Little v. Illinois Department Of Public Health
Filing
102
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 3/31/2020: IDPH's motion for summary judgment, 59 , is granted. Enter judgment 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
CARLA LITTLE,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF PUBLIC
HEALTH,
No. 17 CV 4466
Judge Manish S. Shah
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Carla Little, an African American woman in her 50s, held a number
of positions at the Illinois Department of Public Health. After a department
reorganization, Little began working for a new supervisor. Among other things, the
new supervisor delegated Little’s work assignments to other employees, increased
oversight of her work, and began monitoring her attendance records. Little also
received a number of disciplinary sanctions. Meanwhile, other department
employees—some of whom were male, white, or in their 30s—received promotions to
positions that Little says she was both interested in and better qualified for. Little
filed a series of complaints, including an EEOC charge, based on perceived
discrimination on the basis of her age, sex, and race. The EEOC issued her a rightto-sue letter, and Little sued for discrimination and retaliation under Title VII and
the Age Discrimination in Employment Act. The department now moves for summary
judgment on all claims. For the reasons discussed below, its 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 it 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). I construe all facts
and draw all inferences in favor of the nonmoving party. Robertson v. Dep’t of Health
Servs., 949 F.3d 371, 377–78 (7th Cir. 2020).
II.
Local Rule 56.1 and Evidentiary Issues
Local
Rule
56.1
“aims
to
make
summary-judgment
decisionmaking
manageable for courts.” Kreg Therapeutics, Inc. v. VitalGlo, Inc., 919 F.3d 405, 414
(7th Cir. 2019). To that end, the rule requires the moving party to file a statement of
facts that it believes entitle that party to judgment as a matter of law. Petty v. City of
Chicago, 754 F.3d 416, 420 (7th Cir. 2014); N.D. Ill. Local R. 56.1(a)(3). The
nonmoving party must file a response to that statement, and may provide a separate
statement of additional facts. Petty, 754 F.3d at 420; N.D. Ill. Local R. 56.1(b)(3)(B),
(C).
If the responding party disagrees with the other party’s fact, it must cite
specific parts of the record disputing that fact. Petty, 754 F.3d at 420. Failure to
properly controvert a fact results in its admission. Cracco v. Vitran Exp., Inc., 559
F.3d 625, 632 (7th Cir. 2009). Facts that a party raises in a Local Rule 56.1 response
that do not controvert the assertion and that are not included in the party’s statement
2
of additional facts are stricken. I also disregard legal arguments in the statement of
facts. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006).
Both sides violated this rule in their filings. Both parties respond to the other’s
facts with additional facts. All additional facts asserted in response to the other
party’s facts are stricken. See [79] ¶¶ 6, 11, 14, 19, 38, 45, 53, 61; [95] ¶¶ 6, 16, 26, 28,
34. 1 Little also flouts the local rule by relying on facts throughout her response brief
that are not in her Rule 56.1 statement. See [80] at 4, 7–8, 10–12, 14, 20–23.
“[P]roviding additional facts in one’s responsive memorandum is insufficient to put
those facts before the Court.” Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000);
see also Igasaki v. Ill. Dep’t of Fin. & Prof’l Regs., No. 15-CV-03693, 2018 WL 4699791,
at *2 (N.D. Ill. Sept. 30, 2018) (“Citing directly to new facts in the opposition brief is
a clear violation of Local Rule 56.1.”). Little also cites directly to the record throughout
her brief, rather than to the 56.1 statements—another rule violation. See Mervyn v.
Nelson Westerberg, Inc., 142 F.Supp.3d 663, 664–65 (N.D. Ill. 2015) (collecting cases).
It is “essential to the court’s proper consideration” of a party’s arguments for the party
to reference “the Local Rule 56.1 statements and responses,” and not “the record
materials themselves.” Id. Based on Little’s multiple rule violations, I disregard all
of these facts. But for the sake of completeness and to assure Little that summary
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except in the case of citations
to depositions, which use the deposition transcript’s original page number. The facts are
largely taken from Little’s response to IDPH’s Rule 56.1 statement, [79], and IDPH’s
responses to Little’s statement of additional facts, [95], where both the asserted fact and the
opposing party’s response are set forth in one document.
1
3
judgment was not solely the result of a technicality, I consider some of Little’s
additional facts presented in her brief as noted below.
Little’s additional statement of facts and the corresponding exhibits also suffer
from several evidentiary defects. Evidence supporting or opposing summary
judgment must be admissible if offered at trial, except that depositions and other
written testimony can substitute for live testimony. Widmar v. Sun Chem. Corp., 772
F.3d 457, 460 (7th Cir. 2014). I may consider “properly authenticated and admissible
documents or exhibits” in a summary-judgment proceeding. Woods v. City of Chicago,
234 F.3d 979, 988 (7th Cir. 2000). Under Federal Rule of Evidence 901(a), to
authenticate an item of evidence, the proponent “must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” United States v.
Jackson, 940 F.3d 347, 351 (7th Cir. 2019) (quoting Fed. R. Evid. 901(a)).
In Little’s response to IDPH’s Rule 56.1 statement, she relies on several
attached exhibits that she has not laid a foundation for or authenticated. These
include her performance reviews, [79-2] at 2–16; [79-3] at 1–5; [95] ¶ 9, 11; text
messages and emails she sent to various officials complaining of race and sex
discrimination, [79-9] at 1–10; [79-10] at 1–26; [95] ¶ 20; a complaint that she filed
with the Office of Executive Inspector General, [79-4] at 3–6; [95] ¶ 20; an internal
letter she filed with IDPH, [79-4] at 27–32; [95] ¶ 20; and a complaint that she filed
with the Attorney General’s Office, [79-4] at 20–26; [95] ¶ 20.
I disregard the screenshots of text messages and emails, as well as the letter
Little sent within IDPH. Little cites to no supporting affidavit or evidence in her
4
deposition or elsewhere in the record that could serve as authentication for these
documents. Nevertheless, the performance evaluations are admitted because,
although they lack foundation, IDPH does not dispute that Little received positive
performance reviews from 2012 to 2015. [95] ¶¶ 9, 11. Likewise, IDPH does not
dispute that Little complained to the OEIG and AG’s Office. While Little has the
burden to show authenticity, IDPH is also a state agency and would presumably know
if documents from another state agency were inauthentic. IDPH identifies no indicia
of inauthenticity on the documents. They are stamped and appear to be accurate
copies of state business records. The OEIG and AG complaints are admitted despite
Little’s lack of compliance with the threshold foundation and authenticity
requirements.
Several of Little’s facts are also inadmissible hearsay. For example, Little
learned that Eric Rayman monitored the badge swipes of other African American
employees because another employee told her what Rayman was doing. [95] ¶ 26.
Little relies on this to assert that Rayman, did, in fact, discriminatorily monitor only
certain employees. That is inadmissible hearsay and cannot be considered for its
truth. The same fact asserts that Rayman told Little’s supervisor, Gina Swehla, to
monitor Little’s swipes, and Swehla did so—I consider that only for the effect on
Swehla, the listener. Other facts include hearsay or reliance on insufficiently
authenticated documents as well, see, e.g., [95] ¶¶ 30, 36, but Little does not rely on
them in her argument so I need not resolve the department’s objections.
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III.
Background
A.
Little’s Background
In 2004 Carla Little, an African American woman in her 50s, joined the Illinois
Department of Public Health as a laboratory research scientist. [79] ¶ 5. Little had a
Ph.D. in molecular biology, two bachelor’s degrees, and certifications in emergency
incident management and homeland security exercise evaluation training. [95] ¶ 2.
A few years after she joined the department, she moved to its Office of Preparedness
and Response as the Cities Readiness Initiative/Strategic National Stockpile
Coordinator. [79] ¶ 6; [95] ¶ 1. 2 Little’s primary responsibility was to manage a supply
of drugs and medical devices to be used in a national emergency, a role that required
her to work with the federal government. [79] ¶ 13.
