Benuzzi v. Board of Educ. of City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3021

JESSICA B ENUZZI,

Plaintiff-Appellant,

v.

B OARD OF E DUCATION OF THE

C ITY OF C HICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CV 3510—Suzanne B. Conlon, Judge.

A RGUED M ARCH 30, 2011—D ECIDED JULY 21, 2011

Before F LAUM, W OOD , and T INDER, Circuit Judges.

T INDER, Circuit Judge. Jessica Benuzzi, one of the first

female custodians hired by the Chicago Public Schools,

has spent more than twenty years climbing the ranks of

the maintenance staff. In 2004, she reached the Grade V-II

Engineer level, which qualified her to oversee custodial

operations at large school buildings. With this promotion

came a new job, building engineer-in-charge, at a newly

2 No. 10-3021

opened school on Chicago’s south side, John J. Pershing

West Magnet School. The promotion also put Benuzzi

under the command of a new boss with whom she im-

mediately clashed, principal Cheryl Watkins. Watkins

declined Benuzzi’s repeated requests to work the

morning shift, and suspended her without pay three

times. Benuzzi responded by filing four complaints

with the Equal Employment Opportunity Commission

(“EEOC”), alleging gender, race, age, and disability

discrimination and retaliation. When she received

her right-to-sue letter, Benuzzi sued Watkins and the

Board of Education of the City of Chicago on all of the

grounds she asserted before the EEOC. Watkins and

the Board moved for summary judgment. Benuzzi sub-

mitted a statement of additional facts in opposition to

summary judgment, which the district court largely

ignored because its “excessively lengthy paragraphs”

violated Local Rule 56.1. The district court, relying

mainly on Watkins’ and the Board’s factual submissions,

granted summary judgment in their favor on all Benuzzi’s

claims. Benuzzi challenges the grant only as to her

gender discrimination and retaliation claims. She also

challenges the district court’s application of Local

Rule 56.1. For the reasons explained below, we affirm in

part, vacate in part, and remand for further proceedings.

I. Local Rule 56.1

We first address Benuzzi’s contention regarding Local

Rule 56.1, for our resolution of this issue has the potential

to significantly impact the scope of this appeal.

No. 10-3021 3

Like most, if not all, federal judicial districts, the North-

ern District of Illinois has promulgated local procedural

rules to aid it in managing its docket effectively and

efficiently. See Fed. R. Civ. P. 83 (authorizing district courts

to “adopt and amend rules” consistent with federal rules

of civil procedure); A. Bauer Mech., Inc. v. Joint Arbitration

Bd. of the Plumbing Contractors’ Ass’n & Chi. Journeymen

Plumbers’ Local Union 130, U.A., 562 F.3d 784, 790 (7th Cir.

2009) (explaining the purpose of local rules). “[W]e

have emphasized the importance of local rules and have

consistently and repeatedly upheld a district court’s

discretion to require strict compliance with its local rules

governing summary judgment.” Metro. Life Ins. Co. v.

Johnson, 297 F.3d 558, 562 (7th Cir. 2002) (quotation omit-

ted); see also Koszola v. Bd. of Educ. of City of Chi., 385

F.3d 1104, 1109 (7th Cir. 2004).

The rule at issue here is Local Rule 56.1, which governs

summary judgment and provides in relevant part,

Each party opposing a motion filed pursuant to

Fed. R. Civ. P. 56 shall serve and file—

....

(3) a concise response to the movant’s statement

[of material facts] that shall contain: . . .

(C) a statement, consisting of short numbered

paragraphs, of any additional facts that require the

denial of summary judgment, including references

to the affidavits, parts of the record, and other

supporting materials relied upon. Absent prior

leave of Court, a respondent to a summary judg-

4 No. 10-3021

ment motion shall not file more than 40 separately-

numbered statements of additional facts.

N.D. Ill. Civ. R. 56.1 (b)(3). Benuzzi attempted to comply

with LR 56.1 by filing a statement consisting of forty

numbered paragraphs that included citations to the

record. The paragraphs in her statement ranged in

length from two to eighteen lines. On average, each

paragraph contained about 8.5 lines. Benuzzi moved to

strike portions of defendants’ joint statement of facts,

but the defendants voiced no opposition to hers. To

the contrary, they filed a formal response to Benuzzi’s

LR 56.1 statement, indicating which additional facts

they disputed.

The district court was not as amenable. It explained in

its memorandum and opinion and order granting the

defendants’ summary judgment motions that it had

disregarded much of Benuzzi’s LR 56.1 statement. Citing

the portion of LR 56.1 excerpted above, the district court

explained that it declined to consider much of Benuzzi’s

statement of additional facts because most of her para-

graphs were “excessively lengthy.” The district court

refused to “wade through Benuzzi’s convoluted narra-

tives” and to that end declined to “consider factual state-

ments that fail to comply with Local Rule 56.1.” Benuzzi v.

Bd. of Educ. of the City of Chi., No. 09 CV 3510, 2010

WL 2169488, at *1 (N.D. Ill. May 27, 2010). Without clari-

fying which statements those might be, it looked pre-

dominantly to the defendants’ factual statements and

determined that summary judgment was warranted. (The

longest paragraph in the defendants’ statement of facts

No. 10-3021 5

contained eight lines.) From the citations in the opinion, it

appears that the district court expressly considered only

four paragraphs from Benuzzi’s statement; those para-

graphs ranged in length from four to seven lines.

