Perry v. State of Illinois Department of Human Services

Filing 71

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 11/5/2018. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEITH PERRY,
Plaintiff,
v.
STATE OF ILLINOIS DEPARTMENT OF
HUMAN SERVICES,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 15-cv-06893
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiff Keith Perry is a man over the age of forty formerly employed by the Illinois
Department of Human Services (“DHS”). Perry claims that during his time at DHS, he endured
discrimination based on his age and sex and was retaliated against for asserting his rights.
Consequently, Perry brought this lawsuit against DHS pursuant to Title VII of the Civil Rights
Act (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. 621 et seq. Before the Court is DHS’s motion for summary judgment.
(Dkt. No. 37.) For the reasons discussed below, the motion is granted.
BACKGROUND
The Southeast Family Community Center is a local office of DHS that works with
customers, providers, and advocates regarding the provision of SNAP (food stamps), WIC (food
assistance), cash assistance, medical care, and other programs. (Pl.’s Resp. to Def.’s Stmt. of
Facts (“PRDSF”) ¶ 8, Dkt. No. 43.) On November 2, 1998, Keith Perry started working at the
Southeast Family Community Resource Center as a Human Services Caseworker. (Id. ¶¶ 4, 6.)
Perry’s job responsibilities included ensuring adherence to policies related to the provision of
food stamps, medical assistance, and other programs. (Id. ¶ 9.) During the relevant timeframe,

L.K. McIntosh was the Local Administrator at the Southeast Family Community Resource
Center. (Id. ¶ 11.) Directly below McIntosh in the chain of command were two Assistant Local
Office Administrators who oversaw approximately nine Casework Managers, including Perry.
(Id. ¶ 12.)
From April 2012 to June 2013, Perry was repeatedly reprimanded and suspended due to
several workplace incidents. This record of misconduct appears to begin on April 27, 2012, when
Perry was accused of making rude, discourteous, and threatening statements to an Assistant
Local Office Administrator, Dalphine Pearson. (Id. ¶¶ 14, 21.) Perry denied making the
statements but ultimately received a written reprimand for his behavior. (Id.) The decision to
reprimand Perry was based on six witness statements. (Id. ¶ 21.)
The next recorded incident occurred on August 10, 2012, when Lois Gillespie, the Intake
Manager, placed a file on Perry’s desk while he was servicing another customer. (Def.’s Resp. to
Pl.’s Stmt. of Add’l Facts (“DRPSAF”) ¶ 5, Dkt. No. 44; PRDSF ¶ 27–29.) What followed is
largely disputed, but the record indicates that Perry brought the file back to Gillespie and tried to
place it in her arms. The file dropped to the floor and Perry refused to retrieve it for over an hour
despite repeated directions from Gillespie to pick up the file. (PRDSF ¶¶ 27, 28.) As a result,
Perry received a one-day suspension for failing to follow supervisory instructions. (Id. ¶ 26.)
On October 12, 2012, Perry found himself in conflict with Gillespie again, although
exactly what happened is again largely disputed. According to DHS, McIntosh was sitting at the
first-floor security desk when he heard Perry loudly telling Gillespie that he was not going to
provide service to a customer assigned to him by Gillespie. (Id. ¶ 31.) McIntosh intervened and
instructed Perry to follow Gillespie’s instructions. (Id. ¶ 32.) The conflict escalated to the point
where Perry had to be pulled away from McIntosh by other coworkers. (Id. ¶ 34.) Perry contends

