Johnson v. Chicago Transit Authority et al

Filing 112

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/24/17. Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MAURICE JOHNSON,
Plaintiff,
v.
CHICAGO TRANSIT AUTHORITY,
Defendant.

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14 C 9432
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Maurice Johnson (“Johnson”), a pro se plaintiff, has sued the Chicago Transit
Authority (“CTA”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”), and 42 U.S.C. § 1983.

He alleges that CTA discriminated

against him on the basis of his gender and retaliated against him for engaging in
statutorily protected activity. CTA has moved for summary judgment as to these
claims. For the reasons stated herein, CTA’s motion [88] is granted.
Factual Background 1
CTA is a municipal corporation that provides public transportation. Def.’s
LR 56.1(a)(3) Stmt. ¶ 4, ECF No. 90. In February 2009, CTA hired Johnson as an
administrative manager in its Bus Operations Department. Id. ¶ 5. In spring 2013,
bus operators at Johnson’s work location had to “re-pick their runs” as a result of an

1

Except where otherwise noted, the following facts are not in material dispute.

error that Johnson made. Id. ¶¶ 8, 10–11. Because his error caused this “re-pick,”
Johnson was suspended from work for three days as of May 1, 2013. Id. ¶¶ 8–12. 2
Johnson was suspended by his male supervisor, Adrian Lewis.

Id. ¶ 12.

According to Johnson, however, Lewis suspended him only because Lewis’s female
supervisor, Mersija Besic, instructed him to do so. Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 12.
Johnson believes he was suspended because Besic and another female employee,
Monica McMillan-Robinson, thought Johnson had insulted them in meetings and
therefore disliked him. Def.’s LR 56.1(a)(3) Stmt. ¶ 15.
On May 2, 2013, the day after he was suspended, Johnson sent a letter to
then–CTA President Forrest Claypool. Id. ¶ 17. In his letter, Johnson stated that
his suspension was the result of the “personal feelings” that Besic felt toward him.
Id. ¶ 20. The letter did not claim that Johnson had been suspended because of his
gender. Id. ¶ 22. Nor did it advance any allegations of discrimination. Id. ¶ 19.
On June 21, 2013, several weeks after his suspension, Johnson filed a
complaint with Bethany Drucker, an employee in CTA’s Equal Employment
Opportunity Unit. Id. ¶¶ 25–26. The parties disagree as to whether Johnson’s
complaint to Drucker involved allegations of discrimination in violation of Title VII.
Id. ¶ 27; Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 27.
On September 11, 2013, CTA’s Board of Directors passed an ordinance
abolishing dozens of positions within CTA’s workforce. Def.’s LR 56.1(a)(3) Stmt.
¶¶ 32, 34; id., Ex. 12, at 1. Among other positions, the ordinance approved the
For reasons that are hard to fathom, the parties’ filings do not explain what a “repick” is or what it means for bus operators to “re-pick their runs.”
2

2

abolishment of “[u]p to 7” positions with the title “Manager, Administration – Bus.”
Id., Ex. 12, at 3. That same day, CTA notified all employees holding “Manager,
Administration” positions within the Bus Operations Department—including
Johnson—that their positions had been abolished. Id. ¶ 36. 3
After Johnson was notified that his position would be abolished, he applied
for other CTA jobs at the encouragement of McMillan-Robinson—one of the same
women who, according to Johnson, had played a role in Johnson’s suspension
several months prior.

Def.’s LR 56.1(a)(3) Stmt. ¶ 40. Johnson applied for the

positions of Senior Manager and General Manager, but he was not hired. Id. ¶¶ 41,
43. Johnson’s employment at CTA was therefore terminated on December 31, 2013.
Id. ¶ 38.
Legal Standard
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see also Shell v. Smith, 789 F.3d 715, 717
(7th Cir. 2015). To survive summary judgment, the nonmoving party must “do
more than simply show that there is some metaphysical doubt as to the material
In his Local Rule 56.1(b)(3)(B) statement, Johnson does not indicate whether he
disputes this fact. The fact is therefore deemed admitted for purposes of CTA’s summary
judgment motion. See LR 56.1(b)(3) (“All material facts set forth in the statement required
of the moving party will be deemed to be admitted unless controverted by the statement of
the opposing party.”); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“We have
consistently held that a failure to respond by the nonmovant as mandated by the local rules
results in an admission.”). The Court notes that Johnson was on notice of his obligation to
comply with Local Rule 56.1, because CTA filed and served a “Notice to Pro Se Litigant
Opposing Motion for Summary Judgment” in June 2016 pursuant to Local Rule 56.2. See
ECF No. 91.
3

