Vargas v. Northern Illinois Foot & Ankle Specialists, Ltd.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IVETTE VARGAS, )

)

Plaintiff, )

) Case No. 24 CV 2157

v. )

) Judge Joan H. Lefkow

NORTHERN ILLINOIS FOOT & ANKLE )

SPECIALISTS, LTD., )

)

Defendant. )

OPINION AND ORDER

Ivette Vargas brings this action against Northern Illinois Foot & Ankle Specialists, Ltd.

(“NIFAS”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.1 Vargas

alleges that NIFAS, her employer, subjected her to harassment based on her sexual orientation

(Count I) and discrimination (Count II). She also claims that NIFAS retaliated against her for

complaining about the treatment she received. (Count III). NIFAS moves for summary judgment

on all counts. For the reasons stated below, the motion is granted.

BACKGROUND2

NIFAS operates full-service medical clinics throughout northern Illinois that offer

inpatient, outpatient, and surgical care management for foot and ankle treatment. On January 16,

1 The court has jurisdiction under 42 U.S.C. § 2000e-5(f)(3). Venue is proper under 28 U.S.C. § 1391(b).

2 The court relies on the factual assertions and objections contained in the parties’ Local Rule 56.1

submissions. N.D. Ill. L.R. 56.1. Properly supported material facts “are admitted unless the non-movant specifically

controverts them in its factual statement, shows them to be unsupported, or demonstrates that reasonable inferences

can be drawn in its favor.” Hinterberger v. City of Indianapolis, 966 F.3d 523, 527 (7th Cir. 2020) (quotation

omitted). Generally, a party’s Local Rule 56.1 statement “must represent admissible evidence.” Judson Atkinson

Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008). But see Horton v. City of Chicago,

No. 13-CV-6865, 2018 WL 6505398, at *6 (N.D. Ill. Dec. 11, 2018) (concluding that an admitted Local Rule 56.1

fact constitutes a judicial admission and “withdraw[s] from contention the fact”).

2023, NIFAS hired Vargas as a medical biller for its Crystal Lake office. Vargas is a female and

identifies as lesbian. NIFAS terminated her on December 15, 2023.

Vargas shared a cubicle area where billing department employees could hear one another.

On multiple occasions, Vargas’s supervisor, Billing Manager Ellie Asali, brought Vargas into

her office to tell her to lower her volume and disruption level in the office. (On June 13, 2023,

Asali received a complaint from Chief Financial Officer Andy Geryol that he could not

concentrate on his work because of the volume in the office. Asali provided Vargas with a verbal

warning; she told Vargas to keep her volume down and to “be positive.” (Dkt. 42 ¶ 24.) Asali

had previously spoken with Vargas about her volume on at least three separate occasions. Asali

documented the verbal warning in a note to Human Resources Director Janet Rosenbach, which

was placed in Vargas’s employment file.

Asali conducted another meeting with the billing department on August 7, 2023. During

the meeting, Asali became aware that Geryol had again closed his door and appeared upset. Asali

told the billing department, including Vargas, to be quieter and professional. Asali provided

Vargas with another verbal warning.

On December 8, 2023, NIFAS held a celebration for an employee’s last day of work.

Asali called Vargas into her office and provided another verbal warning for her volume and for

interrupting coworkers. Asali documented the verbal warning and spoke with Rosenbach about

Vargas’s behavior that day. Rosenbach later noted that Vargas packed her personal belongings

from her cubicle and brought them to her car. Rosenbach observed that Vargas “was extremely

loud and walked around throughout most of the morning,” as opposed to working, and that

Vargas “continued this behavior even after she was told by her Manager to get back to work.”

(Id. ¶ 38.) Chief Operating Officer Tammy Timm also overheard Vargas make negative

comments about Asali that day.

The same day, NIFAS held an exit interview for a different employee. The exit interview

forms revealed negative sentiments within the billing department. Based on the feedback, Timm

gathered the billing department for a “team huddle” on December 11. During the huddle, Timm

asked whether anyone in the billing department had been mistreated. Vargas responded that she

was being disrespected because Asali “all of a sudden stopped talking to me.” (Id. ¶ 42.)

