Oest, Faye M. v. IL Dept Corrections

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3883

FAYE M. OEST,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF

CORRECTIONS,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 97 C 1339--Joe Billy McDade, Chief Judge.

Argued September 18, 2000--Decided February 14, 2001

Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit

Judges.

RIPPLE, Circuit Judge. Faye Oest worked as a

correctional officer for the Illinois Department

of Corrections ("Department") until she was

discharged under the Department’s progressive

discipline system. In this action, she alleges

that the Department violated Title VII of the

Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et

seq., when it (1) discriminated against her on

the basis of sex and (2) discharged her in

retaliation for her earlier filing of a charge

with the Equal Employment Opportunity Commission

("EEOC"). The district court granted summary

judgment for the Department. For the reasons set

forth in the following opinion, we affirm the

judgment of the district court.

I

BACKGROUND

A.

Ms. Oest began working for the Department as a

correctional officer in January 1992. She was

employed at the Hanna City Work Camp in Hanna

City, Illinois, until her discharge for cause in

November 1995, effective January 1996.

All correctional officers are supervised by

lieutenants and, above them, captains.

Lieutenants Pelphrey and Holley always supervised

Ms. Oest; the supervising captain varied. Captain

Reynolds, in his role as internal affairs

officer, conducted many of the investigations

into Ms. Oest’s alleged misconduct, as well as

supervised her during her probationary period

when she first began her employment with the

Department. In this latter role, he conducted her

final probationary evaluation and recommended

that Ms. Oest not be certified as a correctional

officer, the first time he ever had made such a

recommendation. He found problematic Ms. Oest’s

attendance, her miscounts of inmates, and her

difficulty relating to and following the orders

of Department staff. The warden’s office,

however, instructed Captain Reynolds to remove

his negative conclusion from Ms. Oest’s

evaluation.

B.

The Department utilizes a progressive system of

discipline under which management employs various

measures of correction and discipline as

infractions accrue. The process starts with

lesser measures, such as oral or written

reprimands; additional violations precipitate

suspensions and eventually termination.

During her period of employment at the camp, Ms.

Oest consistently received negative performance

evaluations. She also was given many reprimands

and suspensions for violating the Department’s

standards of conduct. Keeping in mind the

importance of the temporal relationship of the

various events in Ms. Oest’s employment history,

we shall chronicle the principal incidents

leading to Ms. Oest’s discharge.

1. Events prior to filing of EEOC

charge

In June 1992, Ms. Oest gave a co-worker an

oversized condom as a "joke" and later received a

written reprimand from Captain Reynolds for this

action. During the same period, in July 1992,

Captain Reynolds gave her an oral reprimand for

miscounting inmates. Ms. Oest was also required

in July to account for the number of sick days

she had used, even though she had a doctor’s

statement for all but one of the days taken.

In January 1993, Ms. Oest received counseling

after Lieutenant Pelphrey wrote her up for

failing to confiscate a visitor’s car keys. Ms.

Oest contends that the visitor did not have the

keys in her possession when she was searched. In

May 1993, Captain Roach asked Ms. Oest to have an

inmate redo a cleaning assignment that she had

supervised, a request apparently not given to

other correctional officers.

Ms. Oest was next referred for discipline by

Lieutenant Pelphrey in November 1993 for failing

to present on a timely basis a slip from her

physician concerning a medical restriction. Ms.

Oest claims that she received a one-day

suspension for the infraction, although

Department records indicate that only a written

reprimand was dispensed.

In January 1994, Ms. Oest received a three-day

suspension for allegedly ignoring a request in

December 1993 to search a female visitor. Ms.

Oest was referred for discipline after Officer

Barclay, a co-worker, reported that she had

refused Lieutenant Holley’s order to search the

visitor./1 Ms. Oest maintains that she did not

disobey an order to search nor was she ever given

a direct order to do so.

On January 24, 1994,/2 Ms. Oest requested a

four-hour "turnaround," a request at the

beginning of a shift to substitute accrued sick

days or other time off for a scheduled work

period. The request is usually, but not always,

granted if ten other officers are available.

Although other officers were present on the day

in question, Lieutenant Pelphrey denied Ms.

Oest’s request. Ms. Oest did, however, receive

turnarounds on other occasions.

Ms. Oest also submits that various officers

repeatedly requested to see her badge; she

received, on numerous occasions, counseling

sessions for not displaying the badge on her

coat. Her male counterparts, she claims, were not

similarly disciplined when they omitted their

badges from their work attire. Ms. Oest also

alleges that she, but not others, was repeatedly

asked if she had the proper number of stripes on

her coat. Yet some evidence exists that these

types of queries often occurred at role call,

when the supervisors could not see the shorter

Ms. Oest standing behind taller correctional

officers.

