ALAKA-MUHAMMAD v. MARION COUNTY JUVENILE DETENTION CENTER

Filing 66

ORDER - granting 55 Motion for Summary Judgment; The Court concluded that no reasonable trier of fact could find for Muhammad on either of her claims on the basis of the record before us. Accordingly, the Detention Center is entitled to judgment as a matter of law, and its motion for summary judgment is therefore GRANTED. Final judgment shall be entered by separate document. Fed. R. Civ. P. 58(a). Signed by Judge Sarah Evans Barker on 12/7/2017. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NAILAH ALAKA-MUHAMMAD,

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Plaintiff,
v.
MARION COUNTY JUVENILE
DETENTION CENTER,
Defendant.

No. 1:15-cv-01495-SEB-MPB

MEMORANDUM ORDER
Plaintiff Nailah Alaka-Muhammad (“Muhammad”) brought this action against her
former employer, defendant Marion County Juvenile Detention Center (“the Detention
Center”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA).
Before the Court is the Detention Center’s motion for summary judgment. Dkt. 55. For
the reasons below, the motion is granted.
Facts and Procedural History
With all evidentiary conflicts resolved and all reasonable inferences drawn in
Muhammad’s favor, the parties’ designated materials reveal the following. The Detention
Center is an arm of the Juvenile Division of Marion Superior Court in Marion County,
Indiana. In May 2009, the Detention Center hired Muhammad for the position of “Youth
Manager.” Dkt. 57 Ex. B. In late 2013, Muhammad’s job title changed to “Central
Control Staff” or “Central Control.” Id. Exs. A, G to I. It does not appear from the record
1

whether this change in title reflected a change in duties, nor, if so, whether such change
represented a promotion, a demotion, or neither. After working at the Detention Center
for five years, Muhammad was informed by letter dated May 14, 2014, that she was
being terminated from her employment with the Detention Center effective May 15,
2014.
Muhammad is a middle-aged woman who, during the time she worked for the
Detention Center, suffered from several physical and mental ailments. Specifically,
Muhammad suffered from diabetes, high blood pressure, blood clots, and nagging
injuries to her shoulder and knee, as well as from both depression and anxiety. At one
time Muhammad had received testing for a brain disease, but the test did not lead to a
diagnosis and Muhammad did not pursue treatment. Over the course of Muhammad’s
employment, the Detention Center was aware of at least some of Muhammad’s ailments,
based in part on the periods of medical leave she had taken to address the blood clots and
her possible brain disease.
During her time as an employee of the Detention Center, Muhammad accumulated
a checkered disciplinary record, partly justified and partly not. Muhammad’s first
disciplinary sanction came on October 21, 2009, less than six months after she had first
been hired, when she was “counsel[ed]” 1 for failing to follow Detention Center protocol
in responding to an aggressive inmate. Dkt. 57 Ex. B.

1

“Counseling” is the lowest level of discipline in the Detention Center’s progressive discipline
policy. See Dkt. 57 Exs. B to I (“Corrective Action Record[s]”).

2

On November 1, 2009, Muhammad received a five-day suspension 2 for failing to
properly supervise a group of inmates in her charge. This suspension appears to have
been unjustified, however, as Muhammad was required to supervise twice as many
inmates (sixteen) as was required of other staff members, who supervised eight,
according to Detention Center policy or practice. Moreover, Muhammad’s supervisor
faulted her for entering an inmate’s room and nearly shutting the door behind her, though
Muhammad asserts that the door was “nowhere near closed.” Muhammad Dep. (Dkt. 59
Ex. 1) 126:21. Muhammad asked her supervisor for “either proper training or assistance”
in supervising so many inmates, explaining that she felt “overlook[ed] and not utilized”
to the full extent of her ability. Dkt. 57 Ex. C. Apparently her request went unheeded.
On December 16, 2009, Muhammad was counseled for failing to correctly
perform an assignment. Specifically, Muhammad was given a bag of potato chips to pass
around as a reward to a group of inmates. Instead, Muhammad poured out some of the
chips for herself, ate them, and, as it was the end of her shift that day, left the Detention
Center without distributing the chips to the inmates.
On June 8, 2010, Muhammad received a “1st Written Warning” for leaving an
inmate in his room while she escorted others to the cafeteria, a violation of Detention
Center policy in several respects. Dkt. 57 Ex. E.

2

Suspension is the highest level of discipline short of termination in the Detention Center’s
progressive discipline policy. See Dkt. 57 Exs. B to I. Why Muhammad’s discipline was
immediately raised to this level does not appear from the record.

