7th Cir. 2007) (ellipsis omitted)). Plaintiff claims the transfer was
adverse because it meant she had to work two jobs (Investigator and Social Historian) even
though she was only paid for one. (Pl.'s Resp. at 5.) The court disagrees. Plaintiff testified that
in 2007, she was doing investigation and "assisting with mitigation," which is a task a Social
Historian normally performs. (Washington Dep. at 89:14–90:4.) Even construing the evidence
in the light most favorable to her, though, Plaintiff at most can establish that she was given
additional job responsibilities and duties, not that she performed two separate jobs. See Griffin
v. Potter, 356 F.3d 824, 829 (7th Cir. 2004) (no adverse employment action where plaintiff was
given "additional work that she perceived as outside her normal job responsibilities"). While
Plaintiff's salary was not increased to reflect her alleged increased workload, it also was not
reduced at the time of transfer. Simply put, Plaintiff's primary role of Investigator, coupled with
certain responsibilities associated with mitigation, did not result in a new position "with

5

Plaintiff also cites her temporary transfer from the Post-Conviction Unit to the
DPTA in 2003 as an adverse employment action. Assuming that the temporary transfer was an
actionable adverse event, any claim arising from it would be time-barred. See Salas v. Wis.
Dep't of Corr., 493 F.3d 913, 921 (7th Cir. 2007) ("Title VII provides that a charge of
discriminatory employment practices shall be filed with the EEOC within 300 days 'after the
alleged unlawful employment practice occurred.'") (citing 42 U.S.C. § 2000e–5(e)(1)).
15

significantly different job responsibilities" such that it could be considered an adverse
employment action. Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 504 (7th Cir. 2004).
This leaves Plaintiff's salary reduction and her receipt of the offer to resign or be
discharged as actionable adverse events.
B.

Legitimate Job Expectations

Plaintiff's next task in establishing a prima facie case of race discrimination is to show
that adverse employment actions (salary reduction and termination) occurred despite her
meeting OSAD's legitimate job expectations. To determine whether a plaintiff is meeting an
employer's expectations, the court examines the employee's job performance through the eyes
of her supervisors at the time of the adverse action. See Gates v. Caterpillar, Inc., 513 F.3d
680, 689 (7th Cir. 2008). In Gates, the court found that the employee was not meeting job
expectations when she used her employer's phone and Internet for personal use, and the
record showed her supervisor's "increasing displeasure" with her job performance that led to her
suspension from work. Id. Similarly, Defendant cites several issues and concerns regarding
her work responsibilities and performance that preceded the salary reduction and demand for
Plaintiff's resignation.
In determining whether Plaintiff can survive summary judgment on the issue, the court
considers the two adverse actions separately.
i.

Salary Reduction

Defendant argues that the decision to reduce Plaintiff's salary was motivated not by
discrimination but by Pelletier’s conclusion that Plaintiff should not have been receiving the
salary of a Social Historian at all.

Defendant notes that Plaintiff herself admitted that she

worked as an Investigator and not as a Social Historian. (Salary Reduction E-mail, Ex. H to
Washington Dep, Ex. 2 to Def.'s 56.1.) Specifically, Plaintiff admitted that on July 16, 2007, she
was transferred to the DPTA on a permanent basis and had her position title changed to
Investigator.

(See Pl.'s Resp. to Def.'s 56.1 ¶ 12.)
16

But interpreting that admission as an

acknowledgement that Plaintiff was overpaid ignores her job history. Both parties characterize
Plaintiff's transfer in 2003 as "temporary" (see Def.'s Resp. to Pl.'s 56.1 ¶ 9), and her thensupervisor assured her that she would not suffer a pay cut. (See Pl.'s Resp. to Def.'s 56.1
¶ 12.) Absent that assurance, Plaintiff might well have challenged the transfer when it first
occurred, because it would have constituted a demotion rather than a lateral (and temporary)
reassignment. The reassignment became a genuine demotion only in 2008, when it resulted in
a substantial reduction in pay. There may well have been a non-discriminatory reason for the
2003 transfer (for example, the MSW requirement, see Pl,’s Resp. to Def.’s 56.1 ¶ 7)), but
Defendant did not reduce Plaintiff’s pay at that time, and instead continued to pay her at the
Social Historian rate for four years. In the meantime, Plaintiff asserts, Defendant hired white
women to work as Social Historians and presumably could have reassigned her to perform that
work rather than continue to (over)pay her as an Investigator.