2

that he was not speaking loudly and was actually servicing another customer when Gillespie
made her request. (Id. ¶ 31.) Perry claims that McIntosh said he “was going to kick [Perry’s] ass”
and “fuck [him] up.” According to Perry, McIntosh also told Perry to “[s]top acting like a little
ass girl and do what Gillespie told you to do.” (DRPSAF ¶ 11.) Ken McCaffrey, the Bureau
Chief of the Workplace Violence/Internal Investigations Bureau for DHS, reviewed the incident
and determined that Perry had threatened McIntosh, had to be physically held back by
coworkers, and was in violation of the Workplace Violence Policy of DHS. (PRDSF ¶ 37.) As a
result of this finding, Perry was given a 29-day suspension. (Id. ¶ 38.)
On December 12, 2012, Perry was reassigned to field staff. (Id. ¶ 41.) DHS contends that
Perry was reassigned due to personality conflicts with his new supervisor, Charlotte Griffin, but
Perry claims he was reassigned in retaliation for performing union duties. (Id. ¶ 41.) During his
time under Griffin, he had numerous arguments with her, and according to DHS, he was
unwilling to accept Griffin’s supervisory instructions. (Id. ¶ 42.)
Although Perry was removed from Griffin’s supervision, his disputes with her continued
during the subsequent months. On June 7, 2013, Griffin reported that Perry had verbally
threatened her two days earlier during a dispute about leaving work early. (Id. ¶ 45.) Apparently,
the incident escalated to the point where Perry was escorted back to his desk—although he
denies that this escort was necessary. (Id. ¶ 46.) The incident resulted in a 45-day disciplinary
suspension for Perry. (Id. ¶ 48.)
During his 45-day suspension, Perry applied for SNAP food stamps. (Id. ¶ 51.) Perry
returned to work on October 15, 2013. (Id. ¶ 60.) At some point, the Southeast Family
Community Center was contacted by the DHS Roseland Office because Perry had an active case
at the Roseland office seeking food stamp benefits. (Id. ¶ 51.) Perry’s card was still being used

3

up until February 18, 2014—four months after his return to work. (Id. ¶ 58.) According to Perry,
he lost his SNAP benefits card before he returned to work. (Id. ¶ 57.) Perry states that he sent a
letter to the Roseland office in an attempt to cancel his benefits and also attempted to call the
office. (PSAF ¶ 27.) Perry claims that after he was contacted by DHS about fraud he paid back
the SNAP benefits used during the periods when he was ineligible. (Id. ¶ 59.)
On April 7, 2014, Perry was placed on Suspension Pending Discharge. (Id. ¶ 60.) DHS
claims that the suspension was a consequence of Perry receiving SNAP benefits for which he
was ineligible after returning to full-time employment. (Id. ¶ 60.) Perry was discharged effective
May 7, 2014. (Id. ¶ 62.)
Perry now claims that he suffered discrimination because of his age (Counts I and V) and
sex (Counts II and VI) while at DHS—as he suffered hardships, was made fun of and cursed at,
had derogatory statements made towards him, was unfairly disciplined, and was falsely accused
of actions he did not commit. (Id. ¶ 66.) With respect to the age discrimination allegation, Perry
testified that McIntosh once told him that DHS was getting rid of old-timers because those
employees could easily be replaced with young kids out of college. (Id. ¶ 68.) Perry also claims
that he was retaliated against for filing Charges of Discrimination with the Illinois Department of
Human Rights (“IDHR”) (Counts III, IV, and VII). Indeed, between January 3, 2013 and April 9,
2014, Perry filed four Charges of Discrimination with the IDHR, which were cross-filed with the
Equal Employment Opportunity Commission. (Id. ¶¶ 70–74.)
DISCUSSION
When considering a summary judgment motion, the Court construes all facts and
reasonable inferences in the light most favorable to the nonmoving party. See Harney v.
Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). But “favor toward the

4

nonmoving party does not extend to drawing inferences that are supported by only speculation or
conjecture.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (internal citation and
quotation marks omitted). The “mere existence of some alleged factual dispute” does not suffice
to defeat a motion for summary judgment. Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015)
(internal citation and quotation marks omitted) (emphasis in original). Rather summary judgment
is appropriate if “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). Material facts are those “that might affect the
outcome of the suit under the applicable substantive law.” Lawrence v. Kenosha Cty., 391 F.3d
837, 842 (7th Cir. 2004) (internal citation and quotation marks omitted). A dispute is sufficiently
genuine to defeat a motion for summary judgment only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. (internal citation and quotation marks
omitted).
I.

