Nora Chaib v. State of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1680
NORA CHAIB,
Plaintiff-Appellant,
v.
STATE OF INDIANA,
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 11-cv-724-TWP-MJD — Tanya Walton Pratt, Judge.
ARGUED NOVEMBER 15, 2013 — DECIDED FEBRUARY 24, 2014
Before FLAUM and HAMILTON, Circuit Judges, and KAPALA,
District Judge.*
KAPALA, District Judge. Appellant, Nora Chaib, sued her
former employer, the State of Indiana, alleging employment
discrimination and retaliation. In particular, Chaib, who is a
*
The Honorable Frederick J. Kapala of the United States District Court for
the Northern District of Illinois, sitting by designation.
2 No. 13-1680
female United States citizen of French national origin, alleges
that, while working as a corrections officer for the Indiana
Department of Correction (“IDOC”), she was subjected to
discrimination and a hostile work environment on the basis of
her gender and national origin in violation of Title VII, 42
U.S.C. § 2000e et seq. Chaib also claims the IDOC retaliated
against her when she complained of her co-workers’ alleged
harassment. The district court granted summary judgment to
the IDOC on all of Chaib’s claims, which she has appealed to
this Court. For the reasons that follow, we affirm.
I. BACKGROUND1
Chaib was born in France in 1957. In 1986, she married an
American and immigrated to the United States. She became a
naturalized citizen in 1991. In late 2008, after six weeks of
training at another corrections facility, Chaib began work at the
Pendleton Correctional Facility (“PCF”), which is a maximum
security prison. During her six-month probationary period,
corrections officer Van Dine was assigned to be Chaib’s field
training officer.
According to Chaib, Van Dine began making sexually
offensive remarks to her almost immediately. Chaib identified
three such remarks: Van Dine allegedly told her that he and his
wife were interested in “threesomes” and asked if Chaib was
likewise interested, asked her if her nipples were hard in the
cold, and asked her whether she squatted or bent over to pick
up objects from the floor. In his deposition, Van Dine admitted
1
Unless otherwise specified, the facts set out herein are drawn from
Chaib’s deposition testimony and her other evidence.
No. 13-1680 3
to discussing threesomes with another co-worker while Chaib
was present, but denied making the comment to her. Likewise,
he admitted making a comment about his own nipples being
hard to a co-worker in Chaib’s presence, but did not address
the question to her. There was no mention by Van Dine of the
alleged squatting or bending over remark.
Shortly after the first remark, Chaib complained to Van
Dine about his behavior. Van Dine ceased training Chaib from
that point forward, although Chaib alleges that she still
worked with him regularly and he continued to make
harassing comments. When pressed at her deposition to
describe the further harassment, Chaib testified that Van Dine
criticized her work performance and instructed her to do her
job. Chaib also testified that Van Dine made disparaging
remarks about her French heritage, about French people in
general, and called her a “snitch.” At no point during her
training did Chaib bring Van Dine’s behavior to the attention
of any supervisor at the IDOC.
Chaib completed her probationary period on May 11, 2009,
and was granted permanent status at PCF. Chaib alleges that
she did not receive any further training after Van Dine
removed himself as her training officer and, consequently, the
training during the probationary period was insufficient.
However, Chaib admitted that she never asked anyone to give
her additional training. Instead she learned by watching the
other officers do their work2. In deposition testimony, Van
2
In the district court briefing, Chaib admitted she later received the
training from a different officer in early 2010.
4 No. 13-1680
Dine stated Chaib was regularly sent back to him for retraining
because she had trouble with her shift supervisors, and that
she received more training than what was required.
On July 15, 2010, Van Dine yelled at Chaib to do her job and
pointed his finger in her face. After that incident, Chaib
decided to file an internal personnel complaint with her
supervisor referencing this latest encounter and the other
assorted improper actions by Van Dine, claiming she had been
subjected to treatment that “bordered” on sexual harassment.
