April 24, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 11 C 8849 - Joan
B. Gottschall, Judge.
Bauer, Easterbrook, and Kanne, Circuit Judges.
Flanagan says that two coworkers threatened her life because
she previously had sued their shared employer-the Cook County
Adult Probation Department-for discrimination and
retaliation. She brought the present action against the
Department, asserting retaliation under Title VII, 42 U.S.C.
§ 2000e-3(a), based on the hostile work environment
engendered by that supposed murder attempt. The district
court entered summary judgment for the defendants. Because
the threat to Flanagan was too oblique for a jury to conclude
that she was subjected to severe or pervasive harassment, we
is a probation officer with the Cook County Adult Probation
Department, which operates under the Chief Judge of the
Circuit Court of Cook County. She previously sued the Office
of the Chief Judge for discrimination and retaliation, and
she won at trial in 2007 on her retaliation claim.
an appeal in that case was pending, a series of events
unfolded that, Flanagan believes, show that two of her
coworkers tried to kill her. As she recounts, late one
evening at the office (the date is unclear), her colleague
Cheryl Anderson overheard the Department's
human-resources director, Donna Vaughan, tell Flanagan's
deputy chief, Phillipe Loizon, something like "I want to
bring some bodily harm to Kim Flanagan." Vaughan
instructed Loizon "to figure out a way to get [Flanagan]
alone and away from her partner, " and Loizon replied
"I'm going to do it." Sometime later, Anderson
told Flanagan, and also wrote down, what she had overheard.
provides scant detail, but she believes that the following
events show that Loizon attempted to seclude and kill her on
March 13, 2008. That day Loizon radioed for Flanagan to join
him and another department supervisor at an Adult Probation
Department facility to question a probationer regarding a
potential tip. After the questioning, Loizon and the
probationer left the facility through the back door. The
other supervisor then locked the front door and escorted
Flanagan toward the back. While near the back door, Flanagan
overheard Loizon say (to whom is not clear), "Do it to
her when she gets out the door." But nothing further
happened, and Flanagan soon left on her own. Flanagan
regarded these events as threatening, so she promptly filed a
discrimination and retaliation charge with the Equal
Employment Opportunity Commission.
EEOC charge, Flanagan says, prompted Loizon to threaten her.
The following month he approached her in the office parking
lot, exchanged words with her, and then warned, "I could
hit you and nobody would give a fuck." He then walked
away. Sometime later, Loizon yelled in the of-fice-and
Flanagan believes regarding her-"Oh, here she goes again
with a new f'ing charge, " and "I'm so sick
of everybody. [T]hese fucking lawsuits."
Flanagan brought this action against her employer. She
asserted claims of retaliation under Title VII based
primarily on the events in 2008.
district judge entered summary judgment for the defendants.
Regarding the incident at the probation facility, the judge
determined that Vaughan's and Loizon's statements
were inadmissible hearsay, and that "hearsay problems
prove[d] fatal to Flanagan's claim" because she
could not otherwise show a threat on her life. And
Loizon's statements in the parking lot, the judge
continued, did not rise to the level of retaliatory conduct.
appeal Flanagan argues that Vaughan's and Loizon's
statements are not hearsay and that a jury could find that
her coworkers tried to kill her in retaliation for litigating
against their employer. As evidence of a murder plot and
attempt, she points to Anderson's account that Vaughan
instructed Loizon to seclude her and that Loizon agreed to
"do it." Flanagan also highlights Loizon's
command outside of the facility to "do it to her when
she gets out the door."
first consider whether the district court properly excluded
these statements as hearsay. Commands are not statements
submitted for their truth and so are not hearsay. Fed. R. Ev.
801(a); Baines v. Walgreen Co., 863 F.3d 656, 662
(7th Cir. 2017). And statements of a declarant's state of
mind (motive, intent, or plan) are not excluded under the
hearsay rule. Fed. R. Ev. 803(3). Therefore, Vaughan's
instruction to Loizon to "get her alone, "
Loizon's statement that he was "going to do it,
" and Loizon's command to "do it to her"
are admissible. But Flanagan's testimony about what her
colleague Anderson told her, and Anderson's written
account of events, were properly ignored because they suffer
from a double hearsay problem: they are statements
of what Anderson said Vaughan and Loizon had said.
next to the merits. To prove a retaliatory hostile work
environment, Flanagan must show that (1) her work environment
was both objectively and subjectively offensive; (2) the
harassment was in retaliation for protected behavior; (3) the
conduct was severe or pervasive; and (4) there is a basis for
employer liability. Boss v. Castro, 816 F.3d 910,