UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LI-HUA OLIVIA HO, ) 

 ) 

 Plaintiff, ) No. 11 C 09257 

 ) 

 v. ) 

 ) Judge Edmond E. Chang 

ABBOTT LABORATORIES, ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER

Plaintiff Li-Hua Olivia Ho brought this lawsuit pro se against Defendant 

Abbott Laboratories, alleging employment discrimination in violation of Title VII of 

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination 

in Employment Act (ADEA), 29 U.S.C. § 621 et seq.1 Ho alleges that she was 

subjected to harassment by her supervisor, and eventually fired, because of her race 

(Asian) and age (over forty). R. 32, Second Am. Compl.2 ¶¶ 26-27, 29-34. Ho further 

alleges that Abbott retaliated against her for complaining about discrimination. Id. 

¶¶ 35-38. In addition to her Title VII and ADEA claims, Ho alleges a state-law 

claim for defamation arising from a statement made by her supervisor to Abbott 

security after Ho’s firing. Id. ¶¶ 40-42; see also R. 79, Mar. 31, 2013 Order at 11-16 

(dismissing Ho’s defamation claims in part). Abbott now moves for summary 

 

1The Court has subject matter jurisdiction under 28 U.S.C. § 1331, and supplemental 

jurisdiction over Ho’s state-law claim under 28 U.S.C. § 1367. 

2Although the complaint is entitled “Third Amended Complaint,” it is really the Second 

Amended Complaint. See R. 38, June 4, 2012 Minute Entry. 
2 

judgment on all claims. See R. 125, Def.’s Mot. Summ. J. at 1-2.3 For the reasons 

discussed below, Abbott’s motion for summary judgment is granted. 

I. Background 

In deciding Abbott’s motion for summary judgment, the Court views the 

evidence in the light most favorable to the non-moving party.4 Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ho began full-time work 

at Abbott in 1996. DSOF ¶ 2. In late 2005, she was promoted to the position of CMC 

Quality Engineer in Abbott’s Quality Assurance Department. PSOF ¶ 17. At the 

time of her promotion, Ho was 51 years old. DSOF ¶¶ 1, 4. As a Quality Engineer, 

Ho first reported to Richard “Ty” Hickman, whom she considered to be a fair 

manager. Id. ¶¶ 6, 20. Under Hickman, Ho received “Achieved Expectations” 

ratings in her performance reviews. PSOF ¶ 18; DSOF ¶ 18. In late summer 2007, 

 

3Citation to the docket is “R.” followed by the entry number and, when necessary, the 

page/paragraph number. Citations to the parties’ Local Rule 56.1 Statements of Fact are 

“DSOF” (for Abbott’s Statement of Facts) [R. 127]; “PSOF” (for Ho’s Statement of Additional 

Facts) [R. 151 at 18-28]; “Pl.’s Resp. DSOF” (for Ho’s response to Abbott’s Statement of 

Facts [R. 151 at 1-17]); and “Def.’s Resp. PSOF” (for Abbott’s Response to Ho’s Statement of 

Additional Facts) [R. 158], followed by the paragraph number. See also R. 154, Dec. 5, 2013 

Minute Entry (holding that Ho’s supplemental responses [R. 150, 151] to Abbott’s motion 

for summary judgment replaced her initial responses [R. 135, 137]). 

4Ordinarily, the source of factual citations when evaluating a motion for summary 

judgment is the non-movant’s Local Rule 56.1 fact statements. But Ho, who is representing 

herself pro se, provides only a few factual citations to the record in her filings, and often, 

the record citations do not support her asserted facts. Ho was provided with the Local Rule 

56.2 notice to pro se litigants. R. 134, Notice to Pro Se Litigant. Ho is well-educated and 

capable of complying with Rule 56 and Local Rule 56.1, see Pl.’s Resp. to DSOF ¶ 1 

(detailing Ho’s education background); see also Cady v. Sheahan, 467 F.3d 1057, 1061 (7th 

Cir. 2006) (“[E]ven pro se litigants must follow rules of civil procedure.”), so the Court will 

apply Local Rule 56.1’s requirements to her filings. In evaluating the factual record, the 

Court credits Ho’s factual assertions when it can find support for them, or when they are 

admitted by Abbott. Otherwise, the Court is forced to rely on Abbott’s portrayal of the facts 

(again, when supported by the record). Thus, although the Court has viewed the evidence in 

the light most favorable to Ho, many of the record citations are to Abbott’s statement of 

facts. 
3 

Ho began reporting to Suzette Pelletier. DSOF ¶ 7. According to Abbott, Pelletier 

understood (based on feedback that Hickman provided to Pelletier during Pelletier’s 

take-over of Ho’s department) that Hickman told Ho several times during the year 

that Ho was not performing adequately. Id. ¶ 21. Based on this understanding, 

Pelletier told Ho in October 2007 that she was “Partially Achieving” expectations. 

Id. ¶ 22.5 Several months later, Pelletier gave Ho a written warning for “Failure to 

Follow Standard Operating Procedures,” which Ho protested. Id. ¶ 23; PSOF ¶¶ 25-

26. Pelletier and Hickman then gave Ho her 2007 performance assessment, in 

which she was given a “Partially Achieving” rating. DSOF ¶ 24. Ho refused to sign 

the assessment and drafted a rebuttal. Id. ¶ 25; Pl.’s Resp. to DSOF ¶ 25. 

