Lewis v. McDonald

Filing 23

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 2/28/2018. 12 Defendant's MOTION for Summary Judgment GRANTED. Case DISMISSED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JERRY L. LEWIS,
Plaintiff,
v.

Case No. 16-cv-1092-pp

ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
United States Department of Veterans Affairs,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 12) AND DISMISSING CASE

The defendant reinstated the plaintiff to his former position after the
plaintiff prevailed on a 2009 EEO retaliation claim. The plaintiff now alleges
that, on his return to work, his two supervisors and a co-worker “took
calculated actions against him” because he had named them as the officials
responsible for his unlawful termination in 2009. Dkt. No. 16 at 2. While the
plaintiff describes their actions as a “vicious regime of retaliation,” id., the
defendant asserts that the plaintiff cannot show that he suffered a materially
adverse employment action. The plaintiff transferred to a different department
in April 2015, and remains employed by the defendant today. Because the
court has not identified a genuine dispute regarding an issue of material fact,
the court will grant the defendant’s motion for summary judgment and dismiss
the case.
1

I.

Jurisdiction
The plaintiff alleges retaliation under Title VII of the Civil Rights Act of

1964. The Act’s jurisdictional provision empowers federal courts to adjudicate
civil cases “brought under” Title VII. §2000e–5(f)(3). Title VII cases also fall
under the grant of subject-matter jurisdiction to federal courts over cases
“arising under” federal law. 28 U.S.C. §1331.
II.

Facts
The defendant employed the plaintiff as a cook in the Nutrition and Food

Service Department beginning in December 2008. Dkt. No. 15-1 at 14-15. In
that position, the plaintiff received “all the frozen products and the produce
products that came into the facility for the kitchen.” Dkt. No. 15-2 at 4.
John Schmidt and Jean Wroblewski supervised the plaintiff. Dkt. No. 151 at 14. Wroblewski acted as the plaintiff’s second-line supervisor from the
start of his employment in 2008 through 2009, and again after he returned in
December 2013. Dkt. Nos. 18 at ¶3; 18-2 at 7. Schmidt worked as the agency’s
chief of food production, and was the plaintiff’s first-line supervisor during the
same period as Wroblewski. Dkt. Nos. 18 at ¶3; 18-2 at 8, 10; 15-1 at 180.
On September 25, 2009, based on a recommendation from Schmidt,
Wroblewski requested that the plaintiff’s employment be terminated. Dkt. Nos.
18 at ¶4; 18-3 at 13. The defendant terminated him at that time. Dkt. No. 15-1
at 14.
In 2009, the plaintiff filed an EEO complaint with the defendant’s Office
of Resolution Management, alleging: (1) discrimination based on race, age and
2

reprisal and (2) hostile work environment. Dkt. No. 1 at ¶¶5, 8. The
administrative law judge issued an order entering judgment in favor of the
plaintiff on the reprisal claim only, and ruled that the plaintiff had established
that he was terminated because of his “protected EEO activity.” Dkt. Nos. 15-1
at 15; 18 at ¶4; 18-3 at 17. The ALJ’s September 30, 2013 order required the
defendant to provide the plaintiff with a “six-month training period,” assign a
“mentor mutually agreed to by the parties” and meet weekly to discuss his job
performance and progress. Dkt. Nos. 18 at ¶4; 18-3 at 17.
The defendant reinstated the plaintiff to the same position, and the
plaintiff returned to work in December 2013. Dkt. No. 15-1 at 16. The
plaintiff’s supervisors (Schmidt and Wroblewski) did not change. Dkt. No. 15-1
at 14-16. He remains employed by the defendant today, but transferred to
another department in April of 2015. Dkt. No. 15-1 at 61-62.
In this case, the plaintiff sued under Title VII “to correct unlawful
employment practices on the basis of reprisal and to provide appropriate relief
to plaintiff who was adversely affected by such practices.” Dkt. No. 1. He
alleges the following acts of retaliation:
Unwarranted counseling, refusing to pay Lewis on regularly
scheduled payroll dates, altering Lewis’s work schedule and later
reprimanding him for working the altered work schedule, refusing
to pay Lewis the appropriate pay rate, refusing to provide Lewis
with a locker upon his return to work, Wroblewski directing Lewis’s
coworkers to monitor Lewis’s whereabouts, Schmidt treating Lewis
differently than all other employees by requiring a witness to be
present at all meetings between Schmidt and Lewis, management
directing Lewis’s coworker Jason Borgwardt to document Lewis’s
day to day workload, reprimanding Lewis for not signing in and out
when leaving the floor when Lewis had in fact signed in and out,
subjecting Lewis to unwarranted scrutiny when he had to use the
3

restroom, and requiring Lewis to sign a 60-day review when he was
not a probationary employee.
Dkt. No. 1 at ¶11.
A.

Unwarranted Counseling

The complaint’s reference to “unwarranted counseling” refers to a time in
the second week of January 2014; Schmidt had ordered too many food
products even though the plaintiff had provided him with a completed order
form, and Schmidt accused the plaintiff of a disorganized kitchen. Dkt. Nos.
15-3 at 4; 15-4 at 26. The plaintiff explained that Schmidt made the freezer
look disorganized by ordering too much food. Dkt. No. 15-2 at 13. The plaintiff
told the EEO investigator under oath that he believed Schmidt adjusted the
food order because Schmidt did not trust the plaintiff’s judgment. Dkt. No. 152 at 18. This happened once. Dkt. No. 15-4 at 26-27. The plaintiff admits that
he never was disciplined in connection with the “unwarranted counseling”
allegation. Dkt. Nos. 15-1 at 79; 17 at ¶17. During the EEO investigation and
hearing, however, the plaintiff stated that Schmidt’s telling him that the freezer
needed to be organized made him stressed, fearful and nervous. Dkt. Nos. 15-2
at 21; 15-1 at 31.
B.

Refusing to Pay the Plaintiff on Regularly Scheduled Payroll Dates

The plaintiff alleges that the defendant refused to pay him “on regularly
scheduled payroll dates,” referring to December 20, 2013, when he did not
receive a paycheck. Dkt. No. 15-3 at 4. The plaintiff returned to work on
December 2, 2013, trained for three days, then took medical leave from
December 5, 2013 to January 6, 2014. Dkt. Nos. 15-1 at 75; 15-4 at 22-23. On
4

December 31, 2013, while he was on medical leave, the plaintiff filed a
complaint of reprisal because he did not receive his first paycheck. Dkt. No. 151 at 75-76. Schmidt had no control over payroll, and neither Schmidt nor
Wroblewski were involved with the delayed payment. Dkt. Nos. 15-5 at 14-15;
15-2 at 32-33. The defendant resolved the delayed payment issue, and the
plaintiff received the one missing payment in February 2014. Dkt. Nos. 15-2 at
28; 15-1 at 21. Nevertheless, the plaintiff felt that the delayed payment incident
was disrespectful and manipulative; he told the EEO investigator under oath
and testified that he experienced stress from its occurrence near Christmas
because, during his medical leave, he could not take his family on a planned
vacation to the Wisconsin Dells and had to get a payday loan. Dkt. Nos. 15-1 at
22; 15-2 at 30-31, 43. There is no dispute that the plaintiff blames the delayed
payment incident on the defendant generally, and not on any particular
individual. Dkt. Nos. 15-2 at 32-33, 64; 15-1 at 75, 79.
C.

