Clemmer v. Timothy Evans et al

Filing 161

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 9/23/2021. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Regina Clemmer,
Plaintiff,
v.
Timothy Evans, in his official
capacity as Chief Judge of the
Circuit Court of Cook County
Defendant.

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) No. 18-cv-3695
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Memorandum Opinion and Order
The Office of the Chief Judge of the Circuit Court of Cook
County (“OCJ”) employs Plaintiff Regina Clemmer as an Official
Court Reporter at the Leighton Criminal Courts building, located
at the intersection of 26th Street and California in Chicago.
No. 154 ¶¶ 2-3.

ECF

After Ms. Clemmer reportedly experienced bullying

and harassment at the hands of her co-workers, she initiated the
instant action against Defendant Timothy Evans in his official
capacity as Chief Judge of the Circuit Court of Cook County,
alleging sex discrimination and retaliation under Title VII of the
Civil Rights Act, 42 U.S.C. §§ 2000e-2, 2000e-3.
moves for summary judgment in his favor [140].

Judge Evans now

For the following

reasons, the motion for summary judgment is granted.

I.
Ms. Clemmer, who is Black and female, has been employed as an
Official Court Reporter since 1995 and assigned to the Leighton
Criminal Courts building since 2006.

ECF No. 154 ¶¶ 1, 3.

The

Leighton courthouse is a high-volume courthouse, which makes it a
desirable place for court reporters to work because they stand to
make money selling a high volume of transcript pages.

Id. ¶ 4.

Ms. Clemmer testified that over a period of years, she was
bullied and harassed by a group of female, majority-Black court
reporters and administrators known throughout the office as “the
Family,” which included Vernita Halsell-Powell, Maggie Perez,
Sharon Thompson, Jamie Mitchell, Faye Montgomery, Pam Terry, and
Doris Moseberry.1

Id. ¶ 22; see ECF No. 143-3 at 10-11; ECF No.

143-11 at 23-24.

The Family’s alleged bullying behavior included

a pervasive practice of calling Ms. Clemmer names such as “bitch”
and “BFF,” physically touching or pushing Ms. Clemmer, and blocking
her path through the courthouse.

See, e.g., ECF No. 154 ¶¶ 6, 16.

Ms. Clemmer testified that her relationships with certain
members of “the Family” had soured years earlier.

For example,

she claimed that her relationship with Ms. Moseberry suffered in
2009 or earlier when Ms. Clemmer refused to give Ms. Moseberry

Ms. Clemmer initially sued Doris “Mooseberry,” ECF No. 50, but
both parties now refer to her as Ms. “Moseberry.” As the parties
seem to have agreed, I will also refer to her as Ms. Moseberry for
instant purposes.
1

2

money to complete her monthly vouchers.

ECF No. 143-3 at 29-30.

Around the same time, she claims she and Ms. Montgomery had a
falling out because Ms. Clemmer refused to trade courtrooms with
her.

ECF No. 154 ¶ 19.

Ms. Clemmer also explains that her issues

with Ms. Terry began in November 2015 when Ms. Terry accused Ms.
Clemmer of (1) stating that Springfield did not have sufficient
funds for their supervisor to sign their vouchers, and (2) “making
inappropriate statements regarding Keisha LeFlore,” a co-worker.
Id.; ECF No. 143-3 at 11-12.
As early as 2009 or 2010, Ms. Clemmer claimed she verbally
reported that Ms. Montgomery had been bullying her to Marilyn
Filishio, Director of Official Court Reporters; Pamela Taylor, Ms.
Clemmer’s

then-supervisor;

another supervisor.
No. 143-11 at 4.2
conduct.

and

Jeanie

LaMantia-Potter,

then

ECF No. 143-3 at 22; ECF No. 143-5 at 5; ECF

Ms. Clemmer claims she was told to “ignore” the

ECF No. 143-3 at 22.

After a December 11, 2014 meeting

for all court reporters regarding racism and bullying in the
office, Ms. Clemmer testified that she also reported to Supervisor
Brenda Hayes that she was experiencing bullying.
17.

