NONPRECEDENTIAL DISPOSITION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
Argued November 8, 2011
Decided January 20, 2012
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐1958
ANTHONY PALERMO, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08‐cv‐4623
HILLARY RODHAM CLINTON, Secretary,
United States Department of State, Joan B. Gottschall,
Defendant‐Appellee. Judge.
O R D E R
Anthony Palermo, a white man, sued his longtime employer, the U.S. Department of
State, alleging that he was denied a pay increase in retaliation for prior allegations of
discrimination and because of his race and gender. The district court granted summary
judgment to the government, and Palermo appeals. We affirm the judgment.
Because this appeal comes to us from a grant of summary judgment, we view the
evidence in the light most favorable to Palermo, the nonmoving party. Egan v. Freedom Bank,
659 F.3d 639, 640 (7th Cir. 2011). The following narrative recounts the facts of the case
according to that standard; we do not vouch for its objective truth.
No. 11‐1958 Page 2
Palermo has worked in the State Department’s Chicago regional passport office since
1995. He began at the GS‐5 pay grade and over the next two years worked his way up to the
GS‐9 level. In 2003 Palermo filed an Equal Employment Opportunity (“EEO”) complaint
against supervisors Brittany Williams and Terry Green, both black women, alleging gender
and race discrimination. To settle that complaint, the government promoted Palermo to a
GS‐11 position. Palermo filed another EEO complaint in 2004 after being passed over for a
promotion. That complaint turned into a federal lawsuit, which the government settled in
2005 by making Palermo a passport operations officer, another GS‐11 position. Florence
Fultz, a State Department official working in Washington, opposed the settlement because
she believed Palermo’s suit lacked merit.
About a year after starting his new job, Palermo requested a “desk audit,” a process
by which an employee challenges the pay grade of his position. Palermo believed that his
duties warranted the GS‐12 pay earned by operations officers in three of the other regional
offices, not the GS‐11 wage paid to the majority of those with his title. His supervisors
forwarded his request to State Department headquarters in Washington, D.C., which
decides how to classify jobs in the regional offices.
Herbert Casey, a black human‐resources official with the Department, conducted the
audit. Casey asked Palermo for a list of his job duties not captured in his job description;
Palermo obliged. Casey verified the list with Palermo’s supervisors, Williams and Green,
who confirmed that he performed the tasks listed but told Casey he did some of them only
sparingly. Casey also consulted with an outside expert in pay‐grade classification, who said
the position was classified accurately at GS‐11. After gathering all the information, Casey
determined that Palermo’s position was classified properly because his additional tasks
either were insufficiently complex or performed too infrequently to merit a grade increase.
As Casey was conducting the audit, Palermo and Williams feuded over several
work‐related issues. They argued about whether Palermo was denied a promotion because
of discrimination; Williams later emailed Casey and others that Palermo’s allegation, in
keeping with his past pattern of complaints, “does not come as a complete surprise.”
Palermo also complained about Williams’s directive that he stop bringing passports to the
will‐call window; in an e‐mail to Casey after receiving Palermo’s message, Williams stated,
“This is beyond out of control.” Later Williams and Green met with Palermo to discuss
sexual‐harassment allegations leveled against him by female co‐workers; according to
Palermo, Williams mentioned Palermo’s prior EEO complaints during the meeting. Finally,
Palermo complained to Williams about his workload, then accused her of retaliating when
she asked him to send her a list of his duties so she could help him manage his work.
No. 11‐1958 Page 3
Palermo initiated another EEO complaint, alleging that the sexual‐harassment
meeting constituted gender‐ and race‐based discrimination and retaliation for prior EEO
complaints. Williams informed Casey and Fultz of the complaint on October 12; 11 days
later, Casey sent Palermo a letter notifying him that his position would not be reclassified
to GS‐12. Palermo then filed this suit claiming retaliation and discrimination based on race
and gender, in violation of Title VII.
The district court granted summary judgment for the government on both claims.
Regarding the retaliation claim, the judge assumed for the sake of argument that the audit
result constituted an adverse employment action (one element of the prima facie case under
the direct method of proof) but concluded that Palermo had not established another
element—a causal connection between the EEO complaints and Casey’s decision. The judge
also rejected Palermo’s “cat’s paw” argument that Williams and Fultz retaliated against him
by sabotaging the desk audit. Regarding the discrimination claim, the judge concluded that
Palermo failed to make out a prima facie case under the indirect method of proof because he
did not identify any similarly situated employees of a different race or gender who had
been treated more favorably.
On appeal Palermo devotes almost his entire argument to challenging the district
court’s ruling on his retaliation claim. Before the district court, Palermo pursued this claim
under only the direct method of proof, so to make out a prima facie case of retaliation, he
had to provide sufficient evidence that (1) he undertook a protected activity; (2) he suffered
an adverse action; and (3) a causal linkage exists between the activity and the adverse
action. See Leitgen v. Franciscan Skemp Healthcare, Inc.,
630 F.3d 668, 673 (7th Cir. 2011).
Palermo challenges the district court’s conclusion that he did not produce enough evidence
of a causal connection. The government defends the district court’s conclusion on the lack of
a causal link but also contends that the court wrongly assumed that Casey’s refusal to
reclassify Palermo’s position constituted an adverse action. According to the government,
desk audits occur too infrequently for their outcomes to dissuade a reasonable worker from
undertaking a protected activity. See Burlington N. & Santa Fe. Ry. Co. v. White,
548 U.S. 53,
68 (2006). The government likens the denial of a grade increase after an audit to the denial
of a bonus, which, we have held, does not constitute an adverse employment action.
