Porter v. Saul
MEMORANDUM Opinion and Order: Plaintiff's Motion for Summary Judgment 35 is denied. The defendant's Motion for Summary Judgment 40 is granted. The Clerk is directed to enter judgment in the defendant's favor and against the plaintiff and terminate the case. The Clerk of the Court shall mail a copy of this opinion to the plaintiff. Civil case terminated. Signed by the Honorable Mary M. Rowland on 4/27/2021. (See attached order for further detail.)Mailed notice. (dm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 19-cv-3053
ANDREW SAUL, Commissioner of
Judge Mary M. Rowland
MEMORANDUM OPINION AND ORDER
This case is before the Court on the parties’ cross motions for summary judgement
[35, 40]. Plaintiff Delores Porter alleges that she suffered from race, color, and age
discrimination and a hostile work environment while employed at the Social Security
Administration (SSA). She also alleges a Privacy Act claim related to the SSA’s
handling of her personal information. Both parties now seek summary judgement.
For the reasons stated below, Porter’s Motion for Summary Judgment  is denied
and the government’s motion  is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine dispute as to any material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts are
material. Id. After a “properly supported motion for summary judgment is made, the
adverse party must set forth specific facts showing that there is a genuine issue for
trial.” Id. at 250 (internal quotations omitted).
The Court “consider[s] all of the evidence in the record in the light most favorable
to the non-moving party, and  draw[s] all reasonable inferences from that evidence
in favor of the party opposing summary judgment.” Skiba v. Ill. Cent. R.R. Co., 884
F.3d 708, 717 (7th Cir. 2018) (internal citation and quotations omitted). The Court
“must refrain from making credibility determinations or weighing evidence.”
Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson,
477 U.S. at 255). In ruling on summary judgment, the Court gives the non-moving
party “the benefit of reasonable inferences from the evidence, but not speculative
inferences in [its] favor.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016)
(internal citations omitted). “The controlling question is whether a reasonable trier
of fact could find in favor of the non-moving party on the evidence submitted in
support of and opposition to the motion for summary judgment.” Id. (citation
When cross-motions for summary judgment are filed, the Court construes all facts
and draws all reasonable inferences in favor of the party against whom the motion
was filed. Indianapolis Airport Auth. v. Travelers Prop. Cas. Co. of Am., 849 F.3d 355,
361 (7th Cir. 2017). The Court treats the motions separately. Marcatante v. City of
Chi., 657 F.3d 433, 439 (7th Cir. 2011). See also Kreg Therapeutics, Inc. v. VitalGo,
Inc., 919 F.3d 405, 416 (7th Cir. 2019) (“Each cross movant for summary judgment
bears a respective burden to show no issue of material fact with respect to the claim.”).
I. Porter and the Benefits Authorizer Role
Delores Porter is an African American woman and military veteran with
“chocolate caramel brown” skin who is over forty years old. DSOF ¶ 4; PSOF ¶ 33. On
September 17, 2017, she was hired as a Benefits Authorizer (BA) for the SSA service
center in Chicago on a one-year probationary basis. DSOF ¶ 3. For most of her
employment, Porter was supervised by Assistant Training Module Manager Kristina
Edwards. Id. at ¶ 6. A week before Porter’s termination, Assistant Training Module
Manager Sherri Washington became Porter’s primary supervisor. Id. at ¶ 7. Edwards
and Washington reported to Training Module Manager Lisa Evans. Id. at ¶ 8.
Defendant Andrew Saul is the Commissioner of the Social Security Administration.
Id. at ¶ 5.
A BA is a technically demanding role responsible for ensuring accurate records
and calculating benefit amounts. Id. at ¶ 9. To acquire the necessary skills, new hires
participate in seven months of daily classroom training. Id. at ¶ 10. The program has
several elements, including classroom instruction, testing, and extended simulations
The facts in this Background section are undisputed unless otherwise noted. The government’s Rule
56.1 Statement of Facts (Dkt. 41) is abbreviated as “DSOF.” Porter responded to the government’s
statement at Dkt. 49-1 and filed a Statement of Additional Facts (Dkt. 49-2) abbreviated as “PSOAF.”