District courts have broad discretion to enforce and

require strict compliance with their local rules. See Elustra

v. Mineo, 595 F.3d 699, 710 (7th Cir. 2010) (“We defer to the

district court’s understanding of its own rules.”). The

district judge in this case has expressed, through her

publicly available standing case management procedures,

that she strictly enforces LR 56.1’s forty-paragraph limit.

She is well within her authority to require such compli-

ance, and we commend her for clearly communicating

her high expectations to litigants appearing before her.

The lack of similar transparency with respect to her

interpretation of LR 56.1’s requirement of “short . . .

paragraphs” for the purposes of this case gives us

some pause, however. “Short” is, after all, a somewhat

subjective term; what is “short” to one judge may be

long to another, and a single judge’s definition might

reasonably vary from case to case. It appears that

Benuzzi and the court had different ideas about what

“short” meant in this fact-intensive case. Some of the

paragraphs in Benuzzi’s statement of additional facts

were objectively not short; most people would probably

agree that an eighteen-line paragraph is not a short para-

graph. But many of Benuzzi’s statements fell into a

grayer zone: is an eight-line paragraph “short”? What

about a ten-line or twelve-line paragraph? We do not

expect district courts to provide litigants with a concrete

cutoff; such a requirement would improperly cabin the

6 No. 10-3021

district courts’ discretion. But district courts might

prevent disputes like this one by giving litigants a brief

opportunity to revise their offending statements before

striking them, or at the very least clarifying which para-

graphs fail to meet the rule’s requirements. Here, we

are not sure what facts the district court considered or

disregarded; there are several paragraphs shorter than

or equal in length to the ones it cited that it apparently

declined to consider.

It seems that the parties are similarly vexed. Benuzzi’s

appellate briefing relies heavily on citations to her state-

ment of additional facts, which may or may not have

been considered by the district court, and the defendants’

briefing provides us with facts that were clearly not

considered below, see Benuzzi, 2010 WL 2169488, at *1 n.2,

as well as lengthy recitations of the very facts it claims

were properly stricken. At oral argument, we asked both

sides to clarify which facts were properly before us.

Benuzzi urged us to consider the entirety of her state-

ment of additional facts. The defendants agreed that

“everything in the record is available to this court for

review.” So while we decline to hold that the district

court abused its discretion here, largely because of

Benuzzi’s failure to seek clarification or leave to file a

lengthier statement, see N.D. Ill. Civ. R. 56.1 Committee

Comment (“A party may seek leave to file more asserted

statements of . . . additional fact, upon a showing that the

complexity of the case requires a relaxation of the . . .

40 statement limit.”), we will accede to the parties’ request

to consider facts that the district court may have disre-

garded.

No. 10-3021 7

II. Factual Background

With the antecedent procedural question resolved, we

proceed to the facts the parties have presented. We

view the facts in the light most favorable to Benuzzi, the

nonmoving party, and draw all reasonable inferences in

her favor. E.g., Groesch v. City of Springfield, Ill., 635

F.3d 1020, 1022 (7th Cir. 2011).

Benuzzi is a white woman in her early fifties. She has

been working for the Chicago Public Schools (“CPS”) since

1981, when she became one of its first female custodial

assistants. She worked her way up to the position of

building engineer by the late 1980s, and currently holds

one of the highest seniority rankings, 13 of 723. The next-

most-senior females hold numbers 86 and 127. In 2004,

Benuzzi attained the rank of Grade V-II engineer, which

qualified her to serve as the engineer-in-charge at a large

school. Shortly after attaining this rank, Benuzzi applied

for and was granted a transfer from Thorp Academy

to Douglas Academy, which was closed for major renova-

tions and was slated to reopen under new administra-

tion during the 2005-2006 school year. Benuzzi was the

only CPS worker on site and was tasked with supervising

the renovation crews.

In March 2005, the Board hired Cheryl Watkins, an

African American woman in her forties, to be the

principal of the new school replacing Douglas Academy,

John J. Pershing West Magnet School (“Pershing”). The

Board told Watkins that she could personally select all

her staff members except for custodial employees, who

were subject to special union contracts. Watkins toured

8 No. 10-3021

Pershing in late May 2005, while construction was on-

going. She had her first encounter with Benuzzi at

this time. Both sides agree the women got off on the

wrong foot; Watkins believed she misplaced her ring

during the visit and Benuzzi felt that Watkins was

accusing her of stealing it. (Watkins later found the ring

at home.) At some point during the summer, Watkins

questioned why Benuzzi was permitted to be in the

building during construction.

In June 2005, CPS sent a lower-ranked male engineer,

Osvaldo Alverado, to assist Benuzzi in getting Pershing

ready to open by September. Both Benuzzi and Alverado

worked overtime to get the building ready. Benuzzi

testified that at some point during the summer, Watkins

told Benuzzi that she (Watkins) would be closing

Benuzzi’s position because she only needed one

engineer and Alverado was better for the job. Watkins

learned she could not do so, however, because the union

contract required the assignment of two engineers in

buildings the size of Pershing. Thus, around that same

time, Watkins assigned Alverado to work the 6 a.m. to

2 p.m. shift during the school year, and gave Benuzzi the

10 a.m. to 6 p.m. shift. According to Benuzzi, the union

contract permitted the chief engineer to set the engi-

neers’ schedule subject to the principal’s approval,

but Watkins ignored her preferences. Benuzzi none-

theless conceded during her deposition that “Ms. Watkins

had complete authority to do all the scheduling.”

