Hambrick v. Saul
MEMORANDUM Opinion and Order: For the reasons set forth in the attached Memorandum Opinion and Order, the SSA's motion for summary judgment 25 is granted in full. Signed by the Honorable Thomas M. Durkin on 11/18/2022. Mailed notice. (ecw, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
No. 21 C 00030
Judge Thomas M. Durkin
KILOLO KIJAKAZI, AS COMMISSIONER OF
THE UNITED STATES SOCIAL SECURITY
MEMORANDUM OPINION AND ORDER
Rochelle Hambrick (“Hambrick”) sued her employer, the United States Social
Security Commission (the “SSA”), alleging discrimination and a hostile work
environment based on her race and age in violation of Title VII and the ADEA. She
also alleges she was retaliated against for complaining about the discrimination. The
SSA moved for summary judgment. R. 25. For the following reasons, that motion is
Summary judgment is appropriate “if 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,
322-23 (1986). To defeat summary judgment, a nonmovant must produce more than
a “mere scintilla of evidence” and come forward with “specific facts showing that there
is a genuine issue for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d
887, 894, 896 (7th Cir. 2018). The Court considers the entire evidentiary record and
must view all of the evidence and draw all reasonable inferences from that evidence
in the light most favorable to the nonmovant. Horton v. Pobjecky, 883 F.3d 941, 948
(7th Cir. 2018). The Court does not “weigh conflicting evidence, resolve swearing
contests, determine credibility, or ponder which party’s version of the facts is most
likely to be true.” Stewart v. Wexford Health Sources, Inc., 2021 WL 4486445, at *1
(7th Cir. Oct. 1, 2021). Ultimately, summary judgment is warranted only if a
reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Local Rule 56.1
As an initial matter, the SSA argues that Hambrick has failed to comply with
Local Rule 56.1 and Federal Rule of Civil Procedure 56(c). First, the SSA alleges that
Hambrick’s response to the SSA’s Local Rule 56.1 statement does not fully respond
to many of the SSA’s statements of fact and improperly asserts many additional, nonresponsive facts. Local Rule 56.1 provides that in its response, a party “must specify
which part of the asserted fact is admitted and which part is disputed,” and “may not
set forth any new facts, meaning facts that are not fairly responsive to the asserted
fact to which the response is made.” LR 56.1(e)(2). Many of Hambrick’s responses
deny a portion of the SSA’s particular statement of fact and are silent as to the
remainder. 1 Where Hambrick did not respond, the Court will deem the fact admitted.
The SSA also alleges that Hambrick included improper additional facts in her
responses. The Court disagrees. Though Hambrick’s response does, at times,
reference additional, somewhat tangential facts, they are at least fairly responsive to
the corresponding facts in the SSA’s Statement.
Finally, the SSA alleges that many of the facts in Hambrick’s Rule 56.1
Statement are not supported by admissible evidence. To the extent the party relies
on affidavits or deposition testimony, it must be “made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “[A]lthough
personal knowledge may include reasonable inferences, those inferences must be
grounded in observation or other first-hand personal experience. They must not be
flights of fancy, speculations, hunches, intuitions, or rumors about matters remote
from that experience.” Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (cleaned
Citing Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999),
the SSA argues that the Court should disregard the allegations in Hambrick’s Local
Rule 56.1 statement and response brief that are supported only by citations to
Hambrick’s testimony because they are self-serving and not supported by other
evidence. However, the Seventh Circuit explicitly overruled Schacht in Hill v.
The SSA identifies the following paragraphs in Hambrick’s response to its Rule 56.1
Statement which only specify that part of the paragraph is disputed: R. 35 ¶¶ 5, 7,
36, 37, 48, 49, 59, 75, 76. Hambrick failed to respond to ¶ 3 entirely.
Tangherlini, 724 F.3d 965, 967–68 (7th Cir. 2013), in which it held it was error to
discredit the plaintiff’s testimony merely because it was “self-serving.” Indeed,
“[d]eposition testimony, affidavits, responses to interrogatories, and other written
statements by their nature are self-serving.” Id. What matters instead is whether the
statement is admissible under the Federal Rules as based on the plaintiff’s personal
Thus, the Court will not immediately disregard Hambrick’s facts that are
supported only by her own testimony. Instead, it will disregard only the facts that are
based on conjecture, as well as facts supported only by inadmissible hearsay. See, e.g.,
R. 36 ¶¶ 14, 16 (citing Hambrick’s testimony to establish what other people thought
or knew); ¶¶ 31, 34, 38 (citing Hambrick’s testimony in which she says, without a
factual basis, that she was more qualified than others); R. 35 ¶ 33 (citing Hambrick’s
testimony, based on conjecture, that she was the only employee asked to complete a
time-consuming spreadsheet that her supervisor did not use); ¶ 73 (citing Hambrick’s
testimony that she heard from another employee, who overheard a phone
conversation, to establish that Hambrick’s supervisor reached out regarding her EEO
case). All such statements in Hambrick’s Local Rule 56.1 Statement or Response to
the SSA’s Statement are thus excluded. See, e.g., Trimble v. All.-DeKalb/Rock-Tenn
Co., 801 F. Supp. 2d 764, 769 (N.D. Ill. 2011). The Court now turns to the undisputed
facts giving rise to this case.
Hambrick’s SSA Employment History
Hambrick, a black woman, was born in 1970 and has worked at the SSA’s
Great Lakes Program Service Center (“Great Lakes”) since 1989. R. 27 ¶ 1. She has
a college degree and has worked in management for 12 years. R. 36 ¶ 31.
