Traphan, Nicole v. Wisconsin Department of Health Services

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

NICOLE TRAPHAN,

Plaintiff,

v.

OPINION AND ORDER

WISCONSIN DEPARTMENT OF

22-cv-742-wmc

HEALTH SERVICES and

CHARLES ADAMS,

Defendants.

Plaintiff Nicole Traphan filed this civil action under 42 U.S.C. § 1983 and Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), against her former employer, the

Wisconsin Department of Health Services (“DHS”), and a former co-worker, Charles

Adams, in his individual capacity. (Dkt. #13.) Traphan alleges that she endured unlawful

discrimination and a hostile work environment based on her gender and race while

employed as a senior nuclear safety specialist at DHS. Traphan further alleges that she

was retaliated against and constructively discharged after complaining about this

discrimination, ultimately causing her to resign. Defendants have filed a motion for

summary judgment, arguing that all of Traphan’s claims lack merit. (Dkt. #25.) After

considering all of the pleadings and exhibits in the light most favorable to Traphan,

defendants’ motion for summary judgment will be granted for reasons explained below.

UNDISPUTED FACTS1

A. The Parties and Their Roles

Plaintiff Nicole Traphan, an African American female, was employed by defendant

DHS in the Radiation Protection Section. Before being hired by DHS, Traphan was

employed by the Texas Commission on Environmental Quality and Texas Department of

State Health Services, where her job duties involved the licensing of uranium mines,

collaborating with the U.S. Department of Energy on remediation projects, environmental

sampling of areas surrounding nuclear power plants, and instrument calibration. In that

role, Traphan had experience collaborating with multiple federal agencies and planning

more than a dozen radiological emergency response exercises.

The Wisconsin DHS Radiation Protection Section, where Traphan worked from

May 10, 2021, through May 9, 2022, is part of DHS’s Bureau of Environmental and

Occupational Health. Within the DHS Radiation Protection Section there are three units:

the X-Ray Unit, the Radiation Emergency Unit, and the Radioactive Materials Unit.

(LeClear Dep. Ex. 1 (dkt. #28-1) at 6.)

Traphan worked in the Radiation Emergency Unit as part of a team with four other

employees -- defendant Charles Adams, and non-defendants Kyle Walton, Robert Busch,

and David LeClear -- all of whom were white males. Both Traphan and Adams were

1 Unless otherwise indicated, the following undisputed facts set forth in this section are taken from

proposed findings of fact submitted in compliance with the court’s procedures on summary

judgment as provided to the parties with the pretrial conference order. Specifically, the court

resolves all material disputes and draws all reasonable inferences in favor of plaintiff Traphan, as

the non-movant. See Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th Cir. 2021).

employed as senior nuclear safety specialists, and were supervised by LeClear. Paul

Schmidt was the Radiation Protection Section Chief until he retired in January 2022, and

was replaced by Mark Paulson, who was formerly supervisor of the Radioactive Materials

Unit.

The Radiation Protection Unit’s responsibilities include: (1) environmental

monitoring, licensing, and inspection of radiological materials; (2) oversight and safety of

X-rays performed around the state; and (3) general radiological emergency preparedness.

To ensure that it is adequately prepared for emergency situations, the Radiation Protection

Unit also performs drills and exercises. As a senior nuclear safety specialist, Traphan’s

primary responsibility was to help plan and lead these drills and exercises to demonstrate

the Unit’s readiness to respond to radiological emergencies in Wisconsin as evaluated by

the Federal Emergency Management Administration (“FEMA”) and other agencies.

In particular, the Radiation Protection Unit conducts drills and exercises every other

year at two operational nuclear power plants, which are regulated and licensed by the U.S.

Nuclear Regulatory Commission (“NRC”): (1) the Point Beach Nuclear Power Plant in

Eastern Wisconsin; and (2) the Prairie Island Nuclear Power Plant just across the state line

in Minnesota. During these drills and exercises, “participants” or “players” respond to role-

playing scenarios involving various emergency conditions, while one or more ”controllers”

provide input and ensure that the exercise goes according to plan. Although FEMA does

not oversee the drills themselves, it provides oversight during certain exercises to ensure

that DHS demonstrates “reasonable assurance” of its ability to respond in the event of a

nuclear plant emergency. Ultimately, if DHS does not successfully complete an exercise,

FEMA may inform the NRC that there is no reasonable assurance that Wisconsin and the

plant can respond to a nuclear emergency and protect public health. Failing an exercise

may also have several consequences, the most serious of which can be the NRC shutting

down the nuclear power plant.

B. Traphan’s Employment with DHS

In addition to being responsible for planning radiological emergency preparedness

drills and exercises, Traphan acted as a liaison to Pierce County, the Prairie Island Nuclear

Power Plant, and Wisconsin Emergency Management. Accordingly, after LeClear hired

Traphan in May 2021, he told Adams to train Traphan on how to be a “Lead Controller”

for drills and exercises. Adams himself started working as a nuclear engineer for DHS in

2014, after graduating from the top quarter of his class at the Naval Nuclear Program and

serving as a nuclear engineer in the Navy for nine years. As part of her training, LeClear

specifically instructed Traphan to shadow Adams, who was serving as the Lead Controller

for an exercise at the Point Beach Nuclear Power Plant in 2021, as preparation for Traphan

serving in that same role for a similar exercise planned at the Prairie Island Nuclear Power

Plant in 2022.

Since Adams chose to work in the office, unlike others in the Unit who occasionally

worked remotely, he and Traphan, as a probationary employee who did not have the option

to work remotely, worked together on a daily basis. Initially, Adams was “very optimistic”

about Traphan’s hire. Indeed, he was excited to learn from Traphan and had no concerns

about her qualifications or experience. In fact, Adams thought she may have been

“overqualified.” Adams further observed that Traphan had a “great deal of professionalism

and a willingness to take on responsibility.” Compared to previous new hires, Adams also

felt that Traphan was placed on an accelerated course of learning and responsibility.

