Rochelle Hambrick v. Kilolo Kijakazi ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3217
ROCHELLE HAMBRICK,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-00030 — Thomas M. Durkin, Judge.
____________________
ARGUED JUNE 2, 2023 — DECIDED AUGUST 18, 2023
____________________
Before FLAUM, BRENNAN, and ST. EVE, Circuit Judges.
BRENNAN, Circuit Judge. Rochelle Hambrick sued her em-
ployer, the Social Security Administration (SSA), alleging dis-
crimination, retaliation, and a hostile work environment. The
district court granted summary judgment to the SSA on all
her claims. Hambrick appeals only the district court’s denial
of her hostile work environment claim. None of the alleged
workplace incidents that Hambrick challenges were severe or
2 No. 22-3217
pervasive, nor does she show how they relate to the protected
characteristics of her race or age. We therefore affirm.
I. Background
A. Factual Background
Hambrick, a black woman born in 1970, has worked at the
SSA’s Great Lakes Program Service Center in Chicago (Great
Lakes) for nearly 35 years. 1 In January 2016, her supervisor
reassigned her to the program integrity target and assistance
group, a specialized unit known as “PITAG,” which handles
high-profile and sensitive congressional inquiries. PITAG
faced a backlog of 12,000 cases at that time. This occurred, ac-
cording to Hambrick, because supervisors thought she was
not a good fit in her prior group and because she had not
trained her staff well. After the transfer Hambrick remained a
manager at the same pay scale and grade (GS-13), and she be-
gan reporting to Angelo Petros and Rick Lenoir.
Since her 2016 transfer to PITAG, Hambrick alleges she
has endured constant negative treatment from her SSA super-
visors and peers, amounting to harassment based on her age
and race. For example, Hambrick’s name did not appear in
the PITAG management directory until months after she
joined the group. And although she was originally assigned
to work in an office, Hambrick was moved to a cubicle. She
alleges she was the only manager at her pay scale and grade
working in a cubicle.
1 Because this case comes to us after a grant of summary judgment to
the SSA, we review the facts in the light most favorable to Hambrick,
drawing all inferences in her favor. Perez v. Staples Cont. & Com. LLC, 31
F.4th 560, 563 n.1 (7th Cir. 2022).
No. 22-3217 3
In support of her claim Hambrick also points to various
allegedly harassing emails she received from other SSA man-
agers and employees. She argues these emails undermined
her authority and amounted to harassment because the send-
ers could have talked to her in person. Examples include an
employee of fellow manager, Bernard Mull, directly emailing
a request to one of Hambrick’s employees, instead of routing
the request through Hambrick, and another Mull employee
emailing Hambrick a request and copying some of Ham-
brick’s staff. Mull himself, according to Hambrick, “bom-
bard[ed]” her with emails about her progress on her cases.
After her transfer to PITAG, Hambrick applied for several
other roles and development programs at the SSA without
success. For instance, in August 2017, Hambrick applied for a
Leadership Encouraging Advancement through Develop-
ment (LEAD) program position, but she was not selected. Her
supervisor, Lenoir, instead hired John Bajorek, a younger,
white man. Lenoir explained that Hambrick did not get the
position because her collaborative skills needed work and be-
cause her direct supervisor recommended her “with reserva-
tions.” In contrast, Bajorek had filled in for Lenoir in the past,
had GS-14 level experience, and had high recommendations
from his supervisor.
Over the next few years Hambrick applied and was not
selected for several positions. These include another LEAD
position, and several outside of Great Lakes including three
short-term details, two district manager posts, and one assis-
tant district manager post. And she unsuccessfully applied
twice for the Filing Information Returns Electronically (FIRE)
development program.
4 No. 22-3217
In addition to the harassing emails and unsuccessful job
applications, Hambrick complains of her supervisors’ failure
to recognize her accomplishments, her heavy workload, and
the quick rise of younger, non-black SSA employees. Ham-
brick’s team received a commissioner’s citation for perfor-
mance, but Hambrick alleges Petros omitted her name from
the announcement. She also claims her supervisors did not
celebrate her lowering the PITAG backlog of cases from 12,000
to 871. Instead, her supervisors gave her time-consuming as-
signments, like compiling a spreadsheet of old congressional
cases. And her supervisors ignored her nominations of black
employees for employee of the month. When Mull took over
as Hambrick’s first-line supervisor, Lenoir also denied Ham-
brick’s request for a reassignment.
