Yochim v. Castro
Filing
80
MEMORANDUM Opinion and Order. For the reasons stated herein, the Motion for Summary Judgment is granted in its entirety. The Complaint is dismissed. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 10/23/2018:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELISA J. YOCHIM,
Plaintiff,
Case No. 16 C 4926
v.
Judge Harry D. Leinenweber
BENJAMIN S. CARSON, SR.,
U.S. Secretary of Housing
Urban Development,
Defendant.
MEMORANDUM OPINION AND ORDER
I.
BACKGROUND
For fifteen years the Plaintiff Elisa J. Yochim (“Yochim” or
“Plaintiff”) has served as the primary procurement attorney for
Region V of the U.S. Department of Housing and Urban Development’s
(“HUD”) Office of General Counsel, which is in Chicago, Illinois.
She handled standards of conduct and procurement integrity issues.
Initially,
(“Meyer”).
she
reported
to
Regional
Counsel
Courtney
Meyer
In 2008, she applied for the position of Deputy
Regional Counsel, but she lost out to Janet Elson (“Elson”) to
whom she began to report.
In October 2012, the Office of General
Counsel underwent a restructuring which required attorneys to
develop skills across a range of legal fields, with the intent to
move away from specialization.
The restructuring caused changes
to management of the Chicago office.
HUD created a new position,
Associate Regional Counsel, to supervise a team of trial attorneys
across multiple areas of litigation.
Plaintiff also applied for
this position, but it was given to Lisa Danna-Brennan (“DannaBrennan”), to whom Plaintiff was directed to report.
Plaintiff’s
duties were changed to include administrative responsibilities
such as space and file management, training, and orientation.
July
18,
2012,
After
losing
out
to
Danna-Brennan,
On
Plaintiff
initiated HUD’s EEO complaint process, contending that she was
discriminated against because of her age.
She filed a formal
complaint against HUD on September 12, 2012.
That complaint does
not directly relate to this suit except with respect to alleged
retaliation.
A.
Failure to Accommodate
Plaintiff suffered from bi-lateral carpal tunnel syndrome for
many years.
In November 2012, she underwent release surgery on
her right dominant hand.
Throughout the month of November, she
worked from home when she could or otherwise took sick or annual
leave.
She experienced diminished righthand strength because of
the surgery and she received substantial physical therapy to
rebuild her strength.
On December 5, 2012, Plaintiff e-mailed
Meyer, Elson, and Danna-Brennan requesting approval to work from
home during the days for which she had not requested leave.
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The
HUD policy for allowing employees to work from home, or telework,
was that the practice was encouraged, but was subject to approval
of an employee’s supervisor.
Her request was approved.
Her
December e-mail also requested that she be approved to work from
home during the month of January 2013.
Her request was supported
by a work status report from her surgeon which noted “limited use
of injured part” but noted no functional limitations.
The report
further noted that riding public transportation (she lived in
Glenview and worked in the downtown federal complex) which could
require holding on with the right hand “may be a safety concern,”
and she would be better off “working at home” until February 1,
2013.
At this time a HUD employee could initiate a request for a
reasonable
accommodation
through
either
their
first-line
supervisor or the agency’s Reasonable Accommodation Branch (the
“RA Branch”).
in
an
The supervisor and employee were required to engage
interactive
process
and
the
RA
Branch
communication between supervisors and employees.
facilitated
Its membership
included an administrative officer, a representative from Labor
and Employee Relations, a representative from the office of General
Counsel, and a representative from the office of Departmental Equal
Employment Opportunity.
The RA Branch was to determine whether
the employee had a medical condition that impacted at least one
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major life function, and
whether
there were barriers to the
employee performing her essential job duties.
If the employee
qualified for a reasonable accommodation, the supervisor could
determine what accommodation was effective.
The supervisor could
approve an accommodation request in full or in part or disapprove
it entirely.
A denial automatically triggered a review by the RA
Branch.
Upon
receipt
of
her
first
request
for
a
reasonable
accommodation, Plaintiff was denied the ability to work from home
full
time
but
offered
a
variety
of
alternative
proposed
accommodations, including: a compressed schedule of four ten-hour
days, two by telework at home and two at the office, and the
ability to set her start and stop schedule to avoid rush hour
commuting.
Plaintiff apparently did not consider this an offer of
accommodation because she did not respond to this offer.
She did
not work a single day in the office in the month of January.
