Oest, Faye M. v. IL Dept Corrections ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3883
FAYE M. OEST,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 97 C 1339--Joe Billy McDade, Chief Judge.
Argued September 18, 2000--Decided February 14, 2001
Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit
Judges.
RIPPLE, Circuit Judge. Faye Oest worked as a
correctional officer for the Illinois Department
of Corrections ("Department") until she was
discharged under the Department’s progressive
discipline system. In this action, she alleges
that the Department violated Title VII of the
Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et
seq., when it (1) discriminated against her on
the basis of sex and (2) discharged her in
retaliation for her earlier filing of a charge
with the Equal Employment Opportunity Commission
("EEOC"). The district court granted summary
judgment for the Department. For the reasons set
forth in the following opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A.
Ms. Oest began working for the Department as a
correctional officer in January 1992. She was
employed at the Hanna City Work Camp in Hanna
City, Illinois, until her discharge for cause in
November 1995, effective January 1996.
All correctional officers are supervised by
lieutenants and, above them, captains.
Lieutenants Pelphrey and Holley always supervised
Ms. Oest; the supervising captain varied. Captain
Reynolds, in his role as internal affairs
officer, conducted many of the investigations
into Ms. Oest’s alleged misconduct, as well as
supervised her during her probationary period
when she first began her employment with the
Department. In this latter role, he conducted her
final probationary evaluation and recommended
that Ms. Oest not be certified as a correctional
officer, the first time he ever had made such a
recommendation. He found problematic Ms. Oest’s
attendance, her miscounts of inmates, and her
difficulty relating to and following the orders
of Department staff. The warden’s office,
however, instructed Captain Reynolds to remove
his negative conclusion from Ms. Oest’s
evaluation.
B.
The Department utilizes a progressive system of
discipline under which management employs various
measures of correction and discipline as
infractions accrue. The process starts with
lesser measures, such as oral or written
reprimands; additional violations precipitate
suspensions and eventually termination.
During her period of employment at the camp, Ms.
Oest consistently received negative performance
evaluations. She also was given many reprimands
and suspensions for violating the Department’s
standards of conduct. Keeping in mind the
importance of the temporal relationship of the
various events in Ms. Oest’s employment history,
we shall chronicle the principal incidents
leading to Ms. Oest’s discharge.
1. Events prior to filing of EEOC
charge
In June 1992, Ms. Oest gave a co-worker an
oversized condom as a "joke" and later received a
written reprimand from Captain Reynolds for this
action. During the same period, in July 1992,
Captain Reynolds gave her an oral reprimand for
miscounting inmates. Ms. Oest was also required
in July to account for the number of sick days
she had used, even though she had a doctor’s
statement for all but one of the days taken.
In January 1993, Ms. Oest received counseling
after Lieutenant Pelphrey wrote her up for
failing to confiscate a visitor’s car keys. Ms.
Oest contends that the visitor did not have the
keys in her possession when she was searched. In
May 1993, Captain Roach asked Ms. Oest to have an
inmate redo a cleaning assignment that she had
supervised, a request apparently not given to
other correctional officers.
Ms. Oest was next referred for discipline by
Lieutenant Pelphrey in November 1993 for failing
to present on a timely basis a slip from her
physician concerning a medical restriction. Ms.
Oest claims that she received a one-day
suspension for the infraction, although
Department records indicate that only a written
reprimand was dispensed.
In January 1994, Ms. Oest received a three-day
suspension for allegedly ignoring a request in
December 1993 to search a female visitor. Ms.
Oest was referred for discipline after Officer
Barclay, a co-worker, reported that she had
refused Lieutenant Holley’s order to search the
visitor./1 Ms. Oest maintains that she did not
disobey an order to search nor was she ever given
a direct order to do so.
On January 24, 1994,/2 Ms. Oest requested a
four-hour "turnaround," a request at the
beginning of a shift to substitute accrued sick
days or other time off for a scheduled work
period. The request is usually, but not always,
granted if ten other officers are available.
Although other officers were present on the day
in question, Lieutenant Pelphrey denied Ms.
Oest’s request. Ms. Oest did, however, receive
turnarounds on other occasions.
Ms. Oest also submits that various officers
repeatedly requested to see her badge; she
received, on numerous occasions, counseling
sessions for not displaying the badge on her
coat. Her male counterparts, she claims, were not
similarly disciplined when they omitted their
badges from their work attire. Ms. Oest also
alleges that she, but not others, was repeatedly
asked if she had the proper number of stripes on
her coat. Yet some evidence exists that these
types of queries often occurred at role call,
when the supervisors could not see the shorter
Ms. Oest standing behind taller correctional
officers.