Alverado failed to show up over Labor Day weekend, the

last weekend before the start of the school year, so Be-

nuzzi wound up working thirty-six hours straight. Benuzzi

No. 10-3021 9

testified that Watkins was the only other person she

saw there on the holiday. A CPS consultant, John

DeSimone, testified that he walked through the building

sometime that weekend to make sure it was sufficiently

safe and clean to allow students to enter it the following

Tuesday. DeSimone testified that “there was [sic] some

issues between the engineer and the principal,” but “the

building was clean and safe for the students to come

into.” Pershing opened on time. Two weeks later, on

September 16, 2005, Watkins, who believed the building

was unacceptably dirty on the first day of school, issued

Benuzzi a cautionary notice (a written warning) alleging

she incompetently or inefficiently performed her duties.

The notice provided, “Several members of the Opera-

tions Department, including Mr. John DiSimone [sic] . . .

visited the building and noticed the unsatisfactory state

of the building the day before students were to arrive.

The amount of dust on the floors, from the construction

work being completed, imposed undue health issues

on students with asthma . . . and those who have aller-

gies. The building could have been cleaned properly

before students were to be in the building.” Benuzzi

refused to sign this cautionary notice, as well as a

second one Watkins gave her that same day for allegedly

raising her voice and initiating “private conversation . . .

in the presence of visitors and workmen” on Labor Day.

At some point, Alverado left Pershing and CPS replaced

him with Jeff Vaughn, a male Grade II engineer. Watkins

assigned Vaughn to work the 6-2 shift and kept Benuzzi

on the 10-6 shift. In March or April 2006, the Board visited

10 No. 10-3021

Pershing to assess its cleanliness. The Board assigned

Pershing a score of 97.1 out of a possible 100.

In May 2006, Benuzzi injured her hand on a patio door.

When she arrived at work on May 15, she saw that a

“blood clot or puddle” had formed in her hand and

decided it would be prudent to seek medical attention.

Benuzzi went to the office to seek permission to leave

the building. Neither Watkins nor assistant principal

Durrell Anderson was available. Benuzzi waited for

about forty-five minutes to no avail. Eventually, Benuzzi

told the school clerk that she had to get to the doctor.

The school clerk told Benuzzi that she would tell

Watkins that Benuzzi was at the doctor. Benuzzi tried to

reach Watkins by phone from the doctor’s office, but

was again only able to reach the school clerk. Watkins

testified that she did not know that Benuzzi had left

and spent time looking for her because a construction

worker had a question. Watkins testified that if Benuzzi’s

injury had been an emergency, the school clerk would

have told her; otherwise, notifying Watkins of her

absence was Benuzzi’s responsibility.

On or about June 9, 2006, Pershing held its end-of-

year awards ceremony. A school aide asked Benuzzi if

she could arrange for the custodians to carry some bever-

ages upstairs for the evening event. Benuzzi explained

that because the custodians’ shifts ended at 6:30, they

would have to bring the beverages up no later than 6:15.

The aide balked, as the beverages were not needed until

later in the evening. Benuzzi asked the aide if the people

who would be consuming the sodas were going to get

No. 10-3021 11

overtime pay; she hoped the custodians might be able

to get some overtime for helping with the beverages. It is

unclear whether or how the aide answered the question.

Benuzzi herself had previously agreed to work until

6:30 p.m. to ensure that an engineer was present at the

start of the evening ceremony; Vaughn was scheduled

to come in at 7:00. (It is not clear whether she or Vaughn

received overtime pay.) Vaughn refused to help Benuzzi

set up and instead sat at her desk with his feet up while

she worked.

On June 12, Watkins called Benuzzi into her office and

told her that “overtime was none of [her] business.”

Benuzzi testified that Watkins said “some terribly

mean things” to her during this meeting, including that

Pershing was “her territory” and that she didn’t want

Benuzzi in the building. Benuzzi, who suffers from

anxiety and irritable bowel syndrome, found the

meeting very stressful. She felt her heart racing and

developed a sharp pain and cramping in her stomach.

She “doubled over” and “let out an ‘ow,’ ” which

Watkins described as a “guttural scream.” Benuzzi, still

bent over, then stood up and told Watkins she had to

leave to see a doctor. Watkins told her to take her things

because she was going to make sure Benuzzi was not

allowed back. On June 16, Watkins drafted a memorial of

the June 12 meeting in which she expressed concern

about Benuzzi’s “erratic, unpredictable behavior” and

fear that Benuzzi “will do something to the custodians,

the assistant engineer, one of the students, or myself.”

Watkins also formally requested that Benuzzi submit to

a fitness for duty examination. Benuzzi was deemed fit

12 No. 10-3021

but did not return to Pershing until July 13. While

Benuzzi was gone, Vaughn told Watkins that one of the

custodians, Willie Rush, was spending inordinate

amounts of time in the restroom, sleeping on the job, and

using profane language; Watkins investigated and sus-

pended Rush for two days.

