Latice Porter v. City of Chicago , 700 F.3d 944 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2006
L ATICE P ORTER,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-07165—Virginia M. Kendall, Judge.
A RGUED S EPTEMBER 11, 2012—D ECIDED N OVEMBER 8, 2012
Before B AUER, P OSNER, and W OOD , Circuit Judges.
B AUER, Circuit Judge. Latice Porter sued the City
of Chicago, alleging that the City failed to accom-
modate her religious practice, discriminated against her
on the basis of her religion, and retaliated against her
for engaging in protected activity in violation of Title VII,
42 U.S.C. § 2000e et seq. The district court granted
the City’s motion for summary judgment and denied
Porter’s motion for partial summary judgment, and
Porter appealed. For the reasons that follow, we affirm.
2 No. 11-2006
I. BACKGROUND
As this is an appeal from an award of summary judg-
ment to the City, we must construe the facts in the light
most favorable to Porter. See Montgomery v. Am. Airlines,
Inc., 626 F.3d 382, 389 (7th Cir. 2010). Porter has been
employed by the City in the Field Services Section (“FSS”)
of the Records Services Division of the Chicago Police
Department since June 10, 1991. The FSS receives and
responds to information requests from police per-
sonnel and other law enforcement agencies. The FSS
staff includes sworn police sergeants, police officers,
and civilian employees. Since January 1, 2001, Porter
has been a Senior Data Entry Specialist, which is a
civilian position. Porter was most recently assigned to
the “auto desk,” where employees process information
in various electronic databases about towed, stolen,
repossessed, or recovered vehicles.
The FSS operates twenty-four hours a day, seven days
a week. FSS employees are divided into “watches”
for purposes of scheduling: the first watch runs
from 11:30 p.m. to 7:30 a.m.; the second watch runs from
7:30 a.m. to 3:30 p.m.; and the third watch runs
from 3:30 p.m. to 11:30 p.m. Employees are also assigned
to groups for their days off; certain employees are
assigned to the Friday/Saturday days-off group or the
Saturday/Sunday group, and others are assigned to
other days-off groups.
During Porter’s employment in the FSS, several
people were involved in determining or approving
FSS employees’ work schedules. Joseph Perfetti was the
No. 11-2006 3
manager of the FSS from April 2002 until August 2008.
As manager, Perfetti supervised several sergeants who
served as watch commanders and ran the day-to-day
operations of the FSS, including determining employees’
schedules. Sergeants Geraldine Sidor, Wanda Torres,
and H.A. McCarthy served as watch commanders in
the FSS and had the authority to change the days-off
schedules of FSS employees at various times between
2004 and 2009. Marikay Hegarty was the Director of
Records from late 2004 until late 2006, and, in this
capacity, had the authority to determine and approve
FSS employees’ work schedules. Perfetti assumed the
role of Acting Director of the Records from Novem-
ber 2006 until August 2008.
Porter identifies herself as Christian, and she attends
church services, bible studies, and prayer services at
the Apostolic Church of God. Sunday church services
are held at 9:00 a.m., 11:45 a.m., and sometimes 4:00 p.m.
Porter has also attended services on Friday nights,
Wednesday night bible study, and prayer services
on Tuesdays.
Before 2005, Porter worked in a different section of
the FSS and had a schedule that required her to work
the second watch. She initially had a rotating-weekend
days-off schedule, which was changed to an alternating-
weekend days-off schedule. This meant that Porter
had every other Saturday and Sunday off.
On March 18, 2005, Sergeant Sidor assigned Porter to
the Friday/Saturday days-off group beginning March 31,
2005. That same day, Porter sent a memorandum to
4 No. 11-2006
Hegarty requesting to be assigned to the Sunday/Monday
days-off group. She also informed Sergeant McCarthy
that she wanted Sundays off because she was involved
in her church and sang in the church choir. Sergeant
McCarthy approved Porter’s request and reassigned
her to the Sunday/Monday days-off group effective
March 27, 2005.
In August 2005, Porter sent a letter to her super-
visors requesting to work a later shift on Saturdays
so she could attend classes as a student minister.
