Abrego v. Robert A. McDonald, Secretary of Veteran Affairs

Filing 45

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 10/24/2017: For the foregoing reasons, the Court grants the Secretary's motion for summary judgment [dkt. no. 32] and directs the Clerk to enter judgment in favor of the defendant and against the plaintiff. Mailed notice. (pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ALFREDO ABREGO,

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Plaintiff,
vs.
DAVID J. SHULKIN, Secretary of
Veterans Affairs,
Defendant.

Case No. 15 C 1281

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Alfredo Abrego has sued his former employer, the Secretary of Veterans Affairs
(VA), 1 alleging race and sex discrimination, retaliation for prior complaints regarding
discrimination, and a hostile work environment in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). The Secretary has moved for
summary judgment. For the reasons stated below, the Court grants the Secretary's
motion.
Background
Abrego is a Hispanic male who worked as a dental assistant in a North Chicago
VA dental clinic within Captain James A. Lovell Federal Health Care Center (Lovell
FHCC) from June 2011 through December 2014. Abrego initially was assigned to Dr.
Strampe, one of the clinic's dentists. Abrego came to believe that all the female dental
1

Pursuant to Federal Rule of Civil Procedure 25(d), David J. Shulkin, the current
Secretary of Veterans Affairs, is substituted as defendant for former Secretary Robert A.
McDonald.

assistants received better treatment and that he was being discriminated against by Dr.
Strampe and others based on his gender and race.
In August 2012, Abrego filed an equal employment opportunity (EEO) complaint
alleging race and gender discrimination related to a hostile work environment. In this
complaint, Abrego identified a number of incidents that he believed to be discriminatory:
(1) On August 9, 2011, Dr. Strampe wanted to work with a female
assistant instead of Abrego;
(2) On August 10, 2011, Dr. Strampe was "short tempered" with Abrego
over the computer;
(3) On August 11, 2011, Dr. Strampe continued to be short tempered with
Abrego in the operatory room;
(4) On August 12, 2011, Abrego was "harassed" by Dr. Strampe;
(5) On August 15, 2011, Dr. Strampe and department head Dr. Bidny
"ambushed" Abrego with "lies/false allegations";
(6) On August 16, 2011, Dr. Bidny told Abrego that he could be terminated
for attitude;
(7) On September 9, 2011, Abrego was notified that he had not completed
certain training;
(8) On October 8, 2011, Dr. Strampe was "banging" on the bathroom door
looking for Abrego;
(9) On December 30, 2011, Dr. Strampe was short tempered with Abrego
for requesting a "59"; 2
(10) On January 3, 2012, Dr. Strampe did not allow Abrego to defend
himself when a patient insulted him;
(11) On January 20, 2012, Dr. Strampe again was short tempered with
Abrego for invoking a "59";
(12) On January 26, 2012, Dr. Strampe and Dr. Bidny requested a
meeting with Abrego, "ambushed [him] about the problems that were
occurring," and Dr. Strampe left the meeting without answering any of
Abrego's questions;
(13) On February 3, 2012, Abrego told Dr. Bidny that he was tired of
having problems with Dr. Strampe and that he is "demanding for him to go
to mediation";
(14) On February 7, 2012, Dr. Bidny informed Abrego that Dr. Strampe
was quitting;
(15) On March 29, 2012, Abrego was reassigned to another dentist.
2

Under the so-called "59-minute rule," staff is allowed to leave 59 minutes before
quitting time if it will not adversely affect patient care. The rule is most commonly used
on a Friday before a three-day weekend or in inclement weather situations. See Def.'s
Statement of Undisputed Material Facts (SUMF), Ex. 2 (Strampe Dep.), 60:11-61:12.
2

