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Bolanos v. Northeastern Illinois University

United States District Court, N.D. Illinois, Eastern Division

January 4, 2017



          REBECCA R. PALLMEYER United States District Judge.

         Plaintiff Kimberly Bolanos, a Caucasian woman, worked in the registrar's office of Northeastern Illinois University (“NEIU”) under the supervision of the University Registrar, Daniel Weber. Bolanos disapproved of the practices of several other workers, who, she claims, came to work late, misreported their time, and engaged in personal activities while at work. Bolanos confronted these other workers from time to time; after one such confrontation, another employee claimed that Bolanos had created a hostile and threatening work environment. After a hearing, NEIU terminated Bolanos's employment. Bolanos sued NEIU, Weber, and NEIU's president, Sharon Hahs, asserting a host of claims: race and sex discrimination; retaliation; violations of procedural and substantive due process; violation of the Stored Communications Act, arising from NEIU's blocking access to Bolanos's e-mail account; retaliatory discharge; and intentional infliction of emotional distress (“IIED”). Defendants have moved for summary judgment on all counts. The court previously dismissed some claims against Weber and Hahs, and now grants summary judgment to all Defendants on all remaining claims.


         I. Factual History

         Plaintiff Kimberly Bolanos was a graduate student at NEIU, and began working there in June 2007 as a Graduate Assistant-is it unclear what this position entailed. (Am. Compl. ¶ 10 [25]; Defs. Weber and Hahs's Answer to Am. Compl. [44] ¶ 10.) Beginning in June 2009, she was employed in the Registrar's office, in a position referred to as the Assistant Registrar of Graduate Records or, sometimes, Coordinator of Graduate Records. (Defs.' Local Rule 56.1 Statement of Facts in Supp. of Mot. for Summ. J. [63] (“DSOF”) ¶ 8.) In May 2012, Avril Murray was hired as a Graduate Records Representative, under Bolanos's supervision. (DSOF ¶ 11.) Bolanos herself reported to Daniel Weber, the University Registrar;[1] she and Murray were the only employees in the Graduate Admissions and Records Department who reported to him, though Weber also oversees other offices. (DSOF ¶¶ 6, 11-12.) Bolanos testified that she had supervised student workers, but stopped supervising them when she began to report to Weber.[2](DSOF ¶ 8; Pl.'s Statement of Additional Material Facts [71] (“PSOAF”) ¶ 131.) Bolanos was the only one of three assistant registrars[3] who occasionally worked late on special projects. (DSOF ¶ 81.) Weber assigned these projects to Bolanos because of her database management skills, and Bolanos earned positive job evaluations during her employment at NEIU. (DSOF ¶ 81; PSOAF ¶ 117.) Before being placed on administrative leave in 2014, Bolanos had limited interaction with the President of NEIU, Sharon Hahs. (DSOF ¶ 7; Pl.'s Resp. to DSOF [71] ¶ 14.)

         At various times during her employment with the Registrar, Bolanos observed that other NEIU employees failed to adhere to policies regarding tardiness, absenteeism, personal activities at work, and time reporting. In the spring of 2009, [4] Bolanos told administrators, including the associate dean of the graduate college, that an employee named Martha Narvaez Vasquez (“Narvaez”) had been late for work, or absent. (PSOAF ¶ 106; Dep. of Kimberly Bolanos, Ex. 3 to DSOF [63-4] (“Bolanos Dep.”) 125:23-127:3.) She observed that Alice Pennamon, [5] an African-American employee, was frequently absent beginning in 2011, and that Murray began socializing frequently at work in September 2013. (DSOF ¶ 73; PSOAF ¶¶ 99, 102.) On unspecified dates, during staff meetings with Weber, Bolanos also raised concerns about other employees' submitting inaccurate or fraudulent time cards. (Def.'s Resp. to PSOAF ¶ 107 [74]; Dep. of Avril Murray, Ex. 11 to DSOF [63-12] (“Murray Dep.”) 47:9-16, 49:7-12.) In 2012, Bolanos participated in a mediation moderated by NEIU Ombudsperson Bradley Ginn with Murray, Narvaez, and other NEIU employees, to address their interpersonal problems and improve teamwork.[6] (DSOF ¶ 13.) At the discussion, Ginn gave all employees suggestions on how to improve their relationship-Bolanos does not say what those suggestions were, but she testified that other employees agreed to inform the office when they would be late or absent. (DSOF ¶ 13; Bolanos Dep. 136:24-141:11.) Beginning in the fall of 2013, however, several further conflicts arose between Bolanos and other employees, as described below.