Altering Plaintiff’s Work Schedule and Later Reprimanding
Him for Working the Altered Work Schedule

The plaintiff alleges that during January 2014, Schmidt changed the
plaintiff’s “tour of duty schedule” to 6:00 a.m. to 2:30 p.m., but later accused
him of leaving early when he left at 2:30 p.m. Dkt. Nos. 15-3 at 4; 15-4 at 30.
One afternoon in January 2014, Schmidt directed the plaintiff to come to
work at 6:00 a.m. the following day, to cover the shift of a coworker who was
scheduled to work 6:00 a.m. to 2:30 p.m. (the plaintiff normally worked the
6:30 a.m. to 3:00 p.m. shift). Dkt. No. 15-2 at 33. The plaintiff agreed, and
worked from 6:00 a.m. to 2:30 p.m. that day. Id. The next day, Schmidt called
5

a meeting with the plaintiff and a union steward, and threatened the plaintiff
with disciplinary action for leaving “early” at 2:30 p.m. Id. Schmidt “was telling
[the plaintiff] that [he] left work early, and [he] should look at the schedule and
follow the schedule verbatim . . . [and] that this could be a discipline thing if
[the plaintiff left early], and they will have to investigate it.” Dkt. Nos. 15-2 at
33-34; 15-5 at 17. Schmidt explained that “since [the plaintiff] was just back
for a week, we decided to give him the benefit of the doubt.” Dkt. No. 15-5 at
15.
The plaintiff testified at his deposition that he believed that reprimand
meant the same thing as counseling because counseling is the first step in the
termination process. Dkt. No. 15-4 at 30-31 (“Well, the way the VA or any
government agency I have worked for is, counseling, a verbal warning, and
then a write-up, and then after a write-up it can lead up to termination. So in
all actuality, when they pulled me in there, that was the first stage of a
discipline procedure by questioning that I changed my schedule.”). Schmidt
testified that “counseling” was “a little meeting to see what happened,” which
the employees of the defendant call a “Weingarten.” Dkt. Nos. 15-4 at 30-31;
15-5 at 15-17. Even accepting the plaintiff’s version of the facts as true, the
plaintiff does not dispute that he did not receive a letter, suspension or
termination. Dkt. No. 15-4 at 30-32.
With respect to how this incident affected him, the plaintiff testified in
the EEO hearing as follows:
Q

So what did you do after you leave [sic] Mr. Schmidt’s office
on that day?
6

A

I called Will Johnson in the EEO office, and I told Mr.
Johnson, I said that this is too much. I cannot -- I’m not
sleeping, I can’t concentrate, I cannot work under these
conditions. It just -- it was just horrible, and I said the guy
told me to come in early, then he’s trying to write me up. I
said -- and I asked him, I says is there any way possible, you
know. I will go shovel snow. Please take me away from these
people.

Dkt. No. 15-1 at 33-34.
D.

Refusing to Pay the Plaintiff at the Appropriate Pay Rate

The plaintiff alleges that the defendant refused to pay him at the
appropriate pay rate, referring to the fact that on January 3, 2014, he received
a partial amount of his salary. Dkt. Nos. 15-3 at 4; 15-4 at 33. On that date,
the plaintiff received “about $1.50 less an hour” than he should have been paid
on his return to work. Dkt. No. 15-2 at 44. Schmidt and Wroblewski had no
involvement with the pay rate issue. Dkt. Nos. 15-2 at 49; 15-5 at 19-20. The
plaintiff received the full amount owed to him after the defendant resolved the
issue in or around March 2014 (approximately four months after the plaintiff’s
start date). Dkt. Nos. 15-2 at 44; 15-1 at 81. In his deposition, the plaintiff
expressed frustration in trying to deal with the defendant, and testified that his
wife “was a little nervous” about paying bills. Dkt. Nos. 15-2 at 44-45, 48; 15-2
at 44-45, 47-48. The plaintiff also testified in the EEO hearing that he “felt like
they [the defendant] just had a grudge or vendetta” against him. Dkt. No. 15-1
at 26. The plaintiff told the EEO investigator under oath that he holds the
defendant—not the individuals—responsible for the incorrect pay rate. Dkt.
Nos. 15-1 at 26-27, 91; 15-2 at 49.
7

E.

Refusing to Provide a Locker

On the plaintiff’s first day back on the floor after training (January 8,
2014), Schmidt allegedly failed to provide him with a locker in which to store
his personal belongings. Dkt. Nos. 15-2 at 51; 15-3 at 4; 15-4 at 38. The
plaintiff asked Schmidt for a locker to hold personal items, and Schmidt told
him to request the locker from facility/building management. Ex. 15-2 at 51.
There is no evidence in the record that anyone other than facility/building
management assigns lockers to employees. Dkt. No. 15-5 at 22-23. The man in
facility/building management told the plaintiff that he did not have any lockers
available. Dkt. No. 15-2 at 51.
Schmidt offered to let the plaintiff change into his uniform and store his
belongings in the manager’s office, but the plaintiff declined. Dkt. No. 15-2 at
51-52. Schmidt’s office is a “four-desk cubicle office” with “windows [that] are
wide open.” Dkt. No. 15-1 at 95. Schmidt told the plaintiff that he could wear
his uniform into work, which the plaintiff understood to be a violation of the
Safe Serve policy (not the defendant’s policy)1 for sanitation reasons. Dkt. No.
15-1 at 94. Schmidt got a little angry when the plaintiff declined, because
Schmidt was “throwing out all these ideas and [the plaintiff] was shooting them
all down.” Schmidt testified that he told the plaintiff, “you need to come to work
in your uniform. I don’t care what happens before that, but you need to do

The plaintiff testified in the EEO hearing that Safe Serve are the “people who
certifies [sic] in reference to sanitation,” but that he was not aware of any policy
that the defendant has prohibiting him from wearing his uniform home. Dkt.
No. 15-1 at 94.
1

8

something to come to work in your uniform.” Dkt. No. 15-1 at 181-182.
Schmidt confirmed that it is “unusual” for him to “get loud with the
employees.” Dkt. No. 15-1 at 182.
The plaintiff testified that “within the day” that same day or the next day
“they” provided him with a locker. Dkt. Nos. 15-4 at 41; 15-1 at 96. After
receiving his locker, the plaintiff learned that facility/building management was
conducting an audit of lockers. Dkt. No. 15-1 at 92. The plaintiff testified in his
deposition that the man in facility/building management was rude, while
admitting that the man did not know him and that the man was “just an angry
person.” Dkt. Nos. 15-2 at 51; 15-1 at 93. The plaintiff testified in the EEO
hearing that this incident caused him anxiety, stress, and fear. Dkt. No. 15-1
at 41.
F.