Age and Sex Discrimination

Title VII makes it unlawful for an employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Similarly,
the ADEA prohibits an employer from discriminating against an individual on the basis of his or
her age. Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 714 (7th Cir. 1999); see also 29 U.S.C.
§ 623(a) (“It is unlawful for an employer . . . to discharge any individual . . . because of such
individual’s age.”)
To establish a prima facie case of sex or age discrimination, the plaintiff must present
“evidence [that] 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

5

employment action.” Ortiz v. Werner Enter., Inc., 834 F.3d 760, 762 (7th Cir. 2016). Thus, in
Perry’s case, the “sole question that matters” is whether a reasonable juror could conclude that
Perry would have kept his job if he had a different age or sex, and everything else had remained
the same. Id. at 764. In assessing this question, the Court may use the “burden-shifting
framework” announced by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at 766.
But McDonnell Douglas is not the only way to assess evidence of discrimination. David v. Bd. of
Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017) (“McDonnell Douglas is
not the only way to assess circumstantial evidence of discrimination”). As explained in Ortiz,
Court may also simply ask “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.” Ortiz, 846 F.3d at 224.
A.

McDonnell Douglas Test

“Under McDonnell Douglas, a plaintiff establishes a prima facie case of sex or age
discrimination if [he] demonstrates, by a preponderance of the evidence, that: (1) [he] is a
member of a protected class; (2) at the time of termination, [he] was meeting [his] employer's
legitimate employment expectations; (3) in spite of meeting the legitimate employment
expectations of [his] employer, [he] suffered an adverse employment action; and (4) [he] was
treated less favorably than similarly[-]situated [female] or younger employees.” Peele v. Country
Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002). If Perry establishes a prima facie case of sex or
age discrimination, DHS must then produce a legitimate, nondiscriminatory reason for the
employee’s termination. Id. If the Defendant meets this burden, then Perry must present evidence
that the employer’s proffered explanation is pretextual. Id.

6

1.

The Protected Classes

Here, it is undisputed that Perry was a member of the protected class of employees “at
least 40 years of age,” 29 U.S.C. § 631(a). But with respect to sex discrimination, as a male,
Perry must adduce evidence of “background circumstances” of “something fishy going on” with
respect to the treatment of men at DHS to demonstrate that he qualifies as a member of a
protected class under Title VII. See Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir. 2003)
(“When a plaintiff is a member of a majority—for instance, a male plaintiff alleging gender
discrimination—we have said he must set out background circumstances that show the employer
discriminates against the majority, or he must show there is something fishy going on.”) (internal
quotation omitted).
As evidence of fishy background circumstances, Perry notes that “female managers were
often involved in inflating [his] alleged misdeeds.” (Pl.’s Resp. at 3, Dkt. No. 47.) But both
McIntosh and McCaffrey, two male employees, were involved in making decisions regarding
Perry’s reprimand, suspension, and ultimate termination.
Perry also broadly claims that female coworkers Leslie Oliver, Marcea Jones, Constance
Williams, Shawnee Washington-Geiger, Gwendolyn Myers, and Charlotte Griffin were treated
more favorably than Perry. (DRPSAF ¶ 35.) But he gives no details regarding how and when
those female employees were treated “more favorably.” The record is silent as to whether those
employees had the same supervisor and were subject to the same standards of employment as
Perry. Perhaps most importantly, however, Perry has not provided the Court with any evidence
that the female employees were accused of similar misconduct as Perry but treated more
leniently. Smith v. Chicago Transit Auth., 806 F.3d 900, 907 (7th Cir. 2015). Indeed, in his

7

statement of additional facts, Perry does not even say that these women were treated more
favorably but instead simply lists them as comparators.
As a result, Perry cannot defeat summary judgment on his Title VII sex discrimination
claim by invoking the McDonnell Douglas test. The Court thus proceeds with its analysis of the
McDonnell Douglas factors solely as to Perry’s age discrimination claim.
2.

Employment Expectations

The next issue the Court must consider with respect to Perry’s age discrimination claim is
whether Perry was meeting DHS’s legitimate employment expectations at the time of his
termination.1
The evidence regarding Perry’s employee performance is conflicting. Notably, on June 6,
2012, Perry received a written reprimand for rude and discourteous behavior. (Id. ¶ 21.) That
decision was based on six witnesses who stated that Perry acted unprofessionally in an
interaction with his supervisor. (Id.) Perry’s conduct in that instance failed to comply with the
Rules of Employee Conduct, which state that “[a]n employee shall not demonstrate inappropriate
behavior and/or discourteous treatment of the public, co-workers, client, and/or applicants.”
(PRDSF ¶ 19.) Besides this incident, however, the rest of the record regarding Perry’s alleged
insubordination and failure to follow procedure is contested.
In addition to disputing most of the evidence that tends to show his failure to meet
employee expectations, Perry’s overall argument in this case is premised on the notion that he
was unfairly disciplined because of age and race. In such a situation, “[e]ven if an employee was
not meeting his employer’s legitimate expectations, he can still establish a prima facie case . . . if
1

Perry argues that his earlier performance reviews establish that he met DHS’s legitimate expectations.
But Perry must show that he was meeting DHS’s expectations at the time of his termination, which would
include consideration of the evidence that he did not violate DHS policies. See Naik v. Boehringer
Ingelheim Pharm., Inc., 627 F.3d 596, 600 (7th Cir. 2010).