         A. September 18, 2013 Incident with Avril Murray

         On September 18, 2013, there was a confrontation between Bolanos and Murray regarding Murray's interaction with a student. (DSOF ¶ 15.) Bolanos claims that the student had not completed her degree requirements and that the head of the student's academic department would not permit her to graduate. (Bolanos Dep. 148:6-152:20.) Bolanos testified that Murray “had ongoing issues with” the same faculty member, though Bolanos was uncertain of the faculty member's name and did not describe Murray's alleged “issues” with this faculty member. (Id.) According to Bolanos, Murray's questioning the student about the faculty member caused the student to become upset. (Pl.'s Resp. to DSOF ¶ 15.) Bolanos and Murray both became agitated. (DSOF ¶ 16.) Weber testified that he counseled Murray about this incident, [7] while Murray herself said that she did not receive any discipline for it.[8] (Pl.'s Resp. to DSOF ¶ 17.) With respect to Bolanos, Weber issued a reprimand, a harsher response than counseling; he explained that he holds supervisors, including Bolanos, to a higher standard than non-supervisors. (DSOF ¶¶ 17-18.) Weber also directed, or at least suggested, that Bolanos take anger management classes, and Bolanos did so.[9] (Pl.'s Resp. to DSOF ¶ 20; DSOF ¶ 82.) At some unknown point later, other employees learned that Bolanos was taking anger management classes. It is unclear how they found out; Weber told Bolanos he did not know who made that information public. (DSOF ¶ 82.) Bolanos notes that on September 20, a few days after the September 18 incident, Murray left the main office doors unlocked but was not disciplined-presumably a violation of policy, but the record does not reveal how serious it was. (PSOAF ¶ 111.)

         B. November 4, 2013 Incident with Verla Grays

         On November 4, 2013, there was an incident between Bolanos and Verla Grays, who held the title of Graduate Admissions and Records Supervisor, and reported to Steven Pajak, the Associate Director of Admission Review and Processing (it is unclear where this falls in the hierarchy with respect to the registrar). (DSOF ¶¶ 22-23; Dep. of Steven Pajak, Ex. 18 to DSOF [63-19] 7:3-9.) Grays supervised Narvaez. (DSOF ¶ 24.) Bolanos became upset because Grays was angry and interrupted Bolanos in her office; Grays claimed that she did so because Bolanos refused to help answer the main office phone. (Pl.'s Resp. to DSOF ¶ 27.) On November 11, Tressa Randolph, a representative from NEIU Human Resources, followed up in response to a request from Bolanos's anger management counselor for information about Bolanos's progress.[10] (DSOF ¶ 29; Ex. 19 to DSOF [63-20].) In response to Randolph's inquiry, Weber told her about the incident with Grays. (DSOF ¶ 29; Ex. 19 to DSOF [63-20].) In particular, Weber e-mailed Randolph that “[t]here appears to have been a confrontation with another employee” and that “[i]f accurate, then Kim [Bolanos] has not had professional, respectful, and appropriate oral conversations with NEIU staff[, ]” but he acknowledged he still needed to “piece together what occurred.” (Ex. 19 to DSOF [65-20].)

         Neither Grays nor Bolanos was disciplined for this incident; Bolanos claims Grays was given leniency because she was new to her supervisory position. It is not clear whether Weber himself was involved in Grays' lack of punishment (DSOF ¶¶ 30-31; Bolanos Dep. at 82:8- 83:9), but he testified that neither Grays nor Bolanos was disciplined because both were considered to be partially at fault. (DSOF ¶¶ 30-31.) Grays told Bolanos that she was too hard to work with, and also said “You can't expect me to be nice to you when I'm mad at you.” (DSOF ¶ 28; PSOAF ¶ 112.) Bolanos claims that neither Weber nor Pajak, Grays's supervisor, responded properly to these comments, though it is unclear whether they were aware of them. (PSOAF ¶ 112.) Bolanos does not specify how she believes Weber or Pajak should have responded, but she complained that Grays “wasn't reprimanded for her unprofessional behavior.” (Bolanos Dep. 83:22-84:3.)

         C. January 15, 2014 Incident with Martha Narvaez

         On January 15, 2014, Bolanos “yell[ed] at” Narvaez for being late to work. (Pl.'s Resp. to DSOF ¶ 32.) Narvaez claims she was less than ten minutes late (DSOF ¶ 32; Ex. 20 to DSOF [63-21]), and that, although Bolanos did not directly threaten her, Bolanos's loud reaction made Narvaez feel unsafe. (DSOF ¶ 32; Dep. of Martha Narvaez Vasquez, Ex. 10 to DSOF [63-11] (“Narvaez Dep.”) 54:16-55:14.) Narvaez reported this incident to her own supervisor, Grays. (DSOF ¶ 33.) Whether Narvaez was disciplined for tardiness is uncertain; Narvaez testified that Grays gave her a verbal warning, but Grays testified she never gave any warnings as a supervisor. (Pl.'s Resp. to DSOF ¶ 34.)