Ms. Oest also alleges other instances of
discriminatory treatment. She contends that she
was often criticized for initiating assignments
without consulting her supervisors. At other
times, she was reprimanded for lack of initiative
and for asking too many questions. Ms. Oest also
mentions that she was once required to search
inmates in the rain. The record indicates,
however, that Ms. Oest was responsible for
watching the camp’s main gate that day;
conducting the search outside permitted her to
watch the gate at the same time. Further, a male
officer similarly had been ordered to search
inmates in the rain. Ms. Oest claims that
Lieutenant Pelphrey once asked her how many
inmates she had shaken down and that he became
"violently upset" when she responded that she
would have kept count if he had requested it.
R.31, Oest Dep. at 86. To her knowledge, no male
officers were asked the same question.
Ms. Oest took a leave of absence from March
until July 1994. During this period, on June 21,
1994, she filed a charge with the EEOC, alleging
that the Department had discriminated against her
because of her sex.
2. Events after filing of EEOC charge
a.
Lieutenant Sisson, an internal affairs
investigator, was assigned to investigate Ms.
Oest’s EEOC complaint. He interviewed Captain
Reynolds and Lieutenants Holley and Pelphrey,
among others, in December 1994. In those
meetings, Lieutenants Holley and Pelphrey
expressed concern that the Department’s employee
review board had not sufficiently considered the
disciplinary referrals they had submitted
regarding Ms. Oest. Lieutenant Sisson responded
that better "documentation" would provide the
board with the necessary information to assess
the recommendations. R.31, Sisson Dep. at 46. He
noted that their referral packages to the board
often omitted relevant information, testimony, or
evidence. Lieutenant Sisson suggested, therefore,
that Lieutenants Holley and Pelphrey submit more
complete reports in the future to remedy these
"shortcomings in procedure." Id. at 42.
During this period, two of the lieutenants wrote
letters to the internal affairs division in which
they set forth their views on Ms. Oest’s
performance. Lieutenant Pelphrey wrote a letter
in late 1994 or early 1995 in which he alleged
that Ms. Oest showed signs of mental instability
and was "stalking" her supervisors. R.31, Ex.C at
2. Lieutenant Pelphrey wrote that the
"environment that this employee [Ms. Oest]
creates is nothing less than frightening." Id. In
that letter, Lieutenant Pelphrey also describes a
meeting that took place on October 27, 1994, at
which Lieutenant Holley stated that Lieutenant
Pelphrey and he "could not effectively supervise
[Ms. Oest] under the constant threat of legal
action." R.31, Ex.C at 1. According to Lieutenant
Pelphrey’s letter, that statement was "followed
by either she goes or we go." Id. Lieutenant
Holley also authored a memo to internal affairs
in early January 1995. He questioned whether Ms.
Oest had passed her agility test and wrote that
the supervisors’ "authority and supervisory
skills have been emasculated by upper
management." R.31, Ex.D at 2.
b.
Subsequent to Ms. Oest’s filing of the EEOC
complaint, she was written up for various minor
infractions, but at least two of those reports
were withdrawn. In February 1995, Captain Gossett
wrote up Ms. Oest for insufficiently cleaning a
van, an infraction for which she received a
three-day suspension in March. Ms. Oest claims,
however, that the vehicle did not need further
cleaning.
Ms. Oest’s step increase was withheld for
failure to meet Department objectives on April 1,
1995, and she took various leaves of absence from
April to July 1995.
Lieutenant Pelphrey issued Ms. Oest a written
reprimand in September 1995 for redoing a roster
on her personal computer at home in contravention
of policy prohibiting the removal of confidential
information from the work site. She received a
seven-day suspension. According to Ms. Oest,
Captain Gossett knew she was redoing the roster
and had given her permission to do so.
Also in September 1995, Ms. Oest was referred
for discipline by Lieutenant Pelphrey and Captain
Ward; in October, she was issued a ten-day
suspension for permitting the unauthorized
movement of an inmate.
Three additional events occurred, in close
succession, immediately prior to Ms. Oest’s
termination. First, in September 1995, she was
charged with telling inmate Manuel Cruz as he
exited the shower that he had "nice[-]looking
legs." R.31, Ex.A. Although Ms. Oest denies that
she made the statement, she received a thirty-day
suspension after Captain Reynolds initiated an
internal affairs investigation. Captain Reynolds
had received an inmate request slip detailing the
alleged incident, investigated it, and then
referred the matter for an employee review
hearing after consulting with a superior officer.