3

On October 5, 2011, Muhammad received a second “1st Written Warning” for her
frequent lateness in arriving at work. Dkt. 57 Ex. F. Muhammad’s attendance record
reflected that she had been late to work six times in thirty days.
On November 14, 2013, Muhammad received a “2nd Written Warning”
(technically, Muhammad’s third written warning), Dkt. 57 Ex. G, for her conduct on
November 9, 2014. On that day, a group of people arrived at the Detention Center to
attend a scheduled program. Muhammad was unaware of any scheduled program and
unable to confirm such with on-duty Detention Center staff. Muhammad asked “Ms.
Williams,” apparently one of Muhammad’s supervisors, Muhammad Dep. (Dkt. 59 Ex. 1)
149:1, whether Muhammad should call the Detention Center employee responsible for
programming to inquire, though the employee was off duty that day and at home
mourning the recent death of a family member. “Ms. Williams” replied that Muhammad
should place the call. That instruction contravened a September 3, 2013, directive from
the Detention Center that “Central Control Staff should not call staff for any reason.”
Dkt. 57 Ex. G. Muhammad called the employee and discovered the program had been
canceled. Sometime thereafter, Muhammad’s phone call was characterized—
inaccurately, says Muhammad—by the employee and a member of the clergy assisting
the employee as “abrasive and overbearing . . . .” Muhammad Dep. (Dkt. 59 Ex. 1)
147:15. The same day, November 9, 2013, Muhammad reportedly also did not permit a
“Supervisory Staff” person to “leave the floor to allow an employee to have their lunch
break[,]” and inquired with a supervisor whether “there was schedule flexibility because
‘a staff was not following the schedule.’” Dkt. 57 Ex. G. It does not appear from the
4

record how this conduct constituted violations of Detention Center policy, as charged in
the November 14, 2013, “2nd Written Warning.” Id. When Muhammad signed the
written notice of the warning, she wrote “under duress” by her signature. Id.
On December 3, 2013, Muhammad received a one-day suspension for using an
“insubordinate” “tone” with her supervisor which the supervisor thought “display[ed]
malicious intent.” Dkt. 57 Ex. H. On Friday, November 22, 2013, Muhammad had
arranged with a colleague who worked the night shift for the colleague to work longer
than scheduled on the following morning to cover for Muhammad, who worked the day
shift, while she took her daughter to a doctor’s appointment. In exchange, Muhammad
agreed to stay later the same evening, so that the colleague could come in later than usual.
Muhammad’s supervisor e-mailed the colleague to confirm their arrangement, and then emailed Muhammad, allegedly falsely claiming that the colleague “will only be able to
stay an hour” past the end of her shift, until 6:30 a.m. Id. Muhammad replied, “That is
fine sir, I will call off and she [the colleague] can be mandated[,]” id., that is, required by
the Detention Center to stay up to four hours past the end of her shift in the absence of
other available employees to relieve her. Muhammad Dep. (Dkt. 59 Ex. 1) 134:12–15.
Muhammad’s supervisor interpreted “[t]he tone of [her] response above [to be]
insubordinate and [to] display[] malicious intent.” Dkt. 57 Ex. H. When Muhammad
signed the written notice of her suspension, she added the words, “This is harrassment.”
Id. (sic).
Muhammad’s perception of duress and harassment was tied to the fact that she had
filed at least one charge of discrimination with the Indianapolis office of the Equal
5

Employment Opportunity Commission (EEOC) in 2013. Muhammad viewed the
unjustified or disproportionate disciplinary actions of November 14, 2013, and December
3, 2013, as the Detention Center’s retaliation against her for contacting the EEOC in
2013.
Muhammad continued to experience what she viewed as harassment. On February
5, 2014, Muhammad observed a coworker, “Mr. Mills,” “being inappropriate towards [a]
girl” at the Detention Center’s reception desk. Muhammad Dep. (Dkt. 59 Ex. 1) 80:24–
81:4. After speaking with a supervisor, Muhammad submitted a written report of the
incident on February 6, 2014. In an e-mail to Detention Center management on March
16, 2014, Muhammad described what happened next:
When I return[ed] back to work on February 10 or 11, 2014
the person whom [supervisors] wrote up walk[ed] pass
control [where Muhammad was working] and hit the window
with force and stood there staring at me[. H]e then took a few
steps again hitting the window with force[.] I felt as though
he was trying to intimidate me and his behavior afterward
[was] harassing.
Dkt. 59 Ex. 4. Muhammad’s frustrations prompted her plea for help:
[I]n my 40 plus years of working I have never felt so
disrespected or mistreated; my spirits are broken and I can’t
seem to find my way back[.] I am both emotionally and
mentally drain[ed] and before it becomes any more physical I
know for certain I need help (therapy). Any[one’s] assistance
is needed.
Id. It does not appear that Muhammad received any assistance from the Detention Center
or its staff in response to this request.

