2019 IL App (1st) 190912-U 

 THIRD DIVISION

December 18, 2019 

No. 1-19-0912 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any 

party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

LYUBOMIR LESIV, ) Appeal from the 

 ) Circuit Court of 

Plaintiff-Appellant, ) Cook County. 

 ) 

 v. ) No. 17 L 7400 

 ) 

ILLINOIS CENTRAL RAILROAD CO. ) Honorable 

 ) Daniel J. Kubasiak, 

Defendant-Appellee. ) Judge Presiding. 

______________________________________________________________________________ 

JUSTICE HOWSE delivered the judgment of the court. 

Justices McBride and Cobbs concurred in the judgment. 

ORDER

¶ 1 Held: The judgment of the circuit court of Cook County is affirmed; plaintiff failed to raise a 

genuine issue of material fact as to whether defendant retaliated against plaintiff for protected 

workplace activity; and regardless of whether sexual orientation harassment is prohibited under 

the Illinois Human Rights Act, plaintiff failed to create genuine issue of material fact as to 

whether the workplace was hostile due to harassment based on plaintiff’s national origin and 

perceived sexual orientation. 

 

¶ 2 Plaintiff, Lyubomir Lesiv, filed an amended complaint (complaint) against defendant, Illinois 

Central Railroad Company, under the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 

2016)) seeking damages for, inter alia, (1) harassment based on his national origin (count I), (2) 

harassment based on sexual orientation (count III), and (3) retaliation (count VI). Defendant filed a 
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motion for summary judgment. Following briefing the circuit court of Cook County granted defendant’s 

motion for summary judgment on all counts in plaintiff’s complaint.

¶ 3 For the following reasons, we affirm. 

¶ 4 BACKGROUND

¶ 5 According to the complaint plaintiff is a male of Ukrainian and Russian descent. Defendant 

employed plaintiff beginning on April 5, 2013 as an Apprentice Carman and in January or February 

2014 plaintiff’s position changed to Carman. Plaintiff’s complaint alleges that beginning in August 

2014 and continuing through January 27, 2016 (when defendant terminated plaintiff’s employment) 

plaintiff was “subjected to comments on the basis of his national origin and perceived sexual 

orientation.” Specifically, plaintiff alleged that during that time period his supervisors Andy Houston, 

Dan Duggan, and Daniel Studer referred to plaintiff using a derogatory epithet for homosexual men. 

Plaintiff also alleged that on multiple occasions “throughout his employment with [d]efendant” he was 

denied overtime and holiday pay. Plaintiff’s complaint details specific acts of harassment and/or 

retaliation by various supervisors. We will attempt to arrange those allegations in a manner that best 

aids understanding of the issues and arguments on appeal. 

¶ 6 Plaintiff alleged to have suffered harassment at the hands of his supervisors Michael Tyler 

Moore, Andy Houston, Daniel Duggan, and Daniel Studer.

¶ 7 Plaintiff alleged that Moore made the following comments to him: in August 2014 Moore 

referred to plaintiff as gay and asked plaintiff if he was “going to the gay bars in the city tonight.” On 

January 14, 2016, after plaintiff broke up with his girlfriend, Moore said to plaintiff “it’s because she’s 

Russian and you’re Ukrainian; Russians hate Ukrainians.” 

¶ 8 Plaintiff alleged Houston made the following comments to him: in August 2014 Houston stated 

to plaintiff “what is it with you Russians trying to take over the railroad,” “all Russians have a drinking 
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problem,” and “Russians drink all the time.” On or about July 24, 2015 Houston stated to plaintiff “You 

f***ing Russian, you don’t know how to do your job;” “are you USSR;” and “are you KGB?” In 

August 2015, Houston stated to plaintiff “you two USSRs will work together” referring to plaintiff and 

his brother, who defendant also employed as a Carman. Plaintiff’s complaint alleged that on or about 

July 24, 2015, plaintiff complained to Duggan about Houston’s “offensive and unprofessional 

conduct.”1

¶ 9 Plaintiff alleged Duggan made the following comments to him: in July 2015 Duggan said in 

front of other employees, after plaintiff entered the locker room, “hey guys, don’t drop the soap, Lyubo 

is here;” Duggan asked plaintiff “are you hitting up Boystown tonight;” Duggan asked plaintiff “are you 

too scared to mess up your looks.” On July 24, 2015, after plaintiff complained about Houston to 

Duggan, Duggan responded “quit being a little bitch.” On July 27, 2015 Duggan stated to plaintiff “you 

look like a gay Russian;” and “is that what Russian f**s wear in Russia?” 

¶ 10 Plaintiff alleged Studer made the following comments to him: On December 14, 2015, after 

plaintiff returned from work following a 60-day suspension (see infra, ¶ 18) Studer stated to plaintiff “I 

don’t give a flying f*** if you tell Rick Galvin this or not, I’m not here to play games, I have r******* 

Carmen missing seal steps and broken handholds, I’m not f****** playing games, I will fire your 

foreign ass if you get in my way.” 

¶ 11 Count I of plaintiff’s complaint is for “national origin harassment” and lists (1) the August 2014, 

July 24, 2015, and August 2015 comments by Houston; (2) the July 24, 2015 and July 27, 2015 

comments by Duggan; (3) the December 14, 2015 comment by Studer; and (4) the January 14, 2016 

1

 Plaintiff’s complaint also alleged that on approximately July 25, 2015, plaintiff complained to 

Paul Bomba, president of the union, and on approximately July 27, 2015, plaintiff complaint to Karen 

McCarthy and Angela Lee, both human resources representatives for defendant. 
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comment by Moore as the harassment plaintiff suffered. Plaintiff alleged the harassment was 

“continuous” and “persistent,” “had the effect of creating a hostile and intimidating work environment,” 

and “adversely affected the terms and conditions of [p]laintiff’s employment and interfered with his 

ability to do his job.” 

¶ 12 Count III of plaintiff’s complaint is titled “Complaint of Perceived Sexual Orientation 

Harassment Pursuant to the Illinois Human Rights Act.” Count III lists (1) the August 2014 comments 

by Moore; (2) the use of the epithet by Houston, Duggan, and Studer between August 2014 and January 

27, 2016; and (3) the July 2015 and July 27, 2015 comments by Duggan as the harassment plaintiff 

suffered. Plaintiff’s complaint alleges the harassment was continuous and persistent, had the effect of 

creating a hostile and intimidating work environment, and adversely affected the terms and conditions of 

plaintiff’s employment and interfered with his ability to do his job. 

