Goethe v. Villiage of Glenwood

Filing 48

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 9/20/2017: The Village's motion for summary judgment, 32 , is granted. Goethe's motion for summary judgment, 39 , is denied. Enter judgment in favor of the Village and terminate civil case. [For further detail see attached order.] Notices mailed.(psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JENNIFER GOETHE,
Plaintiff,

No. 15 CV 7459

v.

Judge Manish S. Shah

VILLAGE OF GLENWOOD,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Jennifer Goethe worked at a golf club owned by defendant Village of
Glenwood. After she complained that her managers had given her less desirable
assignments because of her race, she found herself working fewer hours and shortstaffed shifts. She brought this action pro se, alleging both race discrimination and
retaliation by her employer in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. Both parties move for summary judgment. For the
following reasons, Goethe’s motion is denied, and the Village’s motion is granted.
I.

Legal Standards
Summary judgment is appropriate if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists
if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing that there is no

genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). A court must “construe all facts and reasonable inferences in the light
most favorable to the non-moving party.” Apex Digital, Inc. v. Sears, Roebuck, &
Co., 735 F.3d 962, 965 (7th Cir. 2013). And on cross-motions for summary judgment,
a court must draw inferences “in favor of the party against whom the motion under
consideration was made.” McKinney v. Cadleway Props., Inc., 548 F.3d 496, 500 (7th
Cir. 2008).
II.

Background
The Village filed its motion for summary judgment, memorandum in support,

and a Local Rule 56.1 statement of material facts, along with several affidavits and
Goethe’s deposition transcript. See [32]–[34].1 In compliance with Local Rule 56.2,
the Village also filed a document titled “Notice to Pro Se Litigant Opposing a
Motion for Summary Judgment,” which explains that responding to such a motion
requires compliance with Federal Rule of Civil Procedure 56 and Local Rule 56.1.
See [35]. Local Rule 56.1(b)(3)(B) provides that a party opposing a motion for
summary judgment must respond to each of the numbered paragraphs in the
moving party’s statement of material facts, and in the case of a dispute, she must
provide “specific references to the affidavits, parts of the record, and other
supporting materials relied upon.” Goethe did respond to the Village’s statement of
material facts and to each of the numbered paragraphs therein. See [39]. In some of
those individual responses, she cited to relevant testimony from her deposition to

1

Bracketed numbers refer to entries on the district court docket.

2

explain how an assertion was in dispute. But most of her responses are
argumentative and either cite to evidence that does not controvert the asserted fact
or do not refer to any admissible evidence in the record at all.
The Village requests that Goethe’s response to its statement of material facts
be struck in its entirety for failing to comply with the local rules. Goethe
acknowledged that she had to comply with the procedural requirements of Federal
Rule of Civil Procedure 56 and Local Rule 56.1 when she requested an extension of
time to respond to the Village’s motion. [37] at 1. That motion was granted, [38],
and when Goethe filed her cross-motion and response more than two weeks after
the new deadline, the delay was excused. [42]. Courts are entitled to expect
compliance with federal and local procedural rules, even from pro se plaintiffs such
as Goethe. See McNeil v. United States, 508 U.S. 106, 113 (1993); Collins v. Illinois,
554 F.3d 693, 697 (7th Cir. 2009). But as a general rule, courts liberally construe a
pro se plaintiff’s pleadings, giving her “a break when, although [she] stumbles on a
technicality, [her] pleading is otherwise understandable.” Greer v. Bd. of Educ. of
City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001) (quoting Hudson v. McHugh,
148 F.3d 859, 864 (7th Cir. 1998)). Goethe’s response will not be struck in its
entirety. Rather, the facts submitted by the Village that are supported by the record
and not properly controverted by Goethe are deemed undisputed.2 The relevant
undisputed facts follow.