3

facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and instead must “establish some genuine issue for trial such that a reasonable jury
could return a verdict in her favor.” Gordon v. FedEx Freight, Inc., 674 F.3d 769,
772–73 (7th Cir. 2012).
In reviewing a motion for summary judgment, courts “must construe all facts
and reasonable inferences in favor of the nonmoving party.” Dorsey, 507 F.3d at
627. But “[i]nferences that are supported by only speculation or conjecture will not
defeat a summary judgment motion.” Id. (quoting McDonald v. Vill. of Winnetka,
371 F.3d 992, 1001 (7th Cir. 2004)) (internal quotation marks omitted). “[S]aying so
doesn’t make it so; summary judgment may only be defeated by pointing to
admissible evidence in the summary judgment record that creates a genuine issue
of material fact.” United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504,
510–11 (7th Cir. 2010).
Analysis
I.

Gender Discrimination Under Title VII and § 1983
First, Johnson claims that CTA discriminated against him on the basis of his

gender in violation of Title VII and § 1983 by suspending him for three days in May
2013 and later terminating his employment. Employment discrimination claims
brought under Title VII and § 1983 are governed by the same legal standards.
Steinhauer v. DeGolier, 359 F.3d 481, 483 (7th Cir. 2004); Hildebrandt v. Ill. Dep’t of
Nat. Res., 347 F.3d 1014, 1036 (7th Cir. 2003). Thus, to avoid summary judgment
on his discrimination claims, Johnson must show that the evidence, considered as a
whole, would permit a reasonable fact finder to conclude that his gender caused his
4

suspension or termination. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir.
2016); Steinhauer, 359 F.3d at 483.
One of the ways—though not the exclusive way—that Johnson can make this
showing is by using the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See David v. Bd. of Trustees of Cmty. Coll. Dist.
No. 508, 846 F.3d 216, 224 (7th Cir. 2017). In a “reverse discrimination” case such
as the present one, McDonnell Douglas asks the plaintiff to make a prima facie case
of discrimination by establishing that: “(1) background circumstances exist to show
an inference that the employer has reason or inclination to discriminate invidiously
against whites [or men,] or evidence that there is something ‘fishy’ about the facts
at hand; (2) he was meeting his employer’s legitimate performance expectations;
(3) he suffered an adverse employment action; and (4) he was treated less favorably
than similarly situated individuals who are not members of his protected class.”
Formella v. Brennan, 817 F.3d 503, 511 (7th Cir. 2016) (quoting Ballance v. City of
Springfield, 424 F.3d 614, 617 (7th Cir. 2005)) (internal quotation marks omitted);
accord Gore v. Indiana Univ., 416 F.3d 590, 592 (7th Cir. 2005). If the plaintiff
establishes these prima facie elements, the burden shifts to the defendant to
provide a legitimate, nondiscriminatory reason for the adverse employment action.
Formella, 817 F.3d at 511. In turn, if the defendant meets this burden, the burden
shifts back to the plaintiff to show that the defendant’s asserted nondiscriminatory
reason is mere pretext for discrimination. Id.

5

For the reasons explained below, with or without the McDonnell Douglas
framework, no reasonable fact finder considering the evidence as a whole could
conclude that CTA discriminated against Johnson on the basis of his gender. CTA
is therefore entitled to summary judgment in its favor as to Johnson’s
discrimination claims.
A.