Curiously, however, Officer Barclay filled out
the request slip, forging Cruz’s name instead of
signing his own, in contravention of Department
policy. Officer Barclay was not disciplined for
this action; although Captain Reynolds had heard
rumors that Cruz had not authored the request
slip, Captain Reynolds did not discover until
"years after the fact" that Barclay had submitted
it instead of Cruz. R.31, Reynolds Dep. at 64.
Next, Ms. Oest, in violation of Department
rules, commented in October 1995 to fellow staff
and inmates about a disciplinary matter involving
her husband. (Ms. Oest’s husband is also a
correctional officer at the same facility.)
Captain Reynolds issued her a written reprimand,
and, following an employee review hearing, the
hearing officer concluded that progressive
discipline should be imposed.
It was further alleged that Ms. Oest, in
violation of a direct order, discussed with Cruz
the investigation into her "nice[-]looking legs"
comment in late October 1995. More specifically,
she allegedly showed Cruz reports and asked him
to change his statement. Ms. Oest admits she
spoke with Cruz twice but denies that she was
ordered not to talk to him. After an
investigation--prompted by an incident report
submitted by Lieutenant Pelphrey-- Captain
Reynolds recommended that Ms. Oest be referred
for an employee review hearing, a decision he
made in conjunction with the Department’s
superintendent and assistant warden. Ms. Oest’s
thirty-day suspension for the comment was changed
to a thirty-day suspension pending discharge. Ms.
Oest was discharged for cause on November 5,
1995, effective January 11, 1996, pursuant to the
Department’s progressive disciplinary policy.
Ms. Oest received a right to sue letter from the
EEOC on July 11, 1997. She filed the complaint at
issue in this appeal on September 26, 1997.
II
DISCUSSION
A. Standard of Review
We review de novo the district court’s decision
to grant summary judgment to the Department. See
Bellaver v. Quanex Corp., 200 F.3d 485, 491 (7th
Cir. 2000). Summary judgment is proper when the
"pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is
no genuine issue as to any material fact and that
the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). The burden
on the moving party may be discharged by
demonstrating "that there is an absence of
evidence to support the nonmoving party’s case."
Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Because the primary purpose of summary
judgment is to isolate and dispose of factually
unsupported claims, the nonmovant may not rest on
the pleadings but must respond, with affidavits
or otherwise, "set[ting] forth specific facts
showing that there is a genuine issue for trial."
Fed. R. Civ. P. 56(e).
Factual disputes are "material" only when they
"might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Thus, if the nonmoving
party fails to make a sufficient showing on an
essential element of her case, the moving party
is entitled to judgment as a matter of law
because "a complete failure of proof concerning
an essential element of the [nonmovant’s] case
necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 323. Factual disputes are
"genuine" only "if the evidence is such that a
reasonable jury could return a verdict for the
[nonmovant]." Liberty Lobby, 477 U.S. at 248. The
evidence must create more than "’some
metaphysical doubt as to the material facts.’"
Johnson v. University of Wisconsin-Eau Claire, 70
F.3d 469, 477 (7th Cir. 1995) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986)).
In deciding a summary judgment motion,
therefore, the district court must decide
"whether the evidence presents a sufficient
disagreement to require submission to a jury or
whether it is so one-sided that one party must
prevail as a matter of law." Liberty Lobby, 477
U.S. at 251-52. It must accept as true the
nonmoving party’s evidence and draw all
reasonable and justifiable inferences in favor of
that party. See id. at 255.
In the context of this case, we must determine
whether Ms. Oest presented sufficient evidence
from which a reasonable jury could find that (1)
she was treated less favorably than similarly
situated male officers because of her sex or (2)
the filing of her EEOC charge caused adverse
employment actions against her.
B. The Sex Discrimination Claim
Title VII prohibits an employer from treating an
employee less favorably with respect to
conditions of employment because of her sex. See
42 U.S.C. sec. 2000e-2(a)(1). To prevail on a
Title VII disparate treatment claim, a plaintiff
must establish that she is the victim of
intentional discrimination. See Jackson v. E.B.
Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999).
In a Title VII action, the plaintiff may
establish discrimination at the summary judgment
stage through either the "direct" or "indirect"
method. See Jackson, 176 F.3d at 982. We shall
examine this case under both methodologies.
1.
We first examine this case under the so-called
"direct" method. Under this methodology, the
plaintiff must establish her case through the
"thoroughly conventional" approach of "putting in
enough evidence, whether direct or, more
commonly, circumstantial, to create a triable
issue of whether the adverse employment action .
. . had a discriminatory motivation." Wallace v.
SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th
Cir. 1997) (internal citation omitted). When
employing the direct proof method, a Title VII
plaintiff also must demonstrate that the
discriminatory remark was causally related to the
adverse employment action at issue. See Robin v.