Goethe also filed with her response several printouts of what look like emails, text
messages, and websites, as well as two statements signed by nonparties Cheryeea Henry
and Adam Winston. See [39] at 28–43. One of those statements is entitled “affidavit,” but
neither is notarized, and neither contains an attestation of its truth such that it could have
2

3

Goethe is African American and began working for the Village on September
6, 2013, as a part-time banquet bartender and server at the Glenwoodie Golf Club,
which is owned by the Village. [39] ¶¶ 3–4. The Glenwoodie bar manager, Maureen
Durkin, hired Goethe and, along with the Glenwoodie general manager Tim
Donohoe, supervised her work.3 [39] ¶¶ 5–6. As a banquet bartender and server,
Goethe worked at large events with up to 350 guests. [39] ¶ 7. Her responsibilities
as bartender included opening the bar, ensuring that it was properly stocked,
preparing and serving drinks, handling cash, cleaning glassware and the bar area,
and mopping the floor. [39] ¶ 7. When she worked as a banquet server, she had to
set up tables, prepare and carry food, clear the tables, operate the dishwasher, and
put away the silverware. [39] ¶ 7.
In April 2014, Goethe began working at the Glenwoodie clubhouse bar and
operating a beverage cart, in addition to her banquet assignments. [39] ¶ 8. Her
clubhouse bar assignments required more cleaning work than her banquet bar
assignments, and they involved more repeat customers who demanded individual
attention. [39] ¶¶ 9, 14. She also had to ring up all of her sales at the clubhouse bar,

the effect of an affidavit under 28 U.S.C. § 1746, despite explicit instructions in the Local
Rule 56.2 notice to include such an attestation. The Village requests that all of those
documents be disregarded, because they were not disclosed in discovery, were not cited in
Goethe’s response, and constitute inadmissible hearsay. That request is granted, and I do
not consider those documents. Even if I did consider them, Goethe does not explain how
they could be used to dispute any of the Village’s asserted facts which are material to its
motion. She did not incorporate them into a Local Rule 56.1(b)(3)(C) statement of additional
facts in response to the Village’s motion or a Local Rule 56.1(a)(3) statement of facts in
support of her own motion—she did not file such statements—and she did not explain how
these exhibits support the denial of the Village’s motion for summary judgment or the
granting of her own.
3

Donohoe stopped working at Glenwoodie in July 2015. [39] ¶ 6.

4

whereas the banquets she worked typically included an open bar. [39] ¶ 16. Her
beverage cart assignments involved stocking a cooler attached to a golf cart, driving
the cart around the golf course, and selling drinks and candy to golfers. [39] ¶¶ 26–
28. She also had to fill out paperwork and receipts for the sales she made. [39] ¶ 22.
Goethe received written instructions and in-person training for those new duties.
[39] ¶ 22.
Durkin and Donohoe stated in affidavits that, once Goethe began working her
new shifts, they received complaints from clubhouse bar patrons about Goethe’s
slow service and poor attitude. [39] ¶¶ 15, 17. Donohoe stated in an affidavit that he
thought Goethe was too slow to work at the clubhouse bar after observing her
letting dirty dishes pile up, making customers wait to be served, and taking too long
to ring up sales. [39] ¶ 16. Donohoe also stated that on one occasion, he saw her
talking to and reading magazines with her boyfriend for ninety minutes while
ignoring clubhouse bar patrons. [39] ¶ 19. Donohoe criticized her work on the
beverage cart, as well. He stated in his affidavit that Goethe’s sales on the golf cart
were low relative to other employees. [39] ¶ 23. And he said that on May 17, she
improperly recorded cash transactions as credit card purchases. [39] ¶ 24.
On May 30, 2014, Goethe and another employee worked the beverage cart
during an open-bar event for the Homewood Police Association. [39] ¶ 25. Goethe
arrived to work ten minutes late without informing her supervisor. [39] ¶ 26. After
stocking her cart, she began her route through the nine holes of the golf course to
which she was assigned. [39] ¶ 26. But by the third hole, she ran out of one

