United States District Court, N.D. Illinois
February 13, 2004.
NANCY MARSHALL, Plaintiff,
ILLINOIS DEPARTMENT OF HUMAN SERVICES and W.A. HOWE DEVELOPMENTAL CENTER Defendants
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM OPINION AND ORDER
In this case, Nancy Marshall, the Plaintiff, alleges that her
employers, the Illinois Department of Human Services ("IDHS") and the
W.A. Howe Developmental Center (the "Howe Center") (collectively, the
"Defendants'"), discriminated against her based upon her race and then
retaliated against her because of her complaints of discrimination, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and 42 U.S.C. § 1981. Pending in this case is the Defendants'
motion for summary judgment. The Court has examined the submissions by
the parties related to the motion and determines that the Defendants'
summary judgment motion should be granted on both counts.
Marshall, an African-American woman, began working for IDHS at the Howe
Center in 1987. Approximately 80% of the employees at the Howe Center are
minorities, and approximately 80% are women. Marshall started work as a
Mental Health Technician ("MHT") trainee, and
currently she is employed as an MHT III. MHTs provide care and training
for the service recipients living at the Howe Center. There are five
different levels of the MHT position at the Howe Center: the starting
level of MHT trainee and then MHT levels I though IV. An MHT DI is a lead
worker during his or her shift for the living area of the residential
house to which he or she is assigned. The MHTs report directly to the
Living Unit Administrator ("LUA") for the Unit in which they are
assigned. The LUAs then report to the Unit Director. Peter Gordon, an
African-American, was Marshall's LUA and direct supervisor in 1999. In
the spring of 2000, Mischa Stewart, an African-American, replaced him and
became Marshall's LUA. Dorothy Carlson, a Caucasian woman, was Marshall's
Unit Director during the times at issue in this case.
A. Confrontation with Monica Lane.
In June 1999, Monica Lane, an African-American woman working as an MHT
II, began working in the same residential house as Marshall. On August
13, 1999, Marshall was temporarily assigned to be an MHT III. After
discussing a work matter, Marshall and Lane had a confrontation in which
Marshall claims Lane physically and verbally threatened her. Lane had a
history of conflict with other co-workers at the Howe Center, and had
previously received a five-day suspension for using vulgar and obscene
language in front of staff and residents.
Marshall complained to Gordon by making a written statement that Lane
had been physically and verbally threatening to her, and had used
inappropriate language in a loud and angry tone. On August 16, 1999,
Marshall met with Gordon and Carlson and complained about Lane. Another
meeting followed, and this time Lane attended as well. Carlson told Lane
that she had to stop her inappropriate conduct, and she re-assigned Lane
to a different house for a week. Marshall claims that at that meeting
Lane threatened her again in the presence of Carlson.
On August 18 or 19, 1999, Marshall met with Carol Wade, the Howe Center
Equal Employment Opportunity/Affirmative Action (EEO/AA) officer. Wade is
African-American. Marshall gave Wade a copy of her written statement
about Lane and told Wade about her meeting with Carlson. She described
the problems she was having with Lane, which Wade understood to be
related to a disagreement they had about decorating the house in which
they were working. Wade determined that Marshall's problem was that she
was having trouble transitioning from a peer to a leader of her
On August 23, 1999, Marshall met again with Lane, Gordon, and Carlson
to discuss permanent schedule changes so that Marshall and Lane would not
have to work together. Lane refused to have her schedule changed, so
Marshall felt she was forced to change her schedule to avoid Lane.
Marshall and Lane, however, continued having to work together two or
three days per week. After the August 23rd meeting, Lane never verbally
or physically threatened Marshall again, although Marshall claims that
Lane continued to harass her and that they had perpetual arguments and
B. Marshall's Promotions.
Marshall was hired by IDHS as an MHT Trainee on November 16, 1987. She
was promoted to MHT I on July 16, 1988; to MHT II on August 1, 1990; and
to MHT III on July 1, 2000. The promotion process at the Howe Center
involves several steps. First, there has to be an opening for a position,
and the MHTs have to submit a bid for the open position. In April 1999,
Marshall, then an MHT II, submitted a bid for the MHT III position. On
May 24, 1999, Marshall received a memo from Carlson stating that she was
selected for the MHT III position. After being selected, MHT IIs must
attend training for the MHT III position and then perform a ten week
Marshall attended the mandatory training in November 1999, and following
her ten week on-the-job training, she received a "certificate of
training" in February 2000. The training certificate is sent to the
Illinois Department of Central Management Services ("CMS"), which then
mails a grade certificate to the employee's home. At that point, the
employee has to bring the certificate to her supervisor, who has to
perform a promotional evaluation on the employee. This is followed by a
series of additional internal bureaucratic steps before the employee is
Marshall's grade notice from CMS was dated March 28, 2000. After she
turned it in to Gordon, her supervisor, Gordon performed a promotional
evaluation for her. Marshall signed her promotional evaluation form on
May 13, 2000, and Carlson signed the evaluation form on May 30, 2000.