On July 17, another custodian, Charles Armour, told

Benuzzi that he had asked Vaughn to help him take

apart a table, but Vaughn had refused. Benuzzi found

Vaughn and asked him to help her take apart the table.

Vaughn told her that he did not have to listen to her and

refused to help. He then turned on a vacuum and said

he couldn’t hear her. Benuzzi returned to her office.

Before she could do anything, the phone rang. Watkins,

who was out of town at a conference, was on the other

end. Benuzzi told Watkins she was glad she had called

because there was a situation with Vaughn. Watkins

responded that she was actually calling because Vaughn

had called her to report that Benuzzi had just confronted

him, accused him of defacing a photograph of custodian

Rush she displayed on her desk, and called him “a

pussy, a liar, and a snitch.” Benuzzi denied the accusa-

tions. Then, according to Benuzzi, the phone inexplicably

went dead. Watkins called back and she and Benuzzi

discussed whether Benuzzi would be able to come in

early the next day. On July 21, Benuzzi emailed Watkins

to request a change in her work schedule. She asked

Watkins to put her on the 6-2 shift because she had

more experience than Vaughn and felt the scheduling

change “would be beneficial for the moral [sic] of the

custodial staff.” Watkins denied Benuzzi’s request by

No. 10-3021 13

letter dated July 25, explaining that she “fe[lt] it is best”

that Benuzzi keep the 10-6 shift.

On July 22, Watkins issued Benuzzi a Notice of Dis-

ciplinary Action, which is more serious than a cau-

tionary notice; it is a harbinger of formal disciplinary pro-

ceedings. In the notice, Watkins cited Benuzzi for

leaving Pershing without permission on May 15 (for her

doctor’s appointment). The notice also addressed the

alleged July 17 incident with Vaughn. The description

of the incident was “per Mr. Jeff Vaughn” and outlined

his view of the encounter. Vaughn claimed in the notice

that Benuzzi “has seemed very angry” and “complained

to several people including myself about not receiving

thank you notes from the kids in the school.” He

stated that he “feared for his safety.” The notice also

alleged that Benuzzi hung up on Watkins while Watkins

was still speaking to her on July 17, and stated that

several conference attendees had heard Watkins

exclaim that Benuzzi hung up on her at the time.

Benuzzi and her union representative contested the

charges. The union rep testified that Benuzzi had not

used a curse word in years and that she did not say

“those things” to Vaughn. Benuzzi testified that she

hung up because she thought Watkins was not on the

phone anymore. Watkins nevertheless found the charges

to be substantiated and recommended that Benuzzi

be suspended without pay for fifteen days. Benuzzi

appealed the suspension to the Board. A hearing officer

heard testimony from Watkins, Benuzzi, and her union

rep. He credited Watkins’ testimony and upheld the

14 No. 10-3021

suspension. Benuzzi testified that she has no evidence

that the hearing officer was influenced by her gender,

but she believes he inappropriately placed the burden

of proof on her rather than Watkins.

Benuzzi served her suspension in September. On

October 3, 2006, she filed a gender discrimination com-

plaint with the EEOC. In November, she sent Watkins

an unsolicited email in which she stated her willingness

to “work any hours assigned to [her].” In December,

Vaughn transferred out of Pershing and was replaced by

a male Grade II engineer, Sabian Haynes. Watkins sched-

uled Haynes to work the 6-2 shift and kept Benuzzi on

the 10-6 shift. On January 17, 2007, Benuzzi added allega-

tions of age, race, and disability discrimination as well

as retaliation to her EEOC claim.

On January 29, 2007, Benuzzi sent Watkins a one-sen-

tence email in which she asked to work the 6-2 shift

because Haynes was only a substitute. Watkins denied

the request via email the next day. Watkins stated that

she never “consider[ed] the rank of the individual in the

Grade II position, nor the position, as it relates to

the morning shift.” She also claimed that Benuzzi had

recently told her that she worked better in the evenings

and that she would “need to be off on many days

because of [her] stomach condition.” Watkins asked, “If

you are not able to come to work, who would open the

building?”

In late February or early March 2007, Benuzzi became

concerned about receipts that had gone missing from her

desk during her extended absence the previous June.

No. 10-3021 15

She believed that Vaughn took the receipts and had

been inappropriately reimbursed for the expenditures

they detailed. After emailing back and forth with

Watkins and assistant principal Anderson, Benuzzi

approached Anderson in person on the afternoon of

March 16, 2007, to ask how long the school retained

receipt records. Anderson led Benuzzi over to Watkins,

who was standing in the hallway having a conversation

with a member of the local school council. Benuzzi

asked Watkins her question, and Watkins raised her

voice and told Benuzzi the budget was closed and that

she would not look into the matter. Benuzzi attempted

to explain that she believed Vaughn had misappro-

priated school funds, and Watkins told her to call the

union. As Benuzzi walked away, she saw a student

sitting on a nearby bench. She testified that she told him,

“Sorry about that, we were a little loud.” She then heard

Watkins say to the school council member, “Do you see

how she talks to me?”