5

particular brand of beer that the golfers had been requesting, so she returned to the
clubhouse kitchen to search for cold beer with which to restock her cart. [39] ¶ 26.
Donohoe saw her return to restock the cart three times within the first couple of
hours of the event and, given the cart cooler’s 240-drink capacity, he assumed that
she had not properly stocked her cart. [39] ¶ 27. While waiting for Goethe to return
with more beer, several golfers complained to her supervisors about her delay and
her attitude. [39] ¶¶ 28–30. In addition, the event coordinator from the Village of
Homewood relayed to a Glenwoodie manager several complaints she had compiled
from golfers and other people on the course. [39] ¶¶ 28–30. Durkin and another
manager told Goethe that golfers had complained, and Goethe approached one
group of golfers to discuss their complaint. [39] ¶¶ 28–30. When Donohoe was told
that Goethe had confronted golfers who had complained about her, he sent her
home early, telling her that he had received too many complaints, and that he
would meet with her to discuss her performance two days later on Sunday, June 1.
[39] ¶¶ 30–31. Durkin replaced her on the beverage cart for the remainder of
Goethe’s shift. [39] ¶ 31.
The next day, on May 31, Goethe worked the beverage cart again. [39] ¶ 32.
Again, Donohoe received complaints from golfers about Goethe’s attitude and lack of
service. [39] ¶¶ 32–33. At the end of her shift, Donohoe noted that Goethe’s sales
records and cart inventory did not match, and that Goethe had no credit card sales
for the day. [39] ¶¶ 34–35. He also stated in his affidavit that Goethe had blamed
her lack of credit card transactions on the fact that the mobile device used to

6

conduct those sales had a dead battery, but that the device had been fully charged
when he checked.4 [39] ¶ 35. He believed that Goethe did not offer golfers the option
to pay with a credit card because it was harder to leave a tip on a credit card
payment, and because credit card transactions required more paperwork at the end
of her shift. [39] ¶ 35. According to his affidavit, by the end of the day, Donohoe
decided that Goethe should no longer be scheduled for beverage cart or clubhouse
bar shifts. [39] ¶ 38. At that time, Goethe had not made any complaints of race
discrimination. [39] ¶ 39.
On June 1, Goethe met with Donohoe, Durkin, and a Village Trustee,
Carmen Hopkins. [39] ¶ 40. At that meeting, Donohoe told Goethe that she was an
excellent banquet server and bartender. [39] ¶ 40. He also told her that her
performance in that role had led him to believe that she would excel at the beverage
cart and clubhouse bar, but that he questioned her ability to multitask. [39] ¶ 40.
Donohoe told Goethe that she would no longer work those assignments, because of
her poor work ethic, her failure to engage customers, her inadequate sales, and the
customer complaints he had received about her. [39] ¶ 41. Before she left the
meeting, Donohoe and Hopkins told Goethe that if she had any complaints, she
could submit them in writing. [39] ¶ 42. Over the next two days, Goethe submitted
written statements to Donohoe and to the Village’s Human Resources Department
complaining of race discrimination. [39] ¶ 43. She also filed a charge of

Goethe does not remember giving that explanation, but testified that the mobile device
often failed to work for some reason or other. [39] ¶ 35.
4