Wroblewski Directing the Plaintiff’s Coworkers to Monitor Him

The plaintiff alleges that on January 14, 2014, Wroblewski told the
plaintiff’s coworkers to monitor the plaintiff’s location. Dkt. Nos. 15-3 at 4; 154 at 42-43. The plaintiff testified in his deposition that coworker Latoya Dixon
told him that Wroblewski had told her to monitor the plaintiff, and that Dixon
and other tray line supervisors all were monitoring his whereabouts. Dkt. Nos.
15-2 at 66, 67; 15-1 at 43, 97; 15-4 at 42-45; 17 at ¶61. The plaintiff testified
that he did not feel it was necessary to find out why he was being monitored,
because “this was just something they do in our unit.” Dkt. No. 15-2 at 66. The
plaintiff admits that the defendant never disciplined him with respect to this
allegation of monitoring. Dkt. Nos. 15-4 at 47; 17 at ¶64.
9

Dixon testified that Wroblewski never asked her to monitor the plaintiff,
that no one told her they were monitoring the plaintiff and that she did not
monitor the plaintiff. Dkt. No. 15-6 at 9. She explained in her deposition that
she was not given any reason as to why “they” were monitoring the plaintiff,
but that she had her own beliefs that Wroblewski wanted the plaintiff out of
there because he had filed a lawsuit. Dkt. No. 15-6 at 10. Dixon testified that:
[n]obody told me. It was just those gestures. And like I said, she
didn’t -- Jean didn’t tell me that and no one specifically told me
that, but they -- you know, like -- at that time I remember this
going on, as far as what time did he go out on his break or
whatnot, like you know? And I’m like -- I wasn’t involved with that,
you know? I wouldn’t have did that. But that is what was going on
at that time.
Dkt. No. 15-6 at 9-10.
G.

Schmidt Treating the Plaintiff Differently Than All Other
Employees by Requiring a Witness to be Present at All
Meetings Between Schmidt and the Plaintiff

The plaintiff alleges that on January 14, 2014, Schmidt refused to meet
with him unless a witness was present. Dkt. Nos. 15-3 at 4; 15-4 at 48.
The plaintiff had requested administrative leave; Schmidt called him over to
discuss the request, then “told [him] that [Schmidt] cannot have a conversation
with [him] without a witness.” Dkt. No. 15-2 at 69. Schmidt testified during the
EEO hearing that he required a witness to be present when he met with the
plaintiff because the plaintiff had included things in the prior EEO complaint
that Schmidt did not say. Dkt. No. 15-1 at 199. Schmidt also testified that he
“never had any other employees” accuse him of saying things he never said, so
he felt that he needed protection. Id.
10

At the January 14, 2014 meeting with the two witnesses, Schmidt told
the plaintiff that his request for administrative leave had been denied. Dkt. No.
15-2 at 70. The plaintiff testified in the EEO hearing, and told the investigator
under oath, that that the situation caused him stress and anxiety, and that it
was “hard to work in that kind of environment,” an environment in which he
felt like a misfit. Dkt. Nos. 15-2 at 71-72; 15-1 at 44-45.
H.

Management Directing Plaintiff’s Coworker Jason Borgwardt to
Document Plaintiff’s Day-To-Day Workload

Various co-workers told the plaintiff that Wroblewski had instructed the
plaintiff’s coworker, Jason Borgwardt, to document the plaintiff’s day-to-day
workload. Dkt. Nos. 15-2 at 72; 15-1 at 47, 51; 15-4 at 49-50. Borgwardt (the
plaintiff’s coworker, not a supervisor) worked for the defendant as a cook from
2007 through the end of 2014 or early 2015. Dkt. No. 15-7 at 5, 6. In his prior
EEO complaint, the plaintiff alleged that Borgwardt (and two other cooks)
harassed him verbally, intentionally misplaced tools and utensils necessary for
the job, intentionally mislabeled or failed to label food, and did other things.
Dkt. Nos. 18 at ¶2; 18-1 at 7, 11.
Borgwardt testified in the EEO hearing that he was recording complaints,
at Wroblewski’s direction, for the purposes of retraining the plaintiff:
Q
A

Q

Did Jean ever tell you to do anything with respect to [the
plaintiff]?
In respect to [the plaintiff], there were multiple complaints
coming at her from multiple people on a regular basis, so I
was instructed to notify the cooks if there are any incidents
where [the plaintiff] was negligent in what his responsibilities
are, to let me know.
Let who know? To let you know?
11

A
Q
A

Yes. To let me know, and I would write all of them down on
the areas that she thought he needed to be retrained.
So what was the purpose of the cooks telling you what [the
plaintiff’s] areas of -- what his problem areas were?
The purpose was for her to identify what areas he needed to
be retrained in.

Dkt. No. 15-1 at 148-149.
Q
A
Q
A

I just want to clarify, John, that when people were told to
document [the plaintiff’s] -- whatever problems he was
having –
Uh-huh.
-- it wasn’t in a punitive matter, Jean said it was to retrain
him?
Yes.

Dkt. No. 15-1 at 194-195.
Similarly, in his deposition, Borgwardt testified as follows:
Q

A

. . . It’s my understanding during this meeting with Miss
Wroblewski she asked you to bring any complaints about
[the plaintiff’s] performance to her so then they can -- or she
can engage retraining; is that correct?
Yes.

Dkt. No. 15-7 at 8.
Q
A
Q
A
Q
A
Q
A

During that time, are you aware of any retraining that [the
plaintiff] would have received pursuant to the complaints
that were submitted to Miss Wroblewski?
Yes.
What are you aware of in terms of training?
To the best of my knowledge, he had been retrained with
Ronaldo Garrett and to the best of my knowledge he was also
retrained with Marvin Moore.
Do you know on which tasks he was retrained?
All of the tasks pertaining to the freezer position.
So complete retraining?
Correct. From storage to stocking, to distribution.

Dkt. No. 15-7 at 19.

12

For approximately thirty days, Borgwardt obtained only negative
information from the plaintiff’s coworkers about the plaintiff’s performance.
Dkt. No. 15-7 at 10, 11. A number of the plaintiff’s coworkers provided positive
information, but Borgwardt did not include the positive information in his
handwritten notes to Wroblewski. Id. Borgwardt testified that “positive data
was not obtained or collected for anyone because it’s assumed that you’re going
to have positive behavior in the workplace because that’s what you were hired
to do.” Dkt. No. 15-7 at 11. Borgwardt testified in his deposition that he
provided Wroblewski with handwritten notes containing negative information
about the plaintiff on five or six occasions, and included his own personal
negative information. Dkt. Nos. 15-7 at 10-12; 15-1 at 149, 157.
Because the plaintiff believed that Wroblewski had instructed Borgwardt
to collect this information, the plaintiff worked in fear “all the time,” and felt
anger, stress and nervousness. Dkt No. 15-1 at 48-50. The plaintiff complained
to the defendant’s HR Department regarding Wroblewski having Borgwardt
solicit negative information about his performance from his coworkers,
informed the HR Department as to how this conduct adversely affected him,
and asked for a transfer to another department. Dkt. No. 15-1 at 48. The
defendant never followed up with the plaintiff on his complaint or his request
for a transfer. Id.
Borgwardt testified in his deposition that he discussed Wroblewski’s
directive with Schmidt, and that Schmidt disagreed with Wroblewski’s
directive. Dkt. No. 15-7 at 10. In the EEO hearing, Schmidt initially indicated
13

