Naficy v. Illinois Dep't of Human Services , 697 F.3d 504 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2144
H AMIDA H. N AFICY,
Plaintiff-Appellant,
v.
ILLINOIS D EP’T OF H UMAN S ERVICES,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:09-cv-05408—James F. Holderman, Chief Judge.
A RGUED M AY 23, 2012—D ECIDED S EPTEMBER 18, 2012
Before M ANION, R OVNER , and H AMILTON, Circuit Judges.
R OVNER, Circuit Judge. Hamida Naficy sued her em-
ployer, the Illinois Department of Human Services
(“IDHS”), alleging discrimination and retaliation under
42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e, et seq.
After dismissing the § 1981 claims, the district court
granted summary judgment to IDHS on Naficy’s Title VII
claims. Naficy appeals, and we affirm.
2 No. 11-2144
I.
Naficy, who is Iranian, began working for IDHS as
a social worker in 1996 at the Chicago Read Mental
Health Center. Social workers for IDHS are classified as
a Social Worker I, II, or III, respectively, with Social
Worker III being the most experienced. Naficy started
at Read Mental Health Center as a Social Worker II.
In 2000, she was promoted to the position of Social
Worker III and also transferred to the Madden Mental
Health Center.
At both Madden and Read, Naficy worked with
Judy Bailey. According to Naficy, Bailey mocked her
accent and suggested that she should not have been
promoted to a Social Worker III because she was Iranian.
In 2005, Bailey became director of the social work depart-
ment at Madden. As the director of the social work de-
partment, Bailey was Naficy’s supervisor. While Bailey
was her supervisor, Naficy filed two complaints of dis-
crimination. The first was filed in 2005 and related to
Naficy’s treatment during a layoff and subsequent
recall back to her previously held position. It is unclear
from the record precisely how that layoff affected
Naficy, but she was ultimately placed in a Social
Worker III position at Madden in September of that
same year. In April 2009, Naficy filed a second com-
plaint of discrimination after she received unfavorable
performance evaluations from Bailey.
Naficy’s current lawsuit arises out of events at Madden
in 2010 related to the closure of another IDHS facility—the
Howe Developmental Center in Tinley Park, Illinois. In
No. 11-2144 3
implementing the Howe closure, IDHS was obligated to
follow certain provisions of a collective bargaining agree-
ment (“CBA”) in effect between it and the American
Federation of State, County and Municipal Employees
(“AFSCME”). Like most IDHS employees, Naficy is a
member of AFSCME. The CBA governs layoffs, and
closing the entire Howe Developmental Center naturally
necessitated a number of layoffs.
The CBA provides that in the event of a layoff, em-
ployees may take advantage of a process known as
“bumping,” whereby more senior employees may
displace or “bump” less senior employees subject to
the CBA at other IDHS facilities. The CBA sets forth
the procedures that must be followed for more senior
employees to bump less senior employees. First, IDHS
must notify all employees potentially affected by a
layoff of their rights under the CBA. This notification
must include the following information: (1) a roster
listing employees either subject to layoff or affected by
the layoff and their respective seniority dates, (2) a list
of IDHS vacancies, and (3) available “bumping” options
for employees who may be affected by layoff.
The bumping options are exercised according to senior-
ity: “Starting with the highest bargaining unit and pay
grade” an employee may choose to “exercise or waive” his
or her available bump options. The process, outlined in
detail in the CBA, proceeds according to what are identi-
4 No. 11-2144
fied as “bumping priorities” one through six.1 First, an
employee subject to layoff “shall bump the least senior
employee in the same position classification and work
location.” (Art. XX - Layoff, §§ 3(c)-(h).) Second, if no
one is available to bump at that work location, the em-
ployee must bump the least senior employee in that
position classification at another facility within the
county. (Id. § 3(d).) If neither of those options is avail-
able, number three directs the employee to bump into
the next lower position in the same position classifica-
tion series at the same work location. (Id. § 3(e).) If there
is no such available position, an employee must then
bump into the next lower position somewhere within
the county. (Id. § 3(f).) If options one through four are
not possible, steps five and six allow an employee to
bump into a “previously certified position classification”
in either the same work location (step five) or elsewhere
within the county (step six). (Id. §§ (g)-(h).)
In January 2010, Naficy and other IDHS employees
potentially affected by the Howe closure received a
letter alerting them to the possibility of a layoff and
outlining potential bump options available to them.