In January 2016, Margie Sletten, Hambrick’s second-line supervisor, told her
that she was to be reassigned from managing the debt management unit to the
program integrity target and assistance group (“PITAG”) because she was not a “good
fit” in her prior section. R. 27 ¶¶ 2, 4; R. 35 ¶ 5; R. 36 ¶ 2. Hambrick admits, and it
was well known that Hambrick did not get along with her prior first-line supervisor
in the debt management unit. R. 27 ¶ 4; R. 35 ¶ 4. PITAG is a specialized unit that
handles high-profile and sensitive congressional inquiries and, like the rest of Great
Lakes, must process many cases with limited staff. R. 27 ¶¶ 2–3. At the time of
Hambrick’s reassignment, PITAG had a backlog of 12,000 cases and no assistant
manager. R. 36 ¶ 7. Hambrick’s grade and pay (GS-13) did not change as a result of
the reassignment. R. 27 ¶¶ 2–3. Angelo Petros became her first-line supervisor, and
Sletten remained her second-line supervisor, though she was replaced by Rick Lenoir
in April 2016. Id. ¶¶ 6–7. Antonio Henderson was the deputy operations support
branch chief under Petros. Id. He was eventually replaced by Matthew Smith.
When Hambrick started her position in PITAG, she worked out of an empty
office, but Henderson quickly moved her to a cubicle. Id. ¶ 8; R. 36 ¶ 5. She was the
only GS-13-level supervisor who did not have her own office, though there were at
least seven other GS-13-level non-supervisors who worked out of cubicles. R. 27 ¶ 9;
R. 36 ¶ 5. Hambrick’s name was not included on the Great Lakes management
directory until about June of 2016. R. 27 ¶ 24. Part of her job duties in PITAG
included conducting extensive training of employees. R. 36 ¶ 3. From May to
December 2016, Hambrick was also required to supervise a virtual workgroup, which
took about four hours a day. R. 27 ¶ 23.
Between May and September 2016, Bernard Mull, a supervisor in one of the
other modules, and his supervisees, Candace Irving, Kristina Edwards, and Elisa
Hatchett, emailed Hambrick to follow up on various outstanding high-priority
manager-to-manager requests. Id. ¶¶ 10–19. Three of these emails were directed to
or copied Hambrick’s supervisees. Id. ¶¶ 11, 14, 18. Each time, Hambrick requested
that they direct their correspondence to her, and not her supervisees, because
reaching out to her supervisees undermined her authority. Id. Mull’s team escalated
their concerns to Henderson, who, along with Irving, asked Hambrick multiple times
to provide updates and expected completion dates for the outstanding requests. Id.
¶¶ 15, 17–19. Hambrick refused and explained that she was overwhelmed with
staffing issues and conducting employee training. Id. ¶¶ 15, 17, 19. Hambrick felt
these emails were harassing because the senders of the emails worked down the hall
from her and could have talked to her in person. R. 36 ¶ 14. Petros told Hambrick
during a performance review that she should have responded to the emails with
expected completion dates. Id. ¶ 20. Hambrick states she could not do this because
she had no idea how long it would take to complete the requests due to staffing issues.
Id. In September 2016, Hambrick reached out to the EEO counselor about filing a
discrimination claim. Id. ¶ 26. A month later, Hambrick received a request that she
log on to a new manager-to-manager application, but she found her log-in information
did not work and was unable to do so. Id. ¶ 21–22.
b. 2017 – 2018
In August 2017, Hambrick applied, but was not selected, for a developmental
position and promotion through the Leadership Encouraging Advancement through
Development (“LEAD”) program. Id. ¶ 27. There were three eligible candidates for
the position, including Hambrick. Id. ¶ 28. Lenoir, the selecting official for the
program, personally knew and worked with all three candidates. Id. Lenoir selected
John Bajorek, a younger white employee, for the position. Id. ¶ 29. Lenoir stated that
he selected Bajorek because Lenoir had observed Bajorek’s ability to work
collaboratively, Bajorek had stepped into his supervisor’s role on multiple occasions
when she was unavailable, and his supervisor highly recommended him. Id. Lenoir
testified that he did not select Hambrick because he believed she needed to work on
her collaborative skills and her supervisor, Petros, had recommended her with
reservations. Id. ¶ 30. Hambrick alleges she also applied for two 120-day details
outside Great Lakes and the LEAD program again in 2018 and was not selected. Id.
¶ 31. In April 2018, Hambrick’s name was not listed on a regional commissioner’s
citation award to Hambrick’s team. Id.
Throughout 2019, Hambrick applied for various positions outside Great Lakes,
including district manager, assistant district manager, and a 120-day detail, but was
not selected. Id. ¶ 44. In April 2019, Sletten asked Hambrick to create a spreadsheet
listing every congressional case that was “aged.” Id. ¶ 33. This was a very timeconsuming task, and Hambrick is unaware of whether the list was used by Sletten or
anyone else. Id.
In September 2019, Hambrick received an email from Dottie Hall, a senior
constituent services associate with a congressperson’s office, asking her to review
information that had been provided by a PITAG employee in response to a request
for beneficiary information. Id. ¶ 34. Hall questioned the accuracy of Hambrick’s
response, and Hambrick replied, “I apologize for not providing you with a response
that is palatable,” explained that the PITAG employee should not be questioned
because he or she was an “authoritative expert,” and told Hall her calculations were
incorrect. Id. ¶ 35. Another SSA supervisor, who was copied on the email chain,
forwarded this message to Lenoir, citing concerns about Hambrick’s wording and
tone. Id. ¶ 36. Hall herself also complained to Lenoir about the tone of the email,
referring to it as “nice nasty,” and requested that Hambrick not be on future calls,
though she did state that she respected Hambrick. Id. ¶ 37; R. 27-1 at 551. To remedy
the situation, Lenoir sent Hall a new worksheet prepared by another analyst and met
with Hambrick three times. R. 27 ¶¶ 38–39.
