Case Information
U NITED S TATES D ISTRICT C OURT FOR THE N ORTHERN D ISTRICT OF I LLINOIS E ASTERN D IVISION
Rabie Chillmon,
Plaintiff ,
No. 20 CV 7379 v.
Judge Lindsay C. Jenkins Village of Evergreen Park Illinois,
Defendant .
M EMORANDUM O PINION AND O RDER
Rabie Chillmon brings this Title VII lawsuit against the Village of Evergreen Park for national-origin discrimination, hostile work environment, and retaliation. [Dkt. 1.] Before the Court is Evergreen Park’s motion for summary judgment. [Dkt. 38.] For the reasons stated below, the motion is granted in part and denied in part. I. Background
The parties share little common ground besides agreeing that “virtually every single fact in this case is disputed.” [Dkt. 39 at 2; accord Dkt. 52 at 2.] Rather than attempt to recount the undisputed facts and note points of dispute, the Court draws on the parties’ Local Rule 56.1 statements to briefly describe the events at issue. It defers discussing the facts in greater detail until later.
Chillmon is ethnically Albanian; she speaks English with an accent. [Dkt. 50 ¶¶ 1, 4.] She immigrated to the United States in 2011, became a U.S. citizen, and began working for Evergreen Park as a full-time records clerk on July 1, 2019. [ ] She soon began having problems with her coworkers and supervisors, primarily fellow records clerks Anne Walusek and Laurie Snyder, who allegedly refused to help Chillmon learn the job, said disparaging things about immigrants, and mocked Chillmon’s accent [ id. ¶¶ 7, 9, 11, 13–15, 18], and her direct supervisor, Frank Clarin, the supervisor of records [ id. ¶ 2]. Chillmon alleges that Clarin disparaged her English ability, was disproportionately critical of mistakes she made in the department’s daily bulletin, subjected her to harsher scrutiny and discipline than other clerks, and screamed at her in a meeting. [ Id. ¶¶ 44, 73–74; Dkt. 56 ¶ 36.]
During her employment at Evergreen Park, Chillmon made several complaints of discrimination and harassment to Clarin and other supervisors, but no one was disciplined in response to these complaints. [ E.g. , Dkt. 50 ¶¶ 19, 26, 42.] Michael Saunders, the chief of police, met with Chillmon about her allegations on January 6, 2020. [ Id. ¶ 59.] According to Chillmon, this meeting was an interrogation; Saunders said that he did not believe her, that she would have to take a polygraph test to prove she was telling the truth, and that Saunders would “make sure you are going to have a very hard time to find a good job.” [ Id. ¶¶ 59–60 (cleaned up).] Chillmon initially agreed to take the polygraph, as did Walusek and Snyder, but these tests never occurred because Chillmon’s counsel objected. [ Id. ¶ 61; Dkt. 40-10 at 8–9.]
On January 23, 2020, Clarin and Sergeant Salazar met with Chillmon to discuss errors she made in the daily bulletin. [Dkt. 50 ¶ 66.] During this meeting, Clarin and Salazar say that Chillmon became aggressive and defensive; Chillmon alleges that she was merely questioning why she was being singled out and that Clarin was screaming. [ ] Clarin and Salazar believed Chillmon was being insubordinate, and they wrote memos describing the meeting and sent them to Deputy Chief Donovan. [ Id. ¶ 67.] Saunders reviewed the memos; watched soundless video footage of the meeting, the angle of which showed only Chillmon; and met with Chillmon on January 24, 2020. [ Id. ¶ 68.] Saunders gave Chillmon a written reprimand for the bulletin errors and a one-day suspension for insubordination. [ Id. ¶ 69.]
Chillmon filed a charge with the Equal Employment Opportunity Commission (“EEOC”), which Saunders received notice of on March 5, 2020. He created notes regarding his knowledge of the relevant issues the next day. [ Id. ¶ 75.]
In late March 2020, Chillmon reported that on March 25, Snyder told her to “shut up.” [ ¶¶ 76–78.] Chillmon and Snyder were interviewed regarding the incident [ id. ¶ 78], and Donovan reviewed video footage, with sound; he concluded in a memo that Snyder could not be heard saying “shut up” [ id. ¶ 77; Dkt. 40-9 at 75– 76]. Saunders reviewed Donovan’s memo and the video footage; concluded that Chillmon had lied about hearing Snyder say, “shut up”; and terminated Chillmon on March 31, 2020. [Dkt. 50 ¶ 79.]