Ms. Oest also alleges other instances of

discriminatory treatment. She contends that she

was often criticized for initiating assignments

without consulting her supervisors. At other

times, she was reprimanded for lack of initiative

and for asking too many questions. Ms. Oest also

mentions that she was once required to search

inmates in the rain. The record indicates,

however, that Ms. Oest was responsible for

watching the camp’s main gate that day;

conducting the search outside permitted her to

watch the gate at the same time. Further, a male

officer similarly had been ordered to search

inmates in the rain. Ms. Oest claims that

Lieutenant Pelphrey once asked her how many

inmates she had shaken down and that he became

"violently upset" when she responded that she

would have kept count if he had requested it.

R.31, Oest Dep. at 86. To her knowledge, no male

officers were asked the same question.

Ms. Oest took a leave of absence from March

until July 1994. During this period, on June 21,

1994, she filed a charge with the EEOC, alleging

that the Department had discriminated against her

because of her sex.

2. Events after filing of EEOC charge

a.

Lieutenant Sisson, an internal affairs

investigator, was assigned to investigate Ms.

Oest’s EEOC complaint. He interviewed Captain

Reynolds and Lieutenants Holley and Pelphrey,

among others, in December 1994. In those

meetings, Lieutenants Holley and Pelphrey

expressed concern that the Department’s employee

review board had not sufficiently considered the

disciplinary referrals they had submitted

regarding Ms. Oest. Lieutenant Sisson responded

that better "documentation" would provide the

board with the necessary information to assess

the recommendations. R.31, Sisson Dep. at 46. He

noted that their referral packages to the board

often omitted relevant information, testimony, or

evidence. Lieutenant Sisson suggested, therefore,

that Lieutenants Holley and Pelphrey submit more

complete reports in the future to remedy these

"shortcomings in procedure." Id. at 42.

During this period, two of the lieutenants wrote

letters to the internal affairs division in which

they set forth their views on Ms. Oest’s

performance. Lieutenant Pelphrey wrote a letter

in late 1994 or early 1995 in which he alleged

that Ms. Oest showed signs of mental instability

and was "stalking" her supervisors. R.31, Ex.C at

2. Lieutenant Pelphrey wrote that the

"environment that this employee [Ms. Oest]

creates is nothing less than frightening." Id. In

that letter, Lieutenant Pelphrey also describes a

meeting that took place on October 27, 1994, at

which Lieutenant Holley stated that Lieutenant

Pelphrey and he "could not effectively supervise

[Ms. Oest] under the constant threat of legal

action." R.31, Ex.C at 1. According to Lieutenant

Pelphrey’s letter, that statement was "followed

by either she goes or we go." Id. Lieutenant

Holley also authored a memo to internal affairs

in early January 1995. He questioned whether Ms.

Oest had passed her agility test and wrote that

the supervisors’ "authority and supervisory

skills have been emasculated by upper

management." R.31, Ex.D at 2.

b.

Subsequent to Ms. Oest’s filing of the EEOC

complaint, she was written up for various minor

infractions, but at least two of those reports

were withdrawn. In February 1995, Captain Gossett

wrote up Ms. Oest for insufficiently cleaning a

van, an infraction for which she received a

three-day suspension in March. Ms. Oest claims,

however, that the vehicle did not need further

cleaning.

Ms. Oest’s step increase was withheld for

failure to meet Department objectives on April 1,

1995, and she took various leaves of absence from

April to July 1995.

Lieutenant Pelphrey issued Ms. Oest a written

reprimand in September 1995 for redoing a roster

on her personal computer at home in contravention

of policy prohibiting the removal of confidential

information from the work site. She received a

seven-day suspension. According to Ms. Oest,

Captain Gossett knew she was redoing the roster

and had given her permission to do so.

Also in September 1995, Ms. Oest was referred

for discipline by Lieutenant Pelphrey and Captain

Ward; in October, she was issued a ten-day

suspension for permitting the unauthorized

movement of an inmate.

Three additional events occurred, in close

succession, immediately prior to Ms. Oest’s

termination. First, in September 1995, she was

charged with telling inmate Manuel Cruz as he

exited the shower that he had "nice[-]looking

legs." R.31, Ex.A. Although Ms. Oest denies that

she made the statement, she received a thirty-day

suspension after Captain Reynolds initiated an

internal affairs investigation. Captain Reynolds

had received an inmate request slip detailing the

alleged incident, investigated it, and then

referred the matter for an employee review

hearing after consulting with a superior officer.