Moreover, Vargas explained, Asali “called [her] a man,” treated her differently, and constantly

told her to “shut up.” (Dkt. 31-2 at 19.) Vargas also stated that Asali “slapped me in the face.”

(Dkt. 42 ¶ 42.)

Timm then brought Asali and Vargas into a separate office. Timm asked Vargas if she

reported the slap to anyone and Vargas replied, “No.” (Id. ¶ 44.) Vargas later testified that she

felt uncomfortable reporting her issues to HR.

The alleged incident occurred on September 6, 2023. Both Barbara Papen and Benedetta

Calabrese, other billing team members, were present. In a later statement, provided on

December 19, 2023, Papen explained that “during a morning meeting, [Asali] was talking and

[Vargas] chimed in with a story of her own. [Asali] touched [Vargas’s] cheek, which stopped

[Vargas] from speaking and [Asali] continued with what she was saying. I didn’t think much of

it at the time, they joked around a lot.” (Id. ¶ 48.) On December 12, 2023, Timm observed that

she “knew this [incident was] probably unlikely and this negativity was coming from [Vargas].”

(Dkt. 31-2 at 149.) Following its investigation, NIFAS determined that Asali did not slap Vargas.

On December 14, Calabrese approached Rosenbach and made a verbal complaint about

Vargas’s volume. Calabrese reported that she informed the billing team that Asali would be late

to work and, in response, Vargas stood from her cubicle, raised her voice, and expressed that

Asali “should be sending this to everyone not just [Calabrese].” (Id. at 141.) Rosenbach

instructed Asali to address Vargas’s behavior and offered to provide assistance in the matter.

The next day, Rosenbach learned from Vargas that Asali appeared to be texting

employees’ personal cell phones, including Calabrese’s, in violation of NIFAS’s policy.3

Rosenbach then suggested that she would speak to Asali “if that was going on” and reminded

Vargas that she must follow the NIFAS cell phone policy. (Id. at 36; Dkt. 42 ¶ 51.) After their

conversation, Asali observed Vargas taking a personal call without receiving approval or

clocking out.

On December 15, 2023, Calabrese submitted a formal written complaint to Asali about

Vargas’s behavior. She wrote, in part:

“Vargas as [sic] always been loud and very outspoken but was not disruptive or

uncomfortable to me before, but lately this has changed. Due to the disciplinary

warning, [sic] she received from you, she is very angry at this company and you

especially. Many times, she speaks very open about that [sic] she has ‘a lot’ on

Ellie and this company if she would get fired. … This department cannot get

ahead with a person with this behavior. … Her hostile demeanor interrupts my

workday, the bully attitude she presents in this workplace creates a difficult

environment and concentration reflecting on the performance of this department,

… I hope this can be resolved so we can have a happier environment.”

(Dkt. 31-2 at 110.)

NIFAS terminated Vargas’s employment that day. In a separate signed statement also

dated December 15, 2023, Asali wrote that she “decided to terminate [Vargas’s] employment

3 The NIFAS Handbook provides, “In no event is a cell phone to be used by an employee during work

hours. Use of cell phones on work time is permitted only for physicians and management or with their express

permission. Use of cell phones … including text messaging or other applications, is restricted to employee break

times. This will be closely monitored and failure to adhere to this policy may result in disciplinary action, up to and

including termination.” (Dkt. 31-2 at 191.)

because of her failure to follow NIFAS policy, her unprofessional behavior and making [sic] the

workplace unhappy and uncomfortable for other coworkers.” (Id. at 112.)

Asali held a meeting with Vargas to provide notice of her termination. Clinical Practice

Manager Carol Schaffer also attended. Asali prepared an Employee Termination Form in

connection with the meeting. Schaffer provided Vargas a copy during the meeting, which cited,

as reasons for Vargas’s termination, “Failure to follow procedure” and “Failure to follow code of

conduct.” (Id. at 114.) In the section titled, “Details of actions that warranted termination,” Asali

noted, “[Vargas] has been spoken to in the past about her behavior in the workplace. She

continues to be rude, negative and unprofessional. Staff members have complained and state that

they don’t feel comfortable working with [Vargas]. She has been a distraction to other employee

[sic].” (Id.) That day, Vargas filed a report with the Crystal Lake Police Department regarding

Asali’s alleged slap.