In response, the IDOC engaged the Human Resources
Department to conduct an investigation, which included
interviewing Chaib, her supervisor Captain Taylor, Van Dine,
and other officers mentioned by Chaib. Angela Smith, the
Human Resources Manager, completed the investigation on
July 29, 2010, and issued a written report. In that report, Smith
stated that she found no evidence to substantiate Chaib’s
claims of harassment, but noted that there was evidence that
Van Dine had engaged in conduct unbecoming a corrections
officer. Accordingly, she recommended that Van Dine be
reprimanded. However, Smith also stated that in the course of
her investigation, she found evidence that Chaib herself had
engaged in conduct unbecoming an officer, including referring
to co-workers as “stupid Americans,” threatening co-workers
that she would file sexual harassment charges which Smith
determined were unwarranted, endangering her co-workers
through negligent actions for which she had been previously
disciplined, and being confrontational and defensive when
given job directions. Accordingly, Smith also recommended
that Chaib be reprimanded. Both recommendations were
apparently accepted, as both Chaib and Van Dine received
No. 13-1680 5
reprimands for their conduct. After Van Dine’s reprimand, he
ceased any harassing behavior.
Throughout her two-and-a-half years of employment,
Chaib also had a series of encounters with her other co-
workers which she identified as discriminatory. Some of these
involved the co-worker showing overt animus towards her on
account of her gender or French national origin, while others
involved criticism or negative feedback concerning Chaib’s
work performance without having any overt connection to her
gender or national origin but which Chaib nevertheless
believed were discriminatory. Out of this series of encounters,
three were reported to her employer, and following each report
she had no further problems with the co-worker involved in
the incident. Chaib admits that the remaining encounters went
unreported to her superiors.
During her employment at PCF, Chaib received two work
evaluations. At the end of 2009, Chaib received an annual
evaluation that stated she was overall meeting the expectations
of her job. However, she received a “does not meet”
expectations rating for “organizational commitment” due to a
violation of IDOC’s leave policy during the year. Chaib made
no objection to this evaluation. Chaib’s evaluation for 2010
found that she was not meeting expectations on a number of
grounds due to assorted disciplinary actions. It also noted that
Chaib had inadequate knowledge of her duties, displayed
difficulty with interpersonal relations, had difficulty
completing tasks assigned by her supervisors, showed poor
judgment, and failed to adequately perform in stressful and
emergency situations. Chaib refused to sign the 2010
evaluation when it was presented to her and alleged that the
6 No. 13-1680
poor performance evaluation was due to gender and national
origin bias.
On August 8, 2010, Chaib filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”), which she
later amended on October 7, 2010, complaining about her
treatment at PCF. Chaib followed her EEOC filings with a
March 2011 complaint to the Indiana State Personnel
Department denouncing her 2010 evaluation and demanding
that it be redone. Bruce Baxter, the Director of Employee
Relations for the department, investigated the matter and
wrote a letter to Chaib stating that her “appraisal was properly
administered” and that its result was proper.
In April 2011, Chaib requested a transfer to the Correctional
Industrial Facility (“CIF”), which is adjacent to but outside the
walls of PCF and holds inmates convicted of less serious
crimes. The interview panel recommended hiring Chaib, but
she ultimately was denied the transfer. Instead, CIF hired
seven others, including two women.
Also in April 2011, Chaib was working in the “chow hall”
when an inmate groped her. In her initial report on the
incident, and initially in her deposition, Chaib indicated that
the inmate grabbed her buttocks with one hand as he walked
by her. In another portion of her deposition, she stated instead
that he “put his finger inside my pants – like through my
pants, through my pants grabbed me, and I felt his hand inside
me” and also that he grabbed her vagina. Nevertheless, Chaib
immediately seized the inmate, cuffed him, and escorted him
to a holding cell after which she filed a report. The inmate was
given a disciplinary hearing at which Chaib was not called to
No. 13-1680 7
testify, but a video of the incident was shown, her report was
reviewed, and other testimony was taken. His offense was
downgraded from a charge of sexual assault on an officer to a
charge of making sexual gestures. The inmate was
reprimanded and placed back in the general population, in
which Chaib also worked.
In response to this episode, in May 2011, Chaib requested
time off under the Family and Medical Leave Act (“FMLA”)
based on stress, anxiety, and depression. On July 29, 2011,
while still on FMLA leave, Chaib tendered a two-week notice
and resigned from her position with the IDOC. In October
2011, Chaib filed a second EEOC complaint expanding on her
previous complaints about her problems at PCF. Thereafter,
Chaib filed the instant action.