See Maclin v. SBC Ameritech,
520 F.3d 781, 788 (7th Cir. 2008). Palermo counters that the
audit result here more closely resembles the denial of a raise or a promotion, both of which
qualify as adverse employment actions. See Barricks v. Eli Lilly & Co.,
481 F.3d 556, 559 (7th
Cir. 2007) (raise); Jackson v. Cnty. of Racine,
474 F.3d 493, 501 (7th Cir. 2007) (promotion).
We need not resolve this issue. Assuming the refusal to reclassify Palermo’s position
was an adverse employment action, his prima facie case of retaliation fails for lack of a
causal connection between his EEO complaints and the audit result. Palermo concedes that
No. 11‐1958 Page 4
he presented no direct evidence of retaliation but argues that he produced sufficient
circumstantial evidence to allow a jury to infer a retaliatory motive. See Davis v. Time Warner
Cable of Se. Wis., L.P.,
651 F.3d 664, 672 (7th Cir. 2011); Silverman v. Bd. of Educ. of Chi.,
637
F.3d 729, 734 (7th Cir. 2011). Palermo first points to the proximity of the desk‐audit decision
to his discrimination complaint—the decision came only 11 days after Casey learned of the
latest EEO complaint—and claims this timing permits an inference of retaliation. But as the
district court noted, suspicious timing alone generally is not enough to create a triable issue
in a retaliation claim. See Davis,
651 F.3d at 674–75 (concluding that period of three to
fourteen days between action and alleged retaliation was insufficient by itself to allow for
inference of retaliation); Pugh v. City of Attica, Ind.,
259 F.3d 619, 629–30 (7th Cir. 2001) (one
week). To meet his burden, Palermo must point to additional circumstantial evidence
demonstrating that Casey retaliated against him for the EEO complaints. See Burks v. Wis.
Dep’t of Transp.,
464 F.3d 744, 758–59 (7th Cir. 2006). He complains about the audit results
and Casey’s letter detailing his findings, but these complaints—even if justified—do not
advance his retaliation claim because they do not give rise to an inference that Casey acted
out of retaliatory animus. See Poer v. Astrue,
606 F.3d 433, 442–43 (7th Cir. 2010).
Palermo also challenges the district court’s ruling on his “cat’s paw” argument. The
term “cat’s paw” refers to an impartial decisionmaker whom a biased employee uses to
achieve discriminatory or retaliatory ends. See Schandelmeier‐Bartels v. Chi. Park Dist.,
634 F.3d 372, 379 (7th Cir. 2011). Palermo contends that he presented evidence that Fultz
and Williams used Casey as their “cat’s paw,” torpedoing his desk audit in retaliation for
his prior EEO complaints. To succeed under the “cat’s paw” theory of employer liability,
Palermo had to show that Williams or Fultz performed an act motivated by retaliation for
his EEO complaints, that the act was intended to influence the desk‐audit outcome, and that
the act proximately caused Casey’s decision not to increase Palermo’s grade. See Staub v.
Proctor Hosp.,
131 S. Ct. 1186, 1194 (2011).
But as the district court ruled, Palermo’s evidence does not show that Fultz or
Williams retaliated against him for his EEO complaints by sabotaging his chances in the
desk audit. First, the evidence does not suggest that Fultz took any action to influence the
audit. She initially expressed reservations about the audit out of fear that Palermo’s position
would be downgraded but later told Casey she did not oppose his moving forward with his
review. She had no further involvement in the audit. And even had she been more involved,
the only evidence that she was motivated to retaliate against Palermo was her opposition to
settling one of his prior complaints more than a year before she learned of the audit, a gap
too large to infer a nefarious motive. See Petts v. Rockledge Furniture LLC,
534 F.3d 715, 721
(7th Cir. 2008).
No. 11‐1958 Page 5
Williams, by contrast, did play at least a small role in the audit by providing Casey
with information about the tasks Palermo regularly performed. Palermo contends that some
of this information was inaccurate, and he argues that Williams misled Casey about his job
duties in retaliation for his EEO complaints against her. For evidence of Williams’s
motivation, he points to her comments to Casey about her frustration with his behavior, her
alleged reference during a meeting to one of his EEO complaints, and her request that he
create a list of his duties. Williams’s remarks show only that she was aware of Palermo’s
EEO activity, not that it motivated her statements to Casey, and none of her isolated
comments bear the necessary relationship to the adverse employment action to allow for an
inference of retaliation. See Ridings v. Riverside Med. Ctr.,
537 F.3d 755, 775 (7th Cir. 2008);
Hemsworth v. Quotesmith.com, Inc.,
476 F.3d 487, 491 (7th Cir. 2007). Nor does her request
that Palermo provide a list of his work tasks reflect retaliatory animus, particularly when he
complained about having too much work.
Regarding the discrimination claim, Palermo argues briefly that the district court
erred in requiring him to provide evidence of similarly situated employees who did not
suffer retaliation. He contends that he should not have to identify comparators because, he
says, he was the only employee who was mistreated. But because Palermo proceeded on
this claim under only the indirect method of proof, the district court’s analysis was correct.
See Benuzzi v. Bd. of Educ. of Chi.,
647 F.3d 652, 662 (7th Cir. 2011); Luster v. Ill. Dep’t of Corr.,
652 F.3d 726, 730 (7th Cir. 2011).
AFFIRMED.