Sergeant Torres approved Porter’s request, and she
was assigned to work from 1:30 p.m. to 8:30 p.m. on
Saturdays for the duration of the class, approximately
ten weeks. Porter remained on the second watch
schedule for the other days of the week.
In October 2005, Porter took leave pursuant to the
Family and Medical Leave Act (“FMLA”) due to a car
accident and pregnancy complications. Following her
three months of FMLA leave, Porter took a medical leave
of absence for another six months. She returned to the
FSS on July 16, 2006.
Upon Porter’s return, Sergeant Sidor recommended
assigning Porter to the Friday/Saturday days-off group,
and Perfetti approved the assignment. Porter remained
on the second watch. According to Sergeant Sidor and
Perfetti, Porter’s assignment was based on “opera-
tional needs” to “balance the workforce” because more
civilian employees were in the Sunday/Monday days-off
group than the Friday/Saturday group at the time of
Porter’s return. Sergeant Sidor was not aware that
No. 11-2006 5
Porter preferred Sundays off in order to attend church
services.
After receiving her assignment, Porter met with
Perfetti and asked to be reassigned to the Sunday/Monday
days-off group because of her church involvement. On
July 24, 2006, following the advice of her union president,
Porter submitted a Request for Change of Job Assign-
ment Form asking for a change to the Sunday/Monday
days-off group. Perfetti told Porter that her request
would be accommodated when an opening became
available in the Sunday/Monday group. Perfetti also
asked a sergeant in the FSS to find out if any other em-
ployee assigned to the auto desk would be willing to
switch days-off groups with Porter. Sergeant McCarthy
asked the auto desk employees if anyone would
switch with Porter; no one volunteered.
Porter also communicated with Hegarty regarding her
request to change her schedule. Hegarty said she
wanted to help Porter and mentioned the option of
Porter “going to 3:00 to 11:00” on Sundays. Porter did not
follow up with Hegarty about that option.
Porter contends that she was intimidated and harassed
by her supervisors at the FSS, both before and after she
returned from medical leave. According to Porter, the
sergeants and other supervisors in the FSS yelled at her
and taunted her, calling her “church girl.” She was also
threatened with being written up in a complaint register
by Sergeant McCarthy for coming to work on a day
that she was scheduled to have off. When Porter com-
plained to Perfetti, Perfetti refused to change her days-off
6 No. 11-2006
schedule. As a result of these incidents, Porter filed
internal grievances.
On August 25, 2006, Porter filed a Chicago Commission
on Human Relations (“CCHR”) complaint alleging reli-
gious discrimination against the City, Sergeant Sidor,
and Perfetti.1 She also filed a charge alleging religion-
based discrimination with the Equal Employment Op-
portunity Commission (“EEOC”) on September 14, 2006.
Between the time Porter returned to the FSS on July 16,
2006, and November 12, 2006, Porter was absent from
work on some or all of thirty-four days. Sixteen of
these days were Sundays. On November 12, 2006,
Sergeant Patrick Chambers issued Porter a “counseling
session report” regarding her pattern of taking Sundays
off. The report contains preprinted text stating that it
“is not a disciplinary action,” and that its purpose is “to
identify concerns or poor performance” and to “advise[]
the [employee] that continued action of this kind is unac-
ceptable and may result in either more formalized coun-
seling or intervention.” The report also sets forth the
reasons Porter provided Sergeant McCarthy for failing
to report to work on Sundays: that her “chest hurts
after working (5) days” and that she “has a (7) month old
baby she has to hold which she holds in a special way.”
Porter also said that her absences were not intentional.
On November 14, 2006, Porter requested medical leave
“due to chronic pain and physical therapy.” She took a
1
The CCHR issued an order finding “substantial evidence
of discrimination based on religion” on October 2, 2008.
No. 11-2006 7
leave of absence on November 16, 2006, and has not
returned to the FSS.
Porter filed suit on December 12, 2008, alleging that
the City violated Title VII by failing to accommodate
her religious practices, discriminating against her based
on her religion, and retaliating against her for requesting
an accommodation and complaining of religious dis-
crimination. Following discovery, Porter moved for sum-
mary judgment as to her failure-to-accommodate claim,
and the City moved for summary judgment on all
claims.2 The district court denied Porter’s motion and
granted summary judgment in favor of the City, con-
cluding that the City had reasonably accommodated
Porter’s religious practice, and that Porter had failed to
put forth sufficient evidence in support of her claims
that the City discriminated and retaliated against her.