         Following the January 15, 2014 confrontation, Narvaez, a civil service union employee, complained to the union, which filed a union grievance against Bolanos for workplace harassment.[11] (DSOF ¶ 35.) Narvaez also complained to Randolph that Bolanos harassed her; Bolanos agrees with Defendants' characterization that she “micromanaged” Narvaez, though she was not Narvaez's supervisor. (DSOF ¶ 35; see Narvaez Dep. 22:13-18.) Narvaez also spoke with NEIU's Behavioral Concern Team (DSOF ¶ 37) which, Narvaez explained, “deals with people that might not be stable, that might be a risk of hurting someone in the university.” (Narvaez Dep. 59:15-20.) Randolph investigated Narvaez's complaint, and scheduled a meeting with Bolanos to discuss the incident. (DSOF ¶¶ 36, 77.) To do so, Randolph contacted Weber (DSOF ¶¶ 36, 77; Bolanos Dep. 76:8-77:10), perhaps because she and Weber had already discussed the incident. Weber himself neglected to tell Bolanos about the meeting because it “slipped his mind.” (DSOF ¶¶ 36, 77.) Bolanos did, however, attend the meeting, because Randolph eventually told her about it directly. (DSOF ¶ 77; Bolanos Dep. 76:11-77:5.) The outcome of this meeting and Randolph's investigation is unclear; Bolanos claims the complaint was dropped as unfounded, but the union grievance proceeded.[12] (Pl.'s Resp. to DSOF ¶ 36; Def.'s Resp. to PSOAF ¶ 104.)

         Also in January, Bolanos had a meeting with Weber, for reasons not explained in the record. (PSOAF ¶ 122.) During this meeting, Bolanos began crying and told him that Murray and Narvaez were “trying her patience;”[13] Weber expressed sympathy and told her he was trying to help her. (PSOAF ¶ 122.) Bolanos asked that her desk be moved, but Weber declined, explaining that she needed to remain close to Murray, whom Bolanos supervised. (PSOAF ¶ 135.) Weber instructed Bolanos to stop monitoring the time and attendance of employees she did not supervise. (DSOF ¶ 38; Dep. of Daniel Weber, Ex. 4 to DSOF [63-5] (“Weber Dep.”) 44:9-12.) He directed that she not confront such employees, but instead report them to Weber or another supervisor. (DSOF ¶ 38; Weber Dep. 44:9-12.) It is undisputed that Bolanos did not adhere to this directive; instead, she continued to track and confront other employees she did not supervise. (DSOF ¶ 39.)

         D. Alleged Harassment and Complaints to Weber

         During the time that Bolanos and Narvaez were employed at NEIU, Bolanos complained to several individuals-Pajak, Weber, Randolph, and others-that Pajak and Grays did not discipline Narvaez in the same manner that Bolanos disciplined Murray. (DSOF ¶ 69.) Bolanos believes that this inconsistency contradicts what the parties refer to as the “universal disciplinary process” for civil service employees. (Pl.'s Resp. to DSOF ¶ 64; Weber Dep. 25:5-11.) Bolanos confirmed that the inconsistent disciplinary practice was not linked to race; she testified that her complaints “had absolutely nothing to do with the color of anyone's skin[.]” (DSOF ¶ 70; Bolanos Dep. 134:22-135:4.) Bolanos, Murray, Weber, and Hahs are Caucasian, while Narvaez is Hispanic and Grays is African-American; Bolanos, Murray, Narvaez, Grays and Hahs are all female, while Weber is male. (DSOF ¶¶ 3, 5, 7, 10, 11, 22.)

         Bolanos claims that Weber knew that Grays, Murray, Narvaez, and Pennamon “yell[ed] at and harass[ed]” her, but she identifies only a few specific incidents of alleged harassment in her statements of facts. (DSOF ¶¶ 72-73, 75.) First, she complains that she was often required to cover for employees who did not show up for work. (DSOF ¶ 75.) Second, in the spring of 2012, Bolanos heard her coworkers loudly complaining about racism on the part of “certain employees.” (Bolanos Dep. 133:6-13; 136:14-21.) Third, Bolanos claims that her coworkers were “standing right next to [Bolanos's] cubicle voicing loud comments about how lucky [she was] that their God has allowed them to forgive people like [her.]” (Bolanos Dep. 66:19-24.) Bolanos asserts that Weber knew about this purported harassment and allowed her coworkers' abusive behavior to continue. (DSOF ¶¶ 72-73, 75; Bolanos Dep. 66:19-24, 133:6-13, 136:14-21.) Bolanos says that she informed Tressa Randolph about these issues, as well, but the only evidence she cites for this assertion is testimony about her communications with Randolph about the January 2014 incident involving Narvaez. (Pl.'s Resp. to DSOF ¶ 71; Bolanos Dep. 172:14-175:24.)

