Paula Emerson v. Thomas Dart , 900 F.3d 469 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2614
PAULA EMERSON,
Plaintiff-Appellant,
v.
THOMAS J. DART,
Sheriff of Cook County, Illinois;
COOK COUNTY, ILLINOIS; WILLIAM
ZURELLA; and DAVID GROCHOWSKI;
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 14 C 5898 — Milton I. Shadur, Judge.
____________________
ARGUED MAY 30, 2018 — DECIDED AUGUST 14, 2018
____________________
Before WOOD, Chief Judge, and SYKES and HAMILTON,
Circuit Judges.
SYKES, Circuit Judge. Paula Emerson is a correctional
officer on leave from the Cook County Department of Cor-
rections. She alleges that two County employees unlawfully
discriminated against her during her tenure at one of the
2 No. 17-2614
County’s detention facilities. While litigation was underway,
Emerson took to Facebook to threaten potential witnesses
with legal action if they testified against her. The district
judge sanctioned Emerson for the threat and eventually
entered summary judgment for the defendants. We affirm.
I. Background
The Cook County Department of Corrections hired
Emerson as a correctional officer in April 2005. Years later
she transferred to what the parties call “Division 9,” a
county-run detention unit that houses maximum-security
inmates. Emerson had several duties while there. Primarily
she monitored the inmates’ activities and accompanied them
to meals and other events. She also cleaned cells, common
areas, and restroom facilities on occasion.
Emerson’s tenure at the division was tumultuous, to say
the least. She frequently butted heads with her colleagues
and twice filed formal personnel grievances. The first, in
2009, accused two division employees—identified only as
Lieutenant Young and Officer Heilemann—of racial and
sexual harassment. The second, in 2012, alleged that Lieu-
tenant David Grochowski improperly changed Emerson’s
shift assignments. The record shows that both claims failed:
the 2009 grievance was dismissed in 2011, and nothing came
of the 2012 complaint.
That’s not the end of the story. Emerson claims
Grochowski and Sergeant William Zurella, another division
supervisor, retaliated against her for filing the grievances.
Grochowski allegedly continued to reassign Emerson’s
shifts, made malicious comments about her to other employ-
ees, and twice assigned her to work alongside Heilemann, a
No. 17-2614 3
target of her 2009 complaint. As to Zurella, Emerson claims
he failed to assist her while she was supervising a group of
inmates in early September 2012. These incidents prompted
Emerson to take a leave of absence; she was on paid medical
leave from September 2012 until March 2014, and she has
remained on unpaid leave ever since.
Emerson sued Grochowski, Zurella, Thomas Dart (he is
the Cook County Sheriff and had no personal involvement,
so we mention him no further), and Cook County. She
alleges retaliation claims under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq. The litigation proceed-
ed to discovery, and Emerson came to resent the County’s
efforts to gather evidence and rebut her case. So she took
matters into her own hands. Posting to a Facebook group
shared by more than 1,600 employees of the Department of
Corrections, Emerson threatened to sue anyone who testified
against her. She wrote:
To my fellow officers! DON’T GET IN A
FIGHT THAT IS NOT, I REPEAT THAT IS
NOT YOURS. I’VE JUST RECEIVED THE
NAMES OF SOME PEOPLE THAT THE
COUNTY IS ATTEMPTING TO USE AS
WITNESSES, (1) IS A SGT, (2) OFFICERS,
(1) OPR INVESTIGATOR, on the job 18mths,
this fight is from 2009 & I’ve been off since
2012, sooooo do the math. Yes, I will definitely
put your name out there in due time 😊😊. This is
a PSA for those of you still believing that being
a liar, brown noser will get you something.
MESSING WITH ME WILL GET YOU YOUR
OWN CERTIFIED MAIL. SO GLAD THAT
4 No. 17-2614
THE ARROGANCE OF THIS EMPLOYER
HAS THEM BELIEVING THEIR OWN 💩💩
In response the County moved for sanctions against
Emerson, and the district judge granted the motion. He
ordered Emerson to pay the County just under $17,000 as
compensation for the time it spent opposing her misconduct.
Discovery continued without further drama, and soon
the defendants moved for summary judgment. The judge
granted that motion as well. He first concluded that
Emerson’s 2012 grievance didn’t qualify as protected activity
under Title VII because it did not allege that Grochowski
targeted her because of her race, sex, or other protected
characteristic. As to the 2009 grievance, the judge deter-
mined that Emerson’s claim lacked a key piece of evidence.
She had no proof that Grochowski and Zurella ever knew of
the grievance, so she couldn’t establish that they harbored
the retaliatory motive necessary for a Title VII retaliation
claim.
II. Discussion
Emerson challenges both the summary judgment and the
award of sanctions. We review the first de novo, Valenti v.