¶ 13 Count VI of the complaint is for retaliation. Count VI states Houston, Duggan, and Studer 

subjected plaintiff to offensive comments and name calling on the basis of his national origin and 

perceived sexual orientation and that on or about July 24, 2015 plaintiff complained to Duggan about 

Houston’s “offensive and unprofessional behavior” to which Duggan responded by telling plaintiff to 

“quit being a little bitch.” Plaintiff further alleged that on or about July 25, 2015 he complained to Paul 

Bomba about Houston, and on or about July 27, 2015 he complained to Karen McCarthy and Angela 

Lee, both Human Resources representatives, about Houston. The complaint for retaliation alleges that 

on July 27, 2015 Duggan and Studer both refused to sign plaintiff’s college tuition reimbursement form. 

Then, in August 2015, defendant abolished plaintiff’s position at its Markham, Illinois location and 

Duggan transferred plaintiff to a location in Gary, Indiana. Plaintiff’s complaint also alleged that in 

August 2015 defendant abolished plaintiff’s position at its location in Markham, Illinois and Duggan 

transferred plaintiff to a location in Gary, Indiana. Plaintiff alleged that on October 12, 2015 Anthony 
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Grayer instructed plaintiff and two other Carmen to leave their shift early; then, on October 15, 2015, 

Ricardo Galvin suspended plaintiff and the other two Carmen for 60 days for leaving early on October 

12. 

¶ 14 Plaintiff further alleged that after he returned to work on December 14, 2015 following his 

suspension Studer said to plaintiff “I don’t give a flying f*** if you tell Rick Galvin this or not, I’m not 

here to play games, I have r******* [C]armen missing seal steps and broken handholds, I’m not 

f****** playing games, I will fire your foreign ass if you get in my way.” The next day, on December 

15, 2015, Studer audited his work for two hours. On December 22, 2015, Galvin assigned Billy Baisden 

to audit plaintiff’s work. As a result of Baisden’s December 22nd audit defendant suspended plaintiff 

for 60 days ultimately resulting in defendant terminating plaintiff’s employment on January 27, 2016. 

Plaintiff alleged that on December 22nd he was working with another Carman “who was equally 

responsible for any errors in their work” and that Carman was never disciplined as a result of the same 

audit. Count VI further alleged that “on multiple occasions throughout his employment” plaintiff was 

denied overtime pay and holiday pay. Plaintiff alleged he was terminated on January 27, 2016 as a 

result of the December 22, 2015 audit.

¶ 15 Plaintiff alleged in count VI of his complaint that he engaged in protected activity when he 

complained about Houston and similarly situated employees who did not complain about Houston were 

not (1) denied signatures on their tuition reimbursement documents, (2) transferred to an unfavorable 

work location, (2) suspended for following their supervisors’ orders [to leave their shift early], (3) 

audited twice in one week, or (4) terminated. Plaintiff alleged these acts occurred within such a short 

period of time relative to his “opposition to the harassment” so as to raise a strong inference of 

retaliatory motive” and that defendant’s conduct amounts to retaliation in violation of the Act. 
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¶ 16 On January 15, 2016, plaintiff filed a Charge of Discrimination with the Illinois Department of 

Human Rights. The Charge stated that the discrimination occurred between August 2014 and the filing 

of the charge. The Charge alleged (1) national origin harassment, (2) national origin discrimination, (3) 

harassment based on perceived sexual orientation, (4) retaliation in the form of (a) failure to pay wages, 

(b) denial of overtime pay, (c) denial of holiday pay, (d) refusal to sign reimbursement documents, and 

(e) suspension for opposing unlawful discrimination. Plaintiff had not yet been terminated therefore he 

did not include retaliatory termination in his charge. 

¶ 17 The parties engaged in discovery. After discovery defendant filed a motion for summary 

judgment as to all counts in plaintiff’s complaint. As it pertains to this appeal, with regard to plaintiff’s 

claims he was harassed based on his national origin, defendant argued it was entitled to summary 

judgment because “the evidence adduced has not shown that Plaintiff was subject to any conduct 

considered severe or pervasive.” According to defendant, plaintiff only complained about “2 discrete 

conversations with one supervisor that occurred one year apart, 1 conversation with another supervisor, 

and 1 conversation with another supervisor, from the timeframe of August 2014 to January 2016” 

Defendant also argued allegations that occurred outside the limitations period in the Act should not be 

considered. 

¶ 18 Regarding plaintiff’s claim he was harassed based on his perceived sexual orientation defendant 

argued the Act does not recognize a cause of action for perceived sexual orientation harassment and, 

regardless, there was no evidence the alleged comments were made due to any perception about 

plaintiff’s sexuality but were instead “simple teasing” about his clothing that was “neither sever[e] or 

pervasive in nature.” Additionally, defendant argued it was entitled to summary judgment on plaintiff’s 

claim of retaliation because plaintiff failed to exhaust his administrative remedies as to that claim, there 

was no evidence to satisfy the elements of a retaliation claim under the “direct method” of proof, and 
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there was no evidence to satisfy the elements of a retaliation claim under the “indirect method” of proof. 

Defendant argued plaintiff failed to establish a prima facie case of retaliation under the direct method 

because (1) the relevant decision makers had no knowledge of any protected activity by plaintiff, (2) 

plaintiff can show no causal connection between his alleged protected activity and his suspension and 

termination, and (3) plaintiff had no evidence that defendant’s legitimate, non-discriminatory reasons for 

the suspension and termination were pretextual. Defendant argued plaintiff failed to establish a prima 

facie case of retaliation under the indirect method because plaintiff had no evidence similarly situated 

individuals no in plaintiff’s protected class were treated more favorably, plaintiff had no evidence he 

was meeting defendant’s legitimate business expectations, and plaintiff had no evidence defendant’s 

legitimate, non-discriminatory reasons for plaintiff’s suspension and termination were pretextual. 

