Isbell v. Baxter Health Care Corporation

Filing 47

MEMORANDUM Opinion and Order: Defendant's motion for summary judgment 22 is granted. Signed by the Honorable Rebecca R. Pallmeyer on 3/31/2017. Mailed notice. (etv, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEBBIE ISBELL,
Plaintiff
v.
BAXTER HEALTHCARE,
CORPORATION,
Defendant.

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No. 15 C 7333
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Debbie Isbell worked for Defendant Baxter Healthcare Corporation (“Baxter”)
from 2007 to 2013; during the end of that time her job involved promoting Baxter’s products in
other countries. Beginning in 2012, Isbell complained, about, among other things, the tendency
of one of her coworkers, Blair Waite, to make comments about an erectile dysfunction drug,
including references to the marketing campaign for the drug and a few inappropriate jokes.
Isbell’s own performance drew criticism from her co-workers, as well. Waite began excluding
Isbell from meetings (it is unclear exactly when that started), and in July 2013, Isbell renewed
her complaints to Baxter HR and added that she was being retaliated against for her 2012
complaints.

Isbell’s supervisor, Antoinette Gawin, terminated Isbell in August 2013, after

receiving a variety of complaints from Isbell and about her. Isbell brought this action asserting
retaliation under 42 U.S.C. § 2000e, et seq. for her internal complaints of purported harassment
and retaliation.

Baxter has moved for summary judgment, which the court grants for the

reasons below.
BACKGROUND
Baxter, headquartered in Deerfield, Illinois, makes and markets healthcare products.
(Def. Baxter’s Local Rule 56.1 Statement of Undisputed Material Facts in Supp. of Summ. J.

Mot. (“DSOF”) [24] ¶ 1.) Baxter hired Isbell, 1 who had previous experience in the healthcare
industry, in March 2007 as a Group Marketing Manager in its “cellular therapies” business
(“CT”). (Id. at ¶ 3; Pl.’s Statement of Additional Facts in Resp. to Def. Baxter’s Mot. for Summ.
J. (“PSOAF”) [33] ¶ 1.)

Isbell’s responsibilities included, among other things, “conducting

market research; . . . working on regulatory issues; working on reimbursement issues; working
on a Japan project; creat[ing] contracts; participating in advisory boards; and attending medical
meetings.” (Pl.’s Resp. to Def. Baxter’s Rule 56.1(a) Statement of Undisputed Facts in Supp. of
Summ. J. Mot. (“Pl.’s Resp. to DSOF”) [38] ¶ 3.) Isbell had some disputes with her supervisor in
the CT group, none of which are relevant here. (See id.at ¶¶ 4–6.)
In November 2011, Isbell transferred into Baxter’s Renal Division, where she became a
Senior Manager for Market Access. (DSOF ¶ 9.) Market Access staff are “responsible for
developing tools and products to help [business units for different countries] gain access to the
health care system for an existing business[.]”

(Dep. of Bruce Culleton, Ex. D to PSOAF

(“Culleton Dep.”) [36] 18:22–19:10.) One of Isbell’s primary responsibilities in this role was to
create and maintain Baxter’s global value dossier (“GVD”), which was “intended to be a
repository of information from which all the marketers and people in that function would pull
information.” (Dep. of Antoinette Gawin, Ex. A to PSOAF (“Gawin Dep.”) [33-1] 82:16–83:1.)
Isbell worked on other projects, as well. (See id.) When she began working in Market Access,
Isbell reported to Gary Inglese, but after Inglese left Baxter at the end of 2012, Isbell began
reporting to Antoinette Gawin.

(DSOF ¶¶ 9, 12; see Gawin Dep. 4:3–6.)

Before Inglese

departed, he wrote Isbell’s 2012 performance review. (Dep. of Deborah Sarason, Ex. F to
PSOAF (“Isbell Dep.”) [40]–[43] 172:19–174:9.) Isbell testified that Inglese had told her that her
performance exceeded expectations, but when she received the review in early 2013, she found
that Baxter rated her as “meets expectations.” (Id.)

1

Plaintiff evidently changed her last name after the lawsuit commenced. (See
Isbell Dep. 6:9–7:2.) For simplicity, the court continues to refer to Plaintiff as Ms. Isbell.
2

I.

Isbell’s Internal Complaints at Baxter
A.

2012 Complaints to Inglese

Isbell’s complaints centered primarily on Blair Waite, a senior director of new product
development at the time Isbell was terminated. (Dep. of Blair Waite, Ex. E to PSOAF (“Waite
Dep.”) [37] 13:19–22.)

Before he worked at Baxter, Waite had worked at Eli Lilly

Pharmaceuticals, where he helped develop the marketing campaign for the erectile dysfunction
drug Cialis. (DSOF ¶ 52.) Waite acknowledged that when he worked at Eli Lilly, a coworker
had complained about a comment Waite had made about the physiological effects of Cialis, and
that Waite received a verbal warning as a result. (Waite Dep. 69:12–71:5.)
Isbell testified that during meetings, Waite “brought up Cialis and talked about Cialis and
what he did and how he launched it and how successful it was and how . . . he can bring that
marketing expertise . . . .” (Isbell Dep. 148:8–16.) Isbell also described two incidents where
Waite and Inglese joked about Cialis and erectile dysfunction in her presence, in December
2011 and March 2012. 2 (See id. at 148:8–151:15.)
Isbell described one incident that occurred in December 2011, when she was in Waite’s
office with Inglese and Waite. (Id. at 148:22–149:18.) Inglese and Waite spoke about Cialis
and made “innuendos, like bantering back and forth about like, hey, you know, I might need
some of that. Oh yeah. Oh yeah, I do too, and, it just, you know, it just was inappropriate.” (Id.)
According to Isbell, Inglese said “I need some of that,” while Waite responded “oh, yeah, yeah, I
bet you do.” (Id. at 149:19–23.) Isbell recalled that these comments went on for “maybe a
minute.”

(Id. at 149:24–150:4.)

On another occasion, in March 2012, Isbell was again in

Waite’s office with Waite and Inglese, “talk[ing] about work streams and strategies for market

2

Isbell characterizes the Cialis comments as “regularly talk[ing] about erectile
dysfunctions those meetings [sic], including ‘I need some of that’ and related comments.” (Pl.’s
Resp. to DSOF ¶ 53.) Isbell mischaracterizes her own testimony. The above quotations show
that Waite did indeed “regularly” talk about Cialis, but the “regular” discussions were in the
marketing context, while Isbell described the “I need some of that” and related comments only
on the two occasions mentioned.
3

access and where that fit into marketing work streams.”

(Id. at 150:5–19.)

Inglese again

mentioned Cialis, and the same kind of banter went on, again for about a minute. (Id. at
150:20–151:8.)
Isbell has identified only two occasions in which Waite joked about Cialis, though she
testified that Waite did continue to discuss Cialis in meetings. Isbell felt this was inappropriate,
because it was repetitive, it “had nothing to do with what we were working on,” and she “didn’t
really want to think about erectile dysfunction in [her] day-to-day work environment.” (Id. at
151:9–24.) Isbell does not explicitly say how many people were at these general meetings
where Waite described his successful marketing efforts for Cialis, but she testified “if he did it
once and said what a great marketer he was to the team of 40 people, that would have been
sufficient, but it kept being brought up again and again and again.” (Id. at 152:1–11.) Waite
denies that he made sexual jokes about Cialis at work, but acknowledged he may have done so
outside of work. (Waite Dep. 43:8–44:18.) He admitted that he may have made what Isbell
called “nonsexual” Cialis jokes in meetings; Waite’s example was that in a marketing meeting he
might have said “hey, I’ve gone this far [in this meeting] and I haven’t made a single marketing
reference to Cialis.” (Id. at 44:19–45:18.)
Isbell also complained that Waite kept “all this Cialis sales paraphernalia all over the
place” in his office. (Isbell Dep. 145:11–22.) Specifically, there were six or seven items: fiveinch long bathtubs bearing the Cialis logo (presumably an homage to the television ads
depicting side-by-side bathtubs), and some Cialis brochures.