Suspension

First, Johnson asserts that he was discriminated against on the basis of his
gender when he was suspended in May 2013 for causing a re-pick. 4 In support, his
sole argument is that a reasonable jury could infer intentional gender
discrimination based on the fact that two similarly situated female employees also
caused re-picks but were not suspended for their mistakes. Pl.’s Resp. at 12–13.
When a plaintiff asks the fact finder to infer discrimination based upon the
disparate treatment of similarly situated employees, the employees in question
“must be ‘directly comparable in all material respects.’” Ineichen v. Ameritech, 410
F.3d 956, 960 (7th Cir. 2005) (quoting Sartor v. Spherion Corp., 388 F.3d 275, 279
(7th Cir. 2004)).

“[T]he similarly situated co-worker inquiry is a search for a

substantially similar employee, not for a clone.” Weber v. Univ. Research Ass’n, Inc.,
621 F.3d 589, 594 (7th Cir. 2010) (internal quotation marks omitted). But, at the
CTA argues that Johnson cannot prevail on his discrimination claim to the extent it
is based on his suspension, because Johnson did not mention his suspension in his EEOC
charge and thus has failed to exhaust administrative remedies. Def.’s Mem. Supp. at 8,
ECF No. 89. But, as noted above, Johnson brings discrimination claims under both Title
VII and § 1983. Failure to exhaust administrative remedies is an affirmative defense to the
former, see Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013), but not to
the latter, see Williams v. City of Chi., No. 11 C 1118, 2012 WL 205908, at *4 (N.D. Ill. Jan.
24, 2012) (collecting cases). The Court will therefore consider Johnson’s suspension in the
course of analyzing the merits of his discrimination claims.
4

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very least, the plaintiff must “show not only that the employees reported to the
same supervisor, engaged in the same conduct, and had the same qualifications, but
also [ ] that there were no ‘differentiating or mitigating circumstances as would
distinguish . . . the employer’s treatment of them.’” Ineichen, 410 F.3d at 960–61
(quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617–18 (7th Cir. 2000)).
The two female employees who Johnson claims were similarly situated to him
are Mersija Besic 5 and Lulvet Cooper. In support of his assertion that Besic and
Cooper were similarly situated to him, Johnson relies primarily upon his own
deposition testimony. Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 14. 6 During his deposition,
Johnson was asked whether he knew of any re-picks that had ever been caused by
errors similar to his own. Def.’s LR 56.1(a)(3) Stmt., Ex. 3 (“Johnson Dep.”), at
41:15–20. He answered that Besic had made an error causing a re-pick around
2011 while she was working as the administrative manager at the Forest Glen
Garage. Id. at 42:13–17. That year, Johnson was working at the Chicago Avenue
Garage. Id. at 42:2–10. In response to a question about who Besic’s supervisor was
at the time of her purported error, he answered, “I don’t know.” Id. at 43:19. And
It appears to be coincidental that this is the same Mersija Besic who, according to
Johnson, ultimately played a role in his suspension. See Pl.’s LR 56.1(b)(3)(B) Stmt.
¶¶ 12, 47.
5

Johnson also cites a document sent from CTA to the EEOC that lists Cooper as
having been employed as an administrative manager in 2013, Pl.’s LR 56.1(b)(3)(C) Stmt.
¶ 11, as well as what appears to be an undated human resources form (the “360-Degree
Employee Development Review Assignment Sheet”) asking Johnson to provide feedback
about Besic and characterizing Besic as a “peer” in relation to Johnson, id.; Pl.’s LR
56.1(b)(3)(B) ¶ 47. Neither of these documents materially adds to the substance of Johnson’s
deposition testimony. And in any event, the latter document is unauthenticated and
therefore inadmissible. See Smiley v. Columbia Coll. Chi., 714 F.3d 998, 1005 (7th Cir. 2013).
6

