Alexander v. BCI Acrylic, Inc.

Filing 47

MEMORANDUM Opinion and Order signed by the Honorable John F. Kness on 1/6/2025. Mailed notice. (exr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARVIN ALEXANDER,
Plaintiff,
v.

No. 23-cv-01921
Judge John F. Kness

BCI ACRYLIC, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Marvin Alexander, who is African American, claims that he was
subject to racial discrimination, harassment, and retaliation while working for
Defendant BCI Acrylic, Inc. (“BCI”). Plaintiff alleges that while in a bathroom stall
at work, an unidentified individual walked into the bathroom and said, “there is a
n*gger in here.” 1 Plaintiff says he suffered race-based discrimination, harassment,
and retaliation from this incident and his efforts to report it. Defendant seeks
summary judgment on all claims, arguing that Plaintiff did not suffer an adverse
employment action, was not treated differently on account of his race, and that
Defendant conducted a full investigation. For the reasons that follow, Defendant is
entitled to summary judgment on all counts.
I.

BACKGROUND
Plaintiff Marvin Alexander began working at Defendant’s Libertyville, Illinois
1 This is Plaintiff’s formulation of the alleged statement. (See Dkt. 1 ¶ 28; Dkt. 40 ¶ 8.)

location on November 16, 2021 as a third shift production thermoforming operator.
(Dkt. 40 ¶¶ 2–3.) On February 16, 2022, Plaintiff’s job title was changed to third shift
“product quality technician” and Plaintiff received a $1.50 per hour pay increase. (Id.
¶ 5.) Plaintiff’s supervising manager was Alan Velazquez (“Velazquez”). (Id. ¶ 10.)
Plaintiff claims that he was the only African-American employee in his department,
that he heard his Hispanic co-workers make racial and derogatory comments, such
as using the N-word, and that on one instance, while Plaintiff was in the restroom,
Plaintiff heard an employee walk in and say, “There is a n*gger in here.” (Dkt. 1
¶¶ 16–19, 28.) During Plaintiff’s performance review in February 2022, however,
Plaintiff did not report that he was subjected to or heard racial or derogatory
comments from coworkers. (Dkt. 40 ¶¶ 19–20.)
On September 12, 2022, Plaintiff made a report to Defendant’s Director of
Human Resources (“HR”), Lois Lloyd (“Lloyd”), describing the bathroom incident that
Plaintiff claims occurred a few weeks earlier, on August 25, 2022. 2 (Dkt. 40 ¶ 8.)
Plaintiff could not provide the name of the individual who allegedly made the
statement in the bathroom, identify any individuals who heard the incident, did not
see the person in the bathroom, and never reported any incidents other than the
bathroom incident. (Id. ¶¶ 8, 13–16.) Plaintiff initially reported the bathroom
incident to his supervisor, Velazquez, who then reported it to his supervisor, Jose
Tello (“Tello”), the same day. (Id. ¶ 25.) Tello made attempts to determine who made
the alleged statement in the bathroom, but Plaintiff was unable to provide any
2 Plaintiff is unsure of the exact date of the alleged bathroom incident, but he provided

this date to HR. (Dkt. 40 ¶¶ 8, 60.)

2

information about the individual or who else was in the bathroom. (Id. ¶ 51.)
After Velazquez reported the bathroom incident to Tello, Tello failed to escalate
the complaint to HR as required under Defendant's anti-harassment policy. (Dkt. 43
¶ 8.) HR only found out about the bathroom incident after Plaintiff (not Tello) brought
it to HR’s attention. (Dkt. 34 at 140–41; Dkt 40 ¶ 25.) HR then conducted an
investigation. (Dkt. 40 ¶¶ 37, 41–42.) HR’s standard procedure is to speak to the
complainant and ask for names of any witnesses. (Id. ¶ 56.) Lloyd spoke with
Plaintiff, who was again unable to identify who was in the bathroom. (Id. ¶ 60.) Lloyd
also spoke with Velazquez and Tello, and then reviewed video camera footage of the
hallway near the bathroom to attempt to see when Plaintiff entered the bathroom
and who else may have entered or left around the same time. (Id. ¶ 61.) Despite
reviewing the video camera footage for the date provided by Plaintiff and for the
surrounding days, Lloyd found no video evidence to corroborate Plaintiff’s account.
(Id. ¶¶ 61–62.)
On September 3, 2022, after the alleged bathroom incident but before the issue
was brought to the attention of HR, Defendant eliminated the third production shift,
and as a result, Plaintiff’s job changed from “product quality technician” to “bandsaw
operator.” (Id. ¶¶ 5,7.) Plaintiff’s pay rate remained the same. (Id.¶ 7.) Plaintiff
alleges that his role change constituted racial discrimination and retaliation. (Dkt.
39 at 7–8, 14.)
Plaintiff also alleges more general issues with his employment. He claims, for
instance, that meetings were held only in Spanish and not explained to him in