Curiously, however, Officer Barclay filled out

the request slip, forging Cruz’s name instead of

signing his own, in contravention of Department

policy. Officer Barclay was not disciplined for

this action; although Captain Reynolds had heard

rumors that Cruz had not authored the request

slip, Captain Reynolds did not discover until

"years after the fact" that Barclay had submitted

it instead of Cruz. R.31, Reynolds Dep. at 64.

Next, Ms. Oest, in violation of Department

rules, commented in October 1995 to fellow staff

and inmates about a disciplinary matter involving

her husband. (Ms. Oest’s husband is also a

correctional officer at the same facility.)

Captain Reynolds issued her a written reprimand,

and, following an employee review hearing, the

hearing officer concluded that progressive

discipline should be imposed.

It was further alleged that Ms. Oest, in

violation of a direct order, discussed with Cruz

the investigation into her "nice[-]looking legs"

comment in late October 1995. More specifically,

she allegedly showed Cruz reports and asked him

to change his statement. Ms. Oest admits she

spoke with Cruz twice but denies that she was

ordered not to talk to him. After an

investigation--prompted by an incident report

submitted by Lieutenant Pelphrey-- Captain

Reynolds recommended that Ms. Oest be referred

for an employee review hearing, a decision he

made in conjunction with the Department’s

superintendent and assistant warden. Ms. Oest’s

thirty-day suspension for the comment was changed

to a thirty-day suspension pending discharge. Ms.

Oest was discharged for cause on November 5,

1995, effective January 11, 1996, pursuant to the

Department’s progressive disciplinary policy.

Ms. Oest received a right to sue letter from the

EEOC on July 11, 1997. She filed the complaint at

issue in this appeal on September 26, 1997.

II

DISCUSSION

A. Standard of Review

We review de novo the district court’s decision

to grant summary judgment to the Department. See

Bellaver v. Quanex Corp., 200 F.3d 485, 491 (7th

Cir. 2000). Summary judgment is proper when the

"pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is

no genuine issue as to any material fact and that

the moving party is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c). The burden

on the moving party may be discharged by

demonstrating "that there is an absence of

evidence to support the nonmoving party’s case."

Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986). Because the primary purpose of summary

judgment is to isolate and dispose of factually

unsupported claims, the nonmovant may not rest on

the pleadings but must respond, with affidavits

or otherwise, "set[ting] forth specific facts

showing that there is a genuine issue for trial."

Fed. R. Civ. P. 56(e).

Factual disputes are "material" only when they

"might affect the outcome of the suit under the

governing law." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Thus, if the nonmoving

party fails to make a sufficient showing on an

essential element of her case, the moving party

is entitled to judgment as a matter of law

because "a complete failure of proof concerning

an essential element of the [nonmovant’s] case

necessarily renders all other facts immaterial."

Celotex, 477 U.S. at 323. Factual disputes are

"genuine" only "if the evidence is such that a

reasonable jury could return a verdict for the

[nonmovant]." Liberty Lobby, 477 U.S. at 248. The

evidence must create more than "’some

metaphysical doubt as to the material facts.’"

Johnson v. University of Wisconsin-Eau Claire, 70

F.3d 469, 477 (7th Cir. 1995) (quoting Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986)).

In deciding a summary judgment motion,

therefore, the district court must decide

"whether the evidence presents a sufficient

disagreement to require submission to a jury or

whether it is so one-sided that one party must

prevail as a matter of law." Liberty Lobby, 477

U.S. at 251-52. It must accept as true the

nonmoving party’s evidence and draw all

reasonable and justifiable inferences in favor of

that party. See id. at 255.

In the context of this case, we must determine

whether Ms. Oest presented sufficient evidence

from which a reasonable jury could find that (1)

she was treated less favorably than similarly

situated male officers because of her sex or (2)

the filing of her EEOC charge caused adverse

employment actions against her.

B. The Sex Discrimination Claim

Title VII prohibits an employer from treating an

employee less favorably with respect to

conditions of employment because of her sex. See

42 U.S.C. sec. 2000e-2(a)(1). To prevail on a

Title VII disparate treatment claim, a plaintiff

must establish that she is the victim of

intentional discrimination. See Jackson v. E.B.

Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999).

In a Title VII action, the plaintiff may

establish discrimination at the summary judgment

stage through either the "direct" or "indirect"

method. See Jackson, 176 F.3d at 982. We shall

examine this case under both methodologies.

1.

We first examine this case under the so-called

"direct" method. Under this methodology, the

plaintiff must establish her case through the

"thoroughly conventional" approach of "putting in

enough evidence, whether direct or, more

commonly, circumstantial, to create a triable

issue of whether the adverse employment action .

. . had a discriminatory motivation." Wallace v.

SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th

Cir. 1997) (internal citation omitted). When

employing the direct proof method, a Title VII

plaintiff also must demonstrate that the

discriminatory remark was causally related to the

adverse employment action at issue. See Robin v.