Chillmon filed this lawsuit against Evergreen Park on December 14, 2020. [Dkt. 1.] She alleges that she was discriminated against and subjected to a hostile work environment because her national origin, in violation of Title VII of the Civil Rights Act of 1964, and retaliated against for engaging in activity that is protected by that statute. Evergreen Park now moves for summary judgment. [Dkt. 38.]
II. Legal Standard
Summary judgment is proper 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);
see Celotex Corp. v. Catrett
,
III. Analysis
Chillmon brings Title VII claims for hostile work environment, discrimination, and retaliation. Below, the Court presents the most favorable version of the evidence for Chillmon while largely omitting Evergreen Park’s side of the story. In the interest of brevity, the Court does not mention every disputed point of fact. Suffice it to say that the Court takes no position on the truth or falsity of the facts discussed below— such determinations are the jury’s role. As explained below, Evergreen Park is entitled to summary judgment on Chillmon’s discrimination claim and portions of her hostile work environment and retaliation claims. Other aspects of these claims will be for a jury to decide at trial.
A. Hostile Work Environment
The Court begins with Chillmon’s claim that she was subjected to a hostile
work environment based on her national origin. [Dkt. 1 ¶¶ 37, 40.] Title VII’s
prohibition on employers discriminating against employees on the basis of national
origin “also reaches the creation of a hostile or abusive work environment permeated
with discriminatory intimidation, ridicule, and insult.”
Trahanas v. Nw. Univ.
, 64
F.4th 842, 853 (7th Cir. 2023) (cleaned up);
see
42 U.S.C. § 2000e-2(a)(1). “To establish
a hostile work environment claim, a plaintiff must show: (1) the work environment
was both subjectively and objectively offensive; (2) the harassment was based on
[national origin]; (3) the conduct was severe or pervasive; and (4) there is a basis for
employer liability.”
Id.
(citation omitted). Whether there is a basis for employer
liability “depend[s] on whether the alleged harasser is the victim’s supervisor or
coworker.”
Id.
(citation omitted). In contrast to when the harassment comes from a
supervisor, “when the harasser is a coworker, ‘the employer is liable only if it was
negligent in controlling working conditions.’” (quoting
Vance v. Ball State Univ.
,
Chillmon bases her hostile work environment claim on both supervisor and coworker harassment, so the Court addresses Evergreen Park’s potential liability on these theories separately. See id. at 853–55.
1. Coworker Harassment
Viewed in the light most favorable to Chillmon, the record supports national- origin discrimination by her coworkers early in her employment. In July 2019, Chillmon’s first trainer, Walusek, ignored her questions. [Dkt. 40-1 (“Chillmon Dep.”) at 14:18–:23.] When Chillmon pressed for answers, Walusek responded that if Chillmon thought she wouldn’t be able to learn how to do the job, she should quit: “[I]t’s easy for you. Just go ahead and live on food stamps just like every other immigrant.” [ Id. at 15:2–:18.] Further, during a performance review, Walusek implied that she could cause Chillmon to be fired. [ Id. at 86:12–88:6.]
In August 2019, Snyder began training Chillmon, but Snyder also rebuffed Chillmon’s questions, saying, “Rabie, I don’t have time for you. We have our jobs. You should have stayed with Anne.” [ Id. at 21:17–22:3.] On one occasion, Chillmon said it was good to “help[ ] people,” to which Snyder allegedly responded:
[Y]es, Rabie, people, but people from here. Not people from other countries. … I hate people from other countries who come here, take[ ] our good jobs, good benefits. You all need to stay in your own fucking country … and build your own country. … [M]y stomach hurts just thinking about people from other countries.
[ Id. at 22:11–:23.] While saying this, Snyder “stood up from her chair and [came] directly” at Chillmon, looking angry. [ at 25:11–:14.] Further, Snyder and Walusek would mock Chillmon’s accent when Chillmon tried to ask questions, saying things like, “What the fuck is she saying? Girl, speak English. We don’t understand your based on coworker harassment, it is essential to analyze whether Evergreen Park took sufficient remedial steps to avoid liability.
accent. … [D]o you actually understand her? … [G]irl, no. I don’t understand what she’s talking about.” [ at 24:1–:10.]