Vargas alleges various inappropriate comments made by Asali over the course of her

employment. For instance, on October 1, 2023, Asali asked Vargas for her opinion about a shirt

that Asali’s daughter told her was inappropriate for work. Vargas replied that it looked fine, to

which Asali replied, “I should have known better. I should have just waited to ask you because

you’re just like asking a man.” (Dkt. 47 ¶ 5.) Asali also suggested Vargas “should maybe do

your nails like this,” and suggested that Vargas was “with the wrong person” in reference to

Vargas’s partner. (Id. at ¶ 6.)

On January 26, 2024, Vargas filed a Charge of Discrimination with the EEOC alleging

harassment and discrimination based on her sexual orientation and retaliation. She asserts that

Asali alone engaged in misconduct at NIFAS. NIFAS moves for summary judgment on all

counts.

LEGAL STANDARD

Summary judgment is appropriate “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 law considers a dispute genuine ‘if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.’” Lord v. Beahm, 952 F.3d 902, 903 (7th Cir. 2020)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court “consider[s] all

of the evidence in the record in the light most favorable to the non-moving party, and … draw[s]

all reasonable inferences from that evidence in favor of the party opposing summary judgment.”

Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018) (citation omitted).

The moving party “bears the burden of demonstrating the absence of genuine issues of

material fact.” LaRiviere v. Bd. of Trs. of S. Illinois Univ., 926 F.3d 356, 359 (7th Cir. 2019)

(citation omitted). If the moving party meets that burden, “the burden shifts to the non-moving

party to come forward with specific facts showing that there is a genuine issue for trial.” Spierer

v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015) (citation omitted).

ANALYSIS

I. Evidentiary Issues

At the outset, NIFAS challenges three of Vargas’s exhibits. A party may challenge

evidence cited in support of or opposition to a fact on the grounds that it “cannot be presented in

a form that would be admissible in evidence.” Fed R. Civ. P. 56(c)(2). NIFAS argues that the

court may not rely on the exhibits at summary judgment because they are inadmissible hearsay

or lack authentication.4 Hearsay is an out-of-court statement offered to prove the truth of the

4 While NIFAS did not raise its evidentiary objections until their reply brief, the court may exclude

evidence at summary judgment when their defects are facially obvious. See TWD, LLC v. Grunt Style LLC, No. 18 C

7695, 2023 WL 7092979, at *2 (N.D. Ill. Mar. 23, 2023) (denying reconsideration based on party’s argument that it

was not afforded adequate opportunity to respond to admissibility objections in reply brief).

matter asserted. Fed. R. Evid. 801(c). “[H]earsay is inadmissible in summary judgment

proceedings to the same extent that it is inadmissible in a trial.” Eisenstadt v. Centel Corp., 113

F.3d 738, 742 (7th Cir. 1997) (citations omitted). Admissible evidence must also be

“authenticated by evidence sufficient to support a finding that the item is what the proponent

claims it is.” United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012) (quotation omitted).

Nevertheless, “evidence does not need to be presented in admissible form at summary judgment”

although it must be “admissible in content.” Smith v. City of Chicago, No. 21-CV-1159, 2025

WL 1592261, at *3 (N.D. Ill. June 5, 2025) (quotation omitted) (quoting Wheatley v. Factory

Card & Party Outlet, 826 F.3d 412, 421 (7th Cir. 2016)).

Exhibit A is a series of emails from December 15, 2023, to January 6, 2024, between

Vargas and Rosenbach, with Timm and Asali copied. Vargas recounts the explanation she was

provided for her termination, alleges various instances of harassment, and provides suggestions

for management training. In reply, Rosenbach recounts her memory of the events immediately

prior to Vargas’s termination. Exhibit D is a chain of text messages between Vargas and Papen

on March 8, 2024. Papen notifies Vargas that she was fired and explains that she wrote a letter

stating “what she saw” with respect to the alleged slap. (Dkt. 41-4 at 4.) Exhibit H is a document

titled “Separation Information” which contains descriptions of Vargas’s termination, complaints,

and warnings, and appears to have been completed by Rosenbach. (Dkt. 41-8 at 2.)