Abrego refused to sign Dr. Strampe's mid-evaluation of him because it
contained "false allegations." Dr. Strampe showed more respect to his
new female assistant, and he took his female assistant and a volunteer on
ward exams when he never took Abrego;
(16) On March 29, 2012, Abrego emailed EEO Program Manager/ADR
Coordinator Nancy Gember about the discrimination against him, but she
did not respond for a month. When she did respond, she was short
tempered. When Abrego emailed Patrick Sullivan about this, he never
heard back;
(17) On March 30, 2012, Abrego tried to set up a meeting with Captain
Oxford, the Associate Director of Dental Services, to discuss his
evaluation, but Oxford's senior chief "seemed to try to discourage" him,
wanting Abrego to talk to Dr. Fredrickson, Assistant Director of Dental
Services, instead;
(18) On April 4, 2012, Abrego's new supervising dentist, Dr. Hartel,
informed Abrego that Dr. Frederickson "was trying to influence him" by
using Dr. Strampe's prior mid-evaluation for his September 2012
evaluation; and
(19) On June 28, 2012, Dr. Strampe agreed to attend mediation after
Abrego's third attempt.
Def.'s SUMF, Ex. 28. Abrego filed another EEO complaint in February 2014, this time
alleging retaliation. In support of this allegation, Abrego stated that he received a "fully
successful" rating instead of an "exceptional" one in October 2013, received a two-week
suspension without pay for recording statements by a supervisor, and his supervisors
illegally accessed his medical records. Def.'s SUMF, Ex. 29. The VA Office of
Employment Discrimination Complaint Adjudication consolidated the August 2012 and
February 2014 complaints and ultimately determined that Abrego failed to prove that he
had been discriminated against based on race, sex, or retaliation. Am. Compl., Ex. A at
32.
In October 2014, Abrego filed another EEO complaint, in which he alleged the
following:
(1) On June 4, 2014, dental assistant supervisor Pietrzyk harassed
Abrego for coming in late;
(2) On June 4, 2014, Pietrzyk required Abrego to take personal leave to
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participate in a VA-authorized teleconference;
(3) On June 5, 2014, Pietrzyk hassled Abrego because he had a meeting
with his union representative during work hours;
(4) On June 5, 2014, Pietrzyk was "giving [Abrego] grief about everything,"
including his VA-authorized instruction of Team Stepps classes;
(5) On June 26, 2014, during Abrego's mandatory 15-minute break,
Pietrzyk sent Abrego an email that she was looking for him;
(6) On June 30, 2014, Pietrzyk did not allow Abrego to be the "secondary"
for a Basic Life Support class;
(7) On July 3, 2014, Abrego felt light-headed after donating blood and told
Pietrzyk that he was going to seek medical attention. Pietrzyk called the
health center to make sure Abrego was there;
(8) On July 8, 2014, Pietrzyk told Abrego that Dr. Fredrickson wanted him
to stop instructing Team Stepps and Preventive Management of Disruptive
Behavior (PMDB) classes;
(9) On July 10, 2014, Pietrzyk walked out of a meeting and blamed
Abrego for it;
(10) On July 15, 2014, Pietrzyk did not allow Abrego to instruct a
scheduled Team Stepps class even though other assistants could have
filled in for him;
(11) On July 16, 2014, Pietrzyk "threatened" Abrego that he would be
written up for the third time because he wanted union representation
present at a meeting he was supposed to have with her;
(12) On August 6, 2014, Pietrzyk harassed Abrego for failing to put away
the laundry although he was working with a dentist and had patients all
day, while other employees were not working with dentists;
(13) On August 6, 2014, Pietrzyk issued Abrego a Letter of Inquiry 3 that
contained "false allegations," because he was taking Pietrzyk to
mediation;
(14) On August 7, 2014, Abrego's schedule for instructing Team Stepps
and PMDB classes was monitored;
(15) On August 20, 2014, Pietrzyk sent an email claiming that Abrego was
watching and intimidating other employees;
(16) On September 23, 2014, Pietrzyk claimed she did not know Abrego
was teaching a Team Stepps class that day even though she previously
received an email about it, and;
(17) On September 30, 2014, Abrego left the dental department because
he needed medical attention. When Abrego returned, Pietrzyk told him
that he should have notified her before leaving.
Def.'s SUMF, Ex. 31.

3

A Letter of Inquiry is a formal request for information that can be used as evidence to
support a proposed disciplinary action, but it is not a disciplinary tool "in and of itself."
Def.'s SUMF, Ex. 13 (Dr. Holt Dep.), 9:13-9:23.
4