Evergreen Park argues that this conduct was not severe and pervasive. [Dkt. 39 at 3.] The Court disagrees. Factors relevant to whether harassment is severe and pervasive include:
(1) the frequency of the discriminatory conduct; (2) how offensive a reasonable person would deem it to be; (3) whether it is physically threatening or humiliating conduct as opposed to verbal abuse; (4) whether it unreasonably interferes with an employee’s work performance; and (5) whether it is directed at the victim.
Scaife
,
The Court also disagrees with Evergreen Park’s assertion that the comments
about Chillmon’s accent or difficulty with English are not actionable. [
Contra
Dkt. 39
at 8.] The cases it relies on are inapposite and, in fact, help Chillmon. In
Hong v.
Children’s Memorial Hospital
, the Seventh Circuit explained that saying, “learn to
speak English” “could be circumstantial proof of … discriminatory animus,” but the
plaintiff’s claim failed on causation grounds.
But while these comments may have risen to the level of a hostile work
environment, Evergreen Park cannot be held liable for them because it quickly
rectified the issue in response to Chillmon’s complaints.
See Brooks
,
With Walusek’s and Snyder’s initial harassment off the table, none of the other coworker discrimination Chillmon identifies rises to the level of a hostile work environment. The only overtly discriminatory comments Chillmon identifies are Snyder calling her a “fucking immigrant” [5] under her breath one time and making “multiple comments about immigrants taking our jobs, and not being able to speak proper English, and comments along those lines.” [Chillmon Dep. at 49:20–50:12, 228:4–:19; Dkt. 40-7 (“Ivers Dep.”) at 54:9–55:4.] Chillmon testified that Kentra Thomas-Smith, another clerk, said she was “not going to succeed in life,” ignored her, and refused to conduct normal shift changes with her. [Chillmon Dep. at 32:17– 39:22.] Chillmon also reported an incident with Mike Tague, a lockup officer, who “stood up on his chair and started screaming … and yelling,” telling Chillmon not to leave work for Thomas-Smith after a shift change. [ at 48:4–49:12.]
What Tague allegedly did was surely unpleasant, but Chillmon offers no
evidence that he or Thomas-Smith acted with animus toward her national origin, and
a reasonable jury could not infer such animus from their comments alone, however
rude they may have been.
See Scaife
, 49 F.4th at 1117 (rejecting hostile work
environment claim where supervisor “consistently yelled at” the plaintiff because she
failed to show the harassment was based on a protected characteristic);
Brooks
, 39
F.4th at 441 (“[O]ther complaints [plaintiff] had about her coworkers’ abusive
conduct—swearing, refusing to follow her directions, using disrespectful language—
were not focused on [any protected category] and thus could not create a hostile work
environment on the basis of a protected category.”). Receiving the cold shoulder from
Thomas-Smith (or Walusek and Snyder once they were no longer her trainers) cannot
contribute to a hostile environment claim because “[s]nubbing by supervisors and co-
workers is not actionable.”
Robertson v. Dep’t of Health Servs.
,
Isolated comments can sometimes create a hostile environment.
Scaife
, 49
F.4th at 1116 (“Because the N-word is egregious, we are not concerned with the
number of times the epithet is used. A one-time use of the epithet can in some
circumstances warrant Title VII liability.” (citations omitted)). But one-off comments
seldom create a hostile environment.
See id.
at 1116–17 (explaining under the totality
of the circumstances why the use of the N-word was not sufficient to create a hostile
environment);
Hong
, 993 F.2d at 1266 (“Evidence of a supervisor’s occasional or
sporadic use of a slur directed at an employees’ race, ethnicity, or national origin is
generally not enough to support a claim under Title VII.” (citations omitted));
cf. Hall
v. City of Chicago
,
2.
Supervisor Harassment
The Court now considers Chillmon’s hostile work environment claim to the
extent it is based on harassment by her supervisors, Saunders and Clarin. Construed
in Chillmon’s favor, the record would allow a reasonable jury to find that Clarin
mistreated Chillmon based on her national origin and that his mistreatment was both
objectively offensive and severe and pervasive.
See Trahanas
,
Evergreen Park attempts to downplay Clarin’s conduct as mere rudeness that
is not actionable under Title VII. [
See, e.g.