There is no evidence that

Pelletier’s audit of OSAD resulted in a pay cut for any other employee. Summary judgment on
this claim is denied.
ii.

Demand for Plaintiff’s Resignation

The court finds that genuine issues of material fact also preclude summary judgment on
the issue of whether Plaintiff was meeting Defendant's legitimate expectations as an
Investigator at the time Pelletier demanded her resignation.

Plaintiff points to Richards's

evaluations, as well as testimonials from attorneys who worked with her, to show that she was
meeting and even exceeding job expectations, and that she should not have been terminated.
Defendant responds by citing the reasons Pelletier identified for his decision: (1) Plaintiff could
not explain her job responsibilities within the DPTA; (2) Plaintiff did not document any work she
performed; and (3) Plaintiff's time records revealed that she did not work the required eight-hour
work days as required by office policy.

(See Def.'s 56.1 ¶ 41.)

Plaintiff claims Pelletier's

reasons were simply a pretext for discrimination against her based on her race and disability.
"The pretext inquiry focuses on whether the stated reason for the adverse employment action is
17

in fact the reason for it—not on whether the stated reason is accurate or fair."

Zayas v.

Rockford Mem. Hosp., 740 F.3d 1154, 1158–59 (7th Cir. 2014). The court concludes that
Plaintiff's evidence is sufficient to generate a dispute of fact on the reasons for her termination.
First, Pelletier admitted in his deposition that he did not speak with Plaintiff's supervisors
or any private attorneys with whom she worked to determine what value, if any, she contributed
to cases, even though he did this for other employees who, like Plaintiff, failed to document their
work in the notes section of the calendaring system. (Def.'s Resp. to Pl.'s 56.1 ¶¶ 17–18 (citing
Pelletier Dep. at 87:10–17; 88:23–24; 24:2–6.) Nor did he check case files himself to determine
how much Plaintiff was doing. (Id. at 26:1–4.) Further, Carr admitted she did not speak with
Plaintiff's supervisors or co-workers about Plaintiff's performance and performed only a "spotreview" of Plaintiff's case files, while she may have done a more extensive review of other
employees' work. (Pl.'s Resp. to Def.'s 56.1 ¶¶ 30–31 (citing Carr Dep. at 63:8–18; 66:13–
67:1); see Pelletier Dep. at 89:5–19 ("Even though [Capps and Bruhn] didn’t fill out the
calendaring system, when [Pelletier and Carr] looked to see what they did on the case, they had
files, they had stuff that generated computer and e-mails that indicated that they actually had
performed work on those cases.").)
Second, a jury may disbelieve Pelletier's assertion that Plaintiff’s failure to make entries
in OSAD’s electronic calendaring program was a violation of policy. Whatever the office policy
may have been, Plaintiff testified that her immediate supervisor, Richards, told her on multiple
occasions, both verbally and in writing, not to record case details in the notes section because
such notes could be subpoenaed. (Washington Dep. at 82:13–19.) Further evidence in support
of this assertion appears in notes from a phone interview that IDHR investigators conducted
with Richards. Those notes show that Richards told IDHR that "he instructed employees not to
record interview details in the calendar system because such details would be discoverable."
(Richards Phone Interview Notes, Ex. 2 to Pelletier Dep., Ex. 3 to Pl.'s 56.1 [85-3].)