6

Muhammad’s final disciplinary citation was dated May 5, 2014 (“the May 5
disciplinary record”). Unlike the previous instances summarized above, this record was
not signed either by Muhammad or her supervisor. It consists of three violations of
Detention Center policy; none of the allegations was accurate, says Muhammad. The first
allegation related to a complaint, dated April 29, 2014, submitted by a Detention Center
employee describing Muhammad’s unacceptable conduct on April 27, 2014. Muhammad
allegedly had told the employee, “Yes, I have a problem and it’s you and anybody else
here trying to trying to tell me my job. I know my job very well.” Dkt. 57 Ex. J. The
second occurrence related to a complaint, dated April 30, 2014, describing Muhammad’s
conduct “on the date reported . . . .” Dkt. 57 Ex. K. On that day, Muhammad allegedly
said of a Detention Center employee in profane terms that she had a “MENTAL
PROBLEM!!” and “look[ed] like one of those people that make they self throw up!!” Id.
(sic passim). But Muhammad’s time sheet for that day reflects that she did not work on
April 30, 2014. The third violation related to a complaint, dated May 7, 2014, describing
Muhammad’s conduct on May 5, 2014, the date appearing on Muhammad’s final
disciplinary record. That complaint alleged that Muhammad had been “rude,”
“disrespectful,” and “rough” with a Detention Center trainee. Dkt. 57 Ex. I.
The May 5 disciplinary record noted that, “[d]ue to the nature of the above
violations, [Muhammad’s] employment has been terminated effective immediately.” Dkt.
57 Ex. I. Muhammad, though at work on May 5 and 6, 2014, does not appear to have
learned of the May 5 disciplinary record or its contents on either of those days.
Muhammad was not at work on May 7 or 8, 2014. On May 9, 2014, Muhammad took
7

medical leave from the Detention Center to address her emotional health; Muhammad’s
physician and therapist recommended that she not return to work until May 23, 2014.
Also on May 9, 2014, Muhammad filed a new charge with the EEOC (“the May
charge”), alleging that the Detention Center had retaliated against her for filing her
previous EEOC charges by imposing the November 2013 and December 2013
disciplinary sanctions, and that she had been subjected to a hostile work environment
through the harassment of “Mr. Mills” and another coworker, “Mr. Powell.” Dkt. 57 Ex.
N.
The human resources director for the Detention Center scheduled a meeting with
Muhammad on May 8, 2014, to discuss “a matter of [her] inappropriate conduct while at
work.” Dkt. 57 Ex. M. Muhammad did not attend that meeting, however, because she had
been told it needed to be rescheduled. A second meeting was scheduled for May 14,
2014, but Muhammad was never informed of it and thus did not attend. On or about the
same day, Muhammad had her daughter deliver to the Detention Center certain
documents, including a letter from Muhammad’s physician recommending that
Muhammad take leave from work and time sheets showing that Muhammad had not been
at work on at least one of the dates mentioned in the May 5 disciplinary record. 3 On May

3

This implies that sometime between May 5 and May 14, 2014, Muhammad learned the contents
of the May 5 disciplinary record, but the designated evidence does not disclose precisely how or
when she did so. See Muhammad Dep. (Dkt. 59 Ex. 1) 158:10–159:25 (“I had sent someone to
take it up there, my documents showing that I wasn’t working. . . . I sent them the copy of the
doctor statement.”). Muhammad also testified that she personally delivered documents
authenticating her leave to the human resources director, id. at 112:22–113:13, but she could not
remember when. Id. at 113:2, 18–20.

8

14, 2014, the human resources director e-mailed Muhammad requesting again to meet
with her, but received no response. The staffer then mailed Muhammad a letter, dated
May 14, 2014 (“the termination letter”), noting that, “[a]s of May 15, 2014,” Muhammad
had not “appeared for a meeting or confirmed a meeting time.” Dkt. 57 Ex. M. The
termination letter notified Muhammad that her “employment with the Marion Superior
Court Juvenile Detention Center ha[d] been terminated effective May 15, 2014.” Id.
Muhammad cites the disciplinary record of another Detention Center employee,
LaKeshia Anderson (“Anderson”), 4 as similar in content and volume to hers. Over the
course of Anderson’s nearly three years of employment at the Detention Center,
Anderson received nine disciplinary sanctions for lateness and absenteeism,
unprofessional and profane language, and dishonesty in connection with a work-related
injury and the Detention Center’s accommodation of it. On January 23, 2015, Anderson
was scheduled to meet with the human resources director and Anderson’s supervisor
(who had also been Muhammad’s supervisor). The intention was to fire Anderson at that
meeting, but she did not attend, having disclosed to the human resources director the
previous day that she would not attend the meeting nor return to the Detention Center.
When Anderson did not appear for her regularly scheduled shifts on January 24 and
January 25, 2015, the Detention Center concluded based on her “no call[]/no show[s]”
that Anderson had quit. Dkt. 61 Ex. R ¶ 10. Anderson did not suffer from any disability

4

Anderson’s first name is also given as “Lakeshia” and as “Lakeisha,” sometimes in the same
document. See, e.g., Dkt. 59 Ex. 6, at 6.