3

English. (Dkt. 40 ¶ 28.) The parties dispute the extent to which meetings were held
or information was conveyed in English. (See id.) The parties also dispute whether
Plaintiff overheard Hispanic co-workers using the N-word around Plaintiff, (Dkt. 39
at 9), although Plaintiff cannot identify anyone who did so and says he did not report
these incidents to his supervisor so as not to “make waves” as a new employee. (Dkt.
40 ¶¶ 11–12.) Further, Plaintiff argues that others were treated more favorably when
they reported discrimination. (Dkt. 39 at 8–9.) For example, in a separate incident
not involving Plaintiff, Lloyd testified that after an employee called another African
American employee the N-word, the Defendant “probably fired the person who used
the racial slur.” (Dkt 34 at 139.) Plaintiff believes his investigation was not given the
same treatment. (Dkt. 39 at 10–11.)
Plaintiff is collecting disability benefits after suffering a stroke (Dkt. 40 ¶ 69), 3
which Plaintiff argues was caused by the alleged discrimination. (Dkt. 39 at 14–15.)
Plaintiff has presented no medical documentation to support that belief. (Dkt. 40
¶ 69.)
Plaintiff filed the present four-count complaint on March 28, 2023. (Dkt. 1.)
Plaintiff brings claims (Counts I, II) for race-based discrimination in violation of 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. (Dkt. 1 ¶¶ 37–46.) Plaintiff
also brings claims (Counts III, IV) for race-based harassment and retaliation under
Title VII. (Id. ¶¶ 47–62.) The parties conducted discovery, which is closed. (Dkts. 28,

It is not clear from the Rule 56.1 statements whether Plaintiff is still employed by
Defendant. (Compare Dkt. 40 ¶ 2 (“Plaintiff . . . was an employee of Defendant”), with id. ¶ 69
(“Plaintiff is still employed by Defendant . . . .”).)
3

4

30.) Defendant now seeks summary judgment on all counts. (Dkt. 32.)
II.

STANDARD OF REVIEW
Summary judgment must be granted “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). Rule 56 of the Federal Rules of Civil Procedure
“mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
As the “put up or shut up moment in a lawsuit, summary judgment requires a nonmoving party to respond to the moving party’s properly-supported motion by
identifying specific, admissible evidence showing that there is a genuine dispute of
material fact for trial.” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017)
(quotations omitted). All facts, and any inferences to be drawn from them, are viewed
in the light most favorable the non-moving party. See Scott v. Harris, 550 U.S. 372,
378 (2007).
III.

DISCUSSION
A.

Race-Based Discrimination (Counts I, II)

In Counts I and II respectively, Plaintiff brings claims for race-based
discrimination in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e, et seq. (Dkt. 1 ¶¶ 37–46.) The legal analysis for discrimination
claims under § 1981 and Title VII are identical, “so we merge our discussion of the
two claims,” Ferrill v. Oak Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 499 (7th
5

Cir. 2017) (internal quotation omitted), and analyze both “under the framework
governing Title VII claims.” Hallmon v. Sch. Dist. 89, 911 F. Supp. 2d 690, 699 (N.D.
Ill. 2012).
Under that framework, the Court asks “whether the evidence would permit a
reasonable factfinder to conclude that the plaintiff’s race . . . caused the discharge or
other adverse employment action.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765
(7th Cir. 2016). Although not required, one method a plaintiff may choose to pursue
his claim is the “McDonnell Douglas ‘burden-shifting framework.’ ” McDaniel v.
Progress Rail Locomotive, Inc., 940 F.3d 360, 368 (7th Cir. 2019) (quoting David v.
Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017)); see also
generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell
Douglas framework asks a plaintiff to show a prima facie case by demonstrating that
they: (1) are a member of a protected class; (2) met the defendant’s legitimate
expectations; (3) suffered an adverse employment action; and (4) were treated less
favorably than similarly situated employees not members of the protected class.
McDaniel, 940 F.3d at 368.
If a plaintiff satisfies each element of their prima facie case, the burden shifts
to the defendant “ ‘to articulate a legitimate, nondiscriminatory reason for the
adverse employment action, at which point the burden shifts back to the plaintiff to
submit evidence that the employer’s explanation is pretextual.’ ” Id. (quoting Skiba
v. Ill. Cent. R.R. Co., 884 F.3d 708, 719–20 (7th Cir. 2018); see also Wince v. CBRE,
Inc., 66 F.4th 1033, 1040 (7th Cir. 2023). Even if a plaintiff fails to succeed under

