REYES v. MCDONOUGH

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

ROBERTO REYES, )

)

Plaintiff, )

)

v. ) No. 1:22-cv-00206-JPH-MG

)

DENIS MCDONOUGH Secretary, )

)

Defendant. )

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff, Roberto Reyes, claims that he was subjected to a hostile work

environment because of his race while employed by the U.S. Department of

Veterans Affairs (VA). He also alleges that his superiors retaliated against him

for complaining about racist language and jokes. Defendant, Secretary of

Veterans Affairs Denis McDonough, has filed a motion for summary judgment.

Dkt. [40]. For the reasons below, that motion is GRANTED.

I.

Facts and Background

Because Defendant has moved for summary judgment under Rule 56(a),

the Court views and recites the evidence "in the light most favorable to the non-

moving party and draw[s] all reasonable inferences in that party's favor."

Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).

A. Background

Mr. Reyes, an Afro-Puerto Rican/Black male, was hired on a conditional

basis in April 2020 by the VA as a police officer at the Richard L. Roudebush

VA Medical Center in Indianapolis, Indiana. Dkt. 1 at 1 (Plaintiff's Complaint,

describing Plaintiff as "an Afro-Puerto Rican/Black male"); dkt. 40-1 at 35–37

(Reyes Dep. 35:14–37:20); dkt. 40-5 at 1. Newly hired officers must complete

training at the VA Law Enforcement Training Center and a background

investigation before they can receive law enforcement credentials and carry a

firearm, badge, and police identification. Dkt. 40-1 at 56, 136–137. Mr.

Reyes's employment with the VA was therefore conditional—with limited duties

and assignments—pending completion of the required training and background

investigation. Id. at 36.

The VA assigned Mr. Reyes to a group of new officers led by Sergeant

Nathan Hawley, who reported to Lieutenant Brian Moucha. Id. at 62–63, 86,

89–90. Mr. Reyes described sergeants as "mediators" between officers and the

lieutenants, and that they were "there to be a buffer." Id. Mr. Reyes completed

training at the Law Enforcement Training Center in October 2020, but did not

receive his credentials at that time because his background investigation

remained pending. Dkt. 40-1 at 135; dkt. 40-3 at 1.

B. Interactions with Sgt. Hawley

Mr. Reyes testified that he heard "racist tendencies coming from Sergeant

Hawley" and that other officers told him to stay away from Sgt. Hawley because

he was known to be a racist. Dkt. 40-1 at 231–32. Mr. Reyes heard Sgt.

Hawley make jokes about Jewish people and make statements about how black

employees feel about police officers. Dkt. 40-1 at 231. Specifically, Sgt.

Hawley "made some silly sheriff's hat or something like that for another officer

and it had the Star of David, and he made some joke about the star of David."

Id. at 79. Mr. Reyes couldn't remember any more details. Id. He also

overheard Sgt. Hawley make comments like "oh the black employees don't like

the police at the hospital" in a group setting, and not directly to Mr. Reyes. Id.

at 103.

On November 19, 2020, while on duty with Sgt. Hawley, Mr. Reyes

overheard a video that Sgt. Hawley was watching on his phone that included

use of the "'N' word." Id. at 106–07. Sgt. Hawley quickly stopped the video and

explained to Mr. Reyes that the video was from a friend on a social media app,

Snapchat, and that he could not control whether that language would be used

on his friend's account. Dkt. 40-8 at 2. The video offended Mr. Reyes. Id. Lt.

Moucha later informed Mr. Reyes that he had spoken with Sgt. Hawley about

the incident and had instructed Sgt. Hawley to be more careful with his

internet browsing while at work. Id.

On December 5, 2021, Mr. Reyes submitted a complaint to Captain

Gregory Kafer about the Snapchat video incident. Dkt. 40-8. And on January

23, 2021, Mr. Reyes filed a Complaint of Employment Discrimination with the

VA Equal Employment Office describing the Snapchat incident. Dkt. 40-11. At

that time, Mr. Reyes had still not received his law enforcement credentials. Id.

at 5. Mr. Reyes stated in his complaint that the delay was intentionally caused

by his superiors because he had made a formal complaint against Sgt. Hawley.