9

and did not file any EEOC charges during or after her employment at the Detention
Center.
On July 23, 2014, Muhammad filed another charge with the EEOC (“the July
charge”). Therein she reiterated the allegation set out in the May charge that she had been
subjected to a hostile work environment by the harassment of “Mr. Mills,” and newly
alleged that she had been fired while on disability leave in retaliation for past complaints,
including the May charge. The EEOC issued Muhammad a right-to-sue notice on the July
charge on June 30, 2015. On September 23, 2015, Muhammad filed her complaint in this
Court, alleging that her firing was unlawful retaliation for protected activity under Title
VII and unlawful discrimination on the basis of disability under the ADA. The Detention
Center moved for summary judgment on April 17, 2017. The motion is now fully briefed
and ripe for decision.
Standard of Decision
Summary judgment is appropriate where there are no genuine disputes of material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A court must grant a motion for
summary judgment if it appears that no reasonable trier of fact could find in favor of the
nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986). We neither weigh the evidence nor evaluate
the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences
flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip,
573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).
10

Analysis
We take up Muhammad’s Title VII retaliation claim first, followed by her ADA
discrimination claim.
I.

Title VII Retaliation
As an initial matter, both parties agree in terms of the timeliness issue, that

Muhammad’s Title VII claim necessarily relates to the July charge. 5 Further, both parties
agree that the claim must be limited to matters newly alleged in the July charge, thereby
excluding allegations in the July charge that duplicated the May charge. Ervin v. Purdue
Univ. Calumet, No. 2:09-cv-136, 2010 WL 3021521, at *4 (N.D. Ind. July 28, 2010)
(timely suit on EEOC charge may not simply restate allegations of earlier, time-barred
EEOC charge). Accordingly, Muhammad is not entitled to recover for any retaliation
against her based on claims that she was harassed by her coworkers “Mr. Mills” and “Mr.
Powell,” or received unjustified disciplinary sanctions in November 2013 and December
2013. Def.’s Br. Supp. Mot. Summ. J. (Dkt. 56) 6. Muhammad’s claim thus reflects only
her May 2014 firing as support for her retaliation claim. Pl.’s Br. Opp. Mot. Summ. J.
(Dkt. 58) 8. We limit our analysis accordingly.
Title VII prohibits an employer from retaliating against an employee for
complaining of employment practices made unlawful by Title VII. 42 U.S.C. § 2000e-

5

A Title VII action must be filed within 90 days of receiving a right-to-sue notice from the
EEOC. 42 U.S.C. § 2000e-5(f)(1); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 849–50 (7th
Cir. 2001). Muhammad received a right-to-sue notice on the May charge on July 16, 2014. This
lawsuit was filed on September 23, 2015, more than 90 days later. Any action on the May charge
is therefore foreclosed as untimely.

11

3(a). “[A] plaintiff may prove a retaliation claim through either the direct or indirect
methods of proof,” Poullard v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016), on the
understanding that these methods of proof are just that—“just means to consider whether
one fact . . . caused another”—without establishing “different legal standards.” Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 763, 765 (7th Cir. 2016). “Muhammad proceeds
under the direct method to establish retaliatory discharge[,]” Pl.’s Br. Opp. 8, that is,
without the aid of the burden-shifting framework created by McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Ortiz, 834 F.3d at 766.
Under the direct method, Muhammad must show that “(1) [s]he engaged in
protected activity, (2) [s]he suffered an adverse employment action, and (3) there was a
causal connection between the two.” Poullard, 829 F.3d at 856. The Detention Center
concedes the first two elements: Muhammad’s filing of the May charge was protected
activity and Muhammad’s May 2014 firing was an adverse employment action. Def.’s
Br. Supp. 6. But, argues the Detention Center, “the two are not related” occurrences, and
no reasonable trier of fact could find a causal connection between them on this record. Id.
at 6–7.
To prove a causal connection “requires ‘proof that the desire to retaliate was the
but-for cause of the challenged employment action[,]’” Ferrill v. Oak Creek-Franklin
Joint Sch. Dist., 860 F.3d 494, 501 (7th Cir. 2017) (quoting Univ. of Tex. Sw. Med. Ctr. v.
Nassar, —U.S.—, 133 S. Ct. 2517, 2528 (2013)); in other words, proof that the adverse
employment action would not have occurred in the absence of the desire to retaliate.
Nassar, 133 S. Ct. at 2525. Like any fact, causation may be proved by direct or
12