Naficy’s letter listed her potential bump options as
follows: (1) Social Worker III at Madden Mental Health
1
In the district court, Naficy denied all of IDHS’s statements
of material fact relating to the layoff procedures, but she cited
no contradictory evidence refuting the procedures. Like the
district court, we accept IDHS’s statements of fact and the
text of the CBA itself as undisputed on this point because
Naficy has offered nothing that undermines either one.
No. 11-2144 5
Center, (2) Social Worker III (Spanish speaking) at
Madden, (3) Social Worker III (part-time) at Madden, and
(4) Social Worker II at Madden. The letter also explained
that she could “choose not to bump,” and select an IDHS
vacancy for which she was qualified anywhere in the
state, seniority permitting. The letter also contained an
employment application that Naficy could use to deter-
mine whether she was qualified for a “lateral move or
voluntary reduction” into a position included on a pub-
lished vacancy list. The letter was signed by Elizabeth
Sarmiento, the Director of Human Resources. Finally,
the letter informed Naficy that the meeting to dis-
cuss her potential options would be held at the Howe
Developmental Center on February 2, 2010.
At that time, Naficy met with Mark Samaras, the man-
ager of the Bureau of Human Relations, to discuss her
options. According to IDHS, as employees exercised
their bumping options, Naficy was bumped from her
position by a more senior IDHS employee. She asserts
that during her meeting Samaras told her, without ex-
planation, that her only remaining option was to take
the part-time Social Worker III position at Madden. In
addition to being part instead of full time, that position
required Naficy to switch from working typical day
shifts to working nights from midnight until 6:45 a.m.
three days a week (Tuesday, Wednesday, and Saturday).
IDHS staff filled out a form for Naficy to sign reflecting
her decision to bump into the part-time position. Naficy
was officially reassigned to the part-time position
on June 1, 2010. She was allowed to return to her
former position (full-time Social Worker III) with the
6 No. 11-2144
same schedule and salary two months later on August 1,
2010.
At the time of the Howe layoffs, there were three other
Social Worker III employees at Madden who were less
senior than Naficy. The first, Jaime DeJesus, speaks
fluent Spanish and held the Spanish-speaking Social
Worker III position. The second, Sharon Byrne, waived
her right to bump under the terms of the CBA.2 When
the bumping process was complete at the end of
February, Byrne transferred into a vacant full-time
Social Worker II position in Elgin, Illinois. The third,
William Safian, worked as a part-time Social Worker III.
Safian was laid off because Naficy bumped Safian when
she moved into what had previously been his part-time
position.
Naficy filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) in March 2010,
alleging that her reassignment to the part-time position
was discriminatory and retaliatory. Specifically, she
2
In her response to IDHS’s statements of material fact, Naficy
denied the allegation that Byrne waived her right to bump. The
district court concluded that Naficy had failed to provide
any evidence contradicting IDHS’s evidence on this point
and observed that despite her denial Naficy “appear[ed] to be
in general agreement that Byrne did not elect to bump and
was allowed to fill a vacant position as a Social Worker II at
the Elgin facility.” Like the district court, we can see nothing
in the record that undermines IDHS’s evidence that Byrne
waived her right to bump and later transferred into the
Social Worker II position.
No. 11-2144 7
claimed that IDHS reassigned her to retaliate for
previous discrimination complaints she had filed with
the EEOC and because she is Iranian. On April 14, 2010,
Naficy received a right-to-sue letter from the EEOC.
Naficy sued IDHS for discrimination and retaliation
under both Title VII and 42 U.S.C. § 1981. The district
court dismissed Naficy’s claims under § 1981 reasoning
that as a state agency, IDHS is not a “person” amenable
to suit under 42 U.S.C. § 1983, see, e.g., Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 70-71 (1989), which
“constitutes the exclusive federal remedy for violation
of the rights guaranteed in § 1981 by state governmental
units.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733
(1989).3 The court then granted summary judgment to
IDHS on Naficy’s Title VII claims. Specifically, the court
concluded that Naficy had no direct evidence of discrimi-
nation by anyone involved in her reassignment. Naficy’s
claims fared no better under the indirect method,
where the district court observed that she had failed
to identify a similarly situated IDHS employee who
received better treatment than she during the Howe
layoffs. Finally, the court rejected Naficy’s retaliation
3
Although it is questionable whether this portion of Jett
survived the 1991 amendments to § 1981, Naficy has not
appealed the district court’s dismissal of her § 1981 claims. In
any event, Naficy would still have had to show a pattern or
practice of discrimination by IDHS, see Smith v. Chicago Sch.
