IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

KATRINA B. COMER, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) No. 2:14-CV-467 

 ) 

SCHOOL CITY OF HAMMOND INC., ) 

 ) 

 Defendant. ) 

 

OPINION AND ORDER

 

 This matter is before the Court on the Motion for Summary 

Judgment filed by School City of Hammond, Inc., on November 2, 

2016. For the reasons set forth below, this motion is GRANTED and 

this case is DISMISSED WITH PREJUDICE.

BACKGROUND 

Katrina B. Comer (“Comer”) was employed by the School City of 

Hammond, Inc. (“Hammond School”) as a painter from May 2010 until 

July 1, 2014. During her time with Hammond School, Comer filed 

several charges with the Equal Employment Opportunity Commission 

(“EEOC”). Relevant here are two charges filed in 2014. 

 On March 29, 2014, Comer filed Charge No. 470-2014-01277 

against the Hammond School. In this charge, Comer alleged that 

she was retaliated against for filing two previous charges with 

the EEOC and discriminated against due to her race and sex. A 
2 

few months later, on July 10, 2014, Comer filed Charge No. 470-

2014-02282 against the Hammond School. Under this charge, Comer 

alleged Hammond School terminated her position in retaliation for 

filing the three previous charges. The EEOC issued its Dismissal 

and Notice of Rights for Charge Nos. 470-2014-02282 and 470-2014-

01277 on September 30, 2014. 

 On December 29, 2014, Comer filed a pro se employment 

discrimination complaint against Hammond School and Diane 

Schweitzer. Comer retained counsel and the complaint was amended 

and to allege multiple claims, as follows: 1) unlawful 

discrimination and job elimination based on race and sex in 

violation of Title VII; 2) retaliation in violation of Title VII; 

3) a claim pursuant to 42 U.S.C. section 1983 for a violation of 

the Fourteenth Amendment; and 4) a violation of 42 U.S.C. section 

1981. The Defendants filed a motion to dismiss the amended 

complaint. This Court dismissed all claims except the Title VII 

claims against Hammond School arising under EEOC Charge Nos. 470-

2014-01277 and 470-2014-02282. 

Following the close of discovery, the instant motion for 

summary judgment was filed. The motion is now fully briefed and 

ripe for adjudication. 
3 

DISCUSSION 

Summary judgment must be granted when “there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine 

dispute 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, 106 S. Ct. 

2505, 91 L. Ed. 2d 202 (1986). Not every dispute between the 

parties makes summary judgment inappropriate; “[o]nly disputes 

over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary 

judgment.” Id. To determine whether a genuine dispute of material 

fact exists, the Court must construe all facts in the light most 

favorable to the nonmoving party and draw all reasonable inferences 

in that party’s favor. See Ogden v. Atterholt, 606 F.3d 355, 358 

(7th Cir. 2010). 

A party opposing a properly supported summary judgment motion 

may not rely on allegations in her own pleading but rather must 

“marshal and present the court with the evidence she contends will 

prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 

651, 654 (7th Cir. 2010). “[I]nferences relying on mere 

speculation or conjecture will not suffice.” Stephens v. Erickson, 

569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the 

nonmoving party fails to establish the existence of an essential 
4 

element on which she bears the burden of proof at trial, summary 

judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th 

Cir. 2006). 

Facts 

In support of the instant summary judgment motion, Hammond 

School has set forth a detailed summary of the evidence before 

this Court, supported by citations to the evidence. (DE #40-1). 

In response, Comer explicitly indicates that she admits the truth 

of the Hammond School’s undisputed facts, although she denies that 

those facts entitle Hammond School to summary judgment. (DE #43-

1 at 2). Comer also tendered nine numbered paragraphs designated 

as disputed material facts. These paragraphs consist of short 

conclusory statements or questions without citations to the 

record. They will therefore be disregarded by this Court.1 Because 

the facts in this case are undisputed, the Court has relied heavily 

on the facts as presented in the Hammond School’s statement of 

                                                             1 At the conclusion of the nine numbered paragraphs, Comer designates her 

affidavit. The affidavit contains primarily basic recitations of historical 

facts regarding her employment (such as her hire date, work assignments, job 

description, dates that EEOC charges were filed, and termination date). It is 

largely duplicative of the uncontested evidence set forth by Hammond School. 

