# REYES v. MCDONOUGH

> District Court, S.D. Indiana · May 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10171090

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** May 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10171090

## How later opinions describe it (automated extraction)

- finding retaliation when a supervisor directed plaintiff-police officer to "more dangerous assignments via the police radio after her discrimination claims"

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10171090. Public record. Not legal advice.