         E. Class Action Union Grievance and March 13, 2014 Incident

         On March 13, 2014, Bolanos was served with a union grievance. (DSOF ¶ 40.) The grievance, filed as a class action, [14] alleged that Bolanos did not provide a respectful workplace, citing the incidents with Murray and Narvaez. (DSOF ¶ 40; Grievance Form, Ex. 23 to DSOF [63-24].) Weber knew about the grievance before Bolanos did but did not tell her about it.[15](DSOF ¶ 78.) Murray and Narvaez, who were (unlike Bolanos) civil service employees and union members, discussed the grievance with the union president without letting Bolanos that they were doing so. (DSOF ¶¶ 8, 17, 35; Pl.'s Resp. to DSOF ¶ 41.) When she received a copy of the grievance, Bolanos began to cry. (Pl.'s Resp. to DSOF ¶ 42.) The timeline of these events is somewhat unclear; the parties do not say how soon it was after Murray and Narvaez met with the union president that Bolanos received the grievance. In any case, Bolanos asked Murray where she had been, and Murray did not disclose that she had met with the union president, instead claiming that she had been in the bathroom. (Pl.'s Resp. to DSOF ¶ 42.) Bolanos confronted Murray in her cubicle, raising her voice and moving closer to Murray (DSOF ¶¶ 42-43);[16] Murray claims Bolanos did not say anything specifically about the grievance, but did ask Murray whether she “want[ed] to stick with [the bathroom] story[.]” (Murray Dep. 62:15- 63:4.) Weber was not present when Bolanos received the grievance, but Bolanos spoke to him about it soon afterwards, and she claims that Weber responded by telling her he “had no time for the drama.” (PSOAF ¶ 134; Bolanos Dep. 113:5-17.)

         After this confrontation (for which Narvaez was also present, possibly because she had been with Murray at the meeting with the union president), Murray and Narvaez informed Weber and the Associate Vice President for Enrollment Management Services, Dr. Harring-Hendon, [17]about the incident, and told Weber and Harring-Hendon that they felt unsafe and threatened by Bolanos. (DSOF ¶¶ 43-44.) Murray told Weber that she did not want to work for Bolanos anymore, and Narvaez told him she was afraid of retaliation. (DSOF ¶ 45-46.) At Weber's direction, Bolanos went home for the day at 4:00 p.m., and then she took a vacation day the next day. (DSOF ¶ 48.) Bolanos testified that, when he sent her home, Weber told her that it was easier for him to send Bolanos home than to send two civil service employees (Narvaez and Murray) home. (PSOAF ¶ 105; Bolanos Dep. 78:5-79:12.) At some point, possibly the same day, Narvaez informed Randolph, the Employee Labor Relations Manager who had investigated the January 2014 incident, about Bolanos's reaction after receiving the grievance. (DSOF ¶ 47; Dep. of Tressa Randolph, Ex. 13 to DSOF [65-14] 26:8-27:13.) At some unspecified time, Narvaez also contacted the NEIU Police Department. (DSOF ¶ 46.)

         F. Investigation and Termination

         Together with staff from Human Resources (their names are not in the record), Weber investigated the circumstances surrounding the March 13, 2014 confrontation, interviewing Bolanos, Grays, and Murray.[18] (DSOF ¶ 49.) Human Resources placed Bolanos on paid administrative leave beginning on March 14, 2014.[19] (DSOF ¶ 50.) While Bolanos was on administrative leave, Randolph directed her not to come to NEIU or contact anyone from work. (PSOAF ¶ 128; Bolanos Dep. 80:8-81:1.)

         As part of its own investigation, the NEIU Police Department interviewed employees (the record does not specify who) and conducted a background check of Bolanos. (Bolanos Termination Hr'g Tr., Ex. 15 to DSOF [63-16] 274-6.) Following the investigation, the NEIU Chief of Police, James Lyon, determined that Bolanos was a threat to other employees. (Ex. 15 to DSOF at 277.) NEIU officials (again, not identified) concluded that Bolanos created a hostile work environment and recommended she be terminated. (DSOF ¶ 51; Ex. 15 to DSOF at 277; Weber Dep. 54:4-12.)[20] Bolanos disputes that she created a hostile environment or a threat, but does not challenge NEIU's assertion that this was the reason for termination.[21] (Pl.'s Resp. to DSOF ¶ 51.)