Little’s role was classified as a Public Service Administrator. [95] ¶ 1. She
reported to the Division Chief, a position classified as a Senior Public Service
Administrator; the Division Chief reported to the Deputy Director, who reported to
the Public Health Director. [95] ¶ 1.
B.
The September 2015 Reorganization
From 2010 to 2015, Little reported to Deputy Director Winfred Rawls, an
African American man. [79] ¶ 7. In September 2015, Rawls announced a new
Little disputes that she was a Coordinator in 2007 because her title changed to Manager in
2010, then back to Coordinator in 2015. [79] ¶ 6. But Little does not properly controvert
IDPH’s assertion that her title in 2007 was Coordinator—IDPH clearly cabins its fact to
Little’s title in 2007, irrespective of what came later, and the record supports IDPH’s
assertion. [62-2] 19:1–5, 81:3:17. Although the record also supports Little’s title changes in
2010 and 2015, I disregard new facts asserted in response to IDPH’s facts for the reasons
noted above.
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6
reporting structure to bring OPR in line with a structure that the Central
Management Services, Bureau of Personnel had approved. [79] ¶ 8. Under the new
structure, Little and Mark Vassmer both reported to Gina Swehla, Division Chief for
Disaster Planning and Readiness, a woman in her 50s. [79] ¶¶ 8, 10; [95] ¶ 12. 3 At
the same time, Little’s title changed to Cities Readiness Initiative/Strategic National
Stockpile Coordinator. [79] ¶ 41. Swehla had become Division Chief—a Senior Public
Serve Administrator Position—a few months earlier, when she applied, interviewed,
and was promoted to that position, which had been vacant. [79] ¶ 11; [95] ¶ 3. Little
worked out of IDPH’s Chicago office, and Swehla worked out of the Springfield office.
[79] ¶ 12.
C.
Little’s Working Environment
Swehla considered Little to be a hard worker; however, she felt that Little
could not handle her workload. [79] ¶ 20; [95] ¶ 7. Little missed deadlines set by
Swehla, Rawls, or the federal government, and sometimes failed to provide
information to others on time, causing the department to miss deadlines. [79] ¶ 19.
IDPH’s federal partners complained about the quality of Little’s work, as well as her
working style. [79] ¶ 21–22. 4 Christine Kosmos, a director at the Centers for Disease
There is some discrepancy about whether Swehla began supervising Little in July or
September. Little does not dispute IDPH’s assertion that she began reporting to Swehla in
September 2015, see [79] ¶ 8, but IDPH does not dispute Little’s assertion that Swehla began
supervising her in July. [95] ¶ 12. According to the record, Swehla was hired to be the Division
Chief for Disaster Planning and Readiness in July, but the department announced in
September that Little would be reporting to Swehla. [62-5] at 4. And Little testified that she
began reporting to Swehla in September. [62-2] 105:15–17, 107:12–22.
3
Little disagrees with this fact because the department does not date the CDC’s complaint
about her work. The absence of a date does not controvert the fact of the complaint.
4
7
Control and Prevention, told Rawls that her staff could not work with Little because
Little had issues communicating, and she was rude and unprofessional. [79] ¶ 22.
Little felt that her coworkers considered her argumentative and aggressive. [79] ¶ 39.
Shortly after Swehla began supervising Little, Swehla started monitoring and
sometimes taking over meetings that Little was supposed to lead. [79] ¶¶ 36, 46.
Swehla permitted Little to schedule meetings, but if Swehla could not attend, she
asked Little to reschedule. [79] ¶¶ 42–43. Swehla also took some work assignments
away from Little, such as preparation of a medical countermeasure assessment and
a training exercise; sometimes Swehla gave assignments back at the last minute. [79]
¶ 44, 46. On one occasion, Swehla scheduled a meeting that she could not attend, so
Jennifer Reid tried to lead the meeting instead, but Reid had to rely on Little for the
specifics. [79] ¶ 45.
At the meetings themselves, Little’s colleagues rejected her ideas or preferred
other’s ideas to hers, despite Little’s expertise in medical countermeasures. [79]
¶¶ 37–38. No one ever explicitly called one of Little’s ideas terrible, but Little’s
colleagues afforded more deference to ideas proposed by Anu Meka and Matthew
Ringenberg, a white man. [79] ¶¶ 48, 55, 59–60. Little also felt that her colleagues
did not allow her to speak at the meetings, although no one ever prohibited her from
speaking. [79] ¶¶ 37–38. When Little called in to meetings in Springfield from
Chicago, her coworkers put Little on hold while she was talking, and before the
meeting ended. [79] ¶ 40.
8
Other employees also supervised full-time staff, while Little supervised only
interns; employees with staff included Tricia Patterson, a white woman, Meka, a
woman, and Vassmer, a white man. [79] ¶¶ 14, 53–55, 58; [95] ¶ 5. 5 For example, Joe
Ramos, an Asian man who was 40 or younger, reported directly to Meka. [79] ¶ 61.
Little never asked Swehla to hire another full-time staff member to help her. [79]
¶ 14; [95] ¶ 6.
Little also alleges she was subject to extra scrutiny. Eric Rayman, IDPH’s chief
of staff, checked Little’s security badge swipes to see what times she arrived and left
work, and also checked her computer log to see what time she logged in. [79] ¶¶ 33–
34. Rayman told Swehla to monitor Little’s time logs as well. [95] ¶ 26. Little does
not dispute that it is permissible for IDPH to check when an employee checks in and
out of work. [79] ¶ 32.
Finally, Little alleges that she suffered a series of administrative indignities:
between January and April of 2015, Little was not timely reimbursed by her coworker
Deborah Usherwood for her travel expenses. [79] ¶¶ 24, 47; [95] ¶ 24. And Swehla did
not conduct Little’s annual performance review. [95] ¶ 12.
Swehla never noticed African American employees being treated less favorably
than members of other races. [79] ¶ 18. No one ever said or wrote a racial slur to
Little, and Swehla never commented on Little’s age or sex. [79] ¶¶ 48–49. No
supervisor ever said anything negative about Little’s sex. [79] ¶ 50.
IDPH disputes that Ashley Theole reported to Vassmer, without citing to any specific
testimony. The record supports Little’s assertion. Little testified that “Ashley’s supervisor
was Mark Vassmer.” [62-2] 45:11–17. The fact is admitted.
5
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D.
Little’s Job Performance and Disciplinary History
On her yearly evaluations between 2012 and 2015, Little received Exceeds
Expectations on three to seven out of eight possible categories, and Meets
Expectations on almost all of the other categories. [95] ¶¶ 9, 11.
In January 2014, the department suspended Little for one or two days without
pay. [79] ¶ 31. In June 2015, Michelle Gentry-Wiseman, who Little did not know, told
Rawls that he should reprimand Little for the way she acted in a meeting, and Rawls
subsequently disciplined Little for acting inappropriately at the meeting. [79] ¶ 35;
[95] ¶ 25.
The CDC filed a complaint against Little for failing to complete an Illinois
point-of-contact list on time. [79] ¶ 30. As a result, IDPH scheduled a predisciplinary
hearing for Little in Springfield in September 2015. [79] ¶ 30. Before the hearing,
Eric Rayman, the department’s chief of staff, went to Little’s office with a statement
of charges for the hearing, which included infractions dating back to January 2014,
including travel policy violations, timesheet violations, and missing deadlines. [79]
¶ 31; [95] ¶ 27. Little was suspended for two days in November, but she appealed and
the suspension was overturned. [95] ¶ 27.
In August 2016, Swehla issued Little a written reprimand that included five
violations. [79] ¶ 24. Little failed to report for a scheduled training; didn’t notify
Swehla before changing her travel plans; and ignored three written directives from
Swehla to complete certain tasks by designated dates. [79] ¶ 24. A few months later,
Rawls issued Little a written reprimand for unprofessional conduct, insubordination,
10
disruptive conduct, and conduct unbecoming of a state employee. [79] ¶ 25. The
reprimand related to Little talking over colleagues during meetings and conference
calls. [79] ¶ 25. In one case, Little disapproved of a training method, and criticized
the training and her colleagues. [79] ¶ 25.