(Id. at 146:15–147:9.)

Isbell

acknowledged that none of the Cialis promotional materials displayed genitalia, but she was
uncomfortable seeing them in a professional situation (id. at 147:10–22); she stated that she
looks away when she sees Cialis commercials on television. (Id. at 147:23–148:2.)
Isbell testified that Waite did other things that made her uncomfortable—on one
occasion, he “walked by [her] cubicle, stepped in, whispered in [her] ear, [‘]you’re paranoid.[’]”
(Id. at 145:2–8.) Sometime in 2012, Isbell told Inglese about this incident and added that she
4

was “very uncomfortable going into [Waite’s] office because there’s all this Cialis paraphernalia
all over the place, and . . . [she had] to listen to, you know, the chatter about, you know, joking
around about erectile dysfunction or alluding to it.” (Id. at 145:2–24.) Isbell recalls that the
Cialis marketing materials “went away about a week [after she talked to Inglese]” (id. at 159:3–
15), though Waite denies being told that Isbell had complained about him to Inglese. (Aff. of
Blair Waite, Ex. I to DSOF [24-4].)
B.

Complaints to Gawin About Exclusion

Waite testified that in March or April 2013, an employee named Bernadette Connolly
Buntin directed or recommended that Waite exclude Isbell from meetings at which employees
would discuss their individual “work streams” (these meetings were called “Work River”). (Waite
Dep. 17:8–22, 33:10–37:11.) Waite further testified that Isbell was also excluded from GVD
meetings (again, one of Isbell’s primary responsibilities), also beginning in March or April 2013. 3
(Id. at 38:18–39:1.) Isbell testified that Waite lied about the exclusion, telling her that it was the
result of an e-mail “glitch,” when she confronted him (she does not say when she did so). (Isbell
Dep. 45:23–46:18.)

Waite himself does not recall speaking directly with Isbell about her

exclusion from GVD meetings. (Waite Dep. 42:16–18.)
In late 2012 or early 2013, Isbell complained to Gawin that Waite was excluding her from
meetings. (Gawin Dep. 46:13–47:15.) Gawin testified that she did not document or report this
complaint because she did not believe Baxter required her to do so. (Id. at 47:16–48:24.) Isbell
told Gawin that the exclusion made it difficult for Isbell to complete her work. (Id. at 50:23–
51:10.) Sometime after Isbell complained to Gawin, Gawin spoke to Waite; at some point later,
Gawin says, Isbell told her she was being included more frequently.

(Id. at 58:19–60:23.)

Another time in 2012 or early 2013, Isbell again complained to Gawin, this time about being

3

Although Waite stated that it was Gawin and another employee, Susan Berek,
not Waite himself, who decided to exclude Isbell, he was testifying about the contents of an email. (Waite Dep. 39:2–13.) As the e-mail is not in the record, the testimony is inadmissible
(see below).
5

excluded from “broader renal team efforts.” (Id. at 62:9–64:1.) Gawin testified that another of
Isbell’s coworkers, Tom (no last name is specified) had complained about the same thing. (Id.
at 65:24–66:11.) Though Waite was part of the renal team, Gawin characterized this complaint
as a “general complaint,” not specifically about Waite. (Id. at 64:1–65:8.) Gawin spoke to the
renal group leader, but again did nothing else to document or report Isbell’s grievance. 4 (Id. at
65:9–67:4.) Gawin testified that Isbell “complained about a lot of people,” but these were the
only specific instances she could recall. (Id. at 67:10–24.)
II.

Baxter Employees’ Complaints About Isbell
Meanwhile, Gawin developed concerns about Isbell’s work performance. Specifically,

“Gawin’s personal observations of [Isbell’s] work led Gawin to conclude that [Isbell] did not
understand Market Access.” (DSOF ¶ 15.) Gawin attributed “a number of . . . big deliverables
that had been missed along the way” to Isbell’s performance (Gawin Dep. 81:24–82:4), and
Gawin believed Isbell “lacked the expertise to work effectively with Baxter’s key opinion
leaders.” (DSOF ¶ 17.)
Throughout 2013, multiple employees, including Baxter executives, complained about
Isbell, often directly to Gawin.

(Id. at ¶ 18.)

Isbell herself admits that several of these

complaints were made. (Pl.’s Resp. to DSOF ¶ 18.) In particular, sometime in 2013—Gawin
could not give a specific date—Seema Sondhi, who led Baxter’s European health economics
team, told Gawin that Sondhi’s team members found calls with Isbell to be “a waste of time and
unproductive[.]” (Gawin Dep. 74:3–75:21.) Gawin was unable to identify which team members
specifically felt this way. (Id.) Gawin also identified other complaints; though she did not say
when she received them, the parties apparently agree that the complaints against Isbell were

4

Isbell claims that Gawin’s failure to report these two complaints to HR violated
Baxter policy. (PSOAF ¶ 8.) In the deposition testimony she cites, however, her lawyer
attempted to establish that Baxter policy dictated that Inglese should have reported Isbell’s 2012
complaint. The testimony in question does not address Baxter policy for reporting Isbell’s
complaints that she had been excluded from meetings. Dep. of Julie Junkin, Ex. C to PSOAF
[34-1] 60:24–64:16.)
6

made in 2013. (Gawin Dep. 79:14–81:23; see DSOF ¶ 18.) Another health economics team
leader, Suzanne Laplante, told Gawin, as Baxter characterized it, “that [Isbell] did not
comprehend basic material, was not listening to other people’s input on conference calls,
ignored written input co-workers had sent her[,] and was alienating members of the global
team.” (DSOF ¶ 20.) Lili Wei Turek and Angela Murray, both Senior Directors for Market
Access, complained to Gawin about Isbell’s work performance. (Id. at ¶ 22.) Gawin testified
that Tom Dovas, another co-worker, “complained not about her performance, but because of
her performance, people were coming to him and asking him to do work that [Isbell] was
supposed to be doing.” (Gawin Dep. 80:3–15.)
Similarly, on June 25, 2013, Bruce Culleton, Baxter’s Senior Medical Director, e-mailed
Turek and another employee, who presumably had some authority over staffing, about staffing
for a strategy team. (Ex. 1 to Aff. of Antoinette Gawin (“Gawin Aff.”), Ex. C to DSOF [24-2]; see
Culleton Dep. 15:8–19.) Culleton requested that Isbell and another employee be replaced with
“more senior members of Market Access.” 5 (Id.) On July 19, 2013, he again e-mailed Turek,
this time relating that two Baxter employees, Hoyee Leong and Rona McGreevy, were
very concerned with [Isbell’s] style in the management of a trusted vendor and
her poor communication skills with the internal GVD team. Rona McGreevy
stated that she was embarrassed by [Isbell’s] behavior during a teleconference[.]
I strongly believe that [Isbell’s] ongoing participation in this process will lead to
continued dysfunction, missed timelines, and poor quality.
(Ex. 2 to Gawin Aff., Ex. C to DSOF [24-2].)
Culleton also testified that he met with Leong and McGreevy, and that McGreevey told
Culleton about a conference call; McGreevey said that she “had never felt so embarrassed to be
a Baxter employee because of [Isbell’s] performance and the way she treated the people on the

5

Culleton also testified to the contents of this e-mail at his deposition (Culleton
Dep. 25:4–19), which Isbell objects to as inadmissible. (Pl.’s Resp. to DSOF ¶ 24.) The court
will exclude the testimony (see below), but the court notes that Culleton’s testimony is not
inconsistent with the contents of the e-mail itself, which is in the record and properly considered
by the court.
7

other end of the line.” (DSOF ¶ 28; Culleton Dep. 29:21–34:11.) Turek forwarded both of
Culleton’s e-mails to Gawin. (See Ex. 1–2 to Gawin Aff., Ex. C to DSOF.) Gawin testified that
sometime in 2013, while the GVD project was in progress, she discussed Isbell’s performance
with Culleton; Gawin characterized Culleton’s opinion as “[Isbell] doesn’t know what she’s
doing.” (Gawin Dep. 78:19–79:13.) Without offering more specifics, Culleton himself testified
that he was “frustrated” about the GVD development and that he “felt that [Isbell] was
incompetent in her management and development of the GVD. The GVD . . . . was next to
garbage when it was done. So much so that we had to suggest that [the project vendor] start
again.” (Culleton Dep. 41:19–42:7.)
Waite also testified to several complaints that he received about Isbell, though he did not
recall when they occurred.