In November 2014, Abrego received a proposed removal letter that charged him
with three counts each of "Inappropriate Conduct, including Conduct Unbecoming" and
"Failure to Follow Instructions and to Carry Out Assigned Duties." Def.'s SUMF, Ex.
24. 4 Abrego responded in writing and orally to the proposed removal letter. After
reviewing the evidence file prepared by Human Resources as well as Abrego's
response, the Director of Lovell FHCC, Dr. Stephen Holt, sustained the three
"Inappropriate Conduct" charges and one "Failure to Carry Out Assigned Duties" charge
and decided to remove Abrego from employment effective December 19, 2014. Def.'s
SUMF, Ex. 26. There is no evidence that Dr. Holt was aware of Abrego's EEO activity
beyond what Abrego himself noted in his response to the proposed removal.
In August 2015, the VA Office of Employment Discrimination Complaint
Adjudication issued a final agency decision on Abrego's October 2014 EEO complaint,
which it characterized as presenting allegations of "hostile workplace harassment,
based on gender (male) and reprisal (prior EEO activity)." Am. Compl., Ex. B at 4. The
August 2015 decision noted that Abrego had amended his complaint to include his
removal, and it identified three additional allegations that Abrego had not made in his
October 2014 complaint:
(1) On October 15, 2014, Abrego's supervisor issued him a Letter of
Inquiry regarding insubordinate behavior;
(2) On October 15, 2014, Abrego's supervisor inspected Abrego's
workspace, and;
(3) On October 22, 2014, Abrego received a "fully satisfactory"
4

Abrego has objected to the Secretary's use of excerpts from the proposed removal
letter in the SUMF on the grounds that the letter lacks a proper foundation and contains
hearsay. Pl.'s Resp. to Def.'s SUMF ¶¶ 45, 26-27. The excerpts may be considered in
this context because they are not offered to prove the truth of the matter asserted, but
instead to show Dr. Holt's state of mind at the time he decided to remove Abrego. See
Luckie v. Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004).
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performance rating.
Id. The Office of Employment Discrimination Complaint Adjudication also construed the
performance rating allegation and the removal as disparate treatment claims. It found,
however, that Abrego failed to prove he was subjected to discrimination or retaliation
with respect to any of the matters he alleged. Id. at 19.
Abrego filed this suit in February 2015. His November 2015 amended complaint
contains six counts and presents his claims in a somewhat confusing manner. Counts 1
and 4 are both titled "Title VII-Race Discrimination-Hostile Environment," and Counts 2
and 5 are both characterized as "Title VII-Sex Discrimination-Hostile Environment"
claims. Counts 3 and 6 both allege retaliation and hostile workplace environment based
on Abrego's protected EEO activity. Whereas Counts 1 through 3 do not reference any
particular incidents to support Abrego's discrimination, hostile workplace, and retaliation
claims, Counts 4 and 5 allege the following fifteen incidents of discrimination and hostile
environment, almost all of which were previously described in the October 2014 EEO
complaint:
1. On June 4, 2014, Abrego's supervisor questioned Abrego about his
whereabouts after he arrived late to work;
2. On June 4, 2014, Abrego's supervisor denied his request for leave in
order to participate in a teleconference from home;
3. On June 5, July 8, July 15, and August 7, 2014, Abrego's supervisor
questioned Abrego about his collateral duty assignments and monitored
his whereabouts during his scheduled work hours;
4. On June 26, 2014, Abrego's supervisor sent him an email inquiring
about his whereabouts during scheduled duty hours;
5. On June 30, 2014, Abrego's supervisor denied his request to take on a
collateral duty teaching assignment;
6. On July 3, 2014, Abrego's supervisor called the Employee Health
Department looking for Abrego, after he had donated blood and felt ill;
7. On July 10, 2014, Abrego's supervisor walked out of a meeting and
subsequently indicated that her decision to leave the meeting was
prompted by Abrego's demeanor;
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8. On July 16, 2014, Abrego's supervisor refused to provide him with an
explanation for why she had requested a meeting with him, and
threatened to write him up for insubordinate behavior;
9. On July 31, 2014, Abrego's immediate and second-line supervisors told
him that they wanted him to limit his collateral duty assignments;
10. On August 8, 2014, Abrego's supervisor expressed frustration when
he failed to comply with her instruction to put the used linens away;
11. On August 6, 2014, Abrego's supervisor issued him a Letter of Inquiry
for disrespectful conduct and for failing to timely complete job
assignments;
12. On August 20, 2014, Abrego's supervisor notified Abrego that his
coworkers had expressed discomfort with some of his workplace
behaviors;
13. On September 30, 2014, Abrego's supervisor instructed him to notify
her before leaving his duty station during scheduled work hours;
14. On October 15, 2014, Abrego's supervisor issued him a Letter of
Inquiry regarding insubordinate behavior;
15. On October 15, 2014, Abrego's supervisor inspected Abrego's
workspace.
Am. Compl. ¶¶ 26, 32. Count 6 alleges that Abrego's November 2014 proposed letter
of removal and his December 2014 removal constituted retaliation for his prior EEO
activity.
Based on the structure of the amended complaint, it appears that Abrego
intended Counts 1 through 3 to incorporate the incidents alleged in his first two EEO
complaints and addressed in the November 2014 final agency decision. See Am.
Compl., Ex. A. It also appears that Abrego intended Counts 4 through 6 to incorporate
the incidents alleged in the October 2014 EEO complaint and addressed in the August
2015 final agency decision. See id., Ex. B. The Court thus construes Abrego's claims
as follows. The race discrimination and hostile environment claims in Count 1, the sex
discrimination and hostile environment claims in Count 2, and the retaliation and hostile
environment claims in Count 3 are based on the incidents alleged in Abrego's August
2012 and February 2014 EEO complaints. The race discrimination and hostile