7

discrimination with the Equal Employment Opportunity Commission on August 26,
2014. [39] ¶ 43.
In July, Donohoe relieved the banquet coordinator of her duties scheduling
banquet employee shifts, and assumed those duties himself. [39] ¶ 53. He stated in
his affidavit that several banquet servers and bartenders had complained to him
that the banquet coordinator had not been assigning shifts fairly. [39] ¶ 53. Upon
review of the schedule, he determined that the coordinator had been assigning more
shifts to Goethe than to other employees because of their personal friendship. [39]
¶ 53. Donohoe took over scheduling duties (with Durkin’s input) and, starting with
the August 2014 schedule, tried to assign each employee an equal number of shifts.
[39] ¶ 53. Donohoe and Durkin stated that they also considered staff availability
and requests for time off, the size of the event, labor costs, and special requests from
event hosts. [39] ¶ 56. Donohoe’s involvement ended in July 2015. [39] ¶ 55.
Donohoe also decided that the banquet coordinator’s scheduling practices,
such as granting too many staff requests for time off, led to staff shortages during
events. [39] ¶ 71. As a result, Donohoe tried staffing events with temporary workers
from an outside staffing agency to serve as banquet servers, beginning in August
2014. [39] ¶ 71. Banquet bartender shifts, however, were reserved for Goethe and
her Glenwoodie coworkers. [39] ¶¶ 71–73. For a period of two to three weeks in
September and October, the Village relied upon the outside staffing company
exclusively for banquet server positions, and Goethe was not called in for seventeen
days, prompting her to call a Village administrator to complain. [39] ¶¶ 73, 75.

8

Despite these changes to the August schedule, Goethe worked more hours in
August than in July, partly due to the fact that her hours as a banquet bartender
and server depended on the number of banquets held at Glenwoodie in any given
month, which in turn depended on the season. [39] ¶ 54. Her hours continued to
fluctuate each month; she sometimes worked more total hours than her fellow
banquet bartenders and servers, and sometimes fewer. [39] ¶¶ 63–67, 69, 72–74. In
October, when she went without work for seventeen days, she worked one hour less
than one other banquet server, and seven hours less than another. [39] ¶¶ 64, 67.
And for most months between August 2014 and 2015, Goethe worked more shifts as
a banquet bartender than the others, including Durkin, though this did not always
equate to more hours overall. [39] ¶ 69. Goethe’s total monthly hours from
December 2013 through August 2015 are below:
Month
December 2013
January 2014
February 2014
March 2014
April 2014
May 2014
June 2014
July 2014
August 2014
September 2014
October 2014
November 2014
December 2014
January 2015
February 2015
March 2015
April 2015
May 2015
June 2015

Total Hours Worked
60.50
14.25
12.25
44.25
61.75
95.50
59.50
41.00
42.50
21.00
31.50
33.50
44.00
18.25
38.00
41.00
24.00
22.75
36.00
9

July 2015
August 2015

34.00
39.50

[39] ¶ 54.
A few other incidents are worth mentioning. On July 19, 2014, Goethe
worked a shift as a banquet bartender for an event with over 200 guests. [39] ¶ 47.
Goethe arrived on time, and Donohoe instructed her to set up the bar before the
event began. [39] ¶ 48. Durkin and another coworker had been scheduled to tend
bar alongside Goethe but refused, so Donohoe assigned an inexperienced individual
to assist Goethe until another experienced bartender could arrive. [39] ¶ 50. Later,
unaware that it was an open-bar event, Goethe attempted to collect payment from a
guest, forcing the event host to intercede. [39] ¶ 49. The host then complained to
Donohoe because Goethe had been telling guests that the bar had run out of certain
drinks, and Donohoe believed that Goethe had not properly stocked the bar. [39]
¶ 51. In October 2014, Donohoe told Goethe that he was going to give her and a
coworker written reprimands for failing to clean the bar area and for leaving work
without permission. [39] ¶ 76. Before he could give her the document, however,
Goethe excused herself and left work, believing she was having a panic attack. [39]
¶¶ 76–77. Donohoe ended up never giving Goethe that reprimand in writing, but
during his time at Glenwoodie, he issued written reprimands for similar offenses to
other employees who, to his knowledge, had never made complaints of
discrimination. [39] ¶¶ 77–78. Finally, on July 22, 2015, Goethe met with Donohoe
and another manager to complain about getting fewer hours than some temporary
workers. [39] ¶ 79. At this meeting, Donohoe shared with her some of his concerns
10

about her performance, including her failure to communicate effectively with her
coworkers, her slow pace, and her attitude. He told her that he would consider
increasing her hours after she completed a self-evaluation and he had a chance to
observe her and reevaluate her work ethic. [39] ¶ 79. He left Glenwoodie shortly
thereafter. [39] ¶ 6.
III.