II. DISCUSSION
A. Standard of Review
We review an order granting summary judgment de novo.
Perez v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir. 2013).
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Hemsworth v. Quotesmith.Com, Inc., 476 F.3d
487, 489–90 (7th Cir. 2007). In evaluating such a motion, the
court’s role is not to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine
issue for trial. See Hemsworth, 476 F.3d at 490. The court must
draw all reasonable inferences in the light most favorable to
the party opposing the motion. See id. “If a party moving for
summary judgment has properly supported his motion, the
8 No. 13-1680
burden shifts to the nonmoving party to come forward with
specific facts showing that there is a genuine issue for trial.”
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 951 (7th Cir. 2013)
(emphasis and quotation marks omitted). The nonmoving
party need not meet, in the court’s eyes, the preponderance of
the evidence standard, but must still provide more than a
“mere scintilla” of evidence to show that there is a genuine
issue of material fact. See Nat’l Inspection & Repairs, Inc. v.
George S. May Int’l Co., 600 F.3d 878, 882 (7th Cir. 2010).
B. Disparate Treatment Claims
Chaib grounds her claims for gender and national origin
discrimination on a disparate treatment theory. To prevail,
Chaib must have evidence to show that she was subjected to
intentional discrimination based on either her gender or
national origin. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 717
(7th Cir. 2012) (“Disparate impact claims require no proof of
discriminatory motive and involve employment practices that
are facially neutral in their treatment of different groups but
that in fact fall more harshly on one group than another and
cannot be justified by business necessity. By contrast,
differential treatment claims, also known as disparate
treatment claims, require plaintiffs to prove discriminatory
motive or intent.” (citation and quotation marks omitted)); see
also Hildebrandt v. Ill. Dep’t of Nat’l Resources, 347 F.3d 1014,
1029 (7th Cir. 2003). Although traditionally plaintiffs have
sought to show the existence of that discriminatory motive
through the “direct” and “indirect” methods of proof, recently
this Court has suggested we move away from the “ossified
direct/indirect paradigm in favor of a simple analysis of
whether a reasonable jury could infer prohibited
No. 13-1680 9
discrimination” and an adverse employment action based on
that discrimination. Perez, 731 F.3d at 703 (quotation marks
omitted) (collecting cases). While this approach is being
considered, the Court has continued to look at the factors
embodied in the traditional tests to determine whether plaintiff
has succeeded in creating a genuine issue of material fact. See
id. at 703–11.
Under the indirect method, a plaintiff has to first establish
a prima facie case by providing 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
employment action; and (4) similarly situated employees
outside of the protected class were treated more favorably.” Id.
at 704 (quotation marks omitted). If the plaintiff meets this
burden, the burden then shifts to the employer to “introduce
a legitimate, nondiscriminatory reason for the employment
action.” Id. (quotation marks omitted). If the employer does so,
the burden returns to the plaintiff to show that the proffered
reason was a pretext. Id.
Under the direct method, a plaintiff can offer direct
evidence of discrimination, which is typically “an outright
admission by the decisionmaker that the challenged action was
undertaken because of the plaintiff’s [protected class].” Dass v.
Chi. Bd. of Educ., 675 F.3d 1060, 1071 (7th Cir. 2012) (quotation
marks omitted). If a plaintiff lacks direct evidence, the plaintiff
can proceed “under the direct method using circumstantial
evidence.” Perez, 731 F.3d at 710. To prevail under that theory,
a plaintiff has to “construct a convincing mosaic” that would
permit a jury to infer intentional discrimination. Id. (quotation
marks omitted). Typically that mosaic includes three categories
10 No. 13-1680
of evidence: (1) “suspicious timing, ambiguous statements oral
or written, and other bits and pieces from which an inference”
of discrimination could be drawn; (2) “evidence, but not
necessarily rigorous statistical evidence, that similarly situated
employees were treated differently”; or (3) “evidence that the
employer offered a pretextual reason for an adverse
employment action.” Id. at 711 (quotation marks omitted).
Chaib does not argue under either of the historical tests.
Instead she subscribes to the view that we should “look away
from the intricacies of the direct and indirect methods here and
focus on the summary judgment evidence as a whole,” Good v.
