Vanessa Robertson v. Wisconsin Department of Health ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1179
VANESSA ROBERTSON,
Plaintiff-Appellant,
v.
STATE OF WISCONSIN DEPARTMENT OF
HEALTH SERVICES, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:18-cv-00116-JPS — J. P. Stadtmueller, Judge.
____________________
ARGUED NOVEMBER 8, 2019 — DECIDED FEBRUARY 7, 2020
____________________
Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Vanessa Robertson appeals the dis-
trict court’s grant of summary judgment to the State of Wis-
consin’s Department of Health Services (“DHS”). In her
complaint, Ms. Robertson set forth claims under Title VII of
the Civil Rights Act of 1964 and under 42 U.S.C. § 1983, al-
leging retaliation for complaining of discrimination in the
2 No. 19-1179
workplace. She named as defendants DHS and two DHS
1
employees, Marlia Mattke and Tonya Evans.
The defendants moved for summary judgment. In her
opposition to that motion, Ms. Robertson did not defend her
equal protection claim, and the district court deemed that
2
claim abandoned and dismissed it. The district court dis-
missed the Title VII claims against Ms. Evans and
Ms. Mattke because Title VII authorizes suit only against an
3
employer as an entity, not against individuals.
The district court then granted the summary judgment
motion. It first held that Ms. Robertson’s retaliation claim
against DHS for failing to promote her to the director posi-
tion failed because she could not prove a “but-for” causal
link between her protected activity—reporting discrimina-
tion—and DHS’s decision not to promote her. With respect
to her second retaliation claim, alleging that DHS continued
1The district court’s jurisdiction was predicated on 28 U.S.C. § 1331; 42
U.S.C. § 2000e-5(f)(3).
2 See Palmer v. Marion Cty., 327 F.3d 588, 597 (7th Cir. 2003) (finding claim
abandoned where party failed to defend it “in his district court brief in
opposition to summary judgment” and failed to raise it in his appellate
brief). In any event, an equal protection claim, if based on the same alle-
gations underlying Ms. Robertson’s Title VII claim, would not be tenable
here. “[T]he right to be free from retaliation may be vindicated under the
First Amendment or Title VII, but not the equal protection clause.” Boyd
v. Ill. State Police, 384 F.3d 888, 898 (7th Cir. 2004).
3See Smith v. Bray, 681 F.3d 888, 896 n.2 (7th Cir. 2012), overruled on other
grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016) (“Title
VII … authorizes suit only against the employer as an entity rather than
against individual people who are agents of the employer.”).
No. 19-1179 3
the retaliation against her through Ms. Evans, the court held
that Ms. Robertson had failed to establish that she suffered
an adverse action. Accordingly, the district court granted the
defendants’ motion and dismissed all claims. Ms. Robertson
4
filed a timely notice of appeal. She seeks reversal of the dis-
trict court’s grant of summary judgment.
We now affirm the district court’s judgment. With re-
spect to her failure-to-promote claim, DHS provided a non-
retaliatory reason for choosing another candidate, and
Ms. Robertson has failed to submit evidence that DHS’s rea-
son is pretextual. With respect to her claim alleging that
DHS continued the retaliation through Ms. Evans,
Ms. Robertson has failed to show that she suffered a materi-
ally adverse action.
I.
BACKGROUND
In October 2009, Ms. Robertson became the deputy direc-
tor of Milwaukee Enrollment Services (“MilES”), a bureau
within DHS. Employees of MilES are responsible for deter-
mining eligibility for medical assistance, FoodShare, child
care, and caretaker supplement entitlements for Milwaukee
4 Our jurisdiction is predicated on 28 U.S.C. § 1291. Ms. Robertson ap-
pealed the entirety of the district court’s summary judgment decision.
The caption of her brief includes Ms. Mattke and Ms. Evans as “Defend-
ants-Appellees,” but DHS contends that her “Statement of the Issues”
confirms that she has abandoned all claims against these individual em-
ployees. Ms. Robertson does not respond to this point in her reply brief,
nor does she raise any arguments with respect to the individual employ-
ees. We therefore conclude that DHS is the only appellee in this appeal.
4 No. 19-1179
residents. As deputy director, Ms. Robertson directly super-
vised ten to twenty employees and indirectly supervised
about 350 others.
In January 2014, an employee approached a section chief,
Juanita Brown-Small, and reported that the MilES bureau
director, Ed Kamin, had told her that he was going to “pimp
5
her out” to another agency. Ms. Brown-Small reported this
complaint to Ms. Robertson, and the two then informed the
human resources department. An investigation took place
and concluded that Kamin had engaged in discriminatory
conduct. In April 2014, he resigned in lieu of termination.