that he did not have knowledge of Wroblewski’s directive to Borgwardt directing
him to obtain negative information about the plaintiff’s performance from the
plaintiff’s coworkers, and that he did not recall speaking with Borgwardt
regarding such a directive. Dkt. No. 15-1 at 182, 191. In that same testimony,
however, Schmidt remembered that Borgwardt came in and “said something
about it,” and that Wroblewski said in a meeting that she told “them to write
down any mistakes [the plaintiff] was making and then [they’d] retrain him on
it.” Id. at 191-192.
Wroblewski testified that she recalled receiving only one possible issue
involving the plaintiff (raised by Borgwardt), and admitted that this particular
issue may have occurred prior to the plaintiff’s unlawful termination in 2009.
Dkt. Nos. 18 at ¶3; 18-2 at 36, 42, 44. She did not recall receiving any
complaints from the plaintiff’s coworkers after the plaintiff’s reinstatement in
December 2013. Dkt. Nos. 18 at ¶3; 18-2 at 13-14. She also testified that she
never asked, instructed or directed Borgwardt to obtain information of any kind
from the plaintiff’s coworkers concerning his performance. Dkt. Nos. 18 at ¶3;
18-2 at 12, 15-16. Wroblewski did not recall receiving any written notes from
Borgwardt regarding the plaintiff’s performance. Dkt. Nos. 18 at ¶3, 18-2 at 13.
She added that it was not a routine job responsibility for one worker to obtain
information about a coworker’s performance from that person’s coworkers. Id.
Meanwhile, Borgwardt approached Desiree Howard, who worked as a
cook alongside the plaintiff after he was reinstated in December 2013. Dkt. No.
15-1 at 118-119. Borgwardt asked Howard if there were things that the
14

plaintiff did not do, such as items that he did not pull. Id. at 120. Howard
testified that she was surprised that Borgwardt would be asking for this
information because it was “not his position” to do so. Dkt. No. 15-1 at 121.
Howard confirmed to Borgwardt that the plaintiff had done everything he was
supposed to do; that she had nothing negative to report. Dkt. No. 15-1 at 120.
Howard informed the plaintiff of Borgwardt’s solicitation of negative
information, and told him to “be careful.” Dkt. No. 15-1 at 122. Borgwardt
asked Howard only about the plaintiff and not any other employee. Dkt. No.
15-1 at 125.
Another co-worker, Prentiss Johnson, worked as a cook in December
2013. Dkt. No. 15-1 at 128-130. On several occasions, Borgwardt stated to
Johnson that the plaintiff never should have gotten his job back, and that the
plaintiff had “worked the system.” Dkt. No. 15-1 at 133. In the EEO hearing,
Johnson testified that Borgwardt asked Johnson to provide negative
information concerning the plaintiff’s performance. Dkt. No. at 131-132.
Borgwardt did not ask for positive information or even general information
about the plaintiff’s performance or any other employee. Dkt. No. 15-1 at 132.
Schmidt confirmed that the plaintiff complained “a lot” to him and to his
assistant, Michael Lynch, and that the plaintiff believed Borgwardt was
creating a hostile work environment for him by soliciting negative information
about him from his coworkers. Dkt. No. 15-1 at 191-193. Schmidt was aware
that the plaintiff “believed he was working in a hostile work environment.” Dkt.
No. 15-1 at 192. Schmidt and Michael Lynch received the plaintiff’s complaint
15

of “hostile work environment” and Schmidt “just let it drop.” Dkt. No. 15-1 at
192-194.
I.

Reprimanding the Plaintiff For Not Signing In and Out When
Leaving the Floor

The plaintiff’s “signing-in-and-out” allegation refers his court-ordered,
weekly participation in a mentoring program upon his return to work. Dkt. No.
15-1 at 53. Whenever employees left the department for reasons other than
breaks or lunch—such as attending the mentoring program—they were
required to sign out with the time they left, and sign in when they returned. Id.
On one occasion in February 2014, Schmidt told the plaintiff that he was
required to sign out and in when attending the mentoring program. Id. at 5354; Dkt. No. 15-4 at 51-52. The plaintiff felt that it was inappropriate for
Schmidt to tell him that he “was required to sign in and out when [he] leave[s]
the department” to see his mentor, without first checking the sign-out sheet to
see if he’d done so. Dkt. No. 15-1 at 102. The plaintiff testified that it was “like
living a nightmare. Stress, anxiety, fear, lack of focus.” Id. at 53. The plaintiff
was not disciplined with respect to this allegation. Dkt. No. 15-1 at 183.
J.

Signing In and Out for Using the Bathroom

The plaintiff testified during the EEO hearing that he did not feel that
Schmidt was retaliating against him when Schmidt asked if he was signing in
and out, but he did feel it was retaliation when Schmidt asked on one occasion
if the plaintiff went to the bathroom. Dkt. No. 15-1 at 101. The plaintiff was not
disciplined for being in the bathroom. Dkt. Nos. 15-1 at 106; 15-5 at 36.

16

During the EEO hearing, the plaintiff testified that he was not aware that
Schmidt asked any other co-workers about using the restroom. Dkt. No. 15-1
at 54. Schmidt demanded that the plaintiff sign in and out any time he left the
department, despite acknowledging that employees are not required to sign
in/out when using the bathroom. Dkt. No. 15-1 at 54-55. Specifically, the
plaintiff testified as follows:
Q:
A:
Q:
A:

Let’s just get this clear. Did John tell you that you needed to
sign in and out to go to the bathroom?
No, ma’am, he did not.
Once you told John you went to the bathroom, what did he
say?
He didn’t say anything.

Dkt. No. 15-1 at 105-106.
Schmidt testified in his deposition that he did not pursue the issue after
the plaintiff told him he was in the bathroom:
Q
A

Q
A

Q
A

Explain what happened here, if you know.
I just came back -- I don’t remember if this is what he’s
talking about. One time I came back to talk to him, and he
wasn’t around. And he was gone probably 15, 20 minutes.
And I just said, hey, I needed to talk to you, where were you.
And he told me he went to the bathroom. That was the end
of the whole discussion.
So, in other words, you didn’t ask him did you go to the
restroom?
No. I asked him where he was. He said he went to the
bathroom. Right now our bathrooms we have a bathroom in
the area, and they’re being redone. So it is quite a walk to go
to the bathroom right now. So I don’t really question people
that much about it. I just asked him where he was, and he
said he went to the bathroom, and that was the end of it.
...
So therefore as far as the Complainant's explanation, you
were satisfied where he was at that particular time?
Correct.

Dkt. No. 15-5 at 34-36.
17

K.

Requiring the Plaintiff to Sign a 60-Day Review

The plaintiff asserts that in February 2014, he was forced to sign a sixtyday performance review, even though he was not a probationary employee. Dkt.
Nos. 15-3 at 5; 15-4 at 56. The administrative law judge had ordered, as part of
his reinstatement, that the plaintiff be retrained. Dkt. Nos. 15-1 at 107; 15-5 at
37-38. Sixty days after the plaintiff returned to his position, he was given a
performance review that addressed his progression in the job. Dkt. No. 15-1 at
107. The plaintiff knew that he was not on probation. Dkt. Nos. 15-1 at 58,
106; 15-5 at 38. The plaintiff testified, however, that he felt like they were
trying to intimidate him because he was not a probationary employee. Dkt. No.
15-1 at 106. It is undisputed that every employee who changes jobs or is
promoted must complete the sixty-day performance review. Dkt. Nos. 15-5 at
38; 17 at ¶94. It also is undisputed that the plaintiff was not disciplined with
respect to his performance review, and that his performance review was good.
Dkt. Nos. 15-1 at 185; 15-4 at 59; Dkt. No. 17 at ¶¶95, 96.
L.