To the extent the affidavit provides facts that are different from or in addition 

to those contained in Hammond School’s undisputed facts, they will be 

disregarded. These facts were not identified in the section labeled “Statement 

of Genuine Disputes,” as required by Northern District of Indiana Local Rule 

56-1(b)(2). 
5 

undisputed material facts, supplementing and editing where 

necessary. 

Hammond School is a political subdivision of the State of 

Indiana. The Superintendent is Dr. Walter J. Watkins. (“Dr. 

Watkins”). Hammond School is governed by a seven-person elected 

Board of School Trustees. Dr. Diane Schweitzer (“Dr. Schweitzer”) 

is Hammond School’s Director of Buildings and Grounds, and has 

served in this position since September 2011. Dr. Schweitzer’s 

duties involve managing the Maintenance Department, which includes 

a number of departments, such as HVAC, plumbing and the painting 

department. These departments are also referred to as “crafts.” 

Comer is an African-American woman who began working at 

Hammond School as a painter in May 2010. Ed Cassady (“Cassady”) 

was Comer’s supervisor until his death in March 2014. Cassady 

was Caucasian. Until Cassady’s death, Comer and Cassady were the 

only two employees in Hammond School’s painting department. Comer 

and Cassady were good friends. Both Comer and Cassady were 

members of Local 460, the painter’s union. Each of the 

departments within Hammond School’s maintenance department, or 

“crafts”, employ people that are members of each craft’s 

respective union. All of the employees in the Maintenance 

Department are based in the Hammond School’s warehouse. 

Prior to Dr. Schweitzer assuming these responsibilities, 

Comer’s supervisor was Joe Hickman (“Hickman”). In 2010, while 
6 

Hickman was Comer’s supervisor, there was an incident involving 

another employee in the maintenance department, Kevin Kolcznski 

(“Kolcznski”), who is Caucasian. Cassady and Comer were sitting 

in a room watching something on a computer when Kolcznski walked 

past the room. Kolcznski asked them if they were watching “porn.” 

Cassady said “no” and, together with Comer, complained to 

Hickman. Comer was not disciplined in any way as a result of 

the incident or her complaint to Hickman. 

Kerry Kuc (“Kuc”), another maintenance department employee, 

is Caucasian and worked in Buildings and Grounds. Comer alleged 

that he gave the “Hitler salute” to herself and Cassady on several 

occasions. Cassady advised Comer that “he does it all the time” 

and the gesture was not limited to Comer. Comer reported this to 

Cassady, and Cassady told Hickman. Comer was not disciplined or 

reprimanded in any way because of this incident or the report to 

Hickman. 

The next incident occurred at a Christmas party for 

employees of the maintenance department in December 2010. The 

Christmas party was not held on School property. The Plaintiff 

was sitting at a table at the party with several people, including 

Kolcznski, Kuc, and Keith Kleinfeldt (“Kleinfeldt”). Someone made 

a comment about having three “K’s” sitting there. At that point, 

Kolcznski put his hood on over his head and started laughing, 

and then said “KKK.” No one else at the party was inappropriate, 
7 

and all others were nice to Comer. Comer made a report regarding 

this incident to Cassady and she believes he then told Hickman. 

Comer was not disciplined for making this report. 

Comer also took issue regarding a comment made by Kolcznski 

to Cassady to the effect that Comer did not do any work while 

Cassady was on vacation. Comer believes this occurred in 2011. 

Cassady spoke to Hickman regarding this statement. Comer was 

not disciplined, reprimanded or demoted in any way due to 

Kolcznski’s alleged remark. 

Comer also was disturbed regarding a remark that she 

believes was placed in Cassady’s 2011 evaluation that suggested 

that Cassady should provide Comer with additional training so 

that she could expand her knowledge within the Maintenance 

Department. The remarks were directed to Cassady, not Comer. 

They did not state that Comer was failing to perform any of her 

tasks. Comer was not reprimanded or disciplined in any way 

because of the statements in Cassady’s evaluation. 