Analysis
The Village argues that Goethe waived her claims and any arguments

opposing its motion, because she did not file a memorandum of law or a statement
of material facts in support of her motion for summary judgment, and because she
did not file a memorandum of law addressing the Village’s arguments. Goethe has
forfeited any arguments she did not make in support of her motion or in response or
reply to the Village’s brief. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 & n.1
(7th Cir. 2011). But Goethe did address some of the Village’s arguments in her
responses to the Village’s statements of fact. Because she is proceeding pro se, and
because her arguments are not so voluminous or confusing as to be prejudicial to
the Village, those arguments will not be disregarded.
A.

Race Discrimination

In analyzing a motion for summary judgment on an employment
discrimination claim, the legal standard is “whether the evidence would permit a
reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or
other proscribed factor caused the discharge or other adverse employment action.”
Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). The evidence

11

must be considered as a whole. Id. The Village articulates its argument using the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), which is a “means of organizing, presenting, and assessing
circumstantial evidence in frequently recurring factual patterns found in
discrimination cases.” David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d
216, 224 (7th Cir. 2017).
Under the McDonnell Douglas burden-shifting analysis, “a plaintiff must first
establish a prima facie case of discrimination by demonstrating that (1) she is a
member of a protected class; (2) she met her employer’s legitimate job expectations;
(3) she suffered an adverse employment action; and (4) similarly situated employees
outside of the protected class received more favorable treatment.” Keeton v.
Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). If she establishes a prima facie
case, then “the burden shifts to the employer to offer a non-discriminatory reason
for the adverse employment action. If the employer does so, the burden shifts back
to the plaintiff to submit evidence demonstrating that the employer’s explanation is
a pretext.” Id. (internal citation omitted).
Goethe is African American, and she believes her managers removed her
from the beverage cart and clubhouse bar assignments because of her race. It is
undisputed that she is a member of a protected class, and the Village concedes that
her removal from those assignments constituted an adverse employment action. But
the Village argues that Goethe cannot establish a prima facie case, because she

12

cannot show that she met the Village’s legitimate job expectations or that similarly
situated employees of a different race received more favorable treatment.
Goethe argues that she was always pleasant and courteous to customers
when she worked at the clubhouse bar, and that she never received any verbal or
written reprimands about her performance prior to her June 1 meeting with
Donohoe, Durkin, and the Village Trustee. But whether she “had notice of her
transgressions, whether termination was an extreme response to them, and
whether [the defendant employer] followed its own progressive disciplinary
procedures are irrelevant to the issue of whether [plaintiff] was meeting the firm’s
legitimate expectations.” Fane v. Locke Reynolds, LLP, 480 F.3d 534, 540 n.3 (7th
Cir. 2007). Goethe provides no evidence to dispute Donohoe’s and Durkin’s
assertions that they received customer complaints about her, that she ignored
customers when she received personal visitors, that she let dirty dishes pile up on
the tables, that she took too long to ring up sales, or that she was unable to
multitask. She admits that she had difficulty using the cash register, blaming its
“outdated and problematic” software. [39] ¶ 16. Goethe also admits in her response
that customers complained about her performance operating the beverage cart on
multiple occasions, and that she had arrived late to work on May 30. And she does
not dispute that on May 31, she failed to properly account for her sales or her
inventory and did not accept any credit card transactions. Based on the evidence in
the record, Goethe cannot show that she met the Village’s legitimate expectations.

