Dabner v. Pruitt

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CINDY M. DABNER, )

)

Plaintiffs, ) Case No. 17-cv-2286

)

v. ) Judge Sharon Johnson Coleman

)

ANDREW WHEELER, Acting )

Administrator of the United States )

Environmental Protection Agency, )

)

Defendant. )

)

)

)

MEMORANDUM OPINION AND ORDER

Plaintiff Cindy M. Dabner filed a Complaint alleging discrimination and retaliation by her

former employer the U.S. Environmental Protection Agency (the “EPA”). This Court dismissed

Dabner’s age discrimination and hostile work environment claims and struck Dabner’s punitive

damages and attorney’s fees requests in October 2017. The EPA moves for summary judgment on

the remainder of Dabner’s claims, arguing that she cannot state a prima facie case of discrimination

or retaliation. For the reasons stated herein, this Court grants the EPA’s motion for summary

judgment [74].

Background

The following facts are undisputed. Dabner did not file a response brief or supporting

materials as required by Local Rule 56.1(b). Therefore, the Court accepts as true all material facts set

out in the EPA’s Local Rule 56.1(a) statement. Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th

Cir. 2009).

Dabner is an African-American woman who began her employment with the EPA in August

1998. Over the years, she held several environmental scientist positions, and in October 2010 she

requested a reassignment from the Underground Storage Tank Section. After a 12-month military

deployment, at Dabner’s request she was reinstated in March 2012 with a reassignment to the RCRA

Branch. Dabner retained the same grade level and received a step increase that resulted in increased

pay. Dabner volunteered for and was selected as the Land and Chemicals Division’s “LEAN

Coordinator” in June 2014. The position had a three-year commitment. However, after a few

months and a number of conflicts with other volunteers, Dabner quit, citing the demands of her

position. Dabner’s resignation prompted her supervisor to inform her that the EPA would likely

take a closer look at her participation in voluntary activities in the future.

In 2013, Dabner served a four-month temporary detail as a section chief in RCRA

Compliance Section 1. When a permanent position for section chief in another branch was

announced in July 2014, Dabner applied. She met the minimum requirements for the position and

was one of eleven candidates who received an interview. A panel of three interviewers posed the

same questions to each candidate and assigned a score to each. Dabner received a total score of 28,

behind Jamie Brown (African American male), who received 33 points, and Michael Beedle (white

male), who received 40 points.

The panel unanimously chose Beedle as the best-qualified candidate for many reasons,

including because he had two years’ experience as a staff member doing the same work that he

would be managing in that position; he had experience in remediation activities; he held an advanced

degree in public health like other successful project managers; he answered the interview questions

more completely; and he was able to most effectively relate his abilities and experiences. Dabner

was less qualified because she had not done RCRA compliance corrective action project manager

work; she did not have strategic planning and goals setting skills or experience at the same level as

the best-qualified candidate; and during her interview she did not convey what she wanted to

accomplish as section chief or how her experience was relevant.

Dabner’s work performance for the years 2013 and 2014 was worse than her peers. Dabner

did not complete any of her seven assigned inspection reports in 2013, despite having a reduced

workload to account for her time on detail. In 2014, Dabner completed four of those outstanding

2013 inspection reports, each almost a year late, and did not complete any of her nine assigned 2014

inspection reports. In contrast, in 2014, the other RCRA Compliance Section 2 inspectors who

worked the entire year in the section completed between eight and twenty inspection reports.

Dabner received a new supervisor, Julie Morris, in September 2013, who began addressing Dabner’s

deficient work with her through a series of meetings in 2014. In those meetings, Dabner agreed that

she had not completed her assignments. In October 2014, Morris issued a performance

expectations memorandum to Dabner that counseled her regarding her minimally satisfactory

performance and serious problems managing her caseload. The memorandum also set goals to

assist Dabner in addressing her work backlog. It was not discipline and was not accompanied by a

change in Dabner’s job responsibilities or pay.

Another RCRA Compliance Section 2 employee, Sue Brauer (white female) also had a work

backlog in 2013 when Morris became Brauer’s supervisor. Similar to Dabner, Morris counseled

Brauer regarding her work backlog. By 2014, Brauer had finished all outstanding 2013 inspection

reports, plus all 2014 reports and eleven 2014 inspections.

In November 2014, Dabner nominated herself for the Mid-Level Leadership Development

Program, a time intensive leadership development program that requires supervisory approval for an

employee to participate. Management did not sign off on her participation due to concerns that

Dabner was already behind on her routine work and that the substantial time commitment for the

program would interfere with her work performance.