II. DISCUSSION
We review the grant of summary judgment de novo.
MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630
F.3d 651, 656 (7th Cir. 2011). In doing so, we construe
all the relevant facts and inferences in the non-moving
party’s favor. Id. We will affirm only if “the movant
shows that there is no genuine dispute as to any
2
Porter also moved for a declaratory judgment that the City’s
policy regarding religious accommodations violates Title VII,
which the district court denied. Porter does not appeal this
ruling.
8 No. 11-2006
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).
Title VII prohibits employers from “discriminat[ing]
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII defines “reli-
gion” as “all aspects of religious observance and prac-
tice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate to [sic] an
employee’s or prospective employee’s religious ob-
servance or practice without undue hardship on the
conduct of the employer’s business.” Id. § 2000e-(j).
These provisions of Title VII prohibit an employer
from intentionally discriminating against an employee
based on the employee’s religion, and require an
employer to make reasonable efforts to accommodate
the religious practices of employees unless doing so
would cause the employer undue hardship. See Reed v.
Great Lakes Cos., 330 F.3d 931, 934-35 (7th Cir. 2003) (cita-
tions omitted). Additionally, under Title VII employers
may not retaliate against an employee who “opposed
any practice” that is unlawful under the statute, or who
has “made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or
hearing under [the statute].” 42 U.S.C. § 2000e-3(a). On
appeal, Porter contends that there are disputed questions
of fact regarding whether the City failed to accom-
modate her religious practice, discriminated against her
based on her religion, and retaliated against her for
No. 11-2006 9
engaging in activity protected under Title VII. We dis-
cuss each of Porter’s claims in turn.
A. Failure to Accommodate
In order to make out a prima facie case of religious
discrimination based on an employer’s failure to provide
reasonable accommodation, a plaintiff “must show that
the observance or practice conflicting with an employ-
ment requirement is religious in nature, that she called
the religious observance or practice to her employer’s
attention, and that the religious observance or practice
was the basis for her discharge or other discriminatory
treatment.” EEOC v. Ilona of Hungary, Inc., 108 F.3d
1569, 1575 (7th Cir. 1996) (citations omitted). Once the
plaintiff has established a prima facie case of discrim-
ination, the burden shifts to the employer to make
a reasonable accommodation of the religious practice or
to show that any reasonable accommodation would
result in undue hardship. Id. at 1575-76. Here, the City
does not dispute that Porter has put forth suf-
ficient evidence to defeat summary judgment as to her
prima facie case. Our inquiry therefore focuses on
whether there is a genuine issue of material fact
regarding whether the City satisfied its duty to rea-
sonably accommodate Porter’s religious practices or
established that doing so would result in undue hardship.
The reasonable accommodation requirement of Title VII
is meant “to assure the individual additional oppor-
tunity to observe religious practices, but it [does] not
impose a duty on the employer to accommodate at all
10 No. 11-2006
costs.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70,
107 S.Ct. 367, 93 L.Ed.2d 305 (1986) (citing Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53
L.Ed.2d 113 (1977)). This means that a “reasonable ac-
commodation” of an employee’s religious practices is
“one that ‘eliminates the conflict between employment
requirements and religious practices.’ ” Wright v. Runyon,
2 F.3d 214, 217 (7th Cir. 1993) (quoting Philbrook, 479 U.S.
at 70, 107 S.Ct. 367). It need not be the employee’s pre-
ferred accommodation or the accommodation most bene-
ficial to the employee. Philbrook, 479 U.S. at 69, 107
S.Ct. 367. Accordingly, “[o]nce the employer has offered
an alternative that reasonably accommodates the em-
ployee’s religious needs . . . ‘the statutory inquiry is at
an end[.]’ ” Ilona, 108 F.3d at 1576 (citations omitted).
The City contends that it attempted to accommodate
Porter’s religious practices in several ways. Specifically,
the City points to Hegarty’s suggestion of a change
to a later watch; Perfetti’s offer to give Porter the next
available opening in the Sunday-Monday days-off
group; and Sergeant McCarthy’s request for volunteers to
switch days-off groups with Porter. We begin and end
with Hegarty’s suggestion of a watch change as we con-
clude that the undisputed facts establish that this
was a reasonable accommodation.
