Kendalynn Jackson v. Illinois Department of Commerc ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 25, 2022
Decided July 29, 2022
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-1168
KENDALYNN JACKSON, Appeal from the United States District Court
Plaintiff-Appellant, for the Central District of Illinois.
v. No. 3:17-cv-03106-RM-TSH
ILLINOIS DEPARTMENT OF Richard Mills,
COMMERCE AND ECONOMIC Judge.
OPPORTUNITY, et al.,
Defendants-Appellees.
ORDER
This is a section 1983 case in which a state employee charges her two former
supervisors with race and sex discrimination in violation of the Fourteenth
Amendment’s Equal Protection Clause based on a negative performance evaluation and
an unpaid, seven-day suspension. 42 U.S.C. § 1983. The district court granted summary
judgment in favor of the defendants. We affirm.
No. 21-1168 Page 2
I.
Plaintiff Kendalynn Jackson worked for the Illinois Department of Commerce
and Economic Opportunity (“DCEO” or “the Department”) as a tax incentive program
manager in the Office of Business Development from September 2014 to May 2017,
when she made a lateral move to the Illinois Department of Transportation. During her
tenure at the DCEO, she was supervised by Deputy Director Victor Narusis from May
2015 to August 2016 and by Assistant Deputy Director Ben Denney from August 2016
until her departure for the Department of Transportation. Jackson is Black and female;
Narusis and Denney are both male. Jackson has named both Narusis and Denney as
defendants, alleging that they are responsible for the discriminatory employment
actions of which she complains. See Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 614
(7th Cir. 2002) (“It is well-established that a plaintiff only may bring a § 1983 claim
against those individuals personally responsible for the constitutional deprivation.”).
Although her predecessor at DCEO had enjoyed the support of a full-time
employee to assist him, that employee was transferred to another group not long after
Jackson joined the Department, and thereafter Jackson was instead supported by a
succession of no less than 18 temporary employees and interns. The defendants
attribute the lack of a permanent, full-time assistant to a hiring freeze; Jackson cites it as
the first of many aspects of a discriminatory campaign to isolate her and make it
difficult for her to do her job.
In September 2016, Narusis, who had become Jackson’s supervisor when he
joined the Department in May 2015, completed a series of long-overdue performance
evaluations of Jackson covering her first year of employment with DCEO: an initial
probationary evaluation for the period beginning on September 16, 2014, and ending on
November 15, 2014 (her first 60 days); a final probationary evaluation for the period
beginning on September 16, 2014, and ending on December 31, 2014; and a regular
evaluation for the full year beginning on September 16, 2014, and ending on August 31,
2015. Each rated her performance as “met” or “acceptable” as to all performance
objectives. (In consultation with human resources personnel, Narusis gave satisfactory
ratings to all employees under his supervision in their evaluations for this time period
due in part to the delinquency of all such evaluations and in part due to the fact that
Narusis did not join the department until after the time period relevant to these
evaluations had concluded.) The third evaluation also included performance objectives
for the subsequent work year ending in August 2016, which of course by September
2016 had already concluded.
No. 21-1168 Page 3
Then, one month later, in October 2016, Narusis completed Jackson’s annual
evaluation for the year ending August 31, 2016, rating her performance as unacceptable
with respect to a number of the performance objectives included in the 2015 evaluation
issued the prior month. Jackson objected to the negative ratings on the basis inter alia
that the pertinent objectives had only been identified one month earlier (after the 2016
work year had already ended), although Narusis represented that the objectives were
consistent with Jackson’s job description and had otherwise been communicated to her
previously. Narusis also cited emails and examples of Jackson’s work in support of the
negative ratings. Jackson offers a number of criticisms of the evaluation process,
including the fact that she was not permitted to adequately respond to the allegedly
false appraisal of her work performance.
Apart from the disputed performance evaluation, Jackson subsequently was
given a seven-day unpaid suspension effective November 17, 2016, based on two
incidents relating to her conduct with an agency outsider and with Denney, who by this
time had succeeded Narusis as her supervisor.
The first incident involved an October 2016 phone call with Mark Rothart, an
enterprise zone administrator (in effect, a DCEO stakeholder or customer). The
allegation was that Jackson yelled at Rothart and was otherwise rude, unprofessional,
and abusive with him during the call. Denney, by his account, ultimately stepped in and
took over the call. Jackson admitted that she had raised her voice at one point during
the call—she contends that Rothart was shouting at her and was abusive with her—but
denies that she herself was rude, unprofessional, or abusive with him.
