Lilley v. Waukesha County

Filing 85

ORDER signed by Judge J P Stadtmueller on 4/25/14: granting nunc pro tunc 54 Plaintiff's Motion for Leave to File a surreply brief; granting 24 Defendant's Motion for Summary Judgment; and, denying as moot 56 and 58 the parties' Motions in Limine. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALYCE LILLEY,
Plaintiff,
v.

Case No. 13-CV-441-JPS

WAUKESHA COUNTY,

ORDER
Defendant.
1.

BACKGROUND
Plaintiff Alyce Lilley (“Lilley”) brings claims of racial discrimination

and retaliation against her employer, Waukesha County (located in the
State of Wisconsin), under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e, et seq. (“Title VII”) and 42 U.S.C. § 1981 (“Section 1981").
(Docket #6).
In particular, Lilley claims that Kathleen Madden (“Madden”), the
Clerk of Circuit Court in the Waukesha County Court System (“WCCS”),
failed to promote her in 2011 to the position of Civil Division Manager
because: (i) Lilley is African-American (Docket #6, ¶¶ 13, 72 and 90); and (ii)
Lilley filed charges of racial discrimination and retaliation against WCCS in
2006 and 2007 with the State of Wisconsin’s Division of Equal Rights (“ERD”)
(cross-filing the same with the U.S. Equal Employment Opportunity
Commission (“EEOC”)) and participated in the EEOC’s investigation of her
2007 charges, see (Id. at ¶¶ 40-46 and 79-81). (Id. at ¶¶ 59, 72, 83, 90, and 95).1

1

In accordance with the parties’ stipulation (Docket #22), the Court
dismissed the balance of the claims set forth in Lilley’s amended complaint (Docket
#6). (Docket #32).

Waukesha County moves for summary judgment on all of Lilley’s
claims. (Docket #24).
2.

FACTS
2.1

Lilley’s Career Path at WCCS

In July of 1998, Lilley was hired as a “Deputy Clerk Supervisor” in the
Clerk of Courts’ Criminal/Traffic Division. (Docket #44, ¶ 4). Approximately
seven years later, this position – while remaining within the Clerk of Courts’
Criminal/Traffic Division – was re-titled “Circuit Court Supervisor.” (Docket
#44, ¶ 5).
On February 18, 2014, Waukesha County “promoted” Lilley to the
position of “Circuit Court Coordinator.” (Docket #35, p.4, n.1).
At all times relevant to this case, Lilley was the only African-American
supervisor or manager working in WCCS. (Docket #49, ¶ 1).
2.2

2006 and 2007: ERD and EEOC Charges

In 2006, Lilley was denied a promotion to the position of “Chief
Deputy Clerk” in the Clerk of Courts’ Criminal/Traffic Division. (Docket #49,
¶ 14). A white applicant was chosen instead. (Id.).2
On or about May 9, 2006, Lilley filed charges of racial discrimination
and retaliation against Waukesha County with the ERD (Case No.
CR200601512) and EEOC (Case No. 26GA601051). (Docket #44, ¶ 122).
Lilley’s ERD complaint was withdrawn on July 9, 2007. (Id.). Then, on August
8, 2007, the EEOC issued a Dismissal and Notice of Rights. (Id.)

2

The facts in this paragraph are recounted solely for purposes of
contextualizing Lilley’s claims that her 2011 promotion denial was retaliation for
her 2006 ERD and EEOC charges. See n.1, supra.

Page 2 of 18

In 2007, Lilley applied to transfer laterally into the Civil Division.
(Docket #49, ¶ 21). Her request was denied. (Id. at ¶ 22). A white applicant
was chosen instead. (Id. at ¶ 5b).3
Later in 2007, Lilley filed a second round of complaints—again
charging

racial

discrimination

and

retaliation

against

Waukesha

County—with the ERD and EEOC. (Docket #44, ¶ 123). Lilley eventually
stopped pursuing recourse through the ERD and, on September 27, 2012, the
EEOC issued a determination finding probable cause of discrimination and
retaliation. On January 22, 2013, the EEOC issued a Notice of Right to Sue
(Case No. 26C200701298). (Id.).
2.3