, Dkt. 39 at 5 (“[W]hile Clarin … may have
treated her in a manner that was condescending, impatient, or made her life at work
subjectively unpleasant, such conduct is not actionable.”); Dkt. 57 at 2 (“She claims
that Clarin was a ‘bully’ and would embarrass her by confronting her about mistakes
in front of others, but such conduct is unprofessional at best.”).] But Evergreen Park
fails to seriously engage with the evidence supporting the inference that Clarin’s
hostility was based on Chillmon’s national origin. Chillmon testified that shortly after
she complained to Clarin about Walusek’s behavior, he discovered handwritten notes
on her desk and, in front of other employees, repeatedly asked, “[W]hat is this, Rabie?
Seriously, what is this? … [E]verybody, is this even English? … Is this in English?”
[Chillmon Dep. at 55:11–56:13.] Chillmon also testified that, on a “daily basis,” Clarin
would confront her about mistakes she made in the bulletin—typed in English—and
that most of this criticism occurred in front of other employees. [ at 57:13–:23.]
[8]
While Evergreen Park acknowledges these comments, it argues that “ask[ing] if
Chillmon’s notes were in English” is not actionable, relying on
Hong
, 993 F.2d at
1265–66, and
Villarruel
,
A reasonable jury could find that animus toward Chillmon’s national origin
drove Clarin’s criticism of her. Clarin knew that she was an immigrant,
[9]
and a jury
could reasonably infer that his disproportionate public criticism of Chillmon’s English
skills and mistakes in the bulletin were motivated by her national origin.
See Hong
,
Considering the totality of Clarin’s conduct, a jury could find that the hostility Chillmon faced was severe and pervasive. Factors to consider include:
(1) the frequency of the discriminatory conduct; (2) how offensive a reasonable person would deem it to be; (3) whether it is physically threatening or humiliating conduct as opposed to verbal abuse; (4) whether it unreasonably interferes with an employee’s work performance; and (5) whether it is directed at the victim.
Scaife
,
With respect to her hostile work environment claim based on Clarin’s harassment, Chillmon has established a triable issue of fact.
B. Discrimination
Next, the Court turns to Chillmon’s discrimination claim. At the summary
judgment stage, the Court “look[s] to see whether the evidence would permit a
reasonable factfinder to conclude that the plaintiff’s [national origin] caused the
discharge or other adverse employment action.”
Wince v. CBRE, Inc.
,
Under the holistic approach, the Court asks whether, looking at the record as
a whole, “a reasonable jury could conclude that the plaintiff suffered the adverse
employment action because of his membership in a protected class.”
Reives v. Ill. State
Police
,
This issue turns on pretext. [13] Evergreen Park has provided nondiscriminatory reasons that Saunders suspended and terminated Chillmon, so her claim fails unless a reasonable jury could find that these reasons were pretextual. See Hitchcock v. Angel Corps, Inc. , 718 F.3d 733, 738 (7th Cir. 2013) (“[I]f there is no evidence of pretext, then [the] non-discriminatory justifications for firing [the plaintiff] must be believed, which necessarily precludes liability under Title VII.” (citation omitted)). Chillmon has failed to produce sufficient evidence of pretext, so Evergreen Park is entitled to summary judgment on this claim.
1. Saunders’s Nondiscriminatory Reasons Saunders’s proffered reason to suspend Chillmon is that she was insubordinate during a January 23, 2020 meeting with Clarin and Salazar. [Dkt. 50 ¶ 69 (Chillmon agreeing this was the stated reason).] Saunders found that Chillmon was insubordinate because she failed to “take ownership with Clarin on the mistakes in the bulletin” and “argued about” those mistakes the meeting. [Dkt. 45 (“Saunders Dep.”) at 209:11–:14.] Saunders relied on memos from Clarin and Salazar and reviewed a view of the meeting. [ Id. at 205:12–207:19.] Clarin stated that Chillmon was “very defensive and aggressive” and made statements including, “I know what’s going on here and so do you,” and “if you want to fire me, go ahead, I’m not quitting.” He added that Chillmon “said ‘fire me’ at least 10 times.” [Dkt. 40-9 at 53–54.] Salazar’s memo reported that Chillmon “became aggressive and began talking in a loud voice that she was being singled out, that everyone was only out to get her, and that if her work was so bad to go on and fire her.” [ Id. at 55–56.] Both memos said that Salazar said Chillmon was being “extremely insubordinate.” [ at 53–56.] The video of the meeting lacks sound and obscures Clarin and Salazar from view, but it is not inconsistent with the memos; it shows Chillmon shaking her head and gesturing frequently. [ See Dkt. 44 (video 1351 part 1).] Saunders testified that Chillmon had the opportunity to discuss the alleged insubordination, but she said nothing; Chillmon does not recall speaking at the meeting. [Saunders Dep. at 206:11– :17, 208:19–:22; Chillmon Dep. at 198:16–:17.]