6

McDonnell Douglas, the Court must assess the evidence “as a whole, rather than
asking whether any particular piece of evidence proves the case by itself—or whether
just the ‘direct’ evidence does so, or the ‘indirect’ evidence.” Ortiz, 834 F.3d at 765.
Plaintiff does not meet his burden under McDonnell Douglas. The parties agree
that Plaintiff is a member of a protected class (African American) (Dkt. 6 ¶ 52) and
do not dispute that Plaintiff met or exceeded Defendant’s legitimate performance
expectations. (Dkt. 39 at 6–7.)4 As explained below, however, Plaintiff fails to show a
prima facie case under McDonnell Douglas because the evidence, seen in the light
most favorable to Plaintiff, precludes a finding that Plaintiff suffered an adverse
employment action or was treated less favorably than similarly situated employees.
1.

Plaintiff Suffered No Adverse Employment Action

Adverse employment actions “include a broad array of actions such as ‘hiring,
firing, failing to promote, reassignment with significantly different responsibilities,
or some other action causing a significant change in benefits.’ ” McKenzie v.
Milwaukee Cnty., 381 F.3d 619, 625 (7th Cir. 2004) (quoting Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 761 (1998)). The adverse “employment action must be ‘more
disruptive than a mere inconvenience or an alteration of job responsibilities.’ ” Id.
(quoting Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002)). A lateral transfer

4 The undisputed evidence, such as Plaintiff’s employee review, indicates that Plaintiff

met expectations and accordingly received a pay increase. (See Dkt. 34 at 165; Dkt. 40 ¶ 5.)
On one occasion, Plaintiff received an “Employee Warning Notice” which states that Plaintiff
“walked away when his supervision [sic] was giving him instructions regarding end of shift
procedure.” (Dkt. 34 at 168.) Plaintiff disputes part of this account, but in any event, Plaintiff
was neither suspended nor docked any pay. (Dkt. 40 ¶ 36.) The Employee Warning Notice
does not undermine the overall conclusion that Plaintiff met expectations.

7

within a company “rarely constitutes an adverse employment action.” Stapleton v.
Nestle USA, Inc., No. 17 C 5589, 2024 U.S. Dist. LEXIS 60372, at *12 (N.D. Ill. Apr.
2, 2024). A transfer that “does not involve a demotion in form or substance[] cannot
rise to the level of a materially adverse employment action. A transfer involving no
reduction in pay and no more than a minor change in working conditions will not do,
either.” Id. (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.
1996)).
Plaintiff argues that he suffered an adverse employment event because he was
demoted after complaining to HR about the bathroom incident. (Dkt. 39 at 7.)
According to Plaintiff, after a discussion with Lloyd, Plaintiff was demoted from his
position as a third shift “product quality technician” and moved to a new job as a
“band saw operator.” (Id.; Dkt. 40 ¶ 7.)5 Although Plaintiff admits that his pay rate
remained the same, he argues that the band saw position was less desirable. (Dkt. 40
¶ 7; Dkt. 39 at 8.)
Plaintiff’s lateral job change was not an adverse employment action, and his
subjective belief that he was demoted, without more, does not change that conclusion.
For a demotion to constitute an adverse employment action, the reassignment “must
involve ‘significantly different responsibilities,’ ” and “changes such as reporting to a

5 As described below, Plaintiff’s timing belies the evidence in the record. In his Opposition,

Plaintiff states that his alleged demotion occurred after speaking with HR. (Dkt. 39 at 7)
(“Following his discussion with Ms. Lloyd, Plaintiff was demoted from his position in third
shift to a different time and into the role of band saw operator from product quality
technician.”).) Plaintiff, however, appears to admit in his Rule 56.1 Response that that his
job changed on September 3, 2022, before Plaintiff making a report to HR. (Dkt. 40 ¶¶ 7–8.)
Plaintiff does not cite any evidence showing that the alleged demotion occurred after
speaking with HR.