circumstantial evidence, alone or in combination, Sylvester v. SOS Children’s Vills. Ill.,
Inc., 453 F.3d 900, 903 (7th Cir. 2006), and such evidence is to be evaluated on equal
terms. Ortiz, 834 F.3d at 765. Even individually weak or ambiguous pieces of
circumstantial evidence may be sufficient proof when assembled to form a “convincing
mosaic” of retaliation. Ortiz, 834 F.3d at 764; Sylvester, 453 F.3d at 903.
But, “absent a ‘cat’s paw’ theory of liability[,]” 6 Johnson v. Gen. Bd. of Pension &
Health Benefits of United Methodist Church, 733 F.3d 722, 733 (7th Cir. 2013), even the
most convincing circumstantial evidence necessarily fails to support a retaliation claim
unless it permits a reasonable inference that the employer’s decision-maker on the
adverse employment action had actual, not constructive, knowledge of the employee’s
protected activity. Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004). In other
words, “an employer cannot retaliate [against an employee for complaining] when it is
unaware of any complaints.” Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th
Cir. 2000).
Here, the record before us does not directly establish or permit a reasonable
inference that the Detention Center’s decision-maker on Muhammad’s firing had any
knowledge of the May EEOC charge. Indeed, the record does not directly establish who
the actual decision-maker was, though the termination letter was signed by the Detention

6

“Cat’s paw” liability may attach to the employer where an innocent decision-maker “acts as a
conduit for [a] non-decisionmaker’s bias” or other impermissible motive. Byrd v. Ill. Dep’t of
Pub. Health, 423 F.3d 696, 709 (7th Cir. 2005), abrogated on other grounds by Glickenhaus &
Co. v. Household Int’l, Inc., 787 F.3d 408, 425 n.12 (7th Cir. 2015). Muhammad has raised no
such theory and we perceive in the record no grounds for doing so.

13

Center’s human resources director, who averred that she “overs[aw] and [was]
responsible for human resource matters” for the Detention Center. Dkt. 61 Ex. R ¶ 3.
No matter the identity of the decision-maker, the Detention Center points to the
fact that the May 5 disciplinary record purported to terminate Muhammad’s employment
“effective immediately” on May 5, 2014, Dkt. 57 Ex. I, four days before Muhammad
filed the May charge on May 9, 2014. Of course, an employer cannot reasonably be
believed to have retaliated against an employee for an act she had not yet done. As
Muhammad suggests, Pl.’s Br. Opp. 11, from the course of events between May 5, 2014,
and May 15, 2014, and particularly from the fact that the termination letter, dated May
14, 2014, purported to “terminate[]” Muhammad’s employment “effective May 15,
2014[,]” Dkt. 57 Ex. M, a reasonable fact-finder could conclude that the Detention Center
did not actually fire Muhammad on May 5, 2014. But Muhammad does not dispute that
the May 5 disciplinary record embodied the Detention Center’s settled decision to fire
Muhammad, four days prior to the date on which she filed the May charge. 7
In any event, none of the designated evidence suggests that any Detention Center
staff person, not to mention the actual decision-maker regarding Muhammad’s firing
(whoever she may be), knew of the May charge before May 15, 2014, 8 the terminus ante

7

The unrebutted evidence establishes, as explained further below, that the Detention Center
similarly reached the decision to fire Anderson days before making her termination effective,
attempting to schedule a meeting with her during the interim.
8

It may be speculated that someone at the Detention Center was informed of the May charge
before May 15, 2014, as employers are statutorily entitled to notice of an EEOC charge filed
against them within 10 days of filing. Edelman v. Lynchburg College, 535 U.S. 106, 119 (2002)
(citing 42 U.S.C. §§ 2000e-5(b), (e)(1)). And, more specifically, it may be speculated that the
decision-maker on Muhammad’s firing was informed of the May charge by this means. But
14