(Waite Dep. 62:21–63:6.)

For example, Derek Wiebenson, a

manager in Europe, complained that “[Isbell] had not taken . . . feedback” despite “repeated
attempts.” (Id. at 63:1–3, 7–23.) Waite also related complaints from Josh Miller, a senior
director of operations and strategy, that Isbell did not listen to feedback and that Miller would not
“go to any more meetings [for a project that Isbell led] because there wasn’t a value in them.”
(Id. at 63:3–4, 63:24–64:9.)

Waite testified that he received complaints from Ursula

Ruegsegger, director of marketing in Europe, and Keely Stevenson, a manager in Europe, as
well, though he did not describe the contents of those complaints. (Id. at 62:21–63:6.) Waite
described a meeting in January or February 2013 with “leadership” 6 where he gave feedback
about Isbell for a written review. (Id. at 56:11–58:2, 58:18–59:5.) Waite does not recall whether
Gawin attended that meeting, but he believed that he met with Gawin about Isbell’s
performance “in that period of time.” (Id. at 58:12–17.)

6

Waite testified that Miller, Eric Noshay, and his own supervisor, Lisa Rometty
were present, along with Baxter HR representatives and others he could not recall. (Waite Dep.
56:11–59:5.)
8

Isbell testified that, in May or June 2013, Gawin told her that Waite and Culleton did not
want her attending their meetings. 7 (Isbell Dep. 167:23–169:15.) Culleton, however, did not
recall discussing Isbell’s performance with Gawin.

(Culleton Dep. 24:1–7.) In light of the

resistance to Isbell’s participation in meetings, Gawin testified that she “struggled” to determine
how Isbell could “get the content and deliverable met.” Gawin concluded that Isbell “did not
understand [M]arket [A]ccess.” (Gawin Dep. 69:5–24.) Gawin described her opinion of Isbell’s
work:
[W]e were getting to a point where no one wanted to work with [Isbell].
So we not only had an issue of the projects not being delivered, I had been
rescoping and restructuring them and putting other people in those projects so
that we could get them delivered to the rest of the business. But we got to a
point where I had nothing left that I could scope out so narrowly to let her do.
And she had alienated so many people that we were losing credibility as a team,
as function, and I was losing credibility personally because I wasn’t addressing
the issue.
(Id. at 82:1–15.)

Gawin had “ongoing discussions about [Isbell’s] performance[,]” and she

testified that she and Isbell had “very frequent coaching sessions.” 8 (Id. at 73:1–74:2.)

7

Isbell denies this partially because “Culleton denied that he was ever formally
charged with the responsibility to, or was ever asked to, evaluate Ms. Isbell’s performance.”
(Pl.’s Resp. to DSOF ¶ 37.) But this is not inconsistent with Culleton’s testimony. He did testify,
moreover, that he “informally” provided feedback to Susan Berek and Lili Turek. (Culleton Dep.
24:8–15.)
8

Isbell partially denies this fact on the grounds that “Ms. Gawin testified, without
foundation, that Ms. Isbell ‘knew’ that they were having so-called ‘coaching’ sessions, but did
not testify that [Gawin] ever told [Isbell] that these were coaching sessions.” (Pl.’s Resp. to
DSOF ¶ 39.) Gawin testified that she did tell Isbell that these were coaching sessions:
Q:
. . . [H]ow many times do you claim you talked to her verbally about her
allegedly not having the skills or competencies?
A:
I don’t know that I could put a number on it, but we had very frequent
coaching sessions.
Q:
Did you tell her—
A:
I—
Q:
—that they were coaching sessions?
A:
Yes. She knew that they were coaching sessions.
9

Gawin testified that she started discussing terminating Isbell with Julie Junkin, Baxter’s
Human Resources Director. (Id. at 83:15–84:9; Dep. of Julie Junkin, Ex. C to PSOAF (“Junkin
Dep.”) [34-1] 21:2–23.) She could not, however, recall precisely when this first discussion
occurred, other than it was “probably” two to three months before actually terminating Isbell in
August 2013:
Q:
A:

Q:

A:

Okay. When did you talk to Junkin about firing [Isbell]?
Without going back through logs, I don’t know precisely. But I would—it—
it would have probably been—you know, we had been talking about her
performance for some time. So when somebody is underperforming at
that level, letting go of somebody is always something you’re thinking
about, you know, if this person doesn’t work out, particularly with a really
small team. So I would say probably, in the, you know, two to three
months leading up to that at least.
Because you—you—so you talked to—according to you, you talked to
Junkin about firing Debbie two to three months prior to the time that she
was fired?
Probably. I think things came to a head because we had gotten so many
formal complaints from other parts of the business where people were
then going in to their HR people and saying these market access people
don’t know what they’re doing.

(Gawin Dep. 83:15-84:9.) Junkin testified that she told her own supervisor that Gawin wanted to
let Isbell go in “[a]pproximately the end of June, the beginning of July of 2013.” (Junkin Dep.
58:2–22.) Gawin testified that she and Junkin “both went away [from their discussion about
terminating Isbell] and said let’s think about it, what are the other options.” (Gawin Dep. 85:9–
18.) Gawin thought that Junkin “wanted to talk about it with her HR leader” and “wanted to
check with some other people, you know, about implications,” while Gawin “wanted to think
about it in the context of the team, and was something else [sic] we could do.” (Id. at 85:9–23.)
On July 12, 2013, Isbell e-mailed Gawin that she wanted to apply for two other positions
posted at Baxter. (Ex. 29 to Isbell Dep., Ex. B to DSOF [24-1] at 538.) On July 24, 2013, Gawin
and Isbell had a phone conversation about Isbell’s performance. (DSOF ¶ 43; see Isbell Dep.

(Gawin Dep. 73:10–20) (emphasis added.) Whatever label may have been attached, Isbell
does not deny frequent meetings with Gawin about her performance. (Pl.’s Resp. to DSOF
¶ 39.)
10

230:22–235:21.) The parties agree that Gawin “screamed” at Isbell (DSOF ¶ 44), and Isbell
testified that it “was a one-way conversation, and there were not questions asked of me. It was
basically [Gawin] screaming at me[.]” (Isbell Dep. 234:16–235:7.) Gawin told Isbell that “this
isn’t working out.” (DSOF ¶ 45.) Gawin wrote a memorandum to summarize this conversation;
Gawin wrote that she warned Isbell that her “relationships within the team have deteriorated,
and the working process is challenging at best.” (Ex. 3 to Gawin Aff., Ex. C to DSOF [24-2].)
Gawin’s memo also states that she told Isbell that Gawin had received “unsolicited feedback”
about “unprofessional behavior” and “unwillingness to support group decisions.” (Id.) Gawin
“urged [Isbell] to reflect on her assumptions” and “evaluate both her communications and her
interpersonal interactions.” (Id.) Isbell denies that the memorandum accurately reflects the call,
but does not explain how it is inaccurate. (Pl.’s Resp. to DSOF ¶ 46.)
III.