Porter’s Rule 56.1 Statement of Facts (Dkt. 37) is “PSOF”. The government responded to Porter’s
Statement of Facts at Dkt. 48 and to the Statement of Additional Facts at Dkt. 54. The government
asserts several violations of Local Rule 56.1 in Porter’s statements of facts. Whether to require strict
compliance with Local Rule 56.1 is in the Court’s discretion. Kreg Therapeutics, Inc. v. VitalGo, Inc.,
919 F.3d 405, 414 (7th Cir. 2019). The Court addresses particular statements of fact or evidence in the
opinion as is necessary.
called “case breaks.” Id. at ¶ 15. In order to evaluate the trainees, they take eleven
tests over the course of the training. Id. at ¶ 16. The course instructors also provide
reviews of the trainees conduct in the classroom. Id. at ¶ 18. Case breaks, meanwhile,
are multi-day breaks from the regular instruction where the trainees work on actual
Social Security cases which are then reviewed and corrected by a mentor. Id. at ¶ 21.
Along with regular instruction, trainees may request extra tutoring. If a trainee
scores below 80% on a test, tutoring is supposed to be offered to them. Id. at ¶ 33.
Finally, the “Career Ladder Plan” for the BA role, signed by both Porter and Edwards
in this case, states that new hires must successfully complete the basic training
course and that hires receive on-the-job training in addition to the formal program.
Id. at ¶¶ 2-3; Pl. Ex. T, Dkt. 37-7. Article 16 of the National Agreement states that
the Agency is responsible for providing training when it is required by a career ladder
plan. PSOAF ¶ 1.
To track their progress, trainees receive regular performance discussions, which
are written memorandums and in-person discussions detailing their performance in
the program. DSOF ¶ 25. Consistent with Article 21 of the SSA’s National Agreement
with the American Federation of Government Employees, trainees are only assessed
on two elements: “engaging in learning” and “interpersonal skills.” PSOAF ¶ 29.
At the beginning of their training, new hires are provided with a copy of the
Individual Performance Assessment System (IPAS). DSOF ¶ 13. The document is
intended to “provide trainees with a clear perspective on how well they are
progressing toward meeting their full work potential.” Id. at ¶ 14. Among the
expectations outlined in the IPAS is that trainees make steady progress in mastering
the course material. Id. At the same time, it also states that “[t]he performance
expectations outlined . . . will be used only to determine when an employee will be
taken off review,” a period of monitoring after successful completion of the training
course. Id. at ¶ 7.
II. Class Makeup and Performance
When Porter began the training, there were twelve trainees in her class, titled BA
17-03. Id. at ¶ 11. Edwards was responsible for this class and another occurring at
the same time down the hall, titled BA 17-04. Id.
Porter’s class had four African American women, including Porter. Id. at ¶ 49.
None of these women completed the course. Id. One was terminated before the first
exam for some form of misconduct. Id. at ¶ 50. Another resigned for what the
government describes as personal reasons. Id. Porter and an African American
woman under forty with the initials S.G. were terminated for poor class performance.
Id. They were the only people in the class with a test average below 70%. Id. at ¶ 49.
The next closest was an African American man with the initials E.J., who averaged
75.5% on the exams. Id.
In the other class that Edwards supervised, BA 17-04, there were five African
American women, all under forty. Id. at ¶ 52. They all passed the course. Id. Only
two people who started the class in this group did not complete it. Id. at ¶ 53. One
was a white man who was terminated for misconduct, and another was an African
American man who was terminated for poor performance based on an average test
score of 59.3% and negative instructor feedback. Id.