In November 2019, Hambrick received a performance rating of “3,” the lowest
of her career, which is equivalent to a passing grade. Id. ¶ 40. During her performance
meeting, Petros told Hambrick that she was “coasting” and needed to be more open
to feedback. Id. He also did not give her credit for reducing the 12,000-case backlog
in PITAG down to less than 900 and stated she had a few projects which “continued
to linger.” Id.; R. 35 ¶ 48; R. 36 ¶ 10. Hambrick argued that those projects could not
be completed because she was waiting for other managers to complete their part of
the work, and in response, Petros told her she needed to work on accepting
constructive criticism. R. 36 ¶ 22. Hambrick disagreed with the evaluation, because
she stated she worked hard, and her unit was short-staffed. Id. ¶ 42.
A week after contacting an EEO counselor in December 2019 about asserting
a new discrimination claim, Hambrick was informed that PITAG would be receiving
over 1,800 unjust enrichment cases that had been pending in other units and had
been identified through a new computer program. Id. ¶¶ 45–46. This was an
“unusual” occurrence. R. 35 ¶ 46. Petros and Smith met with Hambrick and explained
why and how the cases would be coming to her unit. R. 27 ¶ 46. In essence, these
cases were normally screened by other modules and sent on a case-by-case basis to
PITAG, but management developed a computer system to automate and streamline
this process. Id. ¶¶ 47–48. It identified all cases which would have been rerouted to
PITAG individually and sent them at once. Id.
In January 2020, Petros gave Hambrick an “optional performance discussion”
because he alleged she had been late to or missed nearly every weekly management
meeting since October 2019. Id. ¶ 49. Hambrick disputes this, instead stating that
she missed only one meeting because she was on an important call at the time, and
that other managers were late to meetings and did not receive performance
discussions. R. 35 ¶ 49. The discussion did not have a negative impact on Hambrick’s
performance review or developmental opportunities. R. 27 ¶ 49. On February 5, 2020,
Hambrick attended a mediation for her EEO case with Lenoir and others. Id. ¶ 50.
Hambrick asked to be assigned outside Great Lakes. Id. Lenoir responded, “Give me
five minutes, I’ll be back,” in a condescending tone. Id. He did not grant the request
because he did not have authority to assign her to a different office. Id.
On February 10 and 11, Petros and Smith required Hambrick to have weekly
workload meetings, which were common at Great Lakes, though Hambrick believed
the tone of the meetings was accusatory, negative, and harassing. Id. ¶ 51; R. 35 ¶
51. On February 21, Hambrick requested leave because her daughter had been in a
car accident. R. 27 ¶ 52. Smith verbally approved the leave but did not officially
approve it until a few days later. Id. ¶¶ 52–53. Smith requested that Hambrick
provide documentation, and at some point, asked if she planned on working overtime
the following weekend, which Hambrick believed to be harassment in response to her
request for leave. Id. ¶ 52; R. 36 ¶ 29. Smith does not recall asking her about overtime
and testified that he often asked about employees’ availability for overtime as a
routine matter. R. 27 ¶ 54.
In February 2021, Mull was selected to be the acting operations support branch
chief. Id. ¶ 56. Hambrick requested to be reassigned or transferred to avoid working
with Mull, given her prior difficulties with him. Id. ¶ 57. Lenoir instead offered her
relocation to a different floor of the building with the same job title, but she declined.
Id.; R. 36 ¶ 42. Mull acted as Hambrick’s first-line supervisor for 120 days without
issue. R. 27 ¶ 56. Hambrick also unsuccessfully applied for a district manager position
and the FIRE development program during 2021. Id. ¶ 58.
f. Other Conduct
Hambrick claims that Petros did not give an employee of the month award to
an older, black member of Hambrick’s unit whom Hambrick had nominated eight
times, even though Sletten stated that the employees who are nominated are usually
given the award. Id. ¶ 61; R. 35 ¶ 61. Hambrick also alleges Sletten prevented her
from receiving promotions, was hard on her, and never celebrated her
accomplishments, but would celebrate the accomplishments of younger, white
employees. R. 27 ¶¶ 60, 67. Lenoir went out of his way to acknowledge other units’
accomplishments but never acknowledged PITAG’s and gave her dirty looks, she
claims. Id. ¶ 62; R. 36 ¶ 47. Hambrick feels Henderson had a rapport with younger
employees he did not have with Hambrick. Id. ¶¶ 68–71. Hambrick alleges that Smith
would tell her to do what she was told, talk down to her, and rarely say positive things
to her. R. 36 ¶ 44. Finally, Hambrick alleges that, whenever she unsuccessfully
applied for new positions or development programs, in each case, a younger or nonblack employee was selected; other than the August 2017 LEAD program, she
testified that she did not know who specifically was selected for each position. R. 36
¶¶ 31–32. She does, however, provide a list of younger, non-black employees she
claims rose through the ranks at Great Lakes more quickly than Hambrick did,
including Bajorek, Smith, Hatchett, Edwards, McCann, Isaac Aguilar, and Richard
Wharton. Id. ¶¶ 34–40. At the time of discovery in this case, Hambrick still worked
at the SSA as the manager of PITAG. See R. 27-1 at 217 (Q: “Can you tell me what
[Hambrick’s] current title is . . . ?” A: “She’s the PITAG manager.”).
a. First EEO Complaint
Hambrick first contacted the SSA’s EEO counselor on September 19, 2016, and
on November 11, 2016 submitted a formal EEO complaint asserting discrimination
on the basis of age and in retaliation for reaching out to the EEO counselor. Id. ¶¶
25–26. She pointed to her involuntary reassignment to PITAG and alleged that
Henderson, Mull, Hatchett, Edwards, and Irving had harassed her over email about
outstanding manager-to-manager requests. Id. Moreover, her narrative stated, “I
also feel in some ways race is involved,” and alleged that a white person was promoted
despite a lack of experience. Id. ¶ 26; R. 35 ¶ 26.