Espo Eng’g Corp., 200 F.3d 1081, 1089 (7th Cir.
2000).
Upon examination of the record, we believe that
the district court correctly held that Ms. Oest
had not provided sufficient evidence under this
method to create a triable issue of fact as to
whether sex was a motivating factor in the
Department’s decision to discipline and fire her.
As we have noted, allegedly discriminatory
remarks qualify as direct evidence if they are
"related to the employment decision in question."
Robin, 200 F.3d at 1089. In this respect,
temporal proximity is often crucial to the
inquiry. In Robin, for example, derogatory
remarks concerning the plaintiff’s age had been
made two years prior to his discharge. We held,
therefore, that these utterances could not be
considered direct evidence of discrimination. See
id. at 1089. A long time period between a remark
and an adverse employment action can defeat the
inference of a "causal nexus between the remark
and decision to discharge." Geier v. Medtronic,
Inc., 99 F.3d 238, 242 (7th Cir. 1996)
(discounting evidence of bad intent that occurred
a full year before the adverse action). Thus, if
the remarks are not "contemporaneous with the
discharge or causally related to the discharge
decision making process," they are insufficient
to create a triable issue of material fact
regarding discrimination. Id.
We also have considered the context in which the
remark was made to be a relevant factor in
determining causality. In Robin, for example, the
court dismissed the allegedly discriminatory
remarks as "random office banter" and
"conversational jabs in a social setting." 200
F.3d at 1089. Likewise in Geier, a casual comment
was made during a car trip, "a setting unrelated
to discussions" of the poor work performance that
eventually led to the plaintiff’s dismissal. 99
F.3d at 242; see also Kennedy v. Schoenberg,
Fisher & Newman, Ltd., 140 F.3d 716, 724 (7th
Cir. 1998) (noting that the alleged
discriminatory remark occurred in a "casual
setting unrelated to discussions regarding the
issues which led to plaintiff’s dismissal").
In this case, Captain Reynolds remarked in
January 1992 that the camp was "not the place for
women to work." We do not believe that this
comment fairly can be characterized as causally
related to the employment action of which Ms.
Oest complains. Captain Reynolds apparently made
the remark in 1992, around the time that the
initial decision to employ Ms. Oest was made.
Although Captain Reynolds recommended that Ms.
Oest not be certified after her probationary
period at the camp, that conclusion was
disregarded by his superiors. More importantly,
the remark was made almost four years prior to
Ms. Oest’s termination and two years prior to her
first suspension. Further, the comment was not
related to the decision-making process with
respect to Ms. Oest’s continued status. Although
Captain Reynolds did conduct the investigation
into the "nice[-]looking legs" statement, he did
not make the decision to terminate her
employment. He merely referred the matter to the
employee review board for a hearing.
Accordingly, we do not believe that Ms. Oest can
sustain a charge of discrimination under the
direct method.
2.
We next examine whether Ms. Oest has established
a triable case under the familiar indirect or
burden-shifting approach. Because employers
usually are "careful not to offer smoking gun
remarks indicating intentional discrimination,"
the burden-shifting test first elucidated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), provides a means of evaluating
indirect evidence of discrimination at the
summary judgment stage. Robin, 200 F.3d at 1088.
Under the indirect method, the plaintiff must
establish a prima facie case of discrimination.
See McDonnell Douglas, 411 U.S. at 802; see also
Bekker v. Humana Health Plan, Inc., 229 F.3d 662,
672 (7th Cir. 2000). If the employer then offers
a nondiscriminatory reason for the employment
action, the plaintiff must submit evidence that
such an explanation is pretextual. See Bellaver,
200 F.3d at 493.
More specifically, a Title VII plaintiff
establishes a prima facie case of sex
discrimination by showing (1) she was a member of
a protected class; (2) she was meeting her
employer’s legitimate business expectations; (3)
she suffered an adverse employment action; and
(4) the employer treated similarly situated
employees outside the class more favorably. See
Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873,
876 (7th Cir. 1999). If the plaintiff fails to
establish this prima facie case, the employer is
entitled to summary judgment without the court’s
even reaching the two other steps of the
McDonnell Douglas analysis--the employer’s
articulating a legitimate, nondiscriminatory
reason for its action and the plaintiff’s burden
to demonstrate that the purported legitimate
reason was instead pretext for unlawful
discrimination. See McDonnell Douglas, 411 U.S.
at 802-04. Two parts of the prima facie case are
at issue here./3 We shall address each in turn.
a.
