Gentry v. Allied Tube & Conduit et al
MEMORANDUM Opinion and Order Signed by the Honorable Robert W. Gettleman on 4/16/2018: Defendants Allied Tube & Conduit Corporation and Atkore International, Inc.'s motion 65 for summary judgment is granted, terminating the case. Civil case terminated. Mailed notice (cn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
ALLIED TUBE & CONDUIT CORP. and
ATKORE INTERNATIONAL, INC.,
Case No. 16 C 7044
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Evelyn Gentry brought a three-count second amended complaint against
Allied Tube & Conduit Corporation and Atkore International, Inc. (“defendant”) 1 alleging
disparate treatment and failure to promote in violation of the Illinois Human Rights Act (“IHRA”),
775 ILCS 5/1-101 et seq. (Count I), disparate treatment resulting in termination in violation of the
IHRA and Title VII of the Civil Rights Act of 1964 as amended (“Title VII”), 42 U.S.C. ' 2000 et
seq. (Count II), and retaliation resulting in termination in violation of the IHRA and Title VII
(Count III). Defendant has moved for summary judgment on all counts. For the reasons
described below, defendant’s motion is granted.
Atkore is the parent company of the company for which plaintiff worked, Allied. For
simplicity’s sake, the court will refer to them jointly as defendant.
Plaintiff, an African-American woman, began working for defendant as a Senior Human
Resources Generalist (“SHRG”) in July 2013. At some point in June 2014 plaintiff was offered a
project management position, which she accepted. Defendant’s Vice President of Global Human
Resources, Kevin Fitzpatrick (“Fitzpatrick”) and its then-Director of Human Resources told
plaintiff that she would maintain the project management role exclusively until at least February 1,
2015. Through October and November 2014, defendant’s new Director of Human Resources,
Molly Kieres (“Kieres”), urged Fitzpatrick and defendant’s Vice President of Human Resources,
Steve Bishara (“Bishara”), to assign plaintiff SHRG duties in addition to her project management
role. Fitzpatrick and Bishara attempted to do so, and plaintiff repeatedly refused to take on SHRG
duties without additional compensation. Fitzpatrick and Bishara denied plaintiff additional
compensation, and told her that she would be fired if she refused to perform the requested duties.
Plaintiff persisted, demanding either additional compensation or a return to her SHRG position.
Plaintiff was returned to her SHRG role in December 2014.
No later than January 2015 plaintiff experienced what she describes as an “attitude shift,”
which caused her to view her interactions with colleagues through a negative, pessimistic filter. 3
Plaintiff concedes that this affected her interactions with her colleagues, specifically Bishara,
Fitzpatrick, and Kieres, at whom she directed her frustrations. On March 10, 2015, Kieres gave
plaintiff her 2014 performance appraisal. Kieres noted that, as of December of that year, plaintiff
had become disengaged and her behavior had declined sharply. Kieres rated plaintiff “below
The following facts are, unless otherwise specified, undisputed and taken from the parties= Local
Rule 56.1 statements, responses, and attached exhibits.
Plaintiff testified in her deposition that she had developed a negative pessimistic filter as of
January 2015. In her response to defendant’s Rule 56.1 statement plaintiff asserts that she
developed this filter earlier, in October 2014.
expectations” in the areas of teamwork, respect, customer focus, and “tough minded.”
Additionally, Kieres commented that plaintiff was, at times, dismissive in a way that could be
construed as disrespectful, and argumentative in her communications and interactions with all
levels of the organization. Kieres further commented that plaintiff needed to work on being less
defensive when receiving feedback and more open to what is being said. Plaintiff refused to sign
the appraisal and, instead, submitted a rebuttal alleging that the appraisal demonstrated Kieres’
bias against plaintiff’s personality and communication style.