There was one more form which Marshall had to sign in order to be
formally promoted, which Keith Taylor and Steven Hunter, African-American
employees involved with EEO investigations, did not present to Marshall
until a later date. Marshall signed this form on August 16, 2000.
Marshall's promotion, however, was finalized by the Director of the Howe
Center on July 14, 2000, and made retroactively effective as of July 1,
2000. Other MHT IIs who began the promotion process the same time as
Marshall had their promotions finalized on April 16 and May 16, 2000.
When an MHT II is selected for a promotion to become an MHT III, he or
she may be temporarily assigned to the position of MHT III. When an
employee is temporarily assigned to a higher position, the employee
receives compensation at the pay level of the higher position. Between
May 16, 2000, and July 1, 2000, Marshall was assigned to be an MHT III,
and received MHT III pay, on 25 of the 31 days that she worked. Marshall
never bid on an MHT IV position.
Between October 27, 1999, and May 2, 2000, Marshall received four
the ten years preceding August 1999, Marshall was never disciplined
and only received one counseling for tardiness in October 1996. A
counseling is a discussion with an employee regarding a negative incident
in an effort to prevent the incident from happening again. Neither IDHS
nor the Howe Center consider it to be a discipline of an employee.
Counselings are not considered in the promotion process and have no
impact on promotions.
On October 27, 1999, Gordon counseled Marshall regarding an incident
when a service recipient ran from a house unsupervised. The consequences
imposed on an MHT whose service recipient leaves a house unsupervised
depends on the specific facts of the incident. An MHT may: (1) receive
nothing; (2) receive counseling; (3) be disciplined; or (4) be discharged.
Next, on December 29, 1999, Marshall was counseled by Gordon for being 15
minutes late to work on December 13, 1999. The Howe Center's policy is to
counsel employees for being 15 minutes late regardless of whether it is
their first or second offense of this nature. On January 31, 2000,
Marshall received a counseling for an incident that occurred on August
6, 1999, when a service recipient cut herself with a piece of plastic.
Marshall was the acting MHT III residence manager at the time of the
incident. The Office of Inspector General of IDHS conducted an
investigation which took several months. Marshall was given a counseling
after the investigation was complete. On May 2, 2000, Marshall received a
counseling from her new LUA, Stewart, for a "call in" pattern, which is
demonstrated when an employee calls into work for a sick day immediately
before or after a scheduled day-off on at least three successive
Based on the foregoing facts, Marshall alleges that Defendants: (1)
discriminated against her on the basis of race through (a) Lane's
actions; (b) Carlson's actions; and (c) counselings she received; and (2)
retaliated against her for: (a) complaining about Lane; and (b)
Carlson's failure to process and investigate the Lane incident. Marshall
filed an EEOC charge of discrimination on June 1, 2000. She filed her
initial complaint on August 2, 2000, and her amended complaint on
February 16, 2001. Defendants brought their motion for summary judgment
on May 19, 2003.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the pleadings, depositions, and
other materials in the record show that there is no disputed issue of
material fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). Summary judgment may be granted when the record as a whole
shows that a rational trier of fact could not find for the non-moving
party. Rogers v. City of Chi., 320 F.3d 748, 752 (7th Cir. 2003). The
non-moving party must make a showing sufficient to establish any
essential element for which he will bear the burden of proof at trial.
Celotex, 477 U.S. at 322-23. The Court considers the evidence in the
light most favorable to the non-moving party and draws all reasonable
inferences in favor of that party. Schneiker v. Fortis Ins. Co.,
200 F.3d 1055, 1057 (7th Cir. 2000).
Marshall brings her claims under both Title VII, 42 U.S.C. § 2000(e) et
seq., and 42 U.S.C. § 1981, but she does not distinguish between the two
statutes. Under § 1981, "[a]ll persons within the jurisdiction of the
United States shall have the same right . . . to the full and equal
benefit of all laws . . . as is enjoyed by white citizens."