Only those acts resulting in adverse employment
actions are cognizable under Title VII. See,
e.g., Simpson, 196 F.3d at 876. Although we have
defined adverse employment actions "quite
broadly," Smart v. Ball State Univ., 89 F.3d 437,
441 (7th Cir. 1996), adverse actions must be
materially adverse to be actionable, meaning more
than a "mere inconvenience or an alteration of
job responsibilities." Crady v. Liberty Nat’l
Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.
1993). For example, a "materially 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." Id. We have noted, however, that "not
everything that makes an employee unhappy is an
actionable adverse action. Otherwise, minor and
even trivial employment actions that ’an . . .
employee did not like would form the basis of a
discrimination suit.’" Smart, 89 F.3d at 441
(citation omitted). Because "adverse actions can
come in many shapes and sizes," Knox v. State of
Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996), it
is important to consider the particular factual
details of each situation when analyzing whether
an adverse action is material, see Bryson v.
Chicago State Univ., 96 F.3d 912, 916 (7th Cir.
1996).
It is undisputed that Ms. Oest’s suspensions and
ultimate termination are adverse employment
actions. Yet Ms. Oest mentions several other
incidents that do not constitute adverse
employment actions under our case law. For
instance, Ms. Oest points to various negative
performance evaluations that she received, but,
in Smart, we held that unfavorable performance
evaluations alone did not constitute adverse
employment actions. See id. at 442; see also Silk
v. City of Chicago, 194 F.3d 788, 801-03 (7th
Cir. 1999).
Nor do we believe that the oral or written
reprimands received by Ms. Oest under the
Department’s progressive discipline system can be
considered, on this record, as implicating
sufficiently "tangible job consequences" to
constitute an independent basis of liability
under Title VII. See Sweeney v. West, 149 F.3d
550, 556 (7th Cir. 1998) ("Absent some tangible
job consequence accompanying [the] reprimands, we
decline to broaden the definition of adverse
employment action to include them."). With the
benefit of hindsight, it can be said that, in
this case, each oral or written reprimand brought
Ms. Oest closer to termination. Such a course was
not an inevitable consequence of every reprimand,
however; job-related criticism can prompt an
employee to improve her performance and thus lead
to a new and more constructive employment
relationship. Moreover, Ms. Oest has not pointed
to any immediate consequence of the reprimands,
such as ineligibility for job benefits like
promotion, transfer to a favorable location, or
an advantageous increase in responsibilities. Cf.
Thomsen v. Romeis, 198 F.3d 1022, 1028 (7th Cir.
2000) (holding that the reprimands the plaintiff
had received might not, as the plaintiff
asserted, lead to future discipline and affect
his ability to compete for promotions and
concluding that "[t]hese consequences, considered
either individually or in conjunction with each
other, appear to be somewhat speculative").
Of course, even if the negative performance
evaluations or reprimands cannot, standing alone,
state a claim of discrimination, they can
constitute relevant evidence of discrimination
with respect to other employment actions that
clearly are adverse employment actions under the
statute./4 See Sweeney, 149 F.3d at 556
(explaining that although negative evaluations
may not constitute adverse employment actions,
they could be used as evidence of discrimination
under the right circumstances); see also Smart,
89 F.3d at 442./5
b.
The district court determined that Ms. Oest had
not demonstrated that she was treated any
differently than a similarly situated male
employee. We agree. The record does not support
the conclusion that the camp officials treated
her differently than a male corrections officer.
When we turn to the various incidents about
which Ms. Oest complains, we find only her own
conclusory assertions that her male counterparts
were treated differently. We previously have
upheld the entry of summary judgment against a
Title VII plaintiff who has presented only his
own uncorroborated, conclusory statements that
similarly situated co-workers were treated
differently. See, e.g., Bragg v. Navistar Int’l
Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998);
Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d
438, 446 (7th Cir. 1997).
Ms. Oest’s first suspension was initiated by
Lieutenant Holley when she refused to search a
female visitor. At the time in question, Ms.
Oest, although on her lunch break, was the only
female officer available. She claims disparate
treatment because Captain Roach did not
discipline a male officer who had complained
loudly when asked to search a visitor. Notably,
however, the male officer did not refuse to
undertake the search nor was the male officer the
only available officer of the appropriate sex.
Thus, he cannot be characterized as similarly
situated to Ms. Oest.
Ms. Oest also was suspended for failing to
ensure that a van was clean, for failing to
comply with written orders regarding confidential
information taken home, and for allowing the
unauthorized movement of an inmate. With respect
to the cleaning of the van and the unauthorized
movement of an inmate, Ms. Oest has offered no
evidence that any male officer had committed a
similar infraction. With respect to the order not
to bring confidential material home, the best she
can do is claim that a male officer had committed
an infraction similar to the misuse of
confidential material but was not disciplined.