Id.

C. Transfer and Incidents while on Night Shift

Shortly after he returned to Roudebush from law enforcement training,

Mr. Reyes requested a transfer to the night shift. Dkt. 40-1 at 128. The

request was approved, and Mr. Reyes began working the night shift in the

same uncredentialed role. Id. His lead officer was Sgt. Anthony Duchene and

his direct supervisor was Lieutenant Thomas Wininger. Id. at 29; 128; Dkt. 40-

12 at 1.

On January 29, 2021, Mr. Reyes and Sgt. Duchene argued about the

pervasiveness of cheating in college. Dkt. 40-1 at 145; dkt. 40-12 at 1. Sgt.

Duchene expressed his belief that "pretty much everyone cheats in college,"

and Mr. Reyes responded that he had multiple degrees and did not cheat to get

them. Dkt. 40-1 at 145. Sgt. Duchene became upset and defensive and

accused Mr. Reyes of cheating. Id. Mr. Reyes testified that this was the first

time Sgt. Duchene "had a problem with [him]." Id. at 146.

The next day, Mr. Reyes was assigned to work in the Roudebush atrium.

Dkt. 40-12 at 1. A few minutes into his shift, Sgt. Duchene arrived and gave

Mr. Reyes the option to patrol the exterior portion of Roudebush with

instructions to advise uniformed officers if he observed anything suspicious.

Id. Mr. Reyes responded that he did not feel comfortable leaving his interior

patrol because he was unarmed and unable to defend himself if a dangerous

situation arose. Id. Sgt. Duchene became angry and said "What, are you

scared?" Dkt. 40-1 at 256, 149; dkt. 40-12 at 1. He then stated to Mr. Reyes, "I

know you! I know what the Department is saying about you! I know what the

Chief is saying about you! I know what Capt. Kafer is saying about you! And,

you're bucking the system! And, at this point, I know you lied on your

background, which is why you're here!" Dkt. 40-1 at 256, 149; dkt. 40-12 at 2.

On January 31, 2021, Mr. Reyes reported his concerns with Sgt.

Duchene's comments and behavior to Lt. Wininger. Dkt. 40-12 at 2. Lt.

Wininger told Mr. Reyes that he had already spoken to Sgt. Duchene and that

he intended to speak further with him about it. Id.

Following the January 30 incident with Sgt. Duchene, Mr. Reyes reported

eight instances between February 1, 2021, and April 20, 2021, when Sgt.

Duchene was either absent or left in the middle of a shift. Id. at 2–3. Mr.

Reyes believed that Sgt. Duchene's absence on these occasions exposed him to

a safety risk because Mr. Reyes was left unarmed without an armed officer

backing him up. Id. at 3. Mr. Reyes told Lt. Wininger about Sgt. Duchene's

absences. Dkt. 40-1 at 162.

While on the night shift. Mr. Reyes was involved in the following

incidents:

• On March 28, 2021, Mr. Reyes accompanied Officer Jasen Sumner on

a security check of Crown Hill Cemetery. Dkt. 40-14 at 1. Mr. Reyes

had patrolled Crown Hill Cemetery multiple times and had agreed to

go because Lt. Wininger "promoted that kind of thing." Dkt. 40-1 at

164–65. As Mr. Reyes and Officer Sumner patrolled, a car passed by

the cemetery, and Mr. Reyes and Officer Sumner saw and heard

gunfire from the car. Id. at 169. Mr. Reyes immediately dropped to

the ground. Dkt. 40-14 at 2. Neither Mr. Reyes nor Officer Sumner

were injured. Id.

• On April 20, 2021, Mr. Reyes encountered a man at the hospital

emergency room who refused to provide identification. Dkt. 40-13.

Mr. Reyes told a dispatcher that he was confronting the man. Id. Sgt.