III. Porter’s Performance
Like the other students, Porter’s progress was tracked through performance
discussions, that summarized her instructor feedback, class breaks, and test
performance. Although they consistently praise her interpersonal skills, each of her
five performance discussion memorandums record significant concerns with the
“engages with learning” element, specifically her ability to master the material. Id.
at ¶¶ 28-32. Her first discussion, on November 9, 2017, stated that “[t]here have been
concerns regarding your ability to grasp the BA material.” Id. at ¶ 28. As the course
progressed, the feedback became more pointed. The February 26, 2018 discussion, for
example, told Porter that “[w]hile you follow along during classroom instruction, you
struggle significantly with exercises. You are unsure where to begin, and you must
be coached through them in every lesson. If you do complete exercises on your own,
they result in incorrect answers.” Id. at ¶ 31. Porter views these and similar
comments made during performance discussion as belittling and indicative of age
discrimination. PSOF ¶ 35.
This feedback is consistent with the experience of the classroom instructors. One,
Andrew Makowski, said that Porter “was not satisfying the merit based expectations
of the job” and was “consistently unable to complete exercises correctly.” DSOF ¶ 19.
Diana Rodriguez, another instructor, said that Porter needed extensive instructor
assistance, had poor organizational skills, and had “trouble completing exercises
correctly or even knowing where to begin.” Id. at ¶ 20. 2
Porter also struggled in the case breaks. Porter participated in four case breaks
during her period of employment. Id. at ¶ 22-24. In her first break, she completed
three cases, two of which were incorrect. Id. at ¶ 22. In her second and third breaks
she completed two cases each time, again with some errors. Id. at ¶ 23. During the
last break, which lasted five days, she completed only one case and did so incorrectly.
Id. at ¶ 24.
Porter was also evaluated through formal exams. She was tested on ten subjects
during the course—she was fired before the final one. Id. at ¶ 17. The entire class
retook the first test, on Rates, after over half of the class failed it the first time. Id.
Excluding her first Rates test, SSA records Porter’s exam scores as: 78%; 78%; 81%;
52%; 71%; 84%; 72%; 89%; 44%; and 45%. Id. As a result, her exam average at the
time of her firing was 69.4%. When she was recommended for termination her final
exam score of 45% had not been recorded, giving her an average at the time of 72.1%.
PSOF ¶¶ 11, 57.
Porter says that these scores may be falsified, but her citations to the record
provide no reason to think so. Dkt. 49-1 ¶ 17. In her April 6, 2018 performance
evaluation, discussed in more detail below, her third to last exam, on Awards, was
improperly entered as a 79% when it should have been an 89%. Pl. Add. Ex. E, Dkt.
Porter suggests that the feedback of a third instructor would have been more positive. The Court,
however, will not speculate about potential evidence not in the record.
52-1 ¶ 3. But the exam scores listed above includes the corrected score of 89%, and
there is nothing in the record to suggest any of the other exam scores are inaccurate.
After scoring 78% on the second exam, on Payment Adjustment, Porter was
offered tutoring. DSOF ¶ 34. She declined the offer. Id. Edwards offered Porter
tutoring in Awards because she had missed the lesson and test due to illness. Def.
Ex. 24, Dkt. 41-4 ¶ 3. Edwards provided Porter with two dates that she could receive
tutoring on Awards. Id. Porter responded to Edward’s email and said “OK, thanks
Kristina,” but did not accept the dates offered. Id. Porter asserts that she was not
offered tutoring after either of her final two exams, including the exam on Awards.
PSOF ¶ 26. The government disputes this, but neither party supports their assertions
with relevant evidence. Dkt. 54 ¶ 26.
IV. Porter’s Personal Information
While Porter attended her training, another issue emerged. As an Army veteran,
Porter was entitled to increased annual leave time due to her prior federal service.
DSOF ¶ 36. In order to claim that time, paperwork had to be submitted by SSA to the
Army, which then sent more information to the SSA’s human resource department.
Id. SSA never received paperwork from the Army, and so Edwards told Porter to
contact the Army to investigate. Id. at ¶ 38. When Porter contacted the Army, she
was told it had never received anything from the SSA. Id.
So, Porter resubmitted the required information to the SSA human resources
department. Id. at ¶ 39. At Edwards’s instruction, Porter copied her on the email. Id.