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in response to a question about how he came to learn of Besic’s error, he similarly
answered, “I don’t know. I don’t remember.” Id. at 43:15–16, 43:20–23. Johnson
also testified that Cooper, another administrative manager, had made an error that
caused a re-pick at some point. Id. at 44:12–46:7. He could not remember when
this re-pick occurred; nor could he remember which garage Cooper had worked at
when she made the alleged error. Id. at 46:8–15.
No reasonable jury could find from this evidence that Besic and Cooper were
similarly situated to Johnson, much less that Johnson was the victim of gender
discrimination. Rather, the evidence indicates at most that Besic and Cooper, while
working as administrative managers, made errors that caused re-picks. It does not
establish that Besic and Cooper made the same type of error as Johnson, had the
same supervisor as Johnson, had the same qualifications as Johnson, or even
worked in the same location as Johnson. More importantly, the evidence makes no
mention of whether Besic or Cooper were ever suspended or otherwise disciplined
for their purported errors. Without such evidence, Johnson cannot show under the
McDonnell Douglas framework that Besic or Cooper was a similarly situated
employee who was treated more favorably than he was. See, e.g., Ineichen, 410 F.3d
at 960–61; Formella, 817 F.3d at 512 (finding that plaintiff had not identified a
similarly situated comparator where the only supporting evidence plaintiff offered
was “a brief passage from his own deposition testimony, as to which he lacked
personal knowledge”).

8

Moreover, considered as a whole, the record is bereft of any indication that
Johnson’s suspension had anything to do with his gender. It is undisputed that
Johnson is unable to identify an instance when “anyone at CTA ever ma[de]
comments regarding his gender.” Def.’s LR 56.1(a)(3) Stmt. ¶ 30. Furthermore,
Johnson admits that he believes he was suspended because Besic and another
female employee thought he had “insulted them in meetings” and therefore
“disliked him.”

Def.’s LR 56.1(a)(3) Stmt. ¶ 15.

Evidence that a plaintiff has

suffered an adverse employment action merely because of another employee’s
personal animosity toward him does not give rise to an inference of gender
discrimination. Hester v. Ind. State Dep’t of Health, 726 F.3d 942, 948–49 (7th Cir.
2013).
For all of these reasons, Johnson has failed to show that, with regard to his
suspension in May 2013, he was treated less favorably than any similarly situated
female employees. He has also failed to adduce any other evidence from which a
reasonable jury could find that his gender was the reason for his suspension. Thus,
to the extent Johnson’s discrimination claims are based on his suspension, CTA is
entitled to summary judgment in its favor.
B.

Termination

Next, Johnson asserts that he was discriminated against on the basis of his
gender when he was terminated from his employment toward the end of 2013. As
with regard to his suspension, he argues that a reasonable jury could infer
discrimination in connection with his termination based on the fact that similarly
situated female employees either kept their positions as administrative managers
9

or were rehired into other CTA positions upon the abolishment of their
administrative manager positions. See Pl.’s Resp. at 6–8.
In support, Johnson primarily relies on a CTA spreadsheet sent to the EEOC
that lists eleven employees, including Johnson, who held the position of “Manager,
Administration – Bus” during 2013. 7 Id.; Pl.’s LR 56.1(b)(3)(B) Stmt., Ex. 2, at 1, 3.
The spreadsheet shows that Johnson was the only male employee who held this
position, and that he was also the only employee in this position who was
terminated at the end of 2013 due to his position’s abolishment.

Pl.’s LR

56.1(b)(3)(B) Stmt., Ex. 2, at 3.
There are several reasons why no fact finder could reasonably infer
intentional gender discrimination based on the spreadsheet alone. As a threshold
matter, Johnson has again failed to marshal evidence to show that the other
employees listed on the spreadsheet were similarly situated to him.

It is not

enough to show that he and the other employees merely held the same position,
particularly when the record suggests that many factors may have differentiated
these employees from Johnson. See Diaz v. Kraft Foods Glob., Inc., 653 F.3d 582,
590 (7th Cir. 2011) (holding that employees are not similarly situated merely
Johnson also relies on two other pieces of evidence, but neither supports his
argument. First, he cites the same unauthenticated human resources form that the Court
noted is inadmissible, supra. Pl.’s LR 56.1(b)(3)(B) Stmt. ¶¶ 49–52; Pl.’s LR 56.1(b)(3)(C)
Stmt. ¶¶ 11–15. Second, he cites passages from the deposition of CTA employee Jeanette
Martin-Freedman. Pl.’s LR 56.1(b)(3)(B) Stmt. ¶¶ 49–52. This deposition testimony sheds
no light on whether Johnson was treated less favorably than any similarly situated female
employees. Martin-Freedman is not one of the employees who Johnson claims was
similarly situated to him, and the cited portions of Martin-Freedman’s deposition do not
discuss any such employees. See id. (citing Pl.’s LR 56.1(b)(3)(C) Stmt., Ex. G, at 7:18–24,
44:9–23, 78:1–8).
7

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because they are employed in the same position).