In her interrogatory answers, deposition testimony,
and declaration, Porter stated that she spoke with
Hegarty about changing her schedule after returning
to work and being assigned to the Friday/Saturday days-
No. 11-2006 11
off group.3 According to Porter, Hegarty, who had
the authority to determine and approve the schedules of
FSS employees at the time, wanted to help her and sug-
gested that she could switch from her current 7:30 a.m.
to 3:30 p.m. watch to the 3:30 p.m. to 11:30 p.m. watch.4
As Porter sought to attend church services on Sunday
mornings, this change in Porter’s schedule would have
eliminated the conflict between her work schedule and
her religious practice, and there is no evidence that this
change would have impacted Porter’s pay or benefits
in any way. Given these undisputed facts, Hegarty’s
offer of a watch change was a reasonable accommoda-
tion. See Wright, 2 F.3d at 217; see also Rodriguez v. City of
Chi., 156 F.3d 771, 776 (7th Cir. 1998) (listing cases and
noting that “it is a reasonable accommodation to permit
3
Porter’s amended answers to the City’s interrogatories state
that she met with Hegarty and had this conversation on July 19,
2006. In her deposition, however, Porter identified the time
period in which this conversation occurred as sometime
between July and November.
4
Specifically, Porter testified at her deposition that when she
spoke with Hegarty, “[Hegarty] mentioned . . . they could have
put me on midnights. Something about me going 3:00 to 11:00.
Her saying something about maybe helping me to do some-
thing about going to 3:00 to 11:00.” Porter’s interrogatory
answers state that she spoke with Hegarty on July 19, 2006,
and that “Ms. Hegarty said something about trying to help
me. She also said something about me working ‘3:30 - 11:30[.]’ ”
Porter’s declaration also states that she “had a conversation
with Marikay Hegarty where she mentioned the possibility
of helping me switch watches to 3:30 to 11:30.”
12 No. 11-2006
an employee to exercise the right to seek job transfers or
shift changes, particularly when such changes do not
reduce pay or cause loss of benefits”). In fact, Porter
had previously received a similar accommodation in
August 2005 in order to attend ministry classes on Satur-
day mornings.
Porter’s deposition testimony makes clear that she
did not want to work the later watch and instead
preferred to be returned to the Sunday/Monday days-off
group she was in prior to taking medical leave. Never-
theless, “it is well settled that ‘Title VII . . . requires
only reasonable accommodation, not satisfaction of an
employee’s every desire.’ ” Anderson v. U.S.F. Logistics
(IMC), Inc., 274 F.3d 470, 475 (7th Cir. 2001) (quoting
Rodriguez, 156 F.3d at 776). Had changing watch groups
affected Porter’s pay or other benefits, a much more
rigorous inquiry would be required. That is not the
case before us, however. Porter simply did not want
to work the later watch, but that does not make the pro-
posed accommodation unreasonable. See Wright, 2 F.3d
at 217 (noting that accommodation offered was rea-
sonable even though it required the plaintiff “to take
a job that most people did not want”).
Porter does not dispute that changing to a later watch
would have eliminated the conflict with the Sunday
morning church services she wanted to attend. Instead,
she maintains that Hegarty’s suggestion was insufficient
to meet the City’s burden because Hegarty “merely
mentioned the possibility of shifting Porter’s hours”
and Porter “denies she was invited to apply or even
No. 11-2006 13
informed how to make such a request.” We reject these
arguments.