Deputy administrator of DHS, Marlia Mattke, and assistant
deputy secretary of DHS, Kevin Moore, met with
Ms. Robertson and the section chiefs to inform them about
the resignation. At that time, Ms. Robertson and the section
chiefs said that they feared retaliation from management in
Madison (DHS headquarters) because Kamin had boasted
about his connections there.
After Kamin’s removal, DHS officials designated
Ms. Robertson acting director of MilES and tasked her with
running the day-to-day operations. She reported to
Ms. Mattke, who worked in Madison. The operation ran
smoothly under Ms. Robertson’s leadership.
In September 2014, DHS conducted open recruitment for
a new MilES director. It received fifty-seven applications,
including Ms. Robertson’s. After screening the resumes and
conducting some interviews, DHS narrowed the field to
three applicants: Ms. Robertson, Danyel McNeil (another
5 R.31 at 4.
No. 19-1179 5
MilES employee), and Ms. Evans (not a MilES employee).
Ms. Mattke and Mr. Moore conducted the interviews.
During the second round of interviews, both Ms. Robert-
son and Ms. McNeil, as current MilES employees, were
asked how they would move the agency forward, given
Kamin’s resignation. The interviewers did not pose the ques-
tion to Ms. Evans. Neither Mr. Moore nor Ms. Mattke main-
tained notes during the second round of interviews.
Mr. Moore recalled, however, that Ms. Robertson had dis-
cussed the importance of bridging the gap between Madison
and Milwaukee, a very important issue for MilES. Addition-
ally, Ms. Robertson, unlike Ms. Evans, had in-
come-maintenance experience, which was important to the
work at MilES. Mr. Moore had no concerns about
Ms. Robertson’s candidacy after her interview. However, he
was concerned about Ms. Evans’s lack of in-
come-maintenance experience and lack of experience work-
ing with the State of Wisconsin. He did not consider either of
these concerns to be barriers to Ms. Evans’s success.6
6 Q. Were there any negatives or concerns you had about
Ms. Evans?
A. I would say that there were two. That she had never
done an income maintenance case and that she was not
from within state government. The former was one that I
figured, I was assuming that if that was—if we went
down that path, that she would be able to learn the in-
come maintenance process. And on the latter side, I as-
sumed that she wanted to become—she applied for a
state government position and that she wanted to for a
number of reasons, personally, professionally, whatever
it might be, that she viewed this as a move that would be
a positive for her.
(continued … )
6 No. 19-1179
Ms. Mattke testified, however, that she and Mr. Moore were
impressed with Ms. Evans because of her strategic plan for
MilES. Ms. Robertson and Ms. Evans had both led social ser-
vices agencies, directed policy, managed supervisory-level
employees, and headed organizations of over 150 employ-
ees. Ms. Robertson had five years of experience working for
MilES. Ms. Evans had a master’s degree in administration.
DHS hired Ms. Evans.
For purposes of summary judgment, we must assume the
correctness of Ms. Robertson’s allegation that Ms. Evans,
once chosen as director, antagonized, insulted, and under-
mined Ms. Robertson. According to Ms. Robertson, in her
first meeting with Ms. Evans and Ms. Brown-Small, Ms. Ev-
ans commented that she “knew all about the last director
leaving” and made references to the “prior director being
7
forced to resign from his position.” Ms. Robertson under-
stood these comments as a declaration by Ms. Evans that she
would not be forced out as Kamin had been. At later meet-
ings, Ms. Evans sat with her back to Ms. Robertson. Ms. Ev-
ans also made statements during meetings that implied
Ms. Robertson had been doing things incorrectly while act-
ing as interim director. When Ms. Robertson spoke at meet-
( … continued)
R.12 at 19 (Moore Dep. 73:14–74:1).
7 R.31 at 18.
No. 19-1179 7
8
ings, Ms. Evans would roll her eyes and tell Ms. Robertson
9
to “be quiet.”
In Ms. Robertson’s reply brief, she recounts that MilES
hosted public meetings which were “a part of a class action
10
settlement.” At these meetings, MilES staff, including
Ms. Robertson, presented information detailing the agency’s
compliance with certain benchmarks established in the set-
tlement of the lawsuit. Ms. Evans would talk over Ms. Rob-
ertson and show disrespect toward her at these meetings.
Eventually, Ms. Robertson stopped attending.
Ms. Evans also revoked one of Ms. Robertson’s job du-
ties, resource allocation. According to Ms. Robertson, re-
source allocation was a key element of her job. To support
this assertion, she points to Ms. McNeil’s testimony that
“making timely changes to resource allocation was an area
in which Ms. Robertson excelled … due to her extensive
knowledge of income maintenance and her extensive
11
knowledge of the strength and weaknesses of the staff.”