Given her heavy workload, Hambrick takes issue with the
performance rating she received in November 2019. She re-
ceived a “3” out of “5”, the lowest of her career. Petros, in ex-
plaining the rating, told Hambrick that she was “coasting”
and needed to be more open to feedback. Later, at the start of
2020, Petros gave Hambrick an “optional performance discus-
sion” because, he alleged, she had been late to or missed
nearly every weekly management meeting over the past few
months. Petros also required Hambrick to have weekly work-
load meetings, which Hambrick believed were accusatory,
negative, and harassing.
B. Procedural Background
In September 2016, Hambrick contacted an Equal Employ-
ment Opportunity counselor and eventually filed an EEO
complaint that November. In her complaint she asserted dis-
crimination on the basis of age, citing her involuntary reas-
signment to PITAG, the allegedly harassing emails she
No. 22-3217 5
received, and the promotion of younger, less experienced,
white individuals at SSA. She later amended her complaint to
include race-based discrimination due to Bajorek’s selection
to the LEAD program in 2017. The EEO resolved the 2016
complaint in the SSA’s favor. Hambrick filed a second EEO
complaint in 2020, alleging discrimination based on age and
race and in retaliation for protected activity. Specifically, she
claimed she had been subjected to a hostile work environ-
ment. The EEO issued a final decision in the SSA’s favor.
Hambrick then pursued these claims in federal court. The
district court analyzed Hambrick’s discrimination and hostile
work environment claims separately. After examining Ham-
brick’s EEO proceedings, the district court determined that
Hambrick had administratively exhausted the following dis-
crete actions: (1) the SSA’s failure to promote Hambrick to the
2017 LEAD program by choosing Bajorek instead; (2) Ham-
brick’s lowered performance evaluation in 2019; and (3) Ham-
brick’s non-selection to the FIRE program and district
manager positions in 2021 as retaliation for filing her EEO
complaints. The court concluded that all three failed to show
unlawful discrimination by the SSA. Hambrick does not chal-
lenge the district court’s grant of summary judgment to the
SSA on her discrimination claims.
In evaluating the hostile work environment claim, the dis-
trict court again identified the incidents Hambrick had ad-
ministratively exhausted. The court decided it could consider
conduct not rising to the level of a discrete act but that it could
not consider unexhausted discrete adverse events. So, the dis-
trict court did not account for any time-barred discrete acts.
On the merits, it concluded that the “totality of undisputed
facts … consisted of unremarkable workplace
6 No. 22-3217
disagreements.” Hambrick’s “dissatisfaction with her super-
visors, heavy workload, and lack of recognition,” did not
create a hostile work environment, and therefore the SSA war-
ranted summary judgment.
II. Analysis
Hambrick appeals the district court’s grant of summary
judgment to the SSA on her hostile work environment claims
under Title VII, 42 U.S.C. § 2000e, and the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. § 623. Summary judg-
ment is appropriate “if the movant shows that there is no gen-
uine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). In mak-
ing that determination, “[the court] construe[s] all facts and
reasonable inferences in nonmovant [Hambrick’s] favor.”
Orozco v. Dart, 64 F.4th 806, 814 (7th Cir. 2023). We review the
district court’s grant of summary judgment de novo. Wrolstad
v. Cuna Mut. Ins. Soc’y, 911 F.3d 450, 454 (7th Cir. 2018) (citing
Boston v. U.S. Steel Corp., 816 F.3d 455, 462 (7th Cir. 2016)).
“Federal government employees may bring Title VII and
ADEA employment discrimination claims in federal court
only after they have timely exhausted their administrative
remedies.” Formella v. Brennan, 817 F.3d 503, 510 (7th Cir.