All Allegations

With respect to each of the eleven alleged unlawful employment
practices, the plaintiff testified in the EEO hearing and during the EEO
investigation that he felt: stressed, nervous/anxious, a lack of focus at work,
concerned about write ups or discipline, fear, anger, aggravation, badgered and
discomfort. Dkt. Nos. 15-2 at 34-35, 40, 68-69, 76, 83, 86, 88, 90-91; 15-1 at
44, 50-51, 54, 56, 60-61. He described the environment as “hostile,” “horrible,”

18

and a “nightmare,” and said that he could not work under those conditions.
Dkt. No. 15-1 at 33, 56, 191–194.
Schmidt testified in the EEO hearing that he never disciplined the
plaintiff or threatened him with discipline following the plaintiff’s reinstatement
in December of 2013:
Q
A
Q
A
Q
A
Q
A

Have you disciplined [the plaintiff] for anything since he’s
returned to work at the VA?
No.
Have you threatened him with discipline?
No.
If [the plaintiff] said that you did threaten him with
discipline, how would you respond to that?
Yeah, I didn’t.
Okay.
That’s not true.

Dkt. No. 15-1 at 186-187. In April of 2015, the plaintiff obtained a transfer to
the Logistics Department as a Program Support Specialist. Dkt. No. 15-4 at 1617.
III.

ANALYSIS
A.

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure allows a court to grant
summary judgment where “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Material facts are those “facts that might affect the
outcome of the suit[,]” and a dispute is “genuine” “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party [.]” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

19

When considering a motion for summary judgment, a court “construe[s]
all factual disputes and draw[s] all reasonable inferences in favor of the
nonmoving party.” Golla v. Office of the Chief Judge of Cook Cty., Ill., 875 F.3d
404, 407 (7th Cir. 2017) (citing Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888,
895 (7th Cir. 2016)). The courts “‘favor toward the nonmoving party does not
extend to drawing inferences that are supported by only speculation or
conjecture.’” Monroe v. Ind. Dep't of Transp., 871 F.3d 495, 503 (7th Cir. 2017)
(quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)).
“Summary judgment is not a time to be coy: conclusory statements not
grounded in specific facts are not enough to stave off summary judgment.”
King v. Ford Motor Company, 872 F.3d 833, 840 (7th Cir. 2017) (internal
quotations and citations omitted).
At this stage, the court's task is not to “weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. While it is inappropriate for the court to
evaluate witness credibility, Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.
2008), a court appropriately grants summary judgment “if [plaintiff] cannot
present sufficient evidence to create a dispute of material fact regarding any
essential element of [his] legal claims on which [he] bears the burden of proof.”
Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 694 (7th Cir.
2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

20

B.

Title VII Retaliation

The plaintiff has framed his claims as Title VII retaliation. Dkt. No. 16 at
1. Title VII “prohibits discriminating against an employee ‘because he has made
a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.’” 42 U.S.C. § 2000e–3(a). A
retaliation claim requires proof that the plaintiff suffered an adverse
employment action because of [his] statutorily protected activity.” Lord v. High
Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016). To prevail, the
plaintiff must prove that (1) he engaged in an activity protected by the statute;
(2) he suffered an adverse employment action; and (3) there is a causal link
between the protected activity and the adverse action. Id.
Over the years, case law in this circuit has described two methods of
proving employment discrimination—a “direct” method, and an “indirect”
method. The term “indirect method” usually refers to the burden-shifting
framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Courts,
including the Seventh Circuit itself, had held that the “direct method” required
a plaintiff to present direct evidence of: (1) a statutorily protected activity; (2) an
adverse action taken by the employer; and (3) a causal connection between the
two. Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 728 (7th Cir. 2003), citing
Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002).
The Seventh Circuit has described “direct” evidence as “smoking gun” evidence.

21

See, e.g., McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 372 (7th
Cir. 1992).
Under the McDonnell Douglas framework—which courts had referred to
as the “indirect method” of proving discrimination—a plaintiff had to show that
(1) he engaged in a statutorily protected activity; (2) he performed his job
according to his employer’s legitimate expectations; (3) despite performing the
job to the employer’s expectations, he suffered an adverse employment action;
and (4) he was treated less favorably than similarly situated employees who did
not engage in statutorily protected activity. Sitar, 344 F.3d at 728. If the
plaintiff established these elements under McDonnell Douglas, the burden
shifted to the employer to present evidence of a non-discriminatory reason for
its employment action. Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th
Cir. 1998). If the employer met that burden, the burden shifted back to the
plaintiff to demonstrate that the employer's reason was pretextual. Sitar, 344
F.3d at 728.
In 1994, the Seventh Circuit discussed the fact that an employer’s
admission of discriminatory intent was direct evidence of discrimination,
speculating that such an admission “may be the only truly direct evidence of
intent that will ever be available.” Troupe v. May Dep't Stores Co., 20 F.3d 734,
736 (7th Cir. 1994). But the court acknowledged that circumstantial evidence
also was admissible to “provide a basis for drawing an inference of intentional
discrimination.” Id. The court identified three types of circumstantial evidence:
. . . suspicious timing, ambiguous statements oral or written,
behavior toward or comments directed at other employees in the
22

protected group, and other bits and pieces from which an inference
of discriminatory intent might be drawn.
* * * * * *
. . . evidence, whether or not rigorously statistical, that employees
similarly situated to the plaintiff other than in the characteristic
(pregnancy, sex, race, or whatever) on which an employer is
forbidden to base a difference in treatment received systematically
better treatment.
* * * * * *
. . . evidence that the plaintiff was qualified for the job in question
but passed over in favor of (or replaced by) a person not having the
forbidden characteristic and that the employer’s stated reason for
the different in treatment is unworthy of belief, a mere pretext for
discrimination.
Id. (citations omitted).
The Troupe court described the first kind of circumstantial evidence as
“ambiguous statements, suspicious timing, discrimination against other
employees, and other pieces of evidence none conclusive in itself but together
composing a convincing mosaic of discrimination against the plaintiff.” Id. at
737. In the years that followed the Troupe decision, the Seventh Circuit and
many other courts repeated the “convincing mosaic” phrase in numerous
decisions when describing the kind of circumstantial evidence that could
constitute direct evidence of discrimination. See, e.g., Hatcher v. Bd. of
Trustees of Southern Illinois University, 829 F.3d 531, 540 (7th Cir. 2016);
Chaib v. Indiana, 744 F.3d 974, 982 (7th Cir. 2014); Cloe v. Indianapolis, 712
F.3d 1171, 1180 (7th Cir. 2013).
On August 19, 2016, after twenty-two years of decisions using the
language, the Seventh Circuit announced that “convincing mosaic” was not a
23

legal test, and it overruled prior cases “to the extent that they rely on
‘convincing mosaic’ as a governing legal standard.” Ortiz v. Werner Enterprises,
834 F.3d 760, 764 (7th Cir. 2016). The court explained that in Troupe, it had
used the phrase “convincing mosaic” “as a metaphor that was designed to
displace the unhelpful direct and indirect methods rather than add to them.”
Id. The court conceded that the metaphor had not been successful, id., and
clearly stated that, “[f]rom now on, any decision of a district court that treats
[the phrase ‘convincing mosaic’] as a legal requirement in an employmentdiscrimination case is subject to summary reversal . . . .” Id. at 765.
The Ortiz court stated that the correct legal standard “is simply whether
the evidence would permit a reasonable factfinder to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the
discharge or other adverse employment action.” Id. The court instructed
district courts to consider 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. Evidence is evidence.” Id.
The court held that “district courts must stop separating ‘direct’ from ‘indirect’
evidence and proceeding as if they were subject to different legal standards.” Id.
The Ortiz court made a specific point of clarification with regard to the
burden-shifting test of McDonnell Douglas, which the court noted was
sometimes referred to as “an ‘indirect’ means of proving employment
discrimination.” Id. at 766, citing McDonnell Douglas Corp., 411 U.S. at 792.
The Seventh Circuit specified that its decision in Ortiz did not “concern
24