2011 Promotion Denial

On or about May 2, 2011, Madden posted a job opening for the
position of Civil Division Manager. (Docket #44, ¶ 35). The following day,
Lilley applied for the position. (Id. at ¶ 38).
On July 26, 2011, Madden advised Lilley that Madden would not
consider Lilley for the Civil Division Manager position because of: (i) Lilley’s
“clear lack of initiative to prepare herself for promotional opportunities”
outside of the Criminal/Traffic Division; and (ii) Lilley’s “several ongoing
performance issues and personnel concerns” which included: (a) sending
“inappropriate” e-mails on September 24, 2010, and June 29, 2011; (b)
failing to complete subordinates’ annual performance evaluations in a

3

The facts in this paragraph are recounted solely for purposes of
contextualizing Lilley’s claims that her 2011 promotion denial was retaliation for
her 2007 ERD and EEOC charges. See n.1, supra.

Page 3 of 18

timely manner; and (c) doing homework “on County time and on County
equipment.” (Docket #28, ¶¶ 21-28); (Docket #44, pp. 26-27).4
The Civil Division Manager position was re-posted “on August 15,
2011, as a Chief Deputy Clerk, with a possibility of under-filling the position
at the newly-created Circuit Court Coordinator level.” (Docket #44, ¶ 76).5
Approximately two days later, Lilley submitted an application and resume
for the re-posted position. (Docket #44, ¶ 80).
Although “aware that Ms. Lilley re-submitted an application on or
about August 17, 2011,” Madden declined to reconsider Lilley’s candidacy
because Madden “did not note any notable improvement in Lilley’s
performance.” (Docket #28, ¶ 35).6
On or about December 2, 2011, Madden selected Brenda Kowalczyk
(who is white, not African-American) for the position Lilley sought. (Docket
#44, ¶ 89); (Docket #49, ¶ 5e).
2.4

2012 EEOC Charges

On or about May 9, 2012, Lilley filed charges of racial discrimination
and retaliation with the EEOC (Case No. 443-2012-01054) relating to the 2011
promotion denial. (Docket #44, ¶ 124). On May 2, 2013, the EEOC issued
Lilley a Notice of Right to Sue in respect of her charges. (Docket #6, ¶ 64);
(Docket #8, ¶ 64).

4

Lilley admits only that this is what occurred at the meeting.

5

“While the titles were different, the same opening was being filled during
both postings.” (Docket #44, ¶ 78).
6

Madden’s justification, according to Lilley, is pretext.

Page 4 of 18

2.5

2012 Deposition in Bernadine Matthews’ Litigation

According to Lilley, the Waukesha County Human Resources
Department contacted her “in mid-July of 2011" about a request that she be
deposed in a racial discrimination case brought by Bernadine Matthews, a
former employee, against Waukesha County. (Docket #41-4, 5).7 Together
with that department, Lilley agreed upon a date for the deposition. See
(Docket #44, ¶ 127). Ultimately, Lilley’s deposition in the Matthews case
occurred on February 8, 2012. (Id. at ¶ 129).
3.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment 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 Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). “Material facts” are those under the applicable substantive
law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.
A dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. In
determining whether a genuine dispute of material fact exists, the court must
construe all reasonable inferences in favor of the non-movant. Lac Courte
Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th
Cir. 1983).

7

In response to Lilley’s declaration, Waukesha County highlights the
imprecision with which Lilley details the timing of the interaction. (Docket #49,
¶ 63).

Page 5 of 18

4.

ANALYSIS
4.1

Lilley’s Racial Discrimination Claims

Title VII prohibits employers from discriminating based on
“race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e–2(a). Section 1981 focuses on the right to be free of
racial discrimination in the making and enforcing of contracts.
As [the Seventh Circuit] ha[s] noted before, “the methods of
proof and elements of [a Section 1981] case are essentially
identical” to those in a Title VII case. McGowan v. Deere & Co.,
581 F.3d 575, 579 (7th Cir. 2009); see also Ellis v. CCA of Tenn.
LLC, 650 F.3d 640, 649 (7th Cir. 2011).
Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013).
To prevail under Title VII, a plaintiff must show three essential
elements: (i) that she is a member of a class protected by the statute; (ii) that
she has been the subject of some form of adverse employment action; and (iii)
that her employer took this adverse action on account of her membership in
the protected class. Id.
Here, it is undisputed that Lilley, an African-American, was denied a
promotion in 2011. Therefore, the first two elements are not genuinely in
dispute.
As for the third element, in particular, “[d]emonstrating that a plaintiff
has enough evidence to survive summary judgment…has become a complex
exercise.” Id. (citations omitted).
A plaintiff’s response to her employer’s motion for summary
judgment must identify initially whether the plaintiff is litigating her case
under a “direct” method of proof, an “indirect” method of proof, or both. Id.
Here, Lilley elects to proceed under both methods of proof. (Docket #35, 5).