Lawson, 889 F.3d 427, 429 (7th Cir. 2018), and the second for
abuse of discretion, Salmeron v. Enter. Recovery Sys., Inc.,
579 F.3d 787, 793 (7th Cir. 2009).
A. Title VII Claim
To state a retaliation claim under Title VII, “the plaintiff
must prove that he engaged in protected activity and
suffered an adverse employment action, and that there is a
causal link between the two.” Lord v. High Voltage Software,
No. 17-2614 5
Inc., 839 F.3d 556, 563 (7th Cir. 2016). Emerson falls far short
of establishing this prima facie case.
She first argues that both of her personnel grievances
qualify as “protected activity” under Title VII. That’s only
half right. “Although filing an official complaint with an
employer may constitute statutorily protected activity under
Title VII, the complaint must indicate [that] the discrimina-
tion occurred because of sex, race, national origin, or some
other protected class.” Tomanovich v. City of Indianapolis,
457 F.3d 656, 663 (7th Cir. 2006). The 2009 grievance includes
these kinds of allegations, but the 2012 claim does not. In
fact, Emerson admits her second grievance did not “claim
that what happened to [her] was due to race, color, national
origin, sex, or religion.” So if Emerson has a Title VII retalia-
tion claim, it must rest on the 2009 grievance alone.
That presents a second obstacle: Grochowski’s and
Zurella’s alleged misdeeds count as retaliation only if they
had actual knowledge of the 2009 grievance. Nagle v. Village
of Calumet Park, 554 F.3d 1106, 1122 (7th Cir. 2009). Emerson
has no evidence that they did. Grochowski and Zurella
weren’t named in the grievance, Emerson admits she never
spoke to either of them about it, and Zurella started working
at Division 9 more than two years after Emerson filed her
claim. On this record no reasonable jury could conclude that
Grochowski or Zurella retaliated against Emerson because of
the 2009 complaint.
Emerson has one argument in reply. She asks us to im-
pute actual knowledge to Grochowski because he twice
assigned her to work with Heilemann, a target of her 2009
grievance. That’s not enough to defeat summary judgment.
While we draw “reasonable inferences” in Emerson’s favor,
6 No. 17-2614
Mills v. Health Care Serv. Corp., 171 F.3d 450, 459 (7th Cir.
1999) (emphasis added), finding retaliatory intent on this
fact alone would be unvarnished “speculation,” Consolino v.
Towne, 872 F.3d 825, 830 (7th Cir. 2017). Emerson’s assertion
is a mere guess among the many reasons Grochowski could
have assigned her to work alongside Heilemann. And given
the other evidence, a mundane explanation stands head and
shoulders above the rest: Grochowski had no knowledge of
Emerson’s 2012 grievance, so he thought little of scheduling
her to work with Heilemann when operational need arose.
B. Motion for Sanctions
District courts have broad authority to “manage their
own affairs so as to achieve the orderly and expeditious
disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626,
630–31 (1962). “Sanctions meted out pursuant to the court’s
inherent power are appropriate where the offender has
willfully abused the judicial process or otherwise conducted
litigation in bad faith.” Salmeron, 579 F.3d at 793. The district
judge reasonably concluded that Emerson’s Facebook post
merited sanctions under these standards. She targeted and
publicly threatened potential witnesses if they spoke out.
Emerson’s arguments to the contrary border on prepos-
terous. She first claims that her pledge to serve “certified
mail” on those who “mess” with her is ambiguous. We see
no ambiguity, and neither did Emerson’s intended targets.
The County introduced evidence that at least one witness
felt threatened by the post and agreed to testify only by
declaration under seal. Next, Emerson argues that her
Facebook post “can be read fairly as an open call to the
union members to testify truthfully” because she threatened
only “liars” with legal action. That’s nonsensical. Emerson’s
No. 17-2614 7
post was a bald effort to “keep witnesses from testifying,”
United States v. Rand, 482 F.3d 943, 950 (7th Cir. 2007), and
we have long held that “witness tampering is among the
most grave abuses of the judicial process,” Ramirez v. T&H
Lemont, Inc., 845 F.3d 772, 782 (7th Cir. 2016).
Finally, Emerson challenges the amount of the sanctions
award even if it is otherwise proper. This argument has
nothing to it. The County submitted a detailed report of the
time spent litigating the sanctions issue, and it also sub-
mitted an affidavit in support of a proposed hourly rate. The
judge calculated the sanction by multiplying these together.
See Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th
Cir. 2011) (noting a “strong presumption” that this lodestar
calculation method “yields a reasonable attorneys’ fee
award”). Emerson does not offer a shred of evidence or
argument to explain why this was improper. It is her burden
to do so, and we will not rescue her on appeal. See Soler v.
Waite, 989 F.2d 251, 253 (7th Cir. 1993) (“The appellant bears
the burden of proving the abuse of discretion.”).
AFFIRMED.