Isbell’s July 2013 Complaint to Junkin and Investigation
On July 12, 2013 (the same day that Isbell e-mailed Gawin about her interest in other

positions), Isbell e-mailed HR Director Junkin with three complaints. First, she complained that
Waite “continues to discredit me at meetings, cuts me off, does not allow me to ask questions
which are germane to the discussion, not inviting me to meetings that I need to be present at
which inform my workflow (i.e. GVD), talking to others about me to get them not to cooperate
with me.” (Ex. 28 to Isbell Dep., Ex. B to DSOF [24-1] at 540–41.) Second, she accused Waite
of retaliation because of her complaints to Inglese that the references to Cialis and the
marketing materials in Waite’s office made her uncomfortable. (Id.) Finally, she claimed that
Waite and another employee had asked for feedback on a marketing strategy, which she
provided, but then “they cut off the discussion and I did not see the marketing pieces again. . . .
This started a cascade of events which began with me being taken off of meetings in retaliation
for giving honest feedback when asked.” (Id.) In this e-mail, Isbell pointed out that Junkin had
not accepted Isbell’s request for a phone call from Isbell, and Isbell asked for Junkin’s
supervisor’s name, so that Isbell could contact the supervisor if Junkin was not available. (Id.)
11

Junkin considered this request “bullying” and a threat to go to Junkin’s boss. (Junkin Dep.
45:3–17.)
Junkin did agree to speak to Isbell, and she and Isbell spoke on the phone on July 16,
2013, about these complaints (this appears to be the meeting that Isbell had requested).
(DSOF ¶ 62.) Junkin testified that Isbell also complained about Culleton, though Isbell did not
mention Culleton in her July 12 e-mail. (Junkin Dep. 43:7–47:16.) Junkin recalled that Isbell
also “mentioned” Inglese during this conversation, but the parties cite to no testimony that Isbell
renewed her 2012 complaint about Inglese, who was no longer at Baxter. (Id.) Junkin testified
that at the time of this call, she and Gawin had already discussed terminating Isbell, and that
Gawin had “pretty much” decided to do so. (Id. at 60:3–23.)
Junkin concluded that it would not be appropriate for her to investigate Isbell’s
complaints because she (Junkin) had discussed Isbell’s termination with Gawin. Instead, Junkin
conferred with her supervisor, Betty Larson, and asked Larson to recommend a “neutral” party
to investigate Isbell’s complaints (presumably, someone who was not familiar with the
complaints against Isbell), and Larson gave her Tywnia Brewton’s name. (Id. at 54:22–55:11)
Junkin asked Brewton, a senior manager, to investigate Isbell’s grievances. (Id. at 28:18–22;
see Dep. of Tywnia Brewton, Ex. B to PSOAF (“Brewton Dep.”) [34] 39:20–40:8.) Brewton
testified that she was unaware that anyone at Baxter was considering disciplining or terminating
Isbell. (Brewton Dep. 61:10–62:3.) Though Junkin made Gawin aware that Isbell had made a
harassment complaint, Gawin did not participate in or know any details of Brewton’s
investigation. (DSOF ¶ 65.)
Julie O’Brien, an HR representative, assisted Brewton with the investigation. (Brewton
Dep. 53:12–20.) Brewton and O’Brien interviewed Isbell, Waite, and four of the six other people
that Isbell suggested Brewton interview. 9 (Id. at 62:4–8, 84:11–85:21, 91:9–17, 103:8–13.)

9

Isbell claims that the failure to interview all the individuals whose names came up
during the interviews was contrary to Baxter’s policies (PSOAF ¶ 21), but the cited testimony
12

Waite acknowledged that he kept Cialis marketing materials in his office. (Id. at 103:20–104:9.)
Brewton went to his office and looked at the marketing materials; 10 Waite testified he used the
Cialis bathtubs to hold business cards and dice, and he also kept a mouse pad and binder that
displayed the Cialis logo, as well as a glass dish that recognized a Cialis sales milestone.
(Waite Dep. 27:5–31:25.) Waite recalls that after Brewton saw the objects, she said she was
not concerned about them; Waite did not remember exactly what Brewton said, but in Waite’s
words, Brewton concluded that they were not “a big deal.” (Id. at 30:3–31:6.)
Brewton and O’Brien took notes during their interviews, but did not record their questions
or answers verbatim. (Brewton Dep. 64–69, 97–100.) They prepared a file memorandum
summarizing their interview notes (again, not verbatim).

(Ex. 2 to Aff. of Tywnia Brewton

(“Brewton Aff.”), Ex. F to DSOF [24-3].) Brewton concluded that Isbell “was credible in the
sense that she believed what she was saying,” but Brewton “could not substantiate her claims.”
(Brewton Dep. 104:21–105:9.)
On August 5, 2013, Brewton and O’Brien gave Junkin their report. In the report, they
reached the following conclusions:
•
•
•
•

After conducting interviews with the identified individuals, we learned that
there is no evidence supporting the claim of retaliation.
Meetings were disbanned [sic] in between when Gary Inglese left and prior to
the reorganization of Market Access under Antoinette Gawin.
There is no evidence of non-inclusive behavior by any team members.
There is no evidence of retaliation due to issue being raised about the Cialis
discussion and/or paraphernalia in Blair Waite’s office.

(Ex. 1 to Brewton Aff., Ex. F. to DSOF [24-3].) In the report’s details, Brewton and O’Brien
wrote “[Isbell’s] claims seemed to be based on misinterpretation.” (Id.) The report also stated

does not support that statement. Brewton agreed that it would be contrary to Baxter policy to
“ignore interviewing people whose names come up” during interviews. (Brewton Dep. 102:20–
103:7.) But Brewton also testified that the people she did not interview “weren’t raised in the
context of potential witnesses” and they “didn’t seem relevant to the case against [Waite].” (Id.
at 101:12–102:16.)
10

Isbell testified Waite removed the materials from his office after her 2012
complaint, but Brewton appears to have had access to them during her investigation.
13

that three of the four third-party witnesses that Isbell herself had identified “commented on
[Isbell’s] disruptive and inappropriate behavior.” 11 (Id.) The report concluded “[t]here is no
evidence to substan[t]iate either claim by Debbie Isbell. Will turn over to [HR] for final decision
on outcome of investigation.” (Id.) Baxter took no action against Waite. (Brewton Dep. 107:15–
108:13.)
IV.

Isbell’s Termination
Gawin testified that, as Isbell’s supervisor, she decided to terminate Isbell. 12 (Gawin

Dep. 68:2–4.) She made this decision “probably” within the month before actually doing so; she
explained that the HR process and the misalignment of Junkin’s, Gawin’s, and Isbell’s
schedules caused the delay in telling Isbell. (Id. at 86:6–87:15.) Junkin reviewed Brewton’s
investigation report (Junkin Dep. 28:4–29:6), and at some point before Isbell was terminated,
Junkin told Gawin that “there had been no validation” to Isbell’s complaint.

(DSOF ¶ 71.)