Espo Eng’g Corp., 200 F.3d 1081, 1089 (7th Cir.

2000).

Upon examination of the record, we believe that

the district court correctly held that Ms. Oest

had not provided sufficient evidence under this

method to create a triable issue of fact as to

whether sex was a motivating factor in the

Department’s decision to discipline and fire her.

As we have noted, allegedly discriminatory

remarks qualify as direct evidence if they are

"related to the employment decision in question."

Robin, 200 F.3d at 1089. In this respect,

temporal proximity is often crucial to the

inquiry. In Robin, for example, derogatory

remarks concerning the plaintiff’s age had been

made two years prior to his discharge. We held,

therefore, that these utterances could not be

considered direct evidence of discrimination. See

id. at 1089. A long time period between a remark

and an adverse employment action can defeat the

inference of a "causal nexus between the remark

and decision to discharge." Geier v. Medtronic,

Inc., 99 F.3d 238, 242 (7th Cir. 1996)

(discounting evidence of bad intent that occurred

a full year before the adverse action). Thus, if

the remarks are not "contemporaneous with the

discharge or causally related to the discharge

decision making process," they are insufficient

to create a triable issue of material fact

regarding discrimination. Id.

We also have considered the context in which the

remark was made to be a relevant factor in

determining causality. In Robin, for example, the

court dismissed the allegedly discriminatory

remarks as "random office banter" and

"conversational jabs in a social setting." 200

F.3d at 1089. Likewise in Geier, a casual comment

was made during a car trip, "a setting unrelated

to discussions" of the poor work performance that

eventually led to the plaintiff’s dismissal. 99

F.3d at 242; see also Kennedy v. Schoenberg,

Fisher & Newman, Ltd., 140 F.3d 716, 724 (7th

Cir. 1998) (noting that the alleged

discriminatory remark occurred in a "casual

setting unrelated to discussions regarding the

issues which led to plaintiff’s dismissal").

In this case, Captain Reynolds remarked in

January 1992 that the camp was "not the place for

women to work." We do not believe that this

comment fairly can be characterized as causally

related to the employment action of which Ms.

Oest complains. Captain Reynolds apparently made

the remark in 1992, around the time that the

initial decision to employ Ms. Oest was made.

Although Captain Reynolds recommended that Ms.

Oest not be certified after her probationary

period at the camp, that conclusion was

disregarded by his superiors. More importantly,

the remark was made almost four years prior to

Ms. Oest’s termination and two years prior to her

first suspension. Further, the comment was not

related to the decision-making process with

respect to Ms. Oest’s continued status. Although

Captain Reynolds did conduct the investigation

into the "nice[-]looking legs" statement, he did

not make the decision to terminate her

employment. He merely referred the matter to the

employee review board for a hearing.

Accordingly, we do not believe that Ms. Oest can

sustain a charge of discrimination under the

direct method.

2.

We next examine whether Ms. Oest has established

a triable case under the familiar indirect or

burden-shifting approach. Because employers

usually are "careful not to offer smoking gun

remarks indicating intentional discrimination,"

the burden-shifting test first elucidated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973), provides a means of evaluating

indirect evidence of discrimination at the

summary judgment stage. Robin, 200 F.3d at 1088.

Under the indirect method, the plaintiff must

establish a prima facie case of discrimination.

See McDonnell Douglas, 411 U.S. at 802; see also

Bekker v. Humana Health Plan, Inc., 229 F.3d 662,

672 (7th Cir. 2000). If the employer then offers

a nondiscriminatory reason for the employment

action, the plaintiff must submit evidence that

such an explanation is pretextual. See Bellaver,

200 F.3d at 493.

More specifically, a Title VII plaintiff

establishes a prima facie case of sex

discrimination by showing (1) she was a member of

a protected class; (2) she was meeting her

employer’s legitimate business expectations; (3)

she suffered an adverse employment action; and

(4) the employer treated similarly situated

employees outside the class more favorably. See

Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873,

876 (7th Cir. 1999). If the plaintiff fails to

establish this prima facie case, the employer is

entitled to summary judgment without the court’s

even reaching the two other steps of the

McDonnell Douglas analysis--the employer’s

articulating a legitimate, nondiscriminatory

reason for its action and the plaintiff’s burden

to demonstrate that the purported legitimate

reason was instead pretext for unlawful

discrimination. See McDonnell Douglas, 411 U.S.

at 802-04. Two parts of the prima facie case are

at issue here./3 We shall address each in turn.

a.