A few days later, Benuzzi met with Watkins, Vaughn,

and some union representatives to discuss the alleged

misappropriations. Vaughn was not disciplined. On

March 21, 2007, however, Benuzzi received a Notice of

Disciplinary Action. The notice did not mention the

receipt controversy. It alleged only that Benuzzi had

approached a student on March 16 (the day of the

receipt incident) and stated, “Do you see how your princi-

pal acts? You shouldn’t even go to this school. It’s a

disease.” Benuzzi denied the allegations, which Watkins

attributed to a note purportedly submitted by the

student who had been on the bench at the time of Benuzzi

16 No. 10-3021

and Watkins’ hallway dispute. Watkins recommended

that Benuzzi serve another fifteen-day suspension.

Benuzzi appealed to the Board, but the suspension was

upheld.

On May 4, 2007, several custodians were absent.

Watkins asked Benuzzi about the appropriate protocol

to ensure that necessary tasks were still completed.

Benuzzi outlined a plan and suggested that Watkins

assign overtime to the custodians who would have to

pick up the slack. Watkins claimed that no overtime

funds were available and sent Benuzzi an email later

that afternoon instructing her to have a custodian

empty the garbage on the second floor before he left for

the day. Benuzzi claims she did not receive the email; the

custodian left without completing the requested task.

According to Watkins, Benuzzi later approached her

while she (Watkins) was emptying the trash on the

second floor and offered to help. Watkins said, “Jessica,

you do this all the time,” to which Benuzzi loudly re-

sponded, “You lie, you lie, you lie.” Benuzzi denies ever

saying that and offers testimony from custodian

Osceola Tines that she never heard a conversation “in

which Ms. Watkins’ truthfulness was called into ques-

tion.” Watkins detailed the incident in a Notice of Disci-

plinary Action, however, and later found the charges

substantiated. Watkins recommended that Benuzzi serve

a third fifteen-day unpaid suspension. Benuzzi appealed

the suspension. Like the others, it was upheld. Benuzzi

updated her EEOC charges on June 6.

The 2007-2008 and 2008-2009 school years were rela-

tively uneventful compared to the 2006-2007 school year.

No. 10-3021 17

In July 2007, Benuzzi again asked Watkins if she could

switch to the 6-2 shift. Watkins denied Benuzzi’s

request, though she eventually changed Benuzzi’s hours

in January 2009. In December 2007, the Board evaluated

Pershing’s cleanliness and awarded it a near-perfect

score. In March, Benuzzi updated her EEOC charges

again. Sometime during the summer of 2008, Watkins

gave Benuzzi her first formal evaluation. (The defendants

claim that a computer glitch listing Benuzzi as an em-

ployee of Douglas Academy prevented them from

formally evaluating Benuzzi earlier.) Benuzzi scored

96.2/100 overall and received a 95 in “personal relations.”

On five occasions ranging from July 2008 to June 2009,

Benuzzi asked Watkins to discipline custodian Tines for

insubordination. Watkins investigated but never disci-

plined Tines. She emailed Benuzzi and said “[t]here is

nothing to discuss regarding Ms. Tines. She has com-

pleted the work you asked her to do. . . . I stated this to

you in previous meetings, it is the tone you take with

certain members of the custodial staff that you could

work to improve relations with your team.”

In March 2009, the EEOC issued Benuzzi a right-to-sue

letter. She filed suit against Watkins and the Board on

June 9, 2009. In her complaint, she alleged that the defen-

dants violated Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., by discriminating against her

on the basis of her gender and race and by retaliating

against her for filing charges with the EEOC. She also

alleged that they violated the Equal Protection clause, U.S.

Const. amend. XIV; 42 U.S.C. § 1983, the Age Discrimina-

tion in Employment Act, 29 U.S.C. § 621 et seq., and the

18 No. 10-3021

Americans with Disabilities Act, 42 U.S.C. § 12112 et seq.

Three days after Benuzzi filed her complaint, Watkins

and Anderson conducted annual employee evaluations.

Benuzzi requested an evaluation, and Watkins refused

to give her one. Watkins also refused to give Benuzzi

a Pershing hat, which employees received along with

their evaluations.

A few days later, Watkins waived service of the com-

plaint. A few days after that, on June 23, she presented

Benuzzi with a cautionary notice (relating to the June 12

evaluation incident, of which the defendants provide

a markedly different account) and held out a pen so

Benuzzi could sign it. Benuzzi took the pen from Watkins’

hand and wrote “RTS,” meaning “Refuses to Sign,” on

the notice. Watkins allegedly felt threatened by the

manner in which Benuzzi took the pen and notice from

her, which she described as “snatching.” She filed a

formal request with the Board to have Benuzzi removed

from the school because she feared for her safety. The

Board initially agreed to remove Benuzzi, but determined

the next day that Benuzzi’s union contract prevented

such an action. There is no evidence indicating that

Benuzzi was aware of Watkins’ request or the Board’s

willingness to accede to it at the time.

Benuzzi initially sat for her deposition on December 17,

2009. Her testimony was cut short, however, when Watkins

had to leave to attend to a family emergency. Benuzzi

resumed and completed her deposition on February 25,

2010. Watkins was present. The next day, Watkins

issued Benuzzi a memorandum restricting her presence

at Pershing to the hours of 5:45 a.m. to 2:15 p.m., even

No. 10-3021 19

in the event of an emergency, unless she obtained per-

mission from Watkins or the new assistant principal,

Tamara King. Watkins also issued a lengthy Notice of

Disciplinary Action that referenced nine separate

incidents dating back to October 2009. The notice enumer-

ated various transgressions, all of which Benuzzi

disputes or denies entirely, such as failure to answer a

walkie-talkie, failure to turn on the heat, failure to

remove tables from the lunchroom, failure to complete

agendas for custodial staff meetings, the falsification

of information to discipline a subordinate, and the

physical assault of custodian Armour. The most recent

(and most serious) incident, the alleged assault of Armour,

occurred on February 2, 2010, three weeks prior to the

issuance of the notice.