The second incident involved Jackson’s reaction to General Counsel Justin
Heather’s decision to edit and then issue, under Jackson’s name, an internal memo she
had written regarding a 2017 enterprise zone for Bloomington-Normal, Illinois. Heather
corrected a portion of the memo to reflect recent developments regarding a legal issue
and otherwise made some editorial and stylistic changes to the memo before
forwarding it to the Department Director for approval. Jackson did not dispute that
Heather properly reviewed her memo as he did with other, similar memoranda, but she
objected to the fact that it was issued under her name as revised without her first having
seen the updated version. She confronted Denney over the matter, and Denney alleged
that Jackson was agitated, aggressive, yelling, uncooperative, and unprofessional
during the multiple conversations she had with him about the revised memo. Jackson
disputes that she behaved as Denney alleged.
No. 21-1168 Page 4
Jackson continued working for the DCEO until May 2017, when she accepted a
new position with the Department of Transportation, where she earned the same rate of
pay as she had at DCEO.
Prior to accepting her new position, Jackson filed suit against Denney, Narusis,
and DCEO, contending that Denney and Narusis had discriminated against her based
on her race and gender in violation of her rights under the Equal Protection Clause of
the Fourteenth Amendment and that all three defendants took retaliatory action against
her in violation of the Illinois State Officials and Employees Ethics Act, 5 ILCS 430/15-10.
The district court dismissed the state claim as to all three defendants based on Eleventh
Amendment and statutory sovereign immunity (R. 16), leaving only the equal
protection claims against Denney and Narusis.
In response to the individual defendants’ subsequent motion for summary
judgment, Jackson cited the negative evaluation in 2016 (premised on performance
objectives that had only been articulated after the fact in the prior evaluation for 2015)
and the seven-day suspension as adverse employment actions that she attributed to her
gender and race. (She also had alleged a hostile work environment in her complaint, but
she did not discuss this in opposing summary judgment and any such claim was
deemed abandoned.)
The district court agreed with Jackson that the three 2014-15 evaluations were
late and that the last of those evaluations included performance objectives that would
have been impossible for her to meet for 2016 because they were communicated to her
after the fact. However, the court, consistent with Seventh Circuit precedent, held that
negative evaluations in and of themselves did not constitute adverse employment
actions. R. 30 at 17; see de la Rama v. Ill. Dep’t of Human Servs., 541 F.3d 681, 686 (7th Cir.
2008) (collecting cases).
As to the suspension, although Jackson disputed the way in which her conduct
had been characterized, the court reasoned that her allegations did not call into question
the honesty of the defendants’ perception that she had behaved in the way they said she
had behaved. In other words, there was nothing to suggest that either Denney or
Narusis did not sincerely believe that Jackson was agitated and had behaved
unprofessionally. R. 30 at 18–19. Finally, the court did not see any evidence in the record
supporting the notion that Jackson’s race or gender played a role in Jackson’s
suspension. R. 30 at 19. “There is no evidence that Defendants lied about the reason for
the suspension. The explanation offered for the suspension was consistent. At most, the
Parties had different interpretations of the same events.” R. 30 at 19. With the federal
claims disposed of, the district court relinquished supplemental jurisdiction over the
No. 21-1168 Page 5
state claim (which the court had previously resolved against Jackson on immunity
grounds) and dismissed that claim without prejudice. R. 30 at 21.
II.
We review the district court’s decision to enter summary judgment in the
defendants’ favor de novo. E.g., Gaddis v. DeMattei, 30 F.4th 625, 630 (7th Cir. 2022). We
take the evidence and all reasonable inferences that may be drawn therefrom in the
plaintiff’s favor. Eaton v. J.H. Findorff & Son, Inc., 1 F.4th 508, 511 (7th Cir. 2021). We do
not “assess the credibility of witnesses, choose between competing reasonable
inferences, or balance the relative weight of conflicting evidence.” Driveline Sys., LLC v.
Arctic Cat, Inc., 936 F.3d 576, 579 (7th Cir. 2019) (quoting Stokes v. Bd. of Educ. of City of
Chi., 599 F.3d 617, 619 (7th Cir. 2010)).
As we noted at the outset, Jackson contends that her former state supervisors
subjected her to multiple discriminatory actions based on her race and gender, in
violation of the Fourteenth Amendment’s Equal Protection Clause. An employment-
related equal protection claim of this nature is evaluated using the same standards we
apply to Title VII claims. Purtue v. Wis. Dep’t of Corr., 963 F.3d 598, 601 (7th Cir. 2020)
(Barrett, J.) (citing de Lima Silva v. Dep’t of Corr., 917 F.3d 546, 559 (7th Cir. 2019)).