¶ 19 Plaintiff filed a response to defendant’s motion for summary judgment in which plaintiff stated 

additional facts about his suspension and termination taken from his deposition and related other 

instances of discrimination directed at him and other “non-American [C]armen.” Plaintiff’s response 

argued he did not fail to exhaust his administrative remedies for his termination claim because he is 

permitted to “bring additional allegations of retaliatory actions that are not specifically referenced to in 

the Charge of Discrimination as long as retaliation has been raised as a claim in the Charge.” In this 

instance, plaintiff argued he raised multiple allegations of retaliatory acts in the charge filed with the 

Department of Human Rights then properly brought the additional allegation of retaliatory termination 

in his lawsuit because the retaliatory termination “is directly linked to the retaliatory audit *** on 

December 22, 2015.” Next, plaintiff’s response argued the prohibition against sex discrimination 

includes same-sex harassment based on a person’s failure to conform to gender stereotypes and the Act 

does not allow sexual orientation harassment. 
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¶ 20 Plaintiff asserted he had “clearly shown that the harassment he was subjected to was not just 

pervasive, but also severely altered the conditions of his employment.” Plaintiff then simply repeated 

his allegations and concluded that “when added up over the period of time that [plaintiff] was employed 

at [defendant,] it certainly created a hostile work environment” and is actionable. Plaintiff further 

responded that the acts of harassment he alleged fall under the continuing violation theory because they 

were nearly identical forms of harassment that occurred throughout his employment therefore plaintiff 

can seek relief for alleged acts that occurred outside the limitations period. Plaintiff argued he 

established a prima facie case of retaliation based on “cat’s paw” liability. “Cat’s paw liability” 

describes a scenario when an employee or supervisor, motivated by discriminatory intent, influences an 

otherwise unbiased decision-maker to take an adverse employment action against another employee. 

Plaintiff argues the supervisor who suspended him resulting in his termination relied on input from 

Duggan, Houston, and others with retaliatory animus toward plaintiff. Plaintiff argued he was retaliated 

against for asking for his correct pay and complaining about being harassed. Plaintiff also asserted the 

December 22nd audit was a retaliatory act. Plaintiff also argued he established a prima facie case of 

retaliation for his termination because the supervisor who terminated him took “input from multiple 

supervisors (Studer and Grayer) who did have knowledge and actively participated in the discrimination 

of [plaintiff.]” 

¶ 21 Defendant filed a reply to plaintiff’s response. Following briefing, the trial court issued a written 

order granting defendant’s motion for summary judgment. 

¶ 22 This appeal followed. 

¶ 23 ANALYSIS
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¶ 24 Plaintiff first argues defendant is not entitled to summary judgment on plaintiff’s claim of 

retaliation2 because a genuine issue of material fact remains as to whether a causal nexus exists between 

plaintiff’s protected activities and defendant’s adverse employment actions.3 Summary judgment is a 

drastic measure and should only be granted when the moving party’s right to judgment is ‘clear and free 

from doubt.’ [Citation.]” Vulpitta v. Walsh Construction Co., 2016 IL App (1st) 152203, ¶ 22. 

“Summary judgment is appropriate ‘if the pleadings, depositions, and admissions on file, together with 

the affidavits, if any, show 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.’ [Citation.]” Id. “To determine whether there is a 

genuine issue of material fact, we construe the pleadings, depositions, admissions, and affidavits strictly 

against the moving party and liberally in favor of the opponent. [Citation.]” Id. Unsupported 

conclusions, opinions, and speculation are not sufficient to raise a genuine issue of material fact. Id. “A 

triable issue precluding summary judgment exists where the material facts are disputed, or where, the 

2

 “It is a civil rights violation for a person, or for two or more persons to conspire, to:

(A) Retaliation. Retaliate against a person because he or she has opposed that which he or she 

reasonably and in good faith believes to be unlawful discrimination, sexual harassment in 

employment or sexual harassment in elementary, secondary, and higher education, discrimination 

based on citizenship status in employment, because he or she has made a charge, filed a 

complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this 

Act, or because he or she has requested, attempted to request, used, or attempted to use a 

reasonable accommodation as allowed by this Act.” 775 ILCS 5/6-101(A) (West 2016).

3

 On appeal plaintiff argues the trial court applied the “incorrect standard of review” when it granted 

summary judgment for defendant. Specifically, defendant argues the trial court erroneously evaluated plaintiff’s 

retaliation claims under the standards applicable to discrimination claims and never applied the standards 

applicable to determine whether a plaintiff has stated a prima facie case of retaliation. This court applies a de 

novo standard of review to motions for summary judgment, which means this court performs the same analysis 

that the circuit court would perform. Atlas v. Mayer Hoffman McCann, PC, 2019 IL App (1st) 180939, ¶ 26. “De 

novo review is completely independent of the trial court’s decision.” (Internal quotation marks omitted.) Wade v. 

Stewart Title Guaranty Company, 2017 IL App (1st) 161765, ¶ 60. We review the trial court’s judgment, “not its 

reasoning for its judgment, and we may affirm on any basis supported by the record.” Estate of Black v. Black, 

2019 IL App (1st) 181452, ¶ 14. 
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material facts being undisputed, reasonable persons might draw different inferences from the undisputed 

facts.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). We review a trial court’s order 

granting summary judgment de novo. Vulpitta, 2016 IL App (1st) 152203, ¶ 22 

¶ 25 To succeed on a claim of retaliation the plaintiff must show that (1) they engaged in a statutorily 

protected activity, (2) their employer took a materially adverse action against them, and (3) there is a 

causal link between the two. Lau v. Abbott Laboratories, 2019 IL App (2d) 180456, ¶ 65. “Protected 

activity includes internal complaints to managers or other appropriate persons.” Id. ¶ 67. Filing a 

complaint with an employer may constitute statutorily protected activity but the complaint must indicate 

the discrimination occurred because of sex, race, national origin, or some other protected class. 

Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006).4

 “Merely complaining in 

general terms of discrimination or harassment, without indicating a connection to a protected class or 

providing facts sufficient to create that inference, is insufficient.” Id. 

“[A] materially adverse action ‘need not be one that affects the terms and conditions of 

employment, but it “must be one that a reasonable employee would find to be materially 

adverse such that the employee would be dissuaded from engaging in the protected 

activity.” [Citations.]’ 

 The Supreme Court has cautioned that ‘it is important to separate significant from 

trivial harms,’ and that Title VII ‘does not set forth “a general civility code for the 

American workplace.” [Citations.]’ Title VII’s anti-retaliation provision does not protect 

4 In assessing claims brought under the Act we are guided by both Illinois case law and federal case law 

relating to federal anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the antiretaliation provisions of those statutes. Lau, 2019 IL App (2d) 180456, ¶ 38, citing Zaderaka v. Illinois Human 

Rights Comm’n, 131 Ill. 2d 172, 178 (1989).
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an employee against ‘petty slights or minor annoyances that often take place at work and 

that all employees experience.’ [Citations.] The provision ‘protects an individual not 

from all retaliation, but from retaliation that produces an injury or harm.’ [Citation.]” 