         Weber, Randolph, Lyon, Harring-Hendon, Director of Human Resources Marta Maso, and Assistant Vice President for Business Affairs Craig Duetsch recommended Bolanos's termination (presumably to Hahs, though that is unspecified). (DSOF ¶ 53.) Hahs wrote to Bolanos, notifying her that NEIU was seeking her termination for creating a hostile and threatening workplace on April 1, 2014. (DSOF ¶ 54.) On April 7, Bolanos requested a hearing pursuant to her right under NEIU regulations. (DSOF ¶ 55; Ex. 28 to DSOF [65-29] 21.) The termination hearing was held on May 9, 2014 before a committee of five employees. (DSOF ¶ 57.) Consistent with NEIU regulations, two of these employees (David Leamon and Mary Hay Verne) were selected by Bolanos.[22] (DSOF ¶ 57; Ex. 27 to DSOF [63-28]; Ex. 29 to DSOF [63-30].) Of the remaining three (Janice Alexander, Judy Brewer, and Luigi Pezzarossi), two were selected by NEIU, and the four employees together selected the fifth. (DSOF ¶ 57; Ex. 27 to DSOF [63-28]; Ex. 29 to DSOF [63-30].) Lyon, Murray, Narvaez, Grays, and Weber testified at the hearing. (DSOF ¶ 59.) Bolanos claims that Weber “lied” at the hearing by stating that Bolanos had not complained about her coworkers' tardiness as much as Bolanos claims she had. (DSOF ¶ 86.)

         The committee recommended that Bolanos's employment be terminated. The committee concluded that, although Bolanos made no specific threats, she “exhibited threatening behavior and intimidated her co-workers.” (DSOF ¶ 60; Ex. 27 to DSOF [63-28].) As President of NEIU, Hahs placed the matter of the proposed termination on the Board of Trustees' agenda. (DSOF ¶ 61.) NEIU procedure requires that Hahs meet with the employee or attempt to communicate regarding possible remedial actions before a notice of intent to terminate is issued. (Pl.'s Resp. to DSOF ¶ 61.) Bolanos claims that Hahs did not follow these procedures, and that Hahs recommended her termination “with no physical evidence.” (DSOF ¶ 91; Pl.'s Resp. to DSOF ¶ 61.) On June 12, 2014, the Board of Trustees voted to accept the recommendation to terminate Bolanos. (DSOF ¶ 62.) The NEIU police escorted Bolanos to retrieve her belongings and Weber inspected them for sensitive information. (DSOF ¶ 87.) Bolanos testified that she had never seen other employees escorted and have their belongings inspected; she conceded, however, that she does not know whether other former employees she observed had been terminated. (DSOF ¶¶ 87-88; Bolanos Dep. 96:13-97:11.)

         G. Bolanos's E-mail Account

         Bolanos maintained an NEIU e-mail address, which she used in both her capacity as a student and as an employee of NEIU. (DSOF ¶ 9.) When she was placed on administrative leave, Bolanos asked Randolph to set up an auto-reply message for her e-mail. (Pl.'s Resp. to DSOF ¶ 83.) Someone did place an auto-reply on her account the following week. (Bolanos Dep. 90:3-91:18.) At some point after this, Bolanos told Human Resources employee Marta Maso that Weber was “flooding” her e-mail with test messages for the auto-reply. (Bolanos Dep. 91:13-18.) She also e-mailed several NEIU employees, including Hahs, from that account while she was on leave. (DSOF ¶ 90; Bolanos Dep. 92:9-24.) Hahs never met with Bolanos. (DSOF ¶ 90.)

         The account was deactivated on May 5, 2014, four days before Bolanos's termination hearing, and Bolanos received a new e-mail account for education purposes. (DSOF ¶ 56.) Bolanos claims that other former NEIU employees retained access to their email accounts, but she does not know if those former employees were discharged.[23] (DSOF ¶ 84.) Bolanos claims that being locked out of her old e-mail account has interfered with her ability to finish her graduate degree at NEIU because she had files and correspondence related to her education in the blocked account. (DSOF ¶ 92; Bolanos Dep. 192:17-193:6.)