Only those acts resulting in adverse employment

actions are cognizable under Title VII. See,

e.g., Simpson, 196 F.3d at 876. Although we have

defined adverse employment actions "quite

broadly," Smart v. Ball State Univ., 89 F.3d 437,

441 (7th Cir. 1996), adverse actions must be

materially adverse to be actionable, meaning more

than a "mere inconvenience or an alteration of

job responsibilities." Crady v. Liberty Nat’l

Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.

1993). For example, a "materially adverse change

might be indicated by a termination of

employment, a demotion evidenced by a decrease in

wage or salary, a less distinguished title, a

material loss of benefits, significantly

diminished material responsibilities, or other

indices that might be unique to a particular

situation." Id. We have noted, however, that "not

everything that makes an employee unhappy is an

actionable adverse action. Otherwise, minor and

even trivial employment actions that ’an . . .

employee did not like would form the basis of a

discrimination suit.’" Smart, 89 F.3d at 441

(citation omitted). Because "adverse actions can

come in many shapes and sizes," Knox v. State of

Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996), it

is important to consider the particular factual

details of each situation when analyzing whether

an adverse action is material, see Bryson v.

Chicago State Univ., 96 F.3d 912, 916 (7th Cir.

1996).

It is undisputed that Ms. Oest’s suspensions and

ultimate termination are adverse employment

actions. Yet Ms. Oest mentions several other

incidents that do not constitute adverse

employment actions under our case law. For

instance, Ms. Oest points to various negative

performance evaluations that she received, but,

in Smart, we held that unfavorable performance

evaluations alone did not constitute adverse

employment actions. See id. at 442; see also Silk

v. City of Chicago, 194 F.3d 788, 801-03 (7th

Cir. 1999).

Nor do we believe that the oral or written

reprimands received by Ms. Oest under the

Department’s progressive discipline system can be

considered, on this record, as implicating

sufficiently "tangible job consequences" to

constitute an independent basis of liability

under Title VII. See Sweeney v. West, 149 F.3d

550, 556 (7th Cir. 1998) ("Absent some tangible

job consequence accompanying [the] reprimands, we

decline to broaden the definition of adverse

employment action to include them."). With the

benefit of hindsight, it can be said that, in

this case, each oral or written reprimand brought

Ms. Oest closer to termination. Such a course was

not an inevitable consequence of every reprimand,

however; job-related criticism can prompt an

employee to improve her performance and thus lead

to a new and more constructive employment

relationship. Moreover, Ms. Oest has not pointed

to any immediate consequence of the reprimands,

such as ineligibility for job benefits like

promotion, transfer to a favorable location, or

an advantageous increase in responsibilities. Cf.

Thomsen v. Romeis, 198 F.3d 1022, 1028 (7th Cir.

2000) (holding that the reprimands the plaintiff

had received might not, as the plaintiff

asserted, lead to future discipline and affect

his ability to compete for promotions and

concluding that "[t]hese consequences, considered

either individually or in conjunction with each

other, appear to be somewhat speculative").

Of course, even if the negative performance

evaluations or reprimands cannot, standing alone,

state a claim of discrimination, they can

constitute relevant evidence of discrimination

with respect to other employment actions that

clearly are adverse employment actions under the

statute./4 See Sweeney, 149 F.3d at 556

(explaining that although negative evaluations

may not constitute adverse employment actions,

they could be used as evidence of discrimination

under the right circumstances); see also Smart,

89 F.3d at 442./5

b.

The district court determined that Ms. Oest had

not demonstrated that she was treated any

differently than a similarly situated male

employee. We agree. The record does not support

the conclusion that the camp officials treated

her differently than a male corrections officer.

When we turn to the various incidents about

which Ms. Oest complains, we find only her own

conclusory assertions that her male counterparts

were treated differently. We previously have

upheld the entry of summary judgment against a

Title VII plaintiff who has presented only his

own uncorroborated, conclusory statements that

similarly situated co-workers were treated

differently. See, e.g., Bragg v. Navistar Int’l

Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998);

Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d

438, 446 (7th Cir. 1997).

Ms. Oest’s first suspension was initiated by

Lieutenant Holley when she refused to search a

female visitor. At the time in question, Ms.

Oest, although on her lunch break, was the only

female officer available. She claims disparate

treatment because Captain Roach did not

discipline a male officer who had complained

loudly when asked to search a visitor. Notably,

however, the male officer did not refuse to

undertake the search nor was the male officer the

only available officer of the appropriate sex.

Thus, he cannot be characterized as similarly

situated to Ms. Oest.

Ms. Oest also was suspended for failing to

ensure that a van was clean, for failing to

comply with written orders regarding confidential

information taken home, and for allowing the

unauthorized movement of an inmate. With respect

to the cleaning of the van and the unauthorized

movement of an inmate, Ms. Oest has offered no

evidence that any male officer had committed a

similar infraction. With respect to the order not

to bring confidential material home, the best she

can do is claim that a male officer had committed

an infraction similar to the misuse of

confidential material but was not disciplined.