Comer met with Hickman on January 27, 2011, to discuss some 

of her concerns. At this meeting, Comer complained about the 

remark made by Kolcznski that she did no work when Cassady was 

on vacation. Comer does not remember mentioning anything to 

Hickman about the KKK comment at the Christmas party or 

Kolcznski’s asking if she and Cassady were watching pornography. 
8 

After the meeting with Hickman, Comer was still not 

satisfied and had a meeting with the Superintendent of the School 

City of Hammond, Dr. Watkins. Dr. Watkins is African-American. 

At the time of her deposition, Comer could not remember why she 

was dissatisfied after her meeting with Hickman. In the meeting 

with Dr. Watkins, Comer raised the issue regarding the KKK 

remarks. 

Hickman had a meeting with Kerry, Keith and Kevin regarding 

the incident at the Christmas party. They each signed a statement 

acknowledging that the School had a zero-tolerance for offensive 

jokes. 

Comer was still not satisfied and brought some of these 

issues to the attention of her union representative, Henry Ciara 

(“Ciara”). Ciara is an employee of Local 460, and not the Hammond 

School. Comer discussed with Ciara the Christmas party, the 

comment in Cassady’s evaluation and the comment about watching 

pornography. Ciara arranged a meeting with Dan Friel (“Friel”), 

who is the Hammond School’s labor attorney, and Eliza Gonzalez 

(“Gonzales”), the Director of Human Resources Department at the 

time. 

Friel and Gonzalez investigated Comer’s complaints. 

Reprimands and other discipline resulted. Kolcznski’s reprimand 

addressed his comments at the Christmas party, among other 

things. He was also removed from his position as Coordinator of 
9 

Maintenance and demoted to the position of pipe fitter with a 

commensurate reduction in pay. He was also directed to treat 

people in a professional and courteous manner and to refrain from 

any conduct that could be interpreted as intimidating or 

embarrassing. Mr. Kuc was disciplined for giving the Hitler 

salute and was advised that this conduct was entirely 

unacceptable. He was suspended without pay for 5 days and removed 

from his position as Laborer/Foreman and demoted to the position 

of Laborer with a commensurate reduction in pay. He likewise was 

directed to treat people professionally and courteously. Hickman 

was reprimanded for failing to notify human resources of Comer’s 

complaints. Comer acknowledged that these reprimands and 

demotions occurred. Comer was not reprimanded in any way as a 

result of this investigation by Friel and Gonzalez or because of 

her complaints. 

By February of 2013, Dr. Schweitzer had replaced Hickman. 

Dr. Schweitzer was contacted by a teacher at Morton High School 

(adjacent to the warehouse) and advised that the teacher saw 

Cassady driving a school van in which Comer was the passenger. 

Cassady stopped the van at Comer’s car. Comer got out, took 

something from the van, and put it in her car. The next morning 

Dr. Schweitzer spoke with Cassady and Comer, and advised them to 

use caution as people may see something that they think is 

occurring, but it may not actually be occurring. Dr. Schweitzer 
10 

did not accuse Comer or Cassady of stealing. Comer was upset at 

this meeting as she believed Dr. Schweitzer had accused her of 

stealing. Comer agreed, however, that what Dr. Schweitzer said 

was that the perception of the person making the report may have 

been that Comer was stealing. The next day, Dr. Schweitzer 

issued a memo to all of the employees cautioning them to be 

mindful of the public’s perception. This memo did not mention 

Comer by name or accuse her of stealing. Comer was upset because 

she believed the memo should have been written first and then 

Dr. Schweitzer should have met with herself and Cassady. Comer 

was not disciplined, written up or reprimanded in any way as a 

result of this incident. 