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environment claims in Count 4 and the sex discrimination and hostile environment
claims in Count 5 are based on the incidents alleged in the October 2014 EEO
complaint. Lastly, the retaliation and hostile environment claims in Count 6 are based
on the incidents alleged in the October 2014 EEO complaint, the November 2014
proposed letter of removal, and Abrego's subsequent removal in December 2014.
Discussion
Summary judgment is warranted "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment,
the Court draws all reasonable inferences in favor of the nonmoving party. Cole v. Bd.
of Trs. of N. Illinois Univ., 838 F.3d 888, 895 (7th Cir. 2016). Because discrimination
cases often involve questions of credibility and intent, "motions for summary judgment in
discrimination cases must be decided with particular care." Veprinsky v. Fluor Daniel,
Inc., 87 F.3d 881, 893 (7th Cir. 1996). Nonetheless, to survive summary judgment,
rather than resting on the allegations or denials contained in the pleadings, the
nonmoving party must set forth "specific facts" that show there is a genuine issue for
trial. Anderson, 477 U.S. at 248. Speculation is insufficient to create a genuine issue of
fact. Amadio v. Ford Motor Co., 238 F.3d 919, 927 (7th Cir. 2001).
The Secretary has moved for summary judgment on all of Abrego's claims. First,
the Secretary contends that Abrego did not exhaust his administrative remedies for the
race discrimination and related hostile environment claims in Count 4 and the sex

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discrimination claim in Count 5. With respect to the remaining race and sex
discrimination claims in Counts 1 and 2, the Secretary argues that Abrego cannot
establish a prima facie case. The Secretary also argues that Abrego cannot establish a
prima face case of retaliation (Counts 3 and 6). Lastly, the Secretary contends that all
of Abrego's hostile environment claims are deficient because he cannot show that the
Lovell dental clinic was an actionable hostile work environment.
Because different substantive standards apply to Title VII discrimination,
retaliation, and hostile work environment claims, the Court addresses them separately
below.
A.

Race discrimination claims (Counts 1 and 4)
Abrego alleges that he experienced race discrimination as a Hispanic dental

assistant at the Lovell VA dental clinic, in violation of Title VII of the Civil Rights Act of
1964, which prohibits employers from discriminating against employees based on race,
color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). To survive a motion
for summary judgment on a Title VII race discrimination claim, a plaintiff "must produce
enough evidence, whether direct or circumstantial, to permit the trier of fact to find that
his employer took an adverse action against him because of his race [or national
origin]." Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013); see also Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016) (on a motion for summary
judgment, the question is "whether the evidence would permit a reasonable factfinder to
conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor
caused the discharge or other adverse employment action").
As a preliminary matter, the Secretary contends that the race discrimination claim