As the direct manager of the section chiefs,
Ms. Robertson had to meet regularly with them. However,
Ms. Evans discouraged section chiefs from meeting with
8 R.24 at 4 (Thomson Decl. ¶ 17).
9 R.28 at 6 (Brown-Small Decl. ¶ 22); R.25 at 6 (McNeil Decl. ¶ 25).
10 Appellant’s Reply Br. 3–4.
11Appellant’s Reply Br. 5 (alteration in original) (quoting R.25 at 5
(McNeil Decl. ¶ 21)).
8 No. 19-1179
Ms. Robertson and eventually demanded to be present any
time a section chief met with Ms. Robertson.
Dana Thomson, a unit chief at MilES, testified that
Ms. Evans treated Ms. Robertson worse than she treated two
section chiefs, Mike Poma and Jerry Turner, who had not
participated in the Kamin investigation. Ms. Thomson noted,
for instance, that when Mr. Poma fell asleep during a meet-
ing, Ms. Evans did not reprimand him.
On February 20, 2015, Ms. Robertson emailed Ms. Mattke
and Mr. Moore to request a meeting to discuss her “un-
12
healthy” work environment. Specifically, Ms. Robertson
explained that she believed her “authority as a Deputy Di-
13
rector has been diminished over the last few months.”
Ms. Mattke responded to the meeting request by offering
a date and time but also stated that Ms. Evans would have to
be present. Ms. Robertson responded that she did not want
Ms. Evans included in the meeting. When Ms. Mattke asked
why, Ms. Robertson responded that she was not comfortable
discussing her concerns in Ms. Evans’s presence. One hour
later, Ms. Evans emailed the entire MilES staff and directed
them to speak with a direct supervisor before contacting
human resources. Ms. Evans justified this step as necessary
because of the “great demands” being placed on human re-
14
sources. This policy change would have required
Ms. Robertson to address her concerns to Ms. Evans before
12 R.29-2 at 2.
13 Id.
14 R.18-1 at 1.
No. 19-1179 9
speaking to human resources. Jennifer Potts, who worked in
human resources at MilES, believed that the policy could
have had a chilling effect on employees who wanted to
speak with human resources—especially if the employee’s
15
problem related to her manager. Mr. Moore and
Ms. Mattke also testified that they were concerned that such
a policy would silence people and create a hostile working
16
environment.
Ms. Brown-Small and Ms. Thomson both stated that
Ms. Evans created an environment worse than the one that
had existed under Kamin’s management. Ms. McNeil re-
signed from MilES in October 2016, and Ms. Thomson re-
signed from MilES in February 2017 due to Ms. Evans’s har-
assment.
II.
DISCUSSION
A.
We review the district court’s grant of summary judg-
ment de novo and construe all facts and reasonable infer-
ences in favor of Ms. Robertson, the non-moving party. Bur-
ton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 694 (7th
Cir. 2017). Federal Rule of Civil Procedure 56 permits the
grant of summary judgment only when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party
15 R.27 at 2 (Potts Decl. ¶ 10).
16 R.12 at 13 (Moore Dep. 50:13–23); see R.13 at 9 (Mattke Dep. 33:11–23).
10 No. 19-1179
needs more than a scintilla of evidence, however, to defeat
summary judgment. … [T]he non-movant must show ‘that a
discriminatory reason more likely motivated [the employer’s]
decision or that [its] proffered explanations are unworthy of
credence.’” Senner v. Northcentral Tech. Coll., 113 F.3d 750,
757–58 (7th Cir. 1997) (alteration in original) (quoting Court-
ney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994)).
Title VII prohibits an employer from discriminating
against employees on the basis of race and sex, among other
protected classifications. 42 U.S.C. § 2000e-2(a). Title VII’s
anti-retaliation provision provides that it is unlawful for an
employer to discriminate against its employee because the
employee filed a complaint or participated in an investiga-
tion of an unlawful employment practice. See id. § 2000e-3(a).
This provision “seeks to prevent employer interference with
‘unfettered access’ to Title VII’s remedial mechanisms … by
prohibiting employer actions that are likely ‘to deter victims
of discrimination from complaining to the EEOC,’ the courts,
and employers.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997)).
To succeed on a Title VII retaliation claim, a plaintiff
“must produce enough evidence for a reasonable jury to
conclude that (1) she engaged in a statutorily protected ac-
tivity; (2) the [employer] took a materially adverse action
against her; and (3) there existed a but-for causal connection
between the two.” Burton, 851 F.3d at 695; Lord v. High Volt-
age Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016).