The Army soon thereafter returned the necessary paperwork. Id. Attached to the
email was Porter’s personal information, including her date of birth, her Social
Security number, and her military history. Id. at ¶ 40.
Porter is now concerned with Edwards having access to this personal information.
Id. She has not cited any evidence that Edwards personally misused her information.
But at one point she received a voicemail stating that fraudulent activity had been
linked to her Social Security number. Id. at ¶ 41.
V. Porter’s Firing
The SSA’s termination policy is governed by Articles 23 and 33 of the National
Agreement. PSOF ¶ 44. Article 23 requires that employees receive a thirty-day notice
prior to termination. Id. Article 33, however, states that probationary employees
should ordinarily be given two-week notice before firing, when practicable. PSOAF ¶
28. It also states that probationary employees’ performance may be observed and that
they may be fired for cause. DSOF ¶ 44.
On April 6, 2018, Porter had what would be her final performance discussion.
DSOF ¶ 32. Edwards prepared the report, but it was delivered by Washington, who
had recently taken over as Porter’s supervisor. PSOAF ¶¶ 10, 30. The report stated,
There have been concerns about your ability to successfully perform the BA job
since your September report. However, these concerns have increased
significantly over time. Your organizational skills are a detriment to your learning
process. You are not organizing your notes and handouts in a manner that allows
you to efficiently locate items needed for exercises and tests. You frequently ask
questions about material that was just covered, and you are unable to do any BA
work independently. This is a significant concern, especially this late in your
classroom training. You are unable to complete any exercises correctly, even those
that are basic and simple in nature. . . . Lastly, your SSI test score was drastically
low at 44%. This is not indicative of quality public service, nor does it indicate
mastery of the lessons taught in class for the past five months.
DSOF ¶ 32. The report also stated that she was “unable to complete any MACADE
coding,” an important job function. Id. A prior performance discussion noted,
however, that she had successfully completed MACADE coding actions. PSOF ¶ 12.
The report also listed Porter’s most recent test scores, except for her final one. PSOF
¶ 16. Her Awards test was listed as a 79% when she had scored an 89%. Id. In her
meeting with Washington, Porter expressed her disagreement with the grading of her
second-to-last exam, stating that several correct answers had been marked wrong,
resulting in her score of 44%. PSOF ¶ 14.
That evening, Evans sent out a termination letter for Porter for final review.
Pl. Add. Ex. L, Dkt. 52-4, 5. On April 10, Porter met with a union representative to
tell them she believed she was about to be fired. PSOF ¶ 66. Later that day, Porter
was escorted by Evans to an empty classroom guarded by SSA personnel. DSOF ¶ 46.
Evans told her that she was being terminated, effective immediately, due to her poor
performance in class. Id. She was then escorted by armed guards through the main
entrance and off the premises. Id. Porter found this public shepherding humiliating.
Id. According to Evans, it was standard SSA practice at the time. Dkt. 54 ¶ 11.
VI. EEOC and the Present lawsuit
In July 2018, Porter filed a complaint with SSA’s Equal Employee Opportunity
office (EEO) alleging age and race discrimination and harassment related to her
employment and firing. DSOF ¶ 55. After a formal investigation, the EEO issued a
Final Agency Decision finding no discrimination. Id. at ¶ 57. Porter timely filed the
present lawsuit on May 6, 2019.
Porter and the government have both moved for summary judgement. Porter’s
Motion does not contain any arguments; instead, it recites the legal standards of her
claims. In her reply and response to the government’s Motion, however, Porter
articulates her view in response to the government’s arguments. The parties address
four major issues in their briefing: whether Porter has exhausted her color
discrimination claims; whether summary judgement is warranted on the hostile work
environment claims; and whether Porter has a valid Privacy Act claim.
I. Color Discrimination
Along with her race and age discrimination claims, Porter alleges color
discrimination in her complaint. “A Title VII plaintiff may bring only those claims
that were included in her EEOC charge, or that are ‘like or reasonably related to the
allegations of the charge and growing out of such allegations.’” Geldon v. S.