In March 2015 plaintiff spoke with Bishara twice regarding what she perceived as race
discrimination, specifically that certain non-Caucasian employees were being paid less than their
Caucasian peers for doing the same job with roughly the same experience. At some point prior to
those conversations, plaintiff expressed concerns to Kieres and Bishara that certain employees had
been placed on performance improvement plans (“PIPs”), and, after all of these employees failed
to meet the objectives in their respective PIPs, only a male Caucasian employee was not
terminated. No later than April 4, 2015, plaintiff learned that Bishara and Fitzpatrick promoted
one of her Caucasian colleagues, which resulted in a pay raise. No later than September 2015,
plaintiff learned that another Caucasian colleague had also been promoted and given a pay raise in
December 2014. Neither of the positions to which plaintiff’s colleagues were promoted was
posted for solicitation of applications.
Meanwhile, plaintiff continued to receive counseling, both verbal and written, regarding
her need to improve her interpersonal skills. In December 2015 Kieres warned plaintiff that she
would be disciplined if her behavior continued. It did. On May 20, 2016, Kieres issued plaintiff
a written warning concerning email exchanges in which plaintiff used a tone that Kieres deemed
inappropriate and evidencing poor judgment. The written warning informed plaintiff that her
conduct violated defendant’s Values and Guide to Ethical Conduct, and that she was to conduct
herself in a professional manner and handle disagreements respectfully, or face further discipline.
Plaintiff refused to sign the warning. Then, in June 2016, plaintiff participated in interview
certification training with Bishara and Fitzpatrick. As part of the training, plaintiff was asked to
craft a story about her experience working for defendant that she could share with job candidates.
Plaintiff responded that her defining story was that she would be filing a lawsuit against the
company in the coming week. Plaintiff was asked to craft a positive story that she could present
to Bishara and Fitzpatrick in the future. She did not.
Plaintiff received her 2016 mid-year performance appraisal on November 18, 2016, and
was again rated “below expectations” in several categories such as teamwork, respect, and
engagement. Plaintiff received a PIP at the same time. The PIP enumerated a number of
incidents between December 3, 2015, and October 14, 2016, in which plaintiff was perceived by
her colleagues as unprofessional, disrespectful, or condescending, in violation of defendant’s
“Core Values.” The PIP also provided goals for plaintiff to reach, including not receiving
complaints from co-workers about her tone and attitude. Plaintiff refused to sign both her 2016
performance appraisal and the PIP. Plaintiff also repeatedly refused to participate in the PIP,
although she was given the opportunity to think it over for two weeks. When plaintiff was
informed that she would be terminated if she did not participate in the PIP, her response was:
“Well, you’ll just have to fire me.” So defendant did.
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on December 27, 2016, alleging that her termination was discriminatory
and retaliatory. She received a right to sue letter from the EEOC January 31, 2017. This was not
plaintiff’s first experience with the EEOC. On September 25, 2015, plaintiff filed a Charge of
Discrimination with the EEOC alleging disparate treatment due to race. Plaintiff amended that
Charge on February 5, 2016, adding that, as part of her disparate treatment, she received lower
merit increases. She received a right to sue letter on that Charge April 7, 2016, and filed this
lawsuit July 7, 2016.
Summary judgment is appropriate when the moving papers and affidavits show that there
is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party
has met its burden, the nonmovant must go beyond the pleadings and set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c); Becker v.
Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the
evidence as a whole and draws all reasonable inferences in the light most favorable to the party
opposing the motion. Green v. Carlson, 826 F.2d 647, 651 (7th Cir. 1987).
A genuine issue of material fact exists when “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 nonmoving party must, however, “do more than simply show that there is some
metaphysical doubt about the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence in support of the
[nonmoving party=s] position will be insufficient, there must be some evidence on which the jury
could reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252.