Page 6 of 18

The real distinction between these two methods, however, is
not whether one relies solely on “direct” evidence (in the sense
of a smoking gun) and the other relies on circumstantial
evidence. The labels have become terms of art.
“Direct” proof includes both evidence explicitly linking an
adverse employment action to an employer's discriminatory
animus, see, e.g., Smith v. Wilson, 705 F.3d 674, 677 (7th Cir.
2013); Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir.
2011), and circumstantial evidence that would permit the trier
of fact to infer that discrimination motivated the adverse
action, see Diaz, 653 F.3d at 587.
…
Typical kinds of [circumstantial] evidence [] include “(1)
ambiguous statements or behavior towards other employees
in the protected group; (2) evidence, statistical or otherwise,
that similarly situated employees outside of the protected
group systematically receive better treatment; and (3) evidence
that the employer offered a pretextual reason for an adverse
employment action.” Diaz, 653 F.3d at 587.
Morgan, 724 F.3d at 995-996.
By contrast, “[t]he term ‘indirect method’ refers to a particular way of
using circumstantial evidence at the summary judgment stage. It was
pioneered by the Supreme Court 40 years ago in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” (Id. at 996).
In McGowan v. Deere & Co., the Seventh Circuit applied the McDonnell
Douglas burden-shifting framework to a plaintiff’s Title VII and Section 1981
failure-to-promote claims:
[The plaintiff] has to show that: (1) [s]he is a member of a
protected class; (2) [s]he was qualified for the applicable
positions; (3) [s]he suffered an adverse employment action; and
(4) similarly-situated persons not in the protected class were
treated more favorably. Fane v. Locke Reynolds, LLP, 480 F.3d
534, 538 (7th Cir. 2007). If [the plaintiff] can make out a prima
Page 7 of 18

facie case on these four factors, the burden of production shifts
to [the defendant] to offer a permissible, nondiscriminatory
reason for the adverse employment action. Id. If it can do so,
the burden then shifts back to [the plaintiff] to show that the
stated reason is merely a pretext for discrimination, i.e., a lie.
Id. The pretext analysis focuses on whether the reason was
honest and not whether it was accurate or wise. Barricks v. Eli
Lilly & Co., 481 F.3d 556, 560 (7th Cir.2007).
581 F.3d 575, 579 (7th Cir. 2009).
Here, rather than offer evidence explicitly linking Lilley’s 2011
promotion denial to a discriminatory animus (i.e., a “smoking gun”), Lilley
relies solely on circumstantial evidence. See (Docket #35).
To summarize, Lilley proceeds under both the direct method’s
circumstantial branch and the indirect method (which, as noted above, is
simply a particular way of using circumstantial evidence at the summary
judgment stage).
At bottom, the indirect method of proving racial discrimination
requires Lilley to show pretext. McGowan, 581 F.3d at 579. By contrast, under
the direct method’s circumstantial branch, evidence of pretext is not
compartmentalized. Morgan, 724 F.3d at 995-996. Given that Lilley offers
evidence to show pretext, the Court will first analyze Lilley’s claim under the
indirect method of proof.

Page 8 of 18

4.1.1

Racial Discrimination: Indirect Method of Proof8

As noted above in Section 2.3, on July 26, 2011, Madden advised Lilley
that Madden would not consider Lilley for the Civil Division Manager
position because of: (i) Lilley’s “clear lack of initiative to prepare herself for
promotional opportunities” outside of the Criminal/Traffic Division; and (ii)
Lilley’s “several ongoing performance issues and personnel concerns” which
included: (a) sending “inappropriate” e-mails on September 24, 2010, and
June 29, 2011; (b) failing to complete subordinates’ annual performance
evaluations in a timely manner; and (c) doing homework “on County time
and on County equipment.” (Docket #28, ¶¶ 21-28); (Docket #44, pp. 26-27);
Section 2.3, supra. Lilley seeks to portray Madden’s nondiscriminatory
explanations as pretext for prohibited animus.
The focus of the pretext inquiry is whether the proffered
reason is a lie. Id. That is, the question “is not whether the
employer's stated nondiscriminatory ground for the action of
which the plaintiff is complaining is correct but whether it is
the true ground of the employer's action rather than being a
pretext for a decision based on some other, undisclosed
ground.” Forrester v. Rauland–Borg Corp., 453 F.3d 416, 417 (7th
Cir.2006).
Smiley v. Columbia College Chicago, 714 F.3d 998, 1002-1003 (7th Cir. 2013).