Instead, she teleworked one to two days a week and took leave on
the days she was scheduled to work in the office.
Her position is
that she was entitled to take two telework days at home without
any reason.
In February 2013, Plaintiff sought to change her
telework days which was declined by Danna-Brennan.
Later in
February 2013, she took sick leave on the days that telework was
not approved.
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In March 2013, Plaintiff made what the parties refer to as
her second request for an accommodation.
She requested that she
be allowed to work full time at home until at least June 30, 2013.
In support of her request, she filed the reports from her surgeon,
Dr. Benson, and, in addition filed a letter from Dr. Wisterberg,
an internist and her primary care physician (and family friend).
In his letter, Dr. Wistenberg cleared her with working at home but
expressed his concern with her commute downtown because her right
hand was not strong enough to commute by train.
The doctor had
referred her to a physical therapist in her home town of Glenview.
On April 2, 2013, Plaintiff failed to appear in one of her office
in-days.
Danna-Brennan advised her that while her second request
was pending, she was not approved to work full time at home and
sick days would not be approved on days she was able to work but
only willing to work at home.
On April 4, 2013, her request for accommodation was partially
approved,
offering
voice
recognition
software,
a
compressed
schedule, three days of telework, and the right to leave 15 minutes
early to facilitate her access to a convenient train.
This
decision apparently was mistakenly characterized as a denial which
automatically triggered a review by the RA Branch.
met
and
offered
the
same
alternative
The RA Branch
accommodations
but,
in
addition, allowed her to work from home for two hours in the
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mornings
to
avoid
the
rush
hour.
Plaintiff
accepted
this
accommodation.
In August 2013, Plaintiff submitted her third formal request
for accommodation, seeking this time to telework three days per
week for six months and to be allowed an additional two days of
telework per week as needed due to pain, medical appointments, and
recovery.
She submitted another letter from Dr. Wisterberg in
support of her request.
her request.
offered
a
Management partially approved her request, and again
variety
additional
compressed
The RA Branch and management evaluated
of
paralegal
schedule,
alternative
assistance,
referral
generous leave approval.
to
accommodations,
an
ergonomic
para-transit
including:
assessment,
resources,
and
Plaintiff disagreed with this decision
and corresponded with a representative of the RA Branch who
forwarded
to
her
the
procedures
to
follow
to
obtain
a
reconsideration, which she declined to utilize.
B.
Hostile Work Environment
Plaintiff claims that because of her protected activity in
filing EEO complaints that she was treated to a hostile work
environment.
She lists as specific instances of hostility the
following from her complaint in this case:
Count II - Retaliatory Hostile Work Environment/ Failure to
engage in interactive process:
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115.) Beginning no later than January of 2013, Defendant
intentionally subjected Plaintiff to a retaliatory
hostile and abusive work environment by the following
actions, among others: denying Plaintiff’s request to
change telework days on February 7, 2013; denying
Plaintiff’s request for situational telework on February
26, 2013 and other occasions; threatening to deny
Plaintiff’s sick and annual leave on April 2, 2013;
threatening to remove Plaintiff’s telework privileges on
April 2, 2013; unreasonably denying all or part of
Plaintiff’s requests to make-up religious leave on
numerous occasions between January of 2012 and May of
2015; unreasonably denying all or part of Plaintiff’s
requests to work credit hours on numerous occasions
between January of 2012 and May of 2015; issuing her an
unwarranted Official Reprimand in June of 2014; issuing
her “Fully Satisfactory” and “Unsatisfactory” annual
performance appraisals in January and November of 2014;
and suspending her without pay on March 30, 2015.
116.) Additionally, Defendant failed to engage in the
interactive reasonable accommodation process in good
faith by concealing its partial grant of RA in December
of 2012 and the terms of its continuance; denying
Plaintiff’s RA requests based on inapplicable and
erroneous
legal
reasons;
improperly
rejecting
Plaintiff’s medical documentation of her conditions;
failing to ask Plaintiff to provide additional medical
documentation when insufficient documentation was an
alleged reason for Defendant’s RA denial; imposing leave
restrictions on Plaintiff when she used her sick leave
for medical treatment; requiring Plaintiff to submit an
unnecessary reasonable accommodation request in April of
2014; and delaying her request for a minor variance in
her work schedule by two months in April through June of
2014.
It is apparent that the selection of Danna-Brennan, a younger woman
to be Plaintiff’s direct supervisor, was a recipe for problems.