42 U.S.C. § 1981. Under Title VII, it is unlawful for an employer "to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, . . . or to segregate, or
classify his employees or applicants for employment in any way which
would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee
because of such individual's race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a)(1-2).
Although Defendants neglected to address Section 1981 in their motion
for summary judgment, when a plaintiff alleges intentional
discrimination, Title VII and Section 1981 actions have the same
liability standards, and they are analyzed in the same manner. Eiland v.
Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998). Therefore, the Court's
rulings apply with equal force to Marshall's Title VII and Section 1981
Marshall alleges that IDHS and the Howe Center racially discriminated
against her in several ways: (1) through Lane's continuing harassment;
(2) by failing to properly process and investigate Marshall's complaint
about Lane's behavior; and (3) by subjecting her to counselings. A
plaintiff alleging race discrimination must prove her claims by direct or
indirect evidence. "[D]irect evidence essentially requires an admission
by the decision-maker that his actions were based upon the prohibited
animus." Cerutti v. BASF Corp., 349 F.3d 1055, 1060-61 (7th Cir.
2003). A plaintiff can also prevail under the direct method by presenting
circumstantial evidence that points directly to a discriminatory reason
for the employer's action. Id. Defendants have not admitted that
their actions were based on a discriminatory reason, and nothing Marshall
has alleged points directly to a racially discriminatory reason for
Defendants' actions. Therefore, Marshall must prove her claims under the
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), indirect,
burden-shifting method of proof.
Under the indirect method, a plaintiff must first establish a prima
facie case of discrimination. A prima facie case of discrimination
requires a showing that: (1) the plaintiff is a member of a protected
class; (2) the plaintiff was qualified for the job or was meeting the
legitimate expectations; (3) the plaintiff suffered an adverse employment
action; and (4) the employer treated similarly situated employees outside
of the protected class more favorably. Foster v. Arthur Andersen, LLP,
168 F.3d 1029, 1035 (7th Cir. 1999). An employer may rebut a prima facie
case by offering a legitimate nondiscriminatory reason for its conduct.
Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). At that point, the
burden shifts back to the plaintiff to prove that the employer's
proffered reasons are merely a pretext for discrimination. Id. Defendants
do not dispute that Marshall met their legitimate expectations or that
she is a member of a protected class African-American. However,
Marshall fails to demonstrate that she suffered an adverse employment
action and that similarly situated employees outside of the protected
class were treated more favorably.
1. Marshall falls to show that she suffered an adverse employment
Marshall alleges that the following constituted adverse employment
actions: (1) Lane's continuing harassment; (2) Carlson's alleged failure
to protect her or respond to her complaint about the incident with Lane;
(3) four counselings Marshall received; (4) a purported two month delay
in final approval of Marshall's promotion to MKT III; and (5) a failure
to promote Marshall to MKT IV in the summer of 2000 because of the delay
in her promotion to MKT IIII. None of these alleged actions constitute
material adverse employment actions.
To be actionable under Title VII, an employer's act of discrimination
must be "with respect to [the employee's] compensation, terms,
conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). The
Seventh Circuit defines a materially adverse employment action as:
. . . more disruptive than a mere inconvenience or an
alteration of job responsibilities. A material adverse
change might be indicated by a termination of
employment, a demotion evidenced by a decrease in wage
or salary, a less distinguished title, a material loss
of benefits, significantly diminished material
responsibilities, or other indices that might be
unique to a particular situation. Of course, not
makes an employee unhappy will suffice to meet
the adverse action requirement.
Traylor v. Brown, 295 F.3d 783, 788-89 (7th Cir. 2002) (internal
citations omitted). In order to constitute a materially adverse
employment action, the action must have some "tangible job consequence,"
or constitute a "significant change in employment status." Herrnreiter
v. Chicago Housing Auth., 315 F.3d 742, 744 (7th Cir. 2002).
Marshall has presented no evidence that Lane's purported harassment had
anything to do with Marshall's employment position, salary, career or
responsibilities. However, a plaintiff may also establish that she
suffered an adverse employment action by showing that her working
conditions were changed in a way that subjected her to a "humiliating,
degrading, unsafe, unhealthful, or otherwise significantly negative
alteration in [her] workplace environment an alteration that can fairly
be characterized as objectively creating a hardship. . . ." Herrnreiter,
315 F.3d at 744-45. Marshall, however, has not presented sufficient
evidence such that a reasonable jury could find that Lane's purported
harassment objectively created a hardship and subjected Marshall to a
humiliating, degrading, and unsafe work environment. Marshall admits that
Lane did not verbally or physically threaten her since the incident on
August 13, 1999, and Marshall's allegations of harassment are based on no
more than Lane's and Marshall's alleged perpetual arguments with each
Marshall also claims that Carlson failed to protect her from Lane and
respond to her complaint about Lane, and that this constitutes an adverse
employment action. Failure to investigate discrimination complaints
potentially could constitute an adverse action if it adversely affects
plaintiff's employment conditions. Bernstein v. Bd. Of Educ., No.