Duchene also reported to the dispatcher that he was in the vicinity of

the incident but did not go to the location. Id. Instead, Lt. Wininger

arrived, and he and Mr. Reyes escorted the man out of the hospital.

Id.

• Mr. Reyes confronted a veteran who swung at him with a closed fist.

Dkt. 40-1 at 258. No credentialed officers were involved in that

confrontation. Id.

• Mr. Reyes responded to a call on a mental health patient who was

combative with Roudebush staff. Id. at 260–61. Lt. Wininger and

Officer Sumner also responded to that call. Id. Mr. Reyes testified

that Lt. Wininger's instructions to him were to respond to dispatches

along with other officers on duty. Id. at 259–60.

D. Termination and this Lawsuit

On June 30, 2021, the U.S. Office of Personnel Management ("OPM") sent

a letter to Mr. Reyes informing him that his background investigation raised "a

serious question of [his] current suitability" for employment as a Police Officer

with the VA. Dkt. 40-3 at 1. The OPM found that Mr. Reyes had failed to

disclose formal complaints and allegations of misconduct against him while

employed by the Lexington Police Department that had resulted in the

termination of his employment. Id. at 4–15. The OPM found that Mr. Reyes

had been suspended for three months by the Lexington Police Department

following a complaint that he used his taser improperly against multiple people

who were not a threat to him or other officers and had yelled at them for

several minutes. Id. 18. OPM also found that Mr. Reyes had left his

employment with another employer due to performance deficiencies. Id at 4–

12.

OPM provided Mr. Reyes with an opportunity to respond to and contest

the accusation that he failed to disclose these events in response to questions

during the application and background investigation process, dkt. 40-3 at 2,

and Mr. Reyes did so, dkt. 40-20. On December 14, 2021, OPM issued a final

decision requiring the VA to remove Mr. Reyes from federal employment. Dkt.

40-21 at 1.

Mr. Reyes filed this action against Denis McDonough as the Secretary of

Veterans Affairs and against the Department of Veterans Affairs, asserting six

claims. Dkt. 1. By agreement of the parties, Counts II, IV, and VI of the

Complaint were dismissed, and the VA was dismissed as a defendant. The

remaining claims that are set forth in Counts I (termination because of race), III

(hostile environment based on race), and V (retaliation), name Secretary

McDonough as the only Defendant. Dkt. 20. The Secretary has moved for

summary judgment. Dkt. 40.

II.

Applicable Law

Summary judgment shall be granted "if the movant shows that 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). The moving party must

inform the court "of the basis for its motion" and specify evidence

demonstrating "the absence of a genuine issue of material fact." Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this

burden, the nonmoving party must "go beyond the pleadings" and identify

"specific facts showing that there is a genuine issue for trial." Id. at 324.

In ruling on a motion for summary judgment, the Court views the

evidence "in the light most favorable to the non-moving party and draw[s] all

reasonable inferences in that party's favor." Zerante, 555 F.3d at 584 (citation

omitted).

III.

Analysis

Mr. Reyes's complaint includes claims of race discrimination, a hostile

work environment, and retaliation against Secretary McDonough under Title

VII. 42 U.S.C. § 2000e et. seq. Dkt. 1 at 5. The Secretary argues that he is

entitled to summary judgment on all claims.

A. Race Discrimination

The Secretary argues that he is entitled to summary judgment on Mr.

Reyes's claim that he was terminated because of his race. Dkt. 41 at 17–20.

Mr. Reyes did not respond, see dkt. 42. He therefore has "abandoned [this]

claim" and may no longer pursue it. Maclin v. SBC Ameritech, 520 F.3d 781,

788 (7th Cir. 2008). Summary judgment is therefore granted on Count I, race

discrimination.

B. Hostile Work Environment

Mr. Reyes argues that he was subjected to a hostile work environment by

Sgts. Hawley and Duchene, and that Lt. Wininger failed to take corrective

action with respect to Sgt. Hawley.