Vargas has failed to lay foundation establishing the admissibility of the exhibits. Exhibits

A, D, and H are unauthenticated and would be inadmissible at trial in their present states.

Nevertheless, it appears that each of these documents could be authenticated at trial via the

testimonies of Vargas, Papen, and Rosenbach, respectively. Accordingly, Vargas’s failure to

authenticate the exhibits prior to summary judgment does not preclude the exhibits from being

considered as part of the record.5 See Montoya v. Mitchell, No. 1:17-CV-01796, 2024 WL

1328799, at *3 (N.D. Ill. Mar. 28, 2024) (citation omitted) (“At the summary judgment phase,

the Court may consider unauthenticated documents if it appears that they are capable of

authentication at trial.”).

But to be considered part of the record, Vargas’s exhibits must also not constitute

inadmissible hearsay. See Boothe v. Wheeling Police Officer Sherman (Star #155), 190 F. Supp.

3d 788, 793 (N.D. Ill. 2016) (“To be considered on summary judgment, evidence must either be

non-hearsay pursuant to Federal Rule of Evidence 801, or must qualify for a hearsay exception

pursuant to Federal Rule of Evidence 803.”) (citation omitted). Here, Exhibit A is partially

inadmissible as hearsay, and Exhibit D is entirely inadmissible as hearsay. In contrast, Exhibit H

is nonhearsay and may be considered as part of the record.

Exhibit A is a chain of email correspondences between Rosenbach and Vargas that

Vargas frequently relies upon for truth of the matter asserted. Vargas’s correspondences in the

email chain constitute hearsay for which no exception applies and may not be considered here. It

is undisputed, however, that Rosenbach, NIFAS’s Human Resources Director, was involved in

decisionmaking regarding Vargas prior to Vargas’s termination. Moreover, Rosenbach’s

oversight duties for NIFAS include “handling any and all employee issues that may arise,

including hiring, firing, discipline, and compliance with NIFAS’s policies.” (Dkt. 31-2 at 118.)

Accordingly, Rosenbach’s correspondences within the email chain may be considered in the

record as nonhearsay opposing party statements. See Makowski v. SmithAmundsen LLC, 662

F.3d 818, 823 (7th Cir. 2011) (holding Human Resource Director’s statements “admissible as

5 Questions of authentication can be more easily addressed when litigants provide sworn affidavits or sworn

deposition testimony that clearly establishes the admissibility of evidence.

nonhearsay under Rule 801(d)(2)(D)” when Human Resource Director “was not involved in the

… termination, [but] she was involved in the decisionmaking process leading up to the action”).

Exhibit D is a text exchange between Vargas and Papen, a former billing employee of

NIFAS. Vargas relies upon this exhibit as proof that Papen was asked to lie on behalf of NIFAS

regarding the slap incident. Exhibit D thus constitutes inadmissible hearsay for which no hearsay

exception applies and may not be considered part of the record.

Exhibit H appears to be a NIFAS employment document submitted by Rosenbach,

NIFAS’s Human Resources Director, to the Illinois Department of Employment Security.6

Accordingly, Exhibit H, which states information pertaining to Vargas’s termination and

warnings, may be considered as part of the record as an opposing party statement. See Makowski,

662 F.3d at 823 (7th Cir. 2011); see also Lupescu v. Napolitano, 700 F. Supp. 2d 962, 968 (N.D.

Ill. 2010) (citation omitted) (“[T]he statements contained in those reports are largely by TSA

employees and agents and so, when offered by [plaintiff], are admissions of a party opponent,

admissible as non-hearsay.”).

Vargas does not only point to Exhibits A and H as admissions of a party opponent but

also to establish a contradiction between the reasoning she claims she was provided and the

explanation stated in her “Separation Information” form. As such, the statements are not hearsay

and may be considered for this purpose. See Woods, 234 F.3d at 986 (concluding that documents

could be considered at summary judgment because they were not offered for their truth).