In requiring employers to “offer reasonable accom-
modations,” we have encouraged “bilateral coopera-
tion” between the employee and employer and recog-
nized that employers must engage in a dialogue with an
employee seeking an accommodation. See Rodriguez,
156 F.3d at 777-78 (citing Philbrook, 479 U.S. at 69, 107
S.Ct. 367). We have not demanded the hand-holding
Porter argues was lacking here, however, for an offer of
an accommodation to be sufficient under Title VII. In
Rodriguez, for example, Officer Rodriguez sent a memo-
randum to his commander seeking to be exempted
from future assignments at abortion clinics because of
his religious beliefs; his commander never responded
to that request. Id. at 773-74. Although this failure con-
cerned us, we held that the City nonetheless satisfied
its duty “to open a dialogue with Officer Rodriguez on
the question of reasonable accommodation” by engaging
in the collective bargaining process with Officer Rodri-
guez’s union, which resulted in a collective bargaining
agreement that provided Officer Rodriguez with the
option to transfer districts and avoid assignments at
abortion clinics. Id. at 778. Because Officer Rodriguez
was aware of this provision in the collective bargaining
agreement, we held that his commanding officer’s
failure to respond to his request did not prejudice him
and was not a violation of Title VII. Id.
Here, the undisputed facts give us even less pause
than the facts in Rodriguez. When Porter went to Hegarty
to discuss her schedule, Hegarty proposed the watch
14 No. 11-2006
change as a possible remedy. Porter, however, expressed
no interest in that option and did not pursue it further.5
We cannot find fault with the City for failing to
take further steps to change Porter’s watch given
these undisputed facts. Additionally, Porter’s complaints
regarding the City’s failure to inform her as to how to
execute a schedule change ring hollow in light of the
fact that these requests can be made on the same form
that Porter used to request a change of days-off groups,
and Porter had successfully changed the hours she
worked on Saturdays in August 2005 by requesting
the change in a letter to her supervisors. We conclude,
as the district court did, that the City discharged its
obligation under Title VII by offering Porter an accom-
modation that would have eliminated the conflict
between her work schedule and her religious practice
of attending church services on Sunday morning.
5
During Porter’s deposition, after she testified that Hegarty
mentioned the option of working from 3:00 to 11:00, the fol-
lowing exchange occurred:
Q: Did you tell Marikay [Hegarty] that you would work
3:00 to 11:00?
A: No, I did not tell her that.
Q: Did you tell her you wouldn’t?
A: No, I did not tell her I would or would not. I think it
was a thought that maybe I should consider that. I have
a baby, No. 1. No. 2, that wasn’t my battle right there
to try to switch myself to nothing.
No. 11-2006 15
B. Disparate Treatment
Porter also alleged a disparate treatment claim under
Title VII, claiming that she was subjected to adverse
employment actions because of her religion. As discussed
above, in addition to requiring employers to reasonably
accommodate the religious practices of its employees,
Title VII also prohibits employers from discriminating
against an employee on the basis of the employee’s reli-
gion. 42 U.S.C. § 2000e-2(a)(1). To defeat an employer’s
motion for summary judgment on a claim of intentional
discrimination under Title VII, a plaintiff can proceed
under either the “direct” or “indirect” method of proof.
Under the direct method, the method under which
Porter proceeds, a plaintiff must marshal sufficient evi-
dence, either direct or circumstantial, that an adverse
employment action was motivated by discriminatory
animus. Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir.
2012). We have indicated some flexibility in how to ap-
proach cases presenting complaints of religious discrim-
ination, but we have consistently required that the em-
ployee have been subjected to an adverse employment
action in order to maintain a disparate treatment claim.
E.g., Sattar v. Motorola, Inc., 138 F.3d 1164, 1169-70 (7th
Cir. 1998) (citing with approval the approach for a
religious discrimination claim set forth in Shapolia v.
Los Alamos Nat’l Lab., 992 F.2d 1033, 1038 (10th Cir.
1993), requiring that the plaintiff show “(1) that he
was subjected to some adverse employment action;
(2) that . . . the employee’s job performance was satis-
factory; and (3) some additional evidence to support
the inference that the employment actions were taken
16 No. 11-2006
because of a discriminatory motive based upon the em-
ployee’s failure to hold or follow his or her employer’s
religious beliefs”); Venters v. City of Delphi, 123 F.3d
956, 972-73 (7th Cir. 1997). We, like the district court,
conclude that Porter failed to put forth sufficient
evidence to create a triable issue of fact as to the
adverse employment action element.
Although we have defined adverse employment
actions “quite broadly,” Oest v. Ill. Dep’t of Corrections, 240
F.3d 605, 612 (7th Cir. 2001), an adverse action must
materially alter the terms or conditions of employment
to be actionable under the antidiscrimination provision
of Title VII. See Burlington N. and Santa Fe Ry. Co. v.