After giving Ho the “Partially Achieving” performance review, Pelletier put 

Ho on a “Coaching & Counseling Plan.” PSOF ¶ 27; DSOF ¶ 26. This plan 

established several goals for Ho, including batch-record review training. DSOF ¶ 28; 

Pl.’s Resp. to DSOF ¶ 28. At least two other Quality Engineers who reported to 

Pelletier also participated in batch-record review training. R. 143-1, Pl.’s Exh. 40, 

Batch Record Review Materials at 13 (stating that Matt Krumrai and Lance Leech 

 

5Ho disputes DSOF ¶ 22, Pl.’s Resp. to DSOF ¶ 22, but her record citations and explanation 

do not support her denial. Ho does not seem to dispute that Pelletier told her she was not 

meeting expectations; Ho instead contends that Pelletier was wrong to do so. In support of 

her position, Ho cites to her own deposition, in which she testifies that Pelletier told her she 

was partially achieving expectations. See R. 127-1, Def.’s Exh. 1, Ho Dep. at 80:23-81:5. But 

the additional pages that Ho cites reinforce that Pelletier had this conversation with Ho. Id.

at 94:1-95:14. Because Ho’s explanation and record citation fail to support her dispute of 

the statement of fact, DSOF ¶ 22 is deemed admitted. See Cichon v. Exelon Generation Co., 

401 F.3d 803, 808 (7th Cir. 2005) (holding that opposition to a statement of material facts 

“with citations to portions of the record that fail[ ] to support [plaintiff’s] denials” is a 

violation of Local Rule 56.1); Smith v. Lamz, 321 F.3d 680, 682 (7th Cir. 2003) (“We have 

consistently held that a failure to respond by the nonmovant as mandated by the local rules 

results in an admission.”). 
4 

completed batch-record review training) (the exhibit is filed under seal, but not due 

to the factual proposition disclosed by this Opinion); see also DSOF ¶ 8 (identifying 

Krumrai and Leech as Quality Engineers). Ho failed her first attempt at the batchrecord review test. DSOF ¶ 31.6

Next, Pelletier gave Ho a “Performance Improvement Plan,” which stated 

that Ho was expected to retake the batch-record review test and to pass it with a 

score of 100 percent. Id. ¶ 32.7 Ho received training on the batch-record review 

process from Larry Bonk. Id. ¶ 33.8 During training, Bonk showed Ho screenshots of 

 

6Ho disputes that she failed her first attempt at the batch-record review test. Pl.’s Resp. to 

DSOF ¶ 31. Her record citations, however, do not support her denial. In her deposition, Ho 

admitted that she failed her first attempt. Def.’s Exh. 1, Ho Dep. at 288:4-22. In her 

response to DSOF ¶ 31, Ho does not present any evidence that she did not fail, only that 

she believes the test was in violation of Abbott’s internal policies. Pl.’s Resp. to DSOF ¶ 31. 

Because Ho’s record citations again fail to support her dispute of Abbott’s statement of fact, 

DSOF ¶ 31 is admitted See Cichon, 401 F.3d at 808; Smith, 321 F.3d at 682. 

7Again, Ho disputes DSOF ¶ 32, Pl.’s Resp. to DSOF ¶ 32, but her record citations do not 

support her denial. Ho disputes DSOF ¶ 32 without explanation, despite the fact that she 

admitted to receiving the Performance Improvement Plan in her deposition. Def.’s Exh. 1, 

Ho Dep. at 293:17-23. Some of the materials that Ho cites in support of her denial are not in 

the record before the Court. She cites to PSOF ¶¶ 50, 51, and 52, but her statement of 

additional facts ends at PSOF ¶ 40. In Ho’s earlier filings, which were replaced by her 

amended filings, see Dec. 5, 2013 Minute Entry, she includes paragraphs labelled 50, 51, 

and 52. R. 137. Those paragraphs correspond with PSOF ¶¶ 35, 36, and 37 in her operative 

filing. Compare R. 137 ¶¶ 50-52, with PSOF ¶¶ 35-37. None of these paragraphs suggest 

that Ho did not receive the Performance Improvement Plan. See PSOF ¶¶ 35-37. Nor do the 

exhibits that Ho cites support the contention that she did not receive the plan. R. 142, Pl.’s 

Exh. 35, Performance Management Guide (providing a general outline of when to use 

Performance Improvement Plans, with no information on whether such a plan was given to 

Ho); Pl.’s Exh. 40 (collecting documents about batch-record review training) (filed under 

seal). Finally, Ho cites generally to her deposition, in which she admits to receiving the 

plan. Because Ho’s denial is not supported by her record citations, DSOF ¶ 32 is deemed 

admitted. See Cichon, 401 F.3d at 808; Smith, 321 F.3d at 682.

8Ho disputes DSOF ¶ 33. Pl.’s Resp. to DSOF ¶ 33. Her explanation and record citation do 

not support the denial. She cites to substantially the same material that she cited to 

dispute DSOF ¶ 32, and the citations fail to support her denial for the same reasons. Id.