At some point, Little appeared as a guest on a TV show called “Community
Forum.” [79] ¶ 26. Little did not clarify during the interview that she was appearing
in her personal capacity. [79] ¶ 26. 6 Little said on the show that if IDPH employees
“had the opportunity,” they would “take [her] outside” in Springfield and “rape [her]
butt naked and hang [her].” [79] ¶ 26. She added, “I think they would do it.” [79] ¶ 26.
Further, Little stated that her supervisor was “a crony of this new administration”
and was “not qualified for the position.” [79] ¶ 26. As a result, Rawls consulted with
the director’s office and decided to suspend Little for three days. [79] ¶¶ 26, 28.
Swehla handed down the sanction. [79] ¶ 28.
Little does not dispute that, under department policy, employees are required
to carry out the directives of their supervisors or risk discipline. [79] ¶ 65. Likewise,
only IDPH’s director (or people the director approves to speak on his or her behalf) is
authorized to speak for the department. [79] ¶¶ 66–67.
Little disputes this fact, because she says she notified the department that she would appear
on the show in her personal capacity. [79] ¶ 15. Notifying the department is not the same as
notifying the viewing audience, so Little’s evidence does not controvert the department’s
assertion. The fact is admitted.
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E.
Promotions at IDPH
To apply for promotions, employees typically filled out a “CMS” form, although
some appointed positions were not posted as vacant. [79] ¶ 15. 7 In 2012, Little applied
to be an Assistant Lab Manager, but the job went to Matthew Charles, a white man
who Little perceived to be in his 40s. [95] ¶ 10. After 2012, Little never applied for
another promotion. [79] ¶ 15; [95] ¶ 18. At some point in the few years before 2019,
Little told Rawls that she was interested in the job of Communicable Disease Section
Chief. [95] ¶ 16. Little did not tell Swehla that she was interested in a higher position,
or, specifically, that she was interested in becoming a Senior Public Service
Administrator, and Little never filled out an application for that position. [79] ¶ 15–
16. According to Swehla, there were no vacancies for positions higher than Little’s at
OPR between July 2015 and March 2017. [79] ¶ 17.
Other employees received promotions between 2016 and 2019. The department
promoted Judy Kaurauf, a white woman who does not have a Ph.D., to Communicable
Disease Section Chief. [79] ¶ 64; [95] ¶ 16–17. It promoted Molly Lamb, a white
woman in her 40s, to Deputy Director of the Office of Health Protection, and Brandy
Lane, a white woman in her 30s, to Assistant Deputy Director for OPR. [79] ¶ 57; [95]
IDPH asserts that that Little had to fill out a CMS form to apply for “a new position,” [79]
¶ 15, and Little properly controverts that assertion. The record indicates that not every
position was available via a CMS form; some high-level positions were appointed positions.
[62-2] 96:12–97:14.
7
12
¶¶ 13–14, 17. 8 Matthew Ringenberg, a man, was offered a promotion that the
department did not offer Little. [79] ¶ 60. IDPH promoted Charles to an upper-level
position at the Division of Labs. [79] ¶ 63; [95] ¶ 17.
F.
Little’s Complaints of Discrimination and Retaliation
In 2007, Little filed an EEOC charge alleging discrimination based on race and
sex, as well as retaliation. [95] ¶ 19. On September 1, 2015, Little filed a complaint
with the state Office of Executive Inspector General complaining that IDPH
employees were targeting and harassing African American employees. [95] ¶ 21. The
OEIG responded on October 8, noting that it had referred the case back to IDPH to
handle internally. [95] ¶ 21. A few months later, Little filed a complaint with the
Attorney General’s Office alleging discrimination based on race, sex, and age. [95]
¶ 23. On October 5, 2015, Little filed an EEOC charge alleging discrimination and
retaliation on the basis of race, sex, and age. [79] ¶ 71; [95] ¶ 22. The EEOC mailed a
right-to-sue letter on March 8, 2017, and Little brought this lawsuit. [79] ¶ 72.
IV.
Analysis
In her second amended complaint, Little brings two Title VII claims based on
her sex and race: a discrimination claim under a hostile-work-environment theory,
and a retaliation claim. [23] at 3–6. She brings an ADEA claim based on failure to
promote. However, in her brief opposing summary judgment, Little argues that the
The department disputes that Lane and Lamb were promoted because Little lacks personal
knowledge of those facts, but does not dispute that either Lamb or Lane received a promotion.
The department included that Lamb and Lane were promoted in its own statement of facts.
[79] ¶ 57.
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department failed to promote her, subjected her to a hostile work environment, and
retaliated against her based on her sex, race, and age.
A plaintiff “may not amend h[er] complaint” through arguments raised in her
brief opposing summary judgment. Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir.
2012) (quoting Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002)). But the Federal
Rules of Civil Procedure “do not require a plaintiff to plead legal theories.” Chessie
Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852, 859 (7th Cir. 2017) (quoting
Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d 217, 222 (7th Cir. 1996)). Thus, generally,
district courts “should not hold plaintiffs to their earlier legal theories unless the
changes unfairly harm the defendant.” Id. A plaintiff proceeding on a new legal theory
based on facts already alleged does not expose the defendant to any “unfair surprise.”
Whitaker v. Milwaukee Cty., 772 F.3d 802, 808–09 (7th Cir. 2014). But plaintiffs “do
have to raise factual allegations in their complaints.” Chessie, 867 F.3d at 859. If a
plaintiff changes her factual theory at the summary-judgment stage, a court could
consider it an attempt to amend the complaint, and the plaintiff may forfeit the
argument. Id. at 860.
Little’s second amended complaint adequately alleged facts to put IDPH on
notice that she was pursuing her discrimination claims on the basis of sex, age, and
race. Hostile work environment and failure to promote are legal theories of
discrimination, so it is permissible for Little to argue on summary judgment failure
to promote based on race and sex, and hostile work environment based on age, so long
as she does not change her factual theory. Her complaint includes facts alleging that
14
she was subjected to a hostile work environment and passed over for promotions that
went to unqualified comparators. And her EEOC complaint states that she was
discriminated against based on her race, sex, and age, as well as retaliated against
for protected activity related to all three characteristics. [95-2] at 2–3. IDPH does not
profess any undue surprise or prejudice at Little’s factual theories in her response
brief. Its brief treats all three factors interchangeably. Although Little’s complaint
seems to limit the failure-to-promote theory to her age-discrimination claim, the
parties have briefed it as applied to all three protected characteristics. In sum, IDPH
was on notice that Little based her discrimination and retaliation claims on all three
characteristics, and her summary-judgment brief is not an improper amendment of
her complaint.
A.
Discrimination (Prima Facie Method of Proof)
Title VII prohibits an employer from discriminating against an employee on
the basis of race or sex. 42 U.S.C. § 2000e-2(a). The ADEA protects workers aged 40
and older from age-based employment discrimination. 29 U.S.C. §§ 621(b), 631(a). As
in all employment-discrimination cases, the only question is whether a reasonable
factfinder could find that Little was subjected to an adverse employment action based
on a statutorily prohibited factor—here, race, sex, or age. See Barnes v. Bd. of Trs. of
Univ. of Ill., 946 F.3d 384, 389 (7th Cir. 2020); McCurry v. Kenco Logistics Servs.,
LLC, 942 F.3d 783, 788 (7th Cir. 2019).
Failure to Promote
A plaintiff may prove discrimination either directly or indirectly, and may use
both direct and circumstantial evidence. McKinney v. Off. of Sheriff of Whitley Cty.,
15
866 F.3d 803, 807 (7th Cir. 2017). Because evidence of discriminatory animus is often
hard to come by, a plaintiff may rely on the burden-shifting method of proof described
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Both parties here rely
on the indirect method of proof.