On December 23, 2016, the EEO accepted Hambrick’s claims that she was
subject to age discrimination and retaliation in October 2016 when her work
assignments increased and that she had been subject to a hostile work environment
since January 20, 2016. R. 27 ¶ 63. The EEO dismissed her claim relating to her
reassignment to PITAG as untimely. Id. In May 2018, the EEO granted Hambrick
leave to amend her initial EEO complaint to include discrimination based on race due
to Bajorek’s selection to the LEAD program instead of her in 2017. Id. ¶ 64. In July
2019, the EEO issued a final decision in the SSA’s favor. Id. ¶ 65. The Office of Federal
Operations affirmed. Id.
b. Second EEO Complaint
On December 4, 2019, Hambrick contacted an EEO counselor about asserting
a new discrimination claim. Id. ¶ 45. On March 2, 2020, the EEO received Hambrick’s
second EEO complaint, in which she alleged discrimination because of her age and
race and in retaliation for reaching out to the EEO counselor in December 2019. Id.
¶ 55; R. 35 ¶ 55. Specifically, she alleged she had been subjected to a hostile work
environment from September 2019 to February 2020 based on the 1,800 unjust
enrichment cases suddenly assigned to PITAG, time and attendance meeting
requirements, emails, the optional performance discussion, and the 3.0 on her 2019
performance review. Id. The EEO issued a final decision in the SSA’s favor on
Hambrick’s second EEO charge in November 2020. Id. ¶ 65.
The SSA argues that summary judgment is proper because (1) Hambrick has
failed to exhaust her administrative remedies as to some of her claims; and (2) the
undisputed material facts do not support Hambrick’s claims of adverse employment
actions or a hostile work environment connected to her race, age, or protected activity.
The Court first analyzes whether Hambrick timely exhausted her claims before
determining whether any remaining claims may proceed to trial on their merits.
The SSA argues that summary judgment is proper on Hambrick’s claims for
discrimination occurring before August 5, 2016 because Hambrick did not timely
exhaust them, and on the SSA’s failure to promote her in 2018, 2019, and 2021
because she failed to raise them in either EEO complaint. “Before a federal civil
servant can sue his employer in court for discriminating against him in violation of
Title VII, he must first exhaust his administrative remedies.” Green v. Brennan, 136
S. Ct. 1769, 1775 (2016) (citing 42 U.S.C. § 2000e–16(c)). “To exhaust those remedies,
the Equal Employment Opportunity Commission (EEOC) has promulgated
regulations that require, among other things, that a federal employee consult with
an EEO counselor prior to filing a discrimination lawsuit.” Id. Specifically, she “must
initiate contact with a Counselor within 45 days of the date of the matter alleged to
be discriminatory or . . . within 45 days of the effective date of the action.” 29 C.F.R.
§ 1614.105(a)(1). The regulations provide for equitable tolling of the 45-day time limit.
29 C.F.R. § 1614.105(a)(2).
First, the SSA argues that Hambrick’s claims regarding disparate treatment
occurring before August 5, 2016 (45 days prior to her first contact with the EEO
counselor) were not properly exhausted because the EEO dismissed them as
untimely. These claims include her reassignment to PITAG, the involuntary move to
a cubicle, some of the allegedly harassing emails she received from Mull and his team,
the failure to include her in the management directory, and her supervision of the
virtual workgroup. In response, Hambrick alleges that these occurrences are not
discrete adverse actions, but rather, are part of a continuing hostile work
environment such that the Court may consider them cumulatively.
Discrete acts are those “such as termination, failure to promote, denial of
transfer, or refusal to hire” that are easy to identify. Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002). The plaintiff must file an EEO charge for each
discrete act within the appropriate time period. Id. On the other hand, a hostile work
environment is “different in kind from discrete acts,” involving “repeated conduct”
occurring “over a series of days or perhaps years” that may, on its own, not be
actionable. Id. at 115. When a party alleges a hostile work environment, earlier acts
outside the limitation period are not time barred, so long as at least one act occurred
within the 45-day period. Id. at 117–20.
Plaintiff’s reassignment to PITAG is one of those easy-to-identify discrete acts
for which Plaintiff should have filed an EEO charge within the 45-day time period.
Her failure to do so, and her failure to identify any reason for equitable tolling, 2
means that any claim based on that reassignment was not administratively
exhausted and is thus time barred. However, the other claims, such as the forced
movement to the cubicle, the emails, and the failure to list Hambrick’s name in a
management directory, are the type of repeated conduct which may cumulatively
constitute a hostile work environment. Because some of the emails and conduct
occurred within the 45-day window before her first contact with the EEO counselor,
Hambrick may make a hostile work environment claim which includes them. 3
Indeed, Hambrick does not dispute that she had filed complaints with the EEOC
before 2016 and was familiar with the process and time limits for filing claims. R.
27 ¶ 25.
3 The Court reads Morgan to hold that those discrete acts which are time barred
cannot also form the basis for a hostile work environment claim. 536 U.S. at 114–18
(dismissing discrete acts as “no longer actionable” because they were time barred but
allowing hostile work environment claim based on other conduct to go forward).