Reform Bd. of Tr., 165 F.3d 1142, 1148-49 (7th Cir. 1999), and
there is no suggestion from the record that she could have
done so.
8 No. 11-2144
claim because Naficy had produced no evidence that her
EEOC complaints motivated her reassignment during
the Howe layoffs. Moreover, the considerable temporal
gap between her complaints (one in 2005 and one in
April 2009) and the February 2010 layoffs undermined
the claim of a causal connection between the two.
II.
We review the district court’s grant of summary judg-
ment de novo, examining the record in the light most
favorable to Naficy and construing all reasonable infer-
ences from the evidence in her favor. E.g., O’Leary v.
Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).
Summary judgment is appropriate when there are no
genuine disputes of material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
As relevant here, Title VII forbids an employer from
discharging or demoting an individual on account of
her race or national origin. 42 U.S.C. § 2000e-2. Title VII
also prohibits retaliation for protesting employment
discrimination and other unlawful practices under the
statute. Id. § 2000e-3(a). We begin with Naficy’s discrim-
ination claims. A plaintiff alleging disparate treatment
on account of national origin may prove discrimination
either directly or under the indirect burden-shifting
approach outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1972). Naficy claims she has advanced
sufficient evidence to withstand summary judgment
under both the direct and indirect methods. We disagree.
No. 11-2144 9
To avoid summary judgment using the “direct method,”
a plaintiff must marshal sufficient evidence, either direct
or circumstantial, that an adverse employment action
was motivated by discriminatory animus. E.g., Coleman
v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). Direct
evidence “usually requires an admission from the
decisionmaker about his discriminatory animus, which
is rare indeed.” Nagle v. Vill. of Calumet Park, 554 F.3d
1106, 1114 (7th Cir. 2009). Circumstantial evidence may
be sufficient to make out a direct claim of discrimina-
tion when the plaintiff presents enough evidence to
allow a reasonable factfinder to conclude that the
adverse employment action was taken as a result of the
plaintiff’s race or national origin. Dass v. Chicago Bd. of
Educ., 675 F.3d 1060, 1071 (7th Cir. 2012).
Naficy points to several facts that she believes amount
to direct evidence that IDHS discriminated against her
in the bumping process. First, she makes much of
the fact that despite her seniority, she was denied the
Spanish-speaking Social Worker III position given to
DeJesus. As best we can tell, she is suggesting that she
has shown discrimination from the fact that IDHS had
a need for a Spanish-speaking social worker instead of a
multilingual employee, like Naficy, who spoke Farsi
(Iranian) and Dari (Afghan).4 And although she asserts
4
Although it is not relevant to the outcome of the appeal, we
note that there is some confusion surrounding which
languages Naficy speaks. Naficy’s brief states that she speaks
(continued...)
10 No. 11-2144
without support that IDHS “falsely” said the position
was for a Spanish speaker, there is no evidence in the
record that supports this claim. The relevant question
under the direct method is whether the evidence “points
directly” to a discriminatory motive for the employer’s
decision. See Kodish v. Oakbrook Terrace Fire Prot. Dist.,
604 F.3d 490, 501 (7th Cir. 2010) (citation and internal
quotations omitted). The fact that IDHS gave preference
to a Spanish-speaking employee for a Spanish-speaking
position not only fails to “point directly” to discrimina-
tion, it does not even raise the implication of discrim-
ination. The only reasonable inference to be drawn from
the fact that IDHS gave the position to DeJesus and
not Naficy is that it needed an individual who spoke
Spanish—a fact that has no bearing on whether or not
IDHS did or did not want employees who spoke Per-
sian. There is no evidence that there was a need for a Farsi
or Dari-speaking Social Worker III. It thus strains reason
to suggest that a Farsi speaker should be chosen for a
Spanish-speaking position or to imply that discrimination
motivated the choice of DeJesus over Naficy. The CBA
expressly reserves IDHS’s right during a layoff “to estab-
4
(...continued)
“various Arab dialects,” but she explained in her affidavit in
the district court that she speaks “Farci (Iranian) and Darai
(Afghan).” We assume this means that she speaks Per-
sian—specifically Farsi or Parsi (spoken in Iran, Afghanistan,
and Tajikstan) and Dari (one of the two official languages
of Afghanistan). See Persian Language, Wikipedia, http://
en.wikipedia.org/wiki/Farsi (last visited Aug. 3, 2012).