The next incident that caused Comer concern occurred in July 

2013. During the summer the maintenance department employees work 

four, ten-hour days and usually had Fridays off. However, on 

this particular Friday, Comer was asked to do some painting. As 

a result, she needed to go to the warehouse to pick up her 

equipment. Another employee, Francisco Jiminez2 (“Jiminez”), had 

not been advised in advance that Comer was authorized to do work 

on this Friday. Each employee, including Comer, has an ID badge 

which allows access to the warehouse. In addition, each employee, 

including Comer, is given the security code to deactivate the 

                                                            

2 In Plaintiff’s Deposition, Jiminez’s last name is spelled incorrectly as 

Emaniz. 
11 

alarm in the warehouse. When Comer arrived at the warehouse, 

she did not have her badge or security code, and she asked Jiminez 

if he would use his badge to let her in. Jiminez was not aware 

that Comer had been authorized to do work on that day, and he 

did not want her to come into the warehouse using his security 

code. Jiminez called Dr. Schweitzer to get authorization for 

Comer’s entry. Dr. Schweitzer advised that she should be allowed 

to have access, and Jiminez cooperated. Dr. Schweitzer then 

returned to the warehouse about 3:00 p.m., which was the time 

for Comer to return, so that there would be no difficulty between 

Comer and Jiminez. Both Jiminez and Comer told Dr. Schweitzer 

their side of the story. Comer said that she was upset that 

Jiminez would not allow her into the warehouse. Jiminez advised 

that Comer was threatening to him. Comer acknowledged that she 

did call Jiminez “crazy”. She also alleges that Jiminez got out 

of his van and came toward her in a menacing manner. 

Ultimately Dr. Schweitzer advised Jiminez and Comer that 

she thought they each could have handled the situation 

differently. Neither Comer nor Jiminez were disciplined. After 

this incident, Comer had no further difficulties or any other 

incidents with Jiminiez. In a memo regarding the incident, Comer 

indicated that she had advised Dr. Schweitzer that she did not 

feel the incident with Jiminez was racist, but felt like it was 

harassment. 
12 

The next situation occurred in December 2013. Dr. Schweitzer 

was advised by Terry Butler (“Butler”), the School’s Director of 

Transportation, that the School’s insurance company, Hammond 

National Insurance Company, had done a random check of driver’s 

licenses for those employees driving school vehicles. As a 

result, the insurance company learned that Comer’s license had 

been suspended for eleven months, and she had an unpaid fine and 

points on her license. Butler told Comer that the School’s 

insurance company had advised him that Comer could not drive a 

school vehicle for five years as a result of these problems. 

This was not Butler’s decision. The insurance company placed a 

“watch” on several other employees in addition to Comer. Dr. 

Schweitzer spoke with Comer and suggested that she take a 

defensive driving course to eliminate the points on her driver’s 

license and get her license reinstated. Comer took the course 

and paid the fine. Her driver’s license was then reinstated. 

Nonetheless, Butler told Comer that the insurance company advised 

that Comer could not drive a school vehicle for a period of three 

years. Eventually the insurance company was persuaded to lift 

the ban on Comer’s driving a school vehicle. As a result of this 

incident, Comer’s job was not terminated or suspended, and she 

was not disciplined in any way. 

Furthermore, from December 2013 to March 2014 (i.e, the 

period of time in which the insurance company advised that Comer 
13 

could not drive a school vehicle until the time of Cassady’s 

death), Cassady was allowed to drive Comer to all of her work 

assignments so Comer would not lose any work. During the time 

between Cassady’s death and the ban being lifted by the insurance 

company, Dr. Schweitzer assigned Comer to Morton High School. 

Morton High School is a short walk from the warehouse, so Comer 

again did not lose any work. 

Comer alleged that there were other employees with suspended 

licenses who were allowed to drive. Dr. Schweitzer testified that 

this was not the case, and any time it was brought to the School’s 

attention that an employee had a suspended driver’s license, the 

situation had to be corrected before they could be allowed to 

drive a school vehicle. This happened with Cassady, and he was 

not allowed to drive until it was cleared up. In fact, Comer 

drove Cassady until this was resolved.3

Next Comer took issue with a comment made in February 2014. 

She was assigned to a painting project at Morton High School. 