11

Isbell denies this fact in part, but does not explain why, other than to claim that it
is not material. (Pl.’s Resp. to DSOF ¶ 70.)
12

Isbell disputes that Gawin testified that this was her decision alone; Isbell claims
that Gawin actually testified that Gawin and Junkin decided together to terminate Isbell (though
Junkin also testified that it was Gawin’s decision (Pl.’s Resp. to DSOF ¶ 47)). But Gawin
affirmatively testified that she alone was the one who decided:
Q:
Okay. And then you’re the one that decided to fire [Isbell]?
A:
Correct.
(Gawin Dep. 68:2–4.) Isbell’s contention that Gawin actually testified that she and Junkin
decided together rests on Gawin’s responses to subsequent questions from Isbell’s counsel that
make that assumption, but not on Gawin’s actual testimony to that effect:
Q:
. . . . Can you tell me with—with any specificity at all, when, prior to
[Isbell] actually being told she was being fired, when prior to that you and
Junkin made the decision to fire her?
....
A:
. . . . I—I would say it would probably have been in the month—within the
month prior. I wouldn’t feel comfortable narrowing it down much beyond
that.
(Id. at 86:6–20) (emphasis added.) This is just one example of a deposition question that
mischaracterizes the testimony or assumes a fact not in evidence. Gawin simply answers the
main question and does not contradict its assumption, but also does not affirmatively testify that
she and Junkin made the decision together. Because Isbell cites to no evidence where Gawin
actually confirms that she and Junkin decided together, the court concludes the testimony that
Gawin made this call on her own is not rebutted. Gawin did testify that she and Junkin decided
together when to terminate Isbell (id. at 83:7–14), but this too is not inconsistent with the
assertion that the decision to terminate Isbell was Gawin’s alone.
14

Gawin and Junkin told Isbell that she was being terminated on August 13, 2013 (eight days after
Brewton finished her report). (Id. at ¶ 49.) Isbell testified that Junkin told her that Isbell would
not be able to get the two positions that she posted for. (Isbell Dep. 247:15–248:14.) In 2014,
after Isbell was terminated, Brewton investigated another employee’s complaint of gender
discrimination that she found to have merit—Baxter terminated a vice president and a region
manager as a result. (Brewton Dep. 32:5–35:22.)
Isbell filed this action on August 20, 2015, alleging one count of age discrimination under
29 U.S.C. § 621, et seq., and one count of retaliation under 42 U.S.C. § 2000e, et seq. (See
generally Compl. [1].) Baxter filed this motion for summary judgment on both counts. As Isbell
has not challenged Baxter’s motion with respect to the age discrimination claim, summary
judgment is granted on that count. The court addresses Isbell’s retaliation claim below.
DISCUSSION
Summary judgment is appropriate when “there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1032 (7th
Cir. 2005). The court construes the evidence and all reasonable inferences in the light most
favorable to the plaintiff, without determining its objective accuracy. Malin v. Hospira, Inc., 762
F.3d 552, 554 (7th Cir. 2014); O'Connor v. DePaul Univ., 123 F.3d 665, 669 (7th Cir.1997).
I.

Evidentiary Issues
Isbell denies several facts in Baxter’s Rule 56.1 Statement of Facts on the grounds that

the evidence supporting them is inadmissible. First, Isbell claims that Gawin and Waite testified
to complaints that they received about Isbell that lacked a proper foundation. (Pl.’s Resp. to
DSOF ¶¶ 19, 31, 34–36.) In particular, Isbell objects to (1) Gawin’s testimony that Sondhi
related that Sondhi’s team concluded that calls with Isbell were “a waste of time and
unproductive,” because Gawin did not identify a specific team member who felt this way, nor
when in 2013 this conversation occurred; (2) Gawin’s testimony to Culleton’s opinion that Isbell
15

“doesn’t know what she’s doing,” because that was Gawin’s characterization of Culleton’s
opinion, not his own words, and “Gawin did not provide a date (or even year), time, place, or
participants for this alleged conversation” (id. at ¶ 31); (3) Waite’s testimony that Derek
Wiebenson complained that Isbell ignored feedback (Isbell also points out that Waite does not
testify that Gawin knew of these complaints); (4) Waite’s testimony that Josh Miller refused to
attend any more meetings with Isbell; and (5) Waite’s general testimony about Ursula
Ruegsegger’s and Keely Stevenson’s complaints about Isbell, because he did not describe
specific complaints.
Evidence at the summary judgment stage must be admissible at trial. See Johnson v.
Holder, 700 F.3d 979, 982 (7th Cir. 2012) “But no rule of evidence requires a ‘foundation’;
‘foundation’ is simply a loose term for preliminary questions designed to establish that evidence
is admissible.” A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001), as
amended on denial of reh'g (Nov. 26, 2001). “An objection to lack of foundation is formal, and
evidence provided at the summary judgment stage need only be admissible in content, not
necessarily in form.” Erickson v. Baxter Healthcare, Inc., 151 F. Supp. 2d 952, 960 (N.D. Ill.
2001) (quoting Winskunas v. Birnbaum, 23 F.3d 1264, 1267–68 (7th Cir.1994)).

To be

admissible, evidence need only have “any tendency to make a fact more or less probable than it
would be without the evidence[.]” FED. R. EVID. 401(a). A witness testifying must do so based
on personal knowledge. FED. R. EVID. 602.
Gawin’s testimony about Sondhi’s and Culleton’s complaints is admissible only for their
impact on Gawin, not for the truth of their contents. See FED. R. EVID. 801(c)(2). Even if Gawin
did not hear all the details of the incidents that Sondhi and Culleton complained of, these
complaints could still have influenced Gawin’s decision to terminate Isbell.

Furthermore,

Gawin’s testimony gives some context to the complaints. For example, Gawin testified that
Sondhi’s and Culleton’s complaints were among those that prompted Gawin to conduct
coaching sessions with Isbell (Gawin Dep. 73:10–74:19, 76:17–78:24)—Gawin accordingly
16

received these complaints about Isbell before the coaching sessions. 13 That the court knows
the gist of Culleton’s complaint, but not its exact contents, does not make the evidence
irrelevant or outside of Gawin’s knowledge.
Second, Isbell objects to three lines of evidence on best evidence and hearsay grounds.
(Pl.’s Resp. to DSOF ¶¶ 24, 27, 60.) First, Culleton testified to the contents of a June 2013 email he sent Turek, where he wrote that Isbell “was not contributing and was too junior to be on
that team.” (Culleton Dep. 25:4–19.) Second, Culleton testified to Leong and McGreevey’s
complaints about Isbell, which he shared with Turek via e-mail in July 2013. (Id. at 29:21–
34:11.) Finally, Waite testified that Gawin and Berek e-mailed him that they were excluding
Isbell from meetings, but the e-mail is not in the record.
The two e-mails from Culleton, which are in the record, are themselves admissible.
“Rule 901(a) provides that e-mail evidence is admissible if authenticated by ‘evidence sufficient
to support a finding that the item is what the proponent claims it is.’” United States v. Fluker,
698 F.3d 988, 999 (7th Cir. 2012) (quoting FED. R. EVID. 901(a)).

Authentication can be

established by “appearance, contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the circumstances.” FED. R. EVID. 901(b)(4).
In Fluker, the Seventh Circuit held that a series of e-mails were authenticated, despite there
being no evidence from witnesses with knowledge that the sender actually sent them. 698 F.3d
at 998–1000. The court noted that the e-mail identified the author within it, that it was sent from
an e-mail address that appeared to be from the organization where the purported sender was
known to be affiliated, and that the contents revealed knowledge that supported that the sender
was in fact who he appeared to be. Id.
Here, Gawin provided copies of two forwarded e-mails from Turek and stated in an
affidavit that she received them from Turek’s e-mail address. (Gawin Aff., Ex. C to DSOF.) The

13

Contrary to Isbell’s claim, Gawin testified that Culleton gave her this feedback in
2013. (Gawin Dep. 78:19–79:13.)
17

e-mails from Turek are e-mails originally sent from Culleton’s e-mail address to Turek and then
forwarded to Gawin.