Plaintiff, in Danna-Brennan’s view, had been allowed over the years
to manipulate the leave system by working extra hours to obtain
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compensatory time off called credit hours, and to use religious
compensation time to allow her to have four-day weekends.
This
so-called manipulation permitted her to take approximately onethird of the work days off prior to Danna-Brennan’s appointment.
She used many of the credit hours to obtain four-day weekends to
visit a friend in New Jersey.
In turn Plaintiff greatly resented
Danna-Brennan’s decision to conduct a leave audit which led to a
leave restriction complained of by Plaintiff.
It was Danna-
Brennan’s opinion that Plaintiff had been and was attempting to
continue to manipulate the system so as to set her own work
schedule.
It
is
also
apparent
that
Plaintiff
did
not
wholeheartedly agree with the restructuring of the Office of
General Counsel.
use
of
It was Danna-Brennan’s opinion that Plaintiff’s
telework
partnering
with
restructuring.
prevented
other
It
was
her
attorneys
further
from
as
conducting
was
appropriate
contemplated
Danna-Brennan’s
by
opinion
the
that
Plaintiff’s job performance was declining, and she specifically
noted that, in her opinion, Plaintiff was failing to follow office
protocol and she was not complying with deadline policies and
docket management.
It was for these reasons she instituted the
regimen that Plaintiff complains of in Count II.
Both Plaintiff
and Danna-Brennan described their respective views in lengthy emails to one another.
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C.
Title VII and/or Rehabilitation Act Reprisals
Plaintiff’s reprisal claims listed in Counts V through XI
generally track her complaints that constitute her claim for
Hostile Work Environment in Count II.
They are as follows:
Count V - Suspension of telework on June 20, 2014. (See Ex. 50.)
This was a part of an “Official Reprimand” issued by Danna-Brennan
for failure to abide by the ethics deadlines policy which was
adopted on December 20, 2013.
It was Danna-Brennan’s opinion that
Plaintiff’s working from home was the cause of the delay in
completing
work
supervision.
and
being
in
the
office
would
allow
closer
There was no effect on her pay because of the
reprimand, although she claims that this suspension forced her to
utilize her sick leave.
Count VI - Suspension without pay on March 30, 2015.
On
December 19, 2014, Danna-Brennan issued Plaintiff a Notice of
Proposal to suspend for three days without pay.
The basis was
that Plaintiff was engaged in “rude and disruptive conduct towards
a supervisor” and failed to carry out supervisory instructions.
On
March
24,
2015,
the
Regional
Counsel
issued
a
decision
dismissing the charge of rude and disruptive conduct and reduced
the
proposed
penalty
for
failure
to
carryout
instructions to a one-day suspension without pay.
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supervisory
Count VII - Issued Unsatisfactory Performance Appraisal on
November 4, 2014.
This appraisal was based on Danna-Brennan’s
observation that Plaintiff’s docket was disorganized and that she
had ineffective working relationships with her teammates, as well
as showing disrespect and unprofessional conduct.
Plaintiff and
Danna-Brennan exchanged lengthy e-mails on these subjects, which
was described by Defendant as “butting heads.”
Count VIII - Placement on Leave Restrictions, April 29, 2013.
This Complaint arises out of Danna-Brennan’s decision to crack
down on use of credit hours to obtain four-day weekends.
believed that Plaintiff was manipulating the system.
She
Between 2009
and 2013, Plaintiff took leave on 339 out of a possible 1,010 work
days.
She held that Plaintiff could only earn work credit hours
“where
necessary
to
timely
complete
an
imminent
project.”
Plaintiff’s objection to this restriction was that she had always
been
allowed
complains
to
that
earn
and
use
Danna-Brennan
credit
hours.
imposed
Plaintiff
overly
requirements to make up hours for religious leave.
also
restrictive
She was forced
on occasion to use her annual leave in lieu of working to make up
the religious leave.
Count IX - Issuance of “Fully Satisfactory” Rating on Annual
performance appraisal on January 23, 2014.
This rating was based
on Danna-Brennan’s observation that Plaintiff had problems with
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timeliness, organization, and communication.
This was the lowest
rating Plaintiff had received in her twenty-plus years with HUD.
Plaintiff claims that this rating caused her to be denied a
performance bonus, although she was unable to quantify any lost
bonus.
II.
A.