II. Harassment (Count I)

Vargas first brings a hostile work environment harassment claim under Title VII. To

support such a claim, the plaintiff must present evidence that (1) she was subjected to

6 Here, NIFAS does not dispute that Exhibit H includes “statements made by current and former NIFAS

employees in responses provided to the Illinois Department of Employment Security.” (Dkt. 46 at 5.)

unwelcome harassment, (2) the harassment was based on a protected characteristic, (3) the

harassment was so severe or pervasive as to alter the conditions of employment and create a

hostile working environment, and (4) there is a basis for employer liability. Ford v. Marion Cty.

Sherriff’s Office, 942 F.3d 839, 856 (7th Cir. 2019) (citation omitted). The court weighs several

criteria: “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.” Hambrick v. Kijakazi, 79 F.4th 835, 842‒43 (7th Cir.

2023) (citation omitted). “Courts should not carve up the incidents of harassment and then

separately analyze each incident, by itself, to see if each rises to the level of being severe or

pervasive.” Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1045 (7th Cir. 2000) (citation

omitted). The court considers generally whether the conduct became “so severe or pervasive that

‘a reasonable person would find [it] hostile or abusive.’” Hambrick, 79 F.4th at 843 (citing

Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)).

Vargas fails to raise a triable dispute of fact as to her harassment claim. Asali’s

inappropriate comments, such as telling Vargas that her wardrobe advice is “like asking a man,”

(Dkt. 47 ¶ 5), commenting on her fingernail length, or telling Vargas that she was “with the

wrong person,” (id. ¶ 6), are “indeed offensive, but … too isolated and sporadic to constitute

severe or pervasive harassment.” Patt v. Fam. Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.

2002) (citation omitted).

Vargas also fails to show that the other unprofessional behavior she experienced from

Asali—such as any alleged slap,7 being ignored, or told to “shut up,” (Dkt. 31-2 at 19.)—was

7 There is a suggestion, in an unauthenticated statement from Tammy Timm, that Vargas said to her that

she had been slapped more than once. (Dkt. 41-7 at 2) (“[Vargas] then said on multiple occasions Ellie slapped me

in the face … [I]t happened multiple times …”). Any second slap lacks any sort of factual detail, however, and

Timm’s statement is hearsay-within-hearsay.

“‘based on membership in a protected class.’” Hambrick, 79 F.4th at 843–44 (quoting Trahanas

v. Nw. Univ., 64 F.4th 842, 853 (7th Cir. 2023)) (affirming summary judgment for defendant-

employer). Vargas introduces no evidence suggesting that the behavior related to her sex or

sexual orientation.8 Hernandez-Martinez v. Chipotle Mexican Grill, Inc., No. 11 C 4990, 2012

WL 2721913, at *4 (N.D. Ill. July 9, 2012) (citation omitted) (granting summary judgment to

employer because, “even if [plaintiff’s supervisor] was abusive,” plaintiff had introduced

“insufficient evidence” that the conduct was related to a protected characteristic).

Vargas otherwise relies on conclusional testimony that Asali ignored her and “treated her

differently.” (Dkt. 42 ¶ 69.) Such testimony is insufficient to survive summary judgment.

Hoosier v. Greenwood Hosp. Mgmt. LLC, 32 F. Supp. 3d 966, 979–80 (N.D. Ill. 2014) (citation

omitted) (holding that “two or three instances” of “harsh[] and … demeaning” treatment and

otherwise “vague and conclusory” allegations are insufficient to survive summary judgment in a

Title VII harassment claim); Patton v. Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir.

2002) (affirming summary judgment for employer even though immediate supervisor “treated

[plaintiff] in a rude, abrupt, and arrogant manner, ignored her work-related suggestions and

failed to keep her informed about changes at work”). Asali and Vargas may have shared a

difficult working relationship, but it is not actionable harassment under Title VII. Summary

judgment in favor of NIFAS is therefore appropriate on Count I.9

8 Vargas’s other allegations in support of her harassment claim, such as unequal enforcement of the cell

phone policy, are better suited for her discrimination claim. See Nolan v. City of Chicago, No. 15-CV-11645, 2017

WL 569154, at *5 (N.D. Ill. Feb. 13, 2017) (“A Title VII hostile environment claim is a discrimination claim based

on the plaintiff’s membership in a protected category, but in contrast to discrete acts of discrimination … is

composed of a series of separate acts that collectively constitute one unlawful employment practice.”) (citation

omitted). To the extent Vargas asserts these incidents as the basis for her harassment claim, however, her theory

fares no better. The record does not suggest any connection between the discipline and Vargas’s sex or sexual

orientation. Hambrick, 79 F.4th at 843.