8

former subordinate or being given a different title are ‘largely semantic’ when there
is no accompanying reduction in salary, benefits, or responsibility.” Stapleton, 2024
U.S. Dist. LEXIS 60372 at *13–14 (citing Flaherty v. Gas Rsch. Inst., 31 F.3d 451, 456
(7th Cir. 1994)). A transfer that merely “causes ‘personal inconvenience’ does not
count as an adverse employment action.” Id. at 14–15 (quoting Flaherty, at 31 F.3d
456). Plaintiff does not cite evidence that indicates the “band saw operator” role was
a

less distinguished title

or was accompanied by

significantly different

responsibilities (Dkt. 39 at 7–8), and Plaintiff admits he received no reduction in pay.
(Dkt. 40 ¶ 7.) Plaintiff also admits that Defendant’s decision to eliminate the third
production shift was a “business decision” and that Plaintiff never advised his
supervisors that he suffered from any physical limitations which caused him
difficulties working on the band saw. (Dkt. 40 ¶¶ 7, 46.)
Even if Plaintiff suffered an adverse employment action, Defendant provides a
legitimate justification, and Plaintiff is unable to establish that the justification is
pretextual. See Wince v. CBRE, Inc., 66 F.4th 1033, 1040 (7th Cir. 2023). Defendant
argues that the decision to eliminate the third shift and transfer Plaintiff to the band
saw operator role was for business reasons and was unrelated to alleged bathroom
incident because Defendant decided to eliminate the third shift at least a month
before Plaintiff made his report to HR. (Dkt. 44 at 4.) Plaintiff disputes this but cites
nothing in the record for support. (See Dkt. 39 at 8.) Upon review, the evidence in the
record (e.g., Dkt. 34 at 13 ¶¶ 10–11) confirms Defendants’ position that it made plans
to eliminate the third production shift before the bathroom incident and before

9

Plaintiff’s report to HR. Plaintiff cites no evidence from which a jury could conclude
otherwise. Defendant satisfies its burden to provide a legitimate justification for
Plaintiff’s job change, and Plaintiff is unable to establish that the justification is
pretextual.
2.

Plaintiff Was Not Treated Less Favorably Than Similarly Situated
Employees

Plaintiff also fails to meet his burden to show that he was treated less favorably
than similarly situated employees, who must be “ ‘directly comparable’ in all material
respects.” Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 895 (7th Cir.
2018) (quoting Reed v. Freedom Mortg., 869 F.3d 543, 549 (7th Cir. 2017)). This
inquiry is “flexible, common-sense, and factual. It asks ‘essentially, are there enough
common features between the individuals to allow a meaningful comparison?’ ”
Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012) (quoting Humphries v. CBOCS
West, Inc., 474 F.3d 387, 405 (7th Cir. 2007)). The similarly situated requirement was
intended to “eliminate other possible explanatory variables, such as differing roles,
performance histories, or decision-making personnel, which helps isolate the critical
independent variable,” namely, discriminatory or retaliatory animus. Id. at 846
(internal quotation marks omitted). Whether a comparator is similarly situated is
“typically a question for the fact finder, unless, of course, the plaintiff has no evidence
from which a reasonable fact finder could conclude that the plaintiff met his burden
on this issue.” Igasaki v. Illinois Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 958 (7th
Cir. 2021) (internal quotation marks omitted).
Given the paucity of evidence cited by Plaintiff, no reasonable fact finder could

10

conclude that Plaintiff meets his burden to identify a similarly situated employee who
received better treatment. If Plaintiff “present[s] no evidence concerning a similarly
situated employee from which the district court could draw a comparison,” Plaintiff
makes “review under McDonell Douglas functionally impossible.” Igasaki, 988 F.3d
at 958.
Plaintiff argues in general that he would overhear Hispanic co-workers use the
N-word around him, and that compared to others who made complaints to HR,
Plaintiff was treated less favorably because his investigation was not given adequate
attention. (Dkt. 39 at 9.) Although Plaintiff seeks to compare his situation to
“previous HR investigations, including those of sexual harassment, sex-based
discrimination, and race-based discrimination,” Plaintiff’s citations focus on the
general approach HR took to investigations, an investigation into sexual
harassment, 6 and an investigation that also concerned the N-word. (Id; Dkt 34 at 109,
139.) Regarding the latter, Plaintiff cites to Lloyd’s deposition, who testified that in
another incident (for which there were witnesses), an employee called an African
American employee the N-word and Defendant “probably fired the person who used
the racial slur.” (Dkt 34 at 139.) In investigating that incident, HR spoke to the person