White, 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345(2006) (explaining that the terms of the antidiscrimina-
tion provision of Title VII “explicitly limit the scope of
that provision to actions that affect employment or alter
the conditions of the workplace”). This means that the
action must be “more disruptive than a mere inconve-
nience or an alteration of job responsibilities.” Nagle v.
Vill. of Calumet Park, 554 F.3d 1106, 1120 (7th Cir. 2009)
(quoting 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 re-
sponsibilities, or other indices that might be unique to
a particular situation.” Crady, 993 F.2d at 136 (citations
omitted). We have cautioned, however, that “not every-
thing that makes an employee unhappy is an actionable
No. 11-2006 17
adverse action. Otherwise, minor and even trivial employ-
ment actions that ‘an . . . employee did not like would form
the basis of a discrimination suit.’ ” Smart v. Ball State
Univ., 89 F.3d 437, 441 (7th Cir. 1996) (citation omitted).
On appeal, Porter contends that her placement in the
Friday/Saturday days-off group upon her return from
medical leave in July 2006 and the issuance of the coun-
seling session report in November 2006 were adverse
employment actions. Porter fails, however, to put forth
evidence that either of these actions materially altered
the terms or conditions of her employment. Absent
such evidence, these actions are indistinguishable from
the schedule changes and reprimands without material
consequences that we have held generally do not con-
stitute adverse employment actions. See Lloyd v. Swifty
Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009) (“[W]ritten
reprimands without any changes in the terms or con-
ditions of . . . employment are not adverse employment
actions.”) (citations omitted); Oest, 240 F.3d at 613 (finding
that written reprimands received under progressive
discipline policy were not adverse employment actions);
Grube v. Lau Indus., Inc., 257 F.3d 723, 728 (7th Cir.
2001) (rejecting the plaintiff’s constructive discharge
claim and observing that “[the employer’s] decision to
change [the plaintiff’s] working hours certainly does not
rise to the level of an adverse employment action”
because the plaintiff’s “pay and job title remained
the same, and she suffered no significantly diminished
job responsibilities”).
Nonetheless, as Porter points out, these are not hard and
fast rules. We held in Washington v. Ill. Dep’t of Revenue,
18 No. 11-2006
420 F.3d 658, 662 (7th Cir. 2005), that given the plain-
tiff’s unique circumstances, a reasonable jury could
conclude that the alteration of her work schedule con-
stituted an adverse employment action for purposes of
her retaliation claim. Specifically, we noted the evidence
suggesting that in altering the plaintiff’s schedule, the
employer sought to exploit a known vulnerability of the
plaintiff—her reliance on her previously established
flex-time schedule so she could care for her son, who
had Down’s syndrome. Id. Additionally, the evidence
indicated that the schedule change “caused a significant
(and hence an actionable) loss” to the plaintiff because
she was forced to use leave for two hours per day,
causing her vacation and sick leave to drain away. Id.
at 662-63.
Washington is clearly distinguishable from the case
before us, however. Porter has failed to point to any
evidence in the record suggesting that her assignment
to the Friday/Saturday days-off group in July 2006 after
her nine-month leave was meant to exploit “a known
vulnerability,” namely, her practice of attending church
on Sunday mornings. Instead, in testimony that remains
uncontradicted, Sergeant Sidor and Perfetti stated that
Porter was placed in that group to balance the days-off
groups, and as discussed above, Hegarty tried to
resolve the conflict between Porter’s work and church
schedules. Furthermore, although Porter claims she
suffered an economic loss when she had to use her vaca-
tion and sick days, and ultimately unpaid time, to
take Sundays off, the undisputed evidence—including
Porter’s own statement in the counseling session re-
No. 11-2006 19
port—indicates that she took those days off for medical
reasons, not to attend church. Although Porter now
argues that a jury could infer the contrary, she cites
no evidence in support of that inference.
Porter also contends that her disparate treatment
claim is actionable because she was subjected to a
hostile work environment. This theory fares no better.