9 Because the court so concludes, it need not address NIFAS’s Faragher-Ellerth affirmative defense.

Grigsby v. La Rabida Children’s Hosp., No. 20 C 67, 2024 WL 3950121, at *17 n.8 (N.D. Ill. Aug. 27, 2024) (“As

III. Discrimination (Count II)

Vargas next brings a Title VII claim for discrimination based on her sex and sexual

orientation. She contends that NIFAS singled her out for discipline and looped her out of

workplace communications. “Title VII prohibits employers from discriminating against

employees on the basis of sex or gender.” Farrell v. Butler Univ., 421 F.3d 609, 612 (7th Cir.

2005) (citing 42 U.S.C. § 2000e-2(a)(1)); see also Hively v. Ivy Tech Cmty. Coll. of Indiana, 853

F.3d 339, 351‒52 (7th Cir. 2017) (holding that “a person who alleges that she experienced

employment discrimination on the basis of her sexual orientation has put forth a case of sex

discrimination for Title VII purposes”).

Vargas relies on the McDonnell Douglas burden-shifting framework, 411 U.S. 792, 802

(1973), which is “one method of proving employment discrimination under Title VII.” Anderson

v. Street, 104 F.4th 646, 652 (7th Cir. 2024). Under that framework, Vargas first bears the

burden of establishing a prima facie case by demonstrating: “(1) that she is a member of a

protected class; (2) that she performed her job to her employer's expectations; (3) that she

suffered an adverse employment action; and (4) that one or more similarly situated individuals

outside her protected class received better treatment.” Id. (citation omitted). If Vargas meets this

initial burden, the burden shifts to NIFAS to provide a legitimate, non-discriminatory reason for

its actions. Farrell, 421 F.3d at 613. Should NIFAS do so, the burden returns to Vargas to

demonstrate that the stated reason was pretextual. Id.

Vargas’s prima facie case fails because she does not identify any similarly situated

individual outside her protected class treated more favorably. She offers two purported

comparators: (1) other members of the billing department generally, and (2) Benedetta

the Court finds that Grigsby failed to produce enough evidence to defeat summary judgment, the Court need not

address Defendants’ Faragher-Ellerth affirmative-defense argument.”).

Calabrese. Vargas’s vague reliance on members of the Billing Department is insufficient as a

matter of law, as she must “specifically identify an employee outside the protected class.”

Scharaga v. Grossinger Autoplex, Inc., No. 13 C 7380, 2015 WL 3602393, at *3 (N.D. Ill.

June 9, 2015); Huang v. Cont’l Cas. Co., 754 F.3d 447, 451 (7th Cir. 2014) (citation omitted)

(affirming summary judgment as to Title VII claim because plaintiff “needed to identify another

employee[] outside of his protected class” and did not).

Vargas contends that Calabrese “was [her] coworker in the Billing Department, and as

such, is similarly situated.” (Dkt. 41 at 23.) This is also insufficient, as “nothing [has been]

presented describing their experience, education or qualifications.” See Raymond v. Ameritech

Corp., No. 03 C 4509, 2005 WL 525421, at *6 (N.D. Ill. Mar. 4, 2005) (granting summary

judgment for failure to identify a similarly situated individual who received better treatment),

aff’d, 442 F.3d 600 (7th Cir. 2006). But with that omission even set aside, Vargas also fails to

identify any evidence suggesting that Calabrese was outside the protected class for her sex or

sexual orientation discrimination claims. Id. (declining to consider comparable employee for

Title VII race discrimination claim where “no evidence is presented of Gottshalk’s race”).

Summary judgment is therefore appropriate on Vargas’s discrimination claim.

IV. Retaliation (Count III)

Vargas also alleges that NIFAS terminated her in retaliation for reporting discrimination.