8

the company applied its expectations against him in a discriminatory manner.” Dossiea v. Bd. of
Educ. of City of Chicago, No. 07-cv-1124, 2008 WL 4133418, at *4 (N.D. Ill. 2008) (citing
Peele v. County Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002)). For example, “[w]hen a
plaintiff produces evidence sufficient to raise an inference that an employer applied its legitimate
employment expectations in a disparate manner (i.e., applied expectations to similarly[-]situated
. . . younger employees in a more favorable manner), the second and fourth prongs of McDonnell
Douglas merge.” Peele, 288 F.3d at 329. Thus, Perry’s case boils down to two issues: (1)
whether Perry was treated less favorably than similarly-situated, younger employees; and (2)
whether DHS’s reasons for reprimanding, suspending, and ultimately firing Perry were
pretextual.
3.

Less Favorable Treatment

Perry’s age discrimination claim fails the McDonnell Douglas test because he has not
presented any admissible evidence that other, younger DHS employees in his job title were
treated more favorably than he was treated. A plaintiff may demonstrate that another employee is
similarly situated by showing “that there is someone who is directly comparable to [him] in all
material respects.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). In
analyzing whether employees are “similarly situated,” the Court asks whether “there are enough
common features between the individuals to allow a meaningful comparison.” Humphries v.
CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007). Some factors considered in determining
whether two employees are similarly situated include if they “had the same supervisor, [were]
subject to the same standards, and engaged in similar conduct. Alexander v. Casino Queen, Inc.,
739 F.3d 972, 981 (7th Cir. 2014); see also Widmar v. Sun Chem. Corp., 772 F.3d 457, 467 (7th

9

Cir. 2014) (observing that the court must ask whether a younger, similarly-situated employee
“who [was] not performing up to expectations was also terminated”).
Perry claims that similarly-situated younger employees who engaged in the same or
worse conduct as he did were not suspended and discharged as a result. But Perry has not pointed
to the existence of any similarly-situated younger employee, let alone one who engaged in
similar conduct as Perry without reprimand or termination. Because Perry has failed to provide
evidence of similarly-situated younger employees, he has failed to state a claim for age
discrimination under the McDonnell Douglas test.
4.

Pretext

Even if Perry had presented a prima facie case under McDonell Douglas, he would still
fail to demonstrate a triable issue of fact as to whether DHS’s stated nondiscriminatory reasons
for suspending and ultimately terminating him—insubordination and unwarranted use of food
stamps—were pretextual.
To show pretext, “the plaintiff must present evidence suggesting that the employer is
dissembling.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). “The
question is not whether the employer’s stated reason was inaccurate or unfair, but whether the
employer honestly believed the reason it has offered to explain the discharge.” Id.; see also
Coleman v. Donahoe, 667 F.3d 835, 852 (7th Cir. 2012) (“[I]t is not the court’s concern that an
employer may be wrong about its employee’s performance, or may be too hard on its
employee.”) (quoting Naik v. Boehringer Ingelheim Pharms., Inc., 627 F.3d 596, 601 (7th Cir.
2010)). To demonstrate pretext, Perry must point to evidence from which a reasonable jury could
conclude that the defendant’s stated reasons for suspending or terminating him were “phony” or
a “lie.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). In claiming that the reasons