Under Title VII employers cannot discriminate against employees due to “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e‒2(a)(1). Generally, a plaintiff making an
employment discrimination claim can defeat summary judgment in one of two ways. First,
plaintiff can point to sufficient evidence in the record, whether called direct, indirect or
circumstantial, from which a reasonable jury could conclude that defendant fired her because of
her race or national origin (the direct method). This is the standard way to defeat a motion for
summary judgment, as recently reiterated by the Seventh Circuit in Ortiz v. Werner Enterprises,
Inc., 834 F.3d 760, 764 (7th Cir. 2016) (overruling the use of a “convincing mosaic” test.). Under
this test, “evidence must be considered as a whole, rather than asking whether any particular piece
of evidence proves the case by itself - or whether just the ‘direct’ evidence does so, or the ‘indirect’
evidence. . . . Relevant evidence must be considered and irrelevant evidence discarded, but no
evidence should be treated differently from other evidence because it can be labeled ‘direct’ or
‘indirect.’” Id. at 765.
As Ortiz makes clear, however, id. at 766, a plaintiff may also choose to defend a summary
judgment motion using the burden-shifting framework created by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (the indirect method). Under the
indirect method of proof, it is the plaintiff’s burden to establish a prima facie case of
discrimination. Naficy v. Illinois Dep’t of Human Servs., 697 F.3d 504, 511 (7th Cir. 2012). If
the plaintiff is able to establish a prima facie case, the burden then shifts to the plaintiff=s employer
to “introduce a legitimate, nondiscriminatory reason for the employment action.” Id. A plaintiff
can then avoid summary judgment by showing the employer=s reason for the employment action
“is pretextual.” Id. at 511-512. Plaintiff does not specify the method through which she attempts
to prove her discrimination claims, but does spend much of her brief arguing that pretext can be
inferred from defendant’s actions. Accordingly, the court analyzes her claim under the
burden-shifting method set forth in McDonnel Douglas.
Count I: Failure to Promote
Plaintiff alleges that defendant treated her disparately, in violation of Title VII and the
IHRA, by promoting two white employees without giving plaintiff the opportunity to apply for the
positions to which the white employees were promoted. 4 Defendant responds that these were “in
role” promotions, meaning that the promoted employees were simply given new titles, and
salaries, because they were already performing the duties of a higher-level position. Accordingly,
no opening existed, and none was posted.
To establish a prima facie case of employment discrimination based on failure to promote
under the indirect method of proof plaintiff must show: “(1) [s]he was a member of a protected
class; (2) [s]he applied for an open position for which [s]he was qualified; (3) [s]he did not receive
the position; and (4) those who were hired were not in the protected class and had similar or lesser
qualifications.” Whitfield v. Int’l Truck & Engine Corp., 755 F.3d 438, 444 (7th Cir. 2014).
Plaintiff cannot establish a prima facie case for at least two reasons.
First, it is undisputed that there never was an open position to which plaintiff could have
applied. Accordingly, “[plaintiff] cannot prove a prima facie case regarding [either position]
because she never applied for the positions.” Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 892 (7th
Defendants argue that plaintiff does not assert a Title VII claim under Count I because she did not
include it in her Second Amended Complaint. Defendants are correct, to an extent. Count I of
the Second Amended Complaint asserts an IHRA claim only, but includes a footnote regarding
plaintiff’s Title VII claim, asserted in plaintiff’s amended complaint, that she mistakenly believed
was still pending before the court. Because the court construes the submissions of pro se litigants
liberally, it incorporates her Title VII claim into the Second Amended Complaint. See Alvarado
v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (“Allegations of a pro se complaint are held ‘to less
stringent standards than formal pleadings drafted by lawyers.’”) (quoting Haines v. Kerner, 404
U.S. 519, 520 (1972)).