This occurrence, however, is not within Ms.
Oest’s personal knowledge and thus, as the
district court noted, cannot satisfy her
evidentiary burden.
Ms. Oest’s other bases of comparison suffer from
similar infirmities. For example, she maintains
that she was reprimanded for the condom incident
while male officers who made sexual jokes and
brought in pornography were not disciplined. As
the district court noted, however, Ms. Oest’s
conduct went beyond possession of a sex-related
item. She had taken the item from her husband
after he was ordered to remove it from the
premises. It was only after Ms. Oest brought the
condom back on Department grounds that she was
punished. Ms. Oest was also reprimanded for
working in violation of her doctor’s orders. She
does not, however, present any evidence that her
male counterparts also worked in contravention of
a physician’s instructions but were not
disciplined.
Further, Ms. Oest submits that she was
disciplined for the failure to remove car keys
from a visitor but admits that she had been told
that a male officer was similarly disciplined.
She also argues that she was treated differently
regarding her matter of dress; specifically, she
was counseled for not having her badge on her
coat. Yet Ms. Oest, again, does not present
evidence that male officers were found without
their badges and not disciplined.
Indeed, the same shortcomings are evident with
respect to the other incidents to which Ms. Oest
points as evidence of discrimination, such as the
demand that she account for sick days used. Ms.
Oest has offered only her own conclusory
assertions, and not specific evidence, that any
male officer had committed conduct similar to
hers or that any similarly situated officer was
treated more favorably. As we have noted, such
uncorroborated generalities are insufficient to
support a Title VII claim. See, e.g., Bragg, 164
F.3d at 377; Cowan, 123 F.3d at 446.
The last three disciplinary incidents that
culminated in Ms. Oest’s discharge--the "nice[-
]looking legs" comment to the inmate, Cruz;
discussion with fellow staff about her husband’s
review hearing; and her conversations with Cruz
about the internal investigation regarding the
comment--occurred within approximately one month.
The district court correctly found that Ms. Oest
presented no specific evidence to support her
conclusory assertion that male officers routinely
discussed disciplinary incidents without being
disciplined. She also failed to show that any
male officer had been accused of making a sexual
comment to an inmate or of discussing the
resulting internal investigation with that
inmate. Ms. Oest compares herself to other staff
members who spoke with Cruz, but these officers
were not similarly situated because they were not
accused of making an inappropriate comment to
him. In short, there is no specific evidence that
any male officer had been accused of similar
infractions; there certainly is no evidence that
any male officer had committed three such
infractions in an analogously short period of
time and yet had escaped discipline.
C. The Retaliation Claim
The district court also entered summary judgment
for the Department on Ms. Oest’s retaliatory
discharge claim. It held that Ms. Oest had failed
to prove a causal connection between her EEOC
complaint and her termination. The court found
dispositive the time lapses that had occurred
between the filing of the complaint and the
adverse employment actions. Specifically, more
than a year passed between the filing of the
complaint and Ms. Oest’s discharge.
Ms. Oest nevertheless contends that the
requisite causal link was established. She points
out that, following the lodging of her EEOC
complaint, her supervisors wrote letters to the
Department’s internal affairs group intimating
that she had made spurious claims in the past./6
Ms. Oest also notes that she was disciplined for
failing to clean a Department van approximately
one month after the supervisors’ letters were
submitted. Thus, although some time passed
between filing the complaint and the allegedly
retaliatory acts, a very short lapse occurred
among Lieutenant Sisson’s interviews with Ms.
Oest’s supervisors, the letters to internal
affairs, and Ms. Oest’s next disciplinary
referral./7
Title VII prohibits employers from retaliating
against employees who contest allegedly
discriminatory acts. See 42 U.S.C. sec. 2000e-
3(a). A prima facie case of retaliation is
established when a plaintiff shows that (1) she
engaged in protected activity under Title VII;
(2) she suffered an adverse employment action
subsequent to her participation; and (3) there
exists a causal connection between the adverse
employment action and her participation in
protected activity. See Smart, 89 F.3d at 440.
In evaluating claims such as this one, we have
relied heavily on temporal proximity when
analyzing retaliation claims; specifically, a
"substantial time lapse . . . is counter-evidence
of any causal connection." Johnson, 70 F.3d at
480. We also have held, however, that
"[s]peculation based on suspicious timing alone"
does not support a reasonable inference of
retaliation; a causal link, again, is required.
Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918
(7th Cir. 2000). A mechanistically applied time
frame would ill serve our obligation to be
faithful to the legislative purpose of Title VII.
The facts and circumstances of each case
necessarily must be evaluated to determine
whether an interval is too long to permit a jury
to determine rationally that an adverse
employment action is linked to an employee’s
earlier complaint./8 The inference of causation
weakens as the time between the protected
expression and the adverse action increases, and
then "additional proof of a causal nexus is
necessary." Davidson v. Midelfort Clinic, Ltd.,
133 F.3d 499, 511 (7th Cir. 1998). Thus, we have
permitted retaliation charges to proceed in the
face of long intervals only when additional
circumstances demonstrate that an employer’s acts
might not be legitimate. See McKenzie v. Illinois
Dep’t of Transp., 92 F.3d 473, 485 (7th Cir.
1996).
Under the circumstances presented here, we
believe that the district court was correct in
its estimation that the delay was too attenuated
to support a jury verdict of retaliation. Ms.
Oest filed her EEOC complaint in June 1994; the
next disciplinary event, her alleged failure to
clean the van, occurred eight months later in
February 1995.
Ms. Oest’s strongest argument is that her
supervisors were engaging in a calculated effort
to build a case against her. Some of the
circumstances surrounding her alleged infractions
warrant our careful scrutiny; for example, that
Officer Barclay forged the inmate’s name on the
request slip; that Lieutenants Pelphrey and
Holley were told to document more extensively Ms.
Oest’s behavior; that the supervisors were upset
that their recommendations regarding Ms. Oest
were being ignored; and that the same few
officers had a hand in most of Ms. Oest’s
discipline. Also deserving of close scrutiny are
Lieutenants Holley’s and Pelphrey’s letters
suggesting that Ms. Oest’s charge was undermining
discipline and intimating that "either she goes
or we go."
Yet none of these instances, taken alone or
together, would support a jury verdict in Ms.
Oest’s favor on the retaliation claim. Ms. Oest
offers no evidence to link the forgery of the
inmate’s signature on the complaint, a disturbing
incident, to an argument that the underlying
event--her "nice[-]looking legs" remark--did not
occur. The remainder of the factors cataloged
above emerged from the internal investigation of
the conduct of Department officials, undertaken
in the wake of Ms. Oest’s filing of the EEOC
charge. The investigating officer’s suggestion
that the officers under investigation should have
kept better records is hardly evidence of
retaliation. The remarks of the officers under
investigation indicating that either Ms. Oest or
they had to leave, although intemperate, were
made in defense of the disciplinary actions that
they had taken against her. A supervisor’s
protestation that his authority was undermined by
allegations that his management practices were
discriminatory does little to establish
retaliation. Moreover, these remarks were not
made by those responsible for deciding Ms. Oest’s
employment status nor is there any indication
that these officers played a part in the final
decision to discharge her, a decision made many
months later./9 Most importantly, the discharge
came only after Ms. Oest committed three
additional infractions within a short time frame.
After close scrutiny of the record, we must
conclude that the district court properly
determined that the evidence simply would not
support a jury finding of retaliation.
Conclusion
Accordingly, the judgment of the district court
is affirmed.
AFFIRMED
FOOTNOTES
/1 Ms. Oest alleges that Officer Barclay later
repudiated this statement when questioned by the
union president.
/2 Ms. Oest submits in her affidavit and statement
of undisputed facts that this incident occurred
in January 1994. In her deposition, however, the
date is listed as November 1994.
/3 The district court correctly held that the second
prong, meeting the employer’s legitimate business
expectations, was not necessary to the analysis;
the people judging Ms. Oest’s performance were
the same she accused of discriminating against
her. See Flores v. Preferred Technical Group, 182
F.3d 512, 515 (7th Cir. 1999) (noting that courts
must apply the McDonnell Douglas test flexibly;
when an employee concedes that she was not
meeting her employer’s expectations but claims
that she was treated more harshly than other
rule-breakers, it makes "little sense in this
context to discuss whether she was meeting her
employer’s reasonable expectations").
/4 Similar principles permit time-barred claims to
be considered as evidence of other
discrimination. Specifically, although matters
that are not the subject of a complaint filed
within the prescribed time limit are not
actionable in themselves, they can constitute
relevant evidence of discrimination with respect
to other actions for which a complaint was
brought within the applicable time limitation.
See Mathewson v. National Automatic Tool Co., 807
F.2d 87, 91 (7th Cir. 1986) ("[E]vidence of
earlier discriminatory conduct by an employer
that is time-barred is nevertheless entirely
appropriate evidence to help prove a timely claim
based on subsequent discriminatory conduct by the
employer."); see also Kusak v. Ameritech Info.