Title VII prohibits employers from discriminating against employees

based on race. 42 U.S.C. § 2000e-2(a). This prohibition includes protection

from a hostile work environment—"[w]hen the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of the victim's employment and create an

abusive working environment." Scaife v. U.S. Dep't of Veterans Affs., 49 F.4th

1109, 1116 (7th Cir. 2022). To succeed on a race-based hostile work

environment claim, the plaintiff must prove: "(1) he was subject to unwelcome

harassment; (2) the harassment was based on race; . . . (3) the harassment was

severe or pervasive to a degree that altered the conditions of employment and

created a hostile or abusive work environment; and (4) there is a basis for

employer liability." Gates v. Bd. of Educ. of the City of Chi., 916 F.3d 631, 636

(7th Cir. 2019). "To [prove the second element], the plaintiff need not show that

the complained-of conduct was explicitly racial, but must show it had a racial

character or purpose." Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th

Cir. 2011).

To prove the third element, a plaintiff must show that the discriminatory

conduct was severe or pervasive considering the totality of the circumstances.

Scaife, 49 F.4th at 1115. This includes "(1) the frequency of the discriminatory

conduct; (2) how offensive a reasonable person would deem it to be; (3) whether

it is physically threatening or humiliating conduct as opposed to verbal abuse;

(4) whether it unreasonably interferes with an employee's work performance;

and (5) whether it is directed at the victim." Id.

Mr. Reyes must prove all four elements to make out a hostile work

environment claim. Id. Mr. Reyes has shown the complained-of conduct was

unwelcome, as he reported these incidents to supervisors. See dkt. 42 at 8.

The Court therefore begins its analysis with the second and third elements—

whether the harassment was race-based and severe or pervasive.

1. Mr. Hawley

In support of his hostile environment claim, Mr. Reyes designates

evidence that Sgt. Hawley made "racist comments in Mr. Reyes's presence

about Jews and Black people" and that he "played a racist Snapchat video

while Reyes was in his presence." Dkt. 42 at 12. He further testified that Sgt.

Duchene "heard Sergeant Hawley say racist comments about Mr. Reyes in the

locker room, and to dispatch." Dkt. 42 at 12.

When evaluated in context under the totality of the circumstances, this

conduct was not severe or pervasive to a degree that it altered Mr. Reyes's

conditions of employment and created a hostile or abusive work environment.

See Johnson v. Gen. Bd. of Pension & Health Benefits of United Methodist

Church, 733 F.3d 722, 729 (7th Cir. 2013) (acknowledging single instances of

behavior can give rise to Title VII liability but requiring a high level of severity);

E.E.O.C. v. Village at Hamilton Pointe LLC, No. 22-2806, 2024 WL 2074326, *4

(7th Cir. May 9, 2024) (noting the "more remote or indirect the act[,] . . . the

more attenuated the inference" that it effected the conditions of the plaintiff's

workplace and that harassment directed at someone other than the plaintiff

has a lower "impact" on them).

To be sure, the Snapchat video that Mr. Reyes overheard was

inappropriate, offensive, and has a racial connection. But the speaker who

used the racial epithet was a person on the video, not Sgt. Hawley. And even

viewing the evidence most favorably to Mr. Reyes, it's clear that Sgt. Hawley did

not intend for Mr. Reyes to hear it. The comment was not directed at Mr. Reyes

or any other employee, and thus carries little weight when determining severity

or pervasiveness. See Hamilton Pointe, 2024 WL 2074326, at *4 (describing

three categories of racially charged language by supervisors—direct comments

(which weigh heavier), comments made to non-plaintiffs (which carry less

weight), and comments plaintiffs are told supervisors made (weakest evidence)).

Mr. Reyes said that "[a]s soon as [Sgt. Hawley] played it . . . and that word

came up or that phrase came up, [Sgt. Hawley] shut it off." Dkt. 40-1 at 110.

Later, Sgt. Hawley told Mr. Reyes that he can't control what was on his friend's

Snapchat account and that he was sorry. Id. at 117. Even accepting Mr.