Cir. 2016), cert. denied, 137 S. Ct. 1328, 197 L. Ed. 2d 517 (2017); see also Johnson v. Gen. Bd. of
Pension & Health Benefits of United Methodist Church, 733 F.3d 722, 728 (7th Cir. 2013)
(summary judgment for defendant on Title VII failure to promote claim appropriate where plaintiff
never applied for promotion). Plaintiff argues that the court should infer pretext from the fact that
she could not apply for the positions because they were not posted, in violation of defendant’s
Internal Recruiting and Job Posting Policy. It is undisputed, however, that the policy contains an
exception to the posting requirement for positions “deemed ineligible by the Vice President,
Global Human Resources or his or her designee.” Doc. 88 at ¶26. Given this exception,
Fitzpatrick, the Vice President of Global Human Resources, was entitled to give “in role”
promotions to employees who were already performing the duties of a higher-level position.
Accordingly, plaintiff’s argument that the policy does not contain an exception for “in role”
promotions is irrelevant, and Fitzpatrick’s decision to award such promotions is not evidence of
pretext. “Simply put, pretext is a lie – a phony reason for some action.” Riley, 829 F.3d at 894.
Plaintiff does not dispute that the Caucasian employees were qualified for the promotions.
Instead, she points out that she believes she was also qualified. Assuming plaintiff is correct does
nothing to salvage her failure to promote claim, which fails as a matter of law because she neither
applied for a position, nor was she rejected. Consequently, plaintiff cannot satisfy the second and
third elements of a failure to promote claim. Whitfield, 755 F.3d at 444.
Second, even if the positions were posted and plaintiff had applied for them and been
rejected, her claim would still fail. Plaintiff does not dispute that the Caucasian employees had
more experience than she did, or that they were performing the work for which they received their
promotions prior to receiving them. Consequently, plaintiff cannot prove that the promoted
employees had similar or lesser qualifications than she. Accordingly, her claim would fail even if
she had applied for the positions and been rejected. See id.
Because plaintiff has failed to establish a prima facie case, the court need not address the
legitimacy of defendant’s decision to promote two Caucasian employees, and not plaintiff, any
further than it already has. Defendant’s motion as to Count I is granted. 5
Count II: Termination
Plaintiff can establish a prima facie case of employment discrimination based on race
under the indirect method of proof by showing: “(1) she is a member of the 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 were treated more favorably.”
Naficy, 697 F.3d at 511. Plaintiff cannot establish a prima facie case of discrimination, again, for
at least two reasons.
First, plaintiff cannot show that she was meeting defendant’s legitimate expectations.
When determining whether this element is satisfied, “[t]he proper inquiry mandates looking at
[plaintiff’s] job performance through the eyes of her supervisors at the time of her [ ] termination.”
Gates v. Caterpillar, 513 F.3d 680, 689 (7th Cir. 2008) (citing Peele v. Country Mut. Ins. Co., 288
F.3d 319, 329 (7th Cir. 2002) (“In most cases, when a district court evaluates the question of
whether an employee was meeting an employer’s legitimate employment expectations, the issue is
not the employee’s past performance but whether the employee was performing well at the time.”)
(internal quotation marks omitted)). An employee who receives poor evaluations is not meeting
Defendants also argue that plaintiff failed to exhaust administrative remedies as to one of the
promotions on which she relies in Count I. Because the court finds that plaintiff’s claim fails, it
will not address this argument.
her employer’s legitimate expectations. Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 788 (7th Cir.
The record shows that plaintiff was counseled numerous times throughout 2015 and 2016
regarding her need to improve her interpersonal skills, told that her conduct violated defendant’s
Values and Guide to Ethical Conduct, and warned that she was to conduct herself in a professional
manner and handle disagreements respectfully, or face further discipline. Plaintiff does not
dispute either that she was counseled, or the underlying communications about which she was
counseled. Instead, plaintiff argues that her communication style was merely direct, not
disrespectful or argumentative, or that her communications were justified in context. It is for
these reasons, plaintiff claims, that she refused to sign negative performance evaluations and,
admittedly, refused to “blanket change” her communication style, despite repeatedly being asked
to, and her own awareness that her communication style was not well received by some of her
colleagues. The court has no reason to doubt that these beliefs were truly held by plaintiff, but it
must view plaintiff’s behavior through her employer’s eyes, not her own. Gates, 513 F.3d at 689.