8

Below, the Court finds that Lilley’s evidentiary showing in support of
pretext is too meager to defeat summary judgment. Therefore, the Court addresses
only this essential (and final) step in the McDonnnell Douglas burden-shifting
framework. See generally, Collins v. American Red Cross, 715 F.3d 994, 1000 (7th Cir.
2013) (Where “an employer has cited performance issues as the justification for its
adverse action, the performance element of the prima facie case cannot be
separated from the pretext inquiry.” Therefore, a court “may appropriately begin
with pretext.”) (citations omitted).

Page 9 of 18

With regard to initiative, Lilley argues that Madden was mistaken.9
However, arguing about the accuracy of Madden’s assessment “is a
distraction in the pretext context; the fact that a statement is inaccurate does
not mean that it is a deliberate lie.” Collins, 715 F.3d at 1000 (citation omitted).
“[P]retext does not exist if the decisionmaker honestly believed the
nondiscriminatory reason. This is because courts are not superpersonnel
departments charged with determining best business practices.” Stockwell v.
City of Harvey, 597 F.3d 895, 902 (7th Cir. 2010) (citations omitted) (emphasis
added).
By the same token, Lilley does not argue that Madden was aware of the
initiative efforts Lilley highlights. See, e.g., (Docket #35, 13); (Docket #36, ¶ 23); (Docket #41-4, ¶¶ 4-5 and 8-10). This dearth of evidentiary citation is all
the more impactful where, as here, Madden (as the Clerk of Court at the top
of the administrative pyramid) was not Lilley’s direct supervisor.10
With regard to the second half of Madden’s nondiscriminatory
explanation—Lilley’s “several ongoing performance issues and personnel

9

Lilley points to: (i) performance evaluations for years 2005 and 2009
generally commending Lilley’s “Quality of Work/Initiative” (Docket #37-5, 3) and
(Docket #44-1, 3); and (ii) Lilley’s own declaration stating that she completed: (a) a
bachelor’s degree in 2005; (b) a master’s degree whose “coursework was applicable
to [her] employment with Waukesha County” in 2012; (c) a “certification of court
management through the National Association of Court Management” in 2009; (d)
five particular days of court-sponsored educational workshops and training; (e) “a
Woman in Leadership Webinar and an Office Supply Approval Training”; as well
as (f) miscellaneous volunteering “in the Waukesha County community.” (Docket
#35, 13); (Docket #36, ¶ 2-3); (Docket #41-4, ¶¶ 4-5 and 8-10).
10

From February 2006 until her retirement in 2013, Diane Kelsner
(“Kelsner”) was the Chief Deputy Clerk of Circuit Court in the Criminal/Traffic
Division and Alyce Lilley’s immediate supervisor. (Docket #44, ¶ 9).

Page 10 of 18

concerns” which included: (a) sending “inappropriate” e-mails on September
24, 2010, and June 29, 2011; (b) failing to complete subordinates’ annual
performance evaluations in a timely manner; and (c) doing homework “on
County time and on County equipment.” (Docket #28, ¶¶ 21-28); (Docket
#44, pp. 26-27); Section 2.3, supra—Lilley offers three responses.
First, Lilley offers her “effective” and “greater than effective”
performance ratings in evaluations for years 2009 (and earlier) as evidence
that Madden could not have honestly believed (in July 2011) that Lilley
committed transgressions in 2010 and 2011. (Docket #49, ¶ 2); (Docket #35,
19).11
Second, Lilley argues that her white counterparts systematically
received better treatment with regard to discipline. (Docket #35, 6-7 and 10-