For example, administrative

managers within the Bus Operations Department sometimes had different
supervisors and different work locations. See Johnson Dep. at 42–46 (discussing
supervisors and different work locations); see also Def.’s LR 56.1(a)(3) Stmt., Ex. 15
(bus operations organizational chart showing that administrative managers
reported to different supervisors and worked at different locations). In addition, the
spreadsheet itself highlights the possibility that some of the other administrative
managers had more seniority than Johnson. See Pl.’s LR 56.1(b)(3)(B) Stmt., Ex. 2,
at 3 (listing dates under a column titled “Job_Date,” and showing that six of the ten
other employees had job dates that started before Johnson’s). Johnson does not
address such differentiating factors, and he thus has not met his burden of showing
that any of the ten other employees listed on the spreadsheet were similarly
situated to him. See Ineichen, 410 F.3d at 960–61.
Even if Johnson could show that these employees were similarly situated to
him, however, a reasonable jury still could not infer that Johnson was treated
differently on account of his gender. It is critical to note that, according to Johnson
himself, at least some of the other administrative managers also had their positions
abolished in 2013 but were subsequently rehired into other CTA positions and thus
were not ultimately terminated.
56.1(b)(3)(C) Stmt. ¶ 37.

See Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 36; Pl.’s LR

Johnson, too, applied to be hired into another CTA

position. He applied for the positions of Senior Manager and General Manager, but
his applications were unsuccessful because, at least for the Senior Manager

11

position, he had one of the lowest interview scores. Def.’s LR 56.1(a)(3) Stmt. ¶¶ 41,
43. Thus, the relevant evidence suggests that Johnson was turned down for these
positions simply because he did not demonstrate during his interviews that he was
a qualified applicant. Johnson neither rebuts this evidence nor argues that his low
interview scores were a mere pretext for discrimination. He thus cannot prevail on
his discrimination claims using the burden-shifting method of proof under
McDonnell Douglas.
More generally, no reasonable jury considering the evidence as a whole could
find that Johnson’s gender caused CTA to terminate his employment. As noted
above, no one at CTA ever made comments to Johnson regarding his gender. Def.’s
LR 56.1(a)(3) Stmt. ¶ 30.

Moreover, soon after Johnson was informed that his

position was being abolished, McMillan-Robinson—one of the same women who
Johnson claims played a role in his suspension—actively encouraged Johnson to
apply for other jobs within CTA. Id. ¶ 40. And ultimately, although Johnson was
not hired for the Senior Manager or General Manager position, four of the seven
successful applicants for Senior Manager were men, and six of the seven successful
applicants for General Manager were also men.

Id. ¶¶ 44–45. 8

These facts

undercut Johnson’s theory that CTA treated him unfavorably by abolishing his
position and declining to rehire him because he was male.

In his response to CTA’s statement of facts, Johnson has not indicated whether he
disputes these figures. They are therefore deemed admitted for purposes of CTA’s
summary judgment motion. See LR 56.1(b)(3); Smith, 321 F.3d at 683 (7th Cir. 2003).
8

12

In his response brief, Johnson points to two facts from which he claims a jury
could nevertheless infer gender discrimination. First, he refers to an affidavit in
which CTA employee Hattie Knazze “stated that Ms. Besic said that she was going
to get him, meaning ‘Maurice [Johnson].’” Pl.’s Resp. at 10. Second, he claims that
“Ms. McMillon stated in her notes to the EEOC[ ] that Maurice Johnson had been
‘blackballed.’” Id. There are several reasons why these items are of no avail to
Johnson’s position. As an initial matter, Johnson does not support either of these
facts with a citation to the record. At the summary judgment stage, the nonmovant
can create a genuine issue of material fact only by pointing to admissible evidence
in the record; “it [is] not the district court’s job to sift through the record and make
[the nonmovant’s] case for him.”