Milwaukee Sch. Dist., 414 F.3d 817, 819 (7th Cir. 2005) (quoting McKenzie v. Ill. Dep't
of Transp., 92 F.3d 473, 481 (7th Cir. 1996)). The government contends that Porter
did not raise a color claim in her EEO charge and so is barred from doing so now.
Meanwhile, Porter argues that her color discrimination claim is reasonably related
to the race claim investigated by the EEO.
The Court need not determine whether Porter exhausted her color claim. Besides
describing her skin tone, Porter does not make any arguments or offer any evidence
unique to a color discrimination claim. Since none of Porter’s discrimination claims
survive summary judgement, this question is moot.
II. The Discrimination Claims Are Dismissed
To find discrimination, a reasonable factfinder must be able “to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge
or other adverse employment action.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760,
765 (7th Cir. 2016). In its evaluation, the Court asks “whether the totality of the
evidence shows discrimination, eschewing any framework or formula.” Igasaki v.
Illinois Dep't of Fin. & Pro. Regul., 988 F.3d 948, 958 (7th Cir. 2021). In order to
“clarify and simplify” this analysis, the plaintiff may employ the McDonnel Douglas
burden-shifting framework. Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012)
(Wood, J., concurring); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
While this approach provides a clear test for surviving summary judgement, it “is just
one way that a plaintiff can navigate her way to a jury in a discrimination case.”
Purtue v. Wisconsin Dep't of Corr., 963 F.3d 598, 602 (7th Cir. 2020). A fact-pattern
that does not meet the McDonnell Douglas requirements may still demonstrate
In its Motion for Summary Judgement, the government relies on an outmoded
legal framework that distinguishes between “direct” and “indirect,” i.e. McDonnell
Douglas, approaches to proving discrimination. See Ortiz, 834 F.3d at 765 (“[D]istrict
courts must stop separating “direct” from “indirect” evidence and proceeding as if they
were subject to different legal standards.”) Porter’s pro se filings, meanwhile, engages
in McDonnell Douglas analysis but also the more holistic approach described by Ortiz.
The Court will first evaluate whether the evidence of discrimination satisfies the
McDonnell Douglas framework and then consider it holistically.
A. Porter Cannot Satisfy the McDonnel Douglas Standard
Under the McDonnell Douglas framework, Porter must first establish that (1) she
is a member of a protected class; (2) her performance met his employer’s legitimate
expectations; (3) despite this performance, she was subjected to an adverse
employment action; and (4) her employer treated similarly situated employees
outside of the protected class more favorably. See Skiba v. Ill. Cent. R.R. Co., 884 F.3d
708, 719 (7th Cir. 2018). If Porter can establish these four elements, the burden shifts
to his employer to “articulate a legitimate, non-discriminatory reason for the adverse
employment action.” South v. Ill. Envtl. Prot. Agency, 495 F.3d 747, 751 (7th Cir.
2007). At that point Porter may rebut the Defendants’ purportedly legitimate purpose
with evidence of pretext. See Eaton v. Indiana Dep’t of Corr., 657 F.3d 551, 554 (7th
The parties do not contest that Porter, as a black woman over forty, is a member
of several protected classes. It is also agreed that her firing was an adverse
employment action. The government contends, however, that Porter has failed to
identify a similarly situated employee or establish that she met the SSA’s
performance expectations. The government also argues that SSA had a legitimate,
non-pretextual reason for firing Porter.
In order to succeed under McDonell Douglas, the plaintiff must identify similarly
situated employees outside of the protected class who were treated better. An
employee is similarly situated when “he is directly comparable in all material aspects,
including performance, qualifications, and conduct.” Bunn v. Khoury Enterprises,
Inc., 753 F.3d 676, 685 (7th Cir. 2014) (citing Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617-18 (7th Cir. 2000), overruled on other grounds by Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Failure to identify such employees is
fatal to a McDonell Douglas claim. See Hooper v. Proctor Health Care Inc., 804 F.3d
846, 853 (7th Cir. 2015). Porter argues that the non-African-American, male, and
young classmates who were permitted to finish the class are similarly situated to her.
