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Bell v. City of Harvey

United States District Court, Seventh Circuit

January 22, 2014

ANDREW BELL, Plaintiff,


MILTON I. SHADUR, Senior District Judge.

This Court's June 21, 2013 memorandum opinion and order ("Opinion, " 2013 WL 3199976 (N.D. Ill. June 21) (Dkt.50))[1] held (1) that plaintiff Andrew Bell ("Bell") had presented sufficient evidence to permit a reasonable jury to find that he had satisfied the causation and protected activity requirements of a retaliation claim under the Age Discrimination in Employment Act ("ADEA") (Opinion at *4, 7)) but (2) that he had failed to satisfy its "material adverse action" requirement (Opinion at *6). Because Bell could not reasonably have anticipated what this Court would perceive as the only potential candidate for finding a materially adverse action - and because summary judgment is intended as a substitute for trial when no material facts are in dispute (see Bank of Am., N.A. v. Mazon State Bank, 2007 WL 2714117, at *3-4 (N.D. Ill. Sept. 17)) - this Court granted Bell an opportunity to file a supplemental submission to provide additional evidence. It warned Bell that if he were unable to submit sufficient evidence to reflect the materiality of his shift assignment, City's summary judgment motion would be granted (Opinion at *6).

Bell's first supplemental submission (B. Dkt. 52)[2] and City's response (C. Dkt. 54) raised as many questions as they answered, and this Court therefore granted Bell still another opportunity to supplement the record. Despite those two extra bites at the apple, Bell has been unable to produce facts sufficient to meet the material-adverse-action standard. Accordingly, for the reasons discussed below, City's motion for summary judgment must be and is granted.

Standard of Review and Factual Background

Because Opinion at *1 has already set out the often-repeated legal test for any summary judgment motion, there is no reason for its further rehearsal here. By the same token, this opinion will not rehash the entire factual background of Bell's case. Instead it incorporates by reference the Opinion's exhaustive factual summary (id. at *1-3), and it details only factual developments arising since that denial.

Final Resolution

To make out a retaliation claim under the ADEA, Bell must point to an employment action that is not only adverse but materially adverse - that is, "severe enough to dissuade a reasonable employee from exercising statutory rights" ( Barton v. Zimmer, Inc. , 662 F.3d 448, 456 (7th Cir. 2011)). As Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 69 (2006) teaches, "the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters."

Bell argues that City's total refusal to assign him to the day shift during 2008 - something that Bell characterizes as an "arbitrary shift assignment" - qualifies as a materially adverse action. But as this Court has pointed out earlier, a change in hours would not ordinarily be sufficient on its own to dissuade a reasonable employee from filing a discrimination charge (see, e.g., Goodman v. Nat'l Sec. Agency, Inc. , 621 F.3d 651, 654-55 (7th Cir. 2010)). Instead Bell must produce evidence of harm stemming from that change in hours (id.).

Bells' additional submissions have offered two primary arguments as to why the shift assignment assertedly caused him harm. First he has argued that the shift assignment "caused friction" in his marriage and that Acting Chief Denard Eaves ("Eaves") made the assignment knowing that such friction would result (B. Dkt. 52 Ex. 1 ¶¶8-9). And Bell has secondly contended that due to the shift assignment he was unable to take all of his scheduled leave time in 2008 (B. Dkt. 64 ¶¶14-15). Neither of those contentions suffices to stave off summary judgment.

Marital Discord?

Bell has relied primarily on his contention that the afternoon shift assignment caused friction in his marriage by (1) preventing him from spending time with his wife and (2) causing her to blame him for filing his initial EEOC complaint (B. Dkt. 52 ¶9). He has also stated that he looked forward to participating in summer activities with his family and could not do so because of his shift assignment (id.). Finally Bell insists that Eaves knew of those unfortunate consequences but nonetheless refused to grant him his desired shift assignment (id. ¶8).

In so arguing, Bell seeks to invoke Washington v. Ill. Dep't of Revenue , 420 F.3d 658, 663 (7th Cir. 2005), which holds that a reassignment that would otherwise fail to rise to the level of a material adverse action may nonetheless constitute such action if an employer "set out to exploit a known vulnerability and did so in a way that caused a significant (and hence an actionable) loss." But Bell's claim falls short of Washington's standard for two reasons. First he fails to come forward with evidence that Eaves knew of any friction (or potential for friction) in his marriage. But more fundamentally, Bell fails to demonstrate (even taking all evidence in the light most favorable to him) that his asserted marital discord and reduced family time constituted a significant harm.

Bell's first additional submission stated simply that Eaves knew "that [he] looked forward to spending summer activities with [his] family" and that "not letting [him] work days would cause friction in [his] marriage" (B. Dkt. 52 Ex. 1 ¶8). When pressed by this Court to provide more detail as to just how Eaves purportedly came to learn those things, Bell remained vague.

Indeed, Bell never responded directly to this Court's request in its brief November 20, 2013 memorandum order for something more than "his own ipse dixit to explain how Chief Eaves came to learn" that a particular shift assignment would cause friction in Bell's marriage. For instance, Bell failed to identify any conversation with Eaves in which Bell communicated his fear that a late shift assignment would strain marital relations. Instead Bell cited a labor management ...

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