The SSA also argues that Hambrick did not properly exhaust her failure to
promote claims for the various positions to which she applied in 2018, 2019 and 2021
because she failed to raise them in either of her EEO proceedings. Hambrick insists
that the EEO did investigate the failures to promote in her first EEO case, and that
the 2021 failures to promote were in retaliation for Hambrick filing her second
complaint and thus fall under an exception to administrative exhaustion.
Each “failure to promote” is a discrete act for which the plaintiff must file a
charge within the limitations period. Morgan, 536 U.S. at 114. The only failure to
promote that the EEO considered in Hambrick’s first proceeding was her nonselection for the LEAD program in 2017. It did not, contrary to Hambrick’s assertion,
consider any general pattern of failures to promote. R. 27-1 at 711–13. In her second
EEO complaint, Hambrick mentioned that her requests for reassignments out of
Great Lakes were denied and given to younger, Caucasian employees, but provided
no specifics regarding the actual positions for which she applied, the dates of denial,
who was doing the hiring, or who was ultimately chosen for the positions. R. 27-1 at
680–81. Even if this suffices to raise the failures to promote to the EEO, she did not
timely do so within 45 days of the acts. And ultimately, the EEO did not accept these
claims for investigation. Id. at 649. Thus, any claim that Hambrick was subject to
discrimination when she was not selected for promotion in 2018 or 2019 was not
As to her unsuccessful applications for promotion or transfer in 2021,
Hambrick claims they fall under the retaliation exception to exhaustion. This is a
“limited exception” where the Court recognizes it would be inefficient to require a
plaintiff to file a separate EEO complaint alleging retaliation occurring because of
the filing of a first EEO complaint. Zegarra v. John Crane, Inc., 218 F. Supp. 3d 655,
663 (N.D. Ill. 2016). Thus, Hambrick may claim only retaliation as to the SSA’s failure
to select her for promotion or transfer in 2021.
The SSA next argues that Hambrick’s remaining claims fail on the merits.
First, the SSA alleges that most of the conduct at issue does not rise to the level of an
adverse employment action and is also not severe or pervasive enough to make out a
hostile work environment claim. And, according to the SSA, even if the conduct does
qualify as actionable discrimination or harassment, the undisputed facts do not show
a causal connection to Hambrick’s race, age, or protected activity. The Court agrees.
a. Adverse Employment Actions
First, the majority of the conduct in this case does not rise to the level of an
actionable adverse employment action. To survive summary judgment, the adverse
employment actions must be “more disruptive than a mere inconvenience or an
alteration of job responsibilities,” McKenzie v. Milwaukee Cnty., 381 F.3d 619, 625
(7th Cir. 2004) (citations omitted), and “generally fall into three categories: (1)
termination or reduction in compensation, fringe benefits, or other financial terms of
employment; (2) transfers or changes in job duties that cause an employee's skills to
atrophy and reduce further career prospects; and (3) unbearable changes in job
conditions.” Barton v. Zimmer, 662 F.3d 448, 453–54 (7th Cir. 2011).
retaliation context, protection extends to actions that would dissuade a “reasonable
employee . . . from engaging in the protected activity.” Roney v. Ill. Dep’t of Transp.,
474 F.3d 455, 461 (7th Cir. 2007). Only that retaliation which “produces an injury or
harm” constitutes an actionable adverse employment action. Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); see also Lewis v. Wilkie, 909 F.3d 858,
867–68 (7th Cir. 2018) (“[P]etty slights or minor annoyances that often take place at
work” do not suffice).
Here, Hambrick claims in her response that she suffered adverse employment
actions when the record is reviewed cumulatively, but she fails to specify what actions
she believes qualify. However, “caselaw limits” the “‘totality of the circumstances’ . .
. approach to . . . hostile work environment claims,” not adverse employment action
claims. Boss v. Castro, 816 F.3d 910, 918 (7th Cir. 2016). As to the majority of the
properly-exhausted conduct in this case, Hambrick cannot make out claims for
adverse employment actions.
Hambrick’s allegations that she suffered from a heavy workload and difficult
assignments are not discrimination. More specifically, she alleges that, when she was
assigned to PITAG, she had to deal with a backlog of 12,000 cases, employee training,
and supervision of a workgroup. She also claims that Sletten requested that
Hambrick create an aged cases spreadsheet, and that she was assigned 1,800 unjust
enrichment cases (which would have been assigned to PITAG anyway) all at once
after she had contacted the EEO counselor. However, it is well established that
harder work assignments cannot amount to an adverse employment action. Fane v.
Locke Reynolds, LLP, 480 F.3d 534, 539 (7th Cir. 2007); Johnson v. Cambridge Indus.,
Inc., 325 F.3d 892, 901 (7th Cir. 2003); see also McKenzie, 381 F.3d at 625 (an adverse
employment action is “more disruptive than . . . an alteration of job responsibilities.”).
The claims which can fairly be summarized as personality conflicts, like the
allegedly “harassing” emails from Henderson and Mull’s team which followed up on
their requests for an expected timeline and copied PITAG employees, the belief that
Hambrick’s tone in an email directed to a congressional staffer was inappropriate,
workload meetings which Hambrick felt were “negative,” and Hambrick’s perception
that her supervisors did not recognize her accomplishments, talked down to her, gave
her dirty looks, or had a better rapport with others, are similarly not adverse
employment actions. Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1107 (7th
Cir. 2012) (“personality conflicts” are not actionable); White, 548 U.S. at 68 (“snubbing
by supervisors and co-workers are not actionable under Title VII”) (quotation
Hambrick’s claims also involve petty slights and administrative errors,
including the assignment of Hambrick to a cubicle, the delay in putting her name in
the manager directory, the omission of Hambrick’s name from an award to her team,
her inability to log on to a manager application, the delayed approval of her leave
along with a request that she substantiate her leave and work overtime, and the nonselection of an employee she nominated for employee of the month. These are also not
adverse actions. See Lewis, 909 F.3d at 868 (petty slights and administrative errors
are not adverse actions); Longstreet v. Ill. Dep’t of Corrections, 276 F.3d 379, 384 (7th
Cir. 2002) (holding that verbal reprimands and “being required to substantiate that .