After Watkins moved to dismiss the suit, Benuzzi

conceded that all but her § 1983 claims against Watkins

were coterminous with those naming the Board, in

whose official capacity Watkins was undisputedly act-

ing. Benuzzi consented to dismissal with prejudice of the

non-§ 1983 claims against Watkins. Watkins and the Board

then moved for summary judgment on Benuzzi’s remain-

ing claims. The district court granted their motion in full

and later denied Benuzzi’s Rule 59 motion for recon-

sideration. Benuzzi appeals only the grant of summary

judgment on her Title VII gender discrimination

and retaliation claims.

III. Discussion

Summary judgment is warranted when “the movant

shows that there is no genuine dispute as to any

20 No. 10-3021

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). To survive

summary judgment, a nonmovant must be able to show

that a reasonable jury could return a verdict in her favor;

if she is unable to “establish the existence of an element

essential to [her] case, and on which [she] will bear the

burden of proof at trial,” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986), summary judgment must be granted.

We review de novo the district court’s determination

that the requirements of Rule 56(a) have been met. Ellis

v. CCA of Tenn. LLC, ___ F.3d ___, No. 10-2768, 2011 WL

2247384, at *4 (7th Cir. June 9, 2011).

A. Gender Discrimination

Benuzzi contends that the Board, acting through

Watkins, discriminated against her on the basis of her

gender. She relies exclusively on the indirect method, see

McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802 (1973),

to argue that genuine issues of material fact preclude

summary judgment for the defendants. To survive sum-

mary judgment under the indirect method, Benuzzi must

first establish a prima facie case of discrimination by

showing evidence of the following elements: (1) she is a

member of a protected class; (2) she was meeting her

employer’s legitimate expectations; (3) she suffered an

adverse employment action; and (4) similarly situated

individuals outside the protected class were treated

more favorably than she. Farr v. St. Francis Hosp. & Health

Care Ctrs., 570 F.3d 829, 833 (7th Cir. 2009). If Benuzzi

can make that showing, the Board must then provide a

No. 10-3021 21

nondiscriminatory reason for the employment action. If

it does, the burden shifts back to Benuzzi, who must

show that a jury could find that proffered reason is

pretextual. See id. “Although intermediate burdens shift

back and forth under the McDonnell Douglas framework,

the ultimate burden of demonstrating that the defendant

intentionally discriminated always remains with the

plaintiff.” Hudson v. Chi. Transit Auth., 375 F.3d 552, 561

(7th Cir. 2004); see also Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 147 (2000) (“[I]t is not enough . . . to

dis believe the employer; the factfinder must believe the

plaintiff’s explanation of intentional discrimination.”

(quotation omitted)).

Benuzzi argues that the district court erred in its evalua-

tion of the latter three elements of the prima facie case.

She contends that her “outstanding” 2007-2008 evalua-

tion, coupled with the Board’s two glowing reviews

of Pershing’s cleanliness, establishes that she was

meeting the Board’s legitimate expectations. She also

argues that Watkins’ failure to evaluate her as regularly

as required by the Illinois School Code, 105 Ill. Comp.

Stat. 5/34-8.1, “preclude[s] her from disputing that

Plaintiff met the Defendants’ legitimate performance

expectations,” and, moreover, that Watkins’ asserted

reasons for suspending her were false and pretextual.

Benuzzi claims that pretext is also suggested by the

Board’s appeals process. Benuzzi next avers that the

district court inappropriately confined its analysis of

adverse employment actions to her suspensions, which

in her view are a mere portion of a discriminatory “course

of action.” Finally, she challenges the district court’s

22 No. 10-3021

determination that she failed to identify a better-

treated comparator. The district court found that

Benuzzi’s status as a supervisor and her failure to

identify any coworkers who engaged in similar conduct

without being similarly disciplined precluded her from

satisfying this element. Benuzzi asserts that Vaughn and

other Grade II engineers are comparable to Grade V-II

engineers. She further asserts that she never engaged

in inappropriate conduct and that even if she did,

the record establishes that Vaughn engaged in similar

conduct.

We need not get bogged down by most of these argu-

ments. “The prima facie case and pretext inquiries often

overlap; we may skip the analysis of a plaintiff’s prima

facie case and proceed directly to the evaluation of

pretext if the defendant offers a nondiscriminatory ex-

planation for its employment decision.” Adelman-Reyes

v. St. Xavier Univ., 500 F.3d 662, 665 (7th Cir. 2007); see also

Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 477-78

(7th Cir. 2010). The defendants offered facially nondis-

criminatory reasons for Benuzzi’s three suspensions, the

only relevant employment decisions for purposes of

Benuzzi’s discrimination claim. See Whittaker v. N. Ill.

