Johnson, Daryl L. v. Cambridge Industries ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1749
DARYL L. JOHNSON,
Plaintiff-Appellant,
v.
CAMBRIDGE INDUSTRIES, INCORPORATED
and MERIDIAN AUTOMOTIVE SYSTEMS,
INCORPORATED,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP00-1540-C-B/S—Sarah Evans Barker, Judge.
____________
ARGUED SEPTEMBER 19, 2002—DECIDED APRIL 9, 2003
____________
Before CUDAHY, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Not every genuine
difficulty on the job amounts to impermissible discrimina-
tion in violation of federal statutes. Instead, distinctions
like the difference between an “adverse employment ac-
tion” and lesser problems, or between an employee’s actual
performance and the employer’s perception of that perfor-
mance, abound. When Daryl Johnson sued his current
employer, Meridian Automotive Systems, Inc., as well as
its predecessor Cambridge Industries, Inc., alleging viola-
tions of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2 No. 02-1749
§§ 2000e et seq., the district court was required as a mat-
ter of law to observe these subtle distinctions when it
ruled on Meridian’s motion for summary judgment. The
district court was also entitled to rely on the materials
each party cited as a basis for its decision. We conclude
that the court correctly determined that Johnson did not
produce enough evidence to warrant a trial, although
some of our reasons for reaching this decision are differ-
ent from the district court’s. We therefore affirm the judg-
ment of the district court.
I
Since 1996, Johnson, an African-American male, has
worked as a production associate building fiberglass
automotive replacement parts for Cambridge Industries,
now owned by Meridian. Johnson has been an outstand-
ing employee with an excellent history of performance
evaluations and a company-wide reputation for high qual-
ity work. This generally favorable assessment of Johnson
is tarnished only by a single write-up, which was mistak-
enly given to Johnson on two separate occasions. The write-
up documents various employment-related problems on
Johnson’s part over an eight-month period.
When Cambridge advertised an opening for two team
leaders in May 1999, Johnson and white co-worker Josh
Goad applied for and were elected to these positions by
their colleagues. That positive event was clouded, however,
by two separate racist remarks made by co-workers Ross
Springman and Brian Durham that came to Johnson’s
attention more or less contemporaneously. Specifically,
when Springman was asked why he was not going to run
for the team leader position, he proclaimed that there
was no need to compete for that job since it was a fore-
gone conclusion who would receive the position. Pressed by
a co-worker to explain his comment, Springman apparently
No. 02-1749 3
said, “Eenie, meenie, minie, moe, pick a nigger by his toe,”
in reference to the fact that Johnson was a candidate for
the position. (In any event, Goad reported that he over-
heard Springman’s comment to this effect.) In an unre-
lated incident, Durham told co-worker Travis Irvine that
he did not know why Irvine would “want that one-eyed
nigger over here.” The comment could only have referred
to Johnson, who lost the sight in one of his eyes as a
child. Neither Springman nor Durham was a supervisor
of Johnson, and both received some form of manage-
ment censure. Springman was suspended for three days
(and served at least one day of his suspension), and Dur-
ham’s employment was terminated, although the record
does not establish whether or not he left Cambridge
voluntarily, and whether his departure was in response
to his racist remark.
Shortly after Johnson and Goad complained to manage-
ment about these racist remarks, the company announced
that it was rescinding altogether the positions of team
leader to which the two had been elected. When asked
by Johnson to explain, Acting Plant Manager Ron Szydlow-
ski told him, “[I]t came down from corporate that there
will be no other team leader positions, just the ones that
are already appointed previously.” Johnson asserted in
his deposition and affidavit that in the fall of 1999, Goad
was put in a team leader position, but Johnson was not.
He did not call any other evidence of such a promotion
to the district court’s attention, however, which led to
problems we discuss below.