18

Lastly, while Plaintiff's time records might reflect that she worked less than a required
eight-hour day, her actual time sheets are not in the record. If other employees similarly did not
work the eight-hour day but were not terminated, this fact could be used to show pretext.
Disputes of fact preclude summary judgment on this issue, as well.
C.

Similarly-Situated Employees

The remaining element Plaintiff must establish for her prima facie case is that employees
outside her protected class who acted in a materially similar matter or who had comparable
education, experience, and qualifications were treated more favorably, that is, were not forced
to resign. See, e.g., Crawford v. Indiana Harbor Belt R.R., 461 F.3d 844, 846 (7th Cir. 2006)
(plaintiff must show "that the members of the comparison group are sufficiently comparable to
her to suggest that she was singled out for worse treatment").
Plaintiff points to two similarly-situated Caucasian Investigators in the DPTA Springfield
office, Lonnie Capps and William Bruhn, who failed to sufficiently document their work in the
notes section of the calendaring program but were not discharged; unlike his procedure with
respect to Plaintiff, Pelletier followed up on the issue with Capps and Bruhn by speaking to an
attorney to see whether Capps and Bruhn had performed work on certain cases. (Pl.'s 56.1
¶¶ 59, 60, 62, 63; id. ¶ 63 (citing Pelletier Dep. at 89:5–19 ("Even though [Capps and Bruhn]
didn't fill out the calendaring system, when [Pelletier and Carr] looked to see what they did on
the case, they had files, they had stuff that generated computer [sic] and e-mails that indicated
that they actually had performed work on those cases.").) Defendant responds by pointing out
that Plaintiff's failure to fill out the calendar notes section was not the only reason for the
termination decision (Def.'s Reply in Supp. of Summ. Judg. [91], 4.), but the argument is not
compelling. The fact that Plaintiff has not distinguished similarly-situated white employees in
every particular does not defeat her case. Cf. Pantoja v. American NTN Bearing Mfg. Corp.,
495 F.3d 840, 845 (7th Cir. 2007) (noting that the similarly-situated analysis should not be
"unduly rigid" and that the persons do not have to be "'similarly situated' to [plaintiff] in all
19

pertinent respects"); Henry v. Jones, 507 F.3d 558, 564 ("The similarly situated inquiry is a
flexible, common-sense one that asks, at bottom, whether 'there are enough common factors
. . . to allow for a meaningful comparison in order to divine whether intentional discrimination
was at play.'" (citing Barricks v. Eli Lilly & Co., 481 F.3d 556, 560 (7th Cir. 2007))). And, though
Defendant contends Plaintiff failed to work an eight-hour work day on a consistent basis,
Defendant has not produced evidence supporting this assertion.

Summary judgment is

therefore denied on this element, as well.
Defendant argued in its opening brief that Edward Torres and Stephen Spearie were not
similarly situated to Plaintiff because they were Investigators in the Post-Conviction Unit in
Springfield and were not required by OSAD to make notes in the calendaring program. (See
Def.'s Mem. at 6.)

Defendant also argued that Donald Hopper, Dana Pitts, and Marylynn

Kaplan were not similarly situated because unlike Plaintiff, their positions never changed from
that of Social Historian to Investigator. (Id. at 6–7.) In addition, Hopper and Kaplan resigned to
work in the private sector, and because OSAD gives credit for such work experience in
determining salary levels if such employees return to work for OSAD, Defendant contends these
employees are not appropriate comparators for Plaintiff. (Id. at 7.) Lastly, Defendant points out
that Kaplan, Pitts, and Parrack all had advanced degrees, a job qualification Ahronheim had
adopted for the Social Historian position back in 2003. Defendant argues that Plaintiff failed to
respond to the contention that Torres, Spearie, Kaplan, Pitts, and Parrack are not similarly
situated. See Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir. 1996) ("Because [plaintiff]
did not raise this argument before the district court in response to the summary judgment
motion, she has waived this argument."). With respect to Torres and Spearie, the court agrees.
Plaintiff did point out, however, on page 6 of her response brief, that though Ahronheim had said
no work remained for Social Historians, there were "three new or return hires after Plaintiff's
transfer to the DPTA," (Pl.'s Resp. at 6) and argued that the MSW requirement is a pretext.