quem of the Detention Center’s settled decision to fire Muhammad. 9 Nothing in the
termination letter suggests that the human resources director was aware of the May
charge. Nothing in the excerpts of Muhammad’s deposition designated by either party
suggests that Muhammad delivered a copy of the May charge to the Detention Center
after beginning her leave or otherwise made anyone at the Detention Center aware that
she had filed or was planning to file the May charge. No reasonable trier of fact,
therefore, could find on this record that the Detention Center’s decision-maker on
Muhammad’s firing had actual knowledge of Muhammad’s filing the May charge before
she was fired. 10
Even assuming the Detention Center had actual knowledge of the May charge,
however, Muhammad’s retaliation claim still cannot survive summary judgment.
“Without direct evidence of causation, 11 [Muhammad] must rely on circumstantial

because “the jury may not render a verdict based on speculation or guesswork[,]” Bigelow v.
RKO Radio Pictures, 327 U.S. 251, 264 (1946), “guesswork and speculation are not enough to
avoid summary judgment.” Hutt v. AbbVie Prods. LLC, 757 F.3d 687, 692 (7th Cir. 2014)
(quotations omitted).
9

The termination letter is dated May 14, 2014, but notes that, “[a]s of May 15, 2014,”
Muhammad had not appeared for scheduled meetings or rescheduled them. Dkt. 57 Ex. M. One
of the two dates must be mistaken: if the letter was written on May 14, its author could not know
the situation as of May 15. A reasonable fact-finder could conclude that the termination letter
was written on May 15, 2014, and simply misdated.
10

Neither party fully addresses this material fact head on. The Detention Center argues only that
its decision-maker “could not have had actual knowledge of the protected activity because it had
not yet happened” on May 5, 2014. Def.’s Br. Supp. 8. In response, Muhammad asserts only that
she was not in fact fired until May 15, 2014. Pl.’s Br. Opp. 10. Even so, raising the issue of
actual knowledge leads inevitably to our conclusion here.
11

“[D]irect evidence ‘essentially requires an admission by the decision maker that his actions
were based on the prohibited animus’ and so is rarely present.” Culver v. Gorman & Co., 416
F.3d 540, 545 (7th Cir. 2005) (quoting Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir.
2003). It is not present here.

15

evidence like suspicious timing, ambiguous statements, treatment of similarly-situated
employees, and any other relevant information that could permit an inference of
retaliation.” Burton v. Bd. of Regents, 851 F.3d 690, 697 (7th Cir. 2017); Castro v. DeVry
Univ., Inc., 786 F.3d 559, 565 (7th Cir. 2015) (suspicious timing, different treatment of
similarly situated employees, pretextual reasons for adverse employment action).
Muhammad points to three pieces of such evidence; none is persuasive, singly or in
combination.
Muhammad points first to the close temporal proximity of her filing the May
charge on May 9, 2014, and her firing on May 15, 2014. We agree that, in a vacuum, a
mere six-day gap between protected activity and adverse employment action could raise
an inference of causative retaliatory motive. “The closer two events are, the more likely
that the first caused the second.” Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315
(7th Cir. 2011). But the evidence is not to be evaluated in a vacuum, Kidwell v.
Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012) (“determination ‘depends on context’”
(quoting Loudermilk, 636 F.3d at 315)), and the ultimate question is not whether the
timing is close, but whether the timing is suspicious, that is, whether it “contributes to an
inference of causation.” Culver v. Gorman & Co., 416 F.3d 540, 547 (7th Cir. 2005).
The period from May 9, 2014, to May 15, 2014, cannot, on this record, reasonably
be taken as discrete, self-contained, and unconnected to any prior events. Rather, it can
only reasonably be taken as the final scene in a drama that began, at the latest, on
December 3, 2013, when Muhammad received her second suspension (after three written
warnings) for violating Detention Center policy, opening the door to the severest sanction
16