Univ. of Chi. Med. Ctr., 673 F.3d 670, 680 (7th Cir. 2012).
Nevertheless, analyzing the facts under any of the methods
currently in use, Chaib has not presented sufficient evidence
that would allow a reasonable jury to find discrimination
based on disparate treatment.
1. Adverse Employment Action
The district court found that Chaib failed to set out an
adverse employment action which could have resulted from
any employer discrimination. The requirement that a plaintiff
show she suffered an adverse employment action as a result of
her employer’s alleged discrimination is an element of any
Title VII claim, regardless of whether the claim is reviewed
under the traditional direct/indirect framework or the less rigid
framework our cases have recently suggested. See Morgan v.
SVT, LLC, 724 F.3d 990, 995–97 (7th Cir. 2013). “While adverse
employment actions extend beyond readily quantifiable losses,
not everything that makes an employee unhappy is an
actionable adverse action.” Nagle v. Vill. of Calumet Park, 554
No. 13-1680 11
F.3d 1106, 1116 (7th Cir. 2009) (quotation marks omitted).
“[A]lthough the definition of an adverse employment action is
generous, an employee must show some quantitative or
qualitative change in the terms or conditions of his
employment or some sort of real harm.” Id. at 1116–17
(quotation marks omitted). In an effort to show that the district
court erred, Chaib identifies the following as adverse
employment actions resulting from her employer’s alleged
discrimination: (1) that she was denied training, (2) that her
request to transfer to CIF was rejected, and (3) that she
received a poor evaluation.
This Court has concluded that a failure or refusal to train an
employee based on that employee’s membership in a protected
class is an adverse action. See, e.g., Malacara v. City of Madison,
224 F.3d 727, 729 (7th Cir. 2000). Here, Chaib claims that she
had a sexually charged personal conflict with Van Dine, and
because of this he did not provide the training she was
allegedly due during her probationary period. However, Chaib
admits she never told her employer that she was not receiving
the required training from her co-worker Van Dine. Even in
her personnel complaint against Van Dine, she did not mention
her lack of training. Her employer cannot be said to have taken
an adverse action against her of which it was unaware.
Furthermore, in her briefing to the district court, Chaib
admitted that she did receive all of the probationary training,
just not until February 2010 under an officer named Tim
Dinkins. (See Pl. Br. in Opp’n to Summ. J. 30 (“The training that
all employees must have completed before permanent status
is granted was not given to Plaintiff until February 2010 by Tim
Dinkins after Van Dine did not want to train Plaintiff.” (emphasis
12 No. 13-1680
added)).) Thus, even if the employer somehow gained notice
of Chaib’s lack of training—and the record is silent on when or
if that happened—the issue was remedied and Chaib failed to
provide any evidence that any delay between that notice and
the receipt of training caused any change in the terms or
conditions of her employment. Accordingly, even under her
own version of the facts, Chaib received all the training she
was due and her employer had no notice to the contrary.
Chaib next argues that the refusal to transfer her to CIF was
an adverse employment action. Chaib concedes that her duties,
salary, and career opportunities were not affected by the
failure to transfer her. Instead, she contends that the transfer
would have resulted in a significant change in the terms of her
employment, notwithstanding her concession, because she
would have (1) worked with inmates imprisoned for less
serious offenses who “would have been easier to work with”
and (2) been out of the hostile work environment at PCF.
There is insufficient factual support in the record for the
first contention because there is no evidence that inmates at
CIF are easier to work with. The only information offered by
Chaib concerning that facility is her statement that the inmates
housed there have been convicted of less serious offenses, but
Chaib points to no evidence in the record from which any
further conclusions can be drawn. Although it is plausible to
infer that an inmate held at a less-secure prison may be more
docile, pose less danger, and cause less stress, it is equally
plausible to infer that there are fewer institutional restraints on
the prisoners and a greater inmate-to-staff ratio which,
notwithstanding Chaib’s request to be transferred, invites the
inference that working at CIF would be more difficult and
No. 13-1680 13
culminate in an increase of danger and stress3. Without
concrete evidence showing that the terms and conditions of
working at CIF are superior, rather than relying on bare
conjecture, Chaib has not met her burden. Additionally, just
because Chaib subjectively considered a transfer to have been
a more ideal fit or personally advantageous does not render its
rejection adverse. See Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 613
(7th Cir. 2001) (“We have noted, however, that not everything
that makes an employee unhappy is an actionable adverse
action. Otherwise, minor and even trivial employment actions
that an employee did not like would form the basis of a
discrimination suit.” (alteration and quotation marks omitted)).