ECF No. 143-2 at

She did not, however, specifically mention that she was being

bullied on the basis of her sex.

Id.

Ms. Filishio denies that Ms. Clemmer complained to her at this
time. ECF No. 143-5 at 9.
2

3

Ms. Clemmer claims that she spoke to Brenda Hayes again in
April 2016 about how Ms. Terry was striking and shoving her,
stepping on the heel of her shoe while walking, and standing and
blocking her path.

ECF No. 154 ¶ 16.

Again, she did not

specifically bring up sex discrimination, but she did report that
she was being repeatedly called “bitch.”
Ms.

Hayes

did

not

elevate

Ms.

ECF No. 143-2 at 17.

Clemmer’s

complaint

to

her

supervisors at that time, but Ms. Hayes may have “spoke[n] to the
individuals involved.”

ECF No. 143-11 at 10.

On September 12, 2016, Ms. Clemmer describes that Ms. Terry,
Ms. Moseberry, and Ms. Montgomery surrounded her at Ms. Moseberry’s
desk, screaming at her, putting their “fingers . . . in [her]
face,” and towering over her so she could not escape.
143-3 at 9.

ECF No.

Ms. Clemmer immediately made a verbal complaint to

Ms. Potter, Executive Assistant for the Official Court Reporters,
over the phone regarding those three individuals.
at 4; ECF No. 143-11 at 4.

ECF No. 143-9

During that phone call, she also

relayed that she had “been bumped by Ms. Terry while walking down
the hall, blocked when coming through the hall and called ‘bitch’
or ‘fucking bitch’ in an open office environment on more than 40
occasions over the past year.”

ECF No. 143-9 at 4.

In addition

to the three women involved in the September 12, 2016 incident,
she named the other members of “the Family” as part of the same
problematic group.

Id.

At Ms. Potter’s request, Ms. Clemmer also
4

submitted a written complaint later the same day.

ECF No. 154

¶ 19.
Following Ms. Clemmer’s September 12, 2016 complaint, the OCJ
initiated two parallel investigations--one conducted by Ms. Potter
regarding the allegations of bullying in violation of the Code of
Conduct, and one by Keith Sevcik, Labor and Employment Counsel for
the OCJ, into whether Ms. Clemmer’s co-workers had created a
hostile work environment based on race.

ECF No. 154 ¶ 27.

While

the investigation was pending, Ms. Powell, Ms. Mitchell, Ms. Terry,
and Ms. Moseberry were temporarily transferred out of the Leighton
courthouse effective September 19, 2016.
ECF No. 143-31 at 4.

ECF No. 143-15 at 1-3;

Ms. Montgomery provided notice on September

14, 2016 that she would retire effective October 1, 2016 and was
not transferred.

ECF No. 143 ¶ 26; ECF No. 154 ¶ 26.

However,

Ms. Terry, Ms. Montgomery, and Ms. Moseberry did not bully Ms.
Clemmer again after the September 12, 2016 complaint.

ECF No. 154

¶ 10.
In

connection

with

the

investigation,

interviewed on September 23, 2016.

Ms.

Clemmer

ECF No. 143-9 at 4.

was

In her

interview, she reported that Ms. Terry “called her ‘bitch’ and
‘fucking bitch’ constantly.”

Id.

She also characterized “the

Family” as “racist,” having called white court reporters “honkeys”
that they did not want “on their side of the office.”

Id.

She

said the Family was “hard on blacks” such as herself that they
5

felt were “not black enough,” because, for example, they associated
with white court reporters.

Id.

provided

with

the

interviewers

At the end of her interview, she
the

names

of

individuals

she

believed would corroborate her complaint, and the investigators
interviewed those individuals and any others those individuals
discussed.
Ms.

ECF No. 154 ¶ 30.

Clemmer’s

interviewees,

and

complaints
in

were

December

corroborated

2016,

the

OCJ

by

the

found

other

that

Ms.