in the Detention Center’s progressive discipline policy, termination. Further, even if we
were to accept that Muhammad was not in fact fired on May 5, 2014, the May 5
disciplinary record permits no other inference than that its author thought that
Muhammad’s firing was warranted on that day “[d]ue to the nature of the violations”
alleged therein. Dkt. 57 Ex. I. Compare Casna v. City of Loves Park, 574 F.3d 420, 427
(7th Cir. 2009) (suspicious timing sufficient to create triable issue in “extreme case”
where termination recommended “the very day after” employee engaged in protected
activity (emphasis added)). Finally, the human resources director attempted to meet with
Muhammad on May 8, 2014, to discuss “a matter of [her] inappropriate conduct while at
work[,]” Dkt. 57 Ex. M, and made two additional attempts to meet with Muhammad
thereafter.
In light of the long-running process that led to Muhammad’s firing, any reasonable
inference that the May charge was the but-for cause of Muhammad’s firing which a factfinder might draw from their close temporal proximity would be particularly weak.
Because Muhammad’s other evidence, as explained below, raises no reasonable
inferences of retaliation, her suspicious-timing evidence must stand on its own. But it is
well established that “mere temporal proximity . . . will rarely be sufficient in and of
itself to create a triable issue.” Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d
640, 644 (7th Cir. 2002). So isolated and deprived of external support, Muhammad’s
suspicious-timing evidence is by itself insufficient to create a triable issue on causation.
Muhammad points next to Anderson, whom Muhammad asserts to be a similarly
situated Detention Center employee who did not file an EEOC charge against the
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Detention Center or engage in other activity protected under Title VII, and who was
treated more favorably than Muhammad. Though “our case law does not provide any
‘magic formula for determining whether someone is similarly situated[,]’” Humphries v.
CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007) (Section 1981 claim) (quoting
Chavez v. Ill. State Police, 251 F.3d 612, 636 (7th Cir. 2001) (equal protection claim)),
and instead “emphasize[s] that the . . . inquiry is a flexible one that considers ‘all relevant
factors, the number of which depends on the context of the case[,]’” id. (quoting Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000) (ADEA claim)), we need not
engage in such a fine-grained inquiry here, for it is clear that Anderson did not in fact
receive more favorable treatment than Muhammad.
The Detention Center’s unrebutted evidence reveals that, on January 22, 2015,
Anderson was slated for termination due to poor performance and violations of Detention
Center policy at a meeting scheduled for January 23, 2015. Anderson informed the
human resources director that she would not attend the meeting and would not return to
the Detention Center. When Anderson showed up neither for the meeting nor her next
two regularly scheduled shifts, the Detention Center deemed her to have quit. The mere
fact that the end of Anderson’s employment at the Detention Center was recorded and
characterized as a “Voluntary Separation,” Dkt. 59 Ex. 6, at 2, as opposed to a
termination, see Pl.’s Br. Opp. 11, cannot be characterized as treatment more favorable
than Muhammad received. There is no evidence that Anderson was informed of her
pending firing beforehand or permitted the option to quit rather than be fired. As noted
above, Muhammad does not contest that the Detention Center had decided to fire
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Anderson before Anderson quit. Accordingly, Anderson’s case cannot “help[] isolate the
critical independent variable”—Muhammad’s protected activity—and so does not raise
an inference of retaliation. Humphries, 474 F.3d at 405.
Muhammad points finally to the allegedly pretextual grounds given by the
Detention Center for her firing. Title VII “does not require employers to have ‘just cause’
for sacking a worker, but an employer who advances a fishy reason takes the risk that
disbelief of the reason will support an inference that it is a pretext” for retaliation.
Loudermilk, 636 F.3d at 315 (citation omitted). Pretext is “a dishonest explanation, a lie
rather than an oddity or an error.” Kidwell, 679 F.3d at 969 (citation and quotations
omitted). Nothing in the record, taken as a whole, permits the inference that the Detention
Center’s stated reasons for imposing disciplinary sanctions on Muhammad, up to and
including her termination, were dishonest explanations.
Muhammad contends that her firing rested entirely on the incidents described in
the May 5 disciplinary record, and that two of those incidents could not have occurred as
described because Muhammad was not at work on the dates the two incidents were
alleged to have occurred. This is incorrect in two respects. First, Muhammad’s own
designated evidence (her time sheets for the relevant days) reveal that she was at work for
two, not one, of the three dates reported. 12 Second, more importantly, in the context of

12

The first allegation was reported on April 29, 2014, a day Muhammad was not at work,
describing Muhammad’s conduct on April 27, 2014, a day Muhammad was at work. The second
allegation was reported on April 30, 2014, a day Muhammad was not at work, describing
Muhammad’s conduct “on the date reported . . . .” Dkt. 57 Ex. K. The third allegation was
reported on May 7, a day Muhammad was not at work, describing Muhammad’s conduct on May
5, 2014, a day Muhammad was at work.

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the Detention Center’s progressive discipline policy, Muhammad’s firing did not rest
solely on the three incidents described in the May 5 disciplinary record. Rather, it was the
culmination of two counselings, three written warnings, and two suspensions over the
course of her five-year employment.
Muhammad disputes the accuracy of the factual bases for some (though not at all)
of these sanctions, but that is not the material question. “[I]t is not relevant whether [the
employee] actually was insubordinate [or otherwise violated her employer’s policies]. All
that is relevant is whether [her] employer was justified in coming to that conclusion.”
McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 799 (7th Cir. 1997); Culver, 416 F.3d at
547 (“[T]he issue before us is not whether an employer’s evaluation of the employee was
correct but whether it was honestly believed. . . . [It] can be ‘foolish or trivial or even
baseless’ . . . .” (citation omitted)). Muhammad may be correct to attack the veracity of
her supervisors’ and colleagues’ reports against her, but she does not point to any
evidence that raises a reasonable inference that Detention Center staff did not honestly
believe Muhammad to have violated Detention Center policy on those occasions when
she was cited for doing so.
As to the May 5 disciplinary record specifically, the three allegations made therein
are all supported by detailed accounts of Detention Center employees. Dkt. 57 Exs. J to
L. It is true that one of the accounts purports to report conduct on a day on which
Muhammad was not at work. Id. Ex. K. That account is therefore either a fabrication, or
misdated. Muhammad points to no evidence suggesting that the Detention Center’s