10

offered for his suspensions and termination were mere pretext, Perry simply asserts that he was a
model employee, members of the management disliked him, and he did not know that his
benefits card was being used while he was ineligible. Perry also questions the credibility of
DHS’s witnesses.
The Court first turns to Perry’s multiple suspensions. Regardless of the alleged credibility
of DHS’s witnesses (which would be a matter for a jury to evaluate), it is clear from the record
that Perry had volatile relationships and experiences with multiple other employees in his office.
Indeed, Perry admits to having numerous arguments with one of his supervisors, Griffin.
(PRDSF ¶ 42.) Perry also clashed with Gillespie and McIntosh. One of Perry’s disputes with
Gillespie and McIntosh was referred to the Bureau Chief of Workplace Violence, who
determined that Perry threatened McIntosh, had to be physically held back by coworkers, and
violated the Workplace Violence Policy. (Id. ¶¶ 31–37.) Perry does not allege or show that the
Bureau Chief was anything other than an objective observer to his situation. On a different
occasion, McIntosh sent a Workplace Violence Incident Report to the Bureau Chief of
Workplace Violence stating that Griffin, Perry’s supervisor at the time, reported that she was
verbally threatened by Perry during a dispute. (Id. ¶ 45.) The Bureau Chief determined that the
incident was unsubstantiated with respect to any work place violence but nonetheless found that
Perry acted in an unprofessional manner. (Id. ¶ 47.) Perry does not deny that he confronted
Griffin regarding their disagreements but seems to deny he was in the wrong during this incident.
(DRPSF ¶¶ 16–22.) Perry’s actions resulted in a 45-day suspension. (PRDSF ¶ 48.)
In sum, the undisputed record clearly shows that Perry clashed with numerous other
employees, some of those incidents were reviewed by an objective third-party, and Perry was
found in the wrong. Besides his own speculation, Perry has failed to identify any “weaknesses,

11

implausibilities, inconsistencies, or contradictions” regarding those facts. Boumehdi v. Plastag
Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007). Based on this evidence, no reasonable factfinder could find that DHS’s stated reasons for suspending and reprimanding Perry were
pretextual.
Next, the Court considers DHS’s stated reason for firing Perry—the use of his SNAP
benefits card long after he was ineligible for food stamps. Perry argues that this reason for
terminating his employment was pretextual because he did not know his card was still active. But
it is certainly plausible that DHS would expect Perry, whose job is to explain eligibility criteria
and requirements for public assistance programs, to strictly adhere to SNAP guidelines. Indeed,
because DHS would expect Perry to understand how to close out his SNAP benefits card
properly, his failure to do so indicates one of two things: either Perry did not understand benefits
compliance (knowledge that is crucial to his position) or he did understand how to close out a
SNAP card properly and his continued use of benefits for which he was ineligible was willful.
Either way, the failure to close out his SNAP card properly certainly constitutes a credible
explanation for Perry’s firing. Therefore, in the absence of any evidence to the contrary, there is
no basis in the record for the Court to question DHS’s stated reasons for suspending and
ultimately terminating Perry.
B.

Reviewing the Evidence as a Whole

Of course, a plaintiff need not rely on the burden-shifting framework of McDonell
Douglas and may instead defeat a motion for summary judgment in a discrimination case by
showing that a “reasonable factfinder” could conclude that the plaintiff’s protected classification
“caused the discharge or other adverse employment actions.” Ortiz, 834 F.3d at 765. For this
analysis, “all evidence belongs in a single pile and must be evaluated as a whole.” Id. at 766.

12

Notably, there is barely any mention of Perry’s age or sex in the record before the Court.
The only time sex is mentioned in the record is during the recounting of an incident when
McIntosh allegedly told Perry to stop acting like a little girl. This lone statement is insufficient to
demonstrate gender discrimination, however. Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772,
781–82 (7th Cir. 2007) (“We have held . . . that stray remarks that are neither proximate nor
related to the employment decision are insufficient to defeat summary judgment.”). Moreover,
Perry claims that he was discriminated against because he was male and not because he failed to
adhere to the male-sex stereotype. Thus, this remark does not support the type of sex-based
discrimination Perry alleges.
Additionally, the only evidence Perry produces of age animus by his supervisors is a
statement from McIntosh that DHS was “getting rid of old-timers because these employees could
be easily replaced with young kids out of college.” (PRDSF ¶ 68.) In some circumstances, a
single comment or remark can suffice to create an inference of discrimination if it “(1) was made
by the decision-maker, (2) around the time of the decision, and (3) referred to the challenged
employment action.” Mach v. Will Cty. Sheriff, 580 F.3d 495, 499 (7th Cir. 2009). Here, the
isolated remark was made by the decisionmaker, McIntosh, and he at least threatened the
challenged employment action. But Perry cannot establish that the comment was made around
the time that Perry was terminated because he was unable to recall when the comment was made.
See Crotteau v. St. Coletta of Wisc., 200 F. Supp. 3d 804, 813–14 (W.D. Wis. 2016) (finding no
inference of discrimination when the plaintiff was unable to explain when the decisionmaker
made the isolated remark). Furthermore, the ADEA requires that the plaintiff establish that age
“actually motivated the employer’s decision” and “had a determinative influence on the
outcome.” Schuster v. Lucent Techs., Inc., 327 F.3d 569, 573 (7th Cir. 2003). Even accounting

