IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CLARA S. NUTTALL, )

)

Plaintiff, )

)

v. ) No. 12 C 2744

)

PRESIDENTIAL PAVILION, LLC, )

)

Defendant. )

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant Presidential Pavilion, LLC’s

(Presidential) motion for summary judgment. For the reasons stated below, the

motion for summary judgment is granted.

BACKGROUND

In January of 2010, Plaintiff Clara Shenell Nuttall (Nuttall) was allegedly

employed by Presidential as a Dietary Aide. Nuttall contends that beginning on

January 25, 2010 and continuing through January 30, 2010, she was subjected to

harassment based on her national origin, sex, and disability. Nuttall claims that

during the five days in question her supervisor, Michelle Holloway (Holloway)

called Nuttall names and made derogatory comments about the quality of her work. 

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Holloway also allegedly grabbed utensils from Nuttall’s hand and shut a door in

Nuttall’s face. It is undisputed that after Nuttall complained about the alleged

harassment, she requested a transfer and was reassigned to a new position where she

actually earned more money. Nuttall allegedly worked in that position until her

employment was terminated in April 2012. Nuttall contends that the termination of

her employment constituted unlawful discrimination. Nuttall includes in her

complaint a claim alleging discrimination based on her national origin in violation of

Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., a

Title VII sex discrimination claim, a Title VII hostile work environment claim, a

claim alleging discrimination based on an alleged disability in violation of the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and an ADA

hostile work environment claim. Presidential moves for summary judgment on all

claims.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most 

favorable to the non-moving party, reveals that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A

“genuine issue” of material fact in the context of a motion for summary judgment is

not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue

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of material fact exists when “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); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In

ruling on a motion for summary judgment, the court must consider the record as a

whole, in the light most favorable to the non-moving party, and draw all reasonable

inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v.

Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

I. Hostile Work Environment Claims

Presidential moves for summary judgment on the hostile work environment

claims. Under the protections provided by Title VII, an employer is barred from

creating a “hostile work environment.” Orton-Bell v. Indiana, 2014 WL 3566338, at

*4-*5 (7th Cir. 2014). To defeat a defendant’s motion for summary judgment on a

hostile work environment claim, a plaintiff must establish: (1) that “the work

environment [was] both subjectively and objectively offensive,” (2) that the

protected characteristic was “the cause of the harassment,” (3) that “the conduct

[was] severe or pervasive,” and (4) that “there [is] a basis for employer liability.” Id.

at *5 (internal quotations omitted)(quoting Chaib v. Indiana, 744 F.3d 974, 985 (7th

Cir. 2014)). As to Nuttall’s ADA hostile work environment claim, the Seventh

Circuit has not yet recognized such a claim and this court declines to do so as well. 

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See Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 603 (7th Cir. 2009)(stating that the

Court has “not decided whether allowing a hostile work environment is actionable

under the ADA”); Latham v. Donahue, 2014 WL 1876145, at *4 (N.D. Ill.

2014)(stating that “[t]he Seventh Circuit has not expressly decided whether a hostile

work environment claim exists under the Rehabilitation Act or the ADA”). The

court notes, however, that regardless of whether Nuttall’s ADA hostile work

environment claim were deemed to be a cognizable claim, Presidential is entitled to

prevail as a matter of law.

Presidential argues that Nuttall has failed to point to sufficient evidence of a

hostile work environment. The court notes that in opposition to the motion for

summary judgment, Nuttall fails to offer any arguments in support of her hostile

work environment claim. Nuttall fails to even reference her hostile work

environment claims in response to the instant motion. See Nichols v. Michigan City

Plant Planning Dept., 755 F.3d 594, 600 (7th Cir. 2014)(stating that “[t]he nonmoving party waives any arguments that were not raised in its response to the

moving party’s motion for summary judgment”). Based on Nuttall’s filings, it

appears that Nuttall believes that her hostile work environment claim is the same as

her Title VII discrimination claim. Nuttall argues, for example, in support of her

Title VII discrimination claims that conduct by Holloway was “consistent” and

“pervasive.” (Ans. SJ 6). However, a Title VII hostile work environment claim and

a Title VII discrimination claim are distinct claims, subject to different standards

under case law. See, e.g., Orton-Bell, 2014 WL 3566338 at *4-*7 (addressing a

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hostile work environment claim and a discrimination claim separately); Nichols, 755

F.3d at 600-04 (same); Chaib, 744 F.3d at 981-85 (same).