Other facts pertinent to Johnson’s appeal relate to
both his race discrimination and retaliation charges. For
example, on October 15, 1999, Johnson injured his back
on the job and went to a local hospital emergency room
for treatment. The doctor prescribed painkillers and rec-
ommended a lumbar back support brace for him. None-
theless, upon his return to work a few days later, he
4 No. 02-1749
was assigned to work that aggravated his injury. The
company would not permit him to work while taking cer-
tain prescription medications. Worse, despite the prom-
ises from company officials that he would receive the
back brace through a company program, he did not get
the brace until he produced a doctor’s prescription and
told the company his waist size. Johnson believed that
this treatment was in retaliation for his complaints about
racial discrimination in the workplace. Likewise, Johnson
asserts that he was assigned harder tasks than his
white co-workers and was left to perform these tasks
alone, which, because of the racial lines these assignments
reflected, also evidenced a discriminatory workplace. Fi-
nally, Johnson offers evidence of various encounters with
Cambridge’s management as proof that he was the vic-
tim of discrimination and impermissibly retaliated against
for engaging in protected conduct. These encounters in-
clude (among other things) being told by a supervisor to
wear safety goggles; receiving a warning about alleged
violations of Cambridge’s vacation policy; receiving a
written notification of nine instances of unsatisfactory job
performances that spanned a period of eight months; and
being threatened with termination for insubordination.
Johnson filed his first charge with the Equal Employ-
ment Opportunity Commission (EEOC) on October 18,
1999. A week later he filed a second charge with the EEOC
alleging that Cambridge retaliated against him for filing
the first charge. Curiously, neither complaint alleges that
Johnson was denied the promotion to team leader for im-
permissible or discriminatory reasons. The EEOC issued
right-to-sue letters in both cases, and Johnson subsequently
filed this lawsuit against both Meridian and Cambridge on
October 4, 2000. (Johnson’s claims against Cambridge are
stayed because Cambridge in the meantime has filed for
bankruptcy, and thus it is protected by the automatic stay.
This does not affect our substantive analysis, however, and
No. 02-1749 5
procedurally the case is properly here because the district
court entered a judgment pursuant to FED. R. CIV. P. 54(b)
with respect to Meridian. Because all of the conduct at
issue occurred while Johnson was employed by Cambridge,
we sometimes refer to both defendants as Cambridge.)
II
Our review of the district court’s decision to grant sum-
mary judgment for Meridian is de novo. Gordon v. United
Airlines, 246 F.3d 878, 885 (7th Cir. 2001). In deciding
the appeal, we draw our own conclusions of law and fact
from the record and will uphold summary judgment in
Meridian’s favor only if there is no genuine issue of mate-
rial fact and Meridian is entitled to judgment as a mat-
ter of law. Id. See also FED. R. CIV. P. 56(c).
It is now well established that a plaintiff may show
that she was the victim of discrimination or impermis-
sible retaliation in the workplace either by providing di-
rect evidence of discrimination or by proceeding under
the indirect, burden-shifting method of McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973). See Wallace v.
SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997).
In spite of the alleged racist comments from certain co-
workers, Johnson lacks direct evidence of race discrim-
ination or retaliation and thus is proceeding under the
McDonnell Douglas burden-shifting method.
The McDonnell Douglas approach requires a plaintiff
first to establish certain prima facie elements for either
race discrimination or retaliation. See Reeves v. Sander-
son Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Once
this is done, through competent evidence, the burden
of production shifts to the defendant to offer a permissible,
noninvidious reason for the alleged discrimination. Id.If the defendant meets this production burden, the plain-
6 No. 02-1749
tiff may then rebut that evidence by showing that the
employer’s reasons are a pretext for discrimination or
that the decision was tainted by impermissible, race-based
motives. Id. at 143; see also Gordon, 246 F.3d at 886. “ ‘The
ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plain-
tiff remains at all times with the plaintiff.’ ” Reeves, 530
U.S. at 143 (quoting Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)).
A. Failure to Promote Claims
As the district court noted, Johnson’s complaint that
he was denied the team leader promotion can be read to
state a claim of either race discrimination or retaliation.
Therefore we analyze it under both theories. To establish
a prima facie case for race discrimination, Johnson must
show that he belongs to a protected class, that he was
performing his job at Cambridge to his employer’s satis-
faction, that he suffered an adverse employment action, and
that a similarly-situated employee who was not a mem-
ber of a protected class was treated more favorably by
Cambridge. Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285,
289 (7th Cir. 1999). The prima facie case for a retaliation
claim requires the plaintiff to show “that (1) after lodging
a complaint about discrimination, (2) only he, and not
any otherwise similarly situated employee who did not
complain, was (3) subjected to an adverse employment
action even though (4) he was performing his job in a
satisfactory manner.” Stone v. City of Indianapolis Pub.
Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002). See also Hilt-
Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).