No. 11-2144 11
lish bona fide requirements of specialized skills, training,
experience and other necessary qualifications[.]” Naficy
can point to nothing suggesting that IDHS did not have
a bona fide need for a Spanish speaker, and thus its
choice of DeJesus for the position does not raise an in-
ference of discrimination.
Naficy next asserts that discrimination is shown by
the fact that Sandra Byrne was allowed to “bump social
worker II’s for a position,” and Naficy was not. This
claim is inconsistent with the uncontroverted evidence.
Byrne waived her right to bump. She thus did not “bump”
anyone; instead, she transferred into a position that
became open after those employees who opted to
exercise their bumping rights had completed that pro-
cess. Naficy fails to point to any evidence that undercuts
this chain of events. She makes much of the fact
that Samaras did not tell her during the meeting that she
could elect not to participate in the bumping process.
But the letter listing her options plainly stated that she
could “choose not to bump” in hopes of transferring into
a vacancy for which she was qualified. It is true that
the position which Byrne ultimately transferred into
did not appear on the original list of vacancies attached
to the January 2010 letter. IDHS presented evidence
that the Social Worker II position in Elgin was added to
the vacancy list via addendum in February after the
union requested that IDHS update the list of vacant
positions. Naficy offers nothing to refute this explana-
tion as to how this position became available. Thus,
Byrne’s treatment does not support the inference that
12 No. 11-2144
anyone at IDHS intended to discriminate against Naficy
on the basis of her national origin.
Lastly, Naficy points to her supervisor Judy Bailey,
claiming that she openly disparaged Naficy’s accent
and attempted to prevent her from obtaining a Social
Worker III position from a recall list during a prior
layoff in 2005 (an incident that formed the basis for
Naficy’s 2005 EEOC complaint). She has neither explained
what happened in the 2005 layoff nor connected her
treatment during it to her reassignment during the
2010 Howe layoffs. Moreover, Naficy has not linked
Bailey to her February 2010 reassignment. Samaras, the
Human Relations manager, testified in his deposition
that Bailey had no input into the layoff process that
accompanied the closure of Howe. Bailey also testified
that she was uninvolved in the process and in fact did
not know Samaras. Naficy’s “evidence” that Bailey
was somehow connected is based on her bare assertion
that Bailey was upset when she heard that Naficy took
the part-time position. Specifically, Naficy claims that
when she informed Bailey after the meeting that she
had taken the part-time position, Bailey was “actually
angry” and asked Naficy why she took the part time
job. Naficy took this response to mean that Bailey some-
how had a hand in the layoff process and had been
hoping to use it as an opportunity to eliminate Naficy
because she is Iranian. Naficy further claims that
Bailey’s “anger” proves that she was unhappy that Naficy
bumped a non-Iranian out of the position and did not
lose her job entirely. Bailey, for her part, testified that
she was “surprised and kind of shocked that a full-time
No. 11-2144 13
employee would select a part-time position,” and that
she had urged Naficy to speak to her union representa-
tive, which Naficy did. We may accept Naficy’s view of
Bailey’s reaction, but it does nothing to prove Bailey had
a hand in the layoffs. And without evidence con-
necting Bailey to the layoff process, her alleged discrim-
inatory animus towards Naficy is irrelevant. See Martino
v. MCI Commc’n Servs., Inc., 574 F.3d 447, 452-53 (7th
Cir. 2009) (individual’s discriminatory comments only
relevant if he was a decisionmaker or had “ ‘singular
influence’ ” over the decisionmaker) (internal citation
omitted). There is thus neither direct nor circumstantial
evidence in the record sufficient to create a triable
issue of fact of discrimination under the direct method.
Naficy’s discrimination claim fares no better under
McDonnell Douglas’s indirect burden-shifting method.