13

for this remark, it would not be sufficient to establish that age was the determinative factor in
Perry’s termination rather than his disciplinary incidents and failure to properly close out his
SNAP benefits card. DHS is therefore entitled to summary judgment on Perry’s age and sex
discrimination claims.2
II.

Retaliation Claim

In addition to his discrimination claims, Perry also accuses DHS of retaliating against
him for filing Charges of Discrimination with the IDHR.
Title VII and the ADEA prohibit an employer from retaliating against an employer for
asserting his or her right to be from discrimination under those statutes. 42 U.S.C. § 2000e-3(a);
29 U.S.C. § 623(d); Tank v. T-Mobile USA, Inc., 758 F.3d 800, 807 (7th Cir. 2014) (“Unlawful
retaliation occurs when an employer takes an adverse employment action against an employee
for opposing impermissible discrimination.”) (quoting Smith v. Bray, 681 F.3d 888, 896 (7th Cir.
2012)). Perry may establish retaliation under both Title VII and the ADEA by setting forth
“proof that (1) the employee engaged in statutorily protected activity; (2) [he] suffered an
adverse employment action; and (3) a causal link exists between the two.” Majors v. Gen. Elec.
Co., 714 F.3d 527, 537 (7th Cir. 2013); Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657
(7th Cir. 2012). In addition, as with the discrimination claims, Perry may use the McDonnell
Douglas framework to show “that (1) the employee engaged in statutorily protected activity; (2)
[he] was meeting [his] employer's legitimate expectations; (3) [he] suffered an adverse
employment action; and (4) [he] was treated less favorably than similarly situated employees
who did not engage in statutorily protected activity.” Majors, 714 F.3d at 537. The parties do not
2

The Court reaches this conclusion even considering paragraphs 18–19, 29–32, and 38 of Plaintiff’s
Local Rule 56.1 Statement of Additional Facts, which DHS argues should be disregarded as based on
inadmissible hearsay. (See Reply at 3, Dkt. No. 53.) Those facts mainly recount certain contentious
interactions that Perry had with his coworkers. However, they are largely immaterial and none connect his
interpersonal conflicts with unlawful discrimination based on age or sex.

14

dispute that Perry engaged in a protected activity when he filed a charge of discrimination with
the IDHR. Therefore, his retaliation claim centers on whether he suffered adverse employment
actions as a result of his IDHR filings and discrimination claims.
Perry first contends that the many disciplinary actions imposed on him by DHS are
clearly connected to his filings with the IDHR because there is simply no other reason for his
suspensions and ultimate termination. According to Perry, his history of good behavior and
positive performance reviews proves that he was suspended and ultimately terminated for
malicious reasons. Perry also notes that his 45-day suspension was disproportionate for the vague
offense of “conduct unbecoming a state employee,” implying that the reasoning was fabricated to
cover up the fact that management was punishing Perry for filing claims with IDHR. But to
establish a causal link, Perry must show that his filings were a “substantial or motivating factor”
in the adverse employment actions. Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 388 (7th
Cir. 2012). While the Court draws all reasonable inferences in Perry’s favor, “inferences that are
supported by only speculation or conjecture will not defeat a summary judgment motion.”
Herzog v. Graphic Packaging Int’l Inc., 742 F.3d 802, 806 (7th Cir. 2014) (quoting Tubergen v.
St. Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d 470, 473 (7th Cir. 2008)). Construing the
evidence in Perry’s favor, he has not presented sufficient evidence for a reasonable jury to be
able to infer that he was retaliated against for voicing concerns about discriminatory work
practices.
Alternatively, Perry argues that DHS retaliated against him by creating and tolerating a
hostile work environment after he filed discrimination charges with the IDHR. “The creation of a
hostile work environment can be a form of retaliation.” Smith v. Ne. Ill. Univ., 388 F.3d 559, 567
n.5 (7th Cir. 2004). But “[t]he work environment cannot be described as ‘hostile’ for purposes of