         H. Proceedings After Bolanos's Termination

         On May 6, 2014 (three days before the termination hearing), Bolanos filed a Charge of Discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission. (DSOF ¶ 94.) Bolanos also mailed an ethics complaint[24] to NEIU, which she says outlined various grievances, including “timekeeping, the coming and going, filing fraudulent timekeeping, [and singling Bolanos] out for punishment, ” though Bolanos does not say whether she identified specific workers engaged in the alleged wrongdoing. (Bolanos Dep. 184:13-21.)

         II. Procedural History

         Bolanos filed her original complaint on September 26, 2014 against NEIU, alleging claims of sex, race, and national origin discrimination, and retaliation under Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983; due process violations under 42 U.S.C. § 1983; violations of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701, and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; and state law claims of intrusion on seclusion, retaliatory discharge, and IIED. (Compl. [1].) NEIU moved to dismiss all but the Title VII claims on sovereign immunity grounds. (Def.'s Mot. to Dismiss Portions of Pl.'s Compl. [10].) This court granted that motion without prejudice on February 18, 2015. (Minute Entry [24]; Tr. of Proceedings, Feb. 18, 2015 [79].) The court noted that Bolanos's § 1981 and § 1983 claims against NEIU were barred by sovereign immunity, and that the other claims were also barred absent an immunity waiver for such claims. (Tr. of Proceedings [79] 4:1-18.) The court granted Bolanos leave to amend to address the sovereign immunity issue for those claims and to make a claim for prospective relief, if appropriate.[25] (Tr. of Proceedings [79] 3:18-4:4, 4:10-5:16.)

         In her amended complaint filed on March 11, 2015, Bolanos withdrew her claim under Computer Fraud and Abuse Act and the intrusion-on-seclusion claim, and added Weber and Hahs as Defendants in their individual and official capacities. (Am. Compl.) The amended complaint alleges, against all Defendants: sex discrimination under Title VII (Count I); race and national origin discrimination under Title VII (Count II); retaliation under Title VII (Count III); violation of procedural and substantive due process under § 1983 (Count IV); sex, race, and national origin discrimination and retaliation under § 1983 (Count V); sex, race, and national origin discrimination and retaliation under § 1981 (Count VI); retaliatory discharge (Count VIII); and IIED (Count IX). She alleged a violation of the SCA against NEIU only (Count VII).[26] Aside from removing two claims and adding two defendants, the allegations in the amended complaint are virtually identical to those in the original complaint.

         Defendants Weber and Hahs moved to dismiss all but the § 1983 claim alleging sex, race, and national origin discrimination. Bolanos conceded that the Title VII and retaliatory discharge claims should be dismissed against Weber and Hahs, and the court dismissed the claims against those Defendants. (Defs. Weber and Hahs's Partial Mot. to Dismiss [34] 2, 10; Minute Order [43]; Tr. of Proceedings, Jul. 15, 2015 [50] 2:13-19.) The court also dismissed the due process clams in Count IV and dismissed the § 1981 claim in Count VI because there is no private right of action against state actors under § 1981. (Tr. of Proceedings [50] 2:22-3:24); Campbell v. Forest Pres. Dist. of Cook Cty., 752 F.3d 665, 671 (7th Cir. 2014). As for Count V (violation of § 1983), the court dismissed the retaliation aspect of the claim, and all of the official-capacity claims. (Tr. of Proceedings [50] 4:4-12, 5:10-20.) The court denied the motion with respect to Count IX (IIED). (Tr. of Proceedings [50] 5:21-6:13.) Thus, all claims in the amended complaint remain against Defendant NEIU, and the claims remaining against Defendants Weber and Hahs are: Count V (sex, race and national origin discrimination under 42 U.S.C. § 1983) and Count IX (IIED), in their individual capacities.


         Summary judgment is appropriate when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1032 (7th Cir. 2005). The court will give the plaintiff “the benefit of all conflicts in the evidence and all reasonable inferences that might be drawn from the evidence, without necessarily vouching for their objective accuracy.” Malin v. Hospira, Inc., 762 F.3d 552, 554 (7th Cir. 2014). The court construes the evidence and all reasonable inferences in the light most favorable to the nonmoving party. O'Connor v. DePaul Univ., 123 F.3d 665, 669 (7th Cir.1997).