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contained in Count 4 is not properly before the Court because Abrego has not
exhausted his administrative remedies with respect to that claim. A federal employee
must exhaust administrative remedies prior to filing suit under Title VII by filing a timely
EEO complaint with the agency. Reynolds v. Tangherlini, 737 F.3d 1093, 1099 (7th Cir.
2013). Once the plaintiff files suit, he "may pursue only those claims that could
reasonably be expected to grow out of the administrative charges." Id. at 1099-1100.
In contrast with Abrego's August 2012 EEO complaint, in which he specifically listed
both "race" and "gender" as bases for the alleged discrimination against him, the
October 2014 EEO complaint makes no mention of race or national origin either in the
complaint form itself or in the listing of conduct that Abrego attached to it. Def.'s SUMF,
Exs. 28, 31. A race/national origin discrimination claim could not reasonably have been
expected to grow out the charges contained in the October 2014 complaint, and the
administrative agency did not, in fact, read the EEO complaint as making any such
claim. See Am. Compl., Ex. B at 4 (characterizing the October 2014 complaint as one
of hostile workplace harassment based on gender and reprisal). Abrego has made no
attempt to respond to the Secretary's argument that he failed to exhaust this claim. For
this reason, the Court deems him to have waived the race discrimination claim
contained in Count 4. See Rabé v. United Air Lines, Inc., 971 F. Supp. 2d 807, 820
(N.D. Ill. 2013).
As for the race discrimination claim in Count 1, the Secretary contends that very
few of the incidents of which Abrego complains qualify as adverse employment actions
that are actionable under Title VII. To qualify as an adverse employment action for
purposes of Title VII, the complained-of act must be a "materially adverse" change in

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the terms and conditions of employment, such as a demotion accompanied by a
decrease in salary, a material loss of benefits, or "significantly diminished material
responsibilities." James v. Hyatt Regency Chicago, 707 F.3d 775, 782 (7th Cir.
2013). Conditions of employment that are designed to harass and humiliate an
employee based on his membership in a protected class also may qualify as an adverse
employment action, but only if the harassing conduct is severe or pervasive. Hilt-Dyson
v. City of Chicago, 282 F.3d 456, 466 (7th Cir. 2002). For example, a "mere
inconvenience or an alteration of job responsibilities" is not sufficiently disruptive to
constitute a materially adverse change. James, 707 F.3d at 782 (citation omitted).
Out of all the allegedly discriminatory incidents that make up Abrego's Count 1
race discrimination claim, Abrego's two-week suspension without pay appears to be the
only one that constitutes an actionable adverse employment action by itself. Not one of
Abrego's complaints about supervisors being "short tempered" with him or otherwise
criticizing his conduct describes behavior that could be considered severe or pervasive
enough to constitute an actionable adverse employment action. See, e.g., Brown v.
Advocate S. Suburban Hosp., 700 F.3d 1101, 1106-07 (7th Cir. 2012) (unfair criticism
and personality conflicts with supervisors or coworkers are not adverse employment
actions). Nor are Abrego's complaints about his less-than-glowing performance ratings
actionable, because he has not provided evidence that the ratings actually harmed him
in any way. See Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996) (negative
performance evaluations alone do not constitute an actionable adverse employment
action). Although Abrego suggested in his deposition that the ratings affected his
chances of receiving a bonus, see Abrego Dep. 199:22-200:2, he has not provided any

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admissible evidence to support that assertion.
Regardless of how many of Abrego's numerous grievances actually involve
materially adverse employment actions, however, his race discrimination claim fails for
an even more basic reason: Abrego has not pointed to any evidence in the record from
which a reasonable jury could conclude that any of the disparate treatment he alleges
was based on race or national origin. Abrego attempts to contrast the two-week
suspension without pay that he received for recording Dr. Bidny without permission with
the VA's decision not to discipline Dr. Bidny or management assistant Henne for
accessing Abrego's medical records in violation of HIPAA. See Def.'s SUMF, Ex. 23 at
20. Abrego also alleges, without any supporting evidence, that dental assistant Audrey
Velis was treated more favorably than he on account of race when she was not
disciplined after she "lost control" and cursed at a co-worker at the front desk. Id.
A perfect match between a plaintiff and his comparators is not required for a
court to find that they are "similarly situated" for purposes of a Title VII discrimination
analysis, but they need to be "similar enough to enable a meaningful comparison."
Coleman v. Donahoe, 667 F.3d 835, 848 (7th Cir. 2012) (internal quotation marks and
citations omitted). Specifically, when allegedly differential disciplinary treatment is the
basis for a discrimination claim, "the most-relevant similarities are those between the
employees' alleged misconduct, performance standards, and disciplining supervisor.”
Id. at 849 (internal quotation marks and citations omitted). Even if Abrego had the
evidence necessary to support his assertions regarding Velis, Dr. Bidny, and Henne, the
infraction that led to his suspension is not similar enough to their alleged misconduct to
allow for a meaningful comparison. Thus there is no evidence that would permit a