13

Goethe also cannot establish that any similarly situated individuals of a
different race received more favorable treatment while working the beverage cart or
clubhouse bar shifts. “An employee is similarly situated to a plaintiff if the two
employees deal with the same supervisor, are subject to the same standards, and
have engaged in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer’s treatment of
them.” Fane, 480 F.3d at 540 (citing Snipes v. Ill. Dep’t of Corrs., 291 F.3d 460, 463
(7th Cir. 2002)). Goethe does not identify any other employee, regardless of race,
who worked those shifts and was not sent home early from an event when multiple
attendees complained. And there is no evidence in the record that any other
employee with the same performance history as Goethe remained in the rotation for
clubhouse bar or beverage cart assignments. No reasonable jury could find that the
similarly situated requirement has been met.
Finally, even if Goethe could establish a prima facie case, she cannot show
that the Village’s reasons for sending her home early on May 30 and for removing
her from clubhouse bar and beverage cart assignments were pretextual. “To show
pretext,

[a

plaintiff]

must

identify

such

weaknesses,

implausibilities,

inconsistencies, or contradictions in the purported reasons that a jury could find
them unworthy of credence and hence infer that [the employer] did not act for the
asserted non-discriminatory reasons.” Fane, 480 F.3d at 541 (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). “The focus of a pretext
inquiry is whether the employer’s stated reason was honest, not whether it was

14

accurate, wise, or well-considered.” Stewart v. Henderson, 207 F.3d 374, 378 (7th
Cir. 2000). On June 1, 2014, when Donohoe told Goethe that he was removing her
from the beverage cart and clubhouse bar assignments, he explained his reasoning.
Goethe’s only argument that this explanation was dishonest is that her managers
failed to contemporaneously document their concerns. But it is undisputed that, in
the one- to two-month period in which she was assigned to the clubhouse bar and
beverage cart, Goethe’s managers found fault with her performance and received
complaints about her from customers. It is also undisputed that on her final two
days working the beverage cart, she was late to work, multiple golfers complained
about her, she confronted some of those golfers, she limited customers to cash
payments, and she failed to properly account for her sales. Whether Donohue
adhered to the Village’s own disciplinary and documentation policies is irrelevant.
He provided non-discriminatory reasons for his decision, those reasons were based
on undisputed facts, and Goethe provides no evidence to suggest that the stated
reasons were pretextual.
While the Village used the McDonnel Douglas framework, it should be noted
that “McDonnell Douglas is not the only way to assess circumstantial evidence of
discrimination.” David, 846 F.3d at 224. The central question remains: “has the
non-moving party produced sufficient evidence to support a jury verdict of
intentional discrimination?” Id. Goethe believes that her managers treated her
unfairly by limiting her to less desirable shifts, and that their actions were
motivated by an unspoken racial bias. But she concedes that she was not a model

15

employee, and that nobody from the Village has ever made a derogatory comment
about her race. [39] ¶ 11. Goethe does not provide evidence that race played a role
in any decision made by her supervisors, and her belief that it did is based on
nothing more than her own suspicion.5 That suspicion alone is not sufficient to
defeat summary judgment. See Yancick v. Hanna Steel Corp., 653 F.3d 532, 548
(7th Cir. 2011) (“If the subjective beliefs of plaintiffs in employment discrimination
cases could, by themselves, create genuine issues of material fact, then virtually all
defense motions for summary judgment in such cases would be doomed.”) (quoting
Mlynczak v. Bodman, 442 F.3d 1050, 1058 (7th Cir. 2006)).
Given Goethe’s history of poor performance and customer complaints, the
dearth of similarly situated employees that received more favorable treatment, and
the lack of any overt racial animus or any evidence that Goethe’s race motivated the
Village’s actions, there does not exist sufficient evidence to support a jury verdict of
intentional discrimination. With respect to that claim, Goethe’s motion for summary
judgment is denied, and the Village’s motion is granted.
B.