To survive summary judgment on her claim using the indirect method, Little
must establish a prima facie case of failure to promote. Barnes, 946 F.3d at 389; Riley
v. Elkhart Cmty. Schs., 829 F.3d 866, 891–92 (7th Cir. 2016). If she does so, the
burden shifts to IDPH to produce a legitimate, nondiscriminatory reason for
promoting someone else instead of Little. Barnes, 946 F.3d at 389; Riley, 829 F.3d at
892. The burden then shifts back to Little to produce evidence that IDPH’s reason
was pretextual. Barnes, 946 F.3d at 389; Riley, 829 F.3d at 892.
To state a prima facie case of failure to promote, Little must show that (1) she
is a member of a protected class; (2) she was qualified for the position sought; (3) she
was rejected for the position; and (4) someone outside the protected class who was not
better qualified was hired instead. Barnes, 946 F.3d at 389. 9 If Little fails to establish
any of those elements, IDPH is entitled to summary judgment. Riley, 829 F.3d at 892.
IDPH argues that summary judgment is warranted on Little’s discrimination claims
because, as a threshold matter, Little has not argued that she suffered any materially
adverse employment actions. [60] at 3–5. I disagree. Failure to promote can be an adverse
employment action, and that is the adverse action that Little relies on to prove her
discrimination claims under Title VII and the ADEA. [80] at 4. She relies on different adverse
employment actions in her retaliation claim. In her discrimination and retaliation claims, I
consider discrete acts as adverse employment actions. In the hostile-work-environment
claim, discussed below, I consider the totality of the circumstances to assess the severity or
adversity of Little’s working conditions. Boss v. Castro, 816 F.3d 910, 918 (7th Cir. 2016).
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The analysis for a failure-to-promote claim is the same under both Title VII and the
ADEA. Jordan v. City of Gary, Ind., 396 F.3d 825, 833 (7th Cir. 2005). 10
Little identifies five coworkers who received (or were offered but declined)
promotions to positions that Little says were unposted and for which she was better
qualified. Swehla was asked to apply for a Senior Public Service Administrator
position when she applied to be OPR Division Chief, but Little was never asked to
apply for any Senior Public Service Administrator position. Swehla, who is white, had
a master’s degree, but no Ph.D. Matthew Ringenberg was offered, but declined, the
positions of OPR Division Chief and Division Chief of a different department, the
Office of Health Protection. Molly Lamb, a younger, white woman was promoted to
Deputy Director of the Office of Health Protection, and Division Chief of the Office of
Food, Drugs, and Dairy. 11 Brandy Lane, also a younger, white woman, was promoted
to Assistant Division Chief and Division Chief in the Office of Food, Drugs, and Dairy.
And Matthew Charles was promoted to Laboratory Director and Division Chief.
Beyond those positions, Little lists several other positions that she says she was
interested in and qualified for, both in OPR and in the Office of Health Protection,
Title VII and ADEA claims are not always evaluated together, because mixed-motive
claims are available under Title VII but not the ADEA; however, here, the parties treat them
interchangeably, so I do not distinguish between the sex- and race-based claims and the agebased claim. See Joll v. Valparaiso Cmty. Schs., No. 18-3630, 2020 WL 1316688, at *5 (7th
Cir. Mar. 20, 2020).
10
Little asserts that Lamb assaulted her (and nevertheless received a promotion); IDPH does
not dispute that Little accused Lamb of assault, but disputes that any assault occurred
because an internal investigation found insufficient evidence of intentional offensive conduct.
[95] ¶ 15. This allegation is immaterial to Little’s claims, so documents related to it remain
sealed on the docket. [95].
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17
including Chief of Staff, Director, Deputy Director, and Assistant Deputy Director of
either office. [80] at 20–21, 23. 12
Little cannot establish a prima facie case of failure to promote because she did
not apply for almost any of those positions; she last applied for a promotion in 2012. 13
Generally, when a plaintiff has not applied for a position, she cannot prevail on a
claim that she was discriminatorily passed over for that position. If she “never
applied,” the employer “could not have rejected her.” See Riley, 829 F.3d at 892
(granting summary judgment for employer on failure-to-promote claim); see also
McCurry, 942 F.3d at 789 (same, where plaintiff did not apply for the position);
Jaburek v. Foxx, 813 F.3d 626, 632 (7th Cir. 2016) (same).
There are some exceptions. Little argues that every position she cites, other
than the position she applied for in 2012, was not posted for anyone to apply to—
select people were approached and asked to apply. [80] at 23. If an employer “hands
out promotions on its own initiative in a nonselective, serial fashion,” a plaintiff need
not have applied for a position to establish a failure-to-promote claim. Volling v. Kurtz
Paramedic Servs., Inc., 840 F.3d 378, 383–84 (7th Cir. 2016) (quoting Loyd v. Phillips
Bros., Inc., 25 F.3d 518, 523 (7th Cir. 1994)). The plaintiff need only show that, had
Little included some of these facts to varying degrees in her 56.1 statement and introduced
others for the first time in the brief. None of the new facts are dispositive, so I include them
here for completeness, despite the technical rule violations.
12
Little identifies one higher position to which she applied and was rejected: in either 2011
or 2012 she applied to be an Assistant Lab Manager, and Charles, a white man, got the job
instead. [80] at 22. But Little testified that her application was not considered because she
filled out the application incorrectly. [62-2] 96:14–18. I thus read Little’s argument to take
issue with Charles’s later promotions, which she says were not posted, not the position she
applied to in 2011 or 2012.
13
18
the employer approached her, she would have accepted. Loyd v. Phillips Bros. Inc.,
25 F.3d 518, 523 (7th Cir. 1994).
Another exception to the application requirement is if an employer accepts
applications from anyone, but the employer’s “discriminatory practices” deter an
employee from applying. Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 738–39
(7th Cir. 2006) (quoting Hudson v. Chi. Transit Auth., 375 F.3d 552, 558 (7th Cir.
2003)); see also Volling, 840 F.3d at 384 (plaintiff need not have applied for the
position at issue if plaintiff is “deterred from applying by the very discriminatory
practices he is protesting” (quoting Loyd, 25 F.3d at 523)). And in Volling, the court
found a hybrid of those two exceptions. The plaintiffs did not need to show that they
had applied for positions where their employer only informed workers who had not
complained of discrimination about open positions. Id. So the plaintiffs’ failure to
apply “stemmed from the very discriminatory practice they complain[ed] of.” Volling,
840 F.3d at 384.
Little appears to argue both that she never applied for a promotion because
the department secretly handed out promotions in a discriminatory manner, and also
that the department’s discriminatory practices deterred her from applying. These
arguments undercut each other; if she was deterred from applying, Little would have
had to have known about openings and chosen not to apply. In any event, neither
exception works here. Little says she was deterred from applying for advanced
positions because she noticed that the department had a pattern of firing African
American employees in top leadership positions. But the exception to the application
19
requirement focuses on the promotion process, not on discriminatory practices that
may influence later employment decisions, and evidentiary issues notwithstanding,
Little’s argument makes no sense. She essentially argues that she did not apply for
any upper-level positions because she worried that if she did, and was promoted, she
would then be fired. A reasonable jury could not find that IDPH’s discriminatory
policies deterred Little from applying for upper-level positions based on the illogical
perception that the department would promote her, only to fire her. See Riley, 829
F.3d at 892 n.2 (requiring plaintiff to have applied for position where there was “no
evidence that surreptitious [employer] action precluded [plaintiff] from applying”).
That the department handed out some positions without posting them also
does not enable Little to circumvent the application requirement. The record
indicates that most positions were open to all employees, except for top leadership
positions that were appointed. Swehla explained the protocol to receive a promotion
as: “the positions would have to be posted,” and anyone interested would then apply.