The second contention presumes the existence of a hostile
work environment, which, as set out below, fails as a matter of
law. See infra Section II.C. Thus, since the transfer would not
have resulted in a tangible benefit to Chaib, and her subjective
preference for the job is not sufficient to show an adverse
3
Plaintiff’s evidentiary burden on this issue is consistent with the normal
summary judgment procedure—Chaib should simply have come forward
with some evidence to support her presumption that working at CIF would
be materially superior in some measurable way to working at PCF. For
example, she could have offered affidavit evidence from at least one guard
who had worked at both, other statistical data which would permit an
inference that CIF was safer or less stressful, or any other evidence which
would permit a jury to find in her favor. Nevertheless, Chaib has advanced
no evidence on this point. 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.” (citations omitted)).
14 No. 13-1680
employment action, the employer’s refusal to transfer her
cannot be a basis for liability.
Finally, Chaib cannot show an adverse employment action
by pointing to her 2010 poor performance evaluation. This
Court has never held, and in fact has explicitly rejected, that
poor performance reviews alone can be the basis for a finding
of an adverse employment action by the employer. See Smart
v. Ball State Univ., 89 F.3d 437, 441–42 (7th Cir. 1996) (“Looking
to the facts of the case before us, in the light most favorable to
[plaintiff], we can only conclude that the evaluations alone do
not constitute an actionable adverse employment action … .”);
see also Oest, 240 F.3d at 613. Chaib cites to generic language
from other cases, but presents no persuasive argument for
overruling Smart or Oest, or differentiating the performance
review in this case from those in Smart or Oest. Because Chaib
has failed to identify an adverse employment action, her claims
for gender and national origin discrimination fail and the
district court correctly granted summary judgment on those
claims.
2. Proof of Discriminatory Intent
The district court additionally found that Chaib failed to
sufficiently show the necessary discriminatory intent from her
employer to prove Title VII discrimination. See Hildebrandt, 347
F.3d at 1029 (“Proof of intentional discrimination is required
under a disparate treatment analysis.” (quotation marks
omitted)).
In its decision, the district court correctly noted that Chaib
failed to identify any similarly situated individuals outside of
her protected class who were treated more favorably. To create
No. 13-1680 15
an inference of discriminatory intent, the indirect method
requires the identification of similarly situated comparators
because “[a]ll things being equal, if an employer takes an
action against one employee in a protected class but not
another outside that class, one can infer discrimination. The
similarly situated prong establishes whether all things are in
fact equal.” Perez, 731 F.3d at 704 (alteration and quotation
marks omitted). Here, Chaib has not shown that any non-
female, non-French individual was subject to different
treatment than the treatment of which she complains. None of
the parties claim that similarly situated comparators were
unavailable. The record makes it clear that PCF is a large
maximum security facility which employs many corrections
officers. We may safely conclude that this population included
many individuals who were neither female nor of French
national origin. Thus, without similarly situated comparators,
no inference of discrimination arises and Chaib’s disparate
treatment claims fail under the indirect method.
Similarly, Chaib’s claims do not pass muster under the
direct method. She points out a number of actions she labels as
adverse—the failure to train, refusal to transfer, and the poor
performance evaluation—and certainly several incidents of
boorish treatment by her co-workers, but she lacks any
admission or statement by her employer, direct or ambiguous,
that suggests that the actions she labels as adverse were
motivated, even in part, on account of her gender or national
origin. Instead, Chaib relies entirely on vague circumstantial
evidence to show that she faced discrimination based on her
gender or French national origin. However, even under the
broad “convincing mosaic” direct test, Chaib fails to show any
16 No. 13-1680
sufficiently suspicious timing, differently treated co-workers,
or any treatment from any decision maker at the IDOC which
would permit a reasonable jury to make an inference of
discriminatory intent.