Stone clarifies that to establish a prima facie case of
retaliation, an employee need not present proof of a “ ‘causal
link’ between the protected expression in which the plain-
tiff engaged (as by filing a complaint about an unlawful
No. 02-1749 7
act by his employer) and the adverse employment action
of which he is complaining.” Stone, 281 F.3d at 642; Hay-
wood v. Lucent Techs. Inc., No. 01-4092, 2003 WL 1400496,
*5 (7th Cir. Mar. 20, 2003).
Before examining Johnson’s failure-to-promote claim, we
must clarify whether we are talking about events limited
to the May 1999 abolition of the team leader position,
or whether there is evidence in this record that supports
the claim Johnson now emphasizes, which is that the
company’s promotion decisions must be assessed under
the broader time frame that includes Goad’s alleged fall
1999 promotion. Meridian argues first that Johnson waived
this point by admitting in his deposition that the only
denial of an employment opportunity he was complain-
ing about was the loss of the team leader position in
May 1999. D. Johnson Deposition at 147. We do not find
the comment, which has no reference to the date on the
page to which Meridian refers us, to be so clear. The more
important question, however, is whether Johnson met
his burden of directing the district court’s attention to
admissible evidence that Goad was later promoted.
Johnson’s own deposition and affidavit make it quite
clear that he sees this as a case where both men applied
for the team leader position, that both temporarily lost
it because of their complaints about discrimination, but
that later on only Goad received the promotion. (Johnson
speculates this happened because his was the louder
voice in the earlier complaints.) In addition, Johnson now
asserts, Meridian admitted in a filing to the court that
Goad was indeed subsequently given the team leader job,
and that this amounted to a promotion. In Meridian’s
reply to Johnson’s Statement of Additional Material Facts
pursuant to Local Rule 56.1, ¶ 102, the company re-
sponded to Johnson’s statement that “In the Fall of 1999,
Josh Goad was given the job of Team Leader but Daryl
Johnson was not” as follows: “Solely for the purpose of this
motion, Meridian will assume this fact exists without
8 No. 02-1749
controversy.” When pressed at oral argument before this
court to explain why the company answered this question
as it did rather than with a denial, the best that counsel
for Meridian could do was to suggest that the company’s
reply had been an inadvertent mistake. (There is some
plausibility to this claim, given the fact that the state-
ment occurs in the very same document that had Meridian’s
replies to Johnson’s responses to its own Statement of
Material Facts, and in those replies it unequivocally stated
that Goad “was not made a team leader at any time be-
tween May 1999 and the date of his resignation.” Reply to
¶ 33. We do not rely on any such inadvertence to excuse
the company’s willingness to assume this fact for pur-
poses of the summary judgment motion, however, given
the rule that facts are to be taken in the light most favor-
able to the non-moving party at summary judgment.)
If Johnson had made any use of that statement in his
filings with the district court in response to the summary
judgment motion, this would be a different case. But he
did not. Instead, he supported his assertion that Goad
received the later promotion only with a reference to
his own deposition and to his own affidavit. He did not
indicate why or how he had personal knowledge about
Goad’s employment status with the company. In fact,
Meridian specifically directed the court’s attention to the
affidavit of Keith Kniepkamp, who was the Corporate
Director of Human Resources for Meridian. Kniepkamp
stated that Goad was a production associate until he
quit his employment at Cambridge during the summer
of 2000, and that Goad was never promoted to team leader
during the time of his employment at Cambridge. Thus,
the district court had before it Johnson’s unsupported
assertion that Goad received the promotion while he
was still with the company, in the fall of 1999, and the
Human Resources Director’s affidavit to the contrary.
No. 02-1749 9
While it may seem unfair to hold Johnson to the evi-
dence he cited to the district court, it is not. Discovery
is notorious for producing far more material than the
parties will ultimately use. We have repeatedly assured
the district courts that they are not required to scour
every inch of the record for evidence that is potentially
relevant to the summary judgment motion before them.
See, e.g., Greer v. Board of Educ., 267 F.3d 723, 727 (7th
Cir. 2001); Little v. Cox’s Supermarkets, 71 F.3d 637, 641
(7th Cir. 1995) (citing Anderson v. Liberty Lobby, 477 U.S.
242 (1986)). The rules of each district court structuring
the summary-judgment process cannot serve their func-
tion if parties can later go to the court of appeals and se-
cure a reversal based on evidence the district judge may
not have known was present. In our view, that is what
we would be doing if we now relied on the qualified ad-
mission in ¶ 102 of Meridian’s statement.