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apparent rejection of the former conclusion indicates less than honest belief in the overall
veracity of its contents.
In sum, Muhammad has not shown that the Detention Center’s decision-maker on
her firing had actual knowledge of the May charge before deciding to fire her. Even
assuming the contrary, Muhammad has failed to point to evidence of a similarly situated
employee receiving more favorable treatment or of pretextual grounds for her firing. The
close temporal proximity of her firing to her filing the May charge, when put in context,
raises no triable issue on its own. For these reasons, the Detention Center is entitled to
judgment in its favor on Muhammad’s Title VII retaliation claim.
II.

ADA Discrimination
“The ADA prohibits employers from discriminating against disabled employees

because of their disability.” Dickerson v. Bd. of Trs., 657 F.3d 595, 600 (7th Cir. 2011)
(citing 42 U.S.C. § 12112(a)). As under Title VII, the interpretation of which guides
interpretation of the ADA, id., a plaintiff may make out a discrimination claim under the
ADA by proceeding under the direct or indirect methods of proof. Id. at 601.
Under the indirect method, established, as noted above, by McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), see Ortiz v. Werner Enters., Inc., 834 F.3d 760, 766
(7th Cir. 2016) (noting continuing viability), a plaintiff employee must first show a prima
facie case of discrimination. Dickerson, 657 F.3d at 601. The burden of production then
shifts to the employer to identify a nondiscriminatory reason for its treatment of the
employee. Id. The burden then returns to the employee to show that the employer’s
reason is pretextual. Id.
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The elements of the employee’s prima facie case are that “(1) [s]he is disabled
under the ADA; (2) [s]he was meeting [her] employer’s legitimate employment
expectations; (3) [s]he suffered an adverse employment action; and (4) similarly situated
employees without a disability were treated more favorably.” Id. Here, the Detention
Center does not contest that Muhammad was disabled within the meaning of the ADA
during her employment at the Detention Center, or that Muhammad suffered an adverse
employment action when she was fired. But the Detention Center denies that Muhammad
was meeting its legitimate employment expectations, and that similarly situated but
nondisabled persons were treated more favorably.
We agree with the Detention Center that Muhammad has not shown she was
meeting its legitimate employment expectations. On this point, Muhammad incorporates
her arguments on pretext under her Title VII retaliation claim. Pl.’s Br. Opp. 15 (“Th[e]
argument [on legitimate employment expectations for] Plaintiff’s prima facie case is
often tied to the argument on pretext.” (citing Johnson v. City of Fort Wayne, 91 F.3d
922, 936 (7th Cir. 1996)). For the reasons stated under Part I supra, however, in view of
Muhammad’s lengthy disciplinary history, and particularly the three incidents described
in the May 5 disciplinary record, there is no evidence as would raise the inference that the
Detention Center honestly believed Muhammad was meeting its employment
expectations, and advanced her failure to do so only as a pretextual cover for an
impermissible motive. Muhammad’s prima facie case therefore fails on this element.
Moreover, for the reasons stated under Part I supra, we agree further with the
Detention Center that Anderson, Muhammad’s proffered comparator, was not in fact
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treated more favorably than Muhammad. Muhammad’s prima facie case therefore fails
on this element as well.
Muhammad points to no other direct or circumstantial evidence as might further
her claim under the direct method. See Dickerson, 657 F.3d at 601 (“Under the direct
method, a plaintiff can present either direct or circumstantial evidence to meet [her]
burden.”) Accordingly, for Muhammad’s failure to establish her case under either method
of proof, the Detention Center is entitled to judgment as a matter of law on her ADA
discrimination claim.
Conclusion
For the reasons above, we conclude that no reasonable trier of fact could find for
Muhammad on either of her claims on the basis of the record before us. Accordingly, the
Detention Center is entitled to judgment as a matter of law, and its motion for summary
judgment is therefore GRANTED.
Final judgment shall be entered by separate document. Fed. R. Civ. P. 58(a).
IT IS SO ORDERED.

Date:

12/7/2017

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution to counsel of record via CM/ECF

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