The head custodian at Morton High School was a person by the name 

of Tom Smitka (“Smitka”). The assignment involved painting over 

graffiti in one of the men’s restrooms. Comer decided to wait 

until school was over for the day to do the painting and to 

                                                            

3

 On February 13, 2012, Cassady’s driver’s license was checked for violations and found that it was suspended as of 

February 9, 2012.  The next day Cassady purchased insurance to reinstate his license.  The status of the license was 

checked again on February 23, 2012, and found to be valid.  Additionally, the insurance company did not ban 

Cassady from driving. 
14 

enlist the help of a Morton High School custodian by the name of 

Barb. Comer arrived at Morton High School around 2:00 p.m. and 

the day ended at 2:30 p.m. She walked around for a while and then 

took a break at about 2:15 p.m. She and Barb were in the 

teacher’s lounge. According to Comer, Smitka walked past several 

times and finally looked in and indicated that, if she did not 

have work to do, he had some work for her. Smitka was not Comer’s 

supervisor and she did not want him telling her what to do. Comer 

was not disciplined or reprimanded in any way as a result of 

Smitka’s remark. 

A grievance meeting occurred on April 3, 2014. According 

to Comer, this grievance meeting was designed to address all of 

the incidents that had previously been discussed. Comer’s union 

representative, Mr. Loftis, was present. 

Dr. Schweitzer had been considering outsourcing the painting 

department for approximately two years prior to July 2014. 

Funding for Capital Projects was declining.4 Dr. Schweitzer 

prepared a memo outlining her budgetary concerns and the rationale 

for outsourcing the painting department. Through the years, the 

number of employees in the various craft departments of Hammond 

                                                            

4 Schools in Indiana are required to maintain several different funds. The 

largest is the General Fund, out of which many of the employee’s salaries and 

benefits are paid. The Capital Projects Fund is used primarily for making

repairs on buildings, but can also be used to defray certain employee’s costs, 

such as the painting department. 
15 

School had declined for budgetary reasons. Dr. Schweitzer 

concluded that it made sense to eliminate the department and 

utilize an independent contractor. Not only would this save 

money, but in this way, a painter could come in and work in the 

afternoon or the evening after the schools were closed. 

Dr. Schweitzer made a recommendation that the painting 

department be eliminated to Mr. Theo Boone (“Boone”), Hammond 

School’s Chief Financial Officer. Boone then recommended to the 

Superintendent, and then to the Board, that the painting 

department be eliminated. The Board voted to eliminate the 

painting department. Dr. Schweitzer believes that approximately 

$175,000.00 has been saved since eliminating the painting 

department in July 2014. 

Dr. Schweitzer discussed the elimination of the painting 

department in the grievance meeting with Comer and Mr. Loftis on 

April 3, 2014. Mr. Loftis indicated that there was no problem 

with eliminating the painting department so long as the 

independent contractors were union painters. He reiterated this 

position in July 2014 in a meeting with Dr. Schweitzer. Neither 

Mr. Loftis nor Comer filed a grievance regarding the elimination 

of the painting department per the Collective Bargaining 

Agreement between Hammond School and the painters. 
16 

The painting department was eliminated for budgetary reasons 

and not because of Comer’s job performance. Dr. Schweitzer 

denies that the painting department was eliminated as a result 

of the charges of discrimination or other complaints made by 

Comer. 

On or about March 22, 2011, Comer filed her first EEOC 

Charge, 24B-2011-00040. Therein, she alleged discrimination 

based upon her sex and race. Her claims were based on several 

incidents discussed above. The EEOC issued its determination 

and right to sue letter in Charge No. 24B-2011-00040 on June 30, 

2011. 

The next EEOC Charge that Comer filed was number 24B-2013-

00016 on February 5, 2013. Comer alleged retaliation by Dr. 

Schweitzer. Specifically, Comer alleged Dr. Schweitzer “harassed 

me on a continuous basis, with the most recent on January 11, 

2013 in which she alleges that I was stealing.” This is the 

incident detailed above in which Dr. Schweitzer spoke with Comer 

and Cassady regarding the perceptions of someone who reported to 

Dr. Schweitzer, and Comer “perceived” this as Dr. Schweitzer’s 

accusing her of stealing. On February 26, 2013, the EEOC issued 

its notice of right to sue letter. Comer did not file any lawsuit 

regarding Charge Numbers 24B-2013-00016 or 24B-2011-00040 within 

ninety (90) days of the issuance of the right to sue letters by 

the EEOC. 
17 

The next EEOC Charge filed by Comer was number 470-2014-

01277 on March 29, 2014. In this charge Comer alleged 

discrimination based upon race, sex and retaliation. 

