NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2011*
Decided August 31, 2011
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11-1791
ANTHONY PALERMO, Appeal from the United States District
Plaintiff-Appellant. Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 C 2050
HILLARY RODHAM CLINTON,
Secretary of State, Samuel Der-Yeghiayan,
Defendant-Appellee. Judge.
ORDER
Anthony Palermo sued his employer, the U.S. Department of State, for race
discrimination, gender discrimination, and retaliation. The district court granted summary
judgment to the Department of State, and Palermo appeals. We affirm because Palermo’s
evidence does not support a prima facie case of discrimination or retaliation.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. The appeal is submitted on the briefs and record. See Fed. R. App. P.
34(a)(2)(C).
No. 11-1791 Page 2
Palermo, a white male, has worked for the State Department in the Chicago Regional
Passport Office since 1995. During this time, he has filed eight or nine complaints of
discrimination. Brittany Williams, an African-American female, was Palermo’s supervisor from
2005 until 2009. In 2007 Williams nominated Palermo for a discretionary performance bonus.
The awards committee asked Williams’ supervisor Terry Green to reevaluate Palermo and
resubmit the nomination. Green submitted the nomination for Palermo after the deadline, and
Palermo did not receive the bonus.
In 2008 Williams rated Palermo’s overall performance as “exceeds expectations” in his
performance evaluation, and she nominated Palermo for a performance bonus, which he
received. Despite the positive rating, Palermo took issue with some of Williams’ comments in
his evaluation and refused to sign it. He argued that the following statement was
inflammatory:
In completing assigned tasks, there have been occasions when Mr. Palermo focused
more closely on what he perceived to be his colleagues’ lack of interest and/or input
rather than his own assigned responsibility for the task, expending valuable time on
non-productive exchanges which did not contribute to the completion of the project.
Since it appears that on [at] least two occasions this may have occurred due to a lack of
clarity regarding responsibility for the project, it might be beneficial on future
assignments for him to engage in more dialogue up front to clarify expectations. There
were other times when the task could have been completed independently, that he was
insistent input from others was required. When assigned to draft the EAP, for example,
his response to follow up questions regarding his progress on the assignment often
focused on the fact that feedback had not been received from night shift management
as had previously been received from the day shift team. He did not appear to grasp
that input from either team was neither required nor necessary to complete the
assignment.
Williams explained that she intended the comments to be constructive, and that she used
similar language with other employees to highlight areas for improvement. Palermo believed
the comments were inaccurate, discriminatory (based on race and gender), and retaliatory for
complaints of discrimination he had filed in the past. Williams agreed to modify the language
to make it more acceptable to Palermo, which Palermo viewed as an acknowledgment by
Williams that the language was improper. The parties dispute whether Palermo or Williams
was responsible for revising the language, but agree that the changes were never made and that
Palermo never received a revised performance evaluation.
In 2010 Palermo sued the State Department under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a), for discrimination and retaliation. He based both
No. 11-1791 Page 3
claims on the denial of the discretionary bonus in 2007, the somewhat unfavorable comments
in his 2008 performance evaluation, and Williams’ failure to give him a revised copy of the 2008
performance evaluation, without which, he claimed, he could not apply for other jobs with the
federal government. Palermo also maintained that all other members of his management team
received bonuses in 2007.
The district court granted summary judgment to the State Department, finding that
Palermo could not establish a prima facie case of discrimination or retaliation because he did
not show he had he suffered an adverse employment action or that he was treated less
favorably than other similarly situated employees. Although Palermo pursued both claims
under only the indirect method of proof, the court also noted that he had not offered any direct
evidence of discrimination or retaliation and could not succeed under the direct method of
proof. Finally, the court found that Palermo had not demonstrated that the defendant’s stated
reasons for the supposed adverse actions were pretexts.
On appeal, Palermo argues that the district court erred in finding that he did not make
out a prima facie case of discrimination or retaliation under the indirect method of proof. We
review the district court’s decision to grant summary judgment de novo, construing all
evidence in Palermo’s favor. Montgomery v. American Airlines, Inc.,
626 F.3d 382, 389 (7th Cir.
2010). To establish a prima facie case of discrimination or retaliation under the indirect method
of proof, Palermo must show, among other things, that he suffered an adverse employment
action and that his employer treated similarly situated employees outside of his protected
group more favorably. See Silverman v. Board of Education of City of Chicago,
637 F.3d 729, 742
(7th Cir. 2011) (retaliation); Montgomery,
626 F.3d at 394 (discrimination).
Palermo maintains that he suffered two adverse actions. First he points to comments
in his 2008 performance review that, he says, characterize him as unproductive and unable to
contribute to the completion of projects. He argues that these comments could negatively affect
his ability to change jobs or advance his career.