When the plaintiff establishes a prima facie case of retali-
ation, an employer may produce evidence which, if taken as
true, would permit the conclusion that it had a legitimate
No. 19-1179 11
non-discriminatory reason for taking the adverse employ-
ment action. See Lord, 839 F.3d at 564. If the employer meets
this burden, the plaintiff, to avoid summary judgment, then
must produce evidence that would permit a trier of fact to
establish, by a preponderance of the evidence, that the legit-
imate reasons offered by the employer were not its true rea-
sons but were a pretext for discrimination. Argyropoulos v.
City of Alton, 539 F.3d 724, 736 (7th Cir. 2008). In determining
whether the employer’s reason can be characterized as pre-
textual, we do not evaluate whether the employer’s prof-
fered justification was accurate or even whether it was un-
fair. Our sole focus is on whether the employer’s stated rea-
son can be characterized as a falsehood rather than an hon-
estly held belief. Harper v. C.R. England, Inc., 687 F.3d 297,
311 (7th Cir. 2012); O’Leary v. Accretive Health, Inc., 657 F.3d
625, 635 (7th Cir. 2011).
B.
1.
Ms. Robertson claims that DHS retaliated against her in
violation of Title VII when it did not select her for the direc-
tor position. Rejection of her candidacy was, she maintains,
in retaliation for her having complained about Kamin’s dis-
criminatory activities in the workplace. The district court did
not accept this contention; in its view, Ms. Robertson failed
to demonstrate that the rejection of her application was
caused by her participation in the Kamin investigation. Ac-
cording to the district court,
[w]ith respect to the failure-to-promote claim,
the defendants agree that Robertson engaged
in statutorily protected activity by reporting
12 No. 19-1179
Kamin’s discriminatory conduct and that Rob-
ertson suffered an actionable adverse action by
not being chosen for the director position.
Therefore, the only element in dispute is
whether Robertson’s complaint about Kamin
was the but-for cause of DHS’s decision not to
17
promote her to director.
The district court then determined that Ms. Robertson
had not submitted evidence to establish that her complaint
about Kamin’s activity had caused the rejection of her appli-
cation. After examination of the record, we must agree with
the district court’s conclusion that Ms. Robertson does not
have direct evidence establishing causation. She therefore
“must rely on circumstantial evidence like suspicious tim-
ing, ambiguous statements, treatment of similarly-situated
employees, and any other relevant information that could
permit an inference of retaliation.” Burton, 851 F.3d at 697.
The “dispositive question” is “whether a reasonable
[fact-finder] could find a but-for causal link between the pro-
tected activities and adverse actions at issue.” Id.
Ms. Robertson attempts to shoulder the burden of estab-
lishing causation by arguing that she was “objectively the
18
most qualified candidate,” and that DHS’s failure to recog-
nize this reality in its decisionmaking is therefore powerful
circumstantial evidence that her participation in the Kamin
investigation was the cause of her non-selection. She stresses
that she alone had experience in the area of income mainte-
17 R.34 at 9 (internal citation omitted).
18 Appellant’s Br. 31.
No. 19-1179 13
nance. The successful candidate, Ms. Evans, had no experi-
ence in this area and could only offer superior educational
qualifications, which were not a necessary qualification for
the job. Ms. Robertson, who had experience working for the
State, also contends that Ms. Evans’s lack of experience
working for the State caused concern for at least one of the
19
decisionmakers. Ms. Robertson also noted that, unlike
Ms. Evans, she had experience managing a large organiza-
20
tion.
Ms. Robertson admits that Mr. Moore and Ms. Mattke
explained that they were “looking for a candidate with a vi-
sion and an ability to lead” and who could improve the of-
21
fice’s communication with the operation in Madison. She
19 R.12 at 19 (Moore Dep. 73:14–74:1).
20 Ms. Robertson had five years’ experience supervising the entire MilES
staff of over 300 employees. Ms. Evans had only two years’ experience
supervising a staff of 156 employees. Ms. Robertson contends that a jury
could conclude that she had “superior qualifications in managing large
organizations.” Appellant’s Br. 34.
21 Appellant’s Br. 35.
Q. What were you looking for in a bureau director?
A. I was looking for a leader who could manage inter-
nally and externally a very highly visible portion of our
business, of our programs.
Q. And how were you intending to be able to assess this
from the potential candidates?