11

The substance of the e-mails is not disputed; rather, Lilley denies “any
inference” that her tone “was disrespectful or unprofessional.” (Docket #44, ¶ 41).
For example, Lilley’s e-mail to her direct supervisor (Kelsner) at 1:51 p.m. on June
29, 2011 (approximately one month before Madden denied Lilley’s application for
the 2011 promotion) reads: “What is this kindergarten? I feel like I am two years old
and can’t be trusted to do anything. Do we need to talk about my performance? I
made the changes and sent it to you for review, but will send to Kathy for her
review and final approval. Thanks,” (Id.). That e-mail elicited a rebuke from
Kelsner, to which Lilley replied that her 1:51 p.m. e-mail was “just kidding with
[Kelsner]” and intended to “joke with [her] a little bit.” (Id.)
As for Lilley’s alleged failure to complete subordinates’ annual performance
evaluations in a timely manner, Lilley offers only a bald denial in her opposition
brief. (Docket #35, 10).
Finally, in response to Madden’s testimony that Madden personally
“investigated Ms. Lilley’s personal drive and confirmed the saved homework” on
Lilley’s workplace computer (Docket #28, ¶ 28), Lilley points to Madden’s
admission that “there’s some limited ability during breaks and lunch that allows
[use of a work computer for personal reasons].” (Docket #49, ¶ 48). Notably, Lilley
does not state that her personal use was limited to only breaks and lunches. Id.

Page 11 of 18

12). For each category of transgression, Lilley cites examples of individuals
who committed the same violation but were not reprimanded for it. (Docket
#35, 10-12). Madden, however, explains that the coincidence of these several
performance concerns prompted her to formally address such concerns with
Lilley in 2011. (Docket #51, ¶ 15);(Docket #48, 5). Lilley cites no evidence of
a white counterpart coincidentally committing the same (or similar)
constellation of infractions. See (Docket #35, 10-12).
Third, Lilley’s opposition brief claims—without any citation to the
evidentiary record—that Lilley “was ‘disciplined’ for the first time in her career
only after she applied for the 2011 promotion and this occurred at the same
time that she was being told that she would not be considered for the
promotion.” (Docket #35, 6) (emphasis in original). Alas, Lilley’s affidavit
makes a more modest claim: that she was never discplined before by Kelsner
or Madden. (Docket #41-4, ¶ 22). No wonder then, that Lilley offers no reply
to an array of constructive criticism WCCS documented in some of Lilley’s
performance evaluations earlier during Lilley’s tenure at WCCS when
neither Kelsner nor Madden were supervising Lilley. Compare (Docket #48,
3) (e.g., from 2000 to 2003 (Docket #51-15, #51-16, and #51-18), constructive
criticism of Lilley included remarks (sometimes stated as “goals”) about:
acting as a team player, demeanor/temperament and timely completion of
performance evaluations of subordinates) with (Docket #54-1). Moreover,
Lilley’s claims of “suspicious timing” are also undermined by Lilley’s failure
to impeach Madden’s explanation that the coincidence of multiple
performance concerns prompted Madden to formally address such concerns
with Lilley in July 2011. See (Docket #35, 10-12); (Docket #51, ¶ 15); (Docket
#48, 5).
Page 12 of 18

With the benefit of the foregoing analysis and having considered the
evidentiary record, the Court finds that the evidence Lilley cites to cast
Madden’s nondiscriminatory explanations for the 2011 promotion denial as
pretext is simply too meager and thus unavailing to defeat summary
judgment.
4.1.2

Racial Discrimination: Direct Method of Proof

Rather than offer evidence explicitly linking Lilley’s 2011 promotion
denial to a discriminatory animus (i.e., a “smoking gun”), Lilley relies solely
on circumstantial evidence. See (Docket #35); Section 4.1, supra. When
discussing the “direct” method of proof’s circumstantial branch, the
“metaphor of a mosaic” is used frequently to capture “the commonsense
notion that individual pieces of circumstantial evidence that do not, in and
of themselves, conclusively point to discrimination might nevertheless be
sufficient to allow a trier of fact to find discrimination when combined.”
Morgan, 724 F.3d at 995-996.
Accordingly, Lilley attempts to construct a mosaic of circumstantial
evidence that would permit a trier of fact to infer that racial discrimination
motivated her 2011 promotion denial. (Docket #35, 6). In addition to Lilley’s
pretext arguments, analyzed in Section 4.1.1 supra, Lilley contends that her
white counterparts systematically received better treatment with regard to
career advancement. (Docket #35, 7-10). As “background evidence” to
support her contention, Lilley offers a number of instances in which she was
denied a promotion or lateral transfer at WCCS (and a white candidate was
selected instead) prior to Lilley’s rejection in 2011 for the position of Civil
Division Manager. (Docket #54-1); (Docket #35, 7-10). Assessing the relevance
(if any) of Lilley’s “background evidence” would require “mini-trial[s]” of
Page 13 of 18