(Ex. 1–2 to Gawin Aff., Ex. C to DSOF.) The original e-mails have

Culleton’s name and title in the e-mail signature; one shows the sender’s address
[e-mail]; and the contents demonstrate knowledge of the GVD project,
Baxter employees, and Isbell’s performance. (Id.) Finally, Isbell admits that these e-mails in the
record are the same e-mails that Culleton testified he sent to Turek. (Pl.’s Resp. to DSOF
¶¶ 26, 30.) Thus, the e-mails themselves are admissible and are relevant for a non-hearsay
purpose: for their effect on Gawin. Because these e-mails are writings, however, Culleton’s
deposition testimony, where he refers to the e-mails’ contents, is not. 14 See FED. R. EVID. 1002.
Waite similarly cannot testify to the contents of any e-mails Gawin and Berek sent him without
Baxter providing that e-mail. The court will therefore not consider Waite’s testimony about what
Gawin and Berek wrote in any such e-mails.
II.

Retaliation
To succeed on a retaliation claim, Isbell must present evidence that she engaged in

statutorily protected activity, that she suffered an adverse action, and that there is a causal
connection between the two. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th
Cir. 2016). The court considers the evidence as a whole to determine whether a reasonable
jury could find that the causation element is satisfied; the court does not distinguish between
direct and indirect evidence. See Williams v. Office of Chief Judge of Cook Cty., 839 F.3d 617,
626 (7th Cir. 2016) (citing Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764 (7th Cir. 2016).
“[T]he core question is . . . ‘could a reasonable trier of fact infer retaliation?’”

Poullard v.

McDonald, 829 F.3d 844, 856 (7th Cir. 2016) (quoting Castro v. DeVry Univ., 786 F.3d 559, 564
(7th Cir. 2015)). This evidence, whether previously characterized as direct or indirect, can

14

In particular, Culleton’s testimony about what Leong and McGreevy complained
about is also inadmissible—it is not clear whether Culleton transmitted those complaints, in
addition to the e-mail itself, to Gawin. Isbell’s other objection to Culleton’s testimony about the
July 2013 e-mail (lack of foundation) is therefore moot.
18

include: suspicious timing, evidence that similarly-situated employees who did not engage in
protected activity received systematically better treatment, evidence concerning the plaintiff’s
performance, and whether the employer’s stated reason for the adverse employment action was
legitimate or appears to be a pretext. See Poullard, 829 F.3d at 856; Coleman v. Donahoe, 667
F.3d 835, 860 (7th Cir. 2012). Isbell suffered an adverse employment action when she was
terminated. Thus, the court first examines whether any of Isbell’s complaints were protected
activity. Second, the court considers whether a reasonable jury could find that Baxter retaliated
against Isbell for those complaints.
A.

Protected Activity

An employee who opposes an unlawful employment practice engages in protected
activity. Northington v. H & M Int'l, 712 F.3d 1062, 1065 (7th Cir. 2013). “Merely complaining in
general terms of discrimination or harassment, without indicating a connection to a protected
class or providing facts sufficient to create that inference, is insufficient.” Tomanovich v. City of
Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). A plaintiff claiming retaliation “must not only
have a subjective (sincere, good faith) belief that [she] opposed an unlawful practice; [her] belief
must also be objectively reasonable, which means that the complaint must involve
discrimination that is prohibited by Title VII.” Hamner v. St. Vincent Hosp. & Health Care Ctr.,
Inc., 224 F.3d 701, 707 (7th Cir. 2000). Isbell contends that her complaints are protected unless
they are utterly baseless, but this argument misstates the standard: true, “the framers of Title VII
[did not want] to encourage the filing of utterly baseless charges,” but something more than “not
utterly baseless” is necessary. Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir.
1982). Protected activity that could trigger a retaliation claim must still meet the requirements of
“good faith and reasonableness.” Id.
Isbell contends that she opposed unlawful employment practices; she argues that her
complaints to Inglese, Junkin, and Gawin were about sexual harassment, which is prohibited by
Title VII. If that is the case, then her complaints are protected activity. But if her complaints are
19

of general harassment, not of a sexual nature, then the complaints are not protected activity
because they do not identify conduct prohibited by Title VII. See Tank v. T-Mobile USA, Inc.,
758 F.3d 800, 809 (7th Cir. 2014) (“Complaining about a co-worker’s actions is not statutorily
protected expression when the complained of conduct does not relate to [protected status].”)
1.

2012 Complaints to Inglese

Isbell’s 2012 grievance to Inglese named three complaints: Waite had come
inappropriately close to her and whispered “you’re paranoid” in her ear, Waite regularly spoke of
the Cialis marketing campaign in team meetings, and Waite and Inglese twice joked about Cialis
in Waite’s office while Isbell was present. Isbell nowhere suggests that the first action, Waite’s
whispering in her ear, was sexual harassment, so that aspect of the complaint is not protected.
Isbell does claim that her 2012 complaints “were clearly regarding conduct that was of
an offensive sexual nature” because “Waite and others regularly made sexual banter and talked
about erectile dysfunction at meetings, including ‘I need some of that’ and related comments.”
(Pl.’s Resp. to Def.’s Mot. for Summ. J. (“Pl.’s Resp.”) [39] 5.) But Isbell conflates the two
behaviors at issue. Waite did regularly talk about Cialis at meetings—he was obviously proud of
his own successful marketing efforts—but Isbell admitted that the sexual banter and “I need
some of that” comments occurred only twice.

Neither the mentions of Cialis at the group

meetings nor the two jokes reasonably describes sexual harassment, as explained below.
The references to the Cialis marketing campaign and the marketing materials in Waite’s
office made Isbell uncomfortable, and she believes those comments were inappropriate.
Characterizing these episodes as harassment is not objectively reasonable, however.

TV

advertisements for Cialis and similar medications run regularly. Isbell testified that these ads,
too, make her uncomfortable, but she does not assert that these advertisements are themselves
demeaning toward women or are explicit.

References to the marketing of an erectile

dysfunction drug, even if repeated and irrelevant, are not inherently sexual harassment. In any
case, Isbell makes no showing that these general marketing references, apparently made at
20

team meetings, nor the materials on display in Waite’s office, were directed as Isbell herself, or
at females in general.
Waite’s and Inglese’s jokes about needing Cialis could have been directed at Isbell—she
was, after all, alone with them when they made the remarks. It is true that “the objective
reasonableness of the belief is not assessed by examining whether the conduct was persistent
or severe enough to be unlawful, but merely whether it falls into the category of conduct
prohibited by the statute.” Magyar v. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 771 (7th Cir.
2008).

But sexual harassment must be severe and persuasive and must have occurred

because of the plaintiff’s sex. Lord v. High Voltage Software, Inc., 839 F.3d 556, 561 (7th Cir.
2016).

Whatever the propriety of Waite’s two jokes, there is no indication that they were

intended to harass Isbell. The jokes occurred only twice and the comments took no more than
one minute each; there was no touching involved, and Isbell identifies no other conduct that is
both sexually charged and directed at her. Compare O'Leary v. Accretive Health, Inc., 657 F.3d
625, 631 (7th Cir. 2011) (finding the complained-of conduct was not harassment when it was “a
single instance of sexually-charged remarks which, however imprudent they may have been,
were relatively tame”) with Magyar, 544 F.3d at 772 (finding the plaintiff complained of
harassment when “a man old enough to be her father plop[ped] into her lap and put his lips to
her ear to whisper ‘you're beautiful’”) and Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307,
1309, 1315–16 (7th Cir. 1989) (finding protected activity when the plaintiff complained of being
given a draft of a job description for her own position that had “Big Boobs” written under the
“Physical Demands” section).
Isbell claims that the court should not rule on this issue because there are “genuine
issues of material fact as to whether Waite engaged in the conduct that Isbell accused him of in
2012[,]” and points out that Waite denied making the jokes. (Pl.’s Resp. 5.) But because the
evidence is construed in Isbell’s favor in light of Baxter’s motion, the court assumes that Waite
and Inglese did in fact make these jokes. What matters is whether Isbell’s belief that such
21

conduct violated Title VII was objectively reasonable. 15

These jokes may have been

inappropriate, and they made Isbell uncomfortable. But there is no evidence that Waite or
Inglese made these jokes because of Isbell’s sex, nor even that Isbell believed that was the
case. Not every inappropriate remark in the workplace is harassment, and complaints about
these remarks are not protected activity.
2.