In the instant action, in support of her hostile work environment claims,

Nuttall asserts that certain isolated comments were made to her during a limited fiveday period in 2010. Nuttall also contends that on one occasion utensils were

snatched from her hands and that a door was slammed in her face. (Nutt. Aff. Par.

15-16). Nuttall has not pointed to evidence to show that she suffered any physical

harm or was in any danger of a physical injury. Pursuant to Local Rule 56.1, Nuttall

admits that after she complained about Holloway’s alleged conduct, Presidential

asked Nuttall if she would like a transfer, and when Nuttall responded in the

affirmative, Presidential immediately transferred Nuttall to the Housekeeping

department where Nuttall would not be supervised by Holloway. (R SF Par. 32);

(Nutt. Aff. Par. 25). Nuttall also admits that at her new assignment, she received

“more hours,” which was “better for” her because “she made more money,” and that

she was “better off in Housekeeping.” (R SF Par. 32). Nuttall admits that after the

alleged comments by Holloway during a limited five-day period, Nuttall “never ran

into Holloway or had any interaction with her,” and that “everything was fine for

over two years after her transfer from Dietary to Housekeeping.” (R SF Par. 32). 

Nuttall has not pointed to evidence to show that the alleged harassment was severe or

pervasive. Nor has Nuttall pointed to sufficient evidence to show that the cause of

the comments allegedly made by Holloway was Nuttall’s sex, national origin, or

alleged disability. Therefore, Presidential’s motion for summary judgment on the

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hostile work environment claims is granted.

II. Title VII Discrimination Claims

Presidential moves for summary judgment on the Title VII discrimination

claims. 

A. Scope of EEOC Charge

Nuttall failed to assert discrimination based on her sex or national origin in her

charge filed with the Equal Employment Commission (EEOC). In general, a plaintiff

cannot pursue a Title VII claim in federal court if the claim was not asserted in the

plaintiff’s EEOC charge. Moore v. Vital Products, Inc., 641 F.3d 253, 256-57 (7th

Cir. 2011). A plaintiff can pursue a Title VII claim that was not specifically

referenced in the EEOC charge if the claim is “like or reasonably related to the

allegations of the [EEOC] charge and growing out of such allegations.” Id. (internal

quotations omitted)(quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d

164, 167 (7th Cir. 1976)). 

In the instant action, Nuttall has attached her EEOC charge to her complaint. 

In the EEOC charge, Nuttall alleges that she was subjected to “harassment,

beginning on or about January 25, 2010 and continuing through January 30, 2010,

because of [her] national origin. . . .” (EEOC 1). Nuttall further alleges that she was

subject during those five days to “harassment” because of her sex and alleged

disability (EEOC 2-3). Nuttall admits that the only adverse employment action that

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she is asserting in this case is her termination in April 2012. (R SF Par. 69).

 Nowhere in her EEOC charge does Nuttall allege that she suffered any adverse

employment action or even mention her termination. In fact, Nuttall could not have

mentioned her termination because at the time she filed the EEOC charge, her

employment had not yet been terminated. Nuttall has not submitted any

documentation to the court that shows that she filed any supplemental EEOC charge. 

Thus, the separate Title VII discrimination claims relating to the termination of

Nuttall’s employment were not referenced in her EEOC charge. Nor do the entirely

distinct discrimination claims reasonably relate to the allegations in her EEOC

charge. Thus, Nuttall cannot proceed on a Title VII discrimination claim in this case.

B. Direct and Indirect Methods of Proof

Even if Nuttall had included allegations relating to unlawful discrimination

under Title VII in her EEOC charge, Nuttall cannot succeed under the direct or

indirect method of proof. A plaintiff seeking to defeat a defendant’s motion for

summary judgment on a Title VII discrimination claim may proceed under the direct

or indirect method of proof. Langenbach v. Wal-Mart Stores, Inc., 2014 WL

3805439, at *6 (7th Cir. 2014). Under the direct method of proof, a plaintiff can

point to direct evidence “explicitly linking an adverse employment action to an

employer’s discriminatory animus,” and to “circumstantial evidence that would

permit the trier of fact to infer that discrimination motivated the adverse action. . . .” 

Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013)(stating that “[i]n order to

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illustrate the idea that the circumstantial evidence, taken as a whole, must permit that

inference, we have used the metaphor of a mosaic whose individual tiles add up to a

complete picture”). Under the indirect method of proof, a plaintiff must first

establish a prima facie case by showing: (1) that “the employee is a member of a

protected class,” (2) that “she was meeting the employer’s legitimate expectations,”

(3) that “she suffered an adverse employment action,” and (4) that “similarly situated

employees outside of the protected class were treated more favorably.” Langenbach,

2014 WL 3805439. If the plaintiff establishes a prima facie case, the burden shifts to

the employer to provide a legitimate non-discriminatory reason for its action, and if

the employer provides such a reason, the burden shifts back to the plaintiff to show

that the employer’s reason is a pretext for unlawful discrimination. Cung Hnin v.

TOA (USA), LLC, 751 F.3d 499, 504 (7th Cir. 2014).

 Nuttall has not pointed to sufficient direct or circumstantial evidence to

proceed under the direct method of proof on her Title VII discrimination claims. In

regard to the indirect method of proof, Nuttall has failed to establish a prima facie

case. As to Nuttall’s Title VII national origin discrimination claim, pursuant to Local

Rule 56.1, Nuttall, apparently abandoning such claim, expressly and unequivocally

admits that she “was not discriminated against because of her National Origin.” (R

SF Par. 68). 

1. Adverse Employment Action

As to Nuttall’s Tile VII sex discrimination claim, as indicated above, Nuttall

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admits that the only adverse employment action that she is asserting in this case is

her termination in April 2012. (R SF Par. 69). Nuttall has not pointed to evidence

showing that her transfer to the Housekeeping department resulted in a negative

material alteration of her income, benefits, or job conditions. In fact, it is undisputed

that her voluntary transfer resulted in better benefits to Nuttall. Nor has Nuttall

pointed to any evidence showing that she suffered any other adverse employment

action other than the termination of her employment. 

2. Similarly-Situated Employees

Nuttall has failed to point to similarly-situated employees who were treated

more favorably. Nuttall asserts that Holloway treated other male employees with the

first names of Cephus, Dale, and Derrick more favorably. (Nutt. Aff. Par. 28); (Ans.

SJ 7, 9). However, in order for an employee to be similarly-situated, the employee

“must be directly comparable to the plaintiff in all material aspects. . . .” 

Langenbach, 2014 WL 3805439, at *6 (stating that a similarly-situated employee

“need not be identical in every conceivable way”)(internal quotations

omitted)(quoting Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012)). The

Seventh Circuit has indicated that one factor that courts should consider in making

the similarly-situated assessment when an employee is fired due to a disciplinary

issue is whether the employees had a similar disciplinary history. Eaton v. Indiana

Dept. of Corrections, 657 F.3d 551, 559 (7th Cir. 2011). In the instant action,

Presidential contends that it terminated Nuttall’s employment only after she had

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repeatedly failed to show up for work and failed to call in and notify Presidential that

she was not coming in. As to the male employees that Nuttall claims were treated

more favorably than her, Nuttall admits that, although she was given an opportunity

to conduct discovery in this case, she does not know the disciplinary history of such

comparators. (R SF Par. 42-44). Nuttall thus, has failed to meet her similarlysituated employee requirement for her prima facie case. 

3. Pretext

Even if Nuttall had established a prima facie case, she has failed to point to

sufficient evidence to show pretext based on her sex. Nuttall does not dispute that

her alleged harasser, who she contends discriminated against Nuttall because she is a

woman, is herself a woman. (Ans. SJ 4). Nuttall also admits that she believed that

Holloway treated “every other female” better than she treated Nuttall. (R SF Par.

42). Such facts suggest a personal dispute between Holloway and Nuttall rather than

an animus against Nuttall because of her sex. 