Retaliation

Goethe believes that after she complained of race discrimination, her
managers retaliated against her by removing her from the beverage cart and
clubhouse bar assignments, by making her tend bar alongside an inexperienced

Her suspicion seems to have waned since she first complained of race discrimination. She
says that she believed at the time of her removal from the beverage cart that race played a
role, but suggests that she alleged race discrimination in her lawsuit only because she had
alleged it in her complaint to the Equal Employment Opportunity Commission. [39] ¶¶ 10,
12–13.
5

16

individual at an event, by telling her that her work ethic needed to be reevaluated
in response to a complaint that certain temporary workers were working more
hours than her, by threatening to issue her a written reprimand for failing to mop
the floor, and by reducing her hours. The Village again frames its argument using
the burden-shifting approach, under which Goethe must show that (1) she engaged
in protected activity (2) she suffered an adverse employment action, (3) she met her
employer’s legitimate expectations, and (4) she was treated less favorably than
similarly situated employees who did not engage in protected activity. Poullard v.
McDonald, 829 F.3d 844, 856 (7th Cir. 2016). If she can establish a prima facie case,
the Village must articulate a non-discriminatory reason for the adverse employment
action, after which Goethe bears the burden of showing “that a genuine issue of
material fact exists as to whether the defendant’s proffered reason was pretextual.”
Harper v. C.R. England, Inc., 687 F.3d 297, 309 (7th Cir. 2012). Again, the essential
question remains: “could a reasonable trier of fact infer retaliation?” Poullard, 829
F.3d at 856 (quoting Castro v. DeVry University, Inc., 786 F.3d 559, 564 (7th Cir.
2015)).
The Village concedes that Goethe engaged in statutorily protected activity
when she submitted written complaints to the Village after her June 1, 2014
meeting, and when she filed a charge of discrimination with the Equal Employment
Opportunity Commission on August 26, 2014. But it argues that, with respect to
every instance of retaliation that Goethe alleged, she does not set forth evidence
raising a genuine issue of material fact either that she met the Village’s legitimate

17

expectations, that she suffered an adverse action, that similarly situated employees
were treated more favorably, or that the Village’s stated reasons for its actions are
pretext.
Goethe’s removal from the clubhouse bar and beverage cart assignments does
not constitute retaliation, primarily because her removal preceded her complaints of
race discrimination. Donohoe sent her home early on May 30, decided at the end of
May 31 that he would remove her from those assignments, and told her of his
decision on June 1. It is undisputed that she did not submit a complaint about race
discrimination until after the June 1 meeting.6 Also, as explained above, she had
not met the Village’s legitimate expectations, she does not identify any similarly
situated employees who received more favorable treatment, and she offers no
evidence to suggest that the Village’s stated reasons for her removal were pretext.
The Village argues that several of the events that Goethe thinks are
retaliatory do not constitute adverse employment actions as a matter of law. “In the
retaliation context, the challenged adverse action need not be one that affects the
terms and conditions of employment, but it ‘must be one that a reasonable employee
would find to be materially adverse such that the employee would be dissuaded
from engaging in the protected activity.’” Poullard, 829 F.3d at 856 (quoting Roney
v. Illinois Dep’t of Transportation, 474 F.3d 455, 461 (7th Cir. 2007)). The Village
argues that being assigned to a bartending shift with an inexperienced coworker on
Goethe argues that she also complained to a Village administrator as soon as she was sent
home on May 30, but she does not specify that she complained about race discrimination as
opposed to unfair treatment in general, and she does not refer to any evidence to
substantiate her assertion.
6