Unfortunately, the professional relationship between Adams and Traphan

deteriorated soon after the start of her employment. According to Traphan, Adams

provided her with “completely inaccurate information” on multiple occasions during May

and June 2021, which she initially considered to be “hazing.” (Traphan Decl. (dkt. #38)

¶ 20.) Further, when she relied on the information Adams had provided, other employees

would give her “strange looks” and ask where she had received it, which she found “very

embarrassing.” (Id. at ¶ 21.)

Throughout June of 2021, Traphan also contends that Adams refused to allow her

to shadow him in connection with his work on building and planning the Point Beach

exercise. (Id. at ¶ 23.) Similarly, Traphan claims that Adams excluded her from meetings,

refused to provide her with data, and limited her involvement in the planning of the Point

Beach drill and exercise by assigning her secretarial duties, such as creating and printing

controller packets and updating field team binders. (Id. at ¶¶ 26, 31.) When Traphan

complained about being left out of the Point Beach exercise, LeClair reportedly minimized

her concerns and assured her that he would be “right by her side” while she prepared the

Prairie Island exercise the following year. (Id. at ¶ 33.) Adams also denies preventing

Traphan from shadowing him or participating in the Point Beach exercise, while explaining

that he could not involve her in creating the scenario and data for the field teams exercise

because Traphan was serving as a field participant for the exercise. (Adams Decl. (dkt.

#45) at ¶¶ 13-14.)

Traphan next contends that Adams publicly shamed her during a field team training

event that occurred on July 14, 2021. (Traphan Decl. (dkt. #38) ¶¶ 54-57.) In particular,

she alleges that Adams became “irate” and started “screaming” at her over a minor problem,

finding fault and making “exaggerated gestures” in a derogatory way with at least a dozen

other people present. (Id. at ¶ 54.) Traphan describes the incident as “one of the most

humiliating and upsetting interactions of [her] professional career.” (Id. at ¶ 56.) In fact,

Traphan was so upset and embarrassed by the incident that she chose not to attend a social

event planned for that evening. (Id. at ¶ 57.)

Traphan describes another embarrassing incident that occurred just two weeks later.

During a Wisconsin Emergency Management training event at the State Emergency

Operations Center on July 28, 2021, which was presented by a FEMA investigator,

Traphan gave an answer during the presentation using the term “interdiction.” (Id. at

¶ 62.) According to Traphan, Adams immediately yelled “Not in Wisconsin” in a “mocking

tone” in front of the group, which included 30 to 40 other people. (Id.) The presenter

explained that he liked Traphan’s answer, but that Wisconsin preferred the terms “hold”

or “embargo.” (Id.)

Throughout the first few months of her employment with DHS, Traphan alleges

that Adams generally refused to collaborate with her or provide adequate feedback on her

work. (Id. at ¶ 81.) As a result, by September 2021, Traphan began to believe that Adams

was trying to get her to quit or be fired. (Id.) She specifically points to an incident that

occurred that same month, when Adams assigned Traphan to be a “co-controller,” along

with another employee, Kyle Walton, for an exercise in Manitowoc County at Holy Family

Hospital, during which Adams planned to be absent. (Id. at ¶ 76.) Traphan later learned

that Adams did not attend the exercise because of a historical issue between the Hospital

and him. (Id. at ¶ 77.) Despite this, according to Traphan, Adams failed to provide her

with material information about whether the Hospital had calibrated equipment for the

exercise. (Id.) As a result, FEMA deemed the exercise a failure, which Traphan found

humiliating, even though a DHS debriefing determined that Hospital staff were at fault

and that no one in the Radiation Protection Unit was to blame. (Id. at ¶ 80.)

Traphan continued to complain to LeClear about Adams’ behavior several times in

July, August, and September 2021. (Id. at ¶ 82.) At a meeting with LeClear in October

2021, Traphan again reported that Adams was refusing to train her properly and treated

her unfairly, as if she were a “secretary.” (Id.) Traphan also repeated her previous

complaints about Adams’ adversarial, demeaning behavior. (Id.) During this same

meeting, Traphan asked if she could assist Adams with the annual letter of certification to

FEMA, which LeClear reportedly supported. (Id. at ¶ 83.) Despite Traphan’s efforts to be

involved, however, Adams completed the annual letter of certification by himself. (Id. at

¶ 84.)

In early August 2021, and again during a meeting with LeClear in October 2021,

Traphan expressed an interest in being designated as a state radiological coordinator

(“SRC”) and joining the agency SRC team. During drills and exercises, an SRC serves as

the lead coordinator for DHS, receiving and supplying necessary emergency information

from Wisconsin Emergency Management, operations centers, and counties. There is no

job title or position at DHS solely designated as an SRC. Rather, it is a role that is assigned

to employees in addition to their official job title and work duties after completing training

and testing. Moreover, an employee must first get approval from their supervisor to

participate in training. Supervisor approval for participation in training and testing for the

SRC designation depends on the employee’s capacity to complete the training and testing

in addition to their regular job duties. If an SRC serves as an “on-call SRC” for a given

month, there is a pay differential of $250 to $300 that month.

The Radiation Protection Section Chief had the ultimate say in who became an

SRC, but all SRC team members generally voted and looked for a consensus vote in

nominating and appointing an employee to an SRC role. As of approximately August

2021, the SRC team members included Adams, LeClear, Mark Paulson, and Paul Schmidt,

who announced his upcoming retirement in the early fall of 2021. (Paulson Decl. (dkt

#44) ¶ 5).) Because Schmidt’s imminent retirement would leave DHS with an open SRC

position, the other members of the SRC team sought to designate someone new as quickly

as possible. (Id. at ¶ 7.)