(citing PSOF ¶ 51, 52; Pl.’s Exhs. 35, 40). She also cites to her deposition, in which she 

testifies that Bonk trained her. Def.’s Exh. 1, Ho Dep. at 238:3-21 (stating that Bonk 

trained her); Pl.’s Resp. to DSOF ¶ 33 (citing Def.’s Exh. 1, Ho Dep. at 240:20-243:19). The 
5 

her mistakes. Id. ¶ 34.9 Bonk gave the screenshots to Ho so that she could make 

copies, but Ho later refused to return the screenshots. Id.; Def.’s Exh. 1, Ho. Dep. at 

253:3-256:18, Exh. 21. After this incident, Bonk told Pelletier and Catherine Moore, 

the Associate Director of Quality Assurance Operations, that he did not feel 

comfortable training Ho anymore. DSOF ¶ 34. Ho took the batch-record review test 

again, and Abbott claims that Ho failed her second attempt. Id. ¶ 37. 

Nitorshi Wilson, a Senior Specialist in Employee Relations, reviewed the 

circumstances surrounding Ho’s failure of the batch-record review tests and the 

screenshot incident. Id. ¶ 43.10 Wilson determined that Ho’s employment should be 

terminated based on her failure to pass the batch record review test and her 

destruction of the screenshots. Id. ¶ 44.11 In August of 2008, Pelletier and Moore 

told Ho that Abbott made the decision to fire her. Id. ¶ 46; Pl.’s Resp. to DSOF ¶ 46. 

Several months after she was fired, Ho was invited to attend a holiday party 

for retired Abbott employees. DSOF ¶ 66. At the party, Ho was approached by 

 

additional pages to which Ho cites do not contest that Bonk trained Ho. DSOF ¶ 33 is 

deemed admitted. See Cichon, 401 F.3d at 808; Smith, 321 F.3d at 682. 

9Ho disputes DSOF ¶ 34. Pl.’s Resp. to DSOF ¶ 34. Again, Ho’s record citations do not 

support the dispute. Id. (citing PSOF ¶¶ 51, 52; Pl.’s Exhs. 35, 40). Nor do Ho’s citations to 

her deposition support her denial. The portions that Ho cites do not contest that Bonk 

showed Ho screenshots. Def.’s Exh. 1, Ho Dep. at 304:22-306:8. DSOF ¶ 34 is therefore 

admitted. See Cichon, 401 F.3d at 808; Smith, 321 F.3d at 682. 

10Ho disputes DSOF ¶ 43, Pl.’s Resp. to DSOF ¶ 43, but her record citations do not support 

the denial. Ho’s dispute does not deny that Wilson reviewed the incident; it states that 

Abbott policy required a written separation agreement. Id. Her cited materials do not 

present any evidence that Wilson did not review the batch record review incident. Id. (citing 

PSOF ¶¶ 50-52; Pl.’s Exhs. 35, 40). DSOF ¶ 34 is deemed admitted. See Cichon, 401 F.3d at 

808; Smith, 321 F.3d at 682. 

11Ho disputes DSOF ¶ 44 without explanation, citing again to material that does not 

support her denial. Pl.’s Resp. to DSOF ¶ 44 (citing PSOF ¶¶ 51-52; Pl.’s Exhs. 35, 40). 

DSOF ¶ 44 is therefore deemed admitted. See Cichon, 401 F.3d at 808; Smith, 321 F.3d at 

682. 
6 

Abbott security guards, who, according to Ho’s contention, had been told that Ho 

was a terminated employee and that it was illegal for Ho to be on the premises. Id. 

¶ 68; R. 132, Lehner Decl. Exh. M, Jan. 6, 2009 Ho email to Lehner at AHO 002137 

(“[T]wo men from [the] security department told me they were on duty responding 

to a phone call from someone claiming that I was terminated the very last Friday 

and that it was illegal for me to be [on] Abbott property.”). When Ho showed the 

security guards her invitation to the party, she was allowed to remain on the 

premises. Lehner Decl. Exh. M at AHO 002137. Ho sent an email to Abbott Human 

Resources about the incident, in which she said that she planned to file a 

defamation charge. Id. A few months later, Ho filed a charge of discrimination with 

the Equal Employment Opportunity Commission (EEOC). R. 32-2, Second Am. 

Compl. Exh. B. After the EEOC issued a right to sue letter, Ho filed this lawsuit 

against Abbott, alleging race and age discrimination, retaliation, and defamation. R. 

1, Compl; see also Mar. 31, 2013 Order (dismissing Ho’s other claims). 

II. Standard of Review 

Summary judgment must be granted “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). A genuine issue of material fact exists if “the 

evidence is such that a reasonable jury could return a verdict for the nonmoving 

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating 

summary judgment motions, courts must view the facts and draw reasonable 

inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 
7 

U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make 

credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 

704 (7th Cir. 2011), and must consider only competent evidence of a type otherwise 

admissible at trial, Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The party 

seeking summary judgment has the initial burden of showing that there is no 

genuine dispute and that they are entitled to judgment as a matter of law. 

Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th 

Cir. 2008). If this burden is met, the adverse party must then “set forth specific 

facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. 

III. Analysis 

Abbott argues that it is entitled to summary judgment on Ho’s remaining 

claims, which are for race discrimination, age discrimination, retaliation, and statelaw defamation. See Def.’s Mot. Summ. J. The Court will discuss the race and age 

discrimination claims together and address the remaining arguments in turn. 