To prevail on a hostile work environment claim, Porter
must demonstrate that: “(1) her work environment
was both objectively and subjectively offensive; (2) the
harassment complained of was based on her [religion];
(3) the conduct was either severe or pervasive; and
(4) there is a basis for employer liability.” Scruggs v. Garst
Seed Co., 587 F.3d 832, 840 (7th Cir. 2009) (citing Dear
v. Shinseki, 578 F.3d 605, 611 (7th Cir. 2009)). In deter-
mining whether the evidence in support of a hostile
work environment claim meets this standard, we con-
sider the totality of the circumstances, Venters, 123 F.3d at
975, including “the severity of the allegedly discrim-
inatory conduct, its frequency, whether it is physically
threatening or humiliating or merely offensive, and
whether it unreasonably interferes with an employee’s
work performance.” Scruggs, 587 F.3d at 840 (citation
omitted).
Here, the only specific instances of harassment Porter
has alleged are being called “church girl,” being told to
sit down “in a high-pitched voice” by her supervisor,
being threatened with a “CR complaint” when she
showed up to work on one of her days off, and re-
ceiving the counseling session report in November 2006.
20 No. 11-2006
Even assuming that Porter can show that this conduct
was based on her religion, we agree with the district
court that it was not severe or pervasive enough to
fall within Title VII’s purview. Porter’s vague and
conclusory allegations of being “harassed” and “intimi-
dated” by her supervisors do not change our con-
clusion; without more detail, a reasonable jury could
not find that the conduct was objectively offensive,
severe, or pervasive. See Goodman v. Nat’l Sec. Agency,
Inc., 621 F.3d 651, 654 (7th Cir. 2010) (“We often call
summary judgment the ‘put up or shut up’ moment in
litigation, by which we mean that the non-moving party
is required to marshal and present the court with
the evidence she contends will prove her case. And by
evidence, we mean evidence on which a reasonable
jury could rely.” (internal citations omitted)); Payne v.
Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003) (“[T]he
Federal Rules of Civil Procedure require the nonmoving
party to ‘set forth specific facts showing that there is a
genuine issue for trial.’ Conclusory allegations, unsup-
ported by specific facts, will not suffice.” (quoting Fed.
R. Civ. P. 56(e))). Viewing the record before us in the
light most favorable to Porter, the most we can say is
that she was subject to sporadic inappropriate and
rude comments by her supervisors, but “[o]ffhand com-
ments, isolated incidents, and simple teasing do not
rise to the level of conduct that alters the terms and
conditions of employment.” Scruggs, 587 F.3d at 840-41(citation omitted). Because Porter failed to put forth
evidence from which a reasonable jury could conclude
that her work environment was objectively offensive
No. 11-2006 21
and that the conduct complained of was severe or perva-
sive, summary judgment was appropriate on this claim.
C. Retaliation
Porter’s final claim is that the City retaliated against
her for engaging in protected activity under Title VII.
In addition to prohibiting discrimination, Title VII “for-
bids retaliation against anyone who ‘has opposed
any practice made an unlawful employment practice
by [Title VII], or because he has made a charge, testified,
assisted, or participated in any manner in an investiga-
tion, proceeding, or hearing under [Title VII].’ ” Loudermilk
v. Best Pallet Co., 636 F.3d 312, 314 (7th Cir. 2011)
(quoting 42 U.S.C. § 2000e-3(a)). The purpose of this
antiretaliation provision is to “prevent employer inter-
ference with ‘unfettered access’ to Title VII’s remedial
mechanisms . . . by prohibiting employer actions that
are likely ‘to deter victims of discrimination from com-
plaining to the EEOC,’ the courts, and their employers.”
Burlington N. and Santa Fe Ry. Co., 548 U.S. at 68,
126 S.Ct. 2405 (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Be-
cause of this purpose and the textual distinction
between the antiretaliation provision and the anti-
discrimination provision, the Supreme Court has held
that “Title VII’s antiretaliation provision must be con-
strued to cover a broad range of employer conduct . . . and
[it] is not limited to discriminatory actions that affect
the terms and conditions of employment.” Thompson v.
N. Am. Stainless, LP, ___ U.S. ___, 131 S.Ct. 863, 868, 178
22 No. 11-2006
L.Ed.2d 694 (2011) (internal quotation marks and cita-
tions omitted). Under this broad construction of the
antiretaliation provision, the pertinent inquiry is whether
an employer has acted in a way that “well might have
dissuaded a reasonable worker from making or sup-
porting a charge of discrimination.” Id. (citation omitted).