This lawsuit is based on a 2014 EEO complaint that alleged race, color, sex, national origin,

age, and retaliation. Dabner filed eight other EEO complaints before the operative complaint.

Legal Standard

Summary judgment is proper when “the admissible evidence shows 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.”

McGreal v. Vill. of Orland Park, 850 F.3d 308, 312 (7th Cir. 2017), reh’g denied (Mar. 27, 2017)

(internal citations and quotations omitted); Fed. R. Civ. P. 56(a). A genuine issue of material fact

exists only if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where, as here, the non-moving party fails to respond as set forth in Local Rule 56.1(b), the Court

does not automatically grant summary judgment, but still reviews the facts and draws all reasonable

inferences in the light most favorable to the non-moving party. See Cracco, 559 F.3d at 632; Cady v.

Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“the Supreme Court has made clear that even pro se

litigants must follow rules of civil procedure.”). However, as noted above, the facts presented by the

EPA are undisputed.

Discussion

1. Race and Sex Discrimination

Dabner alleges that she was discriminated against when she was denied a promotion,

counseled regarding her productivity, and not approved for a leadership development program.

Contrary to the EPA’s contention, the Seventh Circuit recently made clear that it is no longer proper

to sort evidence “into ‘direct’ and ‘indirect’ piles.” Khowaja v. Sessions, 893 F.3d 1010, 1014 (7th Cir.

2018) (citing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)). To establish

employment discrimination, courts in this Circuit ask “whether the evidence would permit a

reasonable factfinder to conclude that the plaintiff’s race [or] sex … caused the … adverse

employment action. Evidence must be considered as a whole, rather than asking whether any

particular piece of evidence proves the case by itself.” Ortiz, 834 F.3d at 765.

Courts continue to use the familiar McDonnell Douglas burden-shifting framework to evaluate

the evidence in the record. David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir.

2017). To establish prima facie discrimination, Dabner has the initial burden to show that: (1) she is

a member of a protected class; (2) she performed reasonably on the job in accordance with the

EPA’s legitimate expectations; (3) she was subjected to an adverse employment action; and

(4) similarly situated employees outside of the protected class were treated more favorably by the

EPA. Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 895 (7th Cir. 2018). If the plaintiff

establishes a prima facie case, “then the employer must articulate a legitimate, nondiscriminatory

reason for the adverse employment action, at which point the burden shifts back to the plaintiff to

submit evidence that the employer’s explanation is pretextual.” David, 846 F.3d at 225.

The EPA admits that Dabner is an African-American woman. However, the EPA argues

that Dabner cannot show a prima facie case of disparate treatment under McDonnell Douglas because

she was not satisfying the EPA’s legitimate expectations, she was not subject to an adverse

employment action, and similarly situated employees outside of the protected class were not treated

more favorably.

Here, the undisputed evidence shows that Dabner is unable to establish a prima facie case of

discrimination. First, Dabner does not show that she was meeting her employer’s legitimate job

expectations at the time of the alleged adverse employment action. See Zayas v. Rockford Mem’l Hosp.,

740 F.3d 1154, 1158 (7th Cir. 2014). It is undisputed that Dabner repeatedly received counseling

about her work backlog, but did not catch up on her work. Just weeks after receiving a performance

expectations memorandum that again addressed the problem of Dabner’s work backlog, Dabner

nominated herself for a time intensive leadership development program, thereby demonstrating a

lack of understanding and commitment to completing her assigned tasks. Dabner also had a series

of conflicts with other volunteers for a different program that prompted further concern from her

supervisor. See id. at 1158–59 (affirming summary judgment where despite repeated warnings,

employee continued inappropriate behavior and therefore was not meeting legitimate expectations).

Second, Dabner does not demonstrate that she was subject to an adverse employment

action. An adverse employment action must “materially alter the terms and conditions of

employment” and not be a “mere inconvenience or an alteration of job responsibilities.” Dass v.

Chicago Bd. of Educ., 675 F.3d 1060, 1069 (7th Cir. 2012). “Such changes can involve the employee’s

current wealth, [her] career prospects, or changes to work conditions that include humiliating,

degrading, unsafe, unhealthy, or otherwise significant negative alteration in the workplace.” Boss v.

Castro, 816 F.3d 910, 917 (7th Cir. 2016).