Under this method, a plaintiff must first establish a
prima facie case of racial or national origin discrimina-
tion with evidence that (1) she is a member of the
protected class; (2) she met her employer’s legitimate
job expectations; (3) she suffered an adverse employ-
ment action; and (4) similarly situated employees outside
of the protected class were treated more favorably. E.g.,
Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 702
(7th Cir. 2012). If Naficy succeeds in establishing a
prima facie case, the burden shifts to IDHS to introduce
a legitimate, nondiscriminatory reason for the employ-
ment action. Id. Then Naficy could avoid summary judg-
ment with evidence suggesting that IDHS’s stated
reason is in fact pretextual.
14 No. 11-2144
Although Naficy can establish the first through third
elements of a prima facie case, she fails to identify a
similarly situated employee who was not adversely
affected in the layoffs. Naficy insists that both DeJesus
and Byrne are similarly situated employees. But as dis-
cussed above, both individuals differ from Naficy in
critical respects. DeJesus speaks Spanish, and Naficy
admittedly does not. He was therefore qualified for the
Spanish-speaking position, a material difference be-
tween him and Naficy that provides a nondiscrim-
inatory explanation as to why he was not bumped from
his full-time position. As for Byrne, her decision to opt
out of the bumping process placed her in a funda-
mentally different position than Naficy when it came to
the layoffs. By waiving her right to bump, Byrne
removed herself entirely from the process (at the risk of
losing her job if no vacancies remained when the
bumping was complete). She is therefore an unsuitable
comparator for Naficy.
Naficy devotes much of her brief to lengthy quotes
from our recent decision in Coleman v. Donahoe, 667 F.3d
835 (7th Cir. 2012), where we discussed the similarly
situated requirement in the context of a Postal Service
employee’s discrimination claim. We acknowledged in
Coleman that employees need not be carbon copies, nor
must they be “identical in every conceivable way” in
order to provide a useful comparator. See id. at 846. True
as this may be, it is unhelpful for Naficy, because the
distinctions between herself and her would-be compara-
tors, DeJesus and Byrne, are material in that they go to
the heart of why Naficy received different treatment.
No. 11-2144 15
And the differences—that DeJesus spoke Spanish and
that Byrne waived her right to bump—provide a reason
for their better treatment entirely unrelated to Naficy’s
national origin.
Indeed, these differences provide the basis of IDHS’s
legitimate, nondiscriminatory explanation for Naficy’s
treatment. And Naficy has provided no evidence that
refutes or casts doubt on IDHS’s explanation. Thus, we
could go so far as to assume Naficy had established
a prima facie case under the indirect method, and her
claim would still fail on account of her inability to
cast doubt on IDHS’s nondiscriminatory reason for the
employment action. See Keeton v. Morningstar, Inc., 667
F.3d 877, 885 (7th Cir. 2012).
That leaves Naficy’s retaliation claim. Like discrimina-
tion under Title VII, retaliation may be proven using
either the direct or indirect method. Naficy discusses
only the direct method in her brief. Under the direct
method, Naficy may avoid summary judgment by pre-
senting evidence of (1) statutorily protected activity,
(2) an adverse action (sufficiently material to deter pro-
tected activity), and (3) a causal connection between
the two. E.g., Harper v. C.R. England, Inc., 687 F.3d 297, 306
(7th Cir. 2012). Naficy can show causation with evidence
that her EEOC filings in 2005 and 2009 were a “substantial
or motivating factor” in her treatment during the
Howe layoffs. Coleman, 667 F.3d at 860 (internal quota-
tions and citation omitted).
The parties agree that Naficy’s charges of discrimina-
tion in 2005 and April 2009 constitute statutorily pro-
16 No. 11-2144
tected activity and that her reassignment to the part-time
position is a materially adverse employment action. The
sole question is thus whether Naficy has adequately
connected the two. As with discrimination, “direct”
evidence of retaliation may be proven by evidence
showing retaliation without resort to inference, id.,—i.e.,
something along the lines of a direct admission that
Naficy’s complaints motivated her reassignment to the
part-time position. See Benders v. Bellows & Bellows, 515
F.3d 757, 764 (7th Cir. 2008) (noting the “rare” nature of
truly “direct evidence”). Naficy has no such evidence
linking her reassignment to her previous complaints of
discrimination. Instead, she attempts to connect the
two using what we have recognized as a “ ‘convincing
mosaic’ of circumstantial evidence” that supports an
inference of retaliation. Coleman, 667 F.3d at 860 (internal
citation omitted). Such circumstantial evidence in-
cludes suspicious timing, evidence that similarly situated
employees were treated differently, or evidence that the
employer’s stated reason for the adverse employment
action was pretextual. Id.