Reyes's view that Sgt. Hawley's apology wasn't sincere, this isolated incident

isn't sufficient to show a hostile work environment. See Scaife, 49 F.4th at

1116 (plaintiff learning from coworker that another employee had called her a

"stupid f****** n*****" did not qualify as sufficiently severe or pervasive even

though a "one-time use of the n-word can in some circumstances warrant Title

VII liability."); Nichols v. Mich. City Plant Plan. Dep't, 755 F.3d 594, 601 (7th Cir.

2014) ("[O]ne utterance of the n-word has not generally been held to be severe

enough to rise to the level of establishing liability. . . . [Plaintiff] presents no

evidence that he was subjected to this type of offensive conduct more than

once.").

The same is true of Sgt. Hawley's comment, "oh the black employees

don't like the police at the hospital." Dkt. 40-1 at 103. Even considering this

comment along with the Snapchat video incident, they do not collectively

amount to the type of severe or pervasive conduct from which a jury could

reasonably find in Mr. Reyes's favor. See Poullard v. McDonald, 829 F.3d 844,

859 (7th Cir. 2016) (considering three "arguably race-tinged remarks" alongside

other decidedly non-racial incidents and concluding that the alleged

harassment was not severe or pervasive enough to rise to the level of a hostile

work environment).

Mr. Reyes's reliance on Johnson v. Advocate Health and Hosps. Corp.,

892 F.3d 887 (7th Cir. 2018) is misplaced. There, the Seventh Circuit reversed

the district court's grant of summary judgment on a hostile work environment

claim because plaintiffs' supervisor used numerous racial epithets and made

multiple derogatory racial remarks, including the N-word, speaking "using

stereotypical African-American slang," and saying that one plaintiff "cleaned

like a monkey." Id. at 901–02 (listing all of the comments). Here, Mr. Reyes

designates evidence of two incidents involving Sgt. Hawley—the Snapchat video

and the comment about black employees not liking the police. These incidents

were not as numerous or severe as the incidents in Johnson.

Finally, Mr. Reyes argues that Sgt. Hawley made racist comments about

him to others. Dkt. 42 at 15–17. But when asked for details, Mr. Reyes said

he didn't have any more information, only that Sgt. Duchene told him that Sgt.

Hawley said "racist things" about him. Dkt. 40-1 at 124-27. Such conclusory

and vague statements—made only to other people and not to or even in the

presence of Mr. Reyes—is the "weakest evidence" or "hearsay," Johnson, 892

F.3d at 902, and therefore insufficient evidence from which a jury could find for

Mr. Reyes. See Hamilton Pointe, 2024 WL 2074326, at *4 (describing the

categories of racially charged language in the context of hostile work

environment claims).

Perhaps because there's scant evidence showing that Sgt. Hawley's

conduct created a hostile work environment, Mr. Reyes repeatedly cites to the

same facts—the Snapchat video, the comment about black employees not

liking the police, and the "racist things" that Sgt. Hawley allegedly said to Sgt.

Duchene. See dkt. 42 at 2; 12; 13; 15; dkt. 40-1 at 107–108. But no matter

how many times he refers to them, these events are not sufficient for a jury to

reasonably conclude that Sgt. Hawley's conduct was severe or pervasive to a

degree that altered the conditions of employment and created a hostile or

abusive work environment. See Passanati v. Cook Cnty., 689 F.3d 655, 667

(7th Cir. 2012) ("Offhand comments, isolated incidents, and simple teasing do

not rise to the level of conduct that that alters the terms and conditions of

employment.").

2. Mr. Duchene

In support of his hostile environment claim, Mr. Reyes designates

instances when Sgt. Duchene left Mr. Reyes alone and unarmed in the atrium

of the VA Hospital. Dkt. 42 at 9. He also argues that Sgt. Duchene subjected

him to racial harassment when he said that Mr. Reyes was "bucking the

system" and had discussions with him about cheating in college. Dkt. 42 at

10.

Mr. Reyes designates no evidence, however, that any of these incidents

had a racial character or purpose. Even assuming that Mr. Reyes was put in

some degree of peril when Sgt. Duchene left him alone in the Atrium, there is

no designated evidence from which a jury could reasonably find that Sgt.