98-3910, 1999 WL 594920, at *3-4 (7th Cir. Aug. 6, 1999). Moreover, "an
employer can be liable under Title VII if the employer had actual or
constructive knowledge of the [discrimination] and failed to address the
adequately." Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir.
1996). Defendants, however, properly responded and investigated
Marshall's complaints about Lane. Carlson met with Marshall, Lane, and
Gordon on the day she received Marshall's complaint. She told Lane to
stop her inappropriate behavior and transferred Lane to work in another
house for one week. Marshall met again with these people when Lane was
scheduled to transfer back to the house where Marshall worked, so that
Marshall or Lane could alter their work schedule to avoid working with
each other. Furthermore, Marshall met separately with Wade to report the
incident with Lane and Carlson's alleged lack of follow-up. Wade,
however, did not see a deficiency in Carlson's conduct, and Wade
interpreted Marshall's problem with Lane as a problem with moving into a
position of authority.
Furthermore, Marshall's complaint about Lane was not about
discrimination. Marshall provides no evidence that she complained that
Lane discriminated against her based on race. Carlson cannot be liable
for failing to investigate a discrimination complaint in the absence of
any actual or constructive knowledge that she was faced with a
discrimination complaint. Knox, 93 F.3d at 1334. Marshall also claims
that she complained to Wade that Carlson discriminated against her based
on race, but Carlson was not investigated. Marshall's argument still
fails, however, because mere was no adverse effect on her employment
conditions. "Not everything that makes an employee unhappy is an
actionable adverse action." Cullom v. Brown, 209 F.3d 1035, 1041 (7th
Cir. 2000). Marshall's employment position, title, salary, and
responsibilities were not adversely affected by Carlson's and Wade's
In addition, Marshall's counselings do not constitute adverse
employment actions because they did not have any job consequences.
Marshall admitted that they did not have any effect on Marshall's
promotion to the MHT III position and her ability to timely complete the
in-class and on-the-job
training, and they will not be considered if Marshall decides to bid on
an MHT IV position, should one become available. Moreover, Marshall's
union contract does not list counselings as discipline, and even Marshall
admitted that counselings were not disciplinary actions. Even undeserved
write-ups and reprimands that do not implicate sufficiently tangible job
consequences fail to constitute adverse actions. Sweeney v. West,
149 F.3d 550, 556 (7th Cir. 1998); Oest v. Illinois Dept, of Corrections,
240 F.3d 605, 613 (7th Cir. 2001). To constitute material adverse
employment actions, a plaintiff must point to "immediate consequence of
the reprimands, such as ineligibility for job benefits like promotion,
transfer to a favorable location, or an advantageous increase in
responsibilities." Oest, 240 F.3d at 613. See also Kersting v. Wal-Mart
Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001) (employer warnings to
employee did not result in, and were not accompanied by, any tangible job
consequence, so they were not adverse employment actions).
Marshall also claims that Defendants' aforementioned actions, even if
not material adverse employment actions in and of themselves, contributed
to a two to three month delay in the final approval of her promotion to
MHT III, with the further result that Marshall was prevented from
promotion to MHT IV in the summer of 2000. The two to three month delay
in the final approval of Marshall's promotion, however, also does not
constitute an adverse employment action. Although her promotion was
finalized six to ten weeks later than the other MHTs who were up for a
promotion to MHT III, the loss in pay was insignificant, and thus, not
material, because she received MHT III pay on most of those days by
virtue of being temporarily assigned to the MHT III position. Between May
15, 2000, when Marshall claims in her deposition that other MHT II
employees were promoted to MHT III, and July l, 2000, when Marshall's
retroactive promotion to MHT III was made effective, Marshall was
temporarily assigned and paid as an MHT III for 25 out of the 31 days she
"[C]ommon sense and the examples used in the statute's principal
section, 42 U.S.C. § 2000e-2(a), exclude instances of different treatment
that have little or no effect on an employee's job." Sweeney, 149 F.3d at
556 (emphasis added). The small amount of money at issue in this case
hardly amounts to a "significant change in employment status." Gulley v.