McDonnell Douglas or any other burden-shifting framework, no matter what it
is called as a shorthand.” Id. Instead, the court said, it was concerned “about
the proposition that evidence must be sorted into different piles, labeled ‘direct’
and ‘indirect,’ that are evaluated differently.” Id. The Ortiz court held that “all
evidence belongs in a single pile and must be evaluated as a whole,” and
concluded that that conclusion was “consistent with McDonnell Douglas and
its successors.” Id.
In this case, then, it is the court’s job to determine whether there is a
genuine dispute as to an issue of material fact regarding whether a reasonable
factfinder could conclude that the defendant discriminated against the plaintiff,
and that it would not have done so if he had not filed his 2009 EEO complaint.
There is no “smoking gun” admission from the defendant that the agency
intentionally discriminated against the defendant, so the court must look at the
evidence as a whole.
1.

Statutorily Protected Activity

There is no dispute that the plaintiff engaged in statutorily protected
activity when he filed an EEO complaint with the defendant’s Office of
Resolution Management in 2009. Formal charges “with the EEOC constitute
statutorily protected expression.” Walls v. Turano Baking Co., 221 F. Supp. 2d
924, 931 (N.D. Ill. 2002).
2.

Adverse Employment Action

A retaliation claim requires proof that the plaintiff suffered an adverse
employment action because of his statutorily protected activity. High Voltage
25

Software, Inc., 839 F.3d at 563. A materially adverse action “need not be one
that affects the terms and conditions of employment but must be ‘one that a
reasonable employee would find to be materially adverse such that the
employee would be dissuaded from engaging in the protected activity.’”
Poullard v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016), quoting Roney v.
Illinois Dep’t of Transportation, 474 F.3d 455, 461 (7th Cir. 2007).
Materially adverse employment actions do not include threats of
disciplinary action and discipline that are never carried out. Poullard, 829 F.3d
at 856 (“While we do not doubt that the possibility of discipline can be
stressful, we have previously held that this kind of threat is not enough to
support a claim for retaliation.”). Similarly, the anti-retaliation provision does
not “protect against petty slights, minor annoyances, [or] bad manners.” Id.;
see also Boss v. Castro, 816 F.3d 910, 918 (7th Cir. 2016). That is because the
anti-retaliation provision “protects an individual not from all retaliation, but
from retaliation that produces an injury or harm.” Id. (quoting Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. at 68 (2006); see also
Stephens v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009)). Title VII “does not set
forth ‘a general civility code for the American workplace.’” Burlington Northern
& Santa Fe Railway Co., 548 U.S. at 68 (quoting Oncale v. Sundowner Offshore
Servs. Inc., 523 U.S. 75, 80 (1998)). Put another way, “not everything that
makes an employee unhappy is an actionable adverse action.” Wilson v.
Brennan, 2018 WL 636012, *2 (7th Cir. Jan. 31, 2018) (quoting Lapka v.
Chertoff, 517 F.3d 974, 986 (7th Cir. 2008)).
26

Given that, the plaintiff has an uphill climb to prove that any of the
incidents he has alleged constituted an adverse employment action. The eleven
incidents cited into the complaint fall into one of three categories: (1) incidents
involving action or inaction by the defendant agency; (2) incidents involving
Schmidt; and (3) incidents involving Wroblewski and/or other co-workers.
a.

Incidents of Action/Inaction by the Defendant Agency

Three incidents fall into the first category—the delayed paycheck, the
short paycheck (which the plaintiff refers to as “rate of pay”) and the fact that
there was not a locker immediately available to the plaintiff upon his return to
work. The plaintiff does not allege, and has not shown, that Schmidt or
Wroblewski (the individuals whom he believes had reason to retaliate against
him) had any involvement in any of these three incidents. Dkt. No. 21 at ¶¶26,
45.
Rather, the evidence establishes that the plaintiff’s first paycheck after
his reinstatement was temporarily delayed. The plaintiff returned to work on
December 2, 2013. He was at work only three days before going on medical
leave from December 5, 2013 to January 6, 2014; during that medical leave,
the plaintiff filed a complaint because he did not receive his first paycheck
(which was due him while he was on leave). Dkt. No. 21 at ¶23. The defendant
explained that the missing paycheck was an administrative error, dkt. nos. 151 at 18-20, and the plaintiff received the paycheck without further incident.
Dkt. No. 21 at ¶46.

27

With regard to the short paycheck that the plaintiff received on January
3, 2014, dkt. nos. 15-3 at 4; 15-4 at 33, which was “about $1.50 less an hour”
than the amount the plaintiff should have received, dkt. no. 15-2 at 44: There
is no dispute that the plaintiff received the full amount owed to him after the
defendant resolved the issue in or around March 2014 (approximately four
months after the plaintiff’s start date). Dkt. Nos. 15-2 at 44; 15-1 at 80. There
is no evidence that this was anything other than an accounting error, and it
was resolved.
With regard to the locker: on the plaintiff’s first day back to work after
retraining in January, an unidentified person in facility/building management
told him that there were no lockers available, but he received a locker “within
the day.” Dkt. No. 15-4 at 41.
None of these incidents rise to the level of a materially adverse
employment action. Even if they did, there is nothing in the record that shows
a causal connection between these administrative errors and the fact that the
plaintiff had filed an EEO complaint four years earlier.
b.

Incidents Involving Schmidt

Neither do any of the incidents in the second category amount to
materially adverse employment actions. On one occasion (January 28, 2014),
Schmidt told the plaintiff that the freezer needed to be more organized. Dkt. No.
21 at ¶¶12, 13, 15. On another occasion, Schmidt told the plaintiff to come in
early. After the plaintiff (appropriately) left early (because he’d started early, as

28

requested), Schmidt told him that management would have to investigate. Dkt.
No. 21 at ¶¶33-36.
Perhaps in these two situations, the plaintiff might argue that he met the
second prong of the McDonnell framework—that he performed his job
according to his employer’s legitimate expectations. But even if that is true, a
plaintiff still must show that despite performing to expectations, he suffered an
adverse employment action. The plaintiff admits that the EEO manager told
him that Schmidt and the others subsequently decided that they had made a
mistake, and that they took no further action involving either incident. Dkt. No.
15-2 at 34-35. Schmidt explained in his deposition testimony that management
gave the plaintiff the benefit of the doubt, because the plaintiff had been back
only a week. Dkt. No. 15-5 at 15. At most, the plaintiff suffered
(understandable) frustration at being unfairly accused of leaving early. This
frustration does not constitute an adverse employment action.
The plaintiff also points to Schmidt’s insistence that a witness be present
when Schmidt met with the plaintiff to deny him any further administrative
leave. The plaintiff refers to the fourth prong of the McDonnell Douglas test,
arguing that he wasn’t aware of any other employees upon whom Schmidt
placed this requirement. It is not clear to the court how a supervisor requiring
a witness to be present during conversations with an employee constitutes an
adverse employment action against the employee. It may be a bit embarrassing.
It may be inconvenient. But it is not the kind of materially adverse action that
would chill the plaintiff from exercising his rights.
29