A. Race and Age Discrimination 

In employment discrimination cases, the central issue is generally the 

motivation of the person who made the adverse employment decision. See, e.g., 

Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003), overruled on other 

grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013). Ho does not 

meaningfully dispute that Wilson (the Senior Specialist in human resources) made 

the ultimate decision to terminate her. See supra, notes 10-11. Nor does Ho allege 
8 

that Wilson had a discriminatory animus. Ho instead believes that Pelletier and 

Moore were discriminating against her based on her age and race. See R. 136, Pl.’s 

Resp. Br. at 5; R. 150, Pl.’s Supp. Resp. at 3. 

Even if Wilson did not have discriminatory motives, Ho could still prevail if a 

biased supervisor exerted influence over Wilson’s decision. Rozskowiak v. Village of 

Arlington Heights, 415 F.3d 608, 613 (7th Cir. 2005). This is the “cat’s paw” theory 

of employment discrimination. Brewer v. Board of Trustees of University of Illinois, 

479 F.3d 908, 917-18 (7th Cir. 2007). Under this theory, “if a supervisor performs an 

act motivated by a discriminatory or retaliatory animus that is intended by the 

supervisor to cause an adverse employment action, and if that act is a proximate 

cause of the ultimate employment action, then the employer is liable.” Hicks v. 

Forest Preserve Dist., 677 F.3d 781, 790 (7th Cir. 2012) (citing Staub v. Proctor 

Hosp., 131 S.Ct. 1186, 1194 (2011)) (internal quotation marks and alterations 

omitted). A supervisor’s discrimination may be the proximate cause of an 

employment decision “where the party nominally responsible for a decision is, by 

virtue of her role in the company, totally dependent on another employee to supply 

the information on which to base that decision.” Brewer, 479 F.3d at 918. If the 

alleged discrimination by Pelletier or Moore was the proximate cause of Wilson’s 

decision to terminate Ho, Abbott may be liable under Title VII and the ADEA. 

A plaintiff seeking to prove race- or age-based discrimination may use either 

the direct or indirect method of proof. Teruggi v. CIT Grp./Capital Fin., Inc., 709 

F.3d 654, 659 (7th Cir. 2013) (age discrimination); Coleman v. Donahoe, 667 F.3d 
9 

835, 845 (7th Cir. 2012) (race discrimination). Under the indirect method and 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), discrimination may be 

proven through a burden-shifting framework. See also Peele v. Country Mut. Ins. 

Co., 288 F.3d 319, 326 (7th Cir. 2002) (applying the McDonnell Douglas framework 

to age discrimination claims under the ADEA). First, the plaintiff must establish a 

prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. This 

requires the plaintiff to show that “(1) she was a member of a protected class; (2) 

she was meeting her employer’s legitimate job expectations; (3) she suffered an 

adverse employment action; and (4) similarly situated employees not in the 

protected class were treated more favorably.” Haywood v. Lucent Tech., Inc., 323 

F.3d 524, 530 (7th Cir. 2003). After the plaintiff has established a prima facie case, 

the burden shifts to the employer to “articulate some legitimate, nondiscriminatory 

reason for the employee’s rejection.” McDonnell Douglas Corp., 411 U.S. at 802. 

Finally, if the employer meets this burden, the plaintiff must prove by a 

preponderance of the evidence that the employer’s reasons are mere pretext for 

discrimination. Id. at 804. 

There is no meaningful dispute that Wilson based her decision to fire Ho on 

two grounds: Ho’s failure to pass the batch-record review tests and Ho’s refusal to 

return the screenshots. See supra, notes 10-11; DSOF ¶ 43-44. Ho argues, however, 

that the batch-record review tests were improperly imposed on her and that she did 

not actually fail the second test.12 PSOF ¶¶ 19-21, 37; Pl.’s Resp. to DSOF ¶¶ 16-17, 

 

12 Ho does not meaningfully dispute that she refused to return the screenshots that Bonk 

gave her. See supra, notes 8-9. 
10 

28, 37. Ho believes that Pelletier, motivated by a discriminatory animus, wrongfully 

imposed the batch-record review training on Ho and lied about Ho failing the second 

test. Pl.’s Resp. Br. at 8-10. Because Pelletier provided Wilson with much of the 

information that Wilson used to make her termination decision, Ho could 

conceivably show that a discriminatory batch-record review process was the 

proximate cause of Wilson’s decision to fire her. See Brewer, 479 F.3d at 918. Ho 

fails, however, to present enough evidence for a reasonable jury to find that the 

creation, administration, and application of the test to her were the product of 

discrimination. 

Ho first argues that batch-record review was not included in her “Core Job 

Responsibilities” and therefore the test of that skill was improperly imposed on her. 

PSOF ¶¶ 19-21; Pl.’s Resp. to DSOF ¶¶ 28-29, 32. Although it might be true that 

Ho’s “core” job description did not include batch-record review, Ho cannot show that 

Abbott’s decision to give her batch record review training was based on age or race 

discrimination. Two other Quality Engineers, Matt Krumrai and Lance Leech, were 

also required to participate in batch-record review training. Pl.’s Exh. 40 at 13 (the 

exhibit is filed under seal, but not due to the factual proposition disclosed by this 

Opinion); DSOF ¶ 813 (identifying Krumrai and Leech as Quality Engineers). Ho 

does not argue that Krumrai and Leech were in the protected classes or were also 

being discriminated against. See Second Am. Compl. Exh. B at 9 (identifying 

 

13Ho disputes DSOF ¶ 8 in its entirety, but only includes an explanation and record support 

regarding Nicholas Gallo, the employee that Ho believes replaced her. Because her dispute 

does not include any reference to employees listed in DSOF ¶ 8 other than Gallo, the fact is 

deemed admitted with respect to all facts addressing other employees. 
11 

Krumrai and Leech as white men in their 30s). Because other Quality Engineers 

outside the protected classes also took the batch-record review tests, Ho cannot 

show that requiring her to take the batch-record review tests was discriminatory. 