Saunders’s nondiscriminatory reason for terminating Chillmon is that she made a false report about Snyder. [Dkt. 50 ¶¶ 79–80 (Chillmon acknowledging this proffered reason).] Saunders terminated Chillmon on March 31, 2020 for claiming that Snyder told her to “shut up” on March 25, 2020. [Dkt. 40-9 at 80–81; Saunders Dep. at 234:24–235:15.] Chillmon reported this incident to Donovan, who reviewed video footage, with audio, of the incident and prepared a memo, which stated:
I heard the following conversation between Clerks Chillmon and Snyder. It should be noted the other people in the area are speaking at the same time:
• Clerk Chillmon: “Why should I shut up”
• Clerk Snyder: “Are you talking to me? Who are you talking to?” • Clerk Chillmon: “No I was talking to Jimmy”
• Clerk Snyder “I thought you were talking to me, because I didn’t say anything.
There is no further dialogue between Clerk Chillmon and Clerk Snyder. At no time is Clerk Snyder heard to say “Shut-Up” to anyone.
[Dkt. 40-9 at 75–76.] Saunders reviewed Donovan’s memo and watched the video of the incident. [Saunders Dep. at 228:20–229:2; Dkt. 42 (video 177).] Saunders did not interview Chillmon or Snyder, but a captain and a detective spoke to them separately about the incident. [Saunders Dep. at 234:19–:23; Dkt. 40-9 at 76.] Based on this information, Saunders concluded that Chillmon had lied when she said she heard Snyder tell her to shut up. [Saunders Dep. at 228:7–:19 (agreeing that the “video is conclusive” and denying that “it’s possible that Rabie Chillmon heard Laurie Snyder say shut up to her”).]
On their face, these reasons are not discriminatory, so to survive summary
judgment, Chillmon must produce sufficient evidence for a jury to find that the
reasons were pretextual.
Hitchcock
,
2. Whether Chillmon Can Show Pretext
A reasonable jury could not find that Saunders’s reasons for suspending or
terminating Chillmon were pretextual. Some of Chillmon’s arguments go to the
accuracy of Saunders’s conclusions [
e.g.
, Dkt. 52 at 13–14 (arguing that the video does
not unequivocally establish that Chillmon lied about Snyder telling her to shut up)],
but “[t]he question is not whether the employer’s stated reason was inaccurate or
unfair, but whether the employer honestly believed the reason it has offered for the
adverse action,”
Liu v. Cook County
,
Video evidence plays a different role than when a video is offered to prove what
occurred.
Kailin v. Village of Gurnee
, 77 F.4th 476, 481 (7th Cir. 2023) (“Video
evidence … can eviscerate a factual dispute only when the video is so definitive that
there could be no reasonable disagreement about what the video depicts.” (citing
Scott
v. Harris
,
Saunders’s belief that Chillmon lied about saying she heard Snyder say, “shut up,” is not so inconsistent with the March 25, 2020 video evidence that a jury could conclude, from his proffered reason alone, that he was lying. Donovan reported that Snyder could not be heard saying, “shut up” [Dkt. 40-9 at 75–76], and Saunders reasoned that because Snyder was not facing Chillmon, Chillmon couldn’t possibly have heard Snyder say, “shut up,” and have it not captured on the video [ see Saunders Dep. at 235:5–:9; Dkt. 42 (video 177)]. Similarly, Chillmon argues that the video from January 23, 2020 “does not show [her] being aggressive or defensive and [Evergreen Park’s contrary argument] is purely speculative given the lack of sound and obstructed views” [Dkt. 50 at 29 n.3]. But Chillmon’s behavior in the video of the January 23, 2020 meeting is consistent with Clarin’s and Salazar’s reports. [ See Saunders Dep. at 209:11–:14; Dkt. 40-9 at 53–56; Dkt. 44 (video 1351 Part 1).] Saunders’s reasons for suspending and terminating Chillmon are not so inconsistent with the evidence that was before him that a jury could reasonably conclude from his statements alone that his reasons were pretextual.