Jackson is not relying on the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), to make her case of discrimination. Instead, she
is making a case based on the whole of the evidence she has assembled that the
defendants took discriminatory action against her based on her race and gender. See
Reives v. Ill. State Police, 29 F.4th 887, 892 (7th Cir. 2022); Chatman v. Bd. of Educ. of City of
Chi., 5 F.4th 738, 746 (7th Cir. 2021); Purtue, 963 F.3d at 601–02; Khowaja v. Sessions, 893
F.3d 1010, 1014 (7th Cir. 2018); Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887,
894 (7th Cir. 2018); Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). Her case
need not satisfy any formula or rest upon any particular type of evidence in order to
survive the defendants’ motion for summary judgment. See Purtue, 963 F.3d at 602
(citing Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 929 (7th Cir. 2020)). So long as the
factfinder could reasonably conclude from the totality of the evidence presented that
Jackson’s race and/or sex was the cause of the employment decisions of which she
complains, the case must proceed to trial. See id. (citing Johnson, 893 F.3d at 894).
One necessary element of Jackson’s discrimination claim is an adverse
employment action. Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 635 (7th Cir. 2013). An
adverse employment action typically involves a material change in the terms or
conditions of employment. See Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744–45
No. 21-1168 Page 6
(7th Cir. 2002) (listing examples). As noted, the district court agreed with Jackson that
her seven-day unpaid suspension constituted an adverse employment action, see
Whittaker v. N. Ill. Univ., 424 F.3d 640, 647 (7th Cir. 2005) (“[A] suspension without pay
… would constitute an adverse employment action”) (citing Markel v. Bd. of Regents of
Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir. 2002)), but the court held that the negative
job evaluation for 2016 by itself did not constitute such an action. Jackson argues the
latter holding was incorrect, given that the negative performance assessments had a
direct bearing on her eligibility for promotion as a matter of Illinois statute. See 20 ILCS
415/8b.2 & 8b.14 (outlining “promotion” and “performance records”); People ex rel.
Mathes v. Foster, 353 N.E.2d 366, 370 (Ill. App. Ct. 1976), j. aff’d, 367 N.E.2d 1320 (Ill.
1977). Yet, even if we give Jackson the benefit of any doubt on this point, but see Pierri v.
Medline Indus., Inc., 970 F.3d 803, 808 (7th Cir. 2020) (“[A] hypothetical loss of potential
future bonuses does not constitute an adverse employment action.”), the defendants
were nonetheless entitled to summary judgment on another ground.
Jackson must show that the defendants took these adverse employment actions
against her because of her race and gender. See Igasaki v. Ill. Dep’t of Fin. & Prof. Reg., 988
F.3d 948, 95859 (7th Cir. 2021); Khowaja, 893 F.3d at 1014, 1016; Johnson, 892 F.3d at 894;
Hedrich v. Bd. of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1183 (7th Cir. 2001); Nabozny
v. Podlesny, 92 F.3d 446, 453–54 (7th Cir. 1996); Huebschen v. Dep’t of Health & Social
Servs., 716 F.2d 1167, 1171 (7th Cir. 1983), abrogated on other grounds by Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). Her brief in this respect
largely focuses on her unpaid suspension, and what she maintains is the pretextual
nature of the defendants’ stated reasons imposing that suspension on her. The
suspension was, according to the defendants, premised on the two instances of
unprofessional conduct we have described: she allegedly yelled at and was
discourteous with agency stakeholder Mark Rothart in the phone call that Denney
ultimately took over, and she was likewise agitated, yelling, and unprofessional when
she discussed with Denney the modifications that Heather had made to her memo.
Apart from Rothart, Jackson and Denney are the only two people with personal
knowledge of the two encounters and how Jackson comported herself in those
encounters. They gave directly contradictory accounts in that respect, with Jackson
insisting that she was not rude, agitated, shouting, or otherwise unprofessional in either
instance. As we noted earlier, the district court accepted as true Jackson’s averment that
she remained professional at all times but deemed this insufficient to call into question
the honesty of Denney’s belief that she had behaved as he had described or Narusis’s
No. 21-1168 Page 7
decision to credit Denney’s account when he imposed the suspension on Jackson. R. 30
at 19.