Am. Trans Air, Inc., No. 02 C 3616, 2003 WL 22159470, at *5 (N.D. Ill.
Sept. 18, 2003).*fn1
Furthermore, the evidence does not support the allegation that Marshall
was prevented from promotion to the MHT IV position. From 1999 to the
summer of 2000, Marshall bid for the position of MHT III, was accepted
for that position, timely participated in mandatory in-class and
on-the-job training, and was formally promoted to MHT III effective July
l, 2000. Marshall, however, never submitted a bid for the position of MHT
IV, and Marshall has presented no evidence that there was even an opening
available. Therefore, Marshall has not shown sufficient evidence of any
material adverse employment action against her.
2. Marshall fails to show that similarly situated employees not in
the protected class were treated more favorably.
In addition, Marshall has not shown that similarly situated employees
not in the protected class were treated more favorably. Marshall alleges
that Beverly Ables, a Caucasian employee, was treated more favorably
because her complaint was investigated more thoroughly. In that case,
three IDHS employees made complaints that Ables sexually harassed them,
and Ables then cross-claimed
that she was sexually harassed. Keith Taylor, the EEO/AA Officer at
the time, investigated the charges and discharged Ables for sexual
harassment. Marshall, however, does not present any evidence that the
investigation into the Ables complaints was more thorough than the
investigation that Carlson, Taylor, Wade, and Hunter conducted into her
complaint against Lane. In addition, Ables was not treated more favorably
than Marshall because she was terminated from her job, and Ables was not
similarly situated to Marshall because she was terminated for sexual
harassment against three co-workers as opposed to Marshall's one claim
about Lane's alleged threats.
Marshall also argues that other Caucasian employees, Ken Kimble, John
Hansan, and Jan Slocum, were treated more favorably than her. These
employees allegedly did not receive counseling when service recipients
for whom they were responsible ran from their residential house. However,
as Marshall admitted, the consequences for when a service recipient runs
from a house are fact specific and can be as severe as a five-day
suspension. In addition, Marshall has not presented any evidence as to
the specific circumstances surrounding these other incidents. Therefore,
the Court cannot determine whether those situations were similar or
3. Marshall fails to show that the Bank's nondiscriminatory reasons
for its actions were pretextual.
Since Marshall fails to establish a prima facie case of
discrimination, the Court need not go any further into the analysis. Even
assuming, however, that Marshall was able to establish a prima facie
case, she fails to show that Defendants' legitimate, nondiscriminatory
explanations for its conduct were pretextual. To establish pretext,
Marshall must show that Defendants' reasons for their actions had no
basis in fact, did not actually motivate the decision, or were
insufficient to support the adverse action. Grayson v. O'Neill,
308 F.3d 808, 820 (7th Cir. 2002). In determining whether
an employer's proffered reason for an employment action was pretextual,
the court is not concerned with whether the employer made a bad
decision, but with whether the employer honestly believed in the reasons
it offered. Wade v. Lerner New York, Inc., 243 F.3d 319, 323 (7th Cir.
2001). Defendants offered valid, specific reasons for each counseling
they gave,*fn2 they investigated Marshall's complaints about Lane and
Carlson, and they offered nondiscriminatory reasons for the brief delay
in Marshall's promotion because certain documents had not been signed.
Thus, Marshall has not presented any evidence showing that Defendants'
proffered reasons were merely a pretext for discrimination, and summary
judgment for Defendants on the discrimination claim is granted.
Marshall claims that Defendants retaliated against her for complaining
about Lane and Carlson. Title VII prohibits an employer from retaliating
against an employee who has "opposed any practice made an unlawful
employment practice by this subchapter or . . . has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing" under the statute. 42 U.S.C. § 2000e-3(a). There
are two methods to prove an employment retaliation claim. Stone v. City
of Indianapolis Public Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002).
The first method requires direct evidence of retaliation. Id. In most
cases, direct evidence is not available because direct evidence
essentially requires an admission by the employer that its decision was
influenced by a retaliatory motive. Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 616 (7th Cir. 2000). In the absence of direct evidence, an
employee may use the indirect method to prove retaliation. Stone, 281
F.3d at 644. Marshall does not present any direct or circumstantial
evidence necessary for the direct method, and, therefore, she relies on
the indirect method.