. . absences from work were illness-related” were not adverse employment actions
under Title VII).
The SSA thus argues that the only materially adverse actions in this case are:
(1) the selection of Bajorek instead of Hambrick for the LEAD program in 2017; (2)
Hambrick’s lower performance rating of “3” in 2019; and (3) the allegedly retaliatory
failure to transfer or select Hambrick for other positions in 2021. 4 The non-selection
of Hambrick for the LEAD program constitutes an adverse employment action
because the SSA admits that it was a GS-14 level position, which would have
increased Hambrick’s pay and promotional opportunities. R. 27 ¶ 28. See Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 899 – 900 (7th Cir. 2003) (failure to promote to
position which had slightly higher pay constituted adverse employment action).
Hambrick’s claims that she was not selected for the FIRE development program or
district manager position in 2021 also qualify for the same reason. However, as to her
request for a relocation or transfer to avoid working with Mull in 2021, Hambrick has
failed to show that an available position even existed. See Han v. Whole Foods Market
Group, Inc., 44 F. Supp. 3d 769, (N.D. Ill. 2014) (employee could not allege adverse
employment action based on failure to promote where she could not show that there
Hambrick cites to Collins v. State of Ill., 830 F.2d 692, 703 (7th Cir. 1987), in which
the court found an adverse action occurred when the plaintiff was transferred to a
new department, her office was taken from her, and she was assigned to sit where a
receptionist would normally sit. Hambrick’s transfer to PITAG may arguably fit this
fact pattern, but as discussed above, it was not properly exhausted.
were open positions available). Even so, the “mere denial of a lateral transfer” does
not constitute an adverse employment action. Johnson, 325 F.3d at 900.
Hambrick can also make out a claim on the 2019 lowered performance
evaluation. Verbal reprimands and negative performance evaluations which do not
result in harm generally do not amount to adverse employment actions. Lewis, 909
F.3d at 868; Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 739 (7th Cir. 2006).
But, where it leads to “ineligibility for job benefits like promotion,” a reprimand can
conceivably be actionable under Title VII. Oest v. Ill. Dep’t of Corrections, 240 F.3d
605, 613 (7th Cir. 2001). Here, Hambrick stated that she did not receive an
unspecified monetary award and was not considered a “viable candidate” for
promotion due to her 2019 performance evaluation. R. 27-1 at 516. Drawing all
reasonable inferences in the light most favorable to Hambrick at this juncture, it is
certainly plausible that a lower performance evaluation caused Hambrick to fall out
of consideration for promotion. And, indeed, Hambrick did unsuccessfully apply for
several promotions in 2019. On the other hand, the other claims in this case relating
to minor verbal reprimands, like the admonishment for Hambrick’s refusal to provide
expected completion dates for manager-to-manager requests, meetings regarding
Hambrick’s “nice nasty” email to the congressional staffer, and the optional
performance discussion regarding Hambrick being late to or missing meetings do not
qualify as adverse employment actions. Thus, the SSA is correct that the only
actionable adverse action claims in this case are the SSA’s failure to promote
Hambrick to the 2017 LEAD program, her lowered 2019 performance evaluation, and
the non-selections to the FIRE program and the district manager positions in 2021.
b. Hostile Work Environment
Finally, Hambrick alleges that the record in this case, considered
cumulatively, supports an actionable hostile work environment. Title VII and the
ADEA protect against a hostile work environment so “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.”
Boss, 816 F.3d at 920 (citation omitted). To show that hostile conditions existed,
Hambrick must produce evidence that the work environment was objectively and
subjectively offensive and show that the alleged harassment was severe or pervasive.
Id. Whether the conduct rises to the level of an objectively hostile work environment
depends on “the severity of the allegedly discriminatory conduct, its frequency,
whether it is physically threatening or humiliating or merely offensive, and whether
it unreasonably interferes with an employee’s work performance.” Milligan-Grimstad
v. Stanley, 877 F.3d 705, 714 (7th Cir. 2017) (citation omitted).
The totality of the undisputed facts here, summarized above, consisted of
unremarkable workplace disagreements and Hambrick’s dissatisfaction with her
supervisors, heavy workload, and lack of recognition. Boss, 816 F.3d at 920 (“a
mishmash of complaints about overwork” did not establish hostile work
environment); Abrego v. Wilkie, 907 F.3d 1004, 1015-16 (7th Cir. 2018) (complaints
that supervisors were short-tempered, unfairly critical, disrespectful, and engaged in
“excessive monitoring” did not establish hostile work environment); Herron v.
DaimlerChrysler Corp., 388 F.3d 293, 303 (7th Cir. 2004) (complaints about
“transfers, a late overtime payment, salary, and difficulties with managers” was
“normal workplace friction”). Further, the conduct at issue was neither severe nor
pervasive. Rather, these petty slights and personality conflicts occurred sporadically
over the course of five years. The Court thus grants summary judgment as to
Hambrick’s hostile work environment claim. The Court next examines each of the
three remaining claims (the failure to promote to the 2017 LEAD program, the 2019
performance evaluation, and the non-selections to the FIRE program and the district
manager positions in 2021) in turn.