         I. Title VII Sex, Race, and National Origin Discrimination (Counts I & II)

         Plaintiff alleged that Defendant NEIU discriminated against her on the bases of her race, sex, and national origin.[27] In determining whether these claims survive summary judgment, the court considers the evidence as a whole to determine whether a reasonable jury could find that a prohibited factor influenced the challenged employment decision. As the Court of Appeals recognized in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765-66 (7th Cir. 2016), the court need not determine whether evidence “can be labeled ‘direct' or ‘indirect[;]'” such distinctions do not comport well with the fact-intensive analysis in discrimination cases. Id. at 765. Under Ortiz, the court must simply consider “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. In making the assessment, the court considers all evidence, whether previously characterized as direct or indirect, which can include: admissions of discriminatory intent, whether similarly situated employees outside the plaintiff's class received systematically better treatment, whether the employer's reason for the adverse employment action was legitimate or a pretext, whether the plaintiff met the employer's legitimate expectations, suspicious timing, and the employer's comments or behavior toward employees of the same class. See Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 879-80 (7th Cir. 2016), cert. denied, 137 S.Ct. 82 (2016); Alexander v. Casino Queen, Inc., 739 F.3d 972, 979 (7th Cir. 2014). The court will also consider evidence that a plaintiff was in a protected class, Bagwe, 811 F.3d at 880, or, if the plaintiff is in a majority group, “background circumstances [that show] the employer has reason or inclination to discriminate invidiously against whites or evidence that there is something ‘fishy' about the facts at hand.” Formella v. Brennan, 817 F.3d 503, 511 (7th Cir. 2016) (quoting Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005)).

         “In a discrimination case, a materially adverse employment action is one which visits upon a plaintiff ‘a significant change in employment status.'” Boss v. Castro, 816 F.3d 910, 915 (7th Cir. 2016) (quoting Andrews v. CBOCS West, Inc., 743 F.3d 230, 235 (7th Cir. 2014), overruled on other grounds by Ortiz, 834 F.3d at 765). “Such changes can involve the employee's current wealth, his career prospects, or changes to work conditions that include humiliating, degrading, unsafe, unhealthy, or otherwise significant negative alteration in the workplace.” Boss, 816 F.3d at 915. Bolanos has identified at least eighteen examples of what she deems adverse action.[28] (Pl.'s Resp. to DSOF ¶¶ 69-92.) The court first addresses Bolanos's alleged harassment by her coworkers and NEIU's alleged failure to address it. Second, the court explains why many of the events that Bolanos complains of are not adverse employment actions. Third, the court examines factors that might support a finding of discrimination in her discharge, including whether Bolanos's performance met NEIU's legitimate expectations, whether Bolanos was treated differently than similarly situated individuals of a different class, and whether the circumstances were otherwise suspicious.

         A. Harassment

         First, Bolanos claims that Murray, Grays, and Narvaez harassed her, and Weber did nothing. “An employer is prohibited from requiring employees to work in a discriminatory hostile or abusive environment.” Velez v. City of Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006). “To survive summary judgment on a hostile work environment claim, [a plaintiff must] establish that: (1) [s]he was subjected to unwelcome harassment, (2) the harassment was based on [her] race, (3) the harassment was severe and pervasive enough to alter the conditions of [her] environment and create a hostile and abusive working environment, and (4) there is a basis for employer liability.” Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863 (7th Cir. 2005). As to the fourth element, NEIU is liable “only if [officials or supervisors] know (or ought to know) what is going on and choose to do nothing (or select ineffectual steps when better ones are available)[.]” Maalik v. Int'l Union of Elevator Constructors, Local 2, 437 F.3d 650, 653 (7th Cir. 2006).

         If Weber was aware of severe or pervasive racial or sexual harassment and took no action to correct it, then NEIU may be liable. Bolanos makes two claims that her coworkers harassed her. First, she claims that they did not show up to work, so she had to cover for them. (Pl.'s Resp. to DSOF ¶ 75.) Second, she claims that they raised their voices, harassed, and threatened[29] her. (Pl.'s Mem. of Law in Opp'n to Mot. for Summ. J. [70] (“Pl.'s Mem.”) 13.) She also claims that Weber knew about the harassment and its impact on Bolanos, but he allowed it.

         Assuming that these circumstances constitute harassment, Bolanos has offered no basis for the conclusion that the alleged wrongdoing was motivated by Bolanos's gender or race. There is no evidence that her coworkers were tardy or absent from work because Bolanos is white or female. And it is apparent that the verbal altercations and other conflicts between Bolanos and her coworkers occurred because Bolanos wanted to see her coworkers disciplined for rule infractions-discipline that the coworkers presumably would not have welcomed. Bolanos's coworkers may have reacted hostilely to her efforts to correct them, but Title VII does not cover “all boorish or even all harassing conduct.” Berry v. Delta Airlines, Inc., 260 F.3d 803, 808 (7th Cir. 2001); see Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010) (“A plaintiff's subjective determination of tension in the workplace, without more, cannot constitute an adverse employment action absent a tangible job consequence.”). Grays made negative comments after a dispute about interruptions and workplace civility, but nothing about these comments suggests a racial motivation (Grays's status as an African-American is, of course, not evidence of any such motivation). Similarly, there is no evidence that Narvaez's complaints about Bolanos had anything to do with her race, sex, or any reason beyond resentment of Bolanos's “yelling” at her. As for the fact that Bolanos's attending anger management classes became known to her coworkers, there is no evidence of who made that information public, let alone any unlawful motivation for the disclosure.