The district court did not err in finding that Palermo’s performance evaluation was not
an adverse employment action, as required to establish a prima facie case of discrimination
under Title VII. To show an adverse employment action for his discrimination claim, Palermo
must identify a “quantitative or qualitative change in the terms or conditions of employment.”
Haywood v. Lucent Technologies, Inc.,
323 F.3d 524, 532 (7th Cir. 2003). A negative performance
evaluation alone is not an adverse employment action for a discrimination claim because it
does not necessarily change the terms or conditions of employment. See De la Rama v. Illinois
Dep’t of Human Servs.,
541 F.3d 681, 686 (7th Cir. 2008); Oest v. Illinois Dep’t of Corrections,
240 F.3d 605, 613 (7th Cir. 2001). Palermo does not contend that the performance evaluation
No. 11-1791 Page 4
led to a reduction in pay, a loss of job responsibilities, or any other change in the terms of his
employment.
For retaliation claims, the definition of adverse action is broader, but even so, we agree
with the district court that Palermo’s performance evaluation is insufficient to support a claim
of retaliation. Title VII’s retaliation provision forbids any materially adverse action that would
dissuade a reasonable employee from making a charge of discrimination even if the action does
not affect the terms or conditions of employment. See Burlington Northern & Santa Fe Ry. v.
White,
548 U.S. 53, 67 (2006); Henry v. Milwaukee County,
539 F.3d 573, 586-87 (7th Cir. 2008);
Pantoja v. American NTN Bearing Mfg. Corp.,
495 F.3d 840, 849 (7th Cir. 2007). We have
recognized that negative evaluations can, at least in theory, amount to adverse actions sufficient
to support a retaliation claim. See Silverman,
637 F.3d at 741 (affirming summary judgment for
employer). In some circumstances, even faintly positive evaluations could do so, at least if the
expectation in the organization or based on the employee’s track record is that fair evaluations
will be very positive.1 At the same time, an employee who complains of discrimination is not
immune from the normal slights and disappointments that most employees experience. See
Burlington Northern,
548 U.S. at 68. The record in this case shows at most a few mild comments
with constructive criticism in an otherwise positive performance evaluation. Those comments
are not sufficient to dissuade a reasonable employee from filing a discrimination claim. See
Metzger v. Illinois State Police,
519 F.3d 677, 683 (7th Cir. 2008) (affirming summary judgment
for employer; supervisor’s description of plaintiff’s view of her own job duties as “grandiose”
was not adverse action).
The second adverse action that Palermo identifies is being passed over for a bonus in
2007. But Palermo concedes that the performance bonus was discretionary. For a
discrimination claim, the loss of a discretionary bonus is not an adverse employment action
because it does not change the terms or conditions of employment. See Maclin v. SBC Ameritech,
520 F.3d 781, 788 (7th Cir. 2008). The denial of one discretionary bonus (Palermo admitted he
received bonuses all other years, both before and after 2007) is also not sufficient to dissuade
1
The ability to harm a reputation with faint praise has long been recognized, to the
point of becoming a cliche:
Damn with faint praise, assent with civil leer,
And without sneering teach the rest to sneer;
Willing to wound, and yet afraid to strike,
Just hint a fault, and hesitate dislike.
Alexander Pope, Epistle to Dr. Arbuthnot (1735).
No. 11-1791 Page 5
a reasonable employee from engaging in protected activity and therefore cannot support his
retaliation claim. See Lapka v. Chertoff,
517 F.3d 974, 986 (7th Cir. 2008); Rabinovitz v. Pena,
89 F.3d 482, 488-89 (7th Cir. 1996).
Summary judgment is appropriate if a party cannot demonstrate any one element of a
prima facie case, see Lewis v. City of Chicago,
496 F.3d 645, 652 (7th Cir. 2007), so the district
court properly granted summary judgment to defendants based on Palermo’s failure to identify
an adverse employment action. We note for completeness that the district court also properly
found that Palermo failed to establish another prong of the prima facie case for discrimination
and retaliation – that he was treated less favorably than similarly situated employees outside
his protected group. See Silverman,
637 F.3d at 742; Montgomery,
626 F.3d at 394. Palermo’s
uncorroborated and conclusory statements that he was treated differently than other employees
are insufficient to survive summary judgment on his Title VII claims. See Oest,
240 F.3d at 614-
15.
We AFFIRM the judgment of the district court.