[62-3] 94:6–11. Likewise, when asked how employees apply for new positions, Little
testified that, “you fill out” a “CMS form,” and, when a new position opened up, “you
can be appointed into it or apply for it.” [62-2] 96:12–18, 97:8–17. Swehla testified
that, when she applied to be a Senior Public Service Administrator at OPR in 2015,
the position was posted. [62-3] 40:14–41:18. Swehla added, “The postings are all
consistent,” and typically included a description of the open job and a due date. [623] 41:17, 43:4–9.
20
To be sure, both Swehla and Little testified that IDPH did not post some
higher-level leadership jobs; specifically, in OPR, Deputy Director and Division Chief
were appointed positions, so IDPH did not post openings for them. [62-2] 96:23–95:10,
251:23–252:6; [62-3] 43:7–12, 94:9–95:3. Swehla explained that top-level jobs were
not posted because “the administration has the discretion to hire their … top
leadership.” [62-3] 43:10–12. Little likewise thought that appointed positions
“[p]ossibly” might be positions filled at the pleasure of the governor. [62-2] 97:14. All
positions in OPR other than Deputy Director and Division Chief were posted. [62-3]
94:9–95:3. 14
Because most IDPH vacancies were widely distributed and accessible, Little’s
case is distinguishable from the situation in Loyd, and Little must show that she
applied to the positions she claims she was implicitly rejected for. Only two positions
in OPR were appointed, nonavailable positions—Deputy Director and Division Chief.
And while Little says she was interested in those two jobs, she also lists positions like
Assistant Division Chief, Assistant Deputy Director, and Lab Director, among others.
The record permits an inference that those lower-level positions were made available,
and Little presents no evidence that all of the positions were for appointed, upper-
The denial of a promotion to certain jobs is not actionable, “if the position that the plaintiff
seeks is not within Title VII’s protective scope.” Sailsbery v. Vill. of Sauk., No. 15 C 10564,
2016 WL 4701446, at *3 (N.D. Ill. Sept. 8, 2016). Neither Title VII nor the ADEA protect
“appointee[s] on the policymaking level.” 29 U.S.C. § 630(f); 42 U.S.C. § 2000e(f); Opp v. Off.
of State’s Att’y of Cook Cty., 630 F.3d 616, 619 (7th Cir. 2010). The record here is not
sufficiently clear to determine whether positions such as Division Chief were appointed
policymaking positions. And since I must draw all inferences in Little’s favor, I assume that
they were not. But IDPH may not have posted certain vacancies if the jobs were for appointed
positions that served at the pleasure of the governor—a legitimate, nondiscriminatory reason
not to post those openings.
14
21
level positions. The position that Swehla received, Senior Public Service
Administrator, was posted. The appointed positions were the exception, not the rule.
Moreover, Little does not dispute that Swehla testified there were no vacancies in
their division, and that Little never indicated any interest in a higher position to
Swehla, her direct supervisor. Thus, a reasonable jury could not find that Little was
discriminatorily denied a promotion that she never expressed interest in and never
applied for.
Little’s claim fails for another reason. Even if she could overcome the
application requirement, Little still must show that she was better qualified than the
applicants who received the jobs that she sought. Little has not made that showing.
First, she offers no evidence about what qualifications IDPH was seeking when it
filled any of the jobs that Little alleges she was overlooked for. She lists a wide range
of titles across three different offices within the department, and each of those
positions presumably required different qualifications. Some appear to be
management roles, while others, such as Lab Director, likely required more technical
expertise. Without “knowing what qualifications the department sought” in any of
those positions, “it is almost impossible to determine which candidate was more or
less qualified.” Carter v. Chi. State Univ., 778 F.3d 651, 660–61 (7th Cir. 2015).
Along those lines, Little’s insistence on her superior qualifications fails to
establish that she was better qualified for any of those jobs. She relies almost
exclusively on the fact that she has a Ph.D., while comparators did not. But she never
explains why a Ph.D. in molecular biology makes her more qualified than anyone else
22
for any of the positions she lists. See id. at 660 (granting summary judgment for
employer where plaintiff did not identify “what significance, if any” the employer
“placed on degree credentials”). Likewise, she lists certifications she held, but does
not concretely connect any certification to any specific position she was denied.
Absent evidence about what qualifications any given role required, Little’s “own
opinions about her qualifications” do not create a material factual dispute. Robertson,
949 F.3d at 381 (quoting Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir. 1996)).
Further, Little’s claim fails because she has provided almost no information
about the qualifications of the comparators she identifies. She notes that Ringenberg,
Charles, Lane, and Lamb were all younger than she is and had less experience in
public health, and that none of the alleged comparators had a Ph.D., although all but
Lane had a master’s degree. Little provides no details about when any of her
coworkers’ careers started, what type of experiences they had, or what qualifications
they held. Without more information, Little cannot establish that she was better
qualified. See Ford v. Marion Cty. Sheriff’s Off., 942 F.3d 839, 859 (7th Cir. 2019)
(granting summary judgment for employer on failure-to-promote claim where
plaintiff “did not present enough evidence about the jobs or how she compared to
other candidates to support an inference of discrimination”); See Johnson v. Advocate
Health & Hosps. Corp., 892 F.3d 887, 897–98 (7th Cir. 2018) (same, where plaintiff
offered no evidence of promoted employees’ backgrounds, qualifications, or resumes).
Little has not marshaled a prima facie case of failure to promote, and the
employer need not give a reason for not promoting her. Still, its explanation is facially
23
reasonable: Swehla testified that there were no vacancies for a higher position than
Little’s in OPR between July 2015 and March 2017, and Swehla did not see anyone
in OPR receive a promotion during that time. If there were no vacancies in Little’s
department, she could not have been promoted. And the other jobs that Little
expressed interest in were in other departments, headed by other supervisors. Little’s
claims primarily revolve around discrimination at the hands of Swehla and Rayman,
but they both worked in OPR and presumably would not have been involved in
promoting workers to jobs in other sections of IDPH.
Little did not apply for a promotion, was not rejected for one, and fails to show
that she was better qualified than any of her coworkers who were promoted.
Summary judgment is granted on Little’s failure-to-promote claim.
Hostile Work Environment
A hostile work environment is one that is so “permeated with discriminatory
intimidation, ridicule, and insult” that it alters the conditions of the victim’s
employment and creates an abusive working environment. Abrego v. Wilkie, 907 F.3d
1004, 1015 (7th Cir. 2018) (quoting Boss v. Castro, 816 F.3d 910, 919–20 (7th Cir.
2016)). To survive summary judgment on her hostile-work-environment claim, Little
must show: (1) she was subject to unwelcome harassment; (2) the harassment was
based on a reason forbidden by Title VII or the ADEA (here, sex, race, and age); (3)
the harassment was so severe or pervasive that it altered the conditions of
employment and created a hostile or abusive working environment; and (4) there is
a basis for employer liability. Smith v. Ill. Dep’t of Transp., 936 F.3d 554, 560 (7th
Cir. 2019); Abrego, 907 F.3d at 1015. Courts considering hostile-work-environment
24
claims evaluate the totality of the circumstances, focusing on the frequency of the
improper conduct, its severity, whether it was physically threatening or humiliating,
and whether it unreasonably interfered with the employee’s work performance.
Abrego, 907 F.3d at 1015.
Little argues that a number of circumstances, taken together, created a hostile
work environment, caused primarily by Swehla. She says Swehla oversaw her
meetings and checked on her time logs; interfered with her work assignments by
reassigning some of her duties to others; refused to conduct a yearly evaluation for
her; and subjected her to unfounded disciplinary actions. Meanwhile, her other
coworkers contributed to the atmosphere by dismissing her ideas, interrupting her,
and putting her on hold during conference calls. She also cites the department’s delay
in reimbursing her for travel expenses. [80] at 4–5, 14, 17.
Little has not marshaled evidence from which a reasonable factfinder could
find that she was subjected to intolerable working conditions. At the outset, Little
fails to show that any action she describes was connected to a protected characteristic.