In August 2021, both Traphan and another DHS employee, Luther Loehrke, a white

male who had been employed by DHS in the Radioactive Materials Program Unit since

2015, took part in a formal SRC training activity that entailed running nuclear power plant

emergency scenarios in the role of an SRC. After observing their performance, Paulson,

who was the supervisor of the Radioactive Materials Program Unit at that time, and the

other SRC team members decided by consensus that Loehrke would be the best choice to

designate as an on-call SRC as quickly as possible. In Paulson’s opinion, it would have

been inappropriate to place Traphan, or anyone else who had only been with DHS for four

months, in an on-call SRC position that required making high pressure and time-sensitive

decisions. (Paulson Decl. (dkt. #44) ¶ 12.)

Loehrke was then given an SRC qualification journal in August or September 2021,

and an updated version of that journal in January 2022. (Id. at ¶¶ 13, 15.) The SRC

qualification journal lists courses and on-the-job training that must be completed or waived

on a case-by-case basis by the lead SRC. (LeClear Dep. Ex. 6 (dkt. #28-6) at 3-5.) The

journal also includes space for a candidate to document drills, exercises, and incident

investigations completed. (Id. at 6-7.)

At some point during the fall of 2021, Adams tasked Traphan with drafting

recommendations and proposed revisions to the Emergency Response Plan to bring it up

to date with the 2019 revised FEMA Radiation Preparedness Manual (“RPM”), which had

reorganized exercise criteria and included more detailed demonstration requirements.

(Traphan Decl. (dkt. #38) ¶ 86.) Although Traphan proceeded to offer over 20

recommendations, Adams dismissed every one of them without explanation or feedback.

(Id. at ¶ 87.)

During a subsequent one-on-one meeting with LeClear in late 2021, Traphan once

again expressed dissatisfaction with the training she received from Adams and stated that

she thought Adams was setting her up to fail. LeClear had received complaints from many

other DHS employees about Adams, including Robert Busch, Kyle Walton, Mark Paulson,

and Megan Shober. Busch reported getting into heated arguments with Adams, which

despite Busch trying to disengage, Adams would continue. Walton also told LeClear that

the reason he did not speak up at meetings was because he was afraid Adams would “rip[]

into him” about what he had to say. Finally, Shober told LeClear that she did not want to

participate in any exercises with Adams because of his behavior, which was especially poor

during stressful situations.

LeClear had also personally observed Adams frequently being defensive and

speaking over people, even Paulson, who would become Unit chief. LeClear also noticed

that Adams construed disagreements, or even simple questioning for understanding, as

being argumentative. Indeed, it was apparent to everyone in the Radiation Protection Unit

that Adams’ communication style was “overly combative.” Adams himself acknowledges

that his communications can come out “very flat and harsh,” although he believes he has

improved due, in part, to training programs recommended by his previous supervisor.

In early 2022, while Adams and Traphan discussed a roster that Traphan was

preparing for her upcoming Prairie Island drill, Adams became frustrated. In particular,

Traphan avers that while she was presenting the drill roster, Adams stood up, leaned across

the conference room table, and started screaming at her about how she could not have

certain individuals at her drill, after which he “stormed” back to his cubicle, which was

near Traphan’s, and “aggressively” began clicking his pen. (Traphan Decl. (dkt. #38)

¶¶ 94, 96.) Traphan found the interaction so disturbing that she took a few hours of

personal leave before emailing LeClear, reiterating her concerns about Adams’ treatment,

and advising that Adams’ ongoing conduct was forcing Traphan to reconsider her future

with DHS. (Id. at ¶ 97.)

In February 2022, Traphan alleges that Adams again screamed at her about the

Prairie Island drill roster as she sat at her cubicle. (Id. at ¶ 98.) While Adams claimed that

another employee had come to him with questions about the roster, Traphan later learned

that Adams was the one who had solicited questions about the roster from staff. (Id.) In

response to this outburst, LeClear told Adams not to discuss the roster with other

employees unless they went to Traphan or LeClear first. (Id. at ¶ 100.)

On March 15, 2022, Traphan conducted her first drill as lead controller, with

Adams as the assigned SRC. Traphan alleges that Adams arrived 45 minutes late,

disrupting the drill and causing a delayed response to the nuclear power plant’s notice of

emergency, which she found embarrassing. (Id. at ¶ 105.) Adams disputes this, claiming

that he arrived only 10 minutes late. That same day, LeClear sent Traphan an email

inviting her to become part of the SRC team and provided her with the SRC qualification

journal to review, although LeClear also told Traphan that her completion of the items in

the journal did not guarantee being put on the SRC team.

Several days later, on March 18, 2022, LeClear had a one-on-one meeting with

Traphan to discuss her performance and progress in her position at DHS. During that

meeting, Traphan once more raised concerns about her working relationship with Adams,

questioning for the first time whether Adams was discriminating against her because of her

race or gender. In response, LeClear shared with Traphan some of his own difficulties with

Adams. Although LeClear had disagreements with Adams throughout his time at DHS,

LeClear considered Adams the most experienced and knowledgeable employee in the unit

when it came to DHS’s drills and exercises.

Shortly after Traphan complained to LeClear about Adams on March 18, 2022,

Adams had his annual performance review. On March 31, 2022, LeClear prepared a

Performance Expectations and Planning (“PEP”) document that identified the following

expectations:

During this PEP period I would like Charles [Adams] to put

considerable effort into improving his oral communication skills, including:

• Taking time to actively listen to others first before speaking up.

• Speaking in a tone that is taken as helpful and not condescending.

• Not indicating blame and accusations during conversations

including when they are in groups of people.

(LeClear Dep. Ex. 7 (dkt. #28-7) at 3.) Adams was also expected to:

• Seek and participate in training on health equity, racial injustice,

and other current social issues.