We take the district court’s point that there is a distinction between the accuracy
of an employer’s stated reasons for taking disciplinary action against an employee and
the honesty of the employer’s articulation of those reasons, e.g., Liu v. Cook Cnty., 817
F.3d 307, 316 (7th Cir. 2016), but for present purposes we can assume arguendo that
Jackson’s account establishes a dispute of fact as to both grounds for the suspension.
That is, we can assume that if a jury, after hearing the conflicting accounts from these
two witnesses at trial, believed Jackson’s testimony that she behaved in a measured and
professional matter in dealing with Rothart and Denney, it could also infer that Denney
could not honestly have perceived her conduct as unprofessional.
Of course, it was Narusis, according to the defendants, who made the decision to
suspend Jackson, and Jackson faces a steeper obstacle in her effort to show that even if
Denney gave a dishonest account of her interactions with Rothart and himself, Narusis
himself did not honestly believe Denney’s version of events and acted accordingly
when he decided to discipline Jackson. Indeed, apart from Denney’s account, there was
an email from Rothart addressing his telephone call with Jackson and there were two
employees who witnessed Jackson’s interactions with Denney regarding the
memorandum revised by Heather and backed up his account. But we may set that point
aside.
Jackson’s rationale as to her negative 2016 performance evaluation and whether
the criticisms of her performance in that evaluation were pretextual is essentially the
same as it is with respect to the suspension: that the stated criticisms of her performance
were dishonest. The district court itself agreed that the goals articulated for the 2016
evaluation were late (in that they had only been articulated in the 2015 evaluation
issued one month earlier) and that Jackson could not have been expected to meet them.
As with the suspension, we may again assume, without deciding, that a jury could find
the criticisms set forth in the 2016 evaluation were pretextual.
Pretext is certainly one circumstance that can help to show unlawful employment
discrimination, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S. Ct.
2097, 2108 (2000); O’Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002)
(quoting Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995)), but the question in this
case is whether the dishonesty of the employer’s explanation is a cover for gender
and/or race discrimination or something else, see King v. Ford Motor Co., 872 F.3d 833,
842 (7th Cir. 2017) (plaintiff must show not just that employer’s rationale for adverse
No. 21-1168 Page 8
employment action was pretextual, but that it was a pretext for forbidden
discrimination) (collecting cases). We can readily assume, in view of the evidence
Jackson has marshaled, that she was a disfavored employee and that her superiors
wanted to penalize her and ultimately get rid of her. That evidence includes, inter alia,
an excessive workload, the lack of a full-time support person, the negative 2016
performance evaluation based on after-the-fact objectives, her supervisor’s alleged
failure to follow state policies and procedures with respect to her performance
appraisals, the purportedly dishonest reasons for her suspension, and also a directive
that she not talk to other persons outside or inside the agency.1 But the question, again,
is whether the hostility to Jackson was motivated by her race and/or her gender, or
some other characteristic. She might have been disfavored for political reasons,
personality reasons, or for some other reason altogether independent of her race or
gender.
Recall that Jackson is not relying on the McDonnell Douglas framework, which
inter alia would have required proof that she was treated less favorably than another
employee of a different race or gender in order to establish a prima facie case of
discrimination. See, e.g., Reives v. Ill. State Police, supra, 29 F.4th at 892. Had Jackson made
such a showing, it might have been possible for the factfinder to draw the inference that
the defendants were motivated by her race and/or her gender in subjecting her to
adverse treatment. But Jackson has identified no such comparator in her brief.2 So she
must point to some other circumstance that implicates her race or gender as the source
of the animus against her. Cf. Reeves, 530 U.S. at 143–45, 151–52, 120 S. Ct. at 2106–07,
2010–11 (plaintiff in age discrimination action, apart from showing that employer’s
explanation for firing him was false, cited evidence that company director commented
negatively on his age, swore at and scolded him as if he were a child, and treated
otherwise similarly-situated, younger worker more favorably).
1
The defendants assert that it was necessary to restrict Jackson’s communications
with individuals inside and outside of the Department because of complaints that she
was difficult to deal with.
2
We note that Jackson’s affidavit did identify a white co-worker who “yelled
loudly” at her regarding the office microwave oven but who was not disciplined for her
behavior after Jackson expressed concern about the incident to Narusis. R. 27-1 at 5 ¶ 34.
Jackson has not cited or relied on this incident in her brief, so we need not address it.