15

Title VII unless a reasonable person would find it offensive and the plaintiff actually perceived it
as such.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000). Perry undoubtedly
subjectively believed that his work environment was offensive, as evidenced by the number of
IDHR charges he filed. Thus, the Court will focus its attention on whether Perry’s work
environment was objectively offensive.
“In evaluating the objective offensiveness of a plaintiff’s work environment, we consider
all of the circumstances, including frequency and severity of the conduct, whether it is
humiliating or physically threatening, and whether it unreasonably interferes with an employee’s
work performance.” Racicot v. Wal Mart Stores, Inc., 414 F.3d 675, 677–78 (7th Cir. 2005); see
also Clemmer v. Office of Chief Judge of Circuit Court of Cook Cty. & State of Illinois, No. 06cv-3361, 2008 WL 5100859, at *14 (N.D. Ill. Dec. 2, 2008) (“[T]he elements of a hostileenvironment retaliation action are the same as any other retaliation claim . . . .”). Ultimately, the
conduct must be so severe or pervasive as to alter the conditions of employment. Ezell v. Potter,
400 F.3d 1041, 1047 (7th Cir. 2005). Simple teasing, offhand comments, and isolated incidents
(unless extremely serious) are not sufficient to demonstrate a change in the conditions of
employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). “These standards for
judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘general
civility’ code.” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
Perry primarily points to Griffin’s conduct as evidence of a hostile work environment.
Perry contends that after he and Griffin were separated due to their conflicts, she continued to
visit his workspace so she could watch him and take notes on when he left work. Additionally,
Perry claims that Griffin falsely accused Perry of leaving work early, threatening her, and using
profanity. Even if these claims were sufficient to show an objectively hostile work environment,

16

Perry has failed to produce evidence that Griffin was aware of Perry’s discrimination complaints
at the time of her allegedly retaliatory actions and targeted him because of those complaints.
Perry contends that Griffin knew about his January 3, 2013 IDHR Charge of
Discrimination because she was named in the complaint, the investigator attempted to contact
her twice, and Perry mentioned the complaint to Griffin. It is unclear, however, how Griffin
would know about the charge simply because she was named in the complaint—for instance,
Perry has not produced evidence demonstrating that individuals named in the complaint were
subsequently contacted. As for Perry’s allegation that an investigator contacted Griffin about the
complaint, the cited portion of the record does not support this claim. Indeed, Perry even cites to
an “Exhibit V” that is not included in his filing. The only evidence Perry produces to show
Griffin’s knowledge is his own testimony asserting that he told Griffin about the IDHR filing
before she was his supervisor. Even accepting Perry’s claim, this fails to show that Griffin was
acting out against Perry because of the IDHR filings and not simply because she did not like
him.
To establish such a link, Perry points to the closeness in time between his IDHR filings
and the alleged retaliatory actions of Griffin and the other supervisors. “Closeness in time
between the protected activity and the adverse employment action is evidence of the causal link
between the two events.” Majors v. General Elec. Co., 714 F.3d 527, 537 (7th Cir. 2013). But
“to survive summary judgment, the plaintiff must offer more evidence that supports the inference
of a causal link between the two events than simply close temporal proximity.” Id.; see also
Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2004) (“suspicious timing, standing
alone,” does not establish a causal connection). Perry presents no evidence of a causal link
between his complaints and his suspensions and ultimate termination. Instead, Perry urges the

17

Court to infer such a link based on the totality of facts presented. At best, Perry contends that
there was no reason for Griffin to harass him, and no reason for DHS to suspend and ultimately
fire him, other than to retaliate against him for filing complaints. But, as evidenced by his
confrontations with supervisors and his unwarranted collection of food stamps, DHS clearly did
have alternative reasons for reprimanding, suspending, and ultimately terminating Perry.
CONCLUSION
For the reasons discussed above, DHS’s motion for summary judgment (Dkt. No. 37) is
granted.

ENTERED:

Dated: November 5, 2018

__________________________
Andrea R. Wood
United States District Judge

18