She also emphasizes that the only people who did not finish the class were AfricanAmerican women.
But the McDonell Douglas framework does not depend on whether other members
of one’s protected class suffered the same adverse action. Instead, Porter must show
that non-protected, similarly-situated employees were treated better than she was.
Despite Porter’s assertions to the contrary, the classmates that completed the course
were not similarly situated to her. She and the other employee dismissed for poor
performance were the only employees to have average scores below 70%. DSOF ¶ 49.
The next closest average was 75.5%, and the other averages were comfortably in the
mid-80s to high 90s. Id. Test performance during an intensive training class is clearly
a “material” metric for comparison. Because Porter has failed to identify a comparable
employee, she cannot satisfy the McDonell Douglas burden.
The government also argues that Porter failed to meet the SSA’s performance
expectations and that the SSA’s had a legitimate reason for firing Porter. The
reasoning is basically the same for the two elements—the SSA fired Porter not
because of her race, gender, color, or age, but because of her incapacity to do the job
at the level required. DSOF ¶¶ 17-24. This incapacity is demonstrated by the
uncontroverted evidence of her poor performance in tests, case breaks, and instructor
feedback throughout her training. See Igasaki v. Illinois Dep't of Fin. & Pro. Regul.,
988 F.3d 948, 958 (7th Cir. 2021) (granting summary judgement when the “brunt of
the evidence at summary judgment—his performance reviews by [the supervisor]—
shows that [the plaintiff’s] performance was at best, lackluster, and at worst,
Porter offers two counterarguments: that her test scores were falsified; and that
she was evaluated under a wrong or different standard. The evidence for the first
claim relies primarily on the fact that, on her April 6 performance discussion
memorandum, her Awards exam scores was incorrectly recorded as a 79% when she
really earned an 89%. PSOF ¶ 16. 3 At times in her filings, Porter suggests that this
is reason to believe that her other exam scores may have been tampered with. She
also argues that the error is evidence that her test scores were used by the SSA as a
pretext. But Porter has not offered any evidence that her test scores were
Porter also asserts that the 45% recorded on her last exam was “erroneous,” but she does so without
manipulated, and an error on a single document does not reasonably allow for such
an inference. Furthermore, there is no logical connection between the error and an
argument that the firing was pretextual. Including her proper Awards grade in the
calculations, she had an average of 69.4% when she was fired. Porter cites to no
evidence suggesting that the SSA used the wrong test scores when deciding whether
to fire her, or that the error was an intentional attempt to discredit her record. While
the error was unfortunate (prior to being corrected), it does not render the
uncontroverted evidence of Porter’s underperformance pretextual.
Porter also argues that she was evaluated under a different standard from the
other trainees. She cites to Article 21 of the National Agreement to support the view
that new hires were not supposed to be appraised in their first year, saying she was
improperly subjected to evaluation. Pl. Ex. W, Dkt. 37-7, Art. 21 § 9(C)(1). But while
probationary employees are not to be appraised, the Article suggests that “appraisal”
is a technical term and that new hires instead should be evaluated under a “pass/fail”
plan. Id. at § 9(A)(1). Article 33, meanwhile, provides for ongoing consultations with
new hires about their performance and progress as well as for their possible firing.
Pl. Ex. V, Dkt. 37-7, Art. 33 § 3(B)-(C).
Continuing her standards-based arguments, Porter says that she was improperly
held to standards outlined in the IPAS, while other classmates were evaluated
according to the standards described in a document called the PACS Performance
Plan. The filings are unclear as to the significance of these various performance
metrics. However, the distinction Porter draws appears to be one without a difference.