2016) (citing 42 U.S.C. § 2000e-16c). The same procedural reg-
ulations govern both ADEA and Title VII charges. See Reyn-
olds v. Tangherlini, 737 F.3d 1093, 1101 (7th Cir. 2013); see also
29 C.F.R. §§ 1614.103, 1614.105. To administratively exhaust a
claim, a federal employee must first “obtain EEO counseling
or file an informal complaint within 45 days of the alleged dis-
criminatory action.” Formella, 817 F.3d at 510 (citing 29 C.F.R.
§ 1614.105(a)(1)). The scope of these administrative proceed-
ings “limits the scope of subsequent civil proceedings in
No. 22-3217 7
federal court.” Reynolds, 737 F.3d at 1099. A plaintiff employee
may only bring claims in federal court which were “actually
charged in the administrative proceeding” or which are “‘like
or reasonably related to’ the administrative charges.” Id. at
1102. “To be ‘like or reasonably related to’ an administrative
charge, the relevant claim and the administrative charge
must, at minimum, describe the same conduct and implicate
the same individuals.” Id. at 1100 (cleaned up).
A hostile work environment claim is administratively ex-
hausted if “all acts which constitute the claim are part of the
same unlawful employment practice and at least one act falls
within the time period.” Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 122 (2002) (emphasis added). In contrast, claims
alleging discrete acts of discrimination must be timely raised
during administrative proceedings for a federal court to con-
sider them. Id.; see also Ford v. Marion Cnty. Sheriff’s Off., 942
F.3d 839, 850–51 (7th Cir. 2019) (“In Morgan, the Supreme
Court drew a sharp line between claims for ‘discrete’ acts of
discrimination and hostile work environment claims.”). Be-
cause Hambrick brings a hostile work environment claim, we
examine whether she exhausted at least one act contributing
to that claim and then determine which incidents comprise
the “same unlawful employment practice.” Morgan, 536 U.S.
at 122.
The district court misjudged which incidents could form
the basis for her claim. 2 The court concluded that it could not
consider any unexhausted discrete employment acts because
it read the Supreme Court’s decision in Morgan to hold that
“discrete acts which are time barred cannot also form the
2 The defendant, to her credit, recognizes this.
8 No. 22-3217
basis for a hostile work environment claim.” But that deter-
mination differs from a subsequent Supreme Court decision
interpreting Morgan. In Green v. Brennan, the Supreme Court
explained:
In Morgan, the Court noted that even if a claim
of discrimination based on a single discrimina-
tory act is time barred, that same act could still be
used as part of the basis for a hostile-work-environ-
ment claim, so long as one other act that was part
of that same hostile-work-environment claim
occurred within the limitations period.
578 U.S. 547, 562 n.7 (2016) (emphasis added). Therefore, we
can consider, as incidents contributing to a hostile work envi-
ronment, any unexhausted discrete actions that amount to the
same unlawful employment practice.
Hambrick timely exhausted at least one act contributing to
her hostile work environment: her performance review in
2019. She alleges that review contributed to her workplace
hostilities, and she included the incident in her EEO com-
plaint. So, we next consider which of Hambrick’s allegations
qualify as the “same unlawful employment practice," Morgan,
536 U.S. at 122, as her performance review. Many of Ham-
brick’s identified incidents do not relate to one another. For
example, Hambrick’s non-selection for positions outside of
Great Lakes from 2018 to 2021 does not relate to her allega-
tions of harassing emails or lack of recognition. Hambrick
does not know who ultimately filled those positions, and
many of those roles involved different decisionmakers. See
Ford, 942 F.3d at 853 (explaining that a relevant question for
determining what comprises the “same unlawful employ-
ment practice” is which managers are responsible for the
No. 22-3217 9
different acts). But, even considering all the acts Hambrick
identified, she still falls short of demonstrating a hostile work-
place.
An employer creates a hostile work environment when
“the workplace is permeated with discriminatory intimida-
tion, ridicule, and insult, that is sufficiently severe or perva-
sive to alter the conditions of the victim’s employment and
create an abusive working environment.” Alexander v. Casino
Queen, Inc., 739 F.3d 972, 982 (7th Cir. 2014). To establish such
a claim, “a plaintiff must show: (1) the work environment was
both subjectively and objectively offensive; (2) the harassment
was based on membership in a protected class; (3) the conduct
was severe or pervasive; and (4) there is a basis for employer
liability.” Trahanas v. Northwestern Univ., 64 F.4th 842, 853 (7th
Cir. 2023). Several considerations play into whether an
environment is hostile: “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it un-
reasonably interferes with an employee’s work performance.”