A. How the respondents, how they answered questions,
what their vision was, how they are—just the discussion
in my mind was important to know because of the expo-
sure of this position that, you know, I was looking for
(continued … )
14 No. 19-1179
submits that she had the right to argue to a jury that, because
of her participation in the Kamin investigation, the selection
committee considered her to be “less cooperative with man-
agement in Madison, … less trustworthy, or as hav[ing] less
22
of a vision going forward.” She suggests that, in making
the determination, the decisionmakers might have relied on
evidence that Kamin had friends in the Madison office—
friends who would be hostile to her. Finally, she suggests
that Kamin had a close relationship with the decisionmakers
that influenced the decision not to appoint her because of
( … continued)
a—somebody who could really kind of take MilES and
move it forward.
Q. Any particular skill set or experience you were look-
ing for?
A. I was looking for interpersonal skills. I was looking
for just general, you know, understanding of challenging
situations. Leadership.
R.12 at 16 (Moore Dep. 64:6–22).
Q. Did you have any concern that she didn’t have any
income maintenance experience?
A. I didn’t.
Q. And why not?
A. Because we felt like with this position, the key is hav-
ing a really good leader, and income maintenance is
something the staff can support and you can learn from
staff, but the leadership skills were most important.
R.13 at 20 (Mattke Dep. 77:6–14).
22 Id.
No. 19-1179 15
her role in the investigation. She also notes that the deci-
sionmakers asked only the candidates who had participated
in the investigation whether they could function as director
23
in the aftermath of the investigation.
Ms. Robertson believes that this evidence establishes a
causal connection between her participation in the Kamin
investigation and her non-selection for the director position.
However, because DHS presented a non-retaliatory reason
for the adverse action, the controlling question at the bottom
of this case is “whether the proffered reasons were pretext
for retaliation.” Burton, 851 F.3d at 697. DHS’s
non-retaliatory reason for hiring Ms. Evans over
Ms. Robertson is that Ms. Evans was the better overall can-
didate. Ms. Robertson must therefore show that the record
would support a determination that this reason was pre-
textual. “In determining whether an employer’s stated rea-
son is pretextual, ‘[t]he question is not whether the employ-
er’s stated reason was inaccurate or unfair, but whether the
employer honestly believed the reason it has offered to ex-
plain the discharge.’” Harper, 687 F.3d at 311 (alteration in
original) (quoting O’Leary, 657 F.3d at 635). To meet this
burden, Ms. Robertson therefore “‘must identify such weak-
nesses, implausibilities, inconsistencies, or contradictions’”
in DHS’s stated reason that would permit a reasonable per-
son to conclude that the stated reason was “‘unworthy of
credence.’” Id. (quoting Boumehdi v. Plastag Holdings, LLC,
489 F.3d 781, 792 (7th Cir. 2007)).
23 Id. at 38–39.
16 No. 19-1179
The record shows that both candidates presented attrac-
tive qualifications. Ms. Robertson had diverse experience
and, importantly, had extensive experience working in in-
come maintenance. Ms. Robertson also had supervised di-
rectly employees and large staffs for years. She did not have,
however, a college education. Ms. Evans, on the other hand,
had slightly more diverse experience. She, like Ms. Robert-
son, had leadership experience and had supervised directly
employees. Head Start hired Ms. Evans when it was in non-
compliant status. When she left, it was fully compliant.
Ms. Evans had a master’s degree in administration. Howev-
er, she did not have prior experience in income maintenance.
Mr. Moore and Ms. Mattke explained that they were
looking for a candidate with a vision and the ability to lead.
Mr. Moore was also hoping to find an individual who could
improve the communication between Madison and Milwau-
kee. He admitted that Ms. Robertson successfully addressed
this concern in her interview. During the second interview,
however, the interviewers asked Ms. Evans and
Ms. Robertson to complete a writing sample that involved
interpreting a policy. According to Ms. Mattke,
Ms. Robertson did not offer big picture ideas or a strategic
vision for MilES. Instead, Ms. Robertson discussed continu-
ing the good work MilES was already doing. Ms. Mattke
consequently believed that Ms. Robertson would be better at
running day-to-day activities rather than developing leader-
ship and strategic vision. Ms. Evans, by contrast, discussed
her prior experience leading an organization under federal
scrutiny and the decision that she made to bring her team
together and move forward.
No. 19-1179 17
Ms. Robertson contends that to determine why DHS
chose to hire Ms. Evans over Ms. Robertson requires an ex-
amination of DHS’s intent and credibility, factors “which
must go to a jury unless ‘no rational factfinder could draw
24
the contrary inference.’” She attempts to establish pretext
by contending that: (1) she was objectively the most quali-
fied candidate; (2) a jury could conclude that DHS’s subjec-
tive desire to select a candidate with “vision” was pretext for
choosing someone other than Ms. Robertson; and (3) the in-
terview process was biased because Mr. Moore “admits to
having worked closely with Director Kamin” and
Ms. Mattke “shared with Director Kamin pictures of her new
25
baby while she was on leave.”