For the remaining claims, the “central question at issue is whether the
employer acted on account of the plaintiff’s race (or sex, disability, age, etc.).” Morgan
v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013). “Employers are also prohibited under
Title VII from retaliating against an employee who ‘filed a complaint or participated
in an investigation of an unlawful employment practice.’” Robertson v. Dep’t. of
Health Servs., 949 F.3d 371, 378 (7th Cir. 2020) (citing 42 U.S.C. § 2000e-3(a)). On
summary judgment “the correct standard . . . . is simply whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex,
religion, or other proscribed factor caused the . . . adverse employment action.” Ortiz
v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). Causation is a requirement
for both civil rights statutes at issue in this case. See Skiba v. Ill. Cen. R.R. Co., 884
F.3d 708, 719 (7th Cir. 2018); Monroe v. Ind. Dep’t of Trans., 871 F.3d 495, 503 (7th
One way in which a plaintiff can proceed is through the now-familiar
McDonnell Douglas burden-shifting framework, under which she first must establish
a prima facie case of discrimination. See Volling v. Kurtz Paramed. Servs., Inc., 840
F.3d 378, 383 (7th Cir. 2016) (McDonnell Douglas is a “common, but not exclusive”
method to establish a “triable issue of intentional discrimination”). To demonstrate a
prima facie case of discrimination or retaliation under McDonnell Douglas, a plaintiff
generally must show: (1) that she is a member of a protected class or engaged in
protected activity; (2) that she was performing her job satisfactorily; (3) that she
suffered an adverse employment action; and (4) that similarly situated individuals
who were outside her protected class or did not engage in protected activity were
treated more favorably. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). Once
established, the employer then presents evidence of a non-discriminatory reason for
its decision, and the burden ultimately shifts back to the plaintiff to establish that
the employer’s reason is pretextual. Id.
But ultimately, and regardless of the method of proof used, all evidence is
placed “in a single pile,” and the question is “whether the evidence would permit a
reasonable factfinder to conclude that [the plaintiff’s] [protected class or activity]
caused” the adverse action. Ortiz, 834 F.3d at 765-66. As to each of Hambrick’s
remaining claims, the Court finds that the answer is no.
1. 2017 Failure to Promote to the LEAD Program
With respect to her non-selection for the LEAD program in 2017, Hambrick
has satisfied the first three elements of a prima facie case of discrimination—she is
part of a protected class, has shown that she performed her job satisfactorily, and
suffered an adverse employment action. To satisfy the fourth element, Hambrick
identifies Bajorek, a younger, white employee, who was selected for the 2017 LEAD
position instead of her. Hambrick also points to the promotion of other employees to
other positions as comparators. Specifically, she claims that Isaac Aguilar, Richard
Wharton, Kristina Edwards, Matthew Smith, Bernard Mull, Elisha Hatchett, and
Jana McCann were promoted within the SSA to the GS-13 and GS-14 pay levels more
quickly than Hambrick, even though Hambrick believes she had more experience.
She also claims that older black managers in general were asked to train younger
Caucasian or non-black individuals who then replaced them.
But more evidence should have been offered to satisfy Hambrick’s burden of
establishing these other employees were similarly-situated. While not a “magic
formula,” in “the usual case a plaintiff must at least show that the comparators (1)
dealt with the same supervisor, (2) were subject to the same standards, and (3)
engaged in similar conduct without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s treatment of them.” Coleman v.
Donahoe, 667 F.3d 835, 847 (7th Cir. 2012) (cleaned up). Other than Bajorek,
Hambrick has not established that any of the employees she identified applied for the
same positions as Hambrick, dealt with the same supervisors, were subject to the
same standards, or were engaged in sufficiently similar conduct as Hambrick. She
merely states that they rose through the ranks of the SSA more quickly with less
experience. There is simply not enough evidence to support Hambrick’s allegation
that any of these employees, other than Bajorek, were similarly situated. See Johnson
v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 897 (7th Cir. 2018) (affirming grant
of summary judgment on failure to promote claim because plaintiff “offer[ed] no
evidence of [the comparator employees’] background, qualifications, resume, or any
other information that would satisfy the plaintiff's burden to demonstrate that the
comparators were similarly-situated applicants.”).
Under McDonnell Douglas, the SSA next presents evidence of nondiscriminatory reasons for its selection of Bajorek to the LEAD program. To survive
summary judgment, Hambrick must then demonstrate that the SSA’s stated reasons
are a pretext for discrimination. In order to establish a material issue of fact as to
pretext, Hambrick must show that “1) it is more likely that a discriminatory reason
motivated the employer than the proffered non-discriminatory reason or 2) that an
employer’s explanation is not credible.” Sublett, 463 F.3d at 737. Lenoir testified that
his selection of Bajorek was based on: Bajorek’s demonstrated ability to work
collaboratively, his ability to handle work at the GS-14 level because he stood in for
his supervisor on a number of occasions, the recommendation of Bajorek’s supervisor,
and Lenoir’s personal observations of Bajorek’s work. He also testified that he decided
not to select Hambrick for the program because he felt she needed to work on her
ability to collaborate with others and because her supervisors recommended her with
reservations. Hambrick alleges that Lenoir’s stated reasons for Bajorek’s selection
were a pretext for discrimination because she believes she had significantly more
experience and education than Bajorek did. She claims that she had no problems with
collaboration because her leadership abilities were rated highly in her performance
evaluations and her PITAG team cleared a backlog of 12,000 cases despite being
This, however, is not enough for Hambrick to carry her burden of establishing
a material issue of fact as to pretext. She has not identified “such weaknesses,
implausibilities, inconsistencies, or contradictions . . . that a reasonable person could
find [Lenoir’s reasons] unworthy of credence.” Coleman v. Donahoe, 667 F.3d 835, 852
(7th Cir. 2012) (cleaned up). Lenoir did not state that the LEAD program was seeking
the person with the most years of experience, education, or efficiency. Rather, Lenoir
testified that he selected the candidate with the best recommendations and
leadership skills. Hambrick’s experience and qualifications “only would serve as
evidence of pretext if the differences between her and [Bajorek] were so favorable to
the plaintiff that there can be no dispute among reasonable persons of impartial
judgment that the plaintiff was clearly better qualified for the position at issue.” Riley
v. Elkhart Comm. Schools, 829 F.3de 886, 898 (7th Cir. 2016) (quoting Hobbs v. City
of Chicago, 573 F.3d 454, 462 (7th Cir. 2009)) (cleaned up). Hambrick here has not
shown she was clearly better qualified. Though Hambrick alleges she had more years
of experience, Bajorek had more GS-14-level leadership experience because he
successfully stepped into his supervisor’s position when she was out. Id. (“[S]eniority
is not enough to meet her burden for pretext.”) (cleaned up).