The indirect method is the adaptation of the McDonnell Douglas
"burden-shifting" test to the retaliation context. In order to establish
a prima facie case, an employee must present evidence sufficient to
demonstrate four elements: (1) she engaged in statutorily protected
activity; (2) she performed her job according to her employer's legitimate
expectations; (3) despite meeting her employer's legitimate expectations,
she suffered a materially adverse employment action; and (4) she was
treated less favorably than similarly situated employees who did not
engage in statutorily protected activity, Hilt-Dyson v. City of Chi.,
282 F.3d 456, 465 (7th Cir. 2002). The failure to satisfy any element of
the prima facie case proves fatal to the employee's retaliation claim.
Id. If the employee succeeds in proving her prima facie case, the second
prong of the test requires the employer to offer a legitimate,
noninvidious reason for the adverse employment action. Stone, 281 F.3d at
644. Once the employer has done so, the burden shifts back to the
plaintiff to demonstrate the pretextual nature of the proffered reason.
Id. As with Marshall's discrimination claim, Marshall fails to establish
a prima facie case.
1. Marshall did not engage in statutorily protected activity.
Marshall alleges that she engaged in statutorily protected activity
when she complained about her problems with Lane to Carlson, the Unit
Director, and when she complained to Wade, Defendants' internal EEO
officer, about Carlson's alleged failure to respond to Marshall's
complaints.*fn3 Complaints about discriminatory conduct to an internal
equal employment opportunity officer may constitute protected activity.
Hunt-Golliday v. Metro. Water Reclamation Dist. of
Greater Chi., 104 F.3d 1004, 1014 (7th Cir. 1997). An employee need not
prove that the underlying conduct about which she complains actually
violated Ti tie VII, but she must honestly and reasonably believed that
the conduct violated Title VII. Id. In this case, Marshall fails to
present any evidence that the substance of her complaints to Carlson and
Wade had anything to do with discrimination or any other activity that
Marshall could reasonably believe was protected by Title VII. As the
Court explained in the preceding section, Lane's and Carlson's alleged
actions or inactions did not constitute discrimination. Merely
complaining to an internal EEO officer does not automatically transform
the complained about conduct into protected activity, Marshall fails to
demonstrate that her belief was reasonable. Therefore, Marshall fails to
demonstrate that she engaged in statutorily protected activity.
2. Marshall fails to show that she suffered an adverse employment
Marshall alleges that the Howe Center retaliated against her with the
same actions she alleged to support her discrimination claim: delaying
the finalization of her promotion to MHT III, resulting in her not being
considered for promotion to MHT IV, and giving her counselings. As
explained above, however, these actions do not constitute material
adverse employment actions. Therefore, Marshall has not stated a claim
for illegal retaliation. See Kersting, 250 F.3d at 1118.
3. Defendants' alleged employment actions occurred too long after
Marshall's alleged protected activity to permit an inference of
Even if Marshall's activity was protected, a ten-month interval between
Marshall's complaints about Lane's and Carlson's behavior and the alleged
delay in her promotion even if considered to be an adverse action
is too long of an interval to permit an inference of retaliation.
A "substantial time lapse between the protected activity and the adverse
employment action is
counter-evidence of any causal connection." Filipovic v. K&R Express
Sys., Inc., 176 F.3d 390, 399 (7th Cir. 1999) (internal citations
omitted). In Filipovic, an interval of four months was too long to permit
an inference of retaliation. Id. In addition, intervals of five months,
see Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir.
1998); nearly six months, see Juarez v. Ameritech Mobile Communications,
Inc., 957 F.2d 317, 321 (7th Cir. 1992); and eight months, see Adusumilli
v. City of Chi., 164 F.3d 353, 363 (7th Cir. 1998), have been determined
to be too long to support an inference of retaliation.
4. Marshall fails to show that the Bank's nondiscriminatory reasons
for its actions were pretextual.
As explained above, although the Court need not go further than
Marshall's failed prima facie case, Defendants have offered legitimate,
nondiscriminatory reasons for their actions. Although Marshall claims
Defendants were dishonest and deceptive in processing her promotion, she
fails to present evidence to support this claim. A plaintiff's
speculation is not a sufficient defense to a summary judgment motion.
Karazanos v. Navistar Int'l Trans. Corp., 948 F.2d 332, 337 (7th Cir.
1991). Therefore, Marshall fails to show that Defendants' proffered
reasons were merely a pretext for discrimination, and summary judgment
for Defendants on the retaliation count is proper.
Due to the foregoing, the Court finds no genuine issues of material
fact have been raised, and the Court grants summary judgment in favor of
Defendants on both counts.
IT IS SO ORDERED.