Finally, even stepping back from the traditional tests into
the broader totality-based view recently suggested by this
Court, Chaib has not identified anything in the record not
already covered by the traditional tests which would permit a
reasonable jury to find that the adverse employment actions
identified by Chaib occurred on account of her gender or
national origin.
Therefore, because Chaib has also failed to provide
sufficient evidence to link any such action to her gender or
national origin, this Court affirms the district court’s grant of
summary judgment as to Chaib’s claims for discrimination
under Title VII based on disparate treatment.
C. Hostile Work Environment
“Title VII prohibits the creation of a hostile work
environment.”Vance v. Ball State Univ., 570 U.S. ___, 133 S. Ct.
2434, 2440 (2013). In order to prevail on such a claim, a
“plaintiff must show that the work environment was so
pervaded by discrimination that the terms and conditions of
employment were altered.” Id.To avoid summary judgment on a hostile work
environment claim, a plaintiff must provide sufficient evidence
to create a genuine issue of material fact as to four elements:
(1) the work environment must have been both subjectively
and objectively offensive; (2) her gender or national origin
No. 13-1680 17
must have been the cause of the harassment; (3) the conduct
must have been severe or pervasive; and (4) there must be a
basis for employer liability. See Milligan v. Bd. of Trs. of S. Ill.
Univ., 686 F.3d 378, 383 (7th Cir. 2012).
We need not address the first three prongs of the hostile
work environment analysis, as the district court correctly
determined that there is no basis for employer liability in any
of the alleged incidents of harassment to satisfy the fourth
prong. There is no dispute that in this case all of the
harassment identified by Chaib came from co-workers rather
than supervisors. An employer is only liable for harassment
from an employee’s co-workers if it was negligent in its
response to the harassment. See Vance, 133 S. Ct. at 2439(“Under Title VII, an employer’s liability for such harassment
may depend on the status of the harasser. If the harassing
employee is the victim’s co-worker, the employer is liable only
if it was negligent in controlling working conditions.”). Here,
there were only a few incidents of alleged harassment which
Chaib brought to the attention of the IDOC: she complained
about Van Dine’s behavior and three other co-worker
comments. After each of these complaints, however, Chaib had
no further problems with any of those officers. Indeed, Chaib
points to no evidence in the record which establishes that, after
reporting a co-worker to her supervisors, she ever had a
subsequent problem with that individual. No reasonable jury
could say that her employer was negligent for failing to correct
her co-workers’ behavior when it apparently corrected all of
the behavior she reported.
As to the inmate groping incident, this Court has
previously held that an inmate’s rape of a female correctional
18 No. 13-1680
facility employee can support a finding of a hostile work
environment, but only where the employer was aware of the
risk of the attack and was negligent in preventing it. See
Erickson v. Wis. Dep’t of Corr., 469 F.3d 600, 606 (7th Cir. 2006).
In Erickson, this Court applied the standard used for protecting
an employee against co-worker harassment to a circumstance
where a female corrections employee (but not a guard) put her
employer on notice by reporting the possibility of a future
inmate sexual assault. See id. at 605–06. Here, however, Chaib
has presented no evidence that her employer was aware of any
threat greater than the threat that is inherent to the position of
corrections officer posed by the inmate who assaulted her.
Chaib, instead, presses that the IDOC was negligent for
releasing the inmate back into the general population, where
she worked, without sufficient punishment4. The fact remains,
however, that once the IDOC became aware of the harassment
from the inmate, it disciplined him, albeit not as harshly as
Chaib believes was appropriate, and he never repeated that
behavior or any other harassing behavior towards Chaib. Nor
was the response so lax such that any other inmate assaulted,
or otherwise acted inappropriately towards, Chaib (and Chaib
pointed to no place in the record where she expressed any fear
of future assault). Although Chaib did not work at the IDOC
4
The record is not entirely clear as to how much punishment the inmate
received. It appears, based on the documents concerning his hearing, that
he was held in segregation for at least two days. However, Chaib testified
that he was never held in segregation, although Chaib failed to set out the
basis for her personal knowledge for that testimony. Nevertheless,
whatever may have been his punishment, it is clear Chaib believes it to
have been insufficient.
No. 13-1680 19
for long following the inmate’s discipline, no reasonable jury
could find that the IDOC was negligent in how it addressed the
problem when its response was successful in eliminating the
behavior.