Additionally, plaintiff admits to experiencing an attitude shift, which caused her to view
her work interactions through a negative, pessimistic filter that affected her interactions with
colleagues shortly before her negative performance appraisals and counseling regarding her
attitude and communication style began. Given this admission, coupled with several undisputed
examples of plaintiff being asked, and finally warned, to change her communication style, plaintiff
was not meeting defendant’s legitimate expectations. See Vasquez v. FIserv CIR, Inc., 1995 WL
431249, at *8 (N.D. Ill. July 14, 1995) (“It is axiomatic that an employer may legitimately expect
an employee to act professionally, with integrity, and not insubordinately.”). That plaintiff’s job
performance was otherwise acceptable does not mean that she was meeting defendant’s legitimate
expectations when her professional conduct was not. Id. Plaintiff has failed to establish the
second element of her discrimination claim.
The second flaw in plaintiff’s claim is that she has failed to identify similarly situated
employees outside of her protected class that were treated more favorably. To be similarly
situated, plaintiff’s comparators need not be identical, but they should have: “(1) dealt with the
same supervisor”; (2) been “subject to the same standards”; and “(3) engaged in similar conduct of
comparable seriousness.” Coleman v. Donahoe, 667 F.3d 835, 852 (7th Cir. 2012) (citing Gates,
513 F.3d at 690). Plaintiff highlights a number of isolated incidents that she describes as
misconduct by Caucasian employees working in various departments. Plaintiff does not claim
that these employees were not disciplined. At most, she claims that they were not terminated.
Importantly, she does not claim that any of these Caucasian employees engaged in repeated
misconduct, were counseled regarding their misconduct, refused to alter their conduct after being
warned that they would be disciplined if they did not, were issued PIPs in which they refused to
participate, and were not terminated. Plaintiff has failed to establish the fourth element of her
Plaintiff does not address these deficiencies, and instead argues that pretext can be inferred
from a number of defendant’s actions. These arguments presume that a prima facie case has been
established when one has not. Even assuming plaintiff had established a prima facie
discrimination claim, she cannot show that defendant’s reason for firing her - that she refused to
participate in the PIP - was pretextual. To do so, plaintiff “must present evidence suggesting that
[defendant] is dissembling.” Coleman, 667 F.3d at 852 (internal quotation marks omitted).
“The question is not whether [defendant]’s reason was inaccurate or unfair, but whether the
employer honestly believed the reasons it has offered to explain the discharge.” Id. (internal
quotation marks omitted). “It is not the court’s concern that [defendant] may be wrong about
[plaintiff]’s performance, or may be too hard on [plaintiff]. Rather the only question is whether
[defendant]’s proffered reason was pretextual, meaning that it was a lie.” Id. (internal quotation
marks omitted). “To meet this burden, [plaintiff] must identify such weaknesses, implausibilities,
inconsistencies, or contradictions in [defendant]’s asserted reason that a reasonable person would
find it unworthy of credence.” Id. (internal quotation marks and alterations omitted). Plaintiff
fails to carry this burden.
In her attempt to show pretext, plaintiff quibbles with a number of defendant’s actions.
Plaintiff first relies on the “in role” promotions given to her Caucasian colleagues as evidence of
pretext, but defendant’s decision to promote plaintiff’s colleagues has no bearing on whether
plaintiff agreed to participate in the PIP, which is why she was fired. Plaintiff claims that pretext
can be inferred because defendant departed from its job posting policy when it promoted the
Caucasian employees. As discussed above, the record shows that defendant did not depart from
that policy, and, even if it had, such departure would provide no evidence that defendant did not
genuinely believe that plaintiff’s conduct was problematic and in need of improvement, as
outlined in the PIP in which plaintiff refused to participate.