12

reasonable juror to infer that Abrego was treated differently because of his membership
in a protected class.
Instead of pointing to admissible evidence from which a reasonable factfinder
could infer race discrimination, Abrego merely repeats that he believes he was treated
differently from coworkers because of his race. E.g., Pl.'s Resp. at 10 ("Plaintiff
believed he was subjected to a racial and sexually hostile environment because of his
race and sex."); id. at 11 ("Abrego was informed . . . that Dr. Fredrickson wanted Abrego
out while he was on his probationary because she didn't like him, which Abrego
believed was based on his race (Latino) and his sex (male)."). The only evidence
Abrego cites to support these beliefs is his own deposition testimony. See Pl.'s
Statement of Additional Undisputed Facts (PSAF) ¶¶ 1-26. And Abrego's deposition
testimony, in turn, reveals that his race discrimination allegations are based on nothing
more than speculation. E.g., Abrego Dep. 80:6-80:22 (explaining that he believes that
he was discriminated against on the basis of race when his medical records were
illegally accessed because "I'm the only male Latino in that department"); id. at 86:1887:2 (when asked whether he is alleging that an incident in which Dr. Strampe
discouraged him from going to a medical appointment was race discrimination, Abrego
responds "Yeah. Why wouldn't it be?"). Abrego's own beliefs on this score are likely
inadmissible in evidence, and in any event they are insufficient to give rise to a genuine
factual dispute over whether he was the victim of race discrimination. See Boss v.
Castro, 816 F.3d 910, 919 (7th Cir. 2016) (conclusory assertions are not evidence, and
they do not help a plaintiff survive summary judgment). Because Abrego has provided
no actual evidence from which a reasonable jury could infer that he was discriminated

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against on the basis of race, the Secretary is entitled to summary judgment on Counts 1
and 4. Amadio, 238 F.3d at 927.
B.

Sex discrimination claims (Counts 2 and 5)
Abrego also alleges sex discrimination in violation of Title VII. To survive a

motion for summary judgment on a Title VII sex discrimination claim, a plaintiff must
produce evidence that would permit a reasonable juror to find that an adverse
employment action was attributable the plaintiff's sex. See, e.g., David v. Bd. of Trs. of
Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).
First, the Secretary argues that Abrego has not exhausted his administrative
remedies with respect to the sex discrimination claim contained in Count 5. Abrego's
October 2014 EEO complaint did not attribute any of the events described in the
complaint to sex discrimination. The Secretary contends not only that the list of claims
in the October 2014 complaint contains no facts that would allow an inference of sex
discrimination, but also that the subsequent investigation did not uncover a sex
discrimination claim. The Secretary overlooks the fact that the VA Office of
Employment Discrimination Complaint Adjudication did, in fact, treat two of Abrego's
grievances as sex discrimination claims in the August 2015 final agency decision: the
complaint about the "fully successful" 2014 performance evaluation and the complaint
about his termination, both of which seem to have been added after Abrego filed his
original October 2014 EEO complaint. Am. Compl., Ex. 2 at 4. The decision treated
those two complaints both as claims of retaliation based on prior EEO activity and as
sex discrimination claims. Id. at 14-15. But although Abrego might be able to rebut the
Secretary's exhaustion argument as it pertains to the 2014 performance evaluation and

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his termination, he did not address exhaustion at all in his response to the Secretary's
motion. Thus, the Court finds that Abrego has waived the sex discrimination claim in
Count 5. See Rabé, 971 F. Supp. 2d at 820.
Even if Abrego had not waived this claim, the Secretary still would be entitled to
summary judgment. Abrego has not presented any evidence from which a reasonable
factfinder could find that he was discriminated against because of his sex.
As was the case with the race discrimination claim in Count 1, out of all the
incidents of alleged sex discrimination in Count 2, only Abrego's two-week suspension
without pay constitutes a materially adverse employment action that is actionable under
Title VII (the termination is not part of Count 2). Abrego has failed to identify evidence
from which a reasonable jury could conclude that he suffered adverse action because of
his sex. Abrego again cites the VA's decision not to suspend or otherwise discipline
Velis, Henne, and Dr. Bidny for certain infractions as evidence of sex discrimination
(notwithstanding the fact that Dr. Bidny, too, is male), but, as previously explained,
neither situation is sufficiently comparable to Abrego's such that a reasonable juror
could infer that he was treated differently because of his membership in a protected
class. Abrego's additional assertion that Velis was allowed to participate in a leadership
course during her probation period is likewise inapposite because he points to no
evidence that he attempted to participate in a similar course but was denied the
opportunity to do so. Def.'s SUMF, Ex. 23 at 19. Abrego also has suggested—without
providing evidence—that female dental assistants Agado, Anderson, and Thomas
received more favorable performance evaluations and bonuses. Id. This bare assertion
does not permit a reasonable juror to infer, by comparison, that Abrego was treated