Even assuming for the purposes of this motion that having witnesses
present when one talks to one’s supervisor constitutes an “adverse employment
action,” and that other employees weren’t subject to a similar requirement, the
McDonnell Douglas test would shift the burden to the defendant to show a
non-discriminatory reason for having witnesses present. Schmidt testified that
the only reason that he required a witness to be present when he met with the
plaintiff was because, in bringing the EEOC 2009 complaint, the plaintiff had
claimed Schmidt said things that Schmidt denies having said. In other words,
having been accused of inappropriate behavior, Schmidt had a witness present
to protect himself from allegedly false allegations—not to punish, or to
discriminate against, the plaintiff. That is a non-discriminatory reason for
having a witness present. Given that, under McDonnell Douglas, the burden
shifts back to the plaintiff to demonstrate that Schmidt’s reason was
pretextual; the plaintiff has not met that burden. The plaintiff has not refuted
Schmidt’s explanation that Schmidt wanted a witness present because the
plaintiff previously had said things about Schmidt that were not true.
With respect to Schmidt requiring the plaintiff to sign in and out, or the
sixty-day performance review, the plaintiff has not shown that these incidents
rise to the level of a materially adverse employment action. As far as the court
can tell, the plaintiff’s complaint with regard to Schmidt is not that Schmidt
required him to sign in and out when he left the floor; the plaintiff appears to
concede that this was company policy. Rather, the plaintiff argues that, on one
occasion in February, Schmidt reminded the plaintiff that he had to sign out
30

and in for mentoring, without first checking the sheet to determine whether the
plaintiff had been doing so. Like other incidents, it appears that this was an
isolated occasion, and while it likely was frustrating to the plaintiff, it does not
constitute an adverse employment action.
On another occasion, Schmidt asked the plaintiff where he had been,
and the plaintiff explained that he had been in the bathroom. Dkt. No. 15-5 at
36. While the plaintiff alleges that this was retaliatory—he argues that there is
no requirement that employees sign out/in when they leave the floor to go to
the bathroom—he concedes that Schmidt took no action against him, and that
nothing further happened with respect that incident. A supervisor who has
been looking for an employee without success asking that employee where he’d
been is not an adverse employment action.
As for the performance review, the plaintiff argues that, because he was
not a “probationary employee”—because he was rehired as a regular
employee—the defendant should not have treated him like one by requiring
him to sign a sixty-day review. But the record establishes that every employee
who changes jobs or is promoted has to complete the sixty-day review (albeit
sometimes after six months), and that the plaintiff’s review was positive. Dkt.
No. 21 at ¶¶88, 89, 94-96. In addition, the administrative law judge assigned to
the plaintiff’s 2009 case ordered that the plaintiff participate in retraining and
mentoring. The Seventh Circuit has held that a plaintiff has not suffered an
adverse action even where her employer placed her on an improvement plan
and threatened her with termination if she failed to sign it. Cole v. Illinois, 562
31

F.3d 812, 816-817 (7th Cir. 2009). The situation here was less extreme, and
the fact that the plaintiff may have felt offended at having to undergo a review
did not constitute an adverse employment action.
c.

Incidents Involving Wroblewski

The two remaining incidents involve Wroblewski, who may have told
someone to monitor the plaintiff’s whereabouts and/or instructed Jason
Borgwardt to document the plaintiff’s day-to-day workload. The allegation of
monitoring comes from the testimony of co-worker Latoya Dixon, who testified
that she believed the defendants were out to get the plaintiff for his prior
lawsuit because they had previously discriminated against her on the basis of
race. Dkt. No. 15-6 at 10. Dixon acknowledged that Wroblewski never asked
her to monitor the plaintiff, that she (Dixon) never monitored him, and that she
never witnessed anyone writing up the plaintiff. Dkt. Nos. 21 at ¶63; 15-6 at 89. The plaintiff himself admitted that he did not ask Dixon why “they” were
monitoring him because it was “something they did in our unit.” Dkt. No. 15-2
at 66. Nothing else occurred with respect to this incident. Even accepting the
facts in the light most favorable to the plaintiff, the court cannot find that a coworker’s opinion that someone was monitoring the plaintiff’s whereabouts
constituted an adverse employment action by the defendant. There is no
evidence of actual monitoring, or evidence that anyone instructed anyone to
monitor the plaintiff’s whereabouts.
The final allegation arises from co-defendant Jason Borgwardt’s
testimony that on one occasion (two to three months after the plaintiff’s
32

reinstatement), Wroblewski directed Borgwardt to collect and pass on negative
information about the plaintiff’s work performance. Dkt. No. 15-7 at 7-8. The
plaintiff asserts that only Borgwardt and Wroblewski were present during this
alleged discussion, and that the two never again discussed Wroblewski’s
directive. Dkt. No. 16 at 4. In his deposition, Borgwardt explained why he was
approached by Wroblewski:
There was a steady flow of complaints regarding Mr. Lewis’s
performance, or lack thereof, flowing into her office. I believe I
entered her office on that day, and my complaint, quite possibly,
was the straw that broke the camel’s back. And upon that
complaint is when she had said, If anyone has a complaint, write it
down and give it to me and we’ll work on what he needs to be
retrained on. So it was basically just be wedging between the
complaint and her.”
Dkt. No. 15-7 at 8. Based on this conversation, Borgwardt testified that he told
his coworkers, “[p]er Jean’s request, if anybody has an issue or complaint,
please write it down, give it to me, and I will give them to her because she
doesn’t want the traffic in her office.” Dkt. No. 15-7 at 9. Borgwardt claimed
that he solicited feedback for thirty days, and left handwritten notes for
Wroblewski on her desk, including his own negative feedback. Borgwardt
testified in his deposition he stopped collecting feedback when Schmidt told
him that it was not a good idea to do so. Dkt. No. 15-7 at 10.
There is conflicting testimony with respect to this allegation. Wroblewski
denies instructing Borgwardt to collect negative information, and denies
receiving any notes from him. Dkt. Nos. 18 at ¶3, 18-2 at 12-13, 15. She
testified that she was aware of only one issue involving the plaintiff. Id., Dkt.
No. 18-2 at 13-14. Schmidt testified in his deposition that he never spoke to
33