Duchene's actions that led to those situations—not showing up to work or

leaving work early—had a racial character or purpose, or any discernable

purpose for that matter. See Yancick, 653 F.3d at 549 ("Because we conclude

that [plaintiff] hasn't presented facts upon which a reasonable jury could find

that [the acts occurred] because of race, his claim fails as a matter of law.");

see also Liberty Mut. Fire Ins. Co. v. Clayton, 33 F.4th 442, 447 (7th Cir. 2022)

("Although we construe facts in the light most favorable to the non-moving

party, . . . we need only draw 'reasonable' inferences from the record."). The

same is true regarding Sgt. Duchene's comments about Mr. Reyes "bucking the

system" and the prevalence of cheating in college. Id. Mr. Reyes's subjective

belief that Sgt. Duchene's conduct and comments were related to his race does

not make it so. See Yancick, 653 F.3d at 548–49 ("If the subjective beliefs of

plaintiffs in employment discrimination cases could, by themselves, create

genuine issues of material fact, then virtually all defense motions for summary

judgment in such cases would be doomed.").

Last, Mr. Reyes argues that Sgt. Duchene created a hostile work

environment by having "conversations with Reyes and inform[ing] him that

Hawley was making racial complaints and they were directed toward Reyes."

Dkt. 42 at 10. As explained above, Mr. Reyes designates no further details

regarding what Sgt. Hawley said to Sgt. Duchene that was racial, dkt. 40-1 at

124-27, so it's insufficient. Similarly, Mr. Reyes designates no evidence from

which a jury could find that Sgt. Duchene's informing him of Sgt. Hawley's

comments was severe or pervasive to a degree that it altered Mr. Reyes's

conditions of employment and created a hostile or abusive work environment.

Mr. Reyes has not designated evidence showing that the conduct of Sgts.

Duchene and Hawley, whether considered alone or collectively, created a

hostile work environment based on race. See Gates, 916 F.3d at 636 (listing

elements of a hostile work environment claim). Therefore, no reasonable juror

could find that Mr. Reyes's workplace was "so pervaded by discrimination that

the terms and conditions of employment were altered." Demkovich, 3 F.4th at

977. The Secretary is GRANTED summary judgment on Mr. Reyes's hostile

environment claims.1

C. Retaliation

Title VII prohibits employers from retaliating against employees for

engaging in protected behavior, including bringing a complaint of race

discrimination. See Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017).

For a retaliation claim, a plaintiff must show "(i) [he] engaged in activity

protected under Title VII; (ii) [he] suffered an adverse employment action; and

(iii) [his] protected activity and the adverse action(s) were causally connected."

Runkel v. City of Springfield, 51 F.4th 736, 746 (7th Cir. 2022). "For a

retaliation claim, an adverse employment action is that which would 'dissuade[]

a reasonable worker from making or supporting a charge of discrimination.'"

Giese v. City of Kankakee, 71 F.4th 582, 590 (7th Cir. 2023) (quoting Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). While the standard to

demonstrate an adverse employment action in a retaliation claim is less than in

Title VII discrimination claim, Huri v. Off. of the Chief Judge of the Cir. Ct. of

Cook Cnty., 804 F.3d 826, 833 n.3 (7th Cir. 2015), "it is important to separate

significant from trivial harms". Lewis v. Wilkie, 909 F.3d 858, 867–68 (7th

Cir. 2018) (employees are not protected against "petty slights and minor

annoyances that often take place at work and that all employees experience").

1 Having found that Mr. Reyes has not designated evidence from which a jury could

find that he was subjected to a hostile work environment by Sgt. Duchene and/or Sgt.

Hawley, the Court need not address Mr. Reyes's argument that "Lieutenant Wininger

failed to take appropriate remedial action reasonably calculated to the harassment."

Dkt. 42 at 18.