2012 or 2013 Complaints to Gawin

Isbell’s two complaints to Gawin in 2012 or early 2013 are also not protected activity.
First, Isbell complained that Waite was excluding her from meetings, but Isbell presents no
evidence that she told Gawin that she thought this was because of her gender or in retaliation
for her complaint to Inglese. Second, Isbell complained that she was generally being excluded
from meetings, but again, there is no evidence that this complaint was even specifically about
Waite, nor that it was related to gender or retaliation. In fact, Gawin testified that another male
employee also complained that he was being excluded from these meetings. Indeed, Isbell has
cited to no evidence that she told Gawin in either of these complaints that she was being
excluded because of her gender or in retaliation for an earlier complaint. As a result, the fact
that Gawin did not report these complaints is irrelevant; the evidence is only that Isbell
complained about being excluded from meetings. Because these complaints are not about
conduct prohibited by Title VII, they are not protected activity.

15

Isbell also argues that the conduct underlying her complaint need not support its
own Title VII harassment claim. (Pl.’s Resp. to Def.’s Mot. for Summ. J. [39] 7.) That is of
course correct, but the cases that Isbell cites do not suggest that her belief that her complainedof conduct violated Title VII was objectively reasonable. Cf. Firestine v. Parkview Health Sys.,
Inc., 388 F.3d 229, 231, 234 (7th Cir. 2004) (finding plaintiff’s belief reasonable when coworkers
had made negative comments and actions about her Catholicism); Dey v. Colt Const. & Dev.
Co., 28 F.3d 1446, 1457–58 (7th Cir. 1994) (finding plaintiff’s belief reasonable when her
superior made multiple suggestive comments directly to her and commented on her posterior);
Beamon v. Hewitt Assocs., No. 03 C 0794, 2004 WL 2038169, at *7 (N.D. Ill. Sept. 8, 2004) (“It
was reasonable for Plaintiff to think that her involvement in the investigation was protected
activity, especially because Ms. Norman provided Plaintiff with a copy of Hewitt's discrimination
policy, which discusses and forbids, inter alia, sexual harassment.”); Bevilacqua v. Cubby Bear,
Ltd., No. 98 C 7568, 2000 WL 152135, at *7 (N.D. Ill. Feb. 4, 2000) (defendant did not dispute
that plaintiff held a reasonable and sincere belief that her complaint was protected).
22

3.

July 2013 Complaint to Junkin

In her 2013 complaint to HR, Isbell apparently reiterated her 2012 complaints about
Cialis. While the marketing materials and related discussions of Cialis seem to have continued,
as explained above, it is not reasonable to consider those references sexual harassment. Isbell
does not allege that the jokes continued or became more explicit or direct toward her or other
women. The passage of time does not make these grievances protected.
But Isbell also complained to Junkin that Waite excluded her from meetings in retaliation
for her Cialis-related complaints; this retaliation complaint did not repeat part of her 2012
complaint, though it was indeed predicated on it. Essentially, Isbell claims that her complaint of
retaliation in 2013 was protected activity to establish this retaliation cause of action. The parties
have cited no cases where the protected activity was itself an internal complaint of retaliation,
but retaliation is, after all, an unlawful employment practice. See 42 U.S.C. § 2000e-3. That
said, the same reasonableness and good faith requirements apply.
The court finds that Isbell’s belief that her exclusion from meetings was retaliation for her
Cialis complaints was not objectively reasonable for two reasons. First, Isbell’s e-mail to Junkin
also claims that Waite was retaliating against her for her feedback on a marketing project,
feedback unrelated to her apparent belief of sexual harassment. Second, there is evidence that
several employees besides Waite also excluded Isbell from meetings, but there is no evidence
that those employees knew of her 2012 Cialis-related complaints about Waite.
Isbell contends that Brewton admits that Isbell’s July 2013 complaint was a claim of
discrimination, and that it therefore was protected activity.

(See PSOAF ¶ 30.)

But the

testimony Isbell cites does not contain an admission. Isbell cites the following:
Q:

A:

Okay. And you said there was [sic] three or four of these discriminationrelated investigations. What are the other ones besides Juanso and
Isbell? What are the other ones?
The Kreema Elim had discrimination tone [sic].

23

(Brewton Dep. 36:23–37:2) (emphasis added.)

Again, counsel’s question incorporates an

assumption—in this instance, that Isbell’s complaint, like others that Brewton investigated, was
one of discrimination. In fact, this question is the only mention of Isbell’s name in the cited
testimony concerning discrimination investigations. Although Brewton did not contradict Isbell’s
counsel’s unilaterally adding Isbell to this list, the court will not take Brewton’s answer as an
admission that the presumption in the question was true. The testimony here is not a statement
that either Isbell herself or Baxter representatives necessarily believed that Isbell’s complaints
were allegations of discrimination. 16 But even if this single claim of retaliation were protected
activity, Isbell’s claim of retaliation fails for lack of evidence of causation.
B.

Causation
1.

Timing

Baxter cannot definitively say whether Gawin had decided to terminate Isbell July 12,
when Isbell sent her e-mail to Junkin. Gawin said she made the decision within the month
before the date Isbell was terminated, August 8; but Gawin also testified that she first discussed
it with Junkin about one to two months before that, while Junkin, too, recalls that Gawin began
discussing it with her by the end of June or the beginning of July 2013. Isbell asserts that at the
time Gawin discussed Isbell with Junkin, Gawin had definitively decided not to terminate Isbell,
but the record does not support this. Instead, it appears that Junkin and Gawin simply did not
reach a conclusion during the initial discussions. Notably, Isbell has not shown that Gawin was
aware she had complained about retaliation at all; Gawin knew that the July 12 complaint
existed, but was not involved in the investigation, and Isbell admits that Gawin did not know
“details.”

A showing that Gawin was aware of the protected activity is fundamental to

establishing retaliatory motive. See Nagle v. Village of Calumet Park, 554 F.3d 1106, 1122 (7th
Cir. 2009). Gawin’s awareness that Isbell had complaints about her co-workers does not mean
16

Related to this argument, Isbell also asks the court to find that Isbell engaged in
protected activity as a matter of law. Isbell has not moved for summary judgment, but
regardless, the evidence does not support such a ruling.
24

she was also aware of statutorily protected expression. See Durkin v. City of Chicago, 341 F.3d
606, 615 (7th Cir. 2003).
For purposes of this ruling, the court might assume that Gawin had not decided to
terminate Isbell until after her July 12 complaint. Isbell believes the timing is suspicious. In
general, however, “[t]he timing of the complaints, standing alone, does not create a genuine
issue as to a causal connection[.]” Juarez v. Ameritech Mobile Commc'ns, Inc., 957 F.2d 317,
321 (7th Cir. 1992).
2.