         Bolanos offers no evidence that any of the alleged harassment was gender-based, and her evidence of racial motivation is similarly far too thin to support a verdict in her favor on this claim. Her assertion that her coworkers “call[ed] her a racist for enforcing the [NEIU] policies” and that Weber took no action in response (Pl.'s Resp. to DSOF ¶ 72), fails for two reasons. First, the evidence suggests that her coworkers were motivated by Bolanos's outlook on the NEIU rules-not by her race. More significantly, these comments neither mentioned Bolanos's name, nor were they directed at her (Bolanos Dep. 133:23-134:21); instead, “there [were] little comments being made at the front counter . . . never mentioning [Bolanos's] name but they would be at the counter saying, ‘Certain people around here are racist. . . .' And [another coworker] mentioned to [student workers] that she thought it was racist intent.” (Bolanos Dep. 133:8-134:6.)

         A suggestion on the part of other workers that unnamed persons were motivated by race is insufficient to establish that Bolanos experienced a hostile environment. “[R]elatively isolated instances of non-severe misconduct will not support a claim of a hostile environment.” Whittaker v. N. Illinois Univ., 424 F.3d 640, 646 (7th Cir. 2005) (quoting Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993)). In Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993), the defendant “asked [the plaintiff] for dates, called her a ‘dumb blond, ' put his hand on her shoulder several times, placed ‘I love you' signs in her work area and attempted to kiss her in a bar.” Yet the court held that even those much more overt incidents were “relatively isolated” and did not constitute harassment. Id. Here, it is not even clear that there was more than one instance of comments made at the front counter, and the comments were not directed at her and did not mention her by name. Thus, even if NEIU or Weber knew of these comments and allowed them to occur, this claim of harassment does not survive summary judgment.

         B. Not Actionable as Adverse Employment Actions

         Bolanos complains about other incidents as well, but several of these incidents do not rise to the level of adverse employment action. For example, Bolanos claims that she was subject to harsher discipline than Murray and Grays for the same incidents. In order for disciplinary measures to be actionable, they ordinarily must be accompanied by “tangible job consequence[s.]”[30] Jones, 613 F.3d at 671; see Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009) (“[W]ritten reprimands without any changes in the terms or conditions of his employment are not adverse employment actions.”); Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 847 (7th Cir. 2007) (“[N]ot every criticism or disciplinary measure is an ‘adverse employment action' for Title VII purposes.”).

         Before she was placed on leave, none of the discipline imposed on Bolanos resulted in a consequence sufficient to be adverse employment action. Bolanos does not explain how the aftermath of the September and November 2013 incidents materially altered the terms or conditions of her employment. See Porter v. City of Chicago, 700 F.3d 944, 954-55 (7th Cir. 2012) (“[The plaintiff] fails, however, to put forth evidence that [issuing a counseling session report] materially altered the terms or conditions of her employment. Absent such evidence, these actions are indistinguishable from the schedule changes and reprimands without material consequences that we have held generally do not constitute adverse employment actions.”).

         Four other incidents that Bolanos cites as evidence of discrimination also are not adverse, and there is no evidence tying them to Bolanos's race or sex. First, police escorted Bolanos to pick up her personal items after she was terminated, and Weber looked through them-treatment Bolanos claims she had never seen imposed on other employees. Bolanos concedes she is not aware how NEIU officials dealt with other employees who were terminated, however. In any event, this treatment occurred after Bolanos was terminated, so it could not have materially altered the conditions of employment.

         Next, Bolanos claims that Weber failed to advise her about a Human Resources meeting regarding the January 2014 incident with Narvaez or about the union grievance.[31] (DSOF ¶ 77- 78.) But Bolanos actually attended the HR meeting, and she learned of the grievance when she was served with it. She offers no explanation for how earlier notice, or notice from a different individual, might have changed things. Weber's failure to tell her about the meeting and grievance is not adverse employment action.

         Third, Bolanos complains that Narvaez's supervisors did not discipline Narvaez as harshly as Bolanos disciplined Murray. That Grays supervised her employees differently may have made Bolanos's job harder, and she may well be correct that inconsistent enforcement of attendance policies is unwise. But the fact that another supervisor was more ...

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