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differently because he is male. Abrego points to no other evidence of sex
discrimination, aside from his own deposition testimony regarding his belief that he was
treated less favorably than the female dental assistants in the clinic. E.g., Abrego Dep.
41:25-42:7 (Abrego states that Dr. Fredrickson "wanted [him] out" because he was the
only male civilian Latino and that "[e]very female there" was treated differently than he
was). But as noted earlier, Abrego's unsupported beliefs are not evidence that would
sustain a claim of discrimination. For these reasons, the Secretary is entitled to
summary judgment on Counts 2 and 5.
C.

Retaliation claims (Counts 3 and 6)
Abrego alleges that he experienced unlawful retaliation after he began filing EEO

complaints. He also alleges a hostile work environment based on retaliation, which the
Court addresses in Section D of this opinion along with the other hostile work
environment claims. The Secretary contends that summary judgment is warranted on
Abrego's retaliation claims because cannot show a causal relationship between his prior
EEO activity and adverse employment action. To survive summary judgment on a Title
VII retaliation claim, a plaintiff must produce sufficient evidence for a reasonable
factfinder to conclude that (1) he engaged in a statutorily protected activity; (2) his
employer took a materially adverse action against him; and (3) there is a but-for causal
connection between the protected activity and the materially adverse action. Nicholson
v. City of Peoria, 860 F.3d 520, 523 (7th Cir. 2017); Burton v. Bd. of Regents of Univ. of
Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017). For purposes of a Title VII retaliation
action, a materially adverse action need not affect the terms and conditions of
employment, but it must be "one that a reasonable employee would find to be materially

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adverse such that the employee would be dissuaded from engaging in the protected
activity.” Poullard v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016) (citation omitted).
The anti-retaliation provision does not "protect against petty slights, minor annoyances,
[or] bad manners." Boss, 816 F.3d at 918.
There is no dispute that Abrego engaged in protected activity by filing EEO
discrimination complaints. Of the numerous employment actions of which Abrego
complains, only the two-week suspension and Abrego's ultimate removal constitute
materially adverse employment actions that would dissuade a reasonable employee
from engaging in protected activity. Although Abrego also alleges in his deposition that
Dr. Bidny urged him to drop his complaint in 2012, there is no basis to believe that a
request of this sort is enough to deter a reasonable employee from pursuing an EEO
complaint (it certainly did not deter Abrego).
Because Abrego has no direct evidence of a causal link between his suspension
or removal and his EEO complaints, he must rely on circumstantial evidence such as
"suspicious timing, ambiguous statements, treatment of similarly-situated employees,
and any other relevant information that could permit an inference of retaliation." Burton,
851 F.3d at 697. Employment actions that are not by themselves materially adverse
nonetheless may serve as circumstantial evidence of a retaliatory motive. Id. With
respect to timing, the mere passage of time between the protected act and the
materially adverse employment action does not preclude the possibility of a retaliatory
motive. Malin v. Hospira, Inc., 762 F.3d 552, 559 (7th Cir. 2014). On the other hand, in
the absence of other corroborating evidence, temporal proximity is rarely enough to
establish a causal link between the two. O'Leary v. Accretive Health, Inc., 657 F.3d