No. 21-1168 Page 9
We pause here to acknowledge the possibility that the defendants’ very
perceptions, however genuine, that Jackson had comported herself in an unprofessional
manner in the two incidents giving rise to her suspension may have been the product of
sexist and/or racist stereotypes. After all, it is not unusual for women, particularly
women of color, who speak up for themselves in the workplace to be perceived as loud,
rude, aggressive, or even hysterical when in fact their manner of speaking and
comportment is no different from that of their white male counterparts. See Brooks v.
Avancez, — F.4th —, 2022 WL 2447111, at * 7 (7th Cir. July 6, 2022); Daphna Motro, et al.,
The “Angry Black Woman” Stereotype at Work, HARVARD BUS. REV. (Jan. 31, 2022),
https://hbr.org/2022/01/the-angry-black-woman-stereotype-at-work; Ruchika Tulshyan,
Speaking Up As A Woman Of Color At Work, FORBES (Feb. 10, 2015),
https://www.forbes.com/sites/ruchikatulshyan/2015/02/10/speaking-up-as-a-woman-of-
color- at-work/; Kieran Snyder, The abrasiveness trap: High-achieving men and women are
described differently in reviews, FORTUNE (Aug. 26, 2014), https://fortune.com/2014/08/26/
performance-review-gender-bias/ (all visited July 25, 2022). Had the reports and
criticisms of Jackson’s behavior been framed in overtly racial or sexual terms, or had
there been additional surrounding circumstances affirmatively suggesting that the
defendants’ perceptions of Jackson were influenced by racial or sexual stereotypes, it
might be possible for the factfinder to infer a causal link between the two. Cf. Price
Waterhouse v. Hopkins, 490 U.S. 228, 235–36, 255–56, 109 S. Ct. 1775, 1782–83, 1793–94
(1989) (comments on female manager’s candidacy for partnership to effect that she was
“macho,” “overcompensated for being a woman,” used profanity, needed “a course at
charm school,” and, in order to improve her prospects for promotion, ought to “walk
more femininely, talk more femininely, dress more femininely, wear make-up, have her
hair styled, and wear jewelry,” suggested that sex stereotyping influenced firm’s
decision to place her candidacy on hold), superseded by statute in other respects, 42 U.S.C.
§§ 2000e–2(m), 2000e–5(g)(2)(B). But this is not a line of argument that Jackson herself
has pursued, and she has not undertaken to make such a showing.
Apart from pretext, Jackson points only to two circumstances that, in her view,
connect her race and gender to the adverse employment actions of which she
complains. First, in February 2016, when she went to discuss a work matter with
Denney, he reacted to her in such a way that she perceived him to be treating her as if
she were a dog. In her words, “Ben was sitting in his chair, he started laughing at me,
and commanded me to ‘COME HERE,’ then pointed downwards, as if calling a dog to
sit or someone to kneel.” R. 27-3 at 10. Second, more than once, Denney referred to her
as a “girl” in the office. R. 20-1 at 5–6, Jackson Dep. at 19–20.
No. 21-1168 Page 10
Taken together with the other facts, these circumstances are not sufficient to
establish a nexus between Jackson’s race or gender and the adverse employment actions
at issue. The relevance of the “come here” incident depends largely on Jackson’s
subjective perception that Denney was treating her like a dog. To be sure, the behavior
that Jackson describes is odd, even boorish, but on its face and without additional
context, such rude and/or boorish behavior is not enough to show forbidden
discrimination. See Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005); Berry
v. Delta Airlines, Inc., 260 F.3d 803, 809 (7th Cir. 2001); Gleason v. Mesirow Fin., Inc., 118
F.3d 1134, 1140 (7th Cir. 1997), abrogated on other grounds by Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). The “girl” remarks are potentially more
relevant on their face, but here the problem is the lack of additional detail as to when,
how often, and in what context Denney referred to Jackson as a “girl.” Beyond
characterizing the references as derogatory, Jackson shed almost no light on these
remarks in her deposition. She said that Denney used the term more than once, but
beyond that she could not recall the details. (For his part, Denney represents that he
once addressed a group of employees, including Jackson, as “boys and girls.”) Without
more information about these references, we have no way of knowing whether these
were isolated, stray remarks, or whether they occurred frequently enough and/or in a
context that would suggest a race and/or gender bias.
Without any evidence of a causal nexus between Jackson’s race and gender and
the adverse employment actions she has identified, no factfinder could find in her favor
on her Fourteenth Amendment equal protection claims, and the defendants were
entitled to summary judgment.
III.
For the reasons discussed, the district court properly entered summary judgment
against Jackson and in favor of the defendants and relinquished jurisdiction over the
state-law claim.
AFFIRMED