Casino Queen, 739 F.3d at 982 (quoting Mendenhall v. Mueller
Streamline Co., 419 F.3d 686, 691–92 (7th Cir. 2005)). What mat-
ters is whether the conduct became so severe or pervasive that
“a reasonable person would find [it] hostile or abusive.” Har-
ris v. Forklift Sys., 510 U.S. 17, 21 (1993).
Nearly all Hambrick’s complaints relate to one-time, eve-
ryday work disagreements that took place over several
years—and none of her complaints, considered in combina-
tion, were so severe or pervasive as to “alter the conditions of
[Hambrick’s] environment.” Hobbs v. City of Chicago, 573 F.3d
454, 464 (7th Cir. 2009). For instance, Hambrick complains of
personality issues with coworkers and supervisors. Yet
10 No. 22-3217
“[i]nsults, personal animosity, and juvenile behavior are in-
sufficient evidence of a hostile work environment unless they
are so pervasive or severe as to interfere with an employee’s
work performance.” Brooks v. Avancez, 39 F.4th 424, 441 (7th
Cir. 2022) (citation omitted). And having supervisors who are
“‘short tempered,’ ‘hostile,’ unfairly critical, and disrespect-
ful,” does not amount to “objectively offensive, severe, or per-
vasive” conduct. Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir.
2018).
Hambrick also takes issue with her heavy workload, man-
agement’s high expectations, and routine workplace disci-
pline (such as weekly touch point meetings and a discipline
meeting for tardiness). But “[n]o reasonable jury could con-
clude that being assigned duties that were part of one’s job
description … amount[s] to a hostile work environment.”
Hobbs, 573 F.3d at 464. And administrative annoyances like a
lateral relocation without a decrease in pay, reassignment to
a cubicle, and being left off the staff directory for a few months
do not form the basis for a hostile work environment. Saxton
v. Am. Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993) (“‘[R]ela-
tively isolated’ instances of non-severe misconduct will not
support a hostile environment claim.” (quoting Weiss v. Coca-
Cola Bottling Co. of Chi., 990 F.2d 333, 337 (7th Cir. 1993))).
Moreover, Hambrick fails to show that any of the alleged
harassing incidents were “based on membership in a pro-
tected class.” Trahanas, 64 F.4th at 853. Title VII protects fed-
eral employees from discrimination based on race. 42 U.S.C.
§ 2000e-16(a). The ADEA provides that federal employees 40
or older “shall be made free from any discrimination based on
age.” 29 U.S.C. § 633a(a). Although Hambrick did not receive
a collection of promotions or short-term detail positions, she
No. 22-3217 11
has not identified those who were ultimately selected. So, she
fails to demonstrate that those denials were discriminatory.
She fares no better with her allegations that other younger,
white employees quickly rose through the ranks at the SSA.
The closest Hambrick comes to showing discrimination
based on race or age is her rejection from the 2017 LEAD po-
sition. Construing all facts in her favor, Hambrick was quali-
fied for the position, which the SSA does not contest. But her
supervisor Lenoir selected Bajorek, a younger, white man, for
the position instead. Yet, Lenoir stated he selected Bajorek
over Hambrick for non-discriminatory reasons. Bajorek had
filled in for Lenoir in the past, so Lenoir was confident in his
management skills and ability to collaborate, and Bajorek
came highly recommended by his first-line supervisor. By
contrast, Lenoir had concerns about Hambrick’s ability to col-
laborate and manage workflow for others, and Hambrick’s
supervisor recommended her “with reservations.” Hambrick
suggests Lenoir fabricated his reasons, but she offers no evi-
dence to support her position.
* * *
Hambrick has failed to show she suffered severe or perva-
sive harassing workplace conduct on account of her race or
age, so she cannot succeed on a hostile work environment
claim. We therefore AFFIRM the district court’s grant of sum-
mary judgment to the SSA.