5443 Suffield Terrace, 607 F.3d at 510.

Additionally, even if Johnson could support these statements with citations to
admissible evidence, the statements would indicate at most that Besic and
McMillon personally disliked Johnson.

As explained above, evidence of mere

personal dislike alone does not support an inference of gender discrimination.
Hester, 726 F.3d at 948–49.
In sum, Johnson has not shown that similarly situated female employees
were treated more favorably than he was.

He also has not shown that CTA’s

proffered reason for declining to rehire him after his position was abolished was
mere pretext. As such, he cannot make a showing of gender discrimination under
the McDonnell Douglas framework. In addition, setting McDonnell Douglas aside,
the Court concludes that no reasonable jury considering the evidence as a whole

13

could find that Johnson’s gender caused his termination. See Ortiz, 834 F.3d at
765. CTA is therefore entitled to summary judgment on Johnson’s discrimination
claims.
II.

Retaliation Under Title VII
Johnson also claims that CTA suspended him and terminated his

employment as a form of retaliation for his complaints about workplace
discrimination. Under Title VII, it is unlawful “for an employer to discriminate
against any of his employees . . . because he has opposed any practice made an
unlawful employment practice by [Title VII], or because he 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); accord Bagwe v. Sedgwick

Claims Mgmt. Servs., Inc., 811 F.3d 866, 887 (7th Cir. 2016).

An activity is

protected under Title VII only if it involves a complaint of discrimination
specifically based on a protected characteristic, such as gender or race.
Northington v. H & M Int’l, 712 F.3d 1062, 1065 (7th Cir. 2013).

See

“Vague and

obscure ‘complaints’ do not constitute protected activity.” Id.
To overcome summary judgment on a Title VII retaliation claim, a plaintiff
must show that a reasonable jury weighing the evidence as a whole could find that
(1) he engaged in a protected activity, (2) he suffered an adverse employment action,
and (3) there was a causal connection between the protected activity and the

14

adverse employment action. Williams v. Office of Chief Judge of Cook Cty. Ill., 839
F.3d 617, 627 (7th Cir. 2016); Bagwe, 811 F.3d at 887–88. 9
CTA argues that it is entitled to summary judgment because Johnson cannot
establish either the first or the third element of his retaliation claim—that is, the
elements of protected activity and causation. For the reasons provided below, the
Court concludes that Johnson has created a genuine dispute of fact as to the first
element, but not as to the third element. Summary judgment in CTA’s favor as to
Johnson’s retaliation claim is therefore warranted.
A.

Statutorily Protected Activity

As noted above, the first element of a retaliation claim requires a plaintiff to
show that he engaged in a statutorily protected activity. Bagwe, 811 F.3d at 887–
88. Johnson claims that he engaged in a statutorily protected activity when he
complained about his suspension to Claypool in May 2013, as well as when he
complained to Drucker in June 2013.
Johnson’s letter to Claypool in May 2013 clearly did not involve a protected
activity.

It is undisputed that the letter did not claim that Johnson had been

suspended because of his gender or otherwise make allegations of discrimination.

One way that a plaintiff may seek to create a triable issue of fact with regard to a
retaliation claim is by pointing to similarly situated employees who were treated more
favorably than he was under the McDonnell Douglas framework. See Northington, 712
F.3d at 1065. Here, however, Johnson does not appear to argue that he was treated less
favorably than any similarly situated employees who did not engage in a statutorily
protected activity. Furthermore, to the extent he intended to advance such an argument in
his brief, the argument fails because, for the same reasons as explained above regarding his
discrimination claims, he has not provided sufficient evidence from which a reasonable jury
to identify an employee who was substantially similarly situated to him.
9