The IPAS states that trainees are expected to “show steady progress in mastering the
course content as well as an increasing ability to accurately and independently
process casework. During the classroom phase of training, the trainee must be
actively involved in the class and keep up with the rest of the class in all assignments
including casework.” Pl. Ex. H, Dkt. 37-4, at 6. The PACS plan, meanwhile, states
that Porter was expected to, among other things, “[p]articipate in training by asking
appropriate questions, researching information and successfully completing tests and
assignments” and “[d]emonstrate progress towards independent completion of
work.” Pl. Ex. 2, Dkt. 37-8, at 1. These standards are consistent, not contradictory,
and the evidence shows that Porter failed to meet either. Even if IPAS was incorrectly
referenced in Porter’s termination letter, that is not enough to prove the reasons
given were pretextual or that Porter met expectations.
B. A Holistic Review Does Not Show Discrimination
Porter has failed to meet the burden of the McDonnell Douglas approach. Her
claim could still survive summary judgement, however, if the “evidence would permit
a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or
other proscribed factor caused the discharge or other adverse employment action.”
Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). To make that
determination, the Seventh Circuit has “identified three broad 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 v. Valparaiso Cmty. Sch., 953 F.3d 923, 929 (7th Cir. 2020).
But, as discussed in the previous section, Porter has failed to identify similarly
situated employees or show that SSA’s justifications are pretextual.
Beyond the issues already described, Porter raises a few potentially “suggestive”
actions the Court will consider. First is the fact that all four African-American
women, and only those women, in Porter’s class failed to complete the course. DSOF
¶ 50. While this fact does not identify a similarly situated comparator, taken on its
own it may raise suspicion that discrimination took place. This concern is
significantly mitigated, however, by the fact that the other class that Edwards
supervised concurrently had five African-American women in it, all of whom passed.
Id. at ¶ 52. In that class, two men, one white and one African-American, failed to
complete the class. Id. at ¶ 53. Without more, a reasonable jury could not find
discrimination based on these outcomes.
Next, Porter states that the National Agreement guaranteed her thirty days’
notice before she was terminated. See Pl. Ex. U, Dkt. 37-7, Art. 23 § 7(A)(1). Article
33, however, clarifies that probationary employees should be given two weeks’ notice
“when practicable.” Pl. Ex. V, Dkt. 37-7, Art. 33 § 3(E). Failing to provide notice thus
did not violate the National Agreement. Porter also argues that she was entitled to
on-the-job training called for by her career ladder plan. But on-the-job training was
to take place after completion of the class, and Article 33 provides for the termination
of employees throughout their probationary period. Id. When evaluated, these
potentially “ambiguous” elements do not give rise to a question of fact for a jury.
Finally, Porter suggests that she was discriminated against under a “cat’s paw”
theory of liability, where a subordinate influenced the final decisionmaker to fire her.
A cat’s paw theory, however, requires that the plaintiff show that the subordinate, in
this case Edwards, “actually harbored discriminatory animus.” McDaniel v. Progress
Rail Locomotive, Inc., 940 F.3d 360, 370 (7th Cir. 2019) (quoting Grant v. Trustees of
Indiana Univ., 870 F.3d 562, 570 (7th Cir. 2017)). Beyond conclusory assertions,
Porter has not done so. Summary judgement dismissing Porter’s discrimination
claims is warranted.
III. Porter’s Hostile Work Environment Claim Does Not Survive Summary
Porter’s next claim is that she was subjected to a hostile work environment while
employed by SSA. “Title VII . . . forbids employers from requiring people to work in a
discriminatorily hostile or abusive environment.” Boss v. Castro, 816 F.3d 910, 919–
20 (7th Cir. 2016). A violation occurs when “the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an abusive
working environment.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7th Cir.
2014) (quoting Mendenhall v. Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir.
2005)). To survive summary judgement, a plaintiff must provide sufficient evidence
demonstrating that “(1) the work environment was both objectively and subjectively
offensive; (2) the harassment was based on membership in a protected class or in
retaliation for protected behavior; (3) the conduct was severe or pervasive; and (4)
there is a basis for employer liability.” Boss, 816 F.3d at 920.