Specifically, Comer alluded to her two previous charges (although 

the charge numbers referenced by Comer are not accurate). Comer 

then discussed the issue in July 2013 involving Jiminez and her 

desire to enter the warehouse, which is detailed above. Comer 

addressed the issue about points on her driver’s license and not 

being allowed to drive the school vehicles. Comer acknowledged 

in her charge that she was still not allowed to drive school 

vehicles and had been informed that this is due to insurance 

coverage. Comer also alleged that she thought other white males 

had been allowed to drive school vehicles on suspended licenses. 

Comer went on in this charge to complain about the comment made 

by the custodian, Smitka, at Morton High School, suggesting that 

if she did not have anything to do, he could give her some work. 

The last EEOC charge that Comer filed was number 470-2014-

02282 on July 10, 2014. This charge was based only on retaliation 

and referenced the fact that the painting department was closed 

and Comer’s job terminated. The EEOC’s notice of right to sue 

was issued for charge numbers 470-2014-01277 and 470-2014-02282 

on September 30, 2014. 
18 

Comer’s Claims of Sex and Race Discrimination 

While not explicitly conceding that her sex and race 

discrimination claims fail, Comer appears to be making such a 

concession implicitly. Her response brief indicates that there 

are “genuine issues of material fact that precludes the granting 

of Defendants [sic] Motion for Summary Judgment on the issue of 

retaliation.” (DE # 43-1 at 2)(emphasis added). Comer’s argument 

then focus’ exclusively on why the retaliation claim should not 

be dismissed. 

 The only sex and race discrimination claims that remain 

pending stem from EEOC charge number 470-2014-01277. Title VII 

prohibits employers from firing or otherwise discriminating “against 

any individual with respect to his compensation, terms, conditions, or 

privileges of employment, because of such individual’s race, color, 

religion, sex, or national origin. See 42 U.S.C. §§ 2000e–2(a)(1). To 

prevail, Comer must demonstrate a causal link between her gender or 

race and the alleged adverse employment actions. 

The legal standard to be applied “is simply whether the 

evidence would permit a reasonable factfinder to conclude that 

the plaintiff’s race, ethnicity, sex, religion, other proscribed 

factor caused the discharge or other adverse employment action.” 

Evidence must be considered as a whole.” Ortiz v. Werner Enters., 

Inc., 834 F.3d 760, 765 (7th Cir. 2016). “Evidence must be 

considered as a whole, rather than asking whether any particular 
19 

piece of evidence proves the case by itself – or whether just the 

‘direct’ evidence does so, or the ‘indirect’ evidence.” Id. 

There are no facts before this Court that would allow a 

reasonable jury to find in Comer’s favor on any claim of race of 

sex discrimination raised in EEOC charge number 470-2014-01277. 

As an initial matter, none of the incidents raised by Jiminez 

resulted in any adverse job action. Comer received no discipline 

for the situation with Jiminez. Even when she was unable to drive 

a school vehicle she suffered no adverse job action. Instead, 

the school made sure she remained able to work, either by getting 

rides with Cassady or by being assigned to the school right next 

to the warehouse. Likewise, the comment by Smitka regarding 

Comer’s work ethic resulted in no adverse job action. 

Furthermore, Comer has produced no evidence whatsoever that 

any of these situations were in any way connected to her race or 

gender. Because Hammond School sets forth a detailed and wellsupported argument in favor of dismissal and Comer has produced 

no evidence or argument in response, summary judgment will be 

granted as to Comer’s remaining sex and race discrimination 

claims. 

Comer’s Claims of Retaliation 

For Comer’s retaliation claims to survive summary judgment, 

she must offer evidence that she engaged in statutorily protected 
20 

activity, suffered a materially adverse employment action, and 

that a causal connection exists between the protected activity 

and the adverse employment action. See Baines v. Walgreen Co., 

863 F.3d 656, 661. To show a causal connection, Comer must 

produce some evidence that the defendant “would not have taken 

the adverse ... action but for Comer’s protected activity.” Id.