Chillmon must attempt to establish pretext through other evidence, but she
cannot do so. As noted above, there is no evidence that Saunders acted out of animus
toward Chillmon’s national origin. Unlike Clarin and her coworkers, no evidence
shows that Saunders spoke negatively about immigrants or Chillmon’s national
origin, accent, or English skills. Chillmon argues “that she was treated less favorably
than her non-immigrant co-workers,” but that portion of her brief contains no
discussion of Saunders’s conduct. [Dkt. 52 at 8 (citing Dkt. 52 at 3–6).] She also argues
that “Clarin and Saunders were dismissive, frustrated and ignored Plaintiff’s
complaints of discrimination and both showed a preference for the well-being of the
non-immigrant harassers, Walusek and Snyder,” but almost all the actions she
describes were taken by Clarin, not Saunders. [
See id.
at 12–13.] The exceptions are
that Saunders believed that Deputy Chief Wall showed favoritism toward Chillmon
and removed a write-up from Walusek’s file after she was insubordinate [
id.
at 13],
but no evidence links either incident to national-origin bias. Further, she argues that
Ivers’s termination—on the same day as Chillmon, also for making allegations that
Saunders deemed to be false—is “suspect” [Dkt. 52 at 14 n.7], but as with her own
termination, Chillmon fails to present evidence of a discriminatory motive on
Saunders’s part. A reasonable jury could not conclude that Saunders’s reason to
unwelcome, offensive, unprofessional or inappropriate.” [Saunders Dep. at 241:20–242:9.]
Chillmon appears to be correct about this point, but Saunders being mistaken about one
reason for terminating Chillmon does not, by itself, permit the inference that the reason to
terminate her was pretextual.
See Liu
,
suspend or terminate her was a pretext for discrimination on the basis of her national origin.
The record lacks sufficient evidence of pretext, so the non-discriminatory justifications for firing Chillmon must be believed, which necessarily precludes liability under Title VII. Hitchcock , 718 F.3d at 738. Evergreen Park is therefore entitled to summary judgment on Chillmon’s discrimination claim.
C. Retaliation
Finally, the Court considers Chillmon’s retaliation claim. To defeat summary
judgment on this claim, Chillmon “must offer evidence from which a reasonable jury
could find: (1) [s]he engaged in an activity protected by the statute; (2) [s]he suffered
an adverse employment action; and (3) there is a causal link between the protected
activity and the adverse action.”
Lesiv v. Ill. Cent. R.R. Co.
,
1. Adverse Employment Actions
The adverse employment action requirement is easier to satisfy for a
retaliation claim than a discrimination claim; it “is defined as an action that a
reasonable employee would find to be materially adverse such that the employee
would be dissuaded from engaging in the protected activity.”
Lesiv
,
The possibility of an adverse event that never comes to pass is seldom a
materially adverse employment action.
See Poullard v. McDonald
,
Saunders’s actions in the January 6, 2020 meeting, however, could constitute a materially adverse employment action. Chillmon testified that he called her into the meeting, told her that he didn’t believe her complaints of discrimination, and said she would have to take a polygraph test for him to believe her. [Chillmon Dep. at 65:4 –:13.] Saunders went on, saying “I’m going to make sure you are going to have a very hard time to find a good job.” [ at 65:14–:16.] A jury could interpret that comment as a threat: if Chillmon continued to press her complaints, Saunders would retaliate by firing her and sabotaging her future job prospects. Such a threat, coming from the chief of police, goes beyond a vague “threat[ ] of unspecified disciplinary action,” Poullard , 829 F.3d at 856, and could dissuade an employee from engaging in protected activity, see Lesiv , 39 F.4th at 911–12. That is enough for an adverse employment action in the retaliation context.