Univ., 424 F.3d 640, 647 (7th Cir. 2005). Benuzzi would

prefer that we broaden the scope of our review to

include, essentially, the “cumulative effect of individual

acts,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115

(2002), or, as she calls it, Watkins’ “course of action”

against her, but she has raised a discrimination claim, not

a hostile work environment one, see Vance v. Ball State

Univ., ___ F.3d ___, No. 08-3568, 2011 WL 2162900 at *4 (7th

No. 10-3021 23

Cir. June 3, 2011). Moreover, she has failed to demonstrate

that those actions, namely the cautionary notices and

disfavored scheduling, had any tangible job consequences

such that they constitute independent bases of liability

under Title VII. See Johnson v. Cambridge Indus., Inc., 325

F.3d 892, 901 (7th Cir. 2003) (“At the very least, [plaintiff]

must show some quantitative or qualitative change in

the terms or conditions of his employment that is

more than a mere subjective preference.”); see also Lloyd

v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009)

(“[W]ritten reprimands without any changes in the

terms or conditions of . . . employment are not adverse

employment actions.”); Grube v. Lau Indus., Inc., 257 F.3d

723, 728 (7th Cir. 2001) (“Lau’s decision to change Grube’s

working hours certainly does not rise to the level of an

adverse employment action. Grube’s pay and job title

remained the same, and she suffered no significantly

diminished job responsibilities.”).

The question before us therefore becomes whether a

reasonable jury could conclude that the Board’s asserted

reasons for suspending Benuzzi were pretextual. To show

pretext, Benuzzi must show not only that the Board’s

stated reasons for suspending her were dishonest or

phony, but also that the true reason was based on pro-

hibited discriminatory animus. McGowan v. Deere & Co.,

581 F.3d 575, 581 (7th Cir. 2009). She “must do more than

simply allege that an employer’s stated reasons are inac-

curate; [s]he must still have some circumstances to

support an inference that there was an improper motiva-

tion proscribed by law.” Id. This is where her discrimina-

tion claim falters. No reasonable jury could find that

24 No. 10-3021

Benuzzi has made the requisite showing of gender-based

discriminatory animus. Even if we assume that Watkins

cut her accounts of every incident for which she dis-

ciplined Benuzzi from whole cloth, which is essentially

what Benuzzi contends, there is nothing in the record

that so much as hints that she did so because of Benuzzi’s

gender. It is clear even from the cold record that Benuzzi

and Watkins harbored a heated dislike for one another,

but Benuzzi has not presented evidence supporting

the inference that Watkins’ antipathy toward her

stemmed from her sex. Cf. Uhl v. Zalk Josephs Fabricators,

Inc., 121 F.3d 1133, 1137 (7th Cir. 1997) (“A personality

conflict doesn’t ripen into an ADA claim simply because

one of the parties has a disability.”). And to the extent

that the hearing officer’s evaluation of her appeals is

relevant, Benuzzi testified expressly that she had no

basis from which to conclude that his rulings were in-

fluenced in any way by her gender. Without some sem-

blance of a link between her gender and the adverse

employment actions she experienced, Benuzzi’s discrimi-

nation claim is destined to fail. The district court correctly

granted summary judgment in the defendants’ favor.

B. Retaliation

Benuzzi also contends that the Board, again through

Watkins, impermissibly retaliated against her after she

filed (and continually updated) charges of discrimination

with the EEOC. See 42 U.S.C. § 2000e-3(a). She further

claims that she experienced retaliation in connection

with her prosecution of this related lawsuit. She points

specifically to her receipt of a cautionary notice less than

No. 10-3021 25

a week after Watkins waived service of the complaint

and a lengthy Notice of Disciplinary Action the day

after she gave her deposition. Benuzzi did not seek to

amend her complaint to include these latter incidents,

but plaintiffs in federal court are not required to

plead with precision legal theories or detailed facts. See

Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir.

2010) (finding waiver inappropriate even though retalia-

tion plaintiff failed to plead “participation clause” of Title

VII’s anti-retaliation provision). In any event, neither

the defendants nor the district court sought to prohibit

Benuzzi from relying on these new facts, which she

presented for the first time in the statement of additional

facts accompanying her summary judgment response.

To the contrary, the only four paragraphs of her state-

ment that the district court explicitly considered were

the paragraphs presenting these very facts, which the

district court directly addressed near the conclusion of

its order and opinion. See Benuzzi, 2010 WL 2169488, at *9.

We likewise consider these litigation-related facts in

our evaluation of Benuzzi’s retaliation claim.

As with her discrimination claims, Benuzzi may prove

her Title VII retaliation claims by using either the direct or

indirect methods. Silverman v. Bd. of Educ. of City of Chi., 637

F.3d 729, 740 (7th Cir. 2011). Benuzzi attempts to make

her case under both methods. We need only look to her

showing under the direct method, however, to conclude

that she has presented sufficient evidence of retaliation

to proceed to trial.

To avoid summary judgment on a retaliation claim

under the direct method, Benuzzi must produce evi-

26 No. 10-3021

dence from which a jury could conclude: “(1) that she

engaged in a statutorily protected activity; (2) that she

suffered a materially adverse action by her employer; and

(3) there was a causal link between the two.” Id. There is

no real dispute that Benuzzi has satisfied the first ele-

ment. Filing charges with the EEOC and pursuing a

lawsuit in an attempt to vindicate those charges are

“the most obvious form[s] of statutorily protected activ-

ity.” Id.