Comer, relying upon Coleman v. Donahoe, argues that a lower 

standard of proof is applicable. Coleman v. Donahoe, 667 F.3d 

853 (7th Cir. 2012)(“Coleman can show causation by showing that 

her complaints and EEO filings were a ‘substantial or motivating 

factor’ in the Postal Service’s decision to place her in off-duty 

status and/or to fire her.”). Following the decision in Coleman, 

the United States Supreme Court decided University of Texas S.W. 

Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528 (2013). Nassar

clarifies that, to succeed on a retaliation claim, a plaintiff 

must show “but for” cause. Id. (“The text, structure, and history 

of Title VII demonstrate that a plaintiff making a retaliation 

claim under 2000e-3(a) must establish that his or her protected 

activity was a but-for cause of the alleged adverse action by the 

employer.”); see also Jones v. Lake County Sheriff’s Department, 

No. 2:11-CV-356-TLS, 2014 WL 3928405 (N.D. Ind. Aug. 11, 2014). 

 Comer’s claims of retaliation stemming from EEOC charge 740-

2014-01277 fail for the same reasons her discrimination claims 

raised in this charge fail: she sets forth no adverse job actions. 
21 

To the extent it is possible to view the prohibition against 

driving school vehicles as an adverse job action5, the evidence 

before this Court is that Hammond School did not make that 

decision – the insurance company told Hammond School that Comer 

could not drive school vehicles. Furthermore, Comer fails to 

provide evidence from which a reasonable jury could find any link 

between the situations she describes in EEOC charge 740-2014-

01277 and her filing of previous EEOC charges. 

 Charge 470-2014-02282 also raises a claim of retaliation. 

Here, Comer argues that her termination was the result of 

retaliation for filing previous EEOC charges. In response to the 

instant motion, Comer admitted the truth of Defendant’s undisputed 

facts. Accordingly, Comer conceded that the painting department 

was eliminated for budgetary reasons and not because Comer filed 

EEOC charges or made other complaints. (DE #40-1 at 13, citing 

Schweitzer Deposition at 42-43). Given this concession, Comer’s 

claim that her termination was the result of retaliation must 

fail. 

 Ignoring her concession that her position was eliminated 

solely for budgetary reasons, Comer argues that this reason is 

pretextual because, unlike others that are no longer employed in 

the trades, she was not allowed to work until the job could be 

                                                            

5 Comer lost no pay as a result of her inability to drive and she was not 

demoted. Furthermore, she has offered no argument to the Court explaining 

why she believes this should be treated as an adverse job action. 
22 

eliminated through normal attrition. In support of her argument 

that she was treated differently than other similarly situated 

employees, she relies upon a chart outlining staffing changes in 

the various trades over a ten year period. She notes the 

following: 

In this 10 year period she was the only 

position eliminated (laid off). Secondly as 

a general rule [a]ll the employees who were 

not replaced either resign, retired, or died 

(there were only 2 who were terminated). 

Their positions were eliminated through normal 

attrition. The Plaintiff was not given the 

opportunity to retire or resign or the benefit 

to retain her job until such time as she wanted 

to resign or retire. The normal attrition 

policy never applied to the Defendant [sic]. 

Considering the fact that she was the only 

female in the Department, the only African 

American in the Department, and most 

importantly, she was the only one to file 

charges of discrimination. 

 This is not enough. Even without her concession that the 

decision was made for budgetary reasons and not based on her 

filing of EEOC charges or other complaints, this would not 

suffice. Comer has produced no evidence from which a jury could 

find that the filing of Comer’s EEOC charges was linked to the 

decision to eliminate her position, much less a but-for cause. 
23 

CONCLUSION 

 For the reasons set forth above, Defendant’s summary judgment 

motion, filed on November 2, 2016, is GRANTED and this case is 

DISMISSED WITH PREJUDICE.

 

DATED: September 11, 2017 /s/RUDY LOZANO, Judge 

 United States District Court