6 Plaintiff cites to deposition testimony from Tello discussing an investigation into sexual

harassment. (Dkt. 39 at 9; Dkt. 34 at 109.) The details on this investigation are sparse, (see
Dkt. 34 at 109), and Plaintiff does not explain how this investigation is comparable other
than by vaguely asserting that the protocols followed were different. (Dkt. 39 at 9.) Unlike
Plaintiff’s complaint, it appears there was no question as to the identity of the alleged
perpetrator. (Dkt. 34 at 109.)

11

who brought the complaint and conducted interviews. 7 (Id.)
Plaintiff argues that his complaint was not treated as favorably because it did
not initially or quickly make it to HR. (Dkt. 39 at 9.) Rather, Plaintiff reported the
incident to his immediate supervisor, Alan Velazquez, Velazquez reported the
incident to his supervisor, Jose Tello, and Tello failed to report the incident up the
chain to HR, which only became aware of the bathroom incident after Plaintiff
brought it to HR’s attention. (Dkt. 34 at 140–41; Dkt 40 ¶ 25.) Plaintiff also states
that once HR was aware of the issue, HR failed to fully investigate it by not talking
to witnesses. (Dkt. 39 at 9.)
Plaintiff’s effort at comparison is flawed by a fundamental, and undisputed,
fact: neither Plaintiff nor any deponent can identify the alleged perpetrator of the
bathroom incident. (Dkt. 40 ¶¶ 11, 13, 16, 51, 60.) In the incidents cited to by Plaintiff
for comparison, Defendant knew through witnesses who to investigate. (See, e.g., Dkt
34 at 139.) In contrast, Plaintiff cannot identify the name of the individual in the
bathroom and is not even sure on what date the incident occurred. (Dkt. 40 ¶¶ 16, 60.)
Plaintiff’s best argument that he was treated less favorably is that his
complaint was not initially escalated to HR. Plaintiff, however, does not cite evidence
in the record to show how quickly the other incidents were brought to HR’s attention,
rendering a comparison impossible. The undisputed evidence also shows Plaintiff’s
complaint was taken seriously when Lloyd conducted interviews and reviewed the

7 Lloyd also mentions a second incident involving a slur against Hispanic workers at BCI,

but she had even fewer details about that incident, concluding that she was “just not clear on
that one.” (Dkt. 34 at 139–40.)

12

relevant camera footage. (Dkt. 40 ¶¶ 61–64.) Plaintiff therefore fails his burden to
show that he was treated less favorably than similarly situated employees.
3.

Holistic Evidence Approach

Because Plaintiff fails to show a prima facie case under the McDonnell Douglas
method, the Court must consider the evidence as a whole and determine whether all
the relevant evidence “would permit a reasonable factfinder to conclude that the
plaintiff's race . . . caused the discharge or other adverse employment action.” Ortiz,
834 F.3d at 765. Relevant evidence includes smoking-gun evidence such as a
defendant’s “actual admission of discriminatory intent.” Bagwe v. Sedgwick Claims
Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citing Mullin v. Temco Mach.,
Inc., 732 F.3d 772, 776 (7th Cir. 2013)). Circumstantial evidence, such as evidence
that the employer’s stated reasons for terminating the plaintiff were pretextual, is
also relevant. See Coleman, 667 F.3d at 852. All the “evidence belongs in a single pile
and must be evaluated as a whole” to determine discriminatory intent. Ortiz, 834
F.3d at 766.
There is no smoking gun evidence. Plaintiff alleges only a single specific
incident, the bathroom incident, committed by an unidentified perpetrator. Although
Plaintiff’s role changed, his pay remained the same, and Plaintiff fails to refute
Defendant’s explanation that the decision to terminate the third shift was an
independent business decision made before the bathroom incident and enacted before
the HR complaint was made. (See Dkt. 34 at 13 ¶¶ 10–12.) Moreover, the undisputed
evidence shows that Defendant made a serious effort to identify the individual
involved in the bathroom incident. Aside from this, Plaintiff offers few specifics, and
13

none arise to the level of an actionable race-based discrimination claim. Taking the
evidence as a whole, Defendant is entitled to summary judgment on Counts I and II.
B.