This means that the question before us is whether
the evidence Johnson properly presented to the district
court can support either his race discrimination claim or
his retaliation claim. We turn first to an element of the
prima facie case that is necessary for both: whether John-
son can point to a similarly situated co-worker who was
treated more favorably either because she was not a
member of a protected class or because she did not en-
gage in protected conduct. The district court concluded
that the answer was no, noting that both Johnson (a
member of a protected class) and Goad (a white employee
who is not a member of a protected class) were elected
to the team leader position, then complained of racist
remarks in the workplace, and finally were denied their
elected positions. This, the judge concluded, was fatal to
both theories Johnson was pursuing.
The court gave only brief consideration to Johnson’s
broader claim. In a footnote, it commented that “Mr. John-
son believes (without supplying any evidence of the fact)
10 No. 02-1749
that Mr. Goad was promoted to team leader at some point
in May 1999. We find Cambridge’s evidence that Mr. Goad
was never promoted to team leader conclusive against
Mr. Johnson’s mere belief.” As far as Johnson’s presenta-
tions before the district court were concerned, this ob-
servation was correct. It is immaterial that there might
have been other evidence in the record—the ¶ 102 state-
ment, specifically (which incidentally did not take the
form of an admission under Rule 36 of the Federal Rules
of Civil Procedure, but was only evidentiary in nature)—
that would have changed matters. Johnson did not call
¶ 102 to the court’s attention. This means that neither the
court nor Meridian was alerted to its possible signifi-
cance. From Meridian’s standpoint, it also means that
Meridian had no opportunity to make any appropriate
motions that might have clarified the matter then and
there. Without competent evidence of Goad’s later promo-
tion, Johnson’s case on both the race discrimination and
the retaliation theories collapses.
If, however, one were to give Johnson every benefit of
the doubt and assume that the district court should have
considered the case on the assumption that Meridian
had accepted for purposes of the motion the fact that
Goad was later promoted (which, to repeat, is not our
view), we would turn to the remaining aspects of Johnson’s
prima facie race discrimination case. Meridian is not, for
present purposes, disputing that Johnson is a member of
a protected class or that he performed his job to Cam-
bridge’s satisfaction. The remaining issue that is relevant
for the prima facie case is whether Johnson can show
that he suffered an adverse employment action. The dis-
trict court resolved in Johnson’s favor the question wheth-
er the team leader position constitutes a promotion after
crediting Johnson’s testimony that the position is accom-
panied by slightly higher pay. Counsel for Meridian reluc-
tantly conceded this point at oral argument; therefore, we
No. 02-1749 11
too find that the team leader position constitutes a pro-
motion and that if Johnson was denied this position he
suffered an adverse employment action. See, e.g., Hilt-
Dyson, 282 F.3d at 465-66 (materially adverse employ-
ment action may be demonstrated by a pay decrease).
Meridian had tried to avoid the implications of its con-
cession that team leaders receive a salary increase by
drawing our attention to the fact that there is no evi-
dence that Goad received a pay increase after he was
allegedly promoted. After oral argument it called to our
attention recent decisions of the Courts of Appeals for
the District of Columbia and Sixth Circuit, which held
that adverse employment actions within the meaning of
Title VII cannot be established by showing job reassign-
ments that carry the loss of prestige, see Forkkio v. Powell,
306 F.3d 1127, 1130-31 (D.C. Cir. 2002), or involve more
physically demanding work, see White v. Burlington N. &
Santa Fe Ry. Co., 310 F.3d 443, 450 (6th Cir. 2002). But
those cases are unhelpful for our purposes, precisely
because (unlike the defendants in Forkkio and White)
Meridian concedes that the team leader position is a high-
er paying position, and thus a promotion. At this stage it
is enough that there is some evidence indicating that
team leader positions come with a pay increase. That means
that the denial of an opportunity to move to the position,
unlike the mere denial of a lateral transfer, constitutes
a materially adverse employment action. Hilt-Dyson, 282
F.3d at 465-66. Accordingly, if the evidence about Goad’s
alleged later promotion were properly in the case, we
would find that Johnson has established his prima facie
case.
At this point, the burden of production would shift to
Meridian to supply a non-discriminatory, non-invidious
reason for promoting Goad instead of Johnson. Reeves,
530 U.S. at 143. Once again, Johnson’s biggest problem is
with the way he presented the case at the district court.
