Linda Robertson v. Ryan D. McCarthy ( 2020 )

NONPRECEDENTIAL DISPOSITION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 July 7, 2020
Decided July 23, 2020
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 19-2665
LINDA ROBERTSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 4:18-cv-04204-SLD-JEH
RYAN D. McCARTHY, Sara Darrow,
Secretary of the Army, Chief Judge.
Defendant-Appellee.
ORDER
Linda Robertson, a black civilian employee for the United States Army, believes
she was denied a promotion in retaliation for having previously filed a complaint about
her supervisor. She also claims that she was subjected to retaliation and discrimination
when she received a three-day suspension for not completing a task assigned by that
same supervisor. The district court entered summary judgment for the defendant,
concluding that there was insufficient evidence of an unlawful motive. We affirm the
judgment.
The Army hired Robertson in 2014 to be a victim advocate for the Sexual
Harassment/Assault Prevention and Response Program (“SHARP”). She was the only
No. 19-2665 Page 2
SHARP victim advocate at the base. Her duties included supporting sexual-assault
victims, coordinating support services, and maintaining SHARP training standards.
In the fall of 2015, Terese Seibert, Robertson’s supervisor, gave Robertson an
annual performance review. On a scale of 1 to 5 (5 being the best), Robertson scored
a 3—meaning that she was successful or excellent in meeting her objectives. Seibert
explained that Robertson did not receive a higher rating because she had missed more
than two deadlines, failed to brief Seibert about her completed SHARP tasks, and failed
to conduct ongoing program assessments to identify shortfalls. Robertson had received
the same overall performance rating the prior year.
Upset by the score, Robertson lodged a complaint with the Army’s equal
employment office challenging Seibert’s rating, which she believed stemmed from
discrimination based on race. Seibert was informed of Robertson’s complaint a few days
later.
In the meantime the Sexual Harassment Assault Response Coordinator at the
Army base was scheduled to go on military leave, and Seibert and Robertson expected
that the position would be filled on a temporary basis (120 days). Robertson wanted to
know if she might qualify for the position, so she submitted her résumé to Seibert to
forward to the personnel center for guidance. Per Robertson’s résumé, the personnel
center determined that she was not qualified for the position and recommended that
she revise the résumé to more clearly explain her skills and responsibilities. As it turned
out, no opening for the position was posted, and the position was not filled, even
temporarily.
In March 2016 Seibert assigned Robertson the task of preparing SHARP training
materials. Robertson contacted SHARP’s out-of-state academy and requested templates
to help her prepare the materials. The academy told Robertson that she was not
responsible for creating training materials and should not complete the task. Robertson
emailed that reply to Seibert. The SHARP program manager also emailed Seibert,
reiterating that Robertson was not responsible for producing training materials. Seibert
responded both to Robertson and to SHARP’s academy that Robertson was responsible
for creating training packages for the fire and police departments and that this task
would help her build necessary skills for professional development. Robertson,
however, continued to balk, maintaining that the assignment was outside her job duties.
Seibert then recommended, and Robertson received, a three-day suspension for
refusing to comply with orders.
No. 19-2665 Page 3
After exhausting her administrative remedies, Robertson filed this suit in federal
court, arguing that the Army discriminated against her because of her race in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2.1 Specifically, she asserted
that the Army retaliated against her when it did not promote her to fill the
sexual-harassment coordinator’s vacancy. She also argued that the Army’s decision to
suspend her for three days was discriminatory and in retaliation for the complaint she
had filed against Seibert concerning her performance review.
The district court entered summary judgment for the Secretary of the Army.
Regarding Robertson’s claim of racial discrimination, the judge concluded that no
reasonable fact-finder could conclude that her race contributed to her three-day
suspension. The judge further determined that she had not raised a triable issue over
whether retaliation (for filing the prior complaint against Seibert) played any role in
either her suspension or nonpromotion.
Robertson first argues that the judge erred by overlooking evidence of retaliation
concerning her claim that she was wrongly denied a promotion. She relies on her
assertions that Seibert effectively sabotaged her chances at a promotion by never
forwarding her résumé to the personnel center for consideration. She also contends that
Seibert once told her that she would never be promoted to the coordinator position
because she did not have confidence in herself.
As the Secretary correctly points out, however, Robertson’s argument is doomed
because she cannot show that she suffered a materially adverse employment action. A
plaintiff cannot show retaliation if she never actually applied for the promotion that she
did not receive. See Poullard v. McDonald, 829 F.3d 844, 858 (7th Cir. 2016). Here, the
coordinator position Robertson sought was never posted, and she never applied for it.
Further, a retaliation claim requires proof of but-for causation. Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 352 (2013); Mollet v. City of Greenfield, 926 F.3d 894, 896–97
(7th Cir. 2019). Robertson has not introduced evidence to suggest that any action of
Seibert’s caused her not to be promoted.
In any event, nothing in the record would permit a fact-finder to conclude that
Seibert harbored any retaliatory motive or prevented Robertson from being promoted.
1Robertson also brought a claim for age discrimination under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 626(e), but she did not raise any
argument relating to that claim at summary judgment and has not pursued the claim on
appeal.
No. 19-2665 Page 4
See Abrego v. Wilkie, 907 F.3d 1004, 1014 (7th Cir. 2018). Contrary to Robertson’s
contentions, the Secretary put forth undisputed evidence that Seibert did forward
Robertson’s résumé to the personnel center, and Robertson was advised to revise her
résumé to more adequately set forth her qualifications.
Robertson also maintains that causation can be inferred from the timing of her
complaint against Seibert—coming as it did just a few weeks before she sought the
promotion. She contends that because Seibert learned of her complaint a short time
before she applied for the position, Seibert retaliated against her by obstructing her
attempt to file an application. But timing alone is insufficient to support a retaliation
claim. See Mollet, 926 F.3d at 898. And as already mentioned, Robertson cannot point to
anything to support but-for causation. Her evidence of suspicious timing is by itself
insufficient for a fact-finder to conclude that Seibert retaliated against her.
As for her claim that she was suspended in retaliation for her prior complaint,
Robertson asserts that the district court gave too little weight to her evidence of
Seibert’s continued “harassment”—typified by Seibert’s order to develop training
materials. But making out a retaliation claim required Robertson to show that a causal
link connected her protected activity with an adverse employment action. See Lewis v.
Wilkie, 909 F.3d 858, 866 (7th Cir. 2018). Suspicious timing alone, as we have already
mentioned, is not enough to prove retaliation, see Mollet, 926 F.3d at 898, and Robertson
cannot identify anything in the record to dispute the veracity of Seibert’s explanation
that Robertson was suspended because she refused to follow the orders of a superior,
see Liu v. Cook Cty., 817 F.3d 307, 316 (7th Cir. 2016).
Relatedly, Robertson argues that the district court gave too little weight to her
evidence showing that her suspension resulted from discrimination. She seems to
suggest that discrimination can be inferred from the expectation that she should follow
Seibert’s order to create training materials—an order she deems illegitimate because it
was contrary to the directive of SHARP’s academy. But to survive summary judgment,
Robertson had to present sufficient evidence that race caused an adverse employment
action, see Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016), and she
presented no evidence that her suspension had anything to do with her race.
AFFIRMED