Race-Based Hostile Work Environment (Title VII) (Count III)

In Count III, Plaintiff alleges that he suffered pervasive racial harassment.
(Dkt. 1 ¶¶ 47–53.) To survive summary judgment on a Title VII hostile work
environment claim, Plaintiff must demonstrate that “ ‘(1) [he was] subject to
unwelcome harassment; (2) the harassment was based on [his] race; (3) the
harassment was so severe or pervasive as to alter the conditions of employment and
create a hostile or abusive working environment; and (4) there is a basis for employer
liability.’ ” Walker v. City of Markham, 676 F. Supp. 3d 623, 632 (N.D. Ill. 2023)
(quoting Johnson, 892 F.3d at 901). As to the third element, a court must consider
“whether the conduct was severe or pervasive–which 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.’ ” Id. (quoting Scruggs v. Garst Seed Co., 587 F.3d 832,
840 (7th Cir. 2009)).
Plaintiff argues that the use of the N-word as a racial slur, even once, can
warrant liability under Title VII, and that the bathroom incident alone is therefore
sufficient to establish a hostile work environment. 8 (See Dkt. 39 at 13 (citing Scaife

8 Plaintiff briefly echoes allegations from his complaint (e.g., Dkt. 1 ¶¶ 17–19) that he

more-generally heard the N-word used by coworkers. (Dkt. 39 at 12.) Plaintiff admits,
however, that he is unable to identify any individual who made these comments. (Dkt. 40
¶ 11.) Plaintiff accordingly relies on the bathroom incident to survive summary judgment.
(See Dkt. 39 at 12–13.)

14

v. Dep’t of Veterans Affairs, 49 F.4th 1109, 1116 (7th Cir. 2022)). Although Plaintiff
is correct that the egregious character of the N-word means that one-time use “can in
some circumstances warrant Title VII liability,” Scaife clarified that the totality of
the circumstances test nevertheless remains the inquiry and that a Title VII plaintiff
alleging one-time use of the N-word must show that the use was sufficiently severe
or pervasive. Scaife, 49 F.4th at 1116.
In Scaife, the plaintiff claimed that she heard from her co-workers that a
supervisor in another department (not her supervisor) called her the N-word. Id. But
the Seventh Circuit explained that this incident was not sufficiently severe or
pervasive, in part, because the plaintiff heard about the slur second-hand from a coworker months after it was uttered. See id. Scaife emphasized that the position of the
individual who utters the epithet is “critical to the analysis” because “a supervisor’s
use of a racial slur impacts the work environment far more severely than a coequal’s
use. Id. at 1116–17. Accordingly, a direct-supervisor’s use of a racial slur is given
more weight than a non-direct supervisor, which is in turn given “more weight in the
analysis than a peer or co-equal.” Id. at 1117.
It is a truism that use of the N-word in the employment environment is
troubling. But under the inquiry that applies here, the Court must consider not just
the impact of this single incident but instead the totality of the circumstances in the
work environment. Under this inquiry, and in view of the record at summary
judgment, Plaintiff’s case falls short. Plaintiff admits that he cannot identify the
individual who used the N-word in the bathroom, is not sure of the date of the