Lewis v. Wilkie, 909 F.3d 858, 867–68 (7th Cir. 2018). 

Finally, a plaintiff can demonstrate a casual connection between statutorily protected activity and a 

materially adverse action “by showing that the defendant ‘would not have taken the adverse *** action 

but for [the] protected activity.’ [Citations.]” Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 

2017). 

¶ 26 Plaintiff argues the record sufficiently shows there is a genuine issue of material fact as to the 

causal nexus between plaintiff’s engagement in protected activities and defendant’s adverse employment 

actions. On appeal plaintiff relies solely upon his complaint to Duggan about Houston as the protected 

activity and suspicious timing as establishing the causal nexus. Specifically, plaintiff argues the adverse 

employment actions he suffered were (1) continuing to refuse to pay plaintiff his owed overtime and 

holiday pay, (2) Duggan’s initial refusal to sign plaintiff’s tuition reimbursement form, (3) having his 

job at defendant’s Markham site abolished, and (4) the suspension, multiple audits, and eventual 

termination. 

¶ 27 Circumstantial evidence from which intentional discrimination may reasonably be inferred can 

supply the causal link between protected activity and adverse employment actions. Id. See also Castro 

v. DeVry University, Inc., 786 F.3d 559, 564 (7th Cir. 2015). All of the evidence must be considered as 

a whole to determine whether “the evidence would permit a reasonable factfinder to conclude that the 

plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the *** adverse employment 

action.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). Suspicious timing can 
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sometimes raise an inference of a causal connection, but temporal proximity alone is ‘rarely sufficient’ 

to establish causation. [Citation.]” Castro, 786 F.3d at 565. 

¶ 28 Defendant argues that to establish a causal nexus between plaintiff’s protected activity and an 

adverse action, “as a threshold matter, [plaintiff] must establish that the relevant decision makers had 

knowledge of the protected conduct,” and in this case none of the relevant decision makers had any 

knowledge of plaintiff’s complaints in July 2015 or December 2015. “A critical issue in determining 

whether there is a causal connection is ‘whether the person who made the decision *** was aware of the 

*** allegations at the time ***.’ [Citation.] In fact, the Seventh Circuit has stated that absent such 

knowledge on the part of the decision-maker, a plaintiff lacks a causal link between her termination and 

the complaint of discrimination or harassment. [Citations.]” Mingo v. Roadway Express, Inc., 135 F. 

Supp. 2d 884, 903 (N.D. Ill. 2001). This is true even if there is a short period of time between the 

protected activity and the adverse employment action. Id. at 904 n4, see also Harris v. City of Harvey, 

993 F. Supp. 1181, 1188 (N.D. Ill. 1998) (“It is possible to infer a causal link between the protected 

activity and the adverse action where the action follows ‘on the heels’ of the protected activity and 

where it is reasonable to infer that the person responsible for the adverse action had knowledge of the 

protected activity.”). At the summary judgment stage the plaintiff is not required to prove by a 

preponderance of the evidence that the responsible party was aware of the protected activity but “he 

must at least produce evidence that would support an inference that [person] was so aware.” Maarouf v. 

Walker Manufacturing Co., Division of Tenneco Automotive, Inc., 210 F.3d 750, 755 (7th Cir. 2000). 

¶ 29 Plaintiff does not identify an individual who allegedly refused to pay him the overtime and 

holiday pay he was due. Defendant’s motion for summary judgment argued plaintiff testified in his 

deposition that he “had no basis to believe the pay mistake was intentional, let alone due to 

discrimination – nor did he identify any similarly-situated employees outside his protected class who 
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were treated more favorably.” In the deposition testimony defendant relied upon, when asked why he 

thought the failure to pay him his overtime hours “was discriminatory in some way” plaintiff responded 

“Well, I had evidence to show that the hours and the amount of time that I worked and the company did 

not pay me back.” When asked if the failure to pay him the overtime he was due was because of his 

national origin or perceived sexual orientation plaintiff responded “I don’t recall.” 

¶ 30 To defeat a properly supported motion for summary judgment 

“the non-movant must present facts to show a genuine dispute exists to avoid summary 

judgment, which requires that she ‘do more than simply show that there is some 

metaphysical doubt as to the material facts.’ [Citation.] When evaluating summary 

judgment motions, courts must view the facts and draw reasonable inferences in the light 

most favorable to the nonmovant. [Citation.] But the nonmovant ‘is only entitled to the 

benefit of inferences supported by admissible evidence, not those “supported by only 

speculation or conjecture.” ’ [Citation.]” Bigger v. Facebook, Inc., 375 F. Supp. 3d 

1007, 1014 (N.D. Ill. 2019). 

¶ 31 On appeal, plaintiff argued he complained about not receiving the correct rate of pay, after he 

complained defendant rectified that issue, but defendant “continued to refuse to pay Plaintiff his owed 

overtime and holiday pay.” Plaintiff does not argue the existence of a causal nexus but instead simply 

asserts the issue was never fully resolved and defendant simply ignored plaintiff’s “plea for correct pay.” 

Plaintiff has pointed to no facts from which to reasonably infer “plaintiff’s race, ethnicity, sex, religion, 

or other proscribed factor caused” the failure to pay him overtime and holiday pay. Ortiz, 834 F.3d at 

765. Plaintiff has failed to demonstrate a genuine issue of material fact that defendant’s failure to pay 

him overtime or holiday pay was retaliatory.
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¶ 32 Duggan had knowledge of plaintiff’s complaint about Houston’s alleged conduct (plaintiff made 

the complaint to Duggan) but defendant argues plaintiff has no evidence Duggan’s failure to 

immediately sign the form “was somehow connected to [plaintiff’s] earlier complaint to [Duggan.]” In 

support of his argument for a causal nexus between Duggan’s failure to sign the tuition form and 

plaintiff’s complaints about Houston plaintiff argues there was “a short period of time” (days) between 

plaintiff’s reporting of Houston and Duggan’s refusal to sign the form. The Seventh Circuit “repeatedly 

held that [s]uspicious timing alone rarely is sufficient to create a triable issue, and on a motion for 

summary judgment, mere temporal proximity is not enough to establish a genuine issue of material 

fact.” (Internal quotation marks omitted.) Riley v. City of Kokomo, 909 F.3d 182, 188 (7th Cir. 2018), 

citing Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009), quoting Andonissamy v. Hewlett-Packard Co., 

547 F.3d 841, 851 (7th Cir. 2008). “Rather, a short gap ‘may permit a plaintiff to survive summary 

judgment’ only if ‘there is also other evidence that supports the inference of a causal link.’ [Citation.]” 

Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018). 

¶ 33 For example, in Harris, 993 F. Supp. at 1188, the plaintiff complained about a hostile work 

environment in November 1994 and alleged that her employer retaliated against her in December 1994. 

The plaintiff in Harris also alleged that she complained again in March 1995 and suffered an adverse 

action in May or June of the same year. Id. The Harris court found that after reviewing the facts as a 

whole in a light most favorable to the plaintiff it could not say as a matter of law that the plaintiff had 

failed to satisfy the causal link requirement and, therefore, had not made a prima facie case for 

retaliation. Id. The court held that there was sufficient evidence for a jury to infer a causal link between 

the plaintiff’s complaint on November 21, 1994 and the adverse action in December 1994 “because the 

action followed ‘on the heels of’ [the plaintiff’s] complaint.” Id. However, in Harris, in addition to the 

timing of the protected activity and the adverse action, there was other evidence to demonstrate a 
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connection between the events. Cf. Harris, 993 F. Supp. at 1188 n 8 (finding no causal link between 

complaint and alleged adverse action taken within about three months where the plaintiff had not 

demonstrated any connection between the events). After the plaintiff’s complaint in Harris, the 

supervisor to whom the plaintiff complained called the plaintiff “a ‘hell raiser’ “ and held a meeting of 

all employees at which the supervisor told the employees the plaintiff complained about what the 

complaints were resulting in those employees physically threatening the plaintiff and the supervisor 

admonishing the employees. Id. at 1184. 

¶ 34 Plaintiff has identified no facts other than the timing of events that would allow a reasonable trier 

of fact to conclude that Duggan would not have refused to sign plaintiff’s tuition reimbursement form 

“but for” plaintiff’s complaints about Houston or that plaintiff’s complaints, ethnicity, or perceived 

sexual orientation caused Duggan to refuse to sign the form. Plaintiff has failed to demonstrate a 

genuine issue of material fact that the failure to sign his tuition reimbursement form was retaliatory.

¶ 35 Plaintiff’s argument he suffered retaliation in the form of having his job at defendant’s Markham 

site abolished similarly fails. Plaintiff testified in his deposition that job abolishments were determined 

by his collective bargaining agreement based on seniority and manpower needs, job abolishment was not 

uncommon, he did not recall who made the decision to abolish his job, and he had no basis to connect 

the abolishment of his job to his complaint to human resources. On appeal, plaintiff only argues only 

that there was also a short period of time (weeks) between plaintiff’s complaint to Duggan about 

Houston and the abolishment of plaintiff’s job at Markham. Plaintiff has identified no facts other than 

the timing of events that would allow a reasonable trier of fact to conclude that plaintiff’s job at 

Markham would not have been abolished “but for” plaintiff’s complaints about Houston or that 

plaintiff’s complaints, ethnicity, or perceived sexual orientation caused plaintiff’s job at Markham to be 
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abolished. Plaintiff has failed to demonstrate a genuine issue of material fact that the job abolishment 

was retaliatory.

¶ 36 Finally, plaintiff argues there is a causal nexus between his complaints and his suspension, 

audits, and termination because a short period of time after plaintiff complained to Duggan about 

Houston (two-and-a-half months) Grayer allegedly lied about telling plaintiff he could go home early 

which led to plaintiff’s suspension, multiple audits, and eventual termination. Plaintiff argues on appeal 

that “[t]he record shows that but for Grayer’s lie *** Plaintiff would not have received a suspension, nor 

would he have been audited *** and eventually, terminated.” Defendant argues it is indisputable that 

Grayer had no knowledge of plaintiff’s complaints. Plaintiff does not argue or point to any facts from 

which to infer that Grayer had any knowledge of plaintiff’s complaints. Although plaintiff accuses 

Grayer multiple times of lying about telling plaintiff and the other two Carmen they could leave their 

shift early, plaintiff does not argue Grayer lied because of plaintiff’s complaint, ethnicity, or perceived 

sexual orientation. Plaintiff argues that it is “clear that these materially adverse employment actions *** 

directly stemmed from Plaintiff’s complaint about Houston’s national origin harassment” but plaintiff 

claims the suspension, audits, and termination all stem from Grayer’s alleged lie without linking that 

alleged lie to any protected activity or status. 

¶ 37 Anti-discrimination laws like the Act only require that employers not use a characteristic the law 

says employers may not consider as a ground of decision. See Monroe v. Children’s Home Ass’n of 

Illinois, 128 F.3d 591, 593 (7th Cir. 1997). Not only has plaintiff failed to establish that Grayer was 

aware of plaintiff’s complaint when he allegedly lied (Mingo, 135 F. Supp. 2d at 903), plaintiff has 

adduced no evidence from which it may reasonably be inferred that plaintiff’s ethnicity or perceived 

sexual orientation caused Grayer to lie (see Ortiz, 834 F.3d at 765). Any suggestion that Grayer lied due 
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to any animus toward plaintiff is at best the product of “speculation or conjecture” which is insufficient 

to show a genuine dispute of material fact exists. Bigger, 375 F. Supp. 3d at 1014. 

¶ 38 “A plaintiff can also succeed on a retaliation claim by the “indirect method” which “refers to the 

burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973). That method allows the plaintiff to establish a prima facie case without proving a 

direct causal link.” Lewis v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018). Under the indirect method the 

plaintiff must show that:

“(1) she engaged in a statutorily protected activity; (2) she performed her job according to 

her employer’s legitimate expectations; (3) despite her satisfactory job performance, the 

employer took an adverse action against her; and (4) she was treated less favorably than 

similarly situated employees who did not engage in statutorily protected activity. 

[Citation.] If the plaintiff establishes those elements, the burden shifts to the defendant to 

articulate a legitimate reason for the adverse action. [Citation.] If it does so, the burden 

of production returns to the plaintiff to show that the defendant’s reason is pretextual. 

[Citation.] The ultimate burden of persuasion is at all times on the plaintiff. [Citation.]” 

Rozumalski v. W.F. Baird & Associates., Ltd., No. 18-3586, 2019 WL 3955383, at *4 

(7th Cir. Aug. 22, 2019).