20

These arguments are adequate to preserve a claim that Kaplan, Pitts, and Parrack were
similarly situated, but received more favorable treatment.
Though Plaintiff has not relied explicitly on the direct method for proving her claim of
discrimination, the court notes there is at least a trace of circumstantial evidence of
discriminatory animus, as well. It was Richards's impression that "none of the other white
employee investigators that [Richards] supervised were let go for poor calendar entries, only the
blacks, while all had similar calendar entries." (Pl.'s 56.1 ¶ 16.). Plaintiff refers also to the
testimony of Monte Dawson, an African-American hired to replace her. Dawson testified that he
"came to find out that [he] was specifically hired to replace the black investigators that had been
fired in an effort to offset the filing of any EEO complaints."

Dawson also attested to the high

quality of Plaintiff's work and files and notes left by her. (Pl.'s 56.1 ¶ 8 (citing Dawson Aff. Ex.
12 to Pl.'s 56.1 [85-12], ¶¶ 8. 10).) Without further foundation, Dawson’s impression that he was
hired as a cover is inadmissible, but his testimony about the fine quality of her work bolsters
Plaintiff’s prima facie showing that she was meeting all of Defendant’s legitimate expectations at
the time of her forced resignation.
III.

Disability Discrimination
Next, Plaintiff claims she was the victim of discrimination on the basis of her disability.

To state a claim under the ADA, a plaintiff must first establish that she suffers from a disability
within the meaning of the Act. See Duncan v. State of Wisc. Dep't. of Health and Family Servs.,
166 F.3d 930, 935 (7th Cir. 1995) ("The first hurdle a plaintiff must pass . . . is the requirement
that the plaintiff must be 'disabled.'"). The ADA defines a disability as either "a physical or
mental impairment that substantially limits one or more of the major life activities" of the
individual, or a "record of such impairment[.]" 42 U.S.C. § 12102(1)(A)–(B). To decide whether
an impairment meets the ADA test, a court considers the nature and severity of the impairment,
its duration or expected duration, and its permanent or long-term impact or extended impact.
See Serendnyi v. Beverly Healthcare, LLC, 656 F.3d 540, 555 (7th Cir. 2011) (citing 29 C.F.R.
21

§ 1630.2(j)(2)). If Plaintiff establishes that she is disabled, she may then attempt to prove
discrimination under the same rubrics used for Title VII cases. See Timmons v. General Motors
Corp., 469 F.3d 1122, 1126 (7th Cir. 2006) (direct and indirect methods used for both
employment

discrimination

and

disability

discrimination

cases).

Plaintiff's

disability

discrimination fails in this case because, assuming she meets the ADA disability standard, she
still cannot show that Defendant discriminated against her because of that disability.
First, Plaintiff apart from an unsupported allegation in her IDHR complaint (see IDHR
Complaint, Ex. B to Washington Dep., Ex. 2 to Def.'s 56.1 [69-2], 3), Plaintiff offers no rebuttal to
Pelletier's or Carr's testimony that neither knew she had taken FMLA leave because she had
breast cancer. (See Carr Dep. at 39:5–15; Pelletier Dep. at 34:17–35:20.) Pelletier testified
that he believed Plaintiff was out sick because she was "going in to loosen some adhesions
from a prior surgery." (Pelletier Dep. at 34:17–35:20.) He only later learned that her surgery
was related to earlier breast cancer treatment. (Id. at 34:21–36:1.) And when she returned
from FMLA leave, Plaintiff herself testified that the surgery did not affect her job performance.
(Pl.'s Resp. to Def.'s 56.1 ¶ 17.) Without establishing that employees of Defendant at the center
of this dispute knew she was disabled during the relevant time periods, Plaintiff cannot establish
that she had her salary docked or was forced to resign because of her disability, rather than for
some other reason. See Timmons, 469 F.3d at 1129 (affirming district court's grant of summary
judgment to employer because plaintiff could not produce "evidence suggesting [the employer's]
decision to place him on leave was based on his disability rather than some other job-related
reason").
Second, there is no evidence in this case that managers who were aware of Plaintiff's
disability took any action against her. She was out on sick leave in 2004 through the beginning
of 2005 when the cancer first appeared, and allowed to return to work as soon as she was well.
She was granted FMLA leave in December 2007 until January 2008, and put back to work upon
her return. To the extent that Plaintiff points to similarly-situated non-disabled employees who
22