15

incident, and cannot identify any individual who made any other racial or derogatory
comments. (Dkt. 40 ¶¶ 11, 16, 60.) Plaintiff admits that a supervisor did not commit
the bathroom incident and suggests that a fellow employee is responsible. (See id.
¶ 15, Dkt. 39 at 13.) As Scaife explains, the one-time use of the N-word by a coworker,
although execrable, falls into the category afforded the least weight in the totality of
the circumstances analysis.
Defendant is entitled to summary judgment because a single instance in which
a coworker uses a racial slur “is certainly insufficient to plausibly allege a hostile
work environment.” Tucker v. Ettleson Hyundai, LLC, No. 19 C 4334, 2019 U.S. Dist.
LEXIS 204708, at *5 (N.D. Ill. Nov. 25, 2019) (citing Sanders v. Village of Dixmoor,
178 F.3d 869, 869 (7th Cir. 1999)); see also Nichols v. Mich. City Plant Plan. Dept.,
755 F.3d 594, 601 (7th Cir. 2014) (“[W]hile referring to colleagues with such
disrespectful language is deplorable and has no place in the workforce, one utterance
of the n-word has not generally been held to be severe enough to rise to the level of
establishing liability.”); c.f. Gates v. Bd. of Educ. of the City of Chicago, 916 F.3d 631,
637–40 (7th Cir. 2019) (finding that it was sufficient to state a hostile work
environment claim where a supervisor made three offensive statements, which
included the N-word, but that “[i]f the only evidence of racial harassment [plaintiff]
had was a co-worker’s use of the three epithets . . . [,] we would likely reach a different
conclusion in this case.”)
Plaintiff also cites no evidence to suggest that Defendant is liable for the
bathroom incident. An employer is only liable for a coworker’s statement “if the

16

employer ‘knew or should have known about such harassment and failed to take steps
to remedy it.’ ” Burrell v. UPS, Inc., 163 F. Supp. 3d 509, 523 (N.D. Ill. 2016). If
neither Plaintiff nor any deponent can identify the perpetrator, Defendant cannot
reasonably be expected to have known about the harassment. Moreover, Defendant
took steps to remedy the situation, as the undisputed evidence shows that Defendant
investigated and reviewed the relevant video camera footage. (Dkt. 40 ¶¶ 58–63.)
Finally, Plaintiff’s more general issues with his employment do not rise to the
level of a severe and hostile work environment. For instance, Plaintiff states that he
would overhear Hispanic co-workers use the N-word around him. (Dkt. 39 at 9.)
Plaintiff admits that none of this was reported to Defendant, indicating that
Defendant had no reason to know of these remarks. (Dkt. 40 ¶¶ 19–21.)
Plaintiff also complains that he was unable to communicate in meetings
because they were conducted in Spanish. (Dkt. ]1 ¶¶ 22–24.) Plaintiff, however,
admits that Defendant’s policy is to conduct employee meetings in both English and
Spanish. (Dkt. 40 ¶ 66.) The parties dispute the extent to which the meetings were
held in English and whether Defendant’s supervisor conveyed the meeting
information to Plaintiff in English. (Id. ¶¶ 28, 66.) But this does not rise to the level
of a hostile work environment. Plaintiff admits that Velazquez would meet with him
after meetings to answer his questions and provide Plaintiff with further
explanations if needed. (Id. ¶ 67.) Further, the evidence is insufficient for a jury to
find that the predominant use of Spanish was racially motivated, as opposed to a
function of the fact that most employees were Hispanic and presumably spoke

17

Spanish. (Dkt. 39 at 8–9.)
C.

Retaliation (Title VII) (Count IV)

In Count IV Plaintiff brings a claim for retaliation under Title VII, alleging
that Defendant retaliated when he complained about the alleged discriminatory
conduct. (Dkt. 1 ¶¶ 54–62.) To survive summary judgment, a plaintiff’s Title VII
retaliation claim must present sufficient evidence to create a question of fact as to
whether he: (1) engaged in a statutorily protected activity; (2) suffered an adverse
employment action; and (3) there is a but-for causal connection between the two. See
Kotaska v. Fed. Express Corp., 966 F.3d 624, 632 (7th Cir. 2020). A plaintiff’s alleged
protected activity “must be specifically identified.” Carlson v. CSX Transp., Inc., 758
F.3d 819, 828 (7th Cir. 2014). Plaintiff fails to show both an adverse employment
action and but-for causation. For the reasons described above, the undisputed facts
show that Plaintiff did not suffer an adverse employment action and that the
purported demotion was not connected to Plaintiff’s discrimination complaint. (See
supra Part A.1).
Plaintiff finally argues he “was so stressed due to the racially discriminatory
actions against him at work” that he suffered a stroke. (Dkt. 39 at 14–15.) Although
Plaintiff’s medical condition is certainly regrettable, Plaintiff provides no medical
evidence connecting the purported demotion to his stroke. (See Dkt. 44 at 10–11; Dkt.
40 ¶ 69.)
IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is

granted.
18

SO ORDERED in No. 23-cv-01921.
Date: January 6, 2025

JOHN F. KNESS
United States District Judge

19