Borgwardt about Wroblewski’s instructions, but also testified (in the October
14, 2015, EEO hearing) that he told Borgwardt to stop. Two of the plaintiff’s
coworkers, Desiree Howard and Prentiss Johnson, testified that Borgwardt
approached them to gather information about the plaintiff. Howard told
Borgwardt that the plaintiff did everything required of him. Dkt. Nos. 21 at PPF
¶¶37, 40; 15-1 at 120.
Taking the evidence in the light most favorable to the plaintiff, as the
court must at this stage of the proceedings, the record shows that Wroblewski
instructed Borgwardt to collect negative information about the plaintiff and
Borgwardt collected the information for thirty days, but that Wroblewski did
nothing with it. To the extent that Schmidt knew of the monitoring, he
instructed Borgwardt to stop once he learned of it.
This is the one allegation the plaintiff makes that involves an extended
period where he was treated differently than other employees. He alleges that it
was very stressful to him to know that employees who’d discriminated against
him during his last tenure at the agency were collecting negative information
about him after his return. But the Seventh Circuit has held that “it is well
established that unfulfilled threats that result in no material harm cannot be
considered an adverse employment action under Title VII.” Hottenroth v. Vill. of
Slinger, 388 F.3d 1015, 1030 (7th Cir. 2004) (citing Ajayi v. Aramark Bus.
Servs., Inc., 336 F.3d 520, 531 (7th Cir. 2003)). The facts in the record show,
at most, an implicit threat, which is not enough to constitute an adverse
employment action under Seventh Circuit law.
34

Under any view of the facts, the evidence shows that Borgwardt did not
like the plaintiff. In his 2009 EEO complaint, the plaintiff had asserted that
Borgwardt verbally harassed him, intentionally misplaced tools and utensils
necessary for his job, and intentionally mislabeled or did not label food items.
Dkt. No. 18-1 at 12, 45-46, 50-52. Borgwardt had said that the plaintiff had
worked the system. Dkt. No. 15-7 at 35-36. But the plaintiff concedes that
Borgwardt, a co-worker, had no authority over him. Dkt. Nos. 16 at 3; 21 at
¶70, PPF ¶13. As for Schmidt and Wroblewski, the evidence suggests—and it
may well have been the case—that they were not fans of the plaintiff’s, and
would have welcomed signs of failure. But they did not take adverse
employment actions against him.
It is important to note that the plaintiff has not made a hostile work
environment claim. Courts have recognized that a plaintiff may bring a
discrimination claim under Title VII for being subjected to a hostile work
environment. Plaintiffs bring such claims when they are subjected to
harassment on the basis of race which is so severe or pervasive that “a
reasonable person would find [the environment] hostile or abusive, and one
that the victim in fact did perceive to be so.” Smith v. Northeastern Illinois
University, 388 F.3d 559, 566 (7th Cir. 2004) (quoting Cerros v. Steel
Technologies, Inc., 288 F.3d 1040, 1045 (7th Cir. 2002); other citations
omitted). The question the court must consider on summary judgment is not
whether, taken as a whole, the various instances of action or inaction the
plaintiff has alleged created an environment that was hostile or abusive. The
35

court has before it only the question of whether the undisputed evidence, taken
in the light most favorable to the plaintiff, shows that he was subjected to any
adverse employment actions. It does not.
3.

Causal Link Between Protected Expression
and Adverse Employment Action

Because the court finds that, viewed as a whole, the evidence does not
show that the plaintiff suffered any adverse employment actions, the court
need not reach the third element of a retaliation claim—the requirement that
the plaintiff must prove a causal link between the protected activity and the
adverse employment action. But even if the court had found adverse actions,
the evidence does not demonstrate the required causal link.
To establish a causal link, a plaintiff must demonstrate that the
defendant “‘would not have taken the adverse . . . action but for [his] protected
activity.” Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017). Put
another way, a plaintiff “only ha[s] to establish ‘that the protected activity and
the adverse action were not wholly unrelated.’” Hunt-Golliday v. Metro. Water
Reclamation Dist. of Greater Chi., 104 F.3d 1004, 1014 (7th Cir. 1997).
As explained above, the plaintiff has no evidence that either Schmidt or
Wroblewski—the individuals whom he believes had reason to retaliate against
him—had anything to do with the first category of administrative mistakes, and
he does not hold them responsible. Dkt. Nos. 15-2 at 32-33, 64; 15-1 at 76, 80;
21 at ¶¶25, 26, 31, 48. Accordingly, it is impossible for the plaintiff to establish
a causal link between his filing of the 2009 EEOC complaint and those
incidents. With regard to all of the other allegations, except Schmidt requiring a
36

witness to be present, the plaintiff assumes that because Schmidt and
Wroblewsi’s actions made him uncomfortable, or stressed, or embarrassed,
those actions must have been the result of his filing his 2009 EEOC complaint.
That assumption is not enough to establish a causal link, even when one looks
at all of the evidence as a whole, as the Ortiz court instructed. And with regard
to Schmidt’s requiring a witness to be present during one conversation, there is
a causal connection, but no adverse employment action.
4.

Similarly Situated Employees

Under the McDonnell Douglas burden shifting framework, the plaintiff
must be able to identify a similarly situated employee who did not engage in
protected activity and was treated more favorably that the plaintiff. That
employee must be “directly comparable” to the plaintiff in “all material
respects.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 981 (7th Cir. 2014)
(quoting Abuelyaman v. Ill. State Univ., 667 F.3d 800, 810 (7th Cir. 2011)).
While the plaintiff responds that “similarly situated employees received their
paychecks on time,” lockers were immediately available when a new supervisor
started in mid-January, “no one else has ever been monitored as he was in the
workplace,” and that he was the only non-probationary employee who had to
complete the sixty-day probationary review, he never identifies these
individuals or shows how they were similarly situated in any relevant respects.
See Arizanovska v. Wal–Mart Stores, Inc., 682 F.3d 698, 703 (7th Cir. 2012)
(“The similarly-situated inquiry is a flexible, common-sense one, but it at least
requires that the plaintiff name a comparator outside her protected class.”). In
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the absence of any comparators, the plaintiff cannot make a prima facie case.
Carothers v. Cty. of Cook, 808 F.3d 1140, 1152 (7th Cir. 2015) (holding that
the plaintiff waived the analysis where she did not identify similarly situated
co-workers who did not engage in protected activity).
5.

Legitimate Non-discriminatory Business Purpose

Finally, if the court assumes for the sake of argument that the plaintiff
had established a prima facie case of retaliation, the defendant responded with
evidence that it had a legitimate, nondiscriminatory reason for its actions.
O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). Nothing in
the record suggests that the defendant’s explanations—administrative mistakes
with payroll and the locker, Schmidt’s enquiring as to the plaintiff’s
whereabouts when he’d been gone for a bit, Schmidt’s protecting himself from
being accused of saying things he did not say, the uniform requirement or
performance reviews—were pretextual. Dkt. Nos. 15-1 at 19-20; 15-5 at 14-15.
The plaintiff’s speculation that these things must have happened out of
retaliation, and the unsupported opinions or beliefs of his coworkers, do not
establish pretext. Hall v. City of Chi ., 713 F.3d 325, 333 (7th Cir. 2013);
McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004) (“Inferences
that are supported by only speculation or conjecture will not defeat a summary
judgment motion.”).

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IV.

CONCLUSION
Viewing the record as a whole, the court finds that the plaintiff has failed

to identify a genuine dispute as to an issue of material fact, and that as a
matter of law, the defendant is entitled to judgment.
The court GRANTS defendant’s motion for summary judgment. Dkt. No.
12.
The court ORDERS that the case is DISMISSED. The clerk shall enter
judgment accordingly.
Dated in Milwaukee, Wisconsin this 28th day of February, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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