18

one occasion is at most a minor annoyance, but not significant enough to dissuade a
reasonable employee in this context from making use of Title VII’s remedial
mechanisms. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(“An employee's decision to report discriminatory behavior cannot immunize that
employee from those petty slights or minor annoyances that often take place at
work and that all employees experience.”).
The Village makes the same argument with respect to the July 22, 2015
conversation in which Goethe requested more hours, and Donohoe responded by
telling her that he would consider her request after she filled out a self-evaluation
and he reevaluated her work ethic. It also argues that Donohoe’s threat of issuing
Goethe a written reprimand for failing to mop the floor does not constitute a
materially adverse action. See Poullard, 829 F.3d at 856–57 (explaining that threats
of unspecified disciplinary action do not constitute materially adverse actions, so
long as they do not affect compensation, career prospects, or conditions of
employment). In addition, it argues that this was not a selectively-enforced policy,
as Donohoe issued written reprimands and threats of reprimands to other
employees for the same offense, regardless of whether they made complaints to
managers. Goethe does not meaningfully respond to any of those arguments,
forfeiting her opposition, and the Village is correct—these actions would not
dissuade an employee from engaging in protected activity.
Goethe focuses on the fact that she worked 95.5 hours in May 2014, but was
scheduled for fewer hours per month after she complained of race discrimination. A

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reduction in hours could constitute a materially adverse action. See O’Neal v. City of
Chicago, 392 F.3d 909, 911–12 (7th Cir. 2004). And Goethe is correct that she never
worked as many hours as she did in May. But she does not identify any similarly
situated employee who was treated more favorably or provide any evidence to show
that the change in her hours was retaliatory in nature. The undisputed facts make
clear that, both before and after Goethe made her complaints, her scheduled hours
were comparable to other banquet servers and bartenders who had not engaged in
protected activity, and that her hours also depended on Glenwoodie’s event
schedule. When the Village began using an outside staffing company, all
Glenwoodie employees were affected. The Village argues that employees who
worked more total hours than Goethe in any given month did so because they had
different responsibilities (e.g. management duties, or clubhouse bar or beverage cart
assignments), or because of staff availability, labor costs, or special requests by
event hosts. The Village also argues that it had legitimate, non-discriminatory
reasons for changing its scheduling policy in August 2014—to schedule shifts fairly
among the staff and to save money.
Goethe argues that the Village turned to the staffing company after she had
complained of discrimination, and that Donohoe took over scheduling duties from
the banquet coordinator to retaliate against Goethe, rather than to keep the
schedule fair. But “mere temporal proximity between the filing of the charge of
discrimination and the action alleged to have been taken in retaliation for that
filing will rarely be sufficient in and of itself to create a triable issue.” Stone v. City

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of Indianapolis Pub. Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002). And Goethe
provides no evidence to support her theory that the change in her hours was
motivated by Donohoe’s retaliatory intent, rather than non-discriminatory reasons
or reasons outside of her managers’ control (e.g. the number of events held at the
club in any given month). The timing is not suspicious in this context. Goethe bears
the burden of establishing a prima facie case, and of showing that a genuine issue of
material fact exists as to whether the Village’s stated reasons for reducing her
hours were pretextual. By failing to identify any similarly situated employees who
received more favorable treatment, and by failing to submit evidence that the
Village’s stated reasons for reducing her hours were pretextual, she does not meet
that burden.
Considering the evidence as a whole, including the incidents that do not
constitute materially adverse actions,7 a reasonable trier of fact could not infer
retaliation. The record makes clear that Goethe’s working relationship with her
managers had room for improvement. But despite Goethe’s suspicions, she cannot
show a genuine issue of material fact that the Village acted in retaliation to her
complaints of discrimination. With respect to the retaliation claim, Goethe’s motion
for summary judgment is denied, and the Village’s motion is granted.

Even conduct that is not actionable itself “may well be relevant evidence of retaliatory
intent behind a more concrete adverse action.” Poullard v. McDonald, 829 F.3d 844, 857
(7th Cir. 2016) (citing Volovsek v. Wisconsin Dep’t of Agriculture, Trade and Consumer
Protection, 344 F.3d 680, 688 (7th Cir. 2003)).
7

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IV.

Conclusion
The Village’s motion for summary judgment, [32], is granted. Goethe’s motion

for summary judgment, [39], is denied. Enter judgment in favor of the Village and
terminate civil case.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: September 20, 2017

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