did not have their salary reduced and who were not forced to resign, she has produced no
evidence that Defendant's proffered reasons for these other employment decisions demonstrate
pretext for her disability discrimination claim. Cf. Timmons, 469 F.3d at 1129 (noting that the
similarly-situated inquiry for disability discrimination claims overlap with the pretext inquiry).
Summary judgment is therefore granted to Defendant on Plaintiff's disability
discrimination claim.
III.

Retaliation
Like a discrimination claim, retaliation claims may be established using either the direct

or indirect methods of proof. Alexander, 739 F.3d at 983. The direct method requires evidence
of a causal link between protected activity and an adverse employment action, see Coleman v.
Donahoe, 667 F.3d 835, 859 (7th Cir. 2012)), while the indirect method requires evidence that a
similarly-situated employee who did not engage in protected activity was treated more favorably,
see Silverman v. Bd. of Educ. of Chi., 637 F.3d 729, 742 (7th Cir. 2011)). Under either of these
methods, though, Plaintiff must establish that she engaged in protected activity and that her
employer took adverse action against her as a result. For the reasons explained here, the court
concludes this claim, too, survives summary judgment.
A.

Statutorily Protected Activity
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has opposed any practice made an
unlawful employment practice by this subchapter[.]"

42 U.S.C. § 2000e–3(a); see also 42

U.S.C. § 12203 (ADA retaliation provision). Filing an official complaint of discrimination with an
employer constitutes protected activity when it "indicate[s] that 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).
In her formal internal grievance, Plaintiff stated that "[o]n January 18, 2008, while out of
the office on FMLA, after having surgery for a problem occurring from a previous breast cancer
23

operation, I was sent an email pertaining to a cut in salary." (Pl.'s Resp. to Def.'s 56.1 ¶ 39.)
Defendant claims that Plaintiff's grievance letter does not constitute protected activity because it
did not say that the discrimination occurred because of her alleged disability. (Def.'s Mem. at
12.); cf. Tomanovich, 457 F.3d at 663 ("Merely complaining in general terms of discrimination or
harassment, without indicating a connection to a protected class or providing facts sufficient to
create that inference, is insufficient [to establish that plaintiff engaged in a protected activity
under Title VII]."). In the court's view, Defendant has read Plaintiff's grievance too narrowly.
The grievance letter did refer specifically to breast cancer surgery. She also made reference to
race discrimination in her statement that "[Ahronheim] . . . began to harass me and discriminate
against me by not posting a position which had become available for chief social historian when
a white female [resigned]." (See Internal Grievance Letter, Ex. I to Washington Dep. [69-2], 1.)
The court concludes the letter constitutes protected activity as a matter of law.
Defendants also argue that Plaintiff should not be allowed to proceed on any claim for
retaliation arising out of race discrimination because her complaint only alleges retaliation in
violation of the ADA. (See Def.'s Reply at 6 (citing First. Am. Compl. ¶¶ 34–42.) Again, the
court disagrees. For one, elsewhere in the complaint (though not in the individually pleaded
counts), Plaintiff identifies similarly-situated "non-blacks/non-disabled[s]" who did not engage in
protected activity but were not discharged. (See First Am. Compl. ¶ 31.) In addition, Plaintiff's
EEOC charge filed on October 24, 2012, stated: "On January 28, 2008, I engaged in a
protected activity when I complained to Respondent that I was being treated differently because
of my race, sex, and disability."