Ho also argues that the answer key to her second batch-record review test 

was switched, which made it appear that she had failed the test when she actually 

did not fail. PSOF ¶ 37.14 To support this argument, Ho provides a table that 

purports to show that she took the same test as other employees, but was graded 

based on a different answer key. Id.; see also Pl.’s Exh. 40 (the exhibit is filed under 

seal, but not due to the factual propositions disclosed by this Opinion). Despite the 

Court’s best efforts to puzzle out support for Ho’s contention in her supporting 

documents, Ho has failed to present a genuine issue of material fact here. Ho 

identifies several pages as the “Standard” batch-record review test. PSOF ¶ 37 

(identifying AHO 004382, 004383, 004385, and 004393 as “Standard BRR Test”). 

She also identifies several pages as her second test., id. (identifying AHO 004545, 

004546, 004548, and 004556 as “Ho’s BRR test”), though only one of the identified 

pages is in the record. Pl.’s Exh. 40 at 10. Because a single page from the 

“Standard” test and a page from Ho’s test match, Ho asserts that the tests were the 

same. See id. at 4, 10. Ho then identifies one page has her answer key and another 

two pages as the “Standard” answer key. PSOF ¶ 37 (identifying AHO 004485 as 

Ho’s answer key and AHO 004358-59 as the “Standard” answer key). Ho concludes 

 

14 In support of this statement, Ho cites to her Exhibit 46. Ho only provided the Court with 

exhibits through 41. See R. 155-1, Pl.’s Revised Exh. List. Ho’s Exhibit 40 seems to best 

support her statement of facts, and it includes several of the referenced bates-numbered 

documents (the remainder do not appear anywhere in her exhibits). The Court assumes 

that Ho made a typographical error and meant to cite to exhibit 40. 
12 

that because the answer keys are different, her answer key was switched to cause 

her to fail. Id.

The cited documents do not support this conclusion. The tests that Ho 

identifies are all dated March 18, 2008. Pl.’s Exh. 40 at 2-4, 10-11. Ho took her first 

batch-record review test in June 2008, DSOF ¶ 31, so the cited pages could be from 

either her first or second test. Abbott does not dispute that the first tests were the 

same; but Abbott does claim (with record support) that the second tests were 

modified based on the mistakes made in the first test, specifically tailored to the 

particular employee who was taking a second test. DSOF ¶ 41. Even assuming that 

the pages are from the second test, a single matching page is not sufficient to show 

that the entire tests were the same. Indeed, the batch-record review tests were 

much longer than the excerpts presented in the record. See Pl.’s Exh. 40 at 2-4, 10-

11 (suggesting the test is 66 pages long); PSOF ¶ 37 (stating that the bates ranges 

of the full tests are more than one hundred pages long). At best, the documents that 

Ho cites—at least those that are available in the record—show that a single page of 

her second batch-record review test was the same as a page in the “Standard” test. 

Even accepting that the answer keys are different, this is not enough to 

demonstrate that Ho’s answer key was switched. Ho’s record citations do not create 

a genuine dispute of fact that the test was administered in a discriminatory fashion. 

Because Ho cannot demonstrate that the creation, administration, and 

application of the batch-record review test to her were discriminatory, she cannot 

establish a prima facie case of discrimination under the indirect method. First, she 
13 

cannot show that she was meeting Abbott’s legitimate job expectations. Though the 

batch-record review training might not have been one of her “core” job 

responsibilities, it was required of her by her supervisor. Ho has presented no 

genuine dispute to resist the conclusion that she failed to meet this goal. Next, Ho 

has not pointed to another similarly situated individual outside the protected class 

who was treated more favorably. A similarly situated individual is someone who is 

“directly comparable to [Ho] in all material respects.” Patterson v. Avery Dennison 

Corp., 281 F.3d 676, 680 (7th Cir. 2002). Wilson relied on Ho’s batch-record review 

performance and Ho’s refusal to return the screenshots in making her employment 

decision. Ho does not identify any other Abbott employees who failed the second 

batch-record review test or refused to return documents to a trainer. Because Ho 

cannot show that she legitimately met Abbott’s job expectations or show that 

similarly situated employees got better treatment, Ho cannot establish a prima 

facie case of discrimination. 

Even if Ho could establish a prima facie case, she has not shown that Abbott’s 

legitimate, nondiscriminatory reasons for terminating Ho were pretextual. To show 

pretext, Ho must show that Wilson’s explanation for firing her was a lie. Hobbs v. 

City of Chicago, 573 F.3d 454, 461 (7th Cir. 2009). As discussed above, Ho cannot 

provide any record support for her allegations that the batch-record review training 

program was a pretext for Pelletier’s discriminatory motives. Other employees with 

Ho’s job description who were not in the protected classes participated in batch 

record review training, and there is no evidence that Ho’s second test was doctored 
14 

to fail her. Ho has not put forward any other evidence that Wilson’s articulated 

reasons for firing Ho, the batch-record review test and refusal to return the 

screenshots, were a lie. Ho cannot sustain a claim for discrimination under the 

indirect method. 