• Expand personal knowledge of health equity, racial disparities,

social determinants of health, implicit bias, and other socially

important concepts by enrolling in available training

session/courses.

• Explore opportunities to obtain health equity, racial inequality, or

other trainings or seminars on socially relevant issues to build

personal and professional knowledge.

(Id. at 7.) Although LeClear commented in the PEP document that Adams met his

expectations for communicating and cooperating with others, he added that Adams needed

to “work on improving his relationships with his peers and outside organizations.” (Id. at

12.)

C. Traphan’s Resignation

After Traphan complained to LeClear about discriminatory treatment on March 18,

2022, she learned that Adams had expressed concerns of his own about her lack of

experience and poor performance at the Holy Family exercise to Todd Trygier, who was

the FEMA Site Specialist for Wisconsin. (Traphan Decl. (dkt. #38) ¶ 117.) While they

were attending the National Radiological Emergency Preparedness Conference in Nashville

in early April 2022, Trygier allegedly told Traphan that he would be insisting that his

supervisor and he have a “Staff Assistance Visit” with her about the Prairie Island Nuclear

Power Plant exercise. (Id. at ¶ 118.) Traphan understood this to mean that her Emergency

Response Plan would be under heightened scrutiny, causing her concern because Adams

had refused to accept changes Traphan had suggested based on new requirements in the

2019 FEMA Radiological Preparedness Manual. (Id. at ¶ 119.)

Traphan asserts further that on April 22, 2022, while she was preparing for the May

2022 Prairie Island exercise and field team training event, Loehrke approached Adams with

a question about the training assignments. (Id. at ¶ 122.) However, instead of telling

Loehrke to ask Traphan about the assignments, Adams allegedly went on a five-minute

rant and began screaming in front of Traphan and other co-workers about how he was not

“allowed” to talk about the drill roster, referencing LeClear’s previous instructions. (Id. at

¶ 123.) Later that afternoon, Adams again screamed at Traphan because he could not find

the key to a “portal monitor,” which is not something for which she was responsible. (Id.

at ¶ 126.) Believing that Adams’ public criticisms and demeaning treatment had already

damaged her reputation, Traphan sent LeClear an email raising the possibility of her

resignation. (Id. at ¶ 125.)

The following Monday, April 25, 2022, LeClear met with Traphan and asked her

to stay. When Unit Chief Paulson learned that Traphan raised the possibility of her

resigning, he also met with Traphan on his own on April 25 to see if she would be interested

in working in another unit, such as the X-Ray Unit, to which she had indicated an interest.

(Paulson Decl. (dkt #44) ¶¶ 28-29.) Later that day, however, Traphan formally resigned

by email, effective May 9, 2022. She did not mention allegations of discrimination in her

email, but stated that she was disappointed over her inability to grow within DHS, as she

had intended to become an “integral” part of the program.

Adams’ offensive behavior continued after Traphan’s resignation. On May 2, 2022,

Adams screamed at Traphan again over a live stream video conference with more than

three dozen people listening. (Traphan Decl. (dkt. #38) ¶ 131.) Later that day, Adams

stuck Traphan with a $300 bar tab after a retirement sendoff for another colleague that

she had agreed to coordinate with him. (Id.)

On May 9, 2022, LeClear completed Traphan’s last performance evaluation, noting

that “Nicole was able to bring a fresh set of eyes to our unit and was able to help us identify

needed changes that we would not have seen without her. Her expertise in the radiation

field and ability to be thorough will be missed by our unit.”

OPINION

Plaintiff asserts claims against both DHS and Adams in his individual capacity

under 42 U.S.C. § 1983, as well as against DHS under Title VII of the Civil Rights Act.2

More specifically, plaintiff claims that both defendants discriminated against her in

violation of the Fourteenth Amendment Equal Protection Clause because of her race and

gender by: (1) “failing to promote” her to an SRC position; and (2) subjecting her to a

2 Plaintiff represented herself when she filed this lawsuit and the operative complaint. (Dkt.

#13.) Although she is now represented by counsel, and the court’s focus at summary judgment

is on the evidence of record, the court continues to construe her complaint under less stringent

standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21

(1972).

hostile work environment, which ultimately caused plaintiff’s constructive discharge when

she resigned. (Dkt. #13 at ¶¶ 33, 43.) Plaintiff also claims that defendants retaliated

against her after she complained to LeClear about discrimination on March 18, 2022. (Id.)

Plaintiff bases her Title VII claims against DHS on the same allegations of discrimination

and retaliation. (Id. at ¶¶ 53, 63). Defendants have moved for summary judgment on all

of plaintiff’s claims. (Dkt. #25.)

Summary judgment is proper “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). A dispute about a material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). To survive summary judgment, however, the nonmovant

“must go beyond the pleadings (e.g., produce affidavits, depositions, answers to

interrogatories, or admissions on file) to demonstrate that there is evidence upon which a

jury could properly proceed to [reach] a verdict in [her] favor.” Burton v. Kohn Law Firm,

S.C., 934 F.3d 572, 579 (7th Cir. 2019) (citation and internal quotation marks omitted).

Further, while the court views the record “in the light most favorable to the

nonmovant and constru[es] all reasonable inferences from the evidence in [her] favor,”

Moore v. Western Ill. Corr. Ctr., 89 F.4th 582, 590 (7th Cir. 2023), a nonmovant is only

entitled to favorable inferences that are supported by admissible evidence, not those based

upon mere speculation or conjecture, Grant v. Trustees of Ind. Univ., 870 F.3d 562, 568 (7th

Cir. 2017), or upon “[c]onclusory statements, not grounded in specific facts,” Bordelon v.

Bd. of Educ. of the City of Chicago, 811 F.3d 984, 989 (7th Cir. 2016).