As for suspicious timing, the large temporal gaps be-
tween her complaints and her reassignment undercut,
rather than support, a causal link between the two.
Her first EEOC complaint was filed in 2005 and related
to an earlier IDHS layoff. The five-year gap between
her complaint and the Howe layoffs makes it extremely
unlikely that the two events were related. Likewise, the
nine-month gap between her second complaint—filed
in April 2009—does little to raise suspicion about
Naficy’s treatment during the layoff. See Jajeh v. County
No. 11-2144 17
of Cook, 678 F.3d 560, 570 (7th Cir. 2012) (five-month gap
between complaint of discrimination and adverse em-
ployment action did not amount to suspicious timing);
Leonard v. E. Ill. Univ., 606 F.3d 428, 432 (7th Cir. 2010)
(noting that six-month lag between complaint and denial
of promotion was “too long to infer a link between the
two”).
As evidence of disparate treatment or pretext, Naficy
provides page after page of quotations from Coleman
and other retaliation cases, but says precious little
indeed about how she has actually established a causal
link between her EEOC complaints and her ultimate
reassignment during the Howe layoffs. Indeed, her pri-
mary argument on this point is her assertion, buried
among several pages of quotes from Coleman and other
decisions, that IDHS “qualified Plaintiff for bumping
positions which disappeared and came up with posi-
tions which were not presented as alternatives to
Plaintiff in formal notices (Social worker—Spanish speak-
ing; Elgin social worker position, etc.).” This account of
DeJesus and Byrne’s treatment during the layoff does
nothing to establish retaliatory motive on the part of
IDHS. As discussed above, IDHS has provided a
legitimate, nondiscriminatory explanation for why
Naficy’s only option in the bumping process was the part-
time position, and also why Byrne—who waived her
right to bump—was able to transfer into the position
in Elgin at the conclusion of the bumping process. Pre-
sumably her assertion that positions “disappeared” refers
to positions listed in the January 2010 letter that were
no longer available when she spoke to Samaras at her
18 No. 11-2144
February meeting. But IDHS explained that as senior
employees exercised their bumping options Naficy was
bumped from her position and several of the listed
choices in her letter became unavailable. And although
Naficy cites multiple cases for the proposition that
pretext may be proven with evidence that an employer
lied or failed to follow its own policies, she fails to
identify any instance showing that IDHS is guilty of
such behavior. There is no evidence in the record that
Naficy’s experience deviated in any way from the bumping
protocol set forth in the CBA. In short, Naficy
offers nothing but her own speculation to suggest
that IDHS’s explanations are pretextual, and that is insuf-
ficient. Overly v. KeyBank Nat’l Ass’n, 662 F.3d 856, 864
(7th Cir. 2011) (“[R]eliance on speculation is not enough
to get the case to a jury.”)
The last potential evidence of retaliation is Naficy’s
claim that Bailey knew of and disapproved of her EEOC
complaints. This claim, too, goes nowhere. First, she cites
no evidence to support her claim that Bailey knew about
her complaints. More importantly, as discussed above,
Naficy has failed to link Bailey to the layoff procedure
or identify any evidence calling into question IDHS’s
evidence that Bailey had no involvement in the layoff
process and Naficy’s reassignment in particular. As
such, there is no record evidence from which a rational
juror could infer IDHS reassigned Naficy to retaliate
against her for her 2005 and 2009 complaints of discrim-
ination.
No. 11-2144 19
III.
As the concurring opinion in Coleman recently recog-
nized, after setting aside the “snarls and knots” occasioned
by using the “direct” and “indirect” formulations, the
question is simply whether the plaintiff has “one way or
the other” presented sufficient evidence that she is pro-
tected by the statute, suffered an adverse employment
action, and sufficient evidence exists that a rational jury
might conclude the employer acted on account of the
plaintiff’s protected class as opposed to some other
benign reason. Coleman, 667 F.3d at 863 (Wood, J. concur-
ring). Regardless of how the evidence is viewed, Naficy
has offered nothing from which a rational juror could
conclude that her reassignment to a part-time position
in the wake of the Howe layoffs was motivated by
either discrimination or retaliation.
Accordingly, we A FFIRM the judgment of the district
court granting summary judgment to IDHS on Naficy’s
claims.
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