DISCUSSION
Failure to Accommodate
To succeed on her failure to accommodate claims, Plaintiff
must establish that (1) she is a qualified individual with a
disability, (2) HUD was aware of her disability, and (3) HUD failed
to offer reasonable means to accommodate her disability.
Bunn v.
Khoury Enters, Inc., 753 F.3d 676, 682 (7th Cir. 2014).
HUD
contends that Plaintiff fails on her failure to accommodate claims
because she cannot show that she is a qualified individual with
disability, and that even if she could show that she was disabled,
she
cannot
show
that
HUD
failed
to
offer
her
reasonable
accommodation.
To establish that she is a qualified individual with a
disability, she must establish that: (1) she had a physical or
mental impairment that substantially limited one or more of her
major life activities; (2) she had a record of such an impairment,
or (3) she was regarded as having such an impairment. See Silk v.
Bd. of Trustees, Moraine Valley Cmty. Coll., Dist. No. 524, 795
- 11 -
F.3d 698, 706 (7th Cir. 2015) (citing 42 U.S.C. § 12102(1)). Here,
Plaintiff, after her carpel tunnel surgery, submitted medical
documentation that she had “diminished hand strength” and “limited
use” of her right hand.
Defendant did not see fit to have her
examined. Plaintiff contended that there was a range of activities
that require “manual dexterity or hand strength of any kind,” the
most important of which was the ability to grasp a hand rail on a
commuter train.
However, the record also shows that she could
type, use a computer, and was able to perform the essential
functions of her job whether at home or at work.
Defendant rests
its case on the fact that she did not come to work and attendance
at the job site is a basic requirement of most jobs, citing
Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999).
Plaintiff’s response is that she is substantially limited in
the activities of “opening doors, holding coffee cups, lifting
dishes and teapots, grasping things, doing things that require
manual
dexterity
or
hand
strength
of
any
kind,
cutting
food . . . grasping seat railings on moving trains, [and] lifting
anything heavier than a pencil.”
Therefore, she qualifies as an
individual with a disability. Because she has difficulty commuting
to work by train or by car, and she needed physical therapy, she
required an accommodation allowing her to work from home.
This
need for accommodation was heightened in 2014 when she developed
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swollen and painful joints in both hands, arms and lower back,
which was diagnosed as inflammatory osteoarthritis and possible
Calcium
Pyrophosphate
Dihydrate
Crystal
Deposition
disease
(“CPPD”), in which crystals form deposits in the joints, causing
inflammation in the joint.
It
appears
to
the
Court
that
the
Plaintiff
has
made
a
sufficient showing that she is an individual with a disability.
Therefore, the next question is whether Defendant refused her a
reasonable accommodation.
The record shows that the Defendant,
through the efforts of Danna-Brennan and the RA Branch, made
numerous suggested accommodations to Plaintiff which for the most
part Plaintiff refused.
Finally, on April 4, 2013, management
partially approved Plaintiff’s second request, which included a
compressed schedule, three days of telework, and the ability to
leave
work
15
minutes
early
convenience in commuting.
on
her
in-office
days
for
her
Through a bureaucratic mix-up, her
request was official deemed as denied, which triggered a referral
to the RA Branch.
The RA Branch then convened and offered her the
same terms, but with the addition of allowing her to work two hours
at
home
in
the
morning
on
her
in-office
days.
Plaintiff
acknowledged that this accommodation was in fact acceptable.
The main sticking point between Plaintiff and Danna-Brennan
was the refusal to allow Plaintiff to work at home 100 percent of
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the time and that she appear at the HUD office to work some of the
time, usually two days of the week.
According to Danna-Brennan,
her refusal to allow Plaintiff to work full time at home was due
to the restructuring of the legal staff in 2012 moving away from
specialization and requiring attorneys to develop skills across a
range of legal fields.
collaboration
among
This change required cross-training and
the
HUD
attorneys
so
that,
for
example,
Plaintiff would train other attorneys in the fields of ethics and
procurement.
Danna-Brennan
had
developed
a
cross-training
program,
approved by Elson and Meyer, which was designed to carry out this
transition in the Chicago office.
previously
had
been
ethics
Plaintiff’s sole responsibility
and
procurement,
and
under
the
restructuring, these duties were to be shared with three other
attorneys in the Chicago office.
In exchange, Plaintiff was now
responsible for a wide range of administrative responsibilities
such as space and file management, training, and orientation
through working groups.