Plaintiff argues that defendant’s reasons for plaintiff’s suspension and termination are pretextual. 

Plaintiff also cites Smith v. Bray, 681 F.3d 888, 897 (7th Cir. 2012), overruled on other grounds by 

Ortiz, 834 F.3d 760, for the proposition that “ ‘cat’s paw’ liability may be imposed on an employer 

‘where the plaintiff can show that an employee with discriminatory animus provided factual information 

or other input that may have affected the adverse employment action.’ [Citations.]” Plaintiff argues his 

suspension “was based on a lie by the supervisor involved.” Plaintiff also argues his suspension was 
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influenced by Studer, (who plaintiff describes as “one of the most persistent harassers of [plaintiff]”) 

because Studer was “included in the October meeting that led to the suspension” and “the supervisor to 

oversee the Investigation hearing” after plaintiff’s audit; and he also suggests that Grayer had 

“discriminatory animus” when he provided “his inaccurate description of the events.” 

¶ 39 As stated above plaintiff adduced no evidence of any discriminatory animus on the part of 

Grayer beyond speculation and conjecture; therefore, any claim of “cat’s paw liability” plaintiff asserts 

as to Grayer’s alleged acts fails. Harris v. Warrick County Sheriff’s Department, 666 F.3d 444, 448 (7th 

Cir. 2012) (“an employer may be liable for employment discrimination if a nondecision-maker 

‘performs an act motivated by [discriminatory] animus that is intended *** to cause an adverse 

employment action, and *** that act is a proximate cause of the ultimate employment action.’ 

[Citation.]” (Emphasis omitted and emphasis added.)). Plaintiff did allege that on December 14, 2015, 

Studer made the following comment: “I don’t give a flying f*** if you tell Rick Galvin this or not, I’m 

not here to play games, I have r******* Carmen missing seal steps and broken handholds, I’m not 

f****** playing games, I will fire your foreign ass if you get in my way.” 

¶ 40 To create a genuine issue of fact as to whether a non-decision maker was the cause of an adverse 

employment action for purpose of “cat’s paw” liability “[t]he key question is whether the non-decisionmaker’s actions were a ‘causal factor,’ based on common-law proximate cause principles, in the 

termination decision.” Smith, 681 F.3d at 900. “[T]he requirement that the biased supervisor’s action be 

a causal factor of the ultimate employment action incorporates the traditional tort-law concept of 

proximate cause.” Staub v. Proctor Hospital, 562 U.S. 411, 420 (2011). If the investigation results in 

an adverse action “for reasons unrelated to the *** original biased action *** then the employer will not 

be liable.” Id. at 421. Thus, “the chain of causation can be broken if the unbiased decision-maker 

conducts a meaningful and independent investigation of the information being supplied by the biased 
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employee.” (Internal quotation marks omitted.) Woods v. City of Berwyn, 803 F.3d 865, 870 (7th Cir. 

2015). 

¶ 41 Plaintiff’s argument would require that Galvan’s decision to suspend plaintiff for leaving his 

shift early was not only based on information Studer provided but also that Galvan’s investigation failed 

to meaningfully investigate that information or yield reasons to suspend plaintiff independent of any 

biased information Studer provided. Plaintiff cites to no evidence to support his conclusion that 

Galvan’s basis for plaintiff’s suspension (which led to the audit upon his return which led to the 

termination after the audit) was “the input of supervisors with a history of harassing Plaintiff, including 

Studer.” During his deposition Galvan testified that when he learned about plaintiff and two other 

Carmen leaving their shift early he scheduled a meeting between the Carmen and their supervisors. 

Galvan testified Studer was present for that meeting but Grayer was the individual supervising plaintiff 

on the date in question. Galvan testified that during this meeting Grayer told Galvan that once plaintiff 

and the two other Carmen finished inspecting their track Grayer told them he would call them back but 

after a while Grayer realized the men had gone home for the day. Galvan also testified that during that 

meeting plaintiff told Galvan the men left the property with permission. Galvan later recounted the 

meeting as follows:

“[W]hen we—when we first met, I asked the managers to give me—give me the facts of 

what had happened, and I gave the employees the opportunity to give me the facts. At 

the time I remember reviewing the document where it shows what time they inspected the 

last track, and there was a discrepancy of how long they had actually took to inspect the 

amount of cars. 

 I was very clear with them that it was very obvious to me based on the 

information that they had provided at the time that they had left the property without 
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proper authority, and they actually either didn’t do their job or they falsified a federal 

document. A federal document is an inspection sheet that we are required to fill out 

when we inspect cars.

* * * 

[B]ased on the records that I saw, and based on the questions that I asked them about 

defects that they had found, what they had repaired, it was obvious to me that they rushed 

through that track just to get done early. 

 And I told them that when they came back to work, I was going out there and 

inspect trades behind them, and they better be doing their job. 

 They all agreed. The union came in towards the tail end of the conversation. I 

left the room.

They had a side bar in the parking lot. Union came back to my office. They 

thanked me for saving my jobs [sic]. They knew we could prove our case and that was 

the end of it.” 

Studer testified in his deposition that during that meeting he and Galvan reviewed the employees’ work 

history. Studer send the discipline records for the three Carmen to Galvan before the meeting. Studer 

also testified there was video evidence of the three employees in the office during their shift but he 

agreed there could be other reasons for them being in the office. Galvan testified that after that meeting 

he issued a suspension to all three of the employees. 

¶ 42 Viewing the evidence in a light most favorable to plaintiff we cannot say that a reasonable trier 

of fact could infer that Studer was motivated by discriminatory animus in his actions during the 
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suspension process5

 or that Galvan failed to meaningfully investigate the information Studer provided or 

that Galvan’s investigation did not uncover reasons for the suspension unrelated to any biased action by 

Studer. Plaintiff does not assert Studer was aware of plaintiff’s complaint about Houston. Further, the 

evidence establishes that Galvan did conduct a meaningful investigation and that he based his decision 

on objective evidence independent of the discipline records Studer provided including time records, 

information from the Carmen, their inspection sheets, and their answers to Galvan’s questions. The 

record evidence also directly contradicts plaintiff’s argument that “the adverse employment action was 

*** based on a lie by the supervisor involved” but even if it was, there is no evidence that “lie” was 

motivated by bias or discriminatory animus. Even accepting that Galvan did consider Grayer’s and 

Studer’s input, the evidence establishes that Galvan broke the causal chain between the information they 

provided and the adverse action by conducting a meaningful and independent investigation of the 

information being supplied. Woods, 803 F.3d at 870. 