Plaintiff also argues that pretext can be inferred from the fact that her performance
appraisals were issued “late,” which is another departure from company policies. Plaintiff’s only
evidence of this, however, is that she did not receive her performance appraisals in the exact
timeline laid out in defendant’s human resource guidelines. She provides no evidence that other
employees received their performance appraisals according to those guidelines, or any evidence
that would allow a reasonable jury to infer that the timing of the performance evaluations was
unique to plaintiff or pretextual in any way.
Next, plaintiff points to an email between Bishara and Fitzpatrick regarding plaintiff’s
return to her SHRG role, on which she was inadvertently included. In that email Fitzpatrick
instructed Bishara to transition plaintiff back into her SHRG role, as she had requested, and “load
her up with everything that needs to be accomplished.” According to plaintiff, this is evidence of
pretext because it was an attempt to set her up for termination. Importantly, plaintiff was not
terminated for her inability to complete assigned work. Rather, the record makes clear that
plaintiff’s performance was at least satisfactory in every way other than her interpersonal skills.
In fact, plaintiff makes much of the many positive comments included in her performance
appraisals and attempts to argue that they are evidence of pretext. The court disagrees. If
anything, the many glowing remarks made by Kieres, the very same supervisor that plaintiff
accuses of discrimination, defeat any inference that plaintiff was set up for failure when she
returned to her SHRG role.
Plaintiff also claims that, amidst the positive remarks in her performance appraisals, Kieres
created her own narrative as to plaintiff’s problematic communication style. This claim is belied
by the record. Plaintiff admits to the many written examples that underlie defendant’s warnings
to plaintiff that her communication style was disrespectful and argumentative. In fact, plaintiff
admits that some of those exchanges could be construed as “heated” or interpreted as combative.
Not only was plaintiff warned repeatedly that this was so, but she also admits that her
communication style was not always well received and that she refused to “blanket change” her
communication style in response to defendant’s warnings. That plaintiff disagrees with
defendant’s characterization of her communication style does not transform its reason for issuing
the PIP into a lie. This is especially so considering plaintiff’s acknowledgment that her “attitude
shift” affected her communications with her colleagues, which she viewed through a negative,
pessimistic filter. Given these facts, the court cannot reasonably infer that defendant’s
explanation for why it issued plaintiff a PIP is unworthy of credence.
Finally, plaintiff submits statistics to argue that defendant’s “statistical racial profile”
infers pretext. Importantly, plaintiff does not submit statistics concerning defendant’s discipline
or termination of any of its employees. Instead, she submits statistics regarding the racial
make-up of Harvey, Illinois, where defendant is located, and compares them to the racial make-up
of defendant’s employees. It is unclear to the court how these statistics support plaintiff’s
argument that her termination was pretextual. According to plaintiff, discrimination can be
inferred from the fact that the general Harvey population is 75.8% African-American, while
defendant’s employee population is only 31.7% African-American. Assuming these statistics are
accurate, they do not support an inference that plaintiff was fired because she is African-American.
Plaintiff was African-American when she applied for the job, when she was hired, and when she
was promoted to the project management position. Plaintiff was not terminated until after she
refused to perform assigned tasks, experienced an attitude shift, was given repeated warnings to
alter her communication style, and refused to participate in her PIP. Racial statistics showing that
the racial make-up of defendant’s employee population is more Caucasian than Harvey’s
population do nothing to allow a reasonable jury to infer that defendant’s decision to terminate
plaintiff was racially motivated.
Defendant has stated a legitimate, nondiscriminatory reason for terminating plaintiff, and
plaintiff has failed to offer sufficient evidence of pretext. Whether defendant “may have been
hasty or otherwise unwise in its discipline and subsequent termination of [plaintiff] is not for this
Court to determine: 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.” Gates, 513 F.3d at 691 (internal
quotation marks omitted). Indeed, “the only question is whether [defendant]’s proffered reason
was pretextual, meaning that it was a lie.” Id. (internal quotation marks omitted). “Because this
Court does not—and will not—sit as ‘super-personnel’ to question the wisdom or business
judgment of employers, this inquiry ends here, with [plaintiff’s] inability to sustain her burden.”