15

Def.’s LR 56.1(a)(3) Stmt. ¶¶ 19, 22. Instead, the letter merely discussed Johnson’s
work record and complained that the suspension was the result of “personal
feelings” that Besic held toward him. Id. ¶¶ 18, 20. Making such a complaint of
general unfair treatment, without specifically “indicating a connection to a
protected class or providing facts sufficient to create that inference,” is not a
protected activity under Title VII. Tomanovich v. City of Indianapolis, 457 F.3d
656, 663 (7th Cir. 2006).
Johnson’s complaint to Drucker is a different matter. CTA denies that this
complaint involved allegations of discrimination in violation of Title VII. Def.’s LR
56.1(a)(3) Stmt. ¶ 27.

But Johnson maintains that he did, in fact, raise such

allegations of discrimination with Drucker. Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 27. In
support, he cites a page of his deposition in which he stated that he “specifically
mentioned to [Drucker] that [he] felt like [he] was discriminated against” by Besic
and McMillan. Id.; Johnson Dep. at 64:8–16. In addition, he cites an affidavit that
he submitted along with his summary judgment filings, in which he states: “On or
about June 21, 2013, I met with Bethany Drucker [ ] and filed a charge of sex
discrimination with Ms. Drucker.” Johnson Aff. ¶ 17, ECF No. 100. 10 Drawing

CTA asks the Court to disregard Johnson’s affidavit to the extent it conflicts with
his deposition testimony. Def.’s Reply at 3–4, ECF No. 104. Indeed, it is well established
that “a plaintiff cannot rely on conflicting affidavits and deposition testimony in order to
defeat a motion for summary judgment.” Szymanski v. Rite-Way Lawn Maint. Co., 231 F.3d
360, 365 (7th Cir. 2000). But rather than conflicting with his deposition testimony, the
cited portion of Johnson’s affidavit merely supplements his prior testimony by specifying
that the complaint of discrimination he described in his deposition was a complaint of
gender discrimination. The Court will therefore consider this portion of Johnson’s affidavit
in reviewing CTA’s motion for summary judgment.
10

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inferences in Johnson’s favor, a reasonable jury could find from this evidence that
Johnson’s complaint to Drucker was a complaint of sex discrimination and thus
involved a statutorily protected activity. Johnson has therefore met his burden of
creating a triable issue of fact as to the first element of his retaliation claim.
B.

Causation

The third element of Johnson’s retaliation claim requires a showing that his
complaint to Drucker was causally connected to either his suspension or his
termination. Bagwe, 811 F.3d at 887–88. Johnson’s complaint to Drucker clearly
could not have caused his suspension, because the complaint was lodged over a
month after the suspension occurred.

Def.’s LR 56.1(a)(3) Stmt. ¶¶ 12, 25–26.

Thus, Johnson can avoid summary judgment on his retaliation claim only by
showing that his complaint to Drucker was causally connected to his termination
later in 2013.
To show a causal connection between a protected activity and an adverse
employment action, a plaintiff must show that the employer or supervisor who was
responsible for the adverse employment action had actual knowledge of the
protected activity. Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004);
Tomanovich, 457 F.3d at 668. Thus, to avoid summary judgment, Johnson must
provide evidence that an individual at CTA who made abolishment, termination, or
rehiring decisions regarding his employment had actual knowledge about his
complaint to Drucker.

But Johnson has adduced no such evidence.

Moreover,

CTA’s statement of facts confirms that no CTA employees, other than Drucker

17

herself, ever had knowledge of Johnson’s complaint.

Def.’s LR 56.1(a)(3) Stmt.

¶¶ 28–30. In support, CTA cites a portion of Johnson’s deposition in which Johnson
was unable to identify anyone else at CTA who may have known about the
complaint. Id. ¶ 28 (citing Johnson Dep. at 72:10–73:8). CTA also references the
testimony of Omar Brown, who is CTA’s Vice President of Human Resources and
was the person who informed Johnson in September 2013 of his position’s
abolishment.

Id., Ex. 14.