¶ 43 Plaintiff has failed to demonstrate a genuine issue of material fact to withstand summary 

judgment. Accordingly, the trial court’s judgment granting summary judgment in favor of defendant on 

plaintiff’s retaliation claim is affirmed.

¶ 44 Next, plaintiff argues the trial court erred in granting summary judgment in favor of defendant on 

plaintiff’s claim of harassment. “In analyzing employment discrimination claims, Illinois follows the 

format set out in decisions analyzing claims made under Title VII of the Civil Rights Act of 1964.” 

Board of Regents for Regency Universities v. Human Rights Comm’n, 196 Ill. App. 3d 187, 195 (1990). 

Thus, the Act “protects employees from workplace harassment. [Citation.] *** But not all offensive 

conduct violates Title VII. [Citation.] Consequently, courts must focus on the specific characteristics of 

5

 Plaintiff does not assert that Studer provided Galvan false disciplinary records. 
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the alleged harassment to determine the severity or pervasiveness of the harassment.” Howard v. 

Sheahan, 546 F. Supp. 2d 566, 570 (N.D. Ill. 2008). “A hostile work environment claim contains four 

elements: (1) the employee was subject to unwelcome harassment; (2) the harassment was based on a 

reason forbidden by Title VII ***; (3) the harassment was so severe or pervasive that it altered the 

conditions of employment and created a hostile or abusive working environment; and (4) there is a basis 

for employer liability.” Smith v. Illinois Dep’t of Transportation, 936 F.3d 554, 560 (7th Cir. 2019). 

“[T]he aggrieved employee must present evidence that the respondent engaged in 

behavior (1) that was severe or pervasive enough to create a work environment that a 

reasonable person would find to be ‘hostile or abusive’; and (2) that the employee herself 

subjectively perceived to be hostile or abusive. [Citation.] In determining whether both 

of these elements have been met, the court considers ‘the frequency of the discriminatory 

conduct; its severity; whether it is physically threatening or humiliating, or a mere 

offensive utterance; and whether it unreasonably interferes with an employee’s work 

performance.’ [Citations.] Although the employee need not prove that she suffered 

tangible psychological injury or a ‘nervous breakdown,’ the ‘mere utterance of an *** 

epithet which engenders offensive feelings’ is insufficient to constitute harassment. 

[Citation.]” Cook County Sheriff’s Office v. Cook County Comm’n on Human Rights, 

2016 IL App (1st) 150718, ¶ 32. 

¶ 45 Plaintiff initially argues the trial court failed to apply the continuing violation theory to consider 

alleged acts of harassment that occurred outside the limitations period of the Act (see 775 ILCS 5/7A102(A)(1) (West 2016)) resulting in an erroneous determination of the severity and pervasiveness of the 

harassment plaintiff allegedly suffered. “The continuing violation doctrine allows a plaintiff to get relief 

for a time-barred act by linking it with an act that is within the limitations period. For purposes of the 
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limitations period, courts treat such a combination as one continuous act that ends within the limitations 

period.” Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). Defendant calls plaintiff’s continuing 

violation argument a “red herring” because “there is no evidence the Circuit Court discounted any 

harassment allegations outside the limitations period. Instead, the Circuit Court considered both the 

untimely August 2014 allegations together with the timely July 2015 allegations and still found they did 

not meet the ‘severe or pervasive’ standard.” 

“[T]he party alleging the discrimination has the burden of showing that the harassing 

actions outside the statutorily prescribed period were sufficiently closely related to the 

harassing actions occurring within the statutory time frame to be considered an ongoing 

violation. 

 ‘Courts will consider three factors in making this determination: (1) 

whether the acts involve the same subject matter; (2) the frequency at which they 

occur; and (3) the degree of permanence of the alleged acts of discrimination, 

“which should trigger an employee’s awareness of and duty to assert his or her 

rights.” [Citations.] The continuing violation doctrine is applicable only if “it 

would have been unreasonable to expect the plaintiff to sue before the statute ran 

on the conduct, as in a case in which the conduct could constitute, or be 

recognized, as actionable harassment only in the light of events that occurred 

later, within the period of the statute of limitations.” [Citations.]’ [Citation.]” 

Graves v. Chief Legal Counsel of Illinois Department of Human Rights, 327 Ill. 

App. 3d 293, 298 (2002), quoting Galloway v. General Motors Service Parts 

Operations, 78 F.3d 1164, 1167 (7th Cir.1996). 
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¶ 46 In this appeal plaintiff concedes “no single comment rose to the level of ‘sufficiently severe or 

pervasive to alter the conditions of employment.’ “ Plaintiff argues that in his case “[i]t was not until 

looking at the combination of all harassing comments that Plaintiff endured that he realized that he had a 

duty to assert his rights against actionable harassment. Whether the trial court applied the continuing 

violation doctrine notwithstanding (see supra, ¶ 32 n3), this court will consider all of plaintiff’s alleged 

acts of harassment to determine whether it was “so severe or pervasive that it altered the conditions of 

employment and created a hostile or abusive working environment” and, if necessary, apply the factors 

stated in Galloway to determine if all of the acts “were sufficiently closely related to the harassing 

actions occurring within the statutory time frame to be considered an ongoing violation.” 

¶ 47 Plaintiff argues that when viewed in totality it is clear “the severe, pervasive, and incessant, 

harassment” plaintiff suffered rose to the “level of a hostile work environment.” Plaintiff argues he 

received harassing comments based on his national origin and perceived sexual orientation from four 

different supervisors both individually and in front of fellow employees, and he was subjected to 

epithets by Houston, Duggan, and Studer consistently from August 2014 until his termination. 

Defendant responds plaintiff cited no evidence for his claim he was consistently subjected to sexualorientation epithets and, stripped of that allegation, plaintiff’s “hostile work environment claim is based 

on a handful of comments over a 16-month period of time, mainly stemming from two separate 

interactions 11 months apart (August 2014 and July 2015).” 