This occurrence, however, is not within Ms.

Oest’s personal knowledge and thus, as the

district court noted, cannot satisfy her

evidentiary burden.

Ms. Oest’s other bases of comparison suffer from

similar infirmities. For example, she maintains

that she was reprimanded for the condom incident

while male officers who made sexual jokes and

brought in pornography were not disciplined. As

the district court noted, however, Ms. Oest’s

conduct went beyond possession of a sex-related

item. She had taken the item from her husband

after he was ordered to remove it from the

premises. It was only after Ms. Oest brought the

condom back on Department grounds that she was

punished. Ms. Oest was also reprimanded for

working in violation of her doctor’s orders. She

does not, however, present any evidence that her

male counterparts also worked in contravention of

a physician’s instructions but were not

disciplined.

Further, Ms. Oest submits that she was

disciplined for the failure to remove car keys

from a visitor but admits that she had been told

that a male officer was similarly disciplined.

She also argues that she was treated differently

regarding her matter of dress; specifically, she

was counseled for not having her badge on her

coat. Yet Ms. Oest, again, does not present

evidence that male officers were found without

their badges and not disciplined.

Indeed, the same shortcomings are evident with

respect to the other incidents to which Ms. Oest

points as evidence of discrimination, such as the

demand that she account for sick days used. Ms.

Oest has offered only her own conclusory

assertions, and not specific evidence, that any

male officer had committed conduct similar to

hers or that any similarly situated officer was

treated more favorably. As we have noted, such

uncorroborated generalities are insufficient to

support a Title VII claim. See, e.g., Bragg, 164

F.3d at 377; Cowan, 123 F.3d at 446.

The last three disciplinary incidents that

culminated in Ms. Oest’s discharge--the "nice[-

]looking legs" comment to the inmate, Cruz;

discussion with fellow staff about her husband’s

review hearing; and her conversations with Cruz

about the internal investigation regarding the

comment--occurred within approximately one month.

The district court correctly found that Ms. Oest

presented no specific evidence to support her

conclusory assertion that male officers routinely

discussed disciplinary incidents without being

disciplined. She also failed to show that any

male officer had been accused of making a sexual

comment to an inmate or of discussing the

resulting internal investigation with that

inmate. Ms. Oest compares herself to other staff

members who spoke with Cruz, but these officers

were not similarly situated because they were not

accused of making an inappropriate comment to

him. In short, there is no specific evidence that

any male officer had been accused of similar

infractions; there certainly is no evidence that

any male officer had committed three such

infractions in an analogously short period of

time and yet had escaped discipline.

C. The Retaliation Claim

The district court also entered summary judgment

for the Department on Ms. Oest’s retaliatory

discharge claim. It held that Ms. Oest had failed

to prove a causal connection between her EEOC

complaint and her termination. The court found

dispositive the time lapses that had occurred

between the filing of the complaint and the

adverse employment actions. Specifically, more

than a year passed between the filing of the

complaint and Ms. Oest’s discharge.

Ms. Oest nevertheless contends that the

requisite causal link was established. She points

out that, following the lodging of her EEOC

complaint, her supervisors wrote letters to the

Department’s internal affairs group intimating

that she had made spurious claims in the past./6

Ms. Oest also notes that she was disciplined for

failing to clean a Department van approximately

one month after the supervisors’ letters were

submitted. Thus, although some time passed

between filing the complaint and the allegedly

retaliatory acts, a very short lapse occurred

among Lieutenant Sisson’s interviews with Ms.

Oest’s supervisors, the letters to internal

affairs, and Ms. Oest’s next disciplinary

referral./7

Title VII prohibits employers from retaliating

against employees who contest allegedly

discriminatory acts. See 42 U.S.C. sec. 2000e-

3(a). A prima facie case of retaliation is

established when a plaintiff shows that (1) she

engaged in protected activity under Title VII;

(2) she suffered an adverse employment action

subsequent to her participation; and (3) there

exists a causal connection between the adverse

employment action and her participation in

protected activity. See Smart, 89 F.3d at 440.

In evaluating claims such as this one, we have

relied heavily on temporal proximity when

analyzing retaliation claims; specifically, a

"substantial time lapse . . . is counter-evidence

of any causal connection." Johnson, 70 F.3d at

480. We also have held, however, that

"[s]peculation based on suspicious timing alone"

does not support a reasonable inference of

retaliation; a causal link, again, is required.

Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918

(7th Cir. 2000). A mechanistically applied time

frame would ill serve our obligation to be

faithful to the legislative purpose of Title VII.