Under the direct method of proof, the plaintiff can meet her burden by 

presenting either direct or circumstantial evidence. Teruggi, 709 F.3d at 659; Rudin 

v. Lincoln Land Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005). “Direct evidence is 

evidence which, if believed by the trier of fact, will prove the particular fact in 

question without reliance upon inference or presumption.” Rudin, 420 F.3d at 720 

(internal quotation marks and citation omitted). On the other hand, circumstantial 

evidence allows the trier of fact “to infer intentional discrimination by the 

decisionmaker.” Rogers, 320 F.3d at 753. This may include evidence of “(1) 

suspicious timing; (2) ambiguous statements or behavior towards other employees 

in the protected group; (3) evidence, statistical or otherwise, that similarly situated 

employees outside of the protected group systematically receive better treatment; 

and (4) evidence that the employer offered a pretextual reason for an adverse 

employment action. Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 

595, 601 (7th Cir. 2011). 

The undisputed facts do not support a claim of discrimination under the 

direct method. Ho admits that no one at Abbott made any negative remarks to her 

about her age. Pl.’s Resp. to DSOF ¶ 9. She can point to only one statement about 

her race, a handwritten note—presumably written by Pelletier—that says another 
15 

Abbott employee believed that Ho might be joining an “Asian class action.” R. 141-6, 

Pl.’s Exh. 30, Apr. 9, 2008 Pelletier Notes at 1; see also Pl.’s Resp. to DSOF ¶ 10; 

DSOF ¶ 10.15 This statement does not give rise to an inference of discriminatory 

intent for two reasons. First, Ho has not alleged that this remark proximately 

caused Wilson’s termination decision. Ho presents no evidence that Wilson even 

heard or knew of the “Asian class action” comment. Second, Pelletier’s note is an 

isolated stray remark and is thus “insufficient to establish that a particular decision 

was motivated by discriminatory animus.” Petts v. Rockledge Furniture LLC, 534 

F.3d 715, 721 (7th Cir. 2008). Ho offers no evidence of suspicious timing, ambiguous 

statements or behavior toward other employees in the protected group, or evidence 

that similarly situated employees received better treatment. And, as discussed 

above, she fails to show that Abbott’s legitimate reason for terminating her was 

pretextual. Ho therefore cannot establish a claim of race or age discrimination 

under the direct method. 

As this Court described in Luster-Malone v. Cook Cnty., No. 11 C 09227, 2013 

WL 6508070, at *3 (N.D. Ill. Dec. 12, 2013), the direct/indirect-method framework 

has “taken on a life of its own” since its creation. Numerous corollaries and rules 

have sprung forth from courts’ application of the framework over time, resulting in 

confusion and, too often, the imposition of a too-high burden on plaintiffs. This has 

 

15In her dispute of DSOF ¶ 10, Ho fails to cite to any record evidence to support her 

contention that several other Abbott employees made remarks alleging that Ho was 

coordinating an “Asian class action.” Because Ho’s response does not contain adequate 

citations to the record, DSOF ¶ 10 is deemed admitted. See Cady, 467 F.3d at 1059 (holding 

that a District Court has discretion to use the movant’s statement of facts when the nonmovant fails to adequately cite to the record). 
16 

led to a growing consensus in the Seventh Circuit for replacing this framework: a 

majority of active-service Seventh Circuit judges have opined that the 

direct/indirect-method analytical structure has done more harm than good, and 

should be replaced with the more straightforward question of “whether a reasonable 

jury could infer prohibited discrimination.” Hitchcock v. Angel Corps., Inc. 718 F.3d 

733, 737 (7th Cir. 2013); see also Coleman, 677 F.3d at 863 (Wood, J., concurring). 

By simplifying the approach, the Seventh Circuit sought to return to the “statutory 

question of discriminatory causation,” see Good v. Univ. of Chi. Med. Ctr., 673 F.3d 

670, 680 (7th Cir. 2012), thereby avoiding “the confusing ‘snarls and knots’ of this 

ossified direct/indirect paradigm,” Hitchcock, 718 F.3d at 737 (quoting Coleman, 677 

F.3d at 863).16 Still, the Seventh Circuit has yet to definitively jettison all 

application of the direct/indirect-method framework. See Alexander v. Casino Queen, 

Inc., 739 F.3d 972, 979 (7th Cir. 2014) (noting that the question is “ultimately” the 

reasonable-jury analysis of Hitchcock, but nevertheless applying the direct/indirect 

framework in full); Tate v. Ancell, USCA Nos. 11-3252, 12-2694, 2014 WL 186353, 

(7th Cir. Jan. 17, 2014) (unpublished). 

Even granting all inferences in Ho’s favor, no reasonable jury could find that 

Abbott discriminated on Ho based on her race and age. Ho claims that her bad 

reviews, counseling plans, and training were all imposed on her unfairly, but she 

does not present any evidence that these unfair actions were due to her age or race. 

See Brown v. Advocate South Suburban Hosp., 700 F.3d 1101, 1106 (“Perhaps their 

 

16As discussed in Luster-Malone, this approach is faithful to both Rule 56 and McDonnellDouglas. Luster-Malone, 2013 WL 6508070, at *3 (N.D. Ill. Dec. 12, 2013). 
17 

supervisors’ criticisms were unfair ... but there is no evidence that they were unfair 

because they were motivated by race, as Title VII forbids.”); Robinson v. PPG Indus., 

Inc., 23 F.3d 1159, 1164 (“Misguided and unfair personnel assessments are not 

actionable under the ADEA unless age played a role in the evaluation.”). The only 

evidence Ho has presented that anyone discriminated against her based on 

protected characteristics is a stray remark about joining an “Asian class action.” 