I. Discrimination Claims Under Section 1983 and Title VII

Title VII makes it unlawful for an employer to “discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). Similarly, the Fourteenth Amendment Equal Protection Clause protects against

intentional discrimination based on a protected classification, and 42 U.S.C. § 1983

provides an avenue for relief for such claims. de Lima Silva v. Dep’t of Corr., 917 F.3d 546,

559 (7th Cir. 2019). Thus, courts evaluate discrimination claims under § 1983 and Title

VII using essentially the same standard.3 Id.

A. Failure to Promote

Plaintiff alleges that defendants discriminated against her by “failing to promote

[her] to an SRC position” because of her African American race and gender. (Dkt. #13,

at ¶¶ 33, 43.) As proof of this claim, plaintiff points to the fact that Luther Loehrke, a

white male DHS employee, was given the SRC qualification journal shortly after the SRC

training activity in August 2021, and became an SRC team member following Schmidt’s

3 As defendants correctly note, one difference in the legal standard is that Title VII claims may

only be brought against an “employer,” whereas § 1983 only authorizes individual capacity

suits against “persons” who qualify as state actors. See Will v. Michigan Dep’t of State Police, 491

U.S. 58, 71 (1989) (holding that neither a state nor its officials acting in their official capacities

are “persons” under § 1983). To the extent that plaintiff purports to sue DHS under § 1983,

therefore, those claims must be dismissed.

retirement in January 2022, while she was only given the qualification journal or invited

to become an SRC team member in March 2022, despite the fact that both she and

Loehrke participated in the same August 2021 SRC training activity. (Dkt. #33, at 13-

14.) On this thin reed, plaintiff claims defendants delayed giving her the SRC qualification

journal because of her race and gender.

The applicable standard at summary judgment is whether the evidence would

permit a reasonable jury to conclude that race or gender discrimination caused an adverse

employment action -- here, the failure to promote. Barnes v. Bd. of Trustees of Univ. of Ill.,

946 F.3d 384, 389 (7th Cir. 2020) (citing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765

(7th Cir. 2016)). Where disparate treatment is alleged, a plaintiff must prove that she was

a victim of intentional discrimination. Hong v. Children’s Mem. Hosp., 993 F.2d 1257, 1261

(7th Cir. 1993). While a plaintiff is free to offer direct or circumstantial evidence of

discrimination, “all evidence belongs in a single pile and must be evaluated as a whole.”

Ortiz, 834 F.3d at 766. Here, plaintiff appears to rely on the burden-shifting framework

set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), which is one

way to prove a failure-to-promote claim. Kinney v. St. Mary’s Health, Inc., 76 F.4th 635,

646 (7th Cir. 2023); see also Cunningham v. Austin, 125 F.4th 783, 788 (7th Cir. 2025)

(applying the McDonnell Douglas burden-shifting framework in a failure-to-promote case).

Under McDonnell Douglas, a plaintiff must first produce evidence of a prima facie

case for failure to promote. 411 U.S. at 802. A prima facie case of discrimination in the

failure-to-promote context requires the plaintiff to present evidence showing that: (1) she

was a member of a protected class; (2) she applied for and was qualified for the open

position; (3) she was rejected; and (4) the employer promoted someone outside of the

protected class who was not better qualified for the position. Marnocha v. St. Vincent Hosp.

& Health Care Center, Inc., 986 F.3d 711, 721 (7th Cir. 2021). If a plaintiff establishes a

prima facie case of discrimination, the burden shifts to an employer to proffer a

nondiscriminatory reason for its employment decision. McDaniel v. Progress Rail Locomotive,

Inc., 940 F.3d 360, 368 (7th Cir. 2019). If the employer produces evidence of a

nondiscriminatory reason for the failure to promote, the burden then shifts back to the

employee to produce evidence that the proffered reason for the employment decision is

pretext for discrimination. Marnocha, 986 F.3d at 721. To establish pretext, the plaintiff

must identify “weaknesses, implausibilities, inconsistencies, or contradictions” in the

defendant’s proffered reasons that a reasonable person would find unworthy of credence.

de Lima Silva, 917 F.3d at 561.

Being an African American female, plaintiff meets the first element of a prima facie

case as she belongs to two protected classifications. There is also no dispute that: plaintiff

expressed an interest in being designated an SRC after Schmidt announced his retirement

in August 2021; plaintiff participated in an SRC training activity with Luther Loehrke in

August 2021; and Loehrke, a white male, both received the SRC qualification journal

shortly after that training activity and was ultimately given the SRC designation, instead

of plaintiff, after he received a consensus vote from the existing SRC team members

(comprised of Adams, LeClear, and Paulson).

However, defendants argue that plaintiff cannot satisfy the second element required

to make a prima facie case of discrimination because she was invited to become an SRC

team member in March 2022, but resigned shortly thereafter and did not complete the

relevant qualification requirements during her employment with DHS. (Dkt. #29, at 13.)

Plaintiff does not dispute that she was offered the opportunity to become an SRC team

member in March of 2022, nor that she resigned before completing the required

qualifications to be made a member. Instead, she claims that Loehrke was allowed to

qualify and was promoted to SRC ahead of her, having assumed SRC duties by January

2022 to fill the vacancy left open by Schmidt’s retirement.

To the extent that plaintiff claims she was wrongly denied a promotion or that

Loehrke was promoted ahead of her for discriminatory reasons, defendants first argue that

plaintiff cannot prevail because she has not established that qualifying as an SRC

constitutes a promotion or that failing to designate her as an SRC was an adverse

employment action. (Dkt. #29, at 14-16; Dkt. #41, at 3.) To establish that an adverse

employment action occurred, a plaintiff must show “‘some injury respecting her

employment terms or conditions’ that ‘left her worse off, but need not have left her

significantly so.’” Johnson v. Nestlé USA, No. 19-cv-07119, 2024 WL 4333188, at *5 (N.D.