“To prevail on a Title VII retaliation claim, the plaintiff must prove that (1) she engaged in an

activity protected by the statute; (2) she suffered an adverse employment action; and (3) there is

a causal link between the protected activity and the adverse action.” Anderson, 104 F.4th at 654

(citation omitted). “Merely complaining in general terms of discrimination or harassment,

without indicating a connection to a protected class or providing facts sufficient to create that

inference, is insufficient” to constitute statutorily protected activity. Tomanovich v. City of

Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). It is undisputed that termination constitutes an

adverse employment action. See Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012)

(citation omitted).

The parties primarily dispute whether Vargas engaged in statutorily protected activity.

Vargas contends that her complaints regarding the alleged slap are protected but points to no

evidence suggesting that the incident related to her sex or sexual orientation. See Miller v.

Chicago Transit Auth., 20 F.4th 1148, 1155–56 (7th Cir. 2021) (affirming summary judgment

because complaints of being “‘targeted’ and treated unfairly” were insufficient to constitute

statutorily protected activity); Johnson v. Chicago Transit Auth., No. 14 C 9432, 2017 WL

1105446, at *7 (N.D. Ill. Mar. 24, 2017) (citation omitted) (finding that a complaint did not

constitute a protected activity under Title VII where the complaint did not “indicat[e] a

connection to a protected class or provid[e] facts sufficient to create that inference”), aff’d, 699

F. App’x 558 (7th Cir. 2017).

The record does reflect, however, that Vargas engaged in protected activity. Vargas

reported, in the presence of Timm, that Asali asked Vargas whether a blouse was “appropriate

for work” and then stated that asking for Vargas’s opinion is “just like asking a man.” (Dkt. 31-2

at 19‒20.) A reasonable jury could conclude that Vargas complained of discrimination based on

her sex or sexual orientation, which constitutes protected activity. Walls v. Turano Baking Co.,

221 F. Supp. 2d 924, 931 (N.D. Ill. 2002) (citation omitted) (“[I]nformal complaints to

supervisors … constitute statutorily protected expression.”).

But to raise a triable dispute of fact as to retaliation, Vargas must offer evidence that a

retaliatory motive was a “but-for cause of the challenged employment action.” Gracia v.

SigmaTron International, Inc., 842 F.3d 1010, 1019 (7th Cir. 2016) (quoting University of Texas

Southwestern Medical Center v. Nassar, 570 U.S. 338, 352 (2013)). “This requires proof that the

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

actions of the employer.” Nassar, 570 U.S. at 360.

Vargas emphasizes that her termination occurred “just a few days” after her report of

discriminatory conduct. (Dkt. 41 at 27.) Her claim fails, however, because she fails to “overcome

the general rule that suspicious timing alone is insufficient to support a claim of retaliation.”

Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 675 (7th Cir. 2011) (affirming

summary judgment even though alleged retaliation occurred “just days” after engaging in

protected activity). The Seventh Circuit has “cautioned … that suspicious timing may be just

that—suspicious, and [has] underscored the importance of context in assessing whether an

inference of causality is warranted or not.” Davis v. Time Warner Cable of Se. Wisconsin, L.P.,

651 F.3d 664, 675 (7th Cir. 2011) (quotation omitted).

Unfortunately for Vargas, “[t]he context here does not justify such an inference.” Id.

Vargas introduces no evidence suggesting that her complaint caused her termination. Indeed, the

undisputed record establishes the contrary. Vargas does not dispute that, starting as early as June

2023, six months before her termination, Vargas received at least five warnings for her

workplace disruption. In other words, “[t]he undisputed evidence … establishes that [the

employer] had been dissatisfied with [the employee’s] interpersonal flaws for a long time ….”

Leitgen, 630 F.3d at 676.

NIFAS also received complaints about Vargas’s behavior on multiple occasions within a

week of her termination. Vargas received a verbal warning for her volume and for disrupting

coworkers on December 8, three days prior to her protected complaint. Calabrese verbally

complained about Vargas’s volume on December 14. That day, Asali observed Vargas taking a

personal call in violation of NIFAS policy after having been counseled about it the day before.