Nuttall also admits that after the alleged conduct by Holloway, Nuttall was

immediately transferred to a new position where Nuttall actually earned more money

and where Nuttall believes she was “better off. . . .” (R SF Par. 32). Nuttall further

admits that she subsequently worked for two years without any incident of

harassment or discrimination and that “everything was fine for over two years after

her transfer from Dietary to Housekeeping.” (R SF Par. 32). Such facts do not

indicate an intent by Presidential to unlawfully discriminate against Nuttall. Finally,

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the most glaring evidentiary hole in Nuttall’s theory of discrimination in this case is

that the sole alleged conduct relating to Nuttall’s sex was conduct by Holloway in the

limited five-day period in 2010. In support of her Title VII sex discrimination claim,

Nuttall argues that she must establish that Holloway “treat[ed] her differently from

other employees” and that such conduct “was motivated by an impermissible

purpose; [Nuttall’s] sex.” (Ans. SJ 4). Nuttall contends that based on her claims of

harassment by Holloway, Nuttall has shown that Holloway “discriminated against”

Nuttall. (Ans. SJ 6). However, the sole adverse employment action at issue for the

Title VII discrimination claims is the termination of Nuttall’s employment. Nuttall

has not pointed to any evidence showing that Holloway had any authority or

involvement in the decision to terminate Nuttall two years later from a position in a

department where Holloway was not a supervisor. Thus, evidence concerning

Holloway’s alleged conduct in 2010 when Nuttall worked for another department is

not compelling evidence that shows that Presidential terminated Holloway’s

employment two years later for an unlawful reason. Presidential correctly points out

that Nuttall has not even pointed to evidence showing that Holloway was the

decisionmaker regarding Nuttall’s transfer to the Housekeeping department much

less the decision to terminate Nuttall’s employment. Nuttall has failed to point to

evidence that would indicate that her termination was the result of any animus

against her because of her sex. 

Nuttall argues that she did call a receptionist on the days when Presidential

contends she failed to call into work. However, whether Presidential made a mistake

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and whether or not Nuttall disagrees with the wisdom of Presidential’s decisions is

not a determinative issue in this case. See Johal v. Little Lady Foods, Inc., 434 F.3d

943, 946-47 (7th Cir. 2006)(stating that it is not the Court’s “role to question the

wisdom of a company’s decisions on how to run its business, only to assure that such

decisions are not intended to provide cover for illegal discrimination”); Healy v. City

of Chicago, 450 F.3d 732, 742 n.12 (7th Cir. 2006)(stating that the Court “do[es] not

sit as a superpersonnel department where disappointed applicants or employees can

have the merits of an employer’s decision replayed to determine best business

practices”)(internal quotations omitted)(quoting Blise v. Antaramian, 409 F.3d 861,

868 (7th Cir. 2005)). Nuttall has thus failed to show that the given reason for her

termination was a pretext. Based on the above, Presidential’s motion for summary

judgment on the Title VII discrimination claims is granted.

III. ADA Discrimination Claim

Presidential moves for summary judgment on the ADA discrimination claim. 

A plaintiff seeking to defeat a defendant’s motion for summary judgment on an ADA

discrimination claim may proceed under the direct or indirect method of proof. Bunn

v. Khoury Enterprises, Inc., 753 F.3d 676, 685 (7th Cir. 2014).

A. Scope of EEOC Charge

As indicated above in regard to the Title VII discrimination claims, Nuttall

failed to include any allegations relating to unlawful discrimination in her EEOC

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Charge. Nuttall failed to include any allegations in her EEOC charge relating to

discrimination based on her alleged disability. Thus, Nuttall is barred from pursuing

an ADA discrimination claim in this case.

B. Direct and Indirect Methods of Proof

Even if Nuttall had included allegations relating to unlawful discrimination

under the ADA in her EEOC charge, Nuttall cannot succeed under the direct or

indirect method of proof. The same direct method and indirect method of proof that

are used with Title VII discrimination claims are utilized for ADA discrimination

claims. Bunn, 753 F.3d at 685 (listing three elements for direct method of proof). 