Sys., Inc., 80 F.3d 199, 202 (7th Cir. 1996)
(same).
Therefore, even those instances that the
Department claims to be time-barred (an issue we
need not decide) could be relevant evidence of
discriminatory intent with respect to the other
actions that clearly are not time-barred.
/5 Ms. Oest contends that the denial of her
turnaround request is evidence of discrimination.
We do not believe that this rather routine
scheduling issue can be considered an adverse
employment action, especially since her request
was granted on other occasions. In any event, we
note that, depending on the number of other
officers working on a particular day, male
officers similarly did not always receive the
turnarounds they requested.
/6 Lieutenant Sisson, the officer conducting the
investigation of Ms. Oest’s allegations, at one
point in his deposition made the following
statement: "I would say that in some of our
conversations she has displayed some--some less-
than-ladylike outbursts, but nothing that I would
consider inappropriate." R.31, Sisson Dep. at 50.
Read in context, we think it would be difficult
to attribute gender bias to this particular
remark. It is not clear, moreover, that
Lieutenant Sisson made this remark to anyone in
the Department. In any event, he was not the
individual responsible for the decision to
discharge Ms. Oest. Nor has Ms. Oest demonstrated
that such a remark is an indication of bias in
Lieutenant Sisson’s internal investigation report
or that the report influenced the decision-maker.
/7 Lieutenant Sisson’s investigation took place in
December 1994, the letters to internal affairs
were written around December 1994 and January
1995, and Ms. Oest was disciplined in February
1995 for insufficiently cleaning a Department
van.
/8 A one-year lapse between the protected expression
and the employee’s termination, standing alone,
has been determined to be too attenuated to raise
an inference of discrimination. See Paluck v.
Gooding Rubber Co., 221 F.3d 1003, 1010 (7th Cir.
2000). Intervals of three months, see Sauzek v.
Exxon Coal USA, Inc., 202 F.3d 913, 918-19 (7th
Cir. 2000); four months, see Filipovic v. K&R
Express Sys., Inc., 176 F.3d 390, 399 (7th Cir.
1999); 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 Chicago, 164 F.3d 353, 363 (7th Cir. 1998),
similarly have been determined to be too long to
support an inference of retaliation.
/9 Although the officers participated in the
reporting and investigating of the principal
events leading to Ms. Oest’s discharge, their
role apparently was limited to referring the
matters to the employee review board. The hearing
officer made the ultimate decision to discharge
Ms. Oest.
Williams, Circuit Judge, dissenting in part. I
concur in the majority’s conclusion that Oest has
not provided sufficient direct or circumstantial
evidence to support her claim of discrimination.
I also agree with the majority that, with respect
to Oest’s retaliation claim, the eight-month time
lapse between the June 1994 EEOC complaint and
the alleged retaliatory actions by the Department
is insufficient by itself to support a causal
link. However, Oest points to other evidence
that, together with the reasonable inferences
that may be drawn from the evidence, is in my
judgment sufficient to raise a jury question on
the issue of causation.
Oest’s theory of causation focuses on the time
lapse between her supervisors’ discussion about
her EEOC complaint with an internal affairs
investigator, and the beginning of the
retaliatory actions she alleges. The interview
between Lieutenants Pelphrey and Holley and the
internal affairs investigator occurred in
December 1994. Within days of that interview,
Pelphrey and Holley authored letters critical of
Oest. Less than a month after the letters, Oest
was disciplined for the van incident. Further
incidents of discipline followed, which, after
Oest took time off in the summer, continued up
through the time of her discharge.
Oest’s theory of causation depends on two
assumptions: (1) that Pelphrey, Holley, and her
other supervisors first learned of Oest’s EEOC
claim when they were interviewed by the internal
affairs investigator; and (2) that the supervisor
who first disciplined her after she filed her
EEOC claim knew she had filed the claim despite
the fact that he was not interviewed by internal
affairs./1 Still, there is no evidence
contradicting these assumptions, and for summary
judgment purposes, Oest is entitled to favorable
inferences on both of these points.
Because I think that Oest has provided
sufficient evidence that would allow a reasonable
jury to find in her favor on the issue of whether
the 1995 incidents were causally connected to her
protected expression, I would Reverse the court’s
grant of summary judgment on Oest’s retaliation
claim and Remand for further proceedings, and to
that extent, I respectfully dissent.
FOOTNOTE
/1 The timing of her supervisors’ knowledge of
Oest’s EEOC complaint is important because her
suspensions and discharge are a product of
incidents reported by her supervisors, even if
they did not have final say on the discipline
imposed.