Evergreen Park’s counterarguments are unavailing. First, it contends that
Saunders’s statement was not an adverse action because it was “ambiguous” and was
not accompanied by any concrete consequence at that meeting. [Dkt. 39 at 10.] True,
but at summary judgment the Court must draw reasonable inferences in Chillmon’s
favor, and the combination of requiring a lie detector test and threatening
termination and sabotage of future employment could reasonably be interpreted as a
genuine, specific threat. While “unfulfilled threats that result in no material harm
cannot be considered an adverse employment action under Title VII,”
Lewis v. Wilkie
,
Second, Evergreen Park points out that Saunders also told Walusek and Snyder that they would have to take polygraph tests and that he has used polygraphs in previous investigations. [Dkt. 39 at 8.] Again, true—the mere fact that Saunders told Chillmon she would need to take a lie detector test is not an adverse employment action, and Saunders’s may simply have meant that if Chillmon was lying and he fired her, prospective employers would be unlikely to hire her when they found out why she was fired. But a jury could also reasonably interpret this evidence as Saunders intending to threaten Chillmon by requiring a polygraph test and that his threat would dissuade a reasonable person from pursuing a complaint of discrimination. The Court cannot make that determination at summary judgment; a jury must do so.
Third, Evergreen Park argues that the fact that Chillmon was not, in fact,
deterred from making complaints and filing an EEO charge indicates she did not
suffer an adverse employment action. [Dkt. 39 at 13.] It cites
Lucero v. Nettle Creek
School Corp.
, which indicated it was relevant that the allegedly retaliatory action did
not dissuade others from engaging in protected activity, but that was not the most
significant reason the plaintiff’s claim failed.
See
Therefore, in addition to her suspension and termination, a reasonable jury could find that Saunders’s threat was an adverse employment action.
2. Causation To satisfy the causation standard, Chillmon must produce sufficient evidence to allow a jury to find that “a retaliatory motive was a but-for cause of the challenged employment action.” at 915 (cleaned up). She easily meets this standard with respect to Saunders’s threat, which was made in a meeting about her statutorily protected activity. Had Chillmon not complained of national-origin discrimination, there would have been no meeting and, therefore, no threat. If a jury found that Saunders’s statement was a threat, it could take the next step and find that he had a retaliatory motive. See id.
With respect to her suspension and termination, however, Chillmon cannot
show causation for the same reason her discrimination claim fails: the record lacks
evidence to support a finding that Saunders’s proffered reasons for suspending and
terminating her were pretextual.
See Liu
,
Chillmon has raised a triable issue of fact on her retaliation claim with respect to Saunders’s alleged threats, but not her suspension or termination. [18]
IV. Conclusion
Evergreen Park’s motion for summary judgment is granted in part and denied in part. [Dkt. 38.] The motion is denied with respect to Chillmon’s hostile work environment claim to the extent that it is based on Clarin’s harassing conduct and Chillmon’s retaliation claim to the extent that it is based on Saunders’s conduct during the January 6, 2020 meeting. The motion is granted with respect to the discrimination claim in full and the hostile work environment and retaliation claims in all other respects.
Enter: 20-cv-7379
Date: September 14, 2023
__________________________________________ Lindsay C. Jenkins United States District Judge
Notes
[1] Chillmon correctly notes that under the applicable totality-of-the-circumstances test,
it is inappropriate to “carve up incidents of harassment and then separately analyze each
incident.” [Dkt. 52 at 2–3.] But “courts consider the totality of the circumstances when
determining whether conduct is severe or pervasive,”
Scaife v. U.S. Dep’t of Veterans Affs.
,
[2] Evergreen Park also argues that Walusek’s and Snyder’s conduct was not objectively
offensive. [Dkt. 39 at 3.] The Court does not address this argument separately because
offensiveness to a reasonable person is one factor relevant to whether conduct is severe and
pervasive.
Scaife
,
[3] Although Chillmon testified that Clarin initially said, “I am not changing the trainer” [Chillmon Dep. at 19:22–:24], this point is immaterial because it is undisputed that Chillmon was reassigned to Snyder.
[4] Chillmon argues that neither Clarin nor anyone above him conducted a satisfactory investigation into her complaints, but this does not change the outcome with respect to Walusek’s and Snyder’s conduct. If Clarin’s or Saunders’s conduct rises to the level of a hostile environment, Chillmon may be able to recover based on that conduct, but not Walusek’s and Snyder’s harassment when they were Chillmon’s trainers.
[5] It is possible Snyder might have said “fucking ignorant” [Chillmon Dep. at 50:8–:12], but for purposes of summary judgment, the Court assumes she said “immigrant” because that better helps establish a hostile work environment based on Chillmon’s national origin.