To establish a prima facie case under the indirect method of proof for an ADA

discrimination claim, a plaintiff must establish: (1) that [s]he is disabled under the

ADA[,] (2) that [s]he was meeting h[er] employer’s legitimate expectations[,] (3) that

[s]he suffered an adverse employment action[,] and (4) that similarly situated

employees without a disability were treated more favorably.” Id. at 685. If the

plaintiff establishes a prima facie case, “the burden shifts to the employer to produce

a legitimate, non-discriminatory reason for the adverse employment action,” and if

one is produced,” the plaintiff “must prove by a preponderance of the evidence that

the employer’s stated reason is a lie.” Id.

Nuttall has not pointed to sufficient direct or circumstantial evidence to

proceed under the direct method of proof. As to the indirect method of proof, Nuttall

has failed to show that similarly-situated employees outside her protected class were

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treated more favorably. Nuttall points to certain employees whom she believes were

treated more favorably. (Nutt. Aff. Par. 28-30). However, Nuttall admits that she

does not know if any of such employees were disabled. (R SF Par. 42-43). Thus,

Nuttall has not shown that such employees were outside the protected class. Even if

Nuttall were able to establish a prima facie case, Nuttall has not pointed to sufficient

evidence to show a pretext. The evidence shows that after the alleged comments by

Holloway, Presidential did not terminate Nuttall’s employment. Instead, Nuttall was

transferred to another position where she worked without harassment or

discrimination for the next two years. Nuttall has not pointed to evidence that would

indicate that Presidential’s reason for terminating Nuttall’s employment was a pretext

for unlawful discrimination. Therefore, Presidential’s motion for summary judgment

on the ADA discrimination claim is granted.

IV. Retaliation Claims

Nuttall asserts in response to the instant motion for summary judgment that

she “suffered retaliation in 2012” when her employment was terminated. (Ans. SJ

10). However, Nuttall has not pled a Title VII or ADA retaliation claim. While

Nuttall was not required to plead legal theories in her complaint, she failed to even

allege in her facts that her employment was terminated because she filed a complaint

against her employer. Rather, Nuttall merely asserts that Presidential “discharged

her because it regarded her as disabled and because she had a record of a disability.” 

(Compl. Par. 13). Nor did Nuttall assert any allegations of retaliation in her EEOC

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charge or submit documentation showing that she has supplemented her EEOC

charge. Nuttall herself recognizes that she has not pled a retaliation claim at this

juncture. Nuttall states in her response to the instant motion for summary judgment

that she “will seek leave of this Court to amend her original complaint to add a Count

for Retaliation.” (Ans. SJ 10). Thus, there are currently no retaliation claims

asserted by Nuttall in this case.

As to Nuttall’s indication that at some unidentified time in the future she “will

seek” leave to amend her complaint, while leave to amend generally should be freely

given, it is not an absolute right, particularly when there is undue delay or it will

prejudice the defendant. Fed. R. Civ. P. 15(a); Carmody v. Board of Trustees of

University of Illinois, 747 F.3d 470, 480 (7th Cir. 2014)(stating that “[i]n general, a

district court should freely give leave to amend to cure curable defects, at least where

there is no undue delay or undue prejudice to the opposing party, but the court can

reasonably expect a party asking for an opportunity to amend to identify how he

proposes to cure the defects”). Nuttall was terminated and this case was initiated

over two years ago in April of 2012. There is no indication that the prior judge in this

case granted leave to allow Nuttall to amend her complaint. This case was

reassigned to the undersigned judge in April 2014, over four months ago, and no

motion was filed by Nuttall seeking leave to amend her complaint before the

undersigned. It is now the summary judgment stage and the record reflects that

Nuttall has unduly delayed in bringing such a motion. In addition, Presidential

contends that it has proceeded in this case based on Nuttall’s own pleading which did

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not include a retaliation claim. Presidential has shown that at this late stage of the

proceedings it would be prejudiced if Nuttall is allowed to amend her complaint.

CONCLUSION

Based on the foregoing analysis, Presidential’s motion for summary judgment

is granted.

___________________________________

Samuel Der-Yeghiayan

United States District Court Judge

Dated: September 9, 2014

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