She does not dispute that no supervisor ever commented on her sex, that Swehla
never specifically commented on her age, and no one at the department ever directed
a racial slur at her, either orally or in writing. Of course, the use of a slur is not a
prerequisite to establishing a genuine dispute about a hostile work environment, and
a plaintiff conceivably could survive summary judgment without such overt evidence
of animus. But there must be “some connection” to Little’s race, sex, or age. Zayas v.
Rockford Mem’l Hosp., 740 F.3d 1154, 1159 (7th Cir. 2014). That is, “not every
25
perceived unfairness in the workplace may be ascribed to discriminatory motivation
merely because the complaining employee belongs to a racial minority.” Id. (quoting
Beamon v. Marshall & Ilsley Tr. Co., 411 F.3d 854, 863–64 (7th Cir. 2005)). Thus,
successful hostile-work-environment claims often include explicit verbal commentary
to demonstrate the basis for and severity of the harassment. See, e.g., Robinson v.
Perales, 894 F.3d 818, 828 (7th Cir. 2018) (finding supervisor’s “multiple uses” of a
racial slur in combination with other actions created an issue of material fact about
whether harassment was severe or pervasive); Johnson, 892 F.3d at 900 (same, based
on supervisors’ use of “racially derogatory speech”). And when an employee is
subjected to, for example, “boorish,” “inappropriate,” “vulgar,” or “race-tinged”
comments, such statements are often not enough to create a factual dispute if they
are not shown to be sufficiently severe or pervasive. See Swyear v. Fare Foods Corp.,
911 F.3d 874, 881 (7th Cir. 2018); Poullard v. McDonald, 829 F.3d 844, 859 (7th Cir.
2016). If a plaintiff subjected to explicit, albeit relatively mild, commentary about her
race, sex, or age, cannot establish a hostile-work-environment claim, then Little
cannot do so here, where she has presented no evidence that Swehla or anyone else
targeted Little based on a protected characteristic. See Abrego, 907 F.3d at 1016
(granting summary judgment for employer where plaintiff “did not present sufficient
evidence to permit a reasonable jury to find that the alleged harassment was based
on his race or sex”); Zayas, 740 F.3d at 1159 (same, where allegations of harassment
“lack[ed] any clear connection” to plaintiff’s national origin).
26
In any event, a reasonable factfinder could not find that any of the actions
Little labels harassment were race-, sex-, or age-based, because they were largely
caused by Little’s own actions. Little says unfounded disciplinary actions contributed
to the hostile work environment, but she does not dispute that she committed the
offenses underlying those actions: that she failed to report to a training, ignored
Swehla’s written directives to complete tasks by a certain date, committed timesheet
violations, and engaged in unprofessional and disruptive conduct. She said in a TV
interview that IDPH employees would “rape” and “hang” her if given the opportunity,
resulting in a three-day suspension. And Little received a disciplinary reprimand for
talking over her colleagues at meetings and during conference calls, and criticizing
an IDPH training. The department reprimanded Little not because of her sex, race,
or age, but because of her conduct. Further, Little primarily blames Swehla for
creating a hostile work environment; she maintains that her working atmosphere
deteriorated under the new reporting structure. But Swehla only issued the August
2016 written reprimand. The November 2016 reprimand and February 2017
suspension both came from Rawls, Little’s former supervisor.
Nor could Swehla’s heightened oversight and presence at meetings, or her
delegation of some responsibilities away from Little, reasonably be considered race,
sex, or age-based harassment. It is undisputed that Swehla believed Little was
overwhelmed by her responsibilities—she often missed deadlines or conveyed
information too late, causing others to miss deadlines. Swehla testified that Little
27
was involved in “tons of things,” and she delegated some of Little’s duties to others
only “so that we would meet timely deadlines.” [62-3] 92:3–10.
So too, multiple people present complained that Little was rude, disrespectful,
and inappropriately critical at meetings. Little had made a poor impression in the
past, not only on other department employees, but also on IDPH’s federal counterpart
at the CDC. Given that background, no reasonable factfinder could find that
reasonable oversight amounted to intolerable working conditions, even when coupled
with the other circumstances Little describes. See Boss v. Castro, 816 F.3d 910, 920
(7th Cir. 2016) (rejecting hostile-work-environment claim where interference with
plaintiff’s job was “reasonable: it stemmed from his own failure to meet legitimate
employment expectations”); see also Abrego, 907 F.3d at 1015–16 (finding working
conditions where supervisors were disrespectful and subjected plaintiff to excessive
monitoring “not objectively offensive, severe, or pervasive”); Patton v. Indianapolis
Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir. 2002) (finding plaintiff’s claim that her
supervisor was “rude,” “ignored her work-related suggestions,” and subjected her to
“severe criticism” insufficient to establish hostile work environment).
Swehla’s monitoring when Little swiped in and out of the office was similarly
minor. It’s not clear that Little even knew that Swehla was reviewing her swipes in
and out. And it’s unremarkable for a supervisor to monitor her employees’ hours, as
Little readily admitted. Certainly there’s no evidence that Little felt physically
intimidated, severely humiliated, or otherwise abused by Swehla taking an action
that was entirely within the scope of her job duties. And that Swehla did not fill out
28
a performance evaluation for Little was likewise inconsequential. Swehla testified
that she did not fill out a yearly evaluation for Little because, when Swehla started,
Rawls had not filled out Little’s evaluation from the year before, so Swehla could not
complete the next one. [62-3] 80:20–81:5. Little identifies no harm she suffered from
not receiving a yearly review. The same is true of any delay in receiving her travel
reimbursements, especially because another employee, not Swehla, processed those
requests.
The closest Little comes to establishing a hostile work environment is her
allegation that her coworkers repeatedly insulted her by ignoring her ideas at
meetings and preventing her from contributing. But while undoubtedly frustrating,
Little’s coworkers talking over her and preferencing other’s ideas over hers at
meetings was arguably not even offensive, let alone severe, humiliating, or
threatening. Indeed, “[o]ffhand comments, isolated incidents, and simple teasing” do
not alter the terms and conditions of employment. Johnson, 892 F.3d at 900 (quoting
Passananti v. Cook Cty., 689 F.3d 655, 667 (7th Cir. 2012)). And what Little describes
falls short of even that. No one ever called her ideas terrible, and no one explicitly
prohibited her from speaking at meetings. Title VII does not entitle an employee to
respect or accolades from coworkers—it protects against an environment of severe
ridicule and intimidation. Little was disciplined for talking over and criticizing
colleagues at meetings, and she does not dispute that her coworkers found her
argumentative and difficult to work with. Assuming her colleagues intentionally
29
limited Little’s contributions at meetings, it is nevertheless unreasonable to infer that
the conduct had anything to do with Little’s race, sex, or age.
No reasonable factfinder could find that Swehla subjected Little to a hostile
work environment. Many of the actions that Little labels harassment were justified
responses to Little’s own conduct that occurred in the normal course of a supervisorsupervisee relationship. And the other circumstances amount only to a series of
unconnected, minor indignities, none of which related to her sex, race, or age.
Summary judgment is granted to IDPH on Little’s hostile-work-environment claim.
B.
Discrimination (Totality of the Evidence)
McDonnell Douglas is just one way of organizing evidence in an employmentdiscrimination case. McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 368
(7th Cir. 2019); Abrego, 907 F.3d at 1012. I must evaluate the evidence “as a whole”
to determine whether Little suffered an adverse employment action because of her
membership in a protected class. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765
(7th Cir. 2016).
Little has not suffered any adverse employment actions for the reasons already
discussed above (and below in discussing Little’s retaliation claim). But even if she
had, a reasonable factfinder could not find that any action was because of Little’s
race, sex, or age. In discrimination cases, “the sole question that matters” is
“causation, and thus intent.” Joll v. Valparaiso Cmty. Schs., No. 18-3630, 2020 WL
1316688, at *5 (7th Cir. Mar. 20, 2020). Little must present direct or circumstantial
evidence to support an inference of intentional discrimination. Id.; Coffman v.