In his deposition, Brown attested that he had no

knowledge that Johnson had complained to Drucker or otherwise complained of
discrimination. Id. ¶¶ 29–30. In responding to CTA’s statement of facts, Johnson
denies that no one other than Drucker ever had knowledge of his complaint. Pl.’s
LR 56.1(b)(3)(B) ¶¶ 28–30. But he does not point to any supporting evidence as a
basis for this denial; nor does he otherwise offer any evidence to rebut CTA’s
assertions. Id. 11 He therefore has failed to create a genuine dispute of material fact
as to whether any CTA employee involved in abolishment, termination, or rehiring
decisions had actual knowledge of his complaint to Drucker.

In attempting to support his denial, Johnson relies upon an affidavit in which
Drucker describes a CTA meeting held on July 18, 2013. Pl.’s LR 56.1(b)(3)(B) Stmt. ¶¶ 28–
30 (citing Pl.’s LR 56.1(b)(3)(C) Stmt., Ex. F (“Drucker Aff.”) ¶¶ 6, 8). At the meeting, which
Brown attended, Drucker gave a presentation about “the underutilization of certain Races
and Genders in some areas [in CTA’s workforce] and an overconcentration of certain Races
and Genders in other areas when compared to the workforce in Cook County, Illinois.”
Drucker Aff. ¶ 6. At no point in the affidavit does Drucker state that she ever discussed
Johnson’s or any other individual’s discrimination complaints with anyone at CTA, whether
during the meeting on July 18, 2013, or otherwise. Johnson’s citation to Drucker’s affidavit
is therefore insufficient to support his denial of the relevant paragraphs of CTA’s statement
of facts. See Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000) (“[A] general denial is
insufficient to rebut a movant’s factual allegations; the nonmovant must cite specific
evidentiary materials justifying the denial.”).
11

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Next, Johnson suggests that the temporal proximity of his complaint to the
abolishment of his position is alone sufficient to show a causal connection. Pl.’s
Resp. at 8–9.

But for two reasons, this argument is unpersuasive.

First, the

temporal proximity of these events is immaterial given that Johnson has not
created a triable issue of fact regarding actual knowledge. See Luckie, 389 F.3d at
714–15. Furthermore, even if Johnson could point to evidence of actual knowledge,
his argument about temporal proximity is foreclosed by precedent. As the Seventh
Circuit has held, a three-month gap between a protected activity and an adverse
employment action is insufficient evidence on its own for a jury to infer that the two
events were causally related. See Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913,
919 (7th Cir. 2000) (three-month gap was insufficient to establish causation in
retaliation case); see also Bilow v. Much Shelist Freed Denenberg Ament &
Rubenstein, P.C., 277 F.3d 882, 895 (7th Cir. 2001) (casting doubt as to whether a
two-month gap could be sufficient). 12 As such, no reasonable jury could find, merely
based on the timing of the events in question, that the complaint to Drucker in June
2013 was causally connected to either the abolishment of Johnson’s position in
September 2013 or his subsequent termination.

In his brief, Johnson cites Sitar v. Ind. Dep’t of Transp., 344 F.3d 720 (7th Cir.
2003), for the proposition that a three-month gap between a protected activity and adverse
employment action is sufficient to suggest causation. But Sitar does not at all stand for
that proposition. The plaintiff in Sitar offered ample evidence of causation apart from the
timing of the events in question to support her retaliation claim. Id. at 728–29. Here,
Johnson offers no such additional evidence to buttress his allegations of causation. His
reliance on Sitar is therefore unpersuasive.
12

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Because Johnson has failed to adduce evidence indicating that his complaint
to Drucker was causally connected to any adverse employment action that he
suffered, no reasonable jury, considering the evidence as a whole, could find that
CTA’s decision to abolish Johnson’s position and terminate his employment was a
form of retaliation against a statutorily protected activity. As such, CTA is entitled
to summary judgment on Johnson’s retaliation claim.
Conclusion
For the reasons stated herein, CTA’s motion for summary judgment [88] is
granted. This case is hereby terminated.
IT IS SO ORDERED.

ENTERED

3/24/17

__________________________________
John Z. Lee
United States District Judge

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