The facts and circumstances of each case

necessarily must be evaluated to determine

whether an interval is too long to permit a jury

to determine rationally that an adverse

employment action is linked to an employee’s

earlier complaint./8 The inference of causation

weakens as the time between the protected

expression and the adverse action increases, and

then "additional proof of a causal nexus is

necessary." Davidson v. Midelfort Clinic, Ltd.,

133 F.3d 499, 511 (7th Cir. 1998). Thus, we have

permitted retaliation charges to proceed in the

face of long intervals only when additional

circumstances demonstrate that an employer’s acts

might not be legitimate. See McKenzie v. Illinois

Dep’t of Transp., 92 F.3d 473, 485 (7th Cir.

1996).

Under the circumstances presented here, we

believe that the district court was correct in

its estimation that the delay was too attenuated

to support a jury verdict of retaliation. Ms.

Oest filed her EEOC complaint in June 1994; the

next disciplinary event, her alleged failure to

clean the van, occurred eight months later in

February 1995.

Ms. Oest’s strongest argument is that her

supervisors were engaging in a calculated effort

to build a case against her. Some of the

circumstances surrounding her alleged infractions

warrant our careful scrutiny; for example, that

Officer Barclay forged the inmate’s name on the

request slip; that Lieutenants Pelphrey and

Holley were told to document more extensively Ms.

Oest’s behavior; that the supervisors were upset

that their recommendations regarding Ms. Oest

were being ignored; and that the same few

officers had a hand in most of Ms. Oest’s

discipline. Also deserving of close scrutiny are

Lieutenants Holley’s and Pelphrey’s letters

suggesting that Ms. Oest’s charge was undermining

discipline and intimating that "either she goes

or we go."

Yet none of these instances, taken alone or

together, would support a jury verdict in Ms.

Oest’s favor on the retaliation claim. Ms. Oest

offers no evidence to link the forgery of the

inmate’s signature on the complaint, a disturbing

incident, to an argument that the underlying

event--her "nice[-]looking legs" remark--did not

occur. The remainder of the factors cataloged

above emerged from the internal investigation of

the conduct of Department officials, undertaken

in the wake of Ms. Oest’s filing of the EEOC

charge. The investigating officer’s suggestion

that the officers under investigation should have

kept better records is hardly evidence of

retaliation. The remarks of the officers under

investigation indicating that either Ms. Oest or

they had to leave, although intemperate, were

made in defense of the disciplinary actions that

they had taken against her. A supervisor’s

protestation that his authority was undermined by

allegations that his management practices were

discriminatory does little to establish

retaliation. Moreover, these remarks were not

made by those responsible for deciding Ms. Oest’s

employment status nor is there any indication

that these officers played a part in the final

decision to discharge her, a decision made many

months later./9 Most importantly, the discharge

came only after Ms. Oest committed three

additional infractions within a short time frame.

After close scrutiny of the record, we must

conclude that the district court properly

determined that the evidence simply would not

support a jury finding of retaliation.

Conclusion

Accordingly, the judgment of the district court

is affirmed.

AFFIRMED

FOOTNOTES

/1 Ms. Oest alleges that Officer Barclay later

repudiated this statement when questioned by the

union president.

/2 Ms. Oest submits in her affidavit and statement

of undisputed facts that this incident occurred

in January 1994. In her deposition, however, the

date is listed as November 1994.

/3 The district court correctly held that the second

prong, meeting the employer’s legitimate business

expectations, was not necessary to the analysis;

the people judging Ms. Oest’s performance were

the same she accused of discriminating against

her. See Flores v. Preferred Technical Group, 182

F.3d 512, 515 (7th Cir. 1999) (noting that courts

must apply the McDonnell Douglas test flexibly;

when an employee concedes that she was not

meeting her employer’s expectations but claims

that she was treated more harshly than other

rule-breakers, it makes "little sense in this

context to discuss whether she was meeting her

employer’s reasonable expectations").

/4 Similar principles permit time-barred claims to

be considered as evidence of other

discrimination. Specifically, although matters

that are not the subject of a complaint filed

within the prescribed time limit are not

actionable in themselves, they can constitute

relevant evidence of discrimination with respect

to other actions for which a complaint was

brought within the applicable time limitation.

See Mathewson v. National Automatic Tool Co., 807

F.2d 87, 91 (7th Cir. 1986) ("[E]vidence of

earlier discriminatory conduct by an employer

that is time-barred is nevertheless entirely

appropriate evidence to help prove a timely claim

based on subsequent discriminatory conduct by the

employer."); see also Kusak v. Ameritech Info.

Sys., Inc., 80 F.3d 199, 202 (7th Cir. 1996)

(same).