Mitchell, Ms. Terry, Ms. Powell, and Ms. Moseberry had engaged in
racial bullying and created a hostile work environment.
143-22, 143-23, 143-24, 143-25.

ECF Nos.

Those employees were suspended

for 10 to 20 days and their transfers made permanent.

ECF No. 143

¶¶ 40-42, 44; ECF No. 154 ¶¶ 40, 42, 44; ECF No. 143-28 at 5.

Ms.

Perez was “verbally cautioned regarding retaliation and remaining
professional in the workplace,” but was not transferred because
there were no allegations directly pertaining to her, and Ms.
Clemmer stated to the investigators that she had no issue with Ms.
Perez.

ECF No. 143 ¶ 43; ECF No. 154 ¶ 43.

Ms.

Clemmer’s

relationship

shortly thereafter, however.

with

Ms.

Perez

deteriorated

On December 22, 2016, Ms. Clemmer

says that as she was returning to her office, Ms. Perez locked her
out so that Ms. Clemmer had to be let into her office by another
court reporter.

ECF No. 143-2 at 21.

Ms. Clemmer immediately

called Ms. Potter to report the incident, who, according to Ms.
6

Clemmer, suggested that Ms. Perez could be reacting to the fact
that the investigation into “the Family” had concluded and urged
Ms. Clemmer to go home for the day.

Id.

Ms. Clemmer contends that after that initial incident in
December 2016, in retaliation for complaining to her superiors
about discrimination, Ms. Perez harassed her on an ongoing basis
by calling her names and verbally threatening her.
¶ 54.

ECF No. 154

She claims that Ms. Perez called her “bitch” repeatedly and

lurked outside her office door making faces.
22; ECF No. 143-3 at 199-200.

See ECF No. 143-2 at

She testified also that Ms. Perez

threatened her by stating, “You must not know I’m Puerto Rican,”
ECF No. 154 ¶ 55, and tried to run her over with her car on more
than one occasion in the parking garage, ECF No. 143-3 at 199.
Ms. Clemmer says she reported these incidents to supervisors Brenda
Hayes, Sharita Chancellor, and Janet Hartnett, as well as to Ms.
Potter and Ms. Filishio.

ECF No. 143-2 at 23.

Ms. Clemmer filed a charge of discrimination with the Illinois
Department of Human Rights (“IDHR”) on March 10, 2017 alleging she
was harassed in late 2016 by Ms. Terry, Ms. Montgomery, and Ms.
Moseberry on the basis of her sex.

ECF No. 143-36.

On May 23, 2017, Ms. Perez submitted an internal written
complaint asserting that Ms. Clemmer had “lunged” at her in
connection with a misunderstanding about a birthday party.

See

ECF No. 143-32 at 1-2. Three days later, Ms. Perez filed a Petition
7

for Stalking No Contact Order against Ms. Clemmer.
¶ 46.

ECF No. 154

In the petition, she complained that Ms. Clemmer named her

in the racial harassment and bullying investigation, and also
“whispered about [her] to another reporter” and then “made a
gesture with her body & gave [her] a dirty look” in December 2016.
ECF No. 143-34 at 1.

While the petition for the no-contact order

was pending, Ms. Perez was temporarily transferred out of the
Leighton courthouse.

ECF No. 143 ¶ 47; ECF No. 154 ¶ 47.

At a

meeting on June 6, 2017 with Ms. Potter and Ms. Filishio, Ms. Perez
stated that she filed the petition “so she wouldn’t be removed
from 26th Street and Regina [Clemmer] would.”

ECF No. 143-30 at

4. Ms. Perez failed to show up to court on her order for protection
and the petition was dismissed.

ECF No. 154 ¶ 47.

Ms. Clemmer also contends that Ms. Potter and Ms. Filishio
threatened her twice--once on June 7, 2017, and once on May 15,
2018--that if she made any more complaints about Ms. Perez, she
would be removed from the Leighton courthouse.
51.