claims which Lilley has voluntarily dismissed from this case. See generally n.1,
supra, and Jackson v. City of Chicago, 552 F.3d 619, 623-624 (7th Cir. 2009).12
With the benefit of the foregoing analyses—Lilley’s pretext arguments
(in Section 4.1.1) and career advancement claims (directly supra)—the Court
is obliged to find that Lilley has failed to construct a mosaic of circumstantial
evidence that would permit a trier of fact to infer that racial discrimination
motivated her 2011 promotion denial.
4.2

Lilley’s Retaliation Claims

Title VII forbids an employer from discriminating against an
employee who has “opposed any practice” made unlawful by
Title VII or who “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under [Title VII].” 42 U.S.C. § 2000e–3(a). “The
anti-retaliation provision seeks to prevent employer
interference with ‘unfettered access' to Title VII's remedial
mechanisms…by prohibiting employer actions that are likely
‘to deter victims of discrimination from complaining to the
EEOC,’ the courts, and their employers.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d
345 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346,
117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Similarly, the Supreme
Court has determined that § 1981, which prohibits racial
discrimination in making and enforcing contracts, encompasses
retaliation claims. See CBOCS West, Inc. v. Humphries, 553 U.S.
442, 128 S.Ct. 1951, 1954–55, 170 L.Ed.2d 864 (2008).
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citations omitted).
The Seventh Circuit applies the same elements to retaliation claims
under Title VII and Section 1981. Id. However, the elements depend on which

12

Apart from the foregoing analysis, it bears noting that Lilley offers no

evidence explicitly linking these prior promotion (and lateral transfer) denials
to a discriminatory animus by Waukesha County. See (Docket #35 and #36).
Page 14 of 18

method(s) of proof—direct and/or indirect—a plaintiff pursues. Northington
v. H & M Intern., 712 F.3d 1062, 1065 (7th Cir. 2013). Here, Lilley elects to
proceed under both the direct and indirect methods of proof. (Docket #35,
22-30).
[U]nder the direct method, a plaintiff must show that she (1)
engaged in statutorily protected activity; (2) she suffered an
adverse employment action taken by the employer; and (3)
there was a causal connection between the two. Kodl v. Bd. of
Educ. Sch. Dist. 45, 490 F.3d 558, 562 (7th Cir. 2007). Under the
indirect method, a plaintiff must show that she (1) engaged in
statutorily protected activity; (2) met the employer's legitimate
expectations; (3) suffered an adverse employment action; and
(4) was treated less favorably than similarly situated
employees who did not engage in a statutorily protected
activity. Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 859
(7th Cir. 2008); Kodl, 490 F.3d at 562.
Id.
Satisfying all four elements under the indirect method, however, states
only a prima facie case that gives rise to burden-shifting:
Once a plaintiff establishes the prima facie case under
the indirect method, the defendant must articulate a
nondiscriminatory reason for its action; if he does, the burden
remains with the plaintiff to demonstrate that the defendant's
reason is pretextual. Nichols v. S. Ill. Univ.-Edwardsville, 510
F.3d 772, 785 (7th Cir. 2007).
Stephens, 569 F.3d at 787.
Therefore, at bottom, the indirect method of proving retaliation
requires Lilley to show pretext. Id. By contrast, under the direct method’s
circumstantial branch, evidence of pretext is not compartmentalized. See
Lambert v. Peri Formworks Systems, Inc., 723 F.3d 863, 869 (7th Cir. 2013). Given

Page 15 of 18

that Lilley offers evidence to show pretext, the Court will first analyze
Lilley’s claim under the indirect method of proof.13
4.2.1