Therefore, even those instances that the

Department claims to be time-barred (an issue we

need not decide) could be relevant evidence of

discriminatory intent with respect to the other

actions that clearly are not time-barred.

/5 Ms. Oest contends that the denial of her

turnaround request is evidence of discrimination.

We do not believe that this rather routine

scheduling issue can be considered an adverse

employment action, especially since her request

was granted on other occasions. In any event, we

note that, depending on the number of other

officers working on a particular day, male

officers similarly did not always receive the

turnarounds they requested.

/6 Lieutenant Sisson, the officer conducting the

investigation of Ms. Oest’s allegations, at one

point in his deposition made the following

statement: "I would say that in some of our

conversations she has displayed some--some less-

than-ladylike outbursts, but nothing that I would

consider inappropriate." R.31, Sisson Dep. at 50.

Read in context, we think it would be difficult

to attribute gender bias to this particular

remark. It is not clear, moreover, that

Lieutenant Sisson made this remark to anyone in

the Department. In any event, he was not the

individual responsible for the decision to

discharge Ms. Oest. Nor has Ms. Oest demonstrated

that such a remark is an indication of bias in

Lieutenant Sisson’s internal investigation report

or that the report influenced the decision-maker.

/7 Lieutenant Sisson’s investigation took place in

December 1994, the letters to internal affairs

were written around December 1994 and January

1995, and Ms. Oest was disciplined in February

1995 for insufficiently cleaning a Department

van.

/8 A one-year lapse between the protected expression

and the employee’s termination, standing alone,

has been determined to be too attenuated to raise

an inference of discrimination. See Paluck v.

Gooding Rubber Co., 221 F.3d 1003, 1010 (7th Cir.

2000). Intervals of three months, see Sauzek v.

Exxon Coal USA, Inc., 202 F.3d 913, 918-19 (7th

Cir. 2000); four months, see Filipovic v. K&R

Express Sys., Inc., 176 F.3d 390, 399 (7th Cir.

1999); five months, see Davidson v. Midelfort

Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998);

nearly six months, see Juarez v. Ameritech Mobile

Communications, Inc., 957 F.2d 317, 321 (7th Cir.

1992); and eight months, see Adusumilli v. City

of Chicago, 164 F.3d 353, 363 (7th Cir. 1998),

similarly have been determined to be too long to

support an inference of retaliation.

/9 Although the officers participated in the

reporting and investigating of the principal

events leading to Ms. Oest’s discharge, their

role apparently was limited to referring the

matters to the employee review board. The hearing

officer made the ultimate decision to discharge

Ms. Oest.

Williams, Circuit Judge, dissenting in part. I

concur in the majority’s conclusion that Oest has

not provided sufficient direct or circumstantial

evidence to support her claim of discrimination.

I also agree with the majority that, with respect

to Oest’s retaliation claim, the eight-month time

lapse between the June 1994 EEOC complaint and

the alleged retaliatory actions by the Department

is insufficient by itself to support a causal

link. However, Oest points to other evidence

that, together with the reasonable inferences

that may be drawn from the evidence, is in my

judgment sufficient to raise a jury question on

the issue of causation.

Oest’s theory of causation focuses on the time

lapse between her supervisors’ discussion about

her EEOC complaint with an internal affairs

investigator, and the beginning of the

retaliatory actions she alleges. The interview

between Lieutenants Pelphrey and Holley and the

internal affairs investigator occurred in

December 1994. Within days of that interview,

Pelphrey and Holley authored letters critical of

Oest. Less than a month after the letters, Oest

was disciplined for the van incident. Further

incidents of discipline followed, which, after

Oest took time off in the summer, continued up

through the time of her discharge.

Oest’s theory of causation depends on two

assumptions: (1) that Pelphrey, Holley, and her

other supervisors first learned of Oest’s EEOC

claim when they were interviewed by the internal

affairs investigator; and (2) that the supervisor

who first disciplined her after she filed her

EEOC claim knew she had filed the claim despite

the fact that he was not interviewed by internal

affairs./1 Still, there is no evidence

contradicting these assumptions, and for summary

judgment purposes, Oest is entitled to favorable

inferences on both of these points.

Because I think that Oest has provided

sufficient evidence that would allow a reasonable

jury to find in her favor on the issue of whether

the 1995 incidents were causally connected to her

protected expression, I would Reverse the court’s

grant of summary judgment on Oest’s retaliation

claim and Remand for further proceedings, and to

that extent, I respectfully dissent.

FOOTNOTE

/1 The timing of her supervisors’ knowledge of

Oest’s EEOC complaint is important because her

suspensions and discharge are a product of

incidents reported by her supervisors, even if

they did not have final say on the discipline

imposed.