ECF No. 154 ¶¶ 50-

Additionally, she claims that she was subjected to an adverse

employment action when she took three days off from May 16-18,
2018 and Ms. Potter advised that she needed to disclose her medical
ailment to substantiate the time off.

ECF No. 154 ¶¶ 52-53.

Clemmer was eventually paid for that time.

Ms.

ECF No. 154 ¶ 53.

Ms. Clemmer filed a second charge of discrimination with the
IDHR

and

Equal

Employment

Opportunity
8

Commission

(“EEOC”)

on

January 24, 2018 alleging that Ms. Perez was subjecting her to
ongoing harassment on the basis of her sex and retaliating against
her for filing her previous charge of discrimination.

ECF No.

143-37.
II.
In Count I, Ms. Clemmer asserts that she was subjected to a
hostile work environment based on her sex.

“A hostile work

environment claim contains four elements: (1) the employee was
subject to unwelcome harassment; (2) the harassment was based on
a reason forbidden by Title VII--here, [sex]; (3) the harassment
was so severe and 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).

Judge Evans

here challenges that Ms. Clemmer has established the second and
fourth elements.
I first address whether the harassment at issue was sexbased.

Ms. Clemmer testified that she was repeatedly called a

“bitch” by members of “the Family.”

See, e.g., ECF No. 154 ¶ 6.

The word “bitch” is “gender-specific, and it can reasonably be
considered evidence of sexual harassment” when viewed in context.
Passananti v. Cook County, 689 F.3d 655, 666 (7th Cir. 2012).
However, Ms. Clemmer “can’t win simply by proving that the word
was uttered.”

Smith, 936 F.3d at 561.
9

Ms. Clemmer must show that

the use of the word created a hostile working environment “from
both a subjective and an objective point of view.”

Id. (citing

EEOC v. Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018)).
That is, “[s]he must show not only that a reasonable person would
find the workplace hostile or abusive as a result of [the sexbased] slur, but also that [s]he [her]self perceived it that way.”
Id.
Ms. Clemmer founders on the subjective prong of the analysis.
Although it is undisputed that Ms. Clemmer was subjected to severe
harassment, she does not show that she believed that harassment
was based on her sex.

There is no evidence she ever complained to

management that the harassment she was enduring was gender- or
sex-based, even during her interview in the context of the 2016
investigation.

Instead,

Ms.

Clemmer

harassment was racially motivated.

complained

that

the

See, e.g., ECF No. 143-9 at 4.

She also maintains that the harassment began when her interpersonal
relationships with members of the Family suffered for reasons
unrelated to her sex--for example, when she refused to trade
courtrooms with Ms. Montgomery.

See, e.g., ECF No. 154 ¶ 19.

She

admits that Ms. Perez harassed her “in retaliation for complaining
about discrimination” instead of due to any sex-based bias.
¶ 54.

Id.

Ms. Clemmer did testify that the Family “only targeted

females,” but she thought that was because the Family believed
they could more easily get away with harassing the female court
10

reporters at the courthouse, not necessarily because of any sexbased animus.

See ECF No. 143-3 at 59-60.

“Title VII . . . does not give employees a remedy for
workplace abuse unrelated to a protected characteristic.”
936 F.3d at 561.

Smith,

Accordingly, Ms. Clemmer needed to “point to

evidence . . . that [s]he suffered harm from [sex]-based harassment
that

was

distinct

from

the

distress

harassment was already causing [her].”
added).

that

non-[sex]-based

Id. at 561-62 (emphasis

Ms. Clemmer failed to make such a showing--she “points to

no evidence that [any perceived sex-based discrimination] caused
h[er] either additional or different distress” than that which she
was already experiencing due to race-based harassment3 and her
interpersonal issues with the Family.

Id. at 562.

Because I find that there is no evidence Ms. Clemmer had a
subjective belief she was harassed based on her sex, I need not
consider Judge Evans’s other arguments.

Summary judgment is

granted as to Count I.
III.
Ms. Clemmer also brings a claim for Title VII retaliation in
Count II.