Ms. Robertson’s contention that she was better qualified
cannot carry the day for her. An employee’s “own opinions
about [her] … qualifications [do not] give rise to a material
factual dispute.” Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir.
1996). “‘[U]nless [the competing qualifications] are so favor-
able to the plaintiff that there can be no dispute among rea-
sonable persons of impartial judgment that the plaintiff was
clearly better qualified for the position at issue,’” the plain-
tiff’s qualifications alone do not establish evidence of pre-
text. Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002)
(emphasis added) (quoting Deines v. Texas Dep’t of Protective
and Regulatory Servs., 164 F.3d 277, 279 (5th Cir. 1999)).
24 Appellant’s Br. 31 (quoting Darchak v. City of Chicago Bd. of Educ., 580
F.3d 622, 633 (7th Cir. 2009)).
25 Appellant’s Br. 36–37.
18 No. 19-1179
Nor, on these facts, does timing establish a genuine dis-
pute of material fact. Roughly seven months passed after
Ms. Robertson reported Kamin’s conduct before DHS hired
Ms. Evans as the new director. See Burton, 851 F.3d at 698
(“While the six-month gap does not preclude Burton’s claim
as a matter of law, it does substantially weaken it.”). Addi-
tionally, during the time between Ms. Robertson’s complaint
and the alleged retaliation, DHS gave Ms. Robertson the role
of interim director, and she was selected as a final-round in-
terviewee for the permanent director position. As the district
court noted, “[t]his evidence flies in the face of Robertson’s
26
theory … .”
In short, Ms. Robertson has failed to “identify such
weaknesses, implausibilities, inconsistencies, or contradic-
tions” in DHS’s stated reason for hiring Ms. Evans over her
“that a reasonable person could find [it] unworthy of cre-
dence.” Harper, 687 F.3d at 311 (alteration in original) (quot-
ing Boumehdi, 489 F.3d at 792). See Argyropoulos, 539 F.3d at
736 (In “assessing a plaintiff’s claim that an employer’s ex-
planation is pretextual, we do not … ‘second-guess[] an em-
ployer’s facially legitimate business decision[].’”) (quoting
Culver v. Gorman & Co., 416 F.3d 540, 547 (7th Cir. 2005)).
DHS was therefore entitled to summary judgment be-
cause there is no material issue of fact as to whether its rea-
son for not hiring Ms. Robertson is pretext for retaliation.
Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640–41 (7th Cir.
2008) (stating that “‘[a] genuine issue of material fact arises
only if sufficient evidence favoring the nonmoving party ex-
26 R.34 at 14.
No. 19-1179 19
ists to permit a jury to return a verdict for that party’”)
(quoting Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir.
2008)).
2.
Ms. Robertson also submits that DHS violated Title VII
by retaliating against her through the actions of its new di-
rector, Ms. Evans. She claims that Ms. Evans treated her
poorly and created a hostile workplace. She submits that,
shortly after hiring her, DHS higher management informed
Ms. Evans about Ms. Robertson’s involvement in the Kamin
investigation and that Ms. Evans thereafter continued man-
agement’s retaliation.
The district court determined that Ms. Robertson failed to
show that Ms. Evans’s actions amounted to a materially ad-
verse action against her. To succeed on this claim,
Ms. Robertson must show that Ms. Evans’s actions would
have been materially adverse to a reasonable employee, such
that a reasonable employee would have been deterred from
making or supporting an investigation of discrimination.
Burlington N., 548 U.S. at 57. Although the challenged actions
need not be employment-related, id. at 67, our previous cases
indicate that challenged actions involving the reassignment
of job responsibilities are typically not materially adverse
unless there is a “significant alteration to the employee’s du-
ties, which is often reflected by a corresponding change in
work hours, compensation, or career prospects.” Stephens v.
Erickson, 569 F.3d 779, 791 (7th Cir. 2009). We judge each case
“from the perspective of a reasonable person in the plain-
tiff’s position, considering ‘all the circumstances.’” Burling-
ton N., 548 U.S. at 71 (internal quotation marks omitted)
20 No. 19-1179
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998)).
First, Ms. Robertson contends that a reasonable jury
could find that Ms. Evans was made aware of the details of
the Kamin investigation because Ms. Evans said to
Ms. Brown-Small, “So you are the one who made the report
27
about Mr. Kamin.” Ms. Robertson alleges that various retal-
iatory actions of Ms. Evans purportedly established a mate-
rially changed work environment. For example, she cites as
28
evidence Ms. Evans’s body language, “cold shoulder,” and
statements such as “be quiet” and, “[I] need[] to clean up the
poor morale Ms. Robertson created by Mr. Kamin’s forced
29
resignation.”