As with discrimination claims, a plaintiff may establish
retaliation under the direct or indirect method of proof.
See Weber v. Univs. Research Ass’n, Inc., 621 F.3d 589, 592
(7th Cir. 2010). On appeal, Porter has not pointed to
evidence of any similarly-situated employees not sub-
jected to the same adverse action she alleges, so we
assume she is proceeding only under the direct method
of proof. See Silverman v. Bd. of Educ. of City of Chi., 637
F.3d 729, 741 (7th Cir. 2011). “To avoid summary judg-
ment on a retaliation claim under the direct method,
[the plaintiff] must produce evidence 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.” Benuzzi v. Bd. of Educ. of
City of Chi., 647 F.3d 652, 664 (7th Cir. 2011) (internal
quotation marks and citation omitted).
We assume, as the parties do, that Porter engaged
in statutorily protected activity, including her request
to have Sundays off in March 2005, her request for a
schedule adjustment to attend ministry classes in
August 2005, her requests for a days-off change fol-
lowing her return to work in July 2006, and her CCHR
and EEOC charges in August and September 2006. Our
No. 11-2006 23
inquiry accordingly focuses on the second and third
elements of Porter’s claim. As to the second element,
the only potentially retaliatory action Porter points
to in her brief is her assignment to the Friday/Saturday
days-off group upon her return from leave in July 2006.
Even though the category of “materially adverse ac-
tions” under Title VII’s antiretaliation provision “sweeps
more broadly than the ‘adverse employment actions’
required to sustain a discrimination claim,” id. at 665(citation omitted), we doubt that Porter’s assignment to
the Friday/Saturday days-off group was a materially
adverse action for purposes of her retaliation claim. In
Burlington Northern, the Supreme Court made clear that
context matters to the determination of what constitutes
a materially adverse action. 548 U.S. at 69, 126 S.Ct.
2405. Here, Porter’s assignment to the Friday/Saturday
days-off group came after her nine-month leave and
with a subsequent offer to accommodate her Sunday
morning church attendance—albeit not the exact accom-
modation she sought—and the promise that she would
receive the next opening in the Sunday/Monday days-off
group. In this context, we do not think the treatment
Porter received would dissuade a reasonable worker
from seeking an accommodation.
Even assuming, however, that Porter’s assignment to
the Friday/Saturday days-off group in July 2006 con-
stituted a materially adverse action, Porter failed to
adduce any evidence from which a reasonable jury
could find a causal connection between that assignment
and her requests for accommodations in March and
August 2005. Instead, the evidence indicates that she
24 No. 11-2006
received the accommodations she sought in March
and August 2005, and nearly a year passed between
those requests and her July 2006 assignment to the Fri-
day/Saturday days-off group. Given this time lapse, the
fact that the assignment to the Friday/Saturday group
came after her successful requests for accommodations
does not suffice to show a causal connection. See, e.g.,
Kidwell v. Eisenhauer, 679 F.3d 957, 967 (7th Cir. 2012)
(finding that periods of five weeks and two months
between alleged retaliatory actions and protected
activities “militate against” inference of causation based
solely on suspicious timing); Healy v. City of Chi., 450
F.3d 732, 741 n.11 (7th Cir. 2006) (finding no suspicious
timing when events were separated by more than
one year); Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir.
2001) (“[T]he length of time between the protected
speech and the adverse employment action is at least
four months, which, without more, is too long to support
a reasonable inference of causation.”). Additionally, the
evidence indicates that Sergeant Sidor, who made the
recommendation to put Porter in the Friday/Saturday
days-off group upon her return from leave, did so to
balance days-off groups and did not know that Porter
wanted Sundays off to attend church. See Leitgen v. Fran-
ciscan Skemp Healthcare, Inc., 630 F.3d 668, 675 (7th Cir.
2011) (“A claim of retaliation based on suspicious
timing depends on what the relevant decision-makers
knew and when[.]”). Accordingly, the district court ap-
propriately granted summary judgment on Porter’s re-
taliation claim.
No. 11-2006 25
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
11-8-12