[6] Ivers testified that, before Chillmon started working at Evergreen Park, she heard Tague mock individuals’ accents and the way they spoke, but she could not give specifics or recall how many times or how recently Tague mocked people. [Ivers Dep. at 104:15–105:8.] This vague testimony alone is not enough to make it reasonable to infer that Tague was motivated by bias toward Chillmon’s national origin when he yelled at her.
[7] Chillmon has produced little evidence about harassment by Saunders and no evidence
that could be construed as bias against her national origin. [
See
Dkt. 52 at 2–6 (no substantive
argument about Saunders’s conduct in hostile work environment section), 11 (conclusory
argument that “Chief Saunders engaged in conduct that created a hostile work environment
for Plaintiff,” citing little evidence relevant to Saunders);
cf.
Dkt. 50 ¶¶ 59–61 (noting
evidence about retaliatory conduct by Saunders but no evidence of national-origin bias).]
Accordingly, a reasonable jury could not find that Saunders created an actionable hostile
environment.
See Scaife
,
[8] Evergreen Park argues that Chillmon’s allegations about Clarin “are vague and lack
specificity which makes it impossible for this Court to determine the severity of her work
environment” [Dkt. 39 at 3], but the cases it cites are distinguishable. In both
Brooks
, 39
F.4th at 441–42, and
Ladd v. Grand Truck W. R.R., Inc.
,
[9] Evergreen Park attempts to dispute this point, but there is ample evidence from which a jury could find that Clarin knew Chillmon was an immigrant. [ See Dkt. 50 ¶ 4.]
[10] Chillmon’s coworkers’ conduct does not contribute to the severe and pervasive
analysis. Walusek’s and Snyder’s harassment while they were training Chillmon is not
actionable because Evergreen Park remedied that misconduct.
See Brooks
,
[11] If Chillmon intended to pursue both methods, which she can,
see Wince
, 66 F.4th at
1040–41, she has waived her
McDonnell Douglas
argument by failing to develop it,
Rock
Hemp Corp. v. Dunn
,
[12] Under a cat’s-paw theory, a plaintiff attempts to prove that an employee without the
authority to fire the plaintiff of impose some other adverse employment action “uses a formal
decision maker as a dupe in a deliberate scheme to trigger a discriminatory employment
action.”
Bragg v. Munster Med. Rsch. Found., Inc.
,
[13] Formal parts of the
McDonnell Douglas
framework include whether the defendant
had a nondiscriminatory reason for an adverse employment action and whether that reason
was pretextual,
Wince
,
[14] In her deposition, Chillmon suggested that she was separately suspended for mistakes in the bulletin [Chillmon Dep. at 70:5–:23], but a reasonable jury could not find that she was suspended for this reason. Chillmon was given a written reprimand for the mistakes in the bulletin. [Dkt. 40-9 at 61–62 (reprimand), 63–64 (suspension).]
[15] Chillmon also argues that “she was terminated for following Defendant’s policy by letting her harasser know that her comment was unwelcome.” [Dkt. 52 at 13.] This argument refers to the fact that one count in her termination notice was for failing to “conduct official business through Chain of Command” [Dkt. 40-9 at 81], but Evergreen Park’s harassment policy encourages employees “to inform the [harassing] individual that his or her behavior is
[16] In the hostile environment section of her brief, Chillmon points out that Saunders removed Wall and Sergeant Trujillo, who she thought were fair, from supervisory roles in the records department. [Dkt. 52 at 8.] Even if she intended this argument also to apply to her discrimination claim, it would not support an inference of pretext without evidence that he was motivated by Chillmon’s national origin. See Brown v. Advocate S. Suburban Hosp. , 700 F.3d 1101, 1105–06 (7th Cir. 2012) (explaining that evidence of bias does not support an inference of unlawful discrimination without evidence of a discriminatory motive).
[17] The Court is skeptical that the timing was suspicious. Chillmon was suspended on January 24, 2020, one day after the January 23 meeting with Clarin and Salazar, and she was terminated on March 31, 2020, after the March 25 incident involving Snyder. Acting on disciplinary infractions within a few days is expected, not suspicious, timing.
[18] The Court’s ruling that other incidents cannot support Title VII liability does not mean that evidence regarding those incidents will be entirely inadmissible at trial. Those issues will be decided through motions in limine and objections at trial.