In summary, Chaib has failed to create a genuine issue of
material fact as to her hostile work environment claims
because, as the district court correctly found, she failed to set
out a basis for employer liability. Consequently, the district
court’s grant of summary judgment as to the hostile work
environment claims is affirmed. Finally, since Chaib has not
shown that her employer was responsible for a hostile work
environment, she has also failed to offer sufficient evidence to
support her claims of constructive discharge, which requires a
stronger showing. See Porter v. Erie Foods Int’l, Inc., 576 F.3d
629, 639 (7th Cir. 2009).
D. Retaliation
This leaves only the district court’s grant of summary
judgment as to Chaib’s claim for retaliation. In addition to
forbidding discrimination directly, Title VII also forbids
employers from retaliating against employees by taking
adverse employment actions for complaining about prohibited
discrimination. See Humphries v. CBOCS W., Inc., 474 F.3d 387,
404 (7th Cir. 2007). The showing a plaintiff must make to set
out an adverse employment action required for a retaliation
claim is lower than that required for a discrimination claim; a
plaintiff must only show that the employer’s action would
cause a “reasonable worker” to be dissuaded from making or
supporting a charge of discrimination. Burlington N. & Santa Fe.
Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks
20 No. 13-1680
omitted). Even with that lower standard, “petty slights, minor
annoyances, and simple lack of good manners” do not suffice.
Id. However, the Supreme Court has recently provided that
“Title VII retaliation claims must be proved according to
traditional principles of but-for causation, not the lessened
causation test” applicable to gender or national origin
discrimination claims. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570
U.S. ___, 133 S. Ct. 2517, 2533 (2013). “This requires proof that
the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the
employer.” Id.There is no question that Chaib engaged in protected
activity in her complaints to her employer, but she has not set
out the evidence necessary to meet the causation requirement.
Although she complained of various forms of discrimination
to her employer on a number of occasions, none of the adverse
employment actions identified by plaintiff—the alleged failure
to train, the denial of her transfer to CIF, and the poor
performance review—have been tied to those complaints in
any way. Chaib admitted that she never complained about her
lack of training to her supervisors. There is nothing at all in the
denial of her transfer to CIF that suggests it was as a result of
her complaints. And the poor performance review lacks any
indication that it would not have been issued but for her
complaints (although it does have some ambiguous statements
concerning interpersonal relationships).5
5
The performance review for the year 2010, wherein Chaib was given an
overall “Does Not Meet Expectations” rating, stated that she “displays
(continued...)
No. 13-1680 21
We, however, note an additional argument for retaliation
which can be based on the July 29, 2010 investigation report by
Ms. Smith. Following Smith’s recommendation in the report,
both Chaib and Van Dine were reprimanded for their behavior
as unbecoming an officer. However, even though the report
explicitly considered Chaib’s threats of reporting others for
sexual harassment as part of its recommendation for the
reprimand, that reprimand is insufficient to serve as an
adverse employment action. See Lloyd v. Swifty Transp., Inc., 552
F.3d 594, 602 (7th Cir. 2009). “Even under the more generous
standard that governs retaliation claims,” a reprimand
“without more” is not an adverse employment action. Johnson
v. Cambridge Industries, Inc., 325 F.3d 892, 902 (7th Cir. 2003).
Here, as in Johnson, Chaib “made no effort to show how it
affected [her] employment from that time forward.” Id. Nor
has she made any argument explaining how a reasonable
worker would be dissuaded by the reprimand from
complaining about discrimination. Therefore, she has not
carried her burden to show that a reasonable jury could find
that the reprimand was materially adverse. Thus, the Court
affirms the district court’s grant of summary judgment as to
Chaib’s retaliation claim.
(...continued)
difficulty with interpersonal relations which effects [sic] her ability to
preform [sic] as a team member” and “displays difficulty with interpersonal
relations which effects [sic] her ability to preform [sic] as a team.” But Chaib
falls far short of establishing the causation threshold required to link those
comments to her protected activities.
22 No. 13-1680
III. CONCLUSION
The district court correctly granted summary judgment to
defendant as to each of Chaib’s claims. Therefore, we AFFIRM.