Id. at 689 (internal citation omitted). Defendant’s motion is granted as to Count II.
Count III: Retaliation
To establish a retaliation claim, plaintiff must “offer evidence of (1) a statutorily protected
activity; (2) a materially adverse action taken by the employer; and (3) a causal connection
between the two.” Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017). Plaintiff has
satisfied the first two elements: (1) she filed an EEOC charge; and (2) she was terminated. See id.
at 661 (“Filing an EEOC charge is a protected activity.”); see also Chaudhry v. Nucor
Steel-Indiana, 546 F.3d 832, 838 (7th Cir. 2008) (A materially adverse employment action is a
“significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits.”) (internal quotation marks omitted). The question, then, is whether plaintiff has shown
a causal connection between the two.
“A plaintiff demonstrates a causal connection by showing that the defendant would not
have taken the adverse action but for her protected activity.” Baines, 863 F.3d at 661 (internal
quotation marks and alterations omitted). Plaintiff need not show “an admission by the employer
of unlawful animus,” and can instead “supply the causal link through circumstantial evidence from
which a jury may infer intentional discrimination.” Id. “If a plaintiff can assemble from various
scraps of circumstantial evidence enough to allow the trier of fact to conclude that it is more likely
than not that discrimination lay behind the adverse action, then summary judgment for the
defendant is not appropriate.” Id. at 661‒62 (internal quotation marks and alterations omitted).
As an initial matter, the only adverse action plaintiff suffered was being terminated. See
Cole v. Illinois, 562 F.3d 812, 816‒17 (7th Cir. 2009) (giving negative performance evaluations
and imposing a performance improvement plan do not constitute materially adverse actions).
Accordingly, plaintiff must show a causal connection between her termination and her protected
activity. Defendant argues that plaintiff cannot do so because plaintiff’s termination is too remote
in time from her protected activity. Plaintiff asks the court to infer that defendant began to build
its case against her after she “stood her ground” by refusing to perform SHRG duties in addition to
her project management duties without additional compensation. Even if plaintiff submitted
evidence to allow the court to draw such a conclusion, and she has not, it would not support her
claim that she was retaliated against for protected activity.
Plaintiff filed her first charge of discrimination with the EEOC on September 25, 2015,
filed this lawsuit on July 7, 2016, and was terminated November 18, 2016. Plaintiff’s first
negative performance appraisal, issued March 10, 2015, noted that plaintiff had become
disengaged, her behavior had declined sharply, and she was perceived as disrespectful and
argumentative. Nearly fourteen months elapsed between plaintiff filing her first EEOC charge
and being terminated. As discussed in detail above, plaintiff was repeatedly counseled regarding
her communication style, and warned that she would be disciplined if it did not improve,
throughout that time. Consequently, even if plaintiff’s termination were close enough in time to
her protected activity for the court to deem it suspicious, “suspicious timing alone rarely is
sufficient to create a triable issue, and on a motion for summary judgment mere temporal
proximity is not enough to establish a genuine issue of material fact.” Cole, 562 F.3d at 816
(internal quotation marks and alterations omitted).
Ultimately, plaintiff points only to her disagreement with how others perceived her
communication style to support her argument that she was terminated in retaliation for engaging in
protected activity. Plaintiff does not, however, dispute the communications for which she was
counseled, or even that such communications could be viewed as problematic. In short, the
record, even construed in the light most favorable to plaintiff, does not support her retaliation
claim. Plaintiff has not submitted any evidence that would allow a reasonable jury to infer that
she was terminated for any reason other than refusing to participate in the PIP. Accordingly, her
retaliation claim fails and defendant’s motion is granted as to Count III.
For the foregoing reasons, defendant’s motion for summary judgment (Doc. 65) is granted,
terminating the case.
April 16, 2018
Robert W. Gettleman
United States District Judge
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