Indianapolis Fire Dep’t, 578 F.3d 559, 563 (7th Cir. 2009). There are generally three
30
types of circumstantial evidence that will support an inference of intentional
discrimination: “ambiguous or suggestive comments or conduct,” “better treatment of
people similarly situated but for the protected characteristic”; and “dishonest
employer justifications for disparate treatment.” Joll, 2020 WL 1316688, at *5.
Little has not offered any direct evidence of discriminatory intent. No one ever
directed a racial slur at Little, or made any comment about her sex, age, or race that
would suggest Little was not promoted, disciplined, monitored and so on based on one
of those protected characteristics. That leaves her with circumstantial evidence.
Drawing all inferences in Little’s favor, I read Little’s approach to this as two-fold:
she argues that she was treated poorly as compared to similarly situated employees,
and also that, historically, IDPH discriminated against African American employees
(this argument appears to apply only to her race-discrimination claims). 15
Similarly situated employees must be “directly comparable” to Little “in all
material respects.” Barbera v. Pearson Educ., 906 F.3d 621, 629 (7th Cir. 2018)
(quoting Khowaja v. Sessions, 893 F.3d 1010, 1015 (7th Cir. 2018)). An employee is
similarly situated to a plaintiff if he “deal[s] with the same supervisor,” is “subject to
the same standards,” and has “engaged in similar conduct.” Id. (quoting Lauth v.
Covance, Inc., 863 F.3d 708, 716 (7th Cir. 2017)). Despite Little’s repeated assertions
that she was mistreated as compared to her colleagues who did not belong to a
I disagree with IDPH that Little’s argument is an attempt to amend the complaint to add
an unexhausted disparate-impact claim. [94] at 8–9. A plaintiff may introduce evidence of a
pattern of discrimination to show that the employer’s justification is pretextual or as
circumstantial evidence of intentional discrimination.
15
31
protected class, she identifies no one who engaged in similar conduct at IDPH and
suffered different consequences. She argues that Joe Ramos was never in the office,
yet was never disciplined. [80] at 9. But Little would not have any personal knowledge
of Ramos’s disciplinary history. And there’s no proof that Ramos committed any of
the same violations that Little did—Little’s disciplinary actions covered missed
deadlines, ignoring directives, insubordination, and disrespectful conduct, not failing
to show up to the office.
She also contends that she did not have any full-time staff working under her,
while other non-black employees did. [80] at 9. Little supervised interns, however, so
IDPH did allow her some supervisory functions. She does not explain how the
difference between supervising an intern and a full-time staff member would permit
an inference of intentional discrimination. And it’s not clear that the other IDPH
employees who supervised staff were in the same position as Little. Finally, Little
never asked Swehla to hire someone to help her, undercutting her claim that IDPH
discriminatorily denied her a subordinate.
As evidence of race-based mistreatment, Little contends that Rayman and
Swehla only monitored the swipe-ins, computer log-ins, and travel vouchers of
African American employees, and, as a result of those investigations, IDPH laid off a
number of workers at once, only rehired the white employees, and replaced the fired
African American employees with new, white employees. [80] at 7–9, 21. Little’s
allegations on this front lack any support in the record; she would have no way of
knowing whose log-ins Rayman was monitoring, and her belief that he was doing so
32
is based on hearsay—another employee told her that Rayman was monitoring only
black employees. Likewise, her allegations about IDPH only rehiring white
employees are not in her Rule 56.1 statement, and are cursorily presented in her
response brief. As evidence to support her allegations, she cites only to her own
unauthenticated exhibits in which she makes the same allegations. The argument is
“perfunctory and undeveloped,” and is waived. Ripberger v. Corizon, Inc., 773 F.3d
871, 879 (7th Cir. 2014) (finding plaintiff waived argument that there was a “pattern”
of discrimination by not developing factual record).
Evidentiary issues aside, these allegations cannot save Little’s claims.
Evidence of an employer’s policy and practice can be “relevant evidence of pretext or
discrimination,” but the evidence must “undercut the specific justifications given by
the employer.” Barnes, 946 F.3d at 390 (quoting Ford, 942 F.3d at 858). Alleging a
history of discrimination is typically “not enough to impugn a particular employment
decision.” Ford, 942 F.3d at 858.
Little’s claims focus on discrimination by her supervisors, Swehla and
Rayman. There is no indication that Swehla or Rayman were involved in the hiring
and firing decisions Little mentions; Little offers no evidence about who made those
decisions. Further, those incidents are unrelated to the harm that Little alleges.
Little does not argue that she was terminated, let alone based on her race. See
Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 606 (7th Cir. 2012) (rejecting plaintiff’s
reliance on employer’s “pattern of age discrimination” to show discriminatory intent
because “nothing connects these employees’ departures to prohibited conduct”). And
33
Rawls, the OPR Deputy Director, was African American, undermining Little’s
argument that IDPH historically discriminated against African American employees,
so she was also discriminated against. See Barnes, 946 F.3d at 390 (rejecting
plaintiff’s argument that failure to promote was discriminatory based on employer’s
history of failing to promote African Americans where employer had promoted
African Americans to head positions).
Finally, the department offered credible reasons for taking the actions it did.
If an employer’s explanations are “facially legitimate,” a court accepts them as true
unless there is some contradiction, inconsistency, or implausibility that suggests a
factfinder could find the explanation incredible. Robertson, 949 F.3d at 381–82
(quoting Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir. 2008)). Little points
to no contradiction or inconsistency in the explanations to allow a jury to infer that
the reasons are dishonest.
Whether viewed through the McDonnell Douglas or Ortiz lens, Little has not
offered evidence to permit a jury to conclude that IDPH discriminated against her on
the basis of race, sex, or age.
C.
Retaliation
Title VII and the ADEA provide that it is unlawful for an employer to
discriminate against an employee because the employee filed a complaint about an
unlawful employment practice. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). To survive
summary judgment on her retaliation claim under either statute, Little must produce
enough evidence for a reasonable jury to find that: (1) she engaged in a statutorily
protected activity; (2) the department took a materially adverse action against her;
34
and (3) there was a but-for causal connection between the two. Robertson, 949 F.3d
at 378; Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 868 (7th Cir.
2018) (noting same test for Title VII and ADEA).
Statutorily protected activity is a “cognizable expression of opposition” to
discriminatory practices. Jaburek, 813 at 633 (quoting O’Leary v. Accretive Health,
Inc., 657 F.3d 625, 634 (7th Cir. 2011)). It must be “more than simply a complaint
about some situation at work.” Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 718 (7th Cir.
2018) (quoting Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 901 (7th Cir. 2016)).
And the complaint must indicate that discrimination occurred based on the
complainant’s membership in a protected class. Id. Filing an EEO complaint is “the
most obvious form of statutorily protected activity.” Lewis v. Wilkie, 909 F.3d 858,
867 (7th Cir. 2018) (quoting Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012)).
Little engaged in protected activity. Her claim revolves around a series of
complaints that she filed in late 2015, including reporting race discrimination to the
OEIG and the Attorney General’s Office, and filing a complaint with the EEOC that
alleged discrimination on the basis of sex, race, and age, and retaliation based on
protected activity under both Title VII and the ADEA. [80] at 15–16. 16
Little fails, however, to establish that she suffered any materially adverse
action. The standard for a materially adverse employment action is lower in the
Little also lists other examples of protected activity, such as text messages she sent to
Damon Arnold, a department director, and a complaint she sent to state Representative
Jehan Gordon. Those complaints are inadmissible for the reasons noted above, and I do not
consider them. Even if considered, they would not change the outcome, as Little has
established that she engaged in protected activity, and they would not advance her causation
argument.