She argues that her employer retaliated against her for

Ms. Clemmer did not bring a claim for
No. 50 at 3. Nor could she have--“a
bring claims in a lawsuit that were
charge.” Cheek v. W. & S. Life Ins.
Cir. 1994).
3

11

racial discrimination. ECF
Title VII plaintiff cannot
not included in her EEOC
Co., 31 F.3d 497, 500 (7th

complaining about the harassment she was facing and for filing the
two charges of discrimination with the IDHR and EEOC.
50 ¶ 24.

See ECF No.

To defeat summary judgment on a retaliation claim, a

“plaintiff must prove that [s]he engaged in protected activity and
suffered an adverse employment action, and that there is a causal
link between the two.”

Lord v. High Voltage Software, Inc., 839

F.3d 556, 563 (7th Cir. 2016).
Judge Evans argues that Ms. Clemmer did not suffer an adverse
employment action.
potential

adverse

In response, Ms. Clemmer points to three
employment

actions:

(1)

the

hostile

work

environment itself, which she argues her employer took “part in
continuing and perpetuating”; (2) Ms. Filishio’s threat that if
Ms. Clemmer complained again about Ms. Perez, she would be removed
from the Leighton courthouse; and (3) Ms. Potter’s request that
Ms. Clemmer disclose a medical ailment to substantiate her time
off from May 16-18, 2018.

See ECF No. 153 at 12-13.

“The creation of a hostile work environment can be a form of
retaliation.”

Smith v. Ne. Ill. Univ., 388 F.3d 559, 567 n.5 (7th

Cir. 2004). However, as discussed above, Ms. Clemmer has not
substantiated her claim that she was subject to a hostile work
environment under Title VII.

Accordingly, she cannot rely on

perpetuation of such an environment as an adverse action to support
her claim for retaliation.

See, e.g., Harris v. Ashcroft, 74 F.

App’x 669, 673 (7th Cir. 2003) (upholding summary judgment on
12

retaliation claim based on hostile-work-environment adverse action
where

harassment

plaintiff

experienced

was

not

tied

to

her

membership in protected class).
Nor can the threat that Ms. Clemmer would be transferred to
another courthouse if she made another complaint qualify as an
adverse employment action.

“Federal law protects an employee only

from retaliation that produces an injury.”

Poullard v. McDonald,

829 F.3d 844, 856 (7th Cir. 2016) (citing Stephens v. Erickson,
569 F.3d 779, 790 (7th Cir. 2009)).

Because they have no effect

on compensation or career prospects, threats alone generally do
not produce an actionable injury.

Id. (collecting cases and

holding threats of disciplinary action did not constitute adverse
employment action); see also Lewis v. Wilkie, 909 F.3d 858, 870
(7th Cir. 2018) (“[T]here is ample precedent in this Circuit and
in Supreme Court case law supporting the proposition that an
adverse action in the Title VII retaliation context must produce
a material injury or harm, and that unfulfilled threats do not
meet that standard.”).
Ms. Potter’s request that Ms. Clemmer substantiate her sick
leave fares no better--Ms. Clemmer was ultimately paid for her
time, so there were no tangible job consequences.
v.

Ill.

Dep’t

of

Corr.,

276

F.3d

379,

384

See Longstreet

(7th

Cir.

2002)

(“[Plaintiff’s] being required to substantiate that her absences
from work were illness-related . . . did not result in tangible
13

job consequences and therefore [is] not [an] adverse employment
action[] actionable under Title VII.”); see also Beverly v. Kaupas,
No. 05 C 6338, 2008 WL 624045, at *16 (N.D. Ill. Feb. 29, 2008)
(same).
Because Ms. Clemmer has not established that she was subject
to any adverse employment action, summary judgment is granted as
to her retaliation claim.
IV.
For the foregoing reasons, the motion for summary judgment
[140] is granted.

ENTER ORDER:
________________________
Elaine E. Bucklo
United States District Judge

Dated: September 23, 2021

14