12 No. 02-1749
By failing to show the court that he had evidence of Goad’s
ultimate promotion, he lost the opportunity to broaden
the court’s inquiry beyond the events of May 1999. And as
to the May events, the company was ready with a legiti-
mate, nondiscriminatory reason for its actions. As John-
son himself testified in his deposition, then-Acting Plant
Manager Ron Szydlowski told him that “[I]t came down
from corporate that there will be no other team leader
positions, just the ones that are already appointed previ-
ously.” In short, the company claimed that its decision
was a general structural one, made at higher corporate
levels, not one personal to the affected individuals. Both
because it believed that Johnson’s claim was limited to
the events of May 1999, and because it believed that
any later promotion was not in the case, the company did
not explicitly address any reason justifying Goad’s later
promotion. (Indeed, had this been squarely in front of
the court, it is overwhelmingly likely that Meridian would
have reiterated its evidence that no such promotion oc-
curred.)
With an admissible, non-discriminatory reason for the
decision not to promote either Johnson or Goad in May
1999 on the table, the burden shifted back to Johnson to
present legally sufficient evidence that would support
an inference that Cambridge really was acting out of an
invidious purpose. St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 507-08 (1993); Jones v. Union Pacific R.R. Co., 302
F.3d 735, 742 (7th Cir. 2002). We agree with the district
court that because the initial decision not to promote
Johnson and Goad to team leader was made at the corpo-
rate rather than facility level, there was simply no evi-
dence showing that Meridian’s explanation was pre-
textual. Nothing at that stage shows race discrimination,
given the equal treatment of the two men. (This is an
alternative ground for agreeing with the district court’s
decision with respect to the May 1999 promotion as an
No. 02-1749 13
isolated event.) Similarly, and alternatively to our earlier
discussion of the retaliation claims, there was no indica-
tion that the corporate actors who made this decision were
aware of Johnson’s complaints of race discrimination. See
Maarouf v. Walker Mfg. Co., 210 F.3d 750, 754-55 (7th
Cir. 2000) (discriminatory intent must influence ultimate
decisionmaker).
If the broader claim were properly in the case, it is
possible that Johnson might have created a jury issue on
it. The problem, once again, is that the procedural failure
to call the ¶ 102 statement to the court’s attention af-
fected the way the case was developed. A number of ques-
tions exist, which might have been answered through the
discovery materials available to both parties. Most criti-
cally, Johnson would have had to come forward with more
than his own speculation that Goad really did receive the
position. Beyond that, it would be important to know
whether or not Johnson knew about the second team lead-
er opening in the fall; if he did, whether he applied for it
or otherwise made his continuing interest known. From
Meridian’s side, one would like to know what did happen
to Goad in the interim that might have caused the confu-
sion about his alleged promotion. If it did designate Goad
as a team leader, how and why did that happen? Finally,
we would need contemporaneous evidence about John-
son’s performance at the later time, given the fact that
discrimination must be assessed at the time a company
acts. Just because a person is an excellent employee at
one point does not assure that he or she is the right per-
son for a promotion at another point months later. But,
because the crucial statement in ¶ 102 was not brought to
the district court’s attention, none of this was developed.
On the record as it stands, we must conclude that John-
son has failed to show that Meridian’s reasons for acting
as it did were pretextual.
14 No. 02-1749
B. Miscellaneous Claims of Race Discrimination
In addition to his claims stemming from the passed-over
promotion, Johnson also complains that he was singled
out for unfavorable treatment by Cambridge because of
his race. This charge is backed up with allegations that
Johnson was given harder tasks at work and made to
perform them alone (tasks that white co-workers always
undertook as a group), and that he was told to wear safety
goggles even though white co-workers were not given the
same admonition.
We need not belabor Johnson’s race discrimination claims
beyond briefly noting why he cannot make out his prima
facie case. Simply put, nothing about which Johnson is
complaining amounts to an adverse employment action. The
definition of an adverse employment action is generous, but
it is still subject to certain limitations. See Herrnreiter
v. Chicago Housing Auth., 315 F.3d 742, 744 (7th Cir.