Retaliation: Indirect Method of Proof

To show pretext, Lilley essentially rehashes the arguments “analyzed
in greater detail in [her] race discrimination analysis” (Docket #35, 27-30).
Since the pretext question focuses on whether Madden honestly believed the
nondiscriminatory explanations she offered for Lilley’s 2011 promotion
denial, the Court’s analysis in Section 4.1.1 supra applies with equal force to
Lilley’s retaliation claims under Title VII and Section 1981. Therefore, the
Court is once again obliged to conclude that at bottom the evidence Lilley
cites to cast Madden’s nondiscriminatory explanations for the 2011
promotion denial as pretext is simply too meager to defeat summary
judgment.
4.2.2

Retaliation: Direct Method of Proof

Proceeding under the “direct” method of proof’s circumstantial
branch, Lilley again seeks to construct a convincing mosaic. (Docket #35, 20-

13

With regard to statutorily protected activity, Lilley points to: (i) the ERD
and EEOC charges she filed against Waukesha County (naming WCCS) in 2006 and
2007, See Section 2.2., supra; (ii) her participation in the investigation(s) thereof, Id.;
and (iii) agreeing, in mid-July of 2011, to be deposed in a racial discrimination case
brought by a former employee of Waukesha County, see Section 2.5, supra. (Docket
#35, 23). However, there is scant evidence to suggest that Madden (the
decisionmaker in Lilley’s 2011 promotion denial) knew about Lilley’s activities
opposing workplace discrimination. See, e.g., (Docket #49, ¶¶ 32, 63 and 64); (Docket
#35, 24-25).
Below, Lilley’s pretext arguments (under the “indirect” method of proof)
and attempt to create a mosaic of circumstantial evidence to show causation (under
the “direct” method of proof) are unavailing, so Lilley’s retaliation claims fail on
those grounds.

Page 16 of 18

29). In addition to Lilley’s pretext arguments, analyzed in Section 4.1.1 supra,
Lilley emphasizes timing and custom.
First, Lilley emphasizes the temporal proximity between her most
recent allegedly statutorily protected activity—agreeing (in mid-July 2011) to
testify at a deposition (which ultimately occurred in 2012) in the case of an
individual bringing claims of racial discrimination against Waukesha County
(Docket #35, 25) and (Docket #36, 18)—and Lilley’s 2011 promotion denial the
same month. (Docket #35, 25-27). Lilley musters up only hearsay to suggest
that Madden knew about Lilley’s planned deposition (let alone the nature of
the case or what Lilley would testify to). (Docket #44, ¶ 63) (“Both Madden
and [the Human Resources representative] had knowledge of Lilley’s
deposition in the Bernadine Matthews’ case because Kelsner told Lilley that
they had discussed the matter and debated about whether Lilley had to use
vacation time to cover her absence. (Exhibit K, Lilley 63:08-64:12).”).
Therefore, Lilley’s temporal proximity argument is unavailing.
Second, Lilley contends that her 2011 promotion denial deviated from
Waukesha County’s general policy of “support[ing] the concept of
promoting employees.” (Docket #40-5, 14-15); (Docket #36, ¶ 69); (Docket
#35, 27). Such a nebulous policy statement adds precious little to Lilley’s
attempt to form a mosaic of circumstantial evidence.
With the benefit of the foregoing analyses—Lilley’s pretext arguments
(in Section 4.1.1) as well as timing and custom arguments (directly supra)—
the Court is obliged to find that Lilley has failed to construct a mosaic of
circumstantial evidence that would permit a trier of fact to infer a causal link
between the activity Lilley claims is statutorily protected and the 2011
promotion denial.
Page 17 of 18

5.

CONCLUSION
With the benefit of the foregoing analysis, the Court finds that

Waukesha County is entitled to summary judgment on all of Lilley’s claims.14
Accordingly,
IT IS ORDERED that plaintiff Alyce Lilley’s motion for leave to file
a surreply brief (Docket #54) be and the same is hereby GRANTED nunc pro
tunc;
IT IS FURTHER ORDERED that defendant Waukesha County’s
motion for summary judgment (Docket #24) be and the same is hereby
GRANTED; and
IT IS FURTHER ORDERED that the parties’ motions in limine
(Docket #56 and #58) be and the same are hereby DENIED as moot.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 25th day of April, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

14

In so finding, the Court has considered the arguments Lilley sets forth in
her surreply brief. (Docket #54-1).

Page 18 of 18