The next day, Calabrese submitted a written statement expressing additional concern

about Vargas’s behavior. (Dkt. 31-2 at 110.) (“Her hostile demeanor interrupts my workday, the

bully attitude she presents in this workplace creates a difficult environment and concentration

[sic] reflecting on the performance of this department, which also influences new people to this

workplace.”). NIFAS terminated Vargas that day. “In light of these significant intervening

events, a jury could not reasonably accept [the plaintiff’s] suspicious-timing argument.” Young-

Gibson v. Bd. of Educ. of City of Chicago, 558 F. App’x 694, 699‒700 (7th Cir. 2014).10

Lastly, Vargas contends that NIFAS cited contradictory reasons for her termination,

indicating “a messy pretext.” (Dkt. 41 at 21.) Pretext may serve as circumstantial evidence of an

employer’s retaliatory action. Crain v. McDonough, 63 F.4th 585, 593 (7th Cir. 2023). However,

pretext “involves more than just faulty reasoning or mistaken judgment on the part of the

employer; it is [a] lie, specifically a phony reason for some action.” Burton v. Bd. of Regents of

Univ. of Wis. Sys., 851 F.3d 690, 698 (7th Cir. 2017) (citation omitted).

Vargas argues, based on her deposition and an email to Rosenbach, that NIFAS cited

reasons wholly distinct from those outlined in her termination paperwork: deleted patient records

and “a fabricated allegation that [Vargas] was dancing in her cubicle” as reasons for her

termination. (Dkt. 41 at 21.) Vargas asserts that her “termination paperwork,” which appears to

be a NIFAS form entitled “Separation Information,” identified other reasons: “that [Vargas]

violated the cell phone policy” and her poor attitude. Id. (citing Dkt. 41-8 at 3.)

10 Similarly unpersuasive is Vargas’s contention that NIFAS’s decision to replace her with a man suggests a

discriminatory motive. Cianci v. Pettibone Corp., 152 F.3d 723, 727 (7th Cir. 1998) (citation omitted)

(“[R]eplacement by a male … is simply insufficient to demonstrate that … gender motivated the decision to

terminate [plaintiff].”).

Vargas misreads the “Separation Information” document, as she only references the

“Final Incident” leading to her termination. (Dkt. 41-8 at 3.) The deleted patient records are

expressly identified as a “prior incident,” as are multiple warnings related to her disruptive

behavior. (Id. at 3–6.) (“[HIPAA] Violation-Deleted Doctor’s notes on 5 different patients.”;

“Verbal Warning from Manager to get back to work and stop interrupting coworkers.”).

That “Final Incident” is also consistent with the explanation provided by both Asali and

NIFAS. Asali noted, as reasons for Vargas’s termination, an unapproved personal phone call,

“failure to follow NIFAS policy, her unprofessional behavior[,] and making the workplace

unhappy and uncomfortable for other coworkers.” (Dkt. 31-2 at 93–94, 114.)11 Vargas’s

Separation Information form likewise cited “Failure to follow company policy/procedures” and

“Failure to follow code of conduct.” (Dkt. 41-8 at 3.) The record does not suggest a “phony

reason” for her termination. Burton, 851 F.3d at 698 (citation omitted). Absent additional

evidence suggesting a causal connection between Vargas’s informal complaint and her

termination, no reasonable jury could find in her favor. The court therefore grants summary

judgment in favor of NIFAS as to Count III.

11 In support of her discrimination claim, Vargas asserts that Asali permitted such calls and that the cell

phone policy was “never enforced.” (Dkt. 41 at 11; Dkt. 41-2 at 9.) Even if this assertion were intended to support

her retaliation claim, NIFAS would remain entitled to summary judgment. “[W]here courts have found selective

enforcement can be evidence of pretext, they have also found other evidence supporting pretext to the employee’s

termination and viewed that evidence together.” See Fountain v. Zimmer Inc., No. 3:17-CV-323 JD, 2021 WL

2125287, at *12 (N.D. Ind. May 25, 2021) (collecting cases). Vargas points to no additional evidence of pretext.

Indeed, in June 2023, NIFAS terminated a non-lesbian employee in the billing department for her “disrespect and

negative attitude” and “excessive cell phone use.” (Dkt. 42 ¶ 68.)

CONCLUSION AND ORDER

For the foregoing reasons, NIFAS’s motion for summary judgment is granted. The Clerk

is directed to enter judgment in favor of NIFAS on all counts. Civil case terminated.

Date: September 16, 2025 pefeead—

“S. District Judge Joan H. Lefkow

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