2002); Haugerud v. Amery School Dist. 259 F.3d 678, 691
(7th Cir. 2001). At the very least, Johnson must show some
quantitative or qualitative change in the terms or condi-
tions of his employment that is more than a mere subjec-
tive preference. Herrnreiter, 315 F.3d at 744-45. Being
made to wear safety goggles does not meet this standard.
Nor does Johnson’s allegation that he was given harder
work assignments, under the circumstances he describes.
In his deposition testimony, Johnson boasted about his
superior capabilities as an explanation for why he got
harder work assignments. Meridian pointed to this state-
ment as a legitimate, non-discriminatory reason for its
actions: it gives more demanding jobs to better employees,
regardless of race. This non-race-based explanation puts
the burden back on Johnson to prove that Meridian treated
him differently because of his race. As we have said before,
summary judgment “is the ‘put up or shut up’ moment in
a lawsuit, when a party must show what evidence it has
No. 02-1749 15
that would convince a trier of fact to accept its version of
events.” Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497,
504 (7th Cir. 1999). Johnson offers no additional evidence
from which it may be inferred that he was made to perform
harder jobs because of his race and not his capabilities.
Therefore summary judgment in Meridian’s favor was
proper.
C. Second Retaliation Claim
Finally, we turn to Johnson’s claim that Cambridge
retaliated against him a second time following his com-
plaints to the EEOC. The alleged retaliatory acts included
the company’s refusal to provide him a back brace follow-
ing the back injury that he sustained while working;
the decision not to allow him to work while taking pre-
scription medications for that injury; and the Formal
Notifications of Unsatisfactory Conduct that Johnson
received.
The district court resolved this second retaliation argu-
ment against Johnson, finding that he failed to make
out the prima facie case for retaliation both because none
of the alleged retaliatory acts (alone or together) consti-
tuted an adverse employment action, and because there
was no evidence of a causal link between the protected
conduct and the retaliatory act. As we have already ex-
plained, the law of this Circuit no longer requires a causal
link to make out a prima facie case for impermissible
retaliation. Stone, 281 F.3d at 642. But even with that
hurdle cleared, Johnson still cannot make out his prima
facie case unless he can show that the denial of the back
brace, refusal to allow him to work while on pain medica-
tions, or the write-up constituted adverse employment
actions.
As we noted above, the range of employer conduct that
constitutes an adverse employment action is broad, but
16 No. 02-1749
not unlimited. Haugerud, 259 F.3d at 691. In Crady v.
Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.
1993), the court gave a list of materially adverse actions
that an employer might take, including, of course, termina-
tion of employment, “a less distinguished title, a material
loss of benefits, significantly diminished material respon-
sibilities,” etc. These actions are all similar to the extent
that they effect a quantitative or qualitative change in
the terms or conditions of employment. Haugerud, 259
F.3d at 691. In the retaliation context, we have explained
that the adverse action or harm that an employee suffers
will not always be employment-related. See Herrnreiter,
315 F.3d at 745-46 (citing McDonnell v. Cisneros, 84 F.3d
256, 258-59 (7th Cir. 1996)). Nonetheless, the employee
must complain of some action on the employer’s part
that causes her to suffer a real harm. Cf. Schobert v. Illi-
nois Dep’t of Transp., 304 F.3d 725, 731 (7th Cir. 2002)
(“Every tort, whether it be one derived from common law
or a statutory tort like Title VII, requires a showing of
harm.”).
Even under the more generous standard that governs
retaliation claims, we do not believe that Johnson has
suffered the necessary harm. The denial of a back brace
and the enforcement of a pre-existing rule that em-
ployees may not work while taking certain prescription
medications are not the type of employer actions that our
cases label materially adverse. Cambridge’s decision to
put a laundry list of complaints aired about Johnson’s
work into writing looks more troublesome, but it cannot
support this claim either. Our law is clear that with-
out more, a performance evaluation of this type does not
amount to an adverse employment action. See Haywood,
2003 WL 1400496 at *6; Grube v. Lau Indus., Inc., 257
F.3d 723, 729-30 (7th Cir. 2001) (“Unfair reprimands or
negative performance evaluations, unaccompanied by
some tangible job consequence, do not constitute adverse
No. 02-1749 17
employment actions.”); Krause v. City of La Crosse, 246 F.3d
995, 1000 (7th Cir. 2001) (same). Johnson merely alleges
that he received the written notification. He made no effort
to show how it affected his employment from that time
forward. The district court was therefore correct to reject
this claim as well.
III
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-9-03