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625, 635 (7th Cir. 2011); Lang v. Illinois Dep't of Children & Family Servs., 361 F.3d
416, 419 (7th Cir. 2004). In O'Leary, for example, the Seventh Circuit held that an
employee's discharge within 60 days of expressing concerns about racial harassment
was insufficient evidence of causation. O'Leary, 657 F.3d at 635.
Abrego's suspension took place in January 2014. According to Abrego's
deposition testimony, the recording for which he was suspended was made over two
years earlier during an August 16, 2011 conversation with Dr. Bidny. Abrego Dep.
153:19-153:23. Because neither Abrego nor the Secretary addresses this point, the
Court has no way of knowing the reason for this large gap in time. What the Court does
know is that, at the time of the suspension, Abrego's only prior EEO activity was the
filing of his first EEO complaint back in August 2012. Of all the complained-of incidents
that do not rise to the level of materially adverse actions, the allegation that Dr. Bidny
urged Abrego to drop his EEO complaint is the only one that might serve as evidence of
a retaliatory motive, but that allegedly happened in 2012, long before the suspension
took place. No reasonable jury could find a causal link between the August 2012 EEO
complaint and Abrego's 2014 suspension based solely on that evidence, and none of
the other alleged incidents support an inference of retaliation.
There is a much smaller gap in time between Abrego's last EEO complaint, which
he filed on October 3, 2014, and the issuance of the November 19, 2014 letter notifying
Abrego of his proposed removal. The seven-week interval, however, is insufficient by
itself to permit a reasonable jury to find a causal connection between the two events.
And aside from the invoking the same flawed comparisons that the Court has discussed
between himself and Velis, Dr. Bidny, and Henne, Abrego points to no additional

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evidence that would permit a reasonable jury to infer a causal link between his removal
and past or ongoing EEO activity. Instead, Abrego merely asserts his belief that "many
issues of discipline in his employment files were fabricated" without pointing to any
evidence of such fabrication. 5 Pl.'s Resp. at 10. Abrego's retaliation claims therefore
cannot survive summary judgment.
D.

Hostile work environment claims (Counts 1 through 6)
Abrego also has alleged hostile work environment claims based on race (Counts

1 and 4), sex (Counts 2 and 5), and prior EEO activity (Counts 3 and 6). Title VII
prohibits employers from requiring its employees to work in an environment that is
discriminatorily hostile or abusive. Boss, 816 F.3d at 920.
The Secretary contends that Abrego has failed to exhaust his administrative
remedies with respect to the Count 4 claim of hostile work environment claim based on
race. The Court dismisses the Count 4 hostile work environment claim for the same
reasons that it dismisses the race discrimination claim in Count 4, as discussed in
Section A of this opinion.
The Secretary further argues that summary judgment is warranted on the
remaining hostile work environment claims because Abrego cannot establish that the
VA dental clinic was an actionable hostile work environment. To survive summary
judgment on a hostile work environment claim, a plaintiff must introduce "sufficient
evidence demonstrating (1) the work environment was both objectively and subjectively
offensive; (2) the harassment was based on membership in a protected class or in
5

Abrego's response to the November 19, 2014 letter of proposed removal includes a
letter to Dr. Holt, purportedly written by a Dr. Lepianka, that disavows a charge that
Abrego failed to set up his dental operatory on August 5, 2014. Def.'s SUMF, Ex. 25 at
19. Dr. Holt did not sustain that charge against Abrego. See Def.'s SUMF, Ex. 26 at 1.
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retaliation for protected behavior; (3) the conduct was severe or pervasive; and (4) there
is a basis for employer liability." Id. Courts consider the totality of the circumstances
when evaluating hostile work environment claims. Id. Factors to consider include "the
frequency of improper conduct, its severity, whether it is physically threatening or
humiliating (as opposed to a mere offensive utterance), and whether it unreasonably
interferes with the employee's work performance." Id.
Several of Abrego's complaints involve incidents in which his supervisors were
"short tempered" or critical of him. Many of his other complaints have to do with his
perception that supervisors excessively monitored his whereabouts and volunteer
activities during work hours. Even if such an environment was subjectively offensive to
Abrego, and even if it could be said to have interfered with his work performance, it
would be hard to call the interference unreasonable, and none of the complained-of
conduct was physically threatening or humiliating. Simply put, the workplace incidents
of which Abrego has complained, even when taken all together, fall far short of creating
a work environment that a reasonable juror could find to be objectively offensive,
severe, or pervasive. See, e.g., id. at 920-21 (no hostile work environment where
plaintiff complained about being marked absent without leave, criticized for not
attending a teleconference, being required to come to work on his telework day, and
having his midyear evaluation changed from "highly" to "fully" successful). Moreover, as
previously explained, Abrego has presented no evidence from which a reasonable
factfinder could infer that any of the alleged harassment was based on his race, sex, or
prior EEO activity. The Court therefore finds that summary judgment is warranted on
the hostile environment claims as well.

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Conclusion
For the foregoing reasons, the Court grants the Secretary's motion for summary
judgment [dkt. no. 32] and directs the Clerk to enter judgment in favor of the defendant
and against the plaintiff.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: October 24, 2017

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