In addition, the procurement work which
had previously been Plaintiff’s responsibility was in 2013 moved
to a location out-of-state.
During the period of Plaintiff’s disability, as a result of
her requests for accommodation, the Defendant, through DannaBrennan and/or the RA Branch, offered Plaintiff a wide variety of
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accommodations, including: a compressed work schedule (four ten
hour days, two in the office and two at home), the ability to set
her
schedule
to
avoid
rush
hour
commutes,
voice
recognition
software, additional paralegal assistance, ergonomic assessment,
referral to para-transit resources, and generous leave approval.
Essentially, the only accommodation that Defendant declined to
allow was her request to work at home all the time. After Plaintiff
declined the suggested accommodations in response to her third
request, the RA Branch advised her of the procedures for pursuing
a reconsideration of her accommodation request. She did not pursue
a reconsideration.
As stated in Vande Zande v. State of Wisconsin Dept. of
Administration, 44 F.3d 538, 545 (7th Cir. 1995), there is no
requirement that an employer allow an employee to work full time
unsupervised
reduced.
at
home,
where
productivity
must
inevitably
be
This requirement can be ameliorated by the allowance of
medical or annual leave to provide full pay where the employee
cannot truly make it to the work place.
Perhaps an argument could
be made that Plaintiff, due to her long experience in doing the
legal work for ethics and procurement, could perform this work at
home unsupervised prior to the restructuring, but Defendant has
made a more that credible showing that her attendance at the
workplace was necessary to carry out the transition training
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necessitated by the restructuring.
were reasonable:
The accommodations offered
being able work two to three days at home with
the flexibility to commute on the other days, and the right to
utilize medical or annual leave for the days where she could not
for physical reasons make it to the office.
It should also be
noted, in response to Plaintiff’s argument that her need for
physical therapy prevented her in-office work, there are a host of
physical
therapy
workplace.
sites
in
close
proximity
of
Plaintiff’s
It is important to note that Plaintiff did not lose a
single day of pay during this whole ordeal.
matter
to
law
that
Defendant
offered
The Court finds as a
Plaintiff
reasonable
accommodations for her disability. The Motion for Summary Judgment
is thus granted as to Counts I, III, and IV.
B.
Reprisal Claims
The law forbids employers from retaliating against employees
who assert their right under the respective employment laws.
To
prove her reprisal claims, Plaintiff must show (1) she engaged in
protected
activity,
(2)
she
suffered
a
materially
adverse
employment action, and (3) there was a causal connection between
the two. Cloe v. City of Indianapolis, 712 F.3d 1171, 1180 (7th
Cir. 2013).
Here, Plaintiff engaged in protected activity:
she
filed two EEO complaints alleging that she was passed over for
promotion because of age, and she made requests for accommodations
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because of her disability.
is
unable
to
show
that
However, her claims fail because she
her
claimed
reprisals
were
causally
connected to her protected activities.
The standard for a materially adverse employment action in
the reprisal or retaliation context is broader than the standard
for Title VII employment discrimination claims.
In the latter,
the alleged adverse action must materially alter the terms and
conditions of employment, while in the former, it must be such as
to
dissuade
a
reasonable
employee
from
making
a
charge
of
discrimination or otherwise exercise rights under the employment
statute in question.
Washington v. Illinois Dept. of Revenue, 420
F.3d 658, 661(7th Cir. 2005).
Changes in workload or assignments
that do not significantly alter job responsibilities or cause loss
of
income,
do
not
normally
constitute
materially
adverse
employment actions, Fane v. Locke Reynolds, LLP, 480 F.3d 534, 539
(7th
Cir.
2007),
unless
imposed,
for
example,
to
exploit
a
vulnerability, such as was the case in Washington,420 F.3d at 661.
Plaintiff’s
main
complaints
against
Defendant
and,
more
specifically Danna-Brennan, stem from the decision made by HUD,
prior to hiring Danna-Brennan, to restructure, and Danna-Brennan’s
means of carrying out the restructuring. Her (and the RA Branch’s)
denial of an accommodation allowing Plaintiff to work full time at
home, resulted from the change in her working conditions brought
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about by the restructuring.
It is obvious that cross-training and
collaboration with other employees cannot be accomplished from the
employee’s home.
Added to this was an obvious conflict in personalities between
Plaintiff
and
Danna-Brennan.