Isbell’s Performance

Isbell does not identify persons who did not make complaints but were treated more
favorably. She does argue, however, that she was meeting Baxter’s legitimate expectations,
but nevertheless discharged. Again, the evidence does not bear this out. “[T]he proper inquiry
mandates looking at [the plaintiff’s] job performance through the eyes of her supervisors[.]”
Gates v. Caterpillar, Inc., 513 F.3d 680, 689 (7th Cir. 2008). Importantly, Isbell must have been
meeting Baxter’s expectations at the time of her termination. See Luckie v. Ameritech Corp.,
389 F.3d 708, 715 (7th Cir. 2004) (“[T]he fact that [the plaintiff] may have met expectations in
the past is irrelevant; she must show that she was meeting expectations at the time of her
termination.”)
In fact, the evidence shows that Isbell had numerous conflicts with coworkers by the time
she was terminated. Gawin had received complaints about Isbell from at least eight Baxter
employees: Sondhi, Laplante, Turek, Murray, Dovas, Culleton, Leong, and McGreevey. Even if
Gawin did not know the details of all the underlying incidents of these complaints, they readily
support the conclusion that Isbell was not meeting expectations. Furthermore, Gawin knew that
these complaints included that Isbell had acted unprofessionally while on the phone with a
vendor and that Culleton thought she “didn’t know what she was doing.” Whether Isbell really
was unprofessional or didn’t know what she was doing is not the proper inquiry—these
complaints make it reasonable for Gawin to conclude that Isbell was not meeting expectations,
25

and was motivated by her performance, not by Isbell’s complaint. Again, Isbell admits that
Gawin did not know “details” of her complaint to HR; Isbell presents no evidence that Gawin
even knew that Isbell had ever complained that Waite excluded her from meetings in
“retaliation” for anything, or even that Isbell had ever made Cialis-related complaints about
Waite.
Isbell attempts to shift the burden of proof to Baxter. She contends that “[a]ny such
evidence of those alleged deficiencies does not negate all possible reasonable inferences that
Baxter fired Ms. Isbell in retaliation for coming forward with those internal complaints.” (Pl.’s
Resp. 3.) But as the plaintiff, it is Isbell’s burden to present evidence to support such an
inference, and even if Isbell had engaged in protected activity and been terminated soon after,
that alone is not sufficient evidence to support such an inference on this record.
3.

Gawin’s Purported “Lies”

Isbell finds support for her claims in the notion that Gawin “lied” about the process
leading up to Isbell’s termination in three ways: (1) Gawin lied about who excluded Isbell from
Culleton’s meetings, (2) Gawin lied about who decided to exclude Isbell from Waite’s meetings,
and (3) Gawin lied about who decided to terminate Isbell. (Pl.’s Resp. 9–10.)
With respect to Gawin’s alleged first “lie,” Isbell notes that Gawin told her that Culleton
did not want Isbell attending his meetings, while Culleton himself testified that he did not recall
formally discussing Isbell’s performance with Gawin. This testimony presents no direct conflict,
and does not demonstrate a lie. In fact, there is record support for Gawin’s statement: in
Culleton’s June 2013 e-mail, forwarded to Gawin, Culleton wrote “I’d like to replace Deb . . . with
more senior members from Market Access.” (Ex. 1 to Gawin Aff., Ex. C to DSOF.) Culleton’s
desire to replace Isbell with other staff is evidence that he did express a desire that she not
attend his meetings, even if it is not a specific comment on her performance. True, Culleton did
not tell Gawin that he did not want Isbell at his meetings—he shared his concerns with Turek,

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who forwarded them to Gawin. But Gawin did know of Culleton’s reluctance to continue working
with Isbell, even if Culleton did not tell her directly.
Regarding Gawin’s second alleged “lie,” Isbell notes her own testimony that Gawin told
her that Waite did not want Isbell in meetings. Isbell claims that Gawin herself made this
decision, so Gawin’s telling her that the decision was Waite’s was a “lie” But the evidence that
Isbell relies on to establish that Gawin was the decision-maker concerning these meetings is
Waite’s testimony that it was Gawin and Berek who made the call—testimony that Isbell herself
has argued is inadmissible. Waite did testify that in March or April 2013, Bernadette Connolly
Buntin directed or recommended that Waite exclude Isbell from Work River meetings, but this is
not inconsistent with Waite’s then asking Gawin to remove Isbell from meetings. Third, Isbell
claims that Gawin lied about who decided to terminate Isbell. As explained above, Isbell’s claim
that Gawin stated that she and Junkin, not Gawin alone, made this decision is not supported by
the testimony. None of these purported “lies” indicate that Gawin’s reason for terminating Isbell
was a pretext for retaliating against her.
4.

“Sham” Investigation

Finally, Isbell claims that Brewton’s investigation was a sham, which she claims shows
pretext. In support, Isbell contends that (1) Brewton did not follow procedures, (2) Brewton told
Waite that the Cialis items were not a big deal, (3) Waite admitted that he had Cialis marketing
materials in his office, (4) Brewton’s investigation recorded information about Isbell’s coworkers
own complaints about Isbell, (5) Brewton found Isbell credible, and (6) Waite was now a “twotime offender.” (Pl.’s Resp. 3, 10.)
Isbell’s only support for her contention that Brewton did not follow procedures is that she
did not interview all the people Isbell identified as people Brewton should interview. Brewton
testified that she concluded from Isbell’s interview that these people would not have relevant
information, and Isbell has no evidence indicating that this determination actually violated Baxter

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policy. Brewton did not testify that she ignored Isbell’s statement, which would have violated
policy, but that she concluded that the purported witnesses were not relevant.
Next, Brewton learned in her interview with Waite that he had Cialis marketing materials
in his office; Brewton looked at those materials and told Waite that they were “not a big deal.”
This hardly demonstrates that Brewton’s investigation was a sham. Brewton reached the same
conclusion as the court: the Cialis marketing materials may have been distasteful to Isbell, but
they do not constitute harassment because of Isbell’s gender. Brewton reached this conclusion
after she looked at the materials themselves—in other words, after investigating.
Similarly, Brewton’s determination that some of Isbell’s coworkers had complained about
her work does not show that her investigation was a sham. That Brewton would interview
Isbell’s coworkers is unsurprising, and the record does not show whether Brewton solicited this
information or the coworkers volunteered it. Brewton’s conclusions simply echo the complaints
about Isbell that Gawin already knew about. There is no basis for a finding that Brewton
recorded these complaints as part of a scheme to resurrect negative attitudes toward Isbell in
retaliation for her complaints concerning Waite.
Isbell is also skeptical that Brewton could find Isbell credible, yet still conclude that her
grievance lacked merit. In fact, Brewton explained that she found Isbell “credible in the sense
that she believed what she was saying” (Brewton Dep. 104:21–105:9); she nevertheless
determined that Isbell’s grievance was based on misinterpretation. This also simply echoes the
court’s conclusion: Isbell had a subjective belief that she experienced sexual harassment, but
that belief was not reasonable. As the court explained above, mere subjective belief is not
enough to convert Cialis marketing materials and discussions into disparagement of women, nor
will it transform two isolated, albeit inappropriate, jokes into conduct that is pervasive enough to
be harassment.
Isbell contends that Baxter’s investigation was a sham because Baxter refused to
discipline Waite even though he was a “two-time offender.” There are two problems with this
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argument. First, Isbell does not point to any evidence that Baxter even knew of the accusation
against Waite at Eli Lilly. Second, Brewton concluded that the purported “second offense” did
not have merit, so there was no reason for Baxter to discipline Waite.
Finally, Isbell offers no basis for finding a link between Brewton’s investigation and
Gawin’s motivation for terminating Isbell. In Rand v. CF Indus., Inc., 42 F.3d 1139, 1145 (7th
Cir. 1994), the plaintiff argued that an investigation was a sham because his superior
questioned only a small number of his coworkers. But the court found that his challenge was
directed towards the wisdom of [the superior’s] actions, not the factual basis for
his decision. [The plaintiff’s superior] did not survey [two particular coworkers],
but if [the superior] consults with only a few key people and concludes that [the
plaintiff] must be fired, that is enough. He is also entitled to the assumption that
those people he did consult were telling the truth.
Id. Brewton’s investigation was no more flawed than that in Rand, and more importantly, it does
not call into question Gawin’s motivation for terminating Isbell.
CONCLUSION
Isbell’s complaints are not protected activity. It is not even clear that Gawin was aware
of them when she made the discharge decision, which was amply supported by complaints from
co-workers about Gawin’s job performance. The court finds no disputes of material fact on
these issues. Defendant’s motion for summary judgment [22] is granted.
ENTER:

Dated: March 31, 2017

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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