She provides almost no link between the adverse employment action and her race or 

age. It would be asking too much of a reasonable jury to infer discriminatory motive 

based on single comment—not even by the decisionmaker—referring to Ho’s race. 

Abbott is therefore entitled to summary judgment on Ho’s discrimination claims.

B. Retaliation 

Ho also alleges that Abbott retaliated against her. Second Am. Compl. ¶¶ 35-

38. It is not clear from Ho’s Second Amended Complaint whether she alleges 

retaliation under Title VII or the ADEA, but summary judgment is appropriate in 

either case. As a preliminary matter, Ho seems to allege that Abbott retaliated 

against her after applying for a transfer to an Abbott position in California. Second 

Am. Compl. ¶¶ 35-38. Both Title VII and the ADEA only protect against adverse 

employment decisions made because the employee engaged in statutorily protected 

activity. See Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012) (Title 

VII); Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657 (7th Cir. 2012) 

(ADEA). Statutorily protected activity includes protesting or opposing unlawful 

discrimination. See Huang v. Continental Cas. Co., 754 F.3d 447, 451 (7th Cir. 
18 

2014). Attempting to transfer within the company is not a protected activity under 

either statute. 

Even if Ho had alleged that she was retaliated against for making complaints 

of unlawful discrimination, her retaliation claim would fail. Claims of retaliation 

under Title VII and the ADEA follow the same framework as claims for 

discrimination. Tomanovich v. City of Indianapolis, 457 F.3d 656, 662 (7th Cir. 

2006) (Title VII) (applying the direct/indirect framework to retaliation under Title 

VII); Lafayette Bank, 674 F.3d at 657-58 (applying the direct/indirect framework to 

retaliation under the ADEA). For the same reasons discussed above, Ho cannot 

establish a claim of discrimination under either the direct or indirect method. 

C. Defamation 

In addition to her discrimination and retaliation claims, Ho alleges that 

Pelletier defamed Ho to Abbott Security after Ho’s firing. Second Am. Compl. ¶ 40; 

see also Mar. 31, 2013 Order at 11-16 (dismissing the majority of Ho’s defamation 

claim). Ho claims that Pelletier told Abbott security that it was illegal for Ho to be 

on Abbott property. Lehner Decl. Exh. M at AHO 002137. Because this statement 

would impute that Ho committed an indictable criminal offense, it could constitute 

defamation per se. See Mar. 31, 2013 Order at 14-15. Abbott now moves for 

summary judgment on Ho’s defamation claims on three grounds. Abbott argues that 

Ho’s claim is time-barred, that Ho has not presented competent evidence that 

Pelletier made the allegedly defamatory statement, and that, even if Pelletier made 

the statement, she is protected by qualified privilege. R. 126, Def.’s Br. at 13-15. 
19 

Abbott is correct that Ho’s defamation claim is not timely. In Illinois, the 

statute of limitations for defamation claims is one year from the publication of the 

defamatory statement. 735 ILCS 5/13-201; Tom Olesker’s Exciting World of 

Fashion, Inc. v. Dun & Bradstreet, Inc., 334 N.E.2d 160, 161 (Ill. 1975). In some 

circumstances, however, the limitations period may be tolled until the plaintiff 

knew or should have known of the defamatory statement (this is known as the 

“discovery” rule). See Blair v. Nev. Landing P’ship, 859 N.E.2d 1188, 1195 (Ill. 2006) 

(noting the statute of limitations may be tolled if “the publication was hidden, 

inherently undiscoverable, or inherently unknowable”); Tom Olesker’s, 334 N.E.2d 

at 164. Even assuming that Ho’s claim would benefit from the discovery rule, the 

claim is untimely. On January 6, 2009, Ho sent an email to Christina Lehner, 

Abbott’s Business Human Resources Director, relaying the incident at the holiday 

party and stating that she intended to file a defamation claim. Lehner Decl. Exh. M 

at AHO 002137; see also Pl.’s Resp. to DSOF ¶ 68 (admitting that she sent this 

email to Lehner). At the latest, Ho’s claim accrued in January 2009. Ho did not file 

her initial complaint until December 29, 2011, long after the statute of limitations 

had expired in January 2010. See Compl. Ho’s earlier-filed EEOC complaint does 

not save her, as an EEOC charge will not toll the statute of limitations on a 

separate and independent state-law claim. See Juarez v. Ameritech Mobile 

Commc’ns, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (citing Johnson v. Ry. Express 

Agency, Inc., 421 U.S. 454 (1975)). 
20 

Even if Ho’s claim were not time-barred, Ho has not presented any competent 

evidence of the defamatory statement. On summary judgment, a court may only 

consider admissible evidence. See Gunville, 583 F.3d at 985. The only evidence that 

Pelletier said Ho’s presence on Abbott’s premises was illegal is Ho’s January 2009 

email to Lehner. See Lehner Decl. Exh. M at AHO 02137. Cf. Second Am. Compl. 