For
years
Plaintiff
had
been
permitted to schedule her work hours to allow her to have fourday weekends.
Danna-Brennan felt that this was manipulating the
system and she utilized her prerogative as supervisor to put a
limit to it.
Plaintiff.
As might be expected, this did not sit well with
What followed was a series of confrontations between
Danna-Brennan and Plaintiff that resulted in the five actions
Plaintiff complains of in Counts V through IX.
Based on the
exchange of lengthy e-mails between Danna-Brennan and Plaintiff,
Danna-Brennan had plenty of matters to complain about such as
missed meetings and deadlines and failure to appear at the office
as instructed.
While Plaintiff painstakingly outlined in e-mails
her disagreements with the various complaints and criticisms about
her work presented by Danna-Brennan, this does not prove that the
complaints and criticisms that resulted in the five actions, were
causally related to her EEO complaints or to her accommodation
requests.
What is obvious in this case is that there is absolutely
no evidence, other that Plaintiff’s own self-serving affidavit and
her deposition, to create or support an inference that these so-
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called adverse actions resulted from her protected activities
rather than from Danna-Brennan’s honest belief in their legitimacy
or from Danna-Brennan’s personal dislike of Plaintiff, or from
Danna-Brennan’s shortcomings as a boss.
The only alternative theory Plaintiff might have pursued to
prove her claims of reprisal could have been through what is
commonly referred to as the indirect method, i.e., a demonstration
that employees who had not pursued protected activity were received
more favorable treatment. See, e.g., Harper v. C.R. England, Inc.,
687 F.3d 297, 308 (7th Cir. 2012).
However, Plaintiff was asked
in discovery to identify similarly-situated employees who were
treated
more
favorably
than
her,
but
she
failed
to
do
so.
Therefore, the so-called indirect method of proving her case is
waived.
In summary, all the five specific actions complained of in
Counts V through IX, were adequately explained by Danna-Brennan
contemporaneously to their imposition.
These explanations were
countered exhaustively by Plaintiff in e-mails to Danna-Brennan.
Plaintiff was advised that she had the right to grieve her loss of
telework in Danna-Brennan’s June 2014 decision, but failed to do
so.
She appealed the three-day suspension meted out by Danna-
Brennan and was successful in having it reduced to one day.
As in
the case of Widmar v. Sun Chemical Corp., 772 F.3d 457, 464 (7th
- 19 -
Cir. 2014), Plaintiff has done nothing more than proffer her own
assessment of the Defendant’s action to prove their illegality.
As that court stated, a court “is not a supra-personnel department
that
second-guesses
employer
policies
that
are
facially
legitimate. ‘It is not the court’s concern that an employer may be
wrong about its employee’s performance or be too hard on its
employee.
Rather, the only question is whether the employer’s
proffered reason was pretextual, meaning that it was a lie.’” Id.
Plaintiff has failed to prove there was any evidence such as a
single remark, e-mail, comment or statement of any employee of
Defendant, produced by Plaintiff that would suggest that any of
the actions complained of by Plaintiff were caused by or related
to the protected activity.
She further failed to produce any
evidence from any third party that would in any manner corroborate
her complaints. Boss v. Castro, 816 F.3d 910, 920 (7th Cir. 2016).
Therefore, the Motion for Summary Judgment on Counts V, VI, VII,
VIII, and IX is granted.
C.
Hostile Work Environment Claim
In Count II, Plaintiff claims that all the above complaints
made in Counts V through IX and as further described in paragraphs
115
and
116
environment.
of
her
Complaint,
constituted
a
hostile
work
To survive summary judgment such a claim requires
sufficient evidence demonstrating (1) the work environment was
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both objectively and subjectively offensive; (2) the harassment
was based on membership in a protected class or in retaliation for
protected behavior; (3) the conduct was severe or pervasive; and
(4) there is a basis for employer liability.
Boss, 816 F.3d at
920.
For the reasons stated previously in this opinion relating to
Counts V through IX, Plaintiff has failed to show that these
actions were taken in retaliation for her protected activities,
instead of
for some other reason unrelated to her protected
activities, such being justified or perceived by Danna-Brennan to
be justified. Accordingly, the Court grants the Motion for Summary
Judgment on Count II.
III.
CONCLUSION
For the reasons stated herein, the Motion for Summary Judgment
is granted in its entirety.
The Complaint is dismissed.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
10/23/2018
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