(EEOC Charge, Ex. 1 to First Am. Compl. [30-1], 2.)

Construing Plaintiff's complaint liberally, the court concludes that she has sufficiently alleged a
claim of retaliation based on her complaining of race discrimination in addition to disability
discrimination. To the extent her complaint does not sufficiently present the race retaliation
claim as a separate count, the court would grant her leave to amend the complaint. See FED. R.
CIV. P. 15(a)(2).
24

B.

Causal Connection

The final question is whether there is a causal connection between the filing of the
grievance and the decision to demand Plaintiff's resignation. "To survive summary judgment on
her retaliation claim, [plaintiff] must present sufficient direct or circumstantial evidence for the
trier of fact to infer there was a causal link between the protected activity and [the adverse job
action]." Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 481 (7th Cir. 2010). While the
Seventh Circuit has cautioned that "suspicious timing alone is rarely sufficient to create a triable
issue," Tomanovich, 457 F.3d at 665, elsewhere it has explained that where the temporal
proximity between a protected activity and an adverse employment action "occur[s] within days,
or at most, weeks of each other," Mobley v. Allstate Ins. Co., 531 F.3d 549 (7th Cir. 2008), a
causal nexus may be inferred. This is especially true when the "person who decided to impose
the adverse action knew of the protected conduct." Culver v. Gorman & Co., 416 F.3d 540, 545,
546 (7th Cir. 2005) (quoting Lalvani v. Cook County, Ill., 269 F.3d 785, 790 (7th Cir. 2001)). In
this case, Pelletier did not specifically recall when he received Plaintiff's internal grievance, but
the court notes that OSAD time-stamped it as formally received on January 30, 2008, and
Pelletier's response form states that he received the grievance February 1, 2008. (See Pelletier
Dep. at 52:17–55:13; Internal Grievance, Ex. I to Washington Dep; Grievance Response, Ex. J.
to Washington Dep.) Four days between Plaintiff's protected activity and the adverse action
taken against her, coupled with Pelletier's knowledge of the grievance, is close enough to raise
an inference of retaliatory motive. Summary judgment is therefore inappropriate. See Culver v.
Gorman & Co., 416 F.3d 540, 545, 546 (7th Cir. 2005) (recognizing that the temporal proximity
between plaintiff's complaint and her termination just three days later was "[o]f major
significance" in reversing the trial court's grant of summary judgment to the defendant).
Moreover, in this case there is troubling direct evidence that Pelletier is motivated to
retaliate against people who make claims. After Plaintiff resigned from OSAD and engaged in
another protected activity—filing a complaint with IDHR—Pelletier called her at her home and
25

threatened to interfere with any effort she might make to seek employment with another state
agency.

(See Def.'s Resp. to Pl.'s 56.1 ¶ 54.)

Pelletier's actions post-dating Plaintiff's

resignation (and in response to her filing a charge with the Illinois Department of Human Rights)
are sufficient to support an inference that the adverse employment action in this case was
causally related to Plaintiff's internal grievance. See Magyar v. Saint Joseph Reg'l Med. Ctr.,
544 F.3d 766, 772 (7th Cir. 2008) (noting that "together with other facts, [suspicious timing] can
sometimes raise an inference of a causal connection.") (emphasis added). Summary judgment
on Plaintiff's retaliation claim is denied.
CONCLUSION
For the reasons discussed above, Defendant’s motion for summary judgment [68] is
granted in part and denied in part. The court grants summary judgment in favor of Defendant
on Plaintiff’s ADA claim. Plaintiff’s claim that Defendant discriminated against her on the basis
of race in her salary reduction and termination survives this motion, as does her claim that
Defendant retaliated against her for her protected activity. A status conference is set for April 1,
2015, at 9:00 a.m.
ENTER:

March 23, 2015

______________________________
REBECCA R. PALLMEYER
United States District Judge

26