Under the rules governing summary judgment, we must
assume that Ms. Evans did and said everything that
Ms. Robertson attributes to her. Ms. Robertson nevertheless
fails to show that she suffered a materially adverse action in
the workplace. “‘[S]nubbing by supervisors and co-
workers’” is not actionable. Brown v. Advocate S. Suburban
Hosp., 700 F.3d 1101, 1107 (7th Cir. 2012) (quoting Burlington
N., 548 U.S. at 68). Similarly, “[u]nfair reprimands or nega-
tive performance reviews, unaccompanied by tangible job
consequences, do not suffice … .” Boss v. Castro, 816 F.3d 910,
919 (7th Cir. 2016). In other words, “Title VII protects against
discrimination, not ‘personal animosity or juvenile behav-
27 R.28 at 5 (Brown-Small Decl. ¶ 18).
28 Appellant’s Br. 8.
29 Id. at 20–21.
No. 19-1179 21
ior.’” Brown, 700 F.3d at 1105 (quoting Shafer v. Kal Kan Foods,
30
Inc., 417 F.3d 663, 666 (7th Cir. 2005)).
The district court is correct that Brown is instructive.
There, two employees sued their employer alleging racial
discrimination. The employees were not formally disci-
plined, terminated, or denied pay or benefits, but they al-
leged that their employer did not listen to them, gave them a
“cold shoulder,” and wrongly accused them of being “cry
bab[ies]” and “trouble maker[s].” Id. at 1107 (alteration in
original). We held that this behavior did not constitute “a
30 In 2016, several employees complained to Ms. Mattke that
Ms. Robertson had acted in an unprofessional manner. Following stand-
ard practice, DHS initiated a personnel investigation which was con-
ducted by investigators from the Department of Administration’s Divi-
sion of Personnel Management. These investigators had not previously
been involved in any MilES investigations. They interviewed twenty cur-
rent and former MilES employees, including Ms. Robertson and four
individuals with whom she requested they speak. See R.17 at 6 (Mattke
Decl. ¶¶ 21–22); R.15 at 29 (Robertson Dep. 113:10–19).
The investigators determined that Ms. Robertson had violated two
DHS work rules by engaging in acts of mismanagement and unprofes-
sional and disrespectful behaviors. As a result of the investigation,
Ms. Robertson was demoted and her salary decreased by $2.80 per hour.
Id. at 6–7 (Mattke Decl. ¶ 24); R.15 at 35 (Robertson Dep. 138:6). Although
Ms. Robertson “believe[s] the complaint was fabricated as part of retalia-
tion and [she] was demoted [as a result],” she admits that she does not
know whether Ms. Evans had any control over the demotion. R.15 at 35
(Robertson Dep. 137:17–138:1).
Ms. Robertson’s conclusory statement that the complaint filed
against her was “fabricated” lacks sufficient elaboration and evidence.
Moreover, Ms. Robertson herself concedes that her demotion is not rele-
vant in this litigation. R.20 at 18–19 ¶ 81; R.23 at 13 ¶ 81.
22 No. 19-1179
materially adverse employment action.” Id. The behavior
easily fell into the “non-actionable category”—even assum-
ing that the comments referred to the plaintiffs’ discrimina-
tion complaints. Id. See, e.g., Dunn v. Washington Cty. Hosp.,
429 F.3d 689, 690–93 (7th Cir. 2005) (nurse complained that a
doctor sexually harassed her, and doctor responded by ask-
ing the nurse to withdraw her complaint in a “nasty and un-
civil tone” and told her that “paybacks are hell” but took no
other action and therefore did not cause any actionable inju-
ry); see also Stephens, 569 F.3d at 790 (“[B]eing stared and
yelled at … is not an actionable harm.”).
Assessed against these precedents, Ms. Evans’s behavior
cannot be characterized as materially adverse—causing “a
significant or substantial change”—to her job responsibili-
ties. Stephens, 569 F.3d at 790. Although Ms. Robertson alleg-
es that Ms. Evans prevented Ms. Robertson from “doing a
key element of her job, which was human resource alloca-
31
tion for the approximately 350 staff members,” she gives no
more detail in her brief than this as to what “resource alloca-
tion” entails. Nor does she discuss “resource allocation” in
her deposition. Ms. Robertson appears to have first contend-
ed that “resource allocation” was a “key element of her job”
in her brief in opposition to the motion for summary judg-
32
ment.