Ill. Sept. 27, 2024) (quoting Muldrow v. City of St. Louis, 144 S. Ct. 967, 974 (2024)).

Plaintiff does not assert that an SRC designation is a formal title or position at DHS, nor

that it affects the employee’s base pay or bonus potential, except for receipt of

approximately $250 to $300 for any month the SRC is on call. (Dkt. #29, at 15.) While

the Seventh Circuit has held that not providing an employee with a particular job title or

designation, by itself, is not a sufficiently adverse action for a discrimination claim, Grayson

v. City of Chicago, 317 F.3d 745, 750 (7th Cir. 2003), plaintiff argues that earning an SRC

designation not only has a remunerative benefit that could be viewed as a “bonus,” but

offers career advantages within her field.

Assuming that serving as an SRC is a promotion, defendants alternatively deny

discriminating against plaintiff, contending that a legitimate, non-discriminatory reason

existed for Loehrke to receive the SRC designation several months before a similar offer

was made to plaintiff in March 2022. (Dkt. #29, at 17-18.) To begin, defendants present

uncontested evidence that the SRC team members considered plaintiff, Loehrke, and

others for the SRC designation in August 2021, shortly after an SRC team member vacancy

became available due to Schmidt’s impending retirement, but that Loehrke was viewed as

a better candidate. (Paulson Decl. (dkt. #44) ¶¶ 5, 7; Adams Decl. (dkt. #45) ¶¶ 3, 5-

6.) There is also no dispute that Paulson and the other SRC team members wanted to fill

the vacancy as soon as possible to avoid overburdening the existing SRCs with additional

work. (Paulson Decl. (dkt. #44) ¶ 7; Adams Decl. (dkt. #45) ¶ 4.) At the time the vacancy

was announced in August 2021, Loehrke had been employed by DHS since 2015, whereas

plaintiff had only been with DHS for four months and was still on a probationary basis.

(Paulson Decl. (dkt. #44) ¶ 12; Adams Decl. (dkt. #45) ¶ 6.) Relatedly, because of her

short tenure with DHS, the SRC team members had only had one opportunity to formally

evaluate her ability to perform SRC-related responsibilities. (Paulson (dkt. #44) ¶¶ 11-

12.) Because the SRC team believed that Loehrke was the best choice to designate as an

on-call SRC as quickly as possible, he was given the SRC qualification journal so that he

could be designated to fill the vacancy created by Schmidt’s imminent retirement.

(Paulson Decl. (dkt. #44) ¶¶ 10, 13; Adams Decl. (dkt. #45) ¶¶ 6-8.)

An employer’s genuine belief that another candidate’s skillset makes them better

suited for the job is a legitimate, nondiscriminatory hiring rationale. See Cunningham, 125

F.4th at 789 (citing Barnes v. Bd. of Tr. of Univ. of Ill., 946 F.3d 384, 389 (7th Cir. 2020)

(hiring manager’s belief that another candidate was better suited for the job because of his

“thoughtful approach to taking over the position” constituted a legitimate,

nondiscriminatory hiring rationale); Scruggs v. Garst Seed Co., 587 F.3d 832, 838 (7th Cir.

2009) (employer’s genuine belief that another candidate was better qualified was a

legitimate nondiscriminatory hiring rationale)); see also Marnocha, 986 F.3d at 721 (that

the individual ultimately promoted was a better candidate is a legitimate,

nondiscriminatory reason for refusing to promote a plaintiff). Under the McDonnell

Douglas framework, therefore, the burden shifts back to plaintiff to show defendants’ stated

reason for promoting Loehrke ahead of her was pretextual. Barnes, 946 F.3d at 389-90.

Importantly here, the pretext inquiry asks not whether an employment decision was

inaccurate or unfair, but whether the employer honestly believed the proffered reason for

its decision. Collins v. American Red Cross, 715 F.3d 994, 1000 (7th Cir. 2013) (citing

Coleman v. Donahoe, 667 F.3d 835, 852 (7th Cir. 2012)). In other words, “[t]o show that

a decision is pretextual, a plaintiff must show that the employer itself did not believe the

explanation -- that it is a lie[.]” Consolino v. Dart, 120 F.4th 1324, 1327 (7th Cir. 2024);

see also Collins, 715 F.3d at 1000 (“Pretext means a lie, specifically a phony reason for some

action.”). Unfortunately for plaintiff, she has presented no evidence from which a

reasonable trier of fact could find or infer that Loehrke was less qualified than she was

when he was chosen for the SRC team, nor that defendants’ stated reason for giving him

the SRC designation ahead of her was fabricated. To the contrary, the evidence all points

to the opposite. Even if a jury could reasonably infer that Adams was acting out of some

unspoken prejudice (as opposed to his general cantankerousness towards his co-workers

generally and plaintiff in particular, which seems the far more likely explanation), two

others voted for Loehrke with no such history of unfair treatment toward plaintiff,

including Paulson and LeClear, who shared plaintiff’s view that Adams was difficult to

work with and promoted her for consideration for SRC designation within a few months.

Because plaintiff has not shown that a reasonable jury could conclude that she was denied

the SRC designation left open by Schmidt’s retirement due to her race or gender or both,

defendants are entitled to summary judgment on this claim.

B. Hostile Work Environment

As for plaintiff’s claim that she was forced to resign due to a hostile work

environment created by Adams’ discriminatory treatment (dkt. #13, at ¶¶ 33, 43), a hostile

work environment is actionable under Title VII “[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.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). To prove a hostile work environment

claim based on either race or gender, an employee must show: (1) the work environment

was both subjectively and objectively offensive; (2) the harassment was based on

membership in a protected class; (3) the conduct was severe or pervasive; and (4) there is

a basis for employer liability. Scaife v. United States Dep’t of Veterans Affairs, 49 F.4th 1109,

1115-16 (7th Cir. 2022).