The next query is whether Benuzzi has demonstrated

that she suffered a materially adverse action as a conse-

quence of her protected behavior. “Materially adverse

actions” are those that might dissuade a reasonable

employee from engaging in protected activity, Burlington

N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006); this

category sweeps more broadly than the “adverse employ-

ment actions” required to sustain a discrimination claim,

see Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 868

(2011). Benuzzi’s suspensions without pay, the second of

which she alleges was retaliatory, undoubtedly satisfy

the materially adverse standard. See, e.g., Ellis, 2011 WL

2247384, at *7 (“There is no question that the suspension

could qualify as an adverse employment action.”). Equally

clear is that Watkins’ request to have Benuzzi removed

from Pershing (which Benuzzi characterizes as a “demo-

tion”) does not. Benuzzi was never in fact removed or

demoted, even temporarily; an empty threat that quickly

dissipates before the employee becomes aware of it does

not constitute a materially adverse action.

Whether the Notice of Disciplinary Action and hours

restriction memorandum she received the day after she

No. 10-3021 27

gave her deposition were materially adverse present

much closer questions that will be best resolved by a jury.

Generally, written warnings, standing alone, do not

constitute materially adverse actions, see Lloyd, 552 F.3d

at 602; Johnson, 325 F.3d at 902.; the post-complaint cau-

tionary notice does not trouble us. But context is a

crucial consideration in Title VII retaliation actions,

Burlington, 548 U.S. at 69, and in this context, we agree

with Benuzzi that the sweeping Notice of Disciplinary

Action citing petty misdeeds that allegedly occurred

months ago, coupled with the unexplained memorandum

restricting her access to Pershing, “could constitute an

adverse action within the meaning of the direct method of

proving retaliation,” Silverman, 637 F.3d at 741. A reason-

able employee could be deterred from filing a discrim-

ination complaint or participating in a deposition if

doing so would be followed by the (highly probable)

possibility of discipline for activities he may have long

forgotten and the limitation of his ability to be present at

his workplace without first obtaining permission from his

boss. Cf. Lang v. Ill. Dep’t of Children & Family Servs., 361

F.3d 416, 420 (7th Cir. 2004) (“Lang’s evidence raises

the inference that Beckelman was setting him up to

fail . . . .”).We leave that question for a jury to assess in the

first instance, since we also find that Benuzzi has pre-

sented evidence from which a jury could infer that her

statutorily protected activities precipitated these actions.

Causality is typically one of the highest hurdles retalia-

tion plaintiffs must clear. Plaintiffs often look to timing

alone to make the jump, and Benuzzi is no exception.

She contends that because her second suspension was

28 No. 10-3021

subsequent and relatively proximate to the filing of her

first amended EEOC charge, the former must have

caused the latter two months later. (She does not mention

her third suspension, which came about two months

after the second and preceded her next round of EEOC

charges.) She makes the same contention with respect to

her deposition and the omnibus Notice of Disciplinary

Action and hours-restricting memo, which were

separated by only a day.

“The closer two events are, the more likely that the first

caused the second.” Loudermilk v. Best Pallet Co., 636 F.3d

312, 315 (7th Cir. 2011). Indeed, adverse actions occasion-

ally “come[ ] so close on the heels of a protected act that

an inference of causation is sensible.” Id. The incredibly

short span of time separating Benuzzi’s deposition, at

which Watkins was present, from her receipt of two

arguably adverse documents authored by Watkins might

reasonably give rise to the inference that the events were

linked. See id. (inference of causality reasonable where

employee discharged immediately after handing his

supervisor a note detailing allegations of discrimination);

Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009)

(inference of causality reasonable where supervisor

recommended termination the day after an employee

made a protected statement and employee was terminated

three days later); McClendon v. Ind. Sugars, Inc., 108 F.3d

789, 797 (7th Cir. 1997) (inference of causality reasonable

when two to three days separated employee’s protected

statement and termination). “A jury, not a judge, should

decide whether the inference is appropriate” here,

Loudermilk, 636 F.3d at 315, at least with respect to the

No. 10-3021 29

events that occurred after Benuzzi’s deposition, particu-

larly because no alleged intervening events might reason-

ably have justified the reprimands, see Davis v. Time Warner

Cable of Se. Wis., L.P., ___ F.3d ___, No. 10-1423, 2011

WL 2611303, at *9 (7th Cir. July 5, 2011). The two-month

time frame separating Benuzzi’s first amended EEOC

complaint and her second suspension is, without more,

insufficient to give rise to a similar inference. See, e.g.,

Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir.

2008) (“The approximate seven-week interval between

[plaintiff’s] sexual harassment complaint and her subse-

quent arrest/termination does not represent that rare

case where suspicious timing, without more, will carry

the day.”).

IV. Conclusion

Benuzzi has failed to demonstrate that the district court

abused its discretion in handling her Local Rule 56.1

submission or erred in dismissing her gender discrimina-

tion complaint at the summary judgment stage. We

A FFIRM those aspects of the district court’s judgment.

But there are genuine issues of material fact as to the

adverse nature of the actions the defendants took against

Benuzzi in the wake of her deposition, and whether

those actions were causally linked to Benuzzi’s partic-

ipation in this case. We therefore V ACATE the district

court’s grant of summary judgment on Benuzzi’s retal-

iation claim and R EMAND for trial.

7-21-11