Hambrick has not offered any other evidence that, if believed by a reasonable
juror, would demonstrate that Lenoir’s proffered justifications for picking Bajorek
over her were pretextual. Sublett, 463 F.3d at 737. Hambrick points to the fact that
her team cleared a backlog of cases and that her leadership abilities were highly
rated, but this is not such a contradiction that would create a material issue of fact
that Lenoir honestly believed Hambrick had issues with collaboration. Indeed, it is
undisputed that Hambrick had an ongoing history of personality conflicts with many
of her peers and every single one of her supervisors.
The fact that Hambrick’s supervisors recommended her with reservations
provides another legitimate, nondiscriminatory reason for Lenoir’s failure to promote
Hambrick. Hambrick’s subjective belief that her supervisor’s recommendation was
“bogus” cannot establish pretext. Castro v. DeVry Univ., Inc., 786 F.3d 559, 580 (7th
Cir. 2015) (plaintiff’s “subjective belief . . . does not undermine the honesty of [her
employer’s] stated explanation for terminating her and thus could not support a
finding of pretext.”). Simply put, a court is not a “super personnel department that
second-guesses employers’ business judgments.” Riley, 829 F.3d at 898. Without
meeting her burden to establish pretext, or any direct evidence of discrimination, no
reasonable juror could find the SSA’s explanation of this decision pretextual, and so
Hambrick cannot survive summary judgment on the SSA’s selection of Bajorek over
her for the LEAD program.
2. Lowered Performance Evaluation
As to Hambrick’s claim that she received a low performance evaluation in
November 2019, she states that Edwards, a younger white manager, received a
higher evaluation despite having over 12,000 pending cases and more operational
support staff than Hambrick. But the Court will not consider this factual assertion
because it is based not on Hambrick’s personal knowledge, but on speculation. See R.
36 ¶ 23; Pl. Dep. R. 27-1 at 297 (Q: “How do you know what ratings the other
managers in your component received?” A: “I can’t say that I know, but . . . they’re
constantly thanked publicly which gives the appearance that they . . . have the
blessings, let’s say, of [the supervisors].” . . . Q: “Have the other managers in your
component ever told you what their ratings are?” . . . A: “No.”). Additionally, Edwards
worked in a different unit within Great Lakes. There is no indication that Edwards
was subject to the same standards as Hambrick in her evaluation. Thus, Hambrick
cannot make out a prima facie case of discrimination. The only other evidence of
causation that Hambrick points to is the temporal proximity of the evaluation with
her appeal of her first EEO complaint. But “the general rule [is] that suspicious
timing alone is insufficient to support a claim of retaliation.” Leitgen v. Franciscan
Skemp Healthcare, Inc., 630 F.3d 668, 675 (7th Cir. 2011). Cases in which courts
found timing alone to be sufficient involved retaliation that occurred within days of
the protected activity. See Spiegla v. Hull, 371 F.3d 928, 943 (7th Cir. 2004) (four
days later); McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796–97 (7th Cir. 1997) (two
or three days later). Here, Hambrick filed her appeal of her first EEO case in July or
August 2019, three months prior to her November performance review, and
Hambrick does not allege or show that her supervisors even knew that she had
appealed the EEO’s decision. Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918–19
(7th Cir. 2000) (three-month gap between protected conduct and termination alone
could not establish causality); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027,
1039 (7th Cir. 1998) (affirming summary judgment where the employee complained
of harassment in August and was laid off in November of the same year). Summary
judgment is thus proper on the 2019 performance evaluation claim.
3. Retaliatory Failures to Promote in 2021
Finally, with respect to the alleged retaliatory failures to promote her in 2021,
Hambrick first cites again to the possible temporal proximity of her supervisors’
refusal to reassign or promote her and some of her protected conduct. Here, the
failures to promote came over a year after she filed her March 2020 EEO Complaint,
which is certainly not enough of a temporal connection to overcome the general rule
that suspicious timing alone cannot support a claim of retaliation. Leitgen, 630 F.3d
Nonetheless, Hambrick implies there must have been retaliation only because
she was not selected for the positions. She does not point to any other evidence of
causation. Hambrick’s subjective belief that the failures to promote were caused by
her protected conduct, without a scintilla of factual support, does not create a triable
issue of fact. This claim, too, cannot survive.
In sum, most of the occurrences in this case do not constitute adverse
employment actions individually or a hostile work environment cumulatively. And,
of the three properly exhausted adverse actions, Hambrick has failed to provide
evidence which would permit a reasonable juror to conclude that her race, age, or
protected activity caused them. Ortiz, 834 F.3d at 765-66.
For the reasons set forth above, the SSA’s motion for summary judgment is
granted in full.
Honorable Thomas M. Durkin
United States District Judge
Dated: November 18, 2022
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