Again, particularly important here since Adams appears to have displayed animosity

and engaged in juvenile behavior indiscriminately to his fellow co-workers, not all incidents

of workplace harassment constitute actionable discrimination. See Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“Title VII is not a general civility code for the

American workplace”); Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1105 (7th Cir.

2012) (“Title VII protects against discrimination, not ‘personal animosity or juvenile

behavior.’”) (citation omitted). Thus, simply yelling and swearing at an employee does not

suffice to demonstrate a hostile work environment if a plaintiff cannot connect the remarks

to race or gender. See Smith v. Ill. Dep’t of Transp., 936 F.3d 554, 560 (7th Cir. 2019)

(calling employee “a stupid dumb motherf[]” and threatening to “kick [his] ass” did not

establish hostile work environment claim) (alteration in original).

In determining whether a workplace is objectively hostile, courts consider the

totality of the circumstances, including: “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee’s work performance.” Harris,

510 U.S. at 23; Lambert v. Peri Formworks Sys. Inc., 723 F.3d 863, 868 (7th Cir. 2013).

Although a workplace need not be “hellish” to constitute a hostile work environment,

Jackson v. Cnty. of Racine, 474 F.3d 493, 500 (7th Cir. 2007), a hostile work environment

must be “so pervaded by discrimination that the terms and conditions of employment were

altered.” Vance v. Ball State Univ., 570 U.S. 421, 427 (2013).

A plaintiff who makes a hostile work environment claim under Title VII may also

establish a viable claim under § 1983 as a parallel remedy. Huri v. Office of the Chief Judge

of the Circuit Court of Cook Cnty., 804 F.3d 826, 834-35 (7th Cir. 2015). However, relief is

available under § 1983 for a plaintiff claiming a hostile work environment only when she

can demonstrate that the defendant acted with discriminatory intent. Huff v. Sheahan, 493

F.3d 893, 902 (7th Cir. 2007); see also Bohen v. City of East Chicago, Ind., 799 F.2d 1180,

1187 (7th Cir. 1986) (“[T]he ultimate inquiry [in a § 1983 hostile work environment equal

protection claim] is whether the sexual harassment constitutes intentional discrimination.

This focus differs from the inquiry under Title VII as to whether the sexual harassment

altered the conditions of the victim's employment.”).

Regardless, as outlined above, plaintiff presents a litany of unpleasant incidents

involving aggressive, demeaning, and intimidating conduct by Adams. From the outset of

her employment, Adams reportedly provided her with misinformation and, more

egregiously, screamed or yelled at her in front of others on multiple occasions. In one such

instance, plaintiff found Adams’ irate screaming so humiliating that she did not attend a

social event planned for that evening. (Traphan Decl. (dkt. #38) ¶¶ 54-57.) On other

occasions, Adams refused to collaborate with plaintiff or provide meaningful feedback.

Adams further limited plaintiff’s role during the exercise at the Point Beach Power Plant

and allegedly refused to train her properly. Adams also deliberately withheld information

from plaintiff, causing a failed exercise at Holy Family Hospital. (Id. at ¶¶ 77, 79.) Adams

later expressed concerns about plaintiff’s abilities in connection with this incident to a

FEMA official while attending a national conference, which plaintiff felt was damaging to

her reputation. (Id. at ¶ 100.)

Still, considering the totality of the allegations set forth in plaintiff’s declaration

and, assuming that all of her allegations about Adams’ conduct are true, plaintiff has not

presented evidence that would sustain a hostile work environment claim. To begin, Adams

was not plaintiff’s supervisor; rather, he was a co-worker. The Seventh Circuit has

repeatedly treated a supervisor’s use of toxic language and behavior in the workplace as

much more serious than a co-worker’s. See Robinson v. Perales, 894 F.3d 818, 828-29 (7th

Cir. 2018) (“Perhaps no single act can more quickly ‘alter the conditions of employment

and create an abusive working environment,’ . . . than the use of an unambiguously racial

epithet such as ‘n- - - -r’ by a supervisor in the presence of his subordinates.”) (citing Rodgers

v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)); Dandy v. United Parcel

Serv., Inc., 388 F.3d 263, 271 (7th Cir. 2004) (supervisor's use of the term “n- - - -r” impacts

the work environment far more severely than use by co-equals).

More importantly, plaintiff has again submitted no evidence beyond her own

perception that Adams targeted her or treated her unfairly because of her race or gender,

which is insufficient to survive summary judgment. See Rand v. CF Indus., Inc., 42 F.3d

1139, 1146 (7th Cir. 1994) (affidavits based on speculation are insufficient to defeat

summary judgment in an employment discrimination case); Beamon v. Marshall & Ilsley

Trust Co., 411 F.3d 854, 863 (7th Cir. 2005) (“not every perceived unfairness in the

workplace may be ascribed to discriminatory motivation merely because the complaining

employee belongs to a [protected group]”); Hardin v. S.C. Johnson & Son, Inc., 167 F.3d

340, 345-46 (7th Cir. 1999) (an employment discrimination plaintiff must provide

evidence that he or she was subjected to conduct that had a racial or sexual “character or

purpose”). While such a connection does not have to be explicit, there must be some

connection, for “not every perceived unfairness in the workplace may be ascribed to

discriminatory motivation merely because the complaining employee belongs to a

[protected classification].” Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1159 (7th Cir.

2014). Although plaintiff may have been subject to unwelcome bullying and disrespectful

treatment, she has been unable to provide sufficient evidence for a rational jury to conclude

that she suffered actionable harassment or intentional discrimination based on her race or

her gender or both. While the court can certainly understand plaintiff’s belief that Adams’

treatment of her was based, at least in part on bias, the absence of any evidence to that

effect, combined with the fact that plaintiff’s supervisor did not share Adams’ views about

her abilities or future with DHS, is fatal to her hostile work environment claim under Title

VII and § 1983.