Dabner’s performance expectations memorandum counseled her regarding minimally

satisfactory performance and set goals to address her work backlog. No disciplinary action,

demotion, loss of pay, or any material alteration of her job responsibilities accompanied the

memorandum. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009). Similarly, not

receiving approval to participate in a time-intensive leadership course when she was already behind

on her required work does not qualify as an adverse employment action. Id. Further, Dabner’s

request for a transfer from the Underground Storage Tanks cannot be an adverse employment

action. A lateral transfer, especially one requested by Dabner, to a position that does not involve a

demotion in form or substance is not a materially adverse employment action. See Madlock v. WEC

Energy Grp., Inc., 885 F.3d 465, 471 (7th Cir. 2018); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270,

274 (7th Cir. 1996). Finally, Dabner alleges that her unsuccessful application for a permanent

supervisory position is an adverse action. While the loss of career advancement can constitute an

adverse employment action, the evidence in the record here does not support such a conclusion. See

Lewis v. City of Chicago, 496 F.3d 645, 654 (7th Cir. 2007). In fact, despite recorded complaints

regarding her performance, Dabner does not set forth evidence demonstrating that by not receiving

this promotion she suffered any material changes to her employment.

Finally, Dabner does not put forth any evidence that similarly situated employees outside the

protected class received more favorable treatment. Dabner identifies Sue Brauer as a female

employee who also had a work backlog and alleges that Brauer did not receive a performance

expectations memorandum. It is undisputed that Brauer also received counseling from the same

supervisor as Dabner regarding her 2013 work backlog. However, unlike Dabner, during 2014,

Brauer finished all outstanding 2013 inspection reports, plus all 2014 reports and eleven 2014

inspections. In contrast, Dabner still had a backlog of 2013 inspection reports and was not current

on her 2014 reports or inspections. As a result, Brauer is not a similarly situated comparator. See

Khowaja, 893 F.3d at 1016.

Accordingly, Dabner cannot establish a prima facie case of race discrimination, and this

Court need not reach the question of whether the EPA’s proffered reason for Dabner’s non-

selection for promotion is pretextual. See Contreras v. Suncast Corp., 237 F.3d 756, 761 (7th Cir. 2001).

Nevertheless, the record supports that the EPA’s proffered reason that Dabner was not the best

candidate. Dabner does not point to any evidence to show that she was better, or even equally,

qualified for the section chief position. See Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 893 (7th Cir.

2016). The three interview panelists unanimously chose Beedle as the most qualified candidate, and

Brown as the second-most qualified. Dabner did not interview as well, scoring 12 points lower than

Beedle and 5 points lower than Brown. The panel found that she not able to communicate her

experience or goals for the position as effectively as the better-qualified candidates, and she did not

have the experience and qualifications that the panel determined were best suited for the job. As

such, the evidence does not support that the EPA promoted someone outside of the protected class

who was not better qualified for the position. Id.

Similarly, although also not adverse actions, Dabner does not show that the reason given by

EPA for why she received a performance expectations memorandum was a lie. The EPA informed

Dabner that the purpose of the memorandum was to address and help alleviate her significant work

backlog, and it is undisputed that Dabner admitted that she was behind in her work. Likewise,

Dabner set forth no evidence to show that the EPA’s reason for denying her participation in the

time-intensive leadership program was untrue.

This Court grants summary judgment in favor of the EPA on Dabner’s race and sex

discrimination claims.

2. Retaliation

The EPA also asserts that this Court should grant summary judgment on Dabner’s claim of

retaliatory adverse action in violation of Title VII because even if any of her alleged adverse actions

qualify, she cannot demonstrate the but-for causal link between her EEO activity and those actions.

For reasons already addressed elsewhere in this opinion, Dabner is unable to survive summary

judgment on her retaliation claim. Dabner alleges that she was retaliated against for her prior EEO

activity. However, she cannot establish a prima facie case of retaliation. The undisputed facts show

that she was not subject to an adverse employment action. The EPA issued a performance

expectations memorandum to Dabner and denied her participation in a leadership program based

on her backlog of required work. Likewise, Dabner has not demonstrated that by not receiving the

section chief promotion she suffered any material changes to her employment. Additionally,

Dabner cannot show that she was meeting the EPA’s legitimate employment expectations and has

not identified any similarly situated individuals that were treated more favorably. See Tomanovich v.

City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006) (setting forth the requirements for establishing a

prima facie case of retaliation). Therefore, this Court grants summary judgment in favor of EPA on

this issue.

Conclusion

Based on the foregoing, no genuine issue of material fact exists as to any of Dabner’s claims,

and the EPA is entitled to judgment as a matter of law. The Court grants the EPA’s motion for

summary judgment [74] and dismisses Dabner’s complaint. Civil case terminated.

TT IS SO ORDERED.

Date: 3/18/2019 | | | )

Entered:

SHARON JOHNSON COLEMAN

United States District Court Judge