In this case, Porter has failed to raise a question as to whether she was subject to
severe or pervasive harassment based on her membership in a protected class. As
examples of her harassment, Porter points to falsified grades, false and demeaning
statements, denial of training, and public humiliation arising from the manner of her
firing. The record, however, does not support this view. While one of Porter’s exams
was incorrectly recorded on her April 6 performance discussion memorandum, Porter
does not cite any evidence that any of her other exam grades were ever misstated or
that the incorrect recording had any substantive impact on her employment.
Similarly, she insists that Edwards and her instructors provided false and
demeaning statements about her in her performance reviews. But while the feedback
is pointed, and doubtless contestable based on one’s perspective, it is not particularly
cruel or demeaning—the comments focus on her performance in class, are consistent
with each other and over time, and identify substantive steps she could take to
improve. Reasonable steps taken by an employer to address an employee’s failure to
meet expectations do not constitute harassment. Boss, 816 F.3d at 920. The
uncontroverted record also suggests that the manner of Porter’s firing was standard
SSA policy, not targeted harassment. See also Hunter v. D.C., 797 F. Supp. 2d 86, 93
(D.D.C. 2011) (holding that ridiculing a terminated employee as he is escorted from
the building by police officers does not constitute severe or pervasive harassment). A
reasonable jury could not look at the evidence and conclude that Porter was subjected
to “severe or pervasive” harassment.
What is more, there is no evidence that any harassment that Porter did suffer was
because of her membership in a protected class. In Bond, the Seventh Circuit
approved of summary judgement against the plaintiff’s hostile work environment
claim when the “record contain[ed] not a single racially offensive remark, email, or
other hint of racial animus.” 816 F.3d at 920. Porter’s evidence is similarly lacking.
Even if Porter was ill-treated, there is no evidence that her treatment was “based” on
her membership in a protected class. And, as discussed in the previous section, the
overall context does not suggest that the SSA officials acted with discriminatory
intent. The evidence does not support the view that Porter was subjected to severe or
pervasive harassment because of her membership in a protected class, and so her
hostile work environment claim does not survive summary judgement.
IV. Porter’s Claims Related to Her Personal Information Are Dismissed
Finally, in her Response to the Defendant’s Statement of Facts, Porter states that
Edwards having her personal information violates the Privacy Act and demands
identity theft protection and damages for the resulting emotional distress. See 5
U.S.C. § 552a (2018). The Privacy Act generally prohibits agencies from improperly
disclosing records related to individuals. Id. § 552a(b). In order to recover on such a
claim, the plaintiff must show that the violation was “intentional or willful.” Id.
§ 552a(g)(4). The Seventh Circuit has held that a violation can only be shown by
“evidence of reckless behavior and/or knowing violations of the Act.” Moskiewicz v.
U.S. Dep't of Agric., 791 F.2d 561, 564 (7th Cir. 1986). So long as the “employees who
were involved reasonably believed that they were allowed access” the information,
the plaintiff cannot recover. Coburn v. Potter, 329 F. App'x 644, 646 (7th Cir. 2009).
In this case, Edwards requested that she be copied on an email to SSA HR that
contained Porter’s date of birth, Social Security number, and military record. DSOF
¶ 39. This information was then sent to the Army and used to calculate Porter’s
service computation date. It is unclear whether Porter’s disclosure of her personal
information to Edwards is covered by the Privacy Act. But even if it is, Porter does
not cite any evidence suggesting that Edwards was accessing information she knew
she was not allowed to receive. Instead, the facts as described most reasonably
suggest that Edwards was trying to make sure that the information was sent and
followed up on after several delays so the Porter could receive service credits. Porter
voluntarily included Edwards on the email chain. The record provides no evidence
that would allow a reasonable jury to find a Privacy Act violation. The claim is
For the stated reasons, the plaintiff’s Motion for Summary Judgment  is
denied. The defendant’s Motion for Summary Judgement  is granted. The Clerk
is directed to enter judgment in the defendant’s favor and against the plaintiff and
terminate the case. The Clerk of the Court shall mail a copy of this opinion to the
E N T E R:
Dated: April 27, 2021
MARY M. ROWLAND
United States District Judge
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