¶ 40 (alleging only that Pelletier told the guards Ho had been terminated and 

should be escorted off the property); Pl.’s Supp. Resp. at 5 (arguing that Pelletier 

“stated that Ho was terminated the very last Friday and tried to have her evicted 

from Abbott property”); Def.’s Exh. 1, Ho Dep. at 357:16-359:2 (saying only that 

Pelletier called to get Ho evicted from Abbott’s property); R. 132, Lehner Decl. Exh. 

N, Dec. 10, 2008 Activity Report (stating that Pelletier “reported that a terminated 

employee (Olivia Ho) was on-site”). Thus, the only account of the potentially 

defamatory portion of the statement is Ho’s own account in January 2009. But Ho 

did not speak to Pelletier on the day of the holiday party. DSOF ¶ 67; Def.’s Exh. 1, 

Ho Dep. at 357:16-359:11.17 She learned of Pelletier’s allegedly defamatory 

statement from Abbott security guards. See Def.’s Exh. 1, Ho Dep. at 358:1-359:2; 

Lehner Decl. Exh. M at AHO 02137. Her account is inadmissible hearsay and thus 

 

17Although Ho disputes DSOF ¶ 67, her record citations do not support the denial. In her 

deposition, Ho testified that she did not speak to Pelletier on the day of the party. Def.’s 

Exh. 1, Ho Dep. at 358:1-3. In disputing DSOF ¶ 67, Ho does not present any evidence that 

she actually did speak to Pelletier, but instead alleges that “Pelletier bragged to Abbott 

colleague[s that] she called security to evict Ho.” Pl.’s Resp. to DSOF ¶ 67. In support of this 

statement, she cites other portions of her deposition, none of which suggest that Ho spoke 

to Pelletier on December 10, 2008. See id. In fact, Ho’s record citations include the portion 

of the deposition in which she admits that she did not speak to Pelletier. See id. Because 

Ho’s record citations fail to support her dispute of Abbott’s statement of fact, DSOF ¶ 67 is 

deemed admitted. See Cichon, 401 F.3d at 808; Smith, 321 F.3d at 682. 
21 

“not enough to preclude summary judgment.” Haywood, 323 F.3d at 533 (quoting 

Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001)) (holding that an 

employee’s testimony that “another employee told her about information received 

from the employee’s superiors in corporate security” was inadmissible hearsay on 

multiple levels). Statements by Pelletier herself might be admissions of a partyopponent, but Ho’s version based on the security guards’ version is inadmissible. 

See id. There is therefore no competent evidence that Pelletier made the defamatory 

statement. 

Finally, even if Pelletier had made the statement, she would be protected by 

qualified privilege. “A defamatory statement is not actionable if it is privileged.” 

Solaia Tech., LLC v. Specialty Publ’g Co., 852 N.E.2d 825, 842 (Ill. 2006). In Illinois, 

a qualified privilege may exist when an interest of the publisher of the defamatory 

statement or a third person is involved. See Haywood v. Lucent Tech., Inc., 169 F. 

Supp. 2d 890, 916 (N.D. Ill. 2001), aff’d 323 F.3d 524 (7th Cir. 2003). An employer 

likely has “a compelling interest to make sure terminated employees [are] no longer 

allowed on company premises.” Haywood, 323 F.3d at 533. Without any evidence 

that Abbott did not have such a privilege or that Pelletier abused the privilege, 

Pelletier’s alleged statements are not actionable. Id. This is yet another reason why 

Abbott is entitled to summary judgment on Ho’s defamation claim. 

IV. Ho’s ERISA Claim 

Ho’s ERISA claim in this case was dismissed without prejudice. Mar. 31, 

2013 Order at 7-11. Although Ho’s inclusion of the ERISA claim in her summary 
22 

judgment responses is not procedurally proper (absent a motion for leave to amend 

the complaint), this Court agreed to consider whether Ho has presented enough 

additional evidence to warrant the reinstatement of the claim. R. 167, Feb. 11, 2014 

Minute Entry. In her Second Amended Complaint, Ho alleged that she was fired 

because she would have been laid off a short time later and would have received a 

severance package. Second Am. Compl. ¶ 23. Because a severance package is a 

benefit plan under ERISA, see Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 

786, 789 (7th Cir. 1996), firing Ho with the specific intent to avoid paying severance 

would be an ERISA violation. See Mar. 31, 2013 Order at 9-10. 

In order to reinstate her ERISA claim, “Ho must plead facts plausibly 

alleging that Abbott had already selected her to be laid off (and thus would have 

been eligible for the severance package) but fired her ahead of time to avoid paying 

her severance.” Id. Only one of the documents filed by Ho even references the 

severance package. See Pl.’s Resp. Br. at 2, 7. In her brief, Ho identifies “a 

Separation Benefit Plan” as an ERISA-defined employee benefits plan administered 

by Abbott. Pl.’s Br. at 2. Later, she states that Abbott fired her “with the specific 

intent to interfere with benefits,” including a “separation package.” Id. at 7. 

Nowhere does she suggest that Abbott even had layoffs, let alone that she was 

selected for these layoffs prior to her firing. Ho’s bare references to the severance 

package are not remotely sufficient to plausibly allege that Abbott fired Ho to avoid 

paying her severance. Ho’s ERISA claim will therefore not be reinstated. 
23 

V. Conclusion 

For the reasons discussed above, Abbott’s motion for summary judgment is 

granted. 

ENTERED: 

 s/Edmond E. Chang 

 Honorable Edmond E. Chang 

 United States District Judge 

DATE: September 16, 2014