# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 14, 2018 *

Decided June 20, 2018

Before

DIANE P. WOOD, Chief Judge

J OEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 17

‐ 3569

BEVERLY PALMER,

Plaintiff

‐ Appellant

,

v

.

UNIVERSITY OF ILLINOIS,

Defendant

‐ Appellee. Appeal from the United States District

Court for the Central District of Illinois.

No. 16

‐ C

‐ 2091

Colin S. Bruce,

J udge

.

O R D E R

Beverly Palmer, a black administrator at the University of Illinois’s College of

Education, sued the University for employment discrimination after being denied a

salary increase and given a negative performance review. She asserted that the

University discriminated against her based on race and retaliated against her for

complaining about both her performance review and the denial of her request for a pay

* We agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 3569 Page 2

increase. She also contended that the University retaliated against her for using leave

under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2612, 2615, by giving her

the negative performance review. The district court entered summary judgment for the

University. Because a reasonable fact finder could not conclude that Palmer’s race

affected her pay or performance evaluation, or that the University retaliated against her

for filing complaints or taking FMLA leave, we affirm.

Palmer did not respond to the University’s statement of undisputed facts, so the

judge permissibly deemed them admitted. See C.D. I LL

. L.R. 7.1(D)(2)(b)(6). We

therefore present the University’s version of the facts but still view them in the light

most favorable to Palmer. See Peretz v. Sims

, 662 F.3d 478, 480 (7th Cir. 2011).

After obtaining her college degree, Palmer, an office

‐ support specialist, believed

that she became eligible for a raise and new job duties, but she received neither. She

sought a meeting with her supervisor, Associate Dean Christopher Span, to discuss the

possibility of a promotion. He declined to meet with her, however, because the

governing collective

‐ bargaining agreement required the University to award

promotions to employees in her position based on their years of service (not educational

attainment) and passage of a civil

‐ service exam (which Palmer had failed). Palmer

complained to the Dean about Span’s refusal to meet with her.

One month later Span gave Palmer a negative performance review, concluding

that she needed to improve the quality of her work, her cooperation with others,

attendance, and dependability. He also instructed Palmer, whose requests for FMLA

leave the College had approved, to ensure that she notified her colleagues whenever

she would be taking leave. In response Palmer filed a grievance with the University’s

Office of Diversity, Equity, and Access, asserting that she was being discriminated

against because of her race and retaliated against for taking FMLA leave. The

University investigated her allegations but found no supporting evidence.

The following semester Palmer believed that race motivated Span to verbally

reprimand her for allowing too many students to register for a particular course. In her

view a similar course

‐ registration mistake made by Jena Pfoff, a white colleague, was

handled by Span with more leniency (though the record contains no evidence regarding

Span’s response to Pfoff’s mistake).No. 17

‐ 3569 Page 3

Palmer later sued the University of Illinois under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e–2(a)(1), 3(a), and the FMLA, 29 U.S.C. § 2615(a). She asserted

that the University discriminated against her based on race in denying her request for a

salary increase, reviewing her work performance negatively, and reprimanding her for

the registration mistake. She also contended that the University retaliated against her

for complaining to the Dean about Span’s refusal to meet with her about a promotion,

grieving her negative performance review, and taking FMLA leave.

The judge granted the University’s motion for summary judgment. Regarding

Palmer’s discrimination claims, he concluded that Palmer had no evidence that the

University denied her a promotion or gave her a negative performance evaluation

because of her race. Nor did Palmer have evidence, the judge added, that the University

punished her more harshly than Pfoff for her registration mistake. As for her Title VII

retaliation claims, the judge ruled that (1) Palmer’s complaint to the Dean did not

constitute protected activity under Title VII because it did not concern racial

discrimination; and (2) no reasonable fact finder could conclude that her negative

evaluation was caused by her grievance with the Office of Diversity, Equity, and Access

because she filed the grievance after receiving her negative evaluation. Regarding her

FMLA retaliation claim, the judge decided that no reasonable fact finder could conclude

that she received the negative review because she used FMLA leave.

On appeal Palmer argues that a reasonable fact finder could conclude that race

motivated the denial of her request for a promotion, her negative performance review,

and the harsher discipline she received. See Ortiz v. Werner Enters., Inc.

, 834 F.3d 760, 765

(7th Cir. 2016). (She also points for the first time to 42 U.S.C. § 1981(a) as a basis for

relief.) Regarding the denial of a promotion, she asserts that Alissia Young, a former

University employee, is a suitable comparator under the framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973), because Young received a bonus after

getting her master’s degree 12 years earlier. But the record contains no evidence

regarding Young’s race, and Young worked in a different department under a different

supervisor. See David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508

, 846 F.3d 216, 225–27

(7th Cir. 2017). As for Palmer’s negative review, she asserts that when preparing

performance evaluations, Span solicited feedback from professors and administrators

for only black employees. But because Palmer did not respond to the University’s

statement of facts, the judge deemed admitted Span’s statement that he evaluated all

employees in the same manner. So Palmer’s unsworn assertion to the contrary does not

create a factual dispute. Finally, pointing to Span’s reprimand for her registration error,No. 17

‐ 3569 Page 4

Palmer contends that Span punished her more harshly than Pfoff. But Palmer presented

no evidence about Span’s response to Pfoff’s mistake, so we cannot compare the

responses.

Palmer next argues that a reasonable fact finder could conclude that she was

retaliated against for complaining to the Dean, grieving her negative performance

evaluation, and taking FMLA leave. But Palmer’s complaint to the Dean did not

mention racial discrimination and thus is not protected activity under Title VII or

§ 1981. See Tomanovich v. City of Indianapolis

, 457 F.3d 656, 663 (7th Cir. 2006). Moreover,

she filed her grievance after she received her performance evaluation, so a reasonable

fact finder could not conclude that her grievance caused her negative evaluation.

Finally, Palmer does not point to any evidence of a causal connection between her

taking FMLA leave and receiving the negative performance review. See King v. Ford

Motor Co.

, 872 F.3d 833, 841 (7th Cir. 2017).

We have considered Palmer’s other arguments, and none has merit.

AFFIRMED