Here, the Secretary contends that the VA's actions were not adverse

employment actions. Dkt. 41 at 26. Mr. Reyes does not contend that his

termination following the discovery of untrue statements in his application

constituted a retaliatory adverse action. See dkt. 42. Instead, he argues that

he was subjected to adverse employment actions when (1) Sgt. Duchene did

not arrive for his shifts, leaving Mr. Reyes alone and unarmed, and (2) when he

was required to patrol Crown Hill cemetery without credentials. Dkt. 42 at 21–

23.

Title VII "protects an individual not from all retaliation, but from

retaliation that produces an injury or harm." Lewis, 909 F.3d at 868. Here,

Mr. Reyes has not designated evidence showing that he was injured or harmed

by patrolling alone, or that patrolling alone was dangerous enough to

constitute a materially adverse employment action. But see Lesiv v. Illinois

Cent. R.R. Co., 39 F.4th 903, 909, 911 (7th Cir. 2022) (finding a dangerous

assignment to be retaliatory where the employee was assigned solo work that

was dangerous if done alone); Lewis v. City of Chicago, 496 F.3d 645, 656 (7th

Cir. 2007) (finding retaliation when a supervisor directed plaintiff-police officer

to "more dangerous assignments via the police radio after her discrimination

claims"). The district court in Lewis described these dangerous incidents as

including: assigning plaintiff to investigate a citizen complaint by herself,

assigning her to a "shots fired" call, assigning her to partners she believed were

dangerous, and being reassigned from an in-progress burglary call to a more

dangerous assignment. Lewis v. City of Chicago, 563 F. Supp. 2d 905, 918

(N.D. Ill. 2008).

Here, Mr. Reyes's most dangerous assignment and encounters were far

less dangerous than those in Lewis. On one occasion he blocked a punch from

a "combative veteran," id. at 258, but this was in response to a call from a

nurse in the atrium of the facility. Also, the instance where Mr. Reyes had to

"confront a disgruntle[d] civilian by himself," Lt. Wininger showed up to assist.

Dkt. 42 at 22; dkt. 40-1 at 254–55. There is no evidence Mr. Reyes was singled

out for these assignments or deliberately sent into situations where one

unarmed officer was clearly disproportionate to the level of danger presented.

Similarly, Sgt. Duchene's failure to show up to a shift change is a "minor

annoyance" that does not rise to the level of a materially adverse action. Mr.

Reyes has not shown his working alone carried any danger greater than he

would ordinarily face as a non-credentialled officer. The remaining allegations

relating to instances when Mr. Reyes worked alone because Sgt. Duchene was

late or failed to show up were similarly insufficiently dangerous to constitute

an adverse employment action.

The second identified incident—patrolling Crown Hill Cemetery without

credentials—was not an adverse employment action. Mr. Reyes admitted that

going to Crown Hill was not required but was a voluntary decision he made

because it was something that Lt. Wininger "promoted." Dkt. 40-1 at 165–67.

Mr. Reyes has not produced evidence that could lead a reasonable juror to

conclude the patrol assignment carried any danger greater than he would

ordinarily face as a non-credentialled officer. No juror could reasonably

conclude from the designated evidence that patrolling Crown Hill Cemetery

with another officer was an adverse employment action.

Finally, even if any of the incidents identified by Mr. Reyes constituted an

adverse employment action, the Secretary is nonetheless entitled to summary

judgment because Mr. Reyes has not designated evidence of a causal

connection between the employment action and protected activity. See Huff v.

Buttigieg, 42 F.4th 638, 645 (7th Cir. 2022) (requiring a showing that

retaliation "plays a part in a federal employment decision" in retaliation cases

against a federal defendant). Mr. Reyes has not shown that either his work

assignments or Sgt. Duchene'’s failure to show up for work was connected to

his protected activity.

For these reasons, the Secretary is entitled to summary judgment on Mr.

Reyes's retaliation claim.

IV.

Conclusion

Defendant's motion for summary judgment is GRANTED. Dkt. [40].

Final judgment will issue in a separate entry.

SO ORDERED.

Date: 5/17/2024 Samus Rat ce anton tambon

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

All electronically registered counsel

19