C. Constructive Discharge

Similarly, plaintiff’s claim that she was constructively discharged in light of Adams’

verbal abuse and mistreatment, causing her to resign for fear that his actions, which

included derogatory comments to a FEMA official, would harm her reputation, falls short

on the actual evidence of record. (Traphan Decl. (dkt. #34), ¶¶ 124-28; Dkt. #13, at ¶¶

33, 43.) To demonstrate constructive discharge, a plaintiff must show that she was forced

to resign because her working conditions, from the standpoint of the reasonable employee,

had become unbearable. EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th Cir.

2002). Once again, the court agrees that plaintiff has demonstrated co-working with

Adams was a disagreeable part of her employment. However, when an employee resigns

due to allegedly discriminatory harassment, “such cases require a plaintiff to show working

conditions even more egregious than that required for a hostile work environment claim

because employees are generally expected to remain employed while seeking redress,

thereby allowing an employer to address a situation before it causes the employee to quit.”

Wright v. Ill. Dep’t of Children & Fam. Servs., 798 F.3d 513, 527 (7th Cir. 2015) (quoting

Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010)). Indeed, when a

plaintiff’s hostile work environment claim fails, their constructive discharge claim is also

“doomed,” as the latter is more difficult to establish than the former. Ellis v. CCA of Tenn.

LLC, 650 F.3d 640, 650 (7th Cir. 2011) (citing Thompson v. Mem’l Hosp. of Carbondale, 625

F.3d 394, 401-02 (7th Cir. 2010)).

“Conditions amounting to constructive discharge must be pervasive and extreme.”

Beverly v. Abbot Labs., 107 F.4th 737, 745 (7th Cir. 2024); see also, e.g., Porter v. Erie Foods

Int’l, Inc., 576 F.3d 629, 631-33, 641 (7th Cir. 2009) (employees taunted the plaintiff with

nooses and threatened him with comments about his death because of his race, which

conduct “clearly qualifies as egregious for purposes of constructive discharge”). Plaintiff

has not presented sufficient evidence to support a hostile work environment claim for

reasons discussed previously. In particular, she has not presented evidence showing that

there was any connection between the alleged harassment by co-worker Adams and her

race or gender. Thus, plaintiff has failed to present evidence from which a reasonable jury

could form a constructive discharge as well. See Scaife, 49 F.4th at 1119.

II. Retaliation

Finally, plaintiff claims that she was subjected to retaliation for her protected

complaints about Adams’ discriminatory conduct. (Dkt. #13, at ¶¶ 33, 43, 53, 63.) As

an initial matter, DHS correctly notes that plaintiff cannot bring a retaliation claim against

Adams under § 1983. (Dkt. #29, at 29.) As plaintiff acknowledges (dkt. #33, at 13), the

Seventh Circuit has held that “the 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) (citations omitted). That leaves plaintiff’s Title

VII retaliation claim against defendant DHS.

“Employers are prohibited from punishing employees for complaining about

discrimination or other practices that violate Title VII.” Sitar v. Indiana Dep’t of Transp.,

344 F.3d 720, 727 (7th Cir. 2003); 42 U.S.C. § 2000e-3(a). To prove retaliation under

Title VII, a plaintiff must show: (1) she engaged in statutorily protected activity; (2) she

suffered an adverse action by her employer; and (3) there is a causal link between her

protected activity and the adverse action. Scaife, 49 F.4th at 1118. For a retaliation claim,

an adverse employment action is that which would “dissuade[] a reasonable worker from

making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006). In particular, the plaintiff must prove “that the unlawful

retaliation would not have occurred in the absence of the alleged wrongful action or actions

of the employer.” Univ. of Tex. S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).

The parties do not dispute that plaintiff engaged in a protected activity when she

complained to LeClear in March 2022 about her belief that Adams’ conduct towards her

constituted discrimination based on her race or gender. Instead, DHS contends that

plaintiff’s claim fails because she has not established a requisite adverse action. This court

agrees. If anything, DHS took steps to improve plaintiff’s work environment by addressing

the concerns she raised about Adams in his performance evaluation, which took place

shortly after plaintiff asserted to LeClear that Adams’ conduct appeared discriminatory.

By contrast, it is also undisputed that plaintiff received a “glowing final performance

review,” stating that she “was able to bring a fresh set of eyes to our unit and was able to

help us identify needed changes that we would not have seen without her.”

Regardless, plaintiff does not identify a specific adverse action taken by DHS

following her complaint of discrimination in March of 2022. Instead, she appears to allege

constructive discharge as an adverse action for her retaliation claim. (Dkt. #13, at ¶¶ 33,

43, 53, 63.) As the court has already discussed, however, she has not submitted sufficient

proof that she was constructively discharged, so this cannot provide the basis for her

retaliation claim. See Giese v. City of Kankakee, 71 F.4th 582, 590 (7th Cir. 2023) (“The

plaintiff must show that the employer took the adverse employment action because of the

protected activity.”)(emphasis added). Because plaintiff does not identify any other

potentially adverse action taken by DHS directly as the result of her protected activity, no

reasonable jury could conclude that DHS retaliated against her in violation of Title VII.

Thus, in the absence of a valid claim, defendants’ motion for summary judgment

will be granted.

ORDER

IT IS ORDERED that:

1. The motion for summary judgment filed by defendants Wisconsin Department

of Health Services and Charles Adams (dkt. #25) is GRANTED.

2. The clerk of court is directed to enter judgment for the defendants and close this

case.

Entered this 1st day of July, 2025.

BY THE COURT:

/s/

________________________________________

WILLIAM M. CONLEY

District Judge