¶ 48 “To be severe or pervasive enough to create a hostile work environment, conduct must be 

‘extreme.’ [Citation.] Determining whether behavior crosses that threshold is not subject to ‘a 

mathematically precise test.’ [Citation.] Rather, it depends on ‘all the circumstances,’ including ‘the 

frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, 

or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work 
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performance.’ [Citation.]” Equal Employment Opportunity Comm’n v. Costco Wholesale Corp., 903 

F.3d 618, 625 (7th Cir. 2018). “A handful of comments spread over months is unlikely to have so great 

an emotional impact as a concentrated or incessant barrage.” Baskerville v. Culligan International Co., 

50 F.3d 428, 431 (7th Cir. 1995). Further, “relatively isolated instances of nonsevere misconduct will 

not support a claim of a hostile environment.” (Internal quotation marks omitted.) Filipovic v. K & R 

Express Systems, Inc., 176 F.3d 390, 398 (7th Cir. 1999). In this case, examining the evidence in a light 

most favorable to plaintiff, we hold plaintiff has not raised a genuine issue of material fact that the 

harassment was so severe or pervasive that it altered the conditions of employment and created a hostile 

or abusive working environment. Smith, 936 F.3d at 560.6

 

¶ 49 Plaintiff alleges two comments by Moore, one based on sexual orientation and one based on 

nationality, almost a year-and-a-half apart (August 2014 and January 2016). Although plaintiff listed 

two comments by Moore (in August 2014 Moore referred to plaintiff as gay and asked plaintiff if he was 

“going to the gay bars in the city tonight”) plaintiff testified in his deposition that those comments were 

made at the same time. In his deposition plaintiff admitted that all three of Houston’s comments in 

August 2014 (in August 2014 Houston stated to plaintiff “what is it with you Russians trying to take 

6

 We make this finding considering all of plaintiff’s allegations, but we note that the Act 

“does not provide a cause of action for a hostile work environment based on sexual orientation 

harassment. Section 2-102(D) of the [Act] prohibits sexual harassment, which is defined as ‘any 

unwelcomed sexual advances or requests for sexual favors or any conduct of a sexual nature 

when *** such conduct has the purpose or effect of substantially interfering with an individual’s 

work performance or creating an intimidating, hostile or offensive working environment.’ 775 

ILCS 5/2–101(E) (West 2016). The conduct and actions plaintiff points to *** do not qualify as, 

nor does plaintiff argue that they are, ‘sexual advances,’ ‘requests for sexual favors,’ or ‘conduct 

of a sexual nature.’ Because the plain language of the [Act] requires a hostile work environment 

claim to be based on sexual harassment, and plaintiff has not identified (or even pled) any 

evidence of sexual harassment, defendant’s motion for summary judgment with respect to 

[plaintiff’s claim of perceived sexual orientation harassment was proper.’” Martinez v. Nw. 

University, 173 F. Supp. 3d 777, 784–85 (N.D. Ill. 2016). 
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over the railroad,” “all Russians have a drinking problem,” and “Russians drink all the time.”) were in 

one conversation. (C 862) Almost a year later in July 2015 (on or about July 24, 2015) Houston made 

comments referencing plaintiff’s nationality ( “You fucking Russian, you don’t know how to do your 

job;” “are you USSR;” and “are you KGB?”) and Duggan made comments referencing plaintiff’s 

perceived sexual orientation (stating “hey guys, don’t drop the soap, Lyubo is here;” asking plaintiff 

“are you hitting up Boystown tonight?” and asking plaintiff “are you too scared to mess up your looks;” 

then, on July 24, 2015, after plaintiff complained about Houston to Duggan, responding “quit being a 

little bitch;” and on July 27, 2015, stating “you look like a gay Russian;” and “is that what Russian f**s 

wear in Russia?”). In August 2015 Houston allegedly referred to plaintiff and his brother as “USSRs;” 

then, four months later on December 14, 2015, after plaintiff returned to work Studer stated to plaintiff 

“I don’t give a flying f*** if you tell Rick Galvin this or not, I’m not here to play games, I have 

r******* Carmen missing seal steps and broken handholds, I’m not f****** playing games, I will fire 

your foreign ass if you get in my way.” Thus there were two incidents in August 2014, almost one year 

later in July 2015 there were arguably four incidents, one incident one month later in August 2015, and 

five months later there was another incident in December 2015 followed less than a month later with an 

incident in January 2016. With regard to the alleged persistent use of a sexual orientation epithet, in 

reply, plaintiff cited to his deposition testimony where he recounts (at most) two instances in which 

Duggan directed a sexual-orientation epithet at plaintiff and another where Duggan teased plaintiff about 

his choice of clothing apparently during the same incident in which Duggan allegedly asked plaintiff 

“where you going out to, Boystown?” 

¶ 50 The record evidence is that the alleged harassment plaintiff allegedly suffered was infrequent. 

Nor do we find the comments allegedly directed toward plaintiff were severe. “[T]he ‘mere utterance of 

an *** epithet which engenders offensive feelings’ is insufficient to constitute harassment. [Citation.]” 
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Cook County Sheriff’s Office, 2016 IL App (1st) 150718, ¶ 32. The comments were not physically 

threatening, objectively not humiliating but a “mere offensive utterance,” and there are no facts from 

which to reasonably infer that the comments interfered with plaintiff’s work performance. See id. 

¶ 51 This court must “look to the totality of the circumstance and ask whether everything together 

constitutes a hostile or abusive environment.” Swyear v. Fare Foods Corp., 911 F.3d 874, 881 (7th Cir. 

2018). “We also assume employees are generally mature individuals with the thick skin that comes 

from living in the modern world.” Id. “As a result, employers generally do not face liability for offcolor comments, isolated incidents, teasing, and other unpleasantries that are, unfortunately, not 

uncommon in the workplace.” Id. To survive summary judgment plaintiff had to produce sufficient 

evidence demonstrating, inter alia, the work environment was both objectively and subjectively 

offensive and the conduct was severe or pervasive. Zegarra v. John Crane, Inc., 218 F. Supp. 3d 655, 

667 (N.D. Ill. 2016). In this case, looking to the totality of the circumstances and viewing the 

allegations in a light most favorable to the non-moving party, plaintiff has failed to produce sufficient 

evidence that the work environment was objectively offensive or that the conduct was severe or 

pervasive. Plaintiff has pointed to neither “one extremely serious act of harassment” nor “a series of less 

sever acts.” See Id. Rather, plaintiff has provided evidence of only a few isolated and diffuse incidents. 

Accordingly, we hold that summary judgment in favor of defendant was proper. In light of this holding 

we have no need to reach defendant’s remaining arguments. 

¶ 52 CONCLUSION

¶ 53 For the foregoing reasons, the circuit court of Cook County is affirmed. 

¶ 54 Affirmed.