The other changes to Ms. Robertson’s job, as developed
in the record, do not rise to the level of “materially adverse”
either. First, Ms. Robertson provides testimony of an attor-
31 Appellant’s Br. 21.
32 R.21 at 15.
No. 19-1179 23
ney who attended the public meetings who observed that
Ms. Robertson was not allowed to freely communicate with
33
the public as she had always done in the past. Instead,
Ms. Evans spoke over Ms. Robertson and advised her not to
answer community member questions. As a result,
Ms. Robertson stopped going to community meetings. Sec-
ond, Ms. Robertson alleges that Ms. Evans interfered with
Ms. Robertson’s ability to have meetings with the employees
she supervised. Ms. Brown-Small testified that if she met
with Ms. Robertson, Ms. Evans would say, “How can you be
34
doing your job if you are meeting with Vanessa?” Because
of these interruptions, Ms. McNeil testified, “the continua-
tion of any meeting [with Ms. Robertson was made] point-
35
less.”
Ms. Robertson, however, does not provide evidence that
these meetings were a job responsibility of hers. With respect
to Ms. Robertson’s meetings with the section chiefs she di-
rectly supervised, the record indicates that Ms. Evans “dis-
couraged” the weekly meetings and that as a result the meet-
36
ings occurred “more on a monthly basis.” The record fails
to establish that these meetings were a job responsibility, or
that they needed to occur on a weekly basis. With respect to
the community meetings, Ms. Robertson established that
MilES staff presented at these meetings and that she was “an
33 R.26 at 2–4 (DeLessio Decl. ¶¶ 6–7, 12, 14).
34 R.28 at 8 (Brown-Small Decl. ¶ 27).
35 R.25 at 6–7 (McNeil Decl. ¶ 32).
36 R.28 at 8 (Brown-Small Decl. ¶ 28).
24 No. 19-1179
excellent resource at these meetings,” but she does not estab-
lish that speaking at these meetings was a job responsibility
37
of hers. Ms. Brown-Small observed that, because
“Ms. Robertson had always been an active participant in
these meetings,” it was “very embarrassing for
Ms. Robertson” when Ms. Evans told Ms. Robertson not to
38
speak at the meetings. Being an “active participant” in and
an “excellent resource” at an activity, however, is not synon-
ymous with that activity being a job responsibility. The dis-
trict court correctly held that “there [was] no evidence that
the loss of this particular duty was a ‘significant or substan-
tial change’ to her responsibilities such that it was materially
39
adverse.”
Even if these job functions do constitute job responsibili-
ties, Ms. Robertson does not show that Ms. Evans’s interfer-
ence with them was materially adverse. “Whether a change
in job responsibilities is materially adverse ‘all depends on
how much of a change, and how disadvantageous a change,
took place.’” Stephens, 569 F.3d at 791 (quoting Sitar v. Indi-
ana Dep’t of Transp., 344 F.3d 720, 727 (7th Cir. 2003)). A reas-
signment of job duties is not “materially adverse” unless it is
a “significant” change that is “often reflected by a corre-
sponding change in work hours, compensation, or career
prospects.” Id. Ms. Robertson does not provide any details
about her former resource allocation duties, nor does she al-
37 R.26 at 2–3 (DeLessio Decl. ¶¶ 6–7).
38 R.28 at 8 (Brown-Small Decl. ¶ 29).
39 R.34 at 17 (quoting Stephens, 569 F.3d at 790).
No. 19-1179 25
lege that any of the ways in which Ms. Evans interfered with
her ability to hold meetings resulted in a “corresponding
change in work hours, compensation, or career prospects.”
Stephens, 569 F.3d at 791.
As the district court stated, “[w]ithout having produced
sufficient evidence that she suffered an adverse action, Rob-
ertson’s retaliation claim [alleging that DHS continued its
retaliation through the actions of Ms. Evans] cannot proceed
40
to trial.” We cannot conclude from the record that a rea-
sonable person in Ms. Robertson’s situation would have
been dissuaded from participating in an investigation of dis-
crimination. The district court was correct in granting DHS
summary judgment on this issue.
Conclusion
The district court correctly granted summary judgment.
With respect to her failure-to-promote claim, DHS provided
a non-retaliatory reason for hiring Ms. Evans (she was the
better candidate), and Ms. Robertson failed to show that
there was a genuine issue of material fact as to whether that
proffered reason was pretext. With respect to her claim that
DHS continued its retaliation through Ms. Evans, Ms. Rob-
ertson also failed to produce sufficient evidence that she suf-
fered a materially adverse action.
We therefore affirm the judgment of the district court.
AFFIRMED
40 R.34 at 18.