16
35
retaliation context than in the discrimination context. The action need not affect the
terms and conditions of employment, but it must be one that would deter a reasonable
employee from making a discrimination complaint. Robertson, 949 F.3d at 382;
Poullard, 829 F.3d at 856. Still, Title VII protects an individual “not from all
retaliation, but from retaliation that produces an injury or harm.” Lewis, 909 F.3d at
868 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)). Thus,
a materially adverse action in the retaliation context typically affects the plaintiff’s
compensation, work hours, career prospects, or conditions of employment. Robertson,
949 F.3d at 382; Poullard, 829 F.3d at 856–57.
Little identifies three materially adverse actions she says she suffered as a
result of her complaints: her 2015 reassignment and title change; the disciplinary
actions she received, including a hearing in September 2015 that led to a suspension;
and a hostile work environment. [80] at 17–18.
The 2015 reorganization was not a materially adverse action. IDPH switched
Little’s title and supervisor as part of a broader reorganization to bring OPR in line
with a structure that central management had approved. Swehla testified that OPR
reorganized because HR “was requiring the agency to follow their official
organizational chart.” [62-3] 49:19–25. It was not specific to Little, and affected
multiple employees; Vassmer also reported to Swehla under the new structure. The
change in title and supervisor did not correspond to a salary decrease or different job
duties. No reasonable employee would be dissuaded from complaining about
discrimination based on Little’s inclusion in a department-wide reorganization.
36
Little’s written reprimands were likewise not materially adverse. A written
admonishment unaccompanied by any sanction does not register as the type of harm
Title VII guards against. That is, “unfair reprimands or negative performance
reviews” are not materially adverse actions for a retaliation claim unless
accompanied by “tangible job consequences.” Robertson, 949 F.3d at 383 (quoting
Boss, 816 F.3d at 919); Fields v. Bd. of Educ. of City of Chi., 928 F.3d 622, 626 (7th
Cir. 2019) (finding “pre-meeting notices, which warned that discipline was possible,”
and “mediation, which resulted in no discipline” not adverse actions because they did
not affect plaintiff’s “career prospects or salary”); Poullard, 829 F.3d at 856–57 (letter
of admonishment not an adverse action where plaintiff did not explain “what effect if
any that letter had on his compensation, career prospects, or conditions of
employment”). The only tangible harm Little points to that followed from those
reprimands was a suspension following her TV appearance, which was objectively
warranted based on Little’s violation of IDPH’s policies. Beyond that, none of the
other disciplinary actions she received appear to have had any identifiable effect—
Little does not dispute the department’s characterization of them as “written
reprimands.” A reasonable employee would not be deterred from reporting
discrimination based on Little’s disciplinary actions, where those actions were
justified and, for the most part, had no discernable consequences.
Finally, materially adverse actions in the retaliation context must be
considered independently, not under the totality of the circumstances. Lewis, 909
F.3d at 868 n.3. So Little may not rely on a hostile work environment as an adverse
37
action for her retaliation claim, and, even if she could, she has not established a
genuine dispute that she was subjected to a hostile working environment for the
reasons discussed above. Even considering the actions Little includes as contributing
to a hostile work environment independently, none are actions that would dissuade
a reasonable employee from complaining about discrimination. For example, “The
knowledge that supervisors are monitoring one’s location while at work would not
dissuade a reasonable employee from engaging in protected activity.” Lewis, 909 F.3d
at 869. Likewise, regarding Swehla’s delegating responsibilities, “challenged actions
involving the reassignment of job responsibilities are typically not materially
adverse.” Robertson, 949 F.3d at 382 (quoting Stephens v. Erickson, 569 F.3d 779, 791
(7th Cir. 2009)). Little makes no claim that she was paid hourly or suffered a
reduction in compensation based on having less work to do because Swehla
reassigned some of her duties. And a reasonable person in her position would not
refrain from reporting discrimination simply because her supervisor skipped a yearly
review. See Lewis, 909 F.3d at 868 (finding “isolated administrative errors” not
materially adverse actions because they caused no “lasting harm or injury” and were
“minor workplace grievances against which Title VII does not protect”).
Even if Little had suffered a materially adverse action, she fails to link a
protected activity to any harm she experienced. To prove causation, she must show
that the “desire to retaliate was the but-for cause of the challenged action.” Robinson,
894 F.3d at 830 (quoting Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010, 1019 (7th
Cir. 2016)). Relevant circumstantial evidence of a causal connection can include
38
“suspicious timing, ambiguous statements of animus, evidence other employees were
treated differently, or evidence the employer’s proffered reason for the adverse action
was pretextual.” Rozumalski v. W.F. Baird & Assocs., Ltd., 937 F.3d 919, 924 (7th
Cir. 2019) (quoting Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481, 486 (7th Cir.
2015)).
Little relies on temporal proximity between her complaints and the alleged
adverse employment actions to establish a causal connection. [80] at 18. She filed a
complaint with the OEIG on September 1, 2015, and wrote to the governor on
September 8, 2015. On September 11, 2015, IDPH held a disciplinary hearing that
resulted in Little’s suspension the following November. So, Little says, the timing of
her complaints in early September establishes that IDPH suspended her in
November as retaliation for making those complaints.
The record casts doubt on Little’s timeline. Little received notice of the hearing
on September 4—before she wrote to the governor. Nor does Little’s September 1
OEIG complaint establish suspicious timing. Nothing in the record indicates that the
OEIG received her complaint and communicated it to Little’s supervisors between
September 1 and September 4. It took much longer for the OEIG to process and
forward Little’s complaint; the OEIG wrote back to Little on October 8 saying it had
referred her complaint back to IDPH. So neither her disciplinary hearing nor her
suspension could have been in retaliation for that complaint. Little fares no better
with her assertion that she filed her EEOC complaint in October 2015, and the
department suspended her in November. The department held the hearing that led
39
to that suspension in September, before Little made her EEOC complaint. See
Jaburek, 813 F.3d at 634 (where adverse actions occurred before plaintiff filed EEO
complaint, “timing doom[ed]” plaintiff’s retaliation claim). 17
Little also argues that her alleged abusive work environment was the result of
“her subsequent Title VII complaints filed after October 5, 2015.” [80] at 18. But she
does not tie any specific complaint to any actionable harm. And many of Little’s
allegations are undated—it is not clear when Swehla began keeping track of her
swipes in and out, or when Swehla transferred responsibilities. Because Little has
alleged both recurring complaints and adverse actions in generalities, it is impossible
to evaluate the suspicious timing that Little urges shows a retaliatory motive.
More broadly, a reasonable factfinder could not find that IDPH sanctioned
Little as retaliation, because the department had legitimate, nonretaliatory reasons
for nearly all of the actions Little takes issue with. As noted with regard to Little’s
hostile-work-environment claim, Swehla and Rayman disciplined her because of her
conduct, not as backlash for complaining about discrimination. Proof of causation
requires proof that the “unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the employer.” Robinson, 894 F.3d at 830
(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)). Little offers
no evidence that the department would not have disciplined her for her behavior if
The suspension could not have been retaliatory because it wasn’t an adverse action—Little
successfully appealed it. “‘[A] suspension without pay that is never served does not constitute
an adverse employment action’ for retaliation purposes.” Poullard, 829 F.3d at 856 (quoting
Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1120 (7th Cir. 2009)).
17
40
she had not filed complaints about race discrimination. And other actions that Little
takes issue with have similarly benign explanations. Little’s title and supervisor
changed in 2015 because IDPH conducted a wide-scale reorganization, and Swehla
redistributed some of Little’s job duties not as a reproach for Little’s complaints of
discrimination, but so that the office would meet deadlines on time.
Because Little did not suffer a materially adverse employment action, and in
any event cannot tie any protected activity to any alleged consequence, Little has
failed to establish retaliation.
V.
Conclusion
At bottom, a reasonable factfinder could not find that Little suffered any
adverse consequence for any reason other than legitimate concerns about the quality
of her work and her conduct. IDPH’s motion for summary judgment, [59], is granted.
Enter judgment and terminate civil case.
ENTER:
Dated: March 31, 2020
_______________________________________
Manish S. Shah
United States District Judge
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