In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1716

BRENDA O’NEAL,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:07-cv-04788—Charles P. Kocoras, Judge.

ARGUED OCTOBER 6, 2009—DECIDED NOVEMBER 17, 2009

Before BAUER, WOOD and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Sergeant Brenda O’Neal has

twice sued her employer, the Chicago Police Department (“CPD”), this time claiming retaliation and sex

discrimination under Title VII of the Civil Rights Act,

42 U.S.C. §§ 2000e et seq. The district court granted summary judgment to the CPD, as it had done before

in O’Neal’s first employment discrimination suit. See

O’Neal v. City of Chicago, 392 F.3d 909 (7th Cir. 2004). We
2 No. 09-1716

have reviewed the district court’s decision de novo construing all facts and reasonable inferences in O’Neal’s

favor; finding no error, we affirm.

I. BACKGROUND

Brenda O’Neal began her career as a police officer for

the CPD in 1991, and was promoted to sergeant in 2001.

In May 2002, O’Neal was transferred from the Narcotics

unit to one of the police districts. O’Neal sued the CPD

in November 2002, claiming that this transfer violated

Title VII’s prohibition against race and gender discrimination. The district court granted the CPD’s motion

for summary judgment and this court affirmed. O’Neal,

392 F.3d 909.

After O’Neal filed her 2002 lawsuit, the CPD transferred

her back to Narcotics per a settlement of a dispute over

O’Neal’s collective bargaining agreement. Since then, the

CPD has transferred or detailed (“reassigned”) O’Neal

ten times among seven other units: the Training Academy,

Patrol Administration, Operational Services Administration, the Fifth District, Asset Forfeiture, Vice Control,

and the Third District. Each new reassignment involved

different responsibilities, most entailed a new supervisor, some required different hours, and all prompted

O’Neal to complain to her union, claiming the reassignments hurt her promotion prospects and were in retaliation for her 2002 lawsuit.

On August 14, 2007, O’Neal initiated this case against

the CPD, after first filing a discrimination charge on
No. 09-1716 3

June 28, 2007, with the Equal Employment Opportunity

Commission (“EEOC”). The CPD and O’Neal engaged

in discovery and the CPD moved for summary judgment.

The district court entered summary judgment in favor

of the CPD on February 17, 2009, and O’Neal timely

filed this appeal.

II. DISCUSSION

As a threshold matter, O’Neal may sue the CPD only for

the last two transfers, to Vice Control in November 2006

and to the Third District in June 2007. The earlier eight

reassignments are time-barred because they predate

O’Neal’s EEOC charge by more than three hundred days.

See 42 U.S.C. § 2000e-5(e)(1). Nor need we consider

whether all ten reassignments constitute one continuing adverse employment action, because O’Neal

failed to make this argument on appeal. See, e.g., Luellen

v. City of E. Chicago, 350 F.3d 604, 612 (7th Cir. 2003)

(arguments not raised on appeal are waived). Hence, the

first eight reassignments are time-barred and may be

considered only as “background evidence” of the last

two actionable transfers. Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002).

We review the district court’s grant of summary judgment de novo, construing all facts and reasonable inferences in O’Neal’s favor. Winsley v. Cook County, 563

F.3d 598, 602 (7th Cir. 2009). Summary judgment is

proper if the pleadings, discovery materials, disclosures,

and affidavits demonstrate no genuine issue of material
4 No. 09-1716

fact such that the CPD is entitled to judgment as a

matter of law. Fed R. Civ. P. 56(c).

A. Retaliation

To survive summary judgment on her retaliation

claim, O’Neal needed to present evidence that, if believed by a trier of fact, would show (1) that she

engaged in an activity protected by Title VII; (2) that she

suffered an adverse action taken by the CPD; and (3) a

causal connection between the two, under either the

direct or indirect method of proof. See Tomanovich v. City

of Indianapolis, 457 F.3d 656, 662-63 (7th Cir. 2006); Stone

v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642-

44. O’Neal succeeds on the first two elements but fails

on the third.

First, O’Neal engaged in two activities protected by

Title VII: filing her employment discrimination lawsuit

in 2002 and filing her grievance for retaliation in 2006.

See 42 U.S.C. § 2000e-3(a) (defining statutorily protected

activity to include participating in a Title VII proceeding

or opposing a practice made unlawful by Title VII).

(By contrast, it did not constitute statutorily protected

activity when O’Neal complained in 2007 to Commander

O’Donnell that Lieutenant Kusinski tolerated insubordination by police officers under O’Neal’s command,

because her complaints failed to indicate that the behavior was discriminatory. Tomanovich, 457 F.3d at 663; see

O’Neal Letters of May 1 & 8, 2007; O’Neal Dep. at 313:1-3.)

Second, O’Neal adduced sufficient evidence of an

adverse employment action. An adverse employment
No. 09-1716 5

action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Tomanovich, 457 F.3d at 664 (quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006)). A lateral job transfer within an organization

may constitute an adverse employment action, for example, if it reduces the employee’s “opportunities for

future advancement.” Nichols v. S. Ill. Univ.—Edwardsville,

510 F.3d 772, 781 (7th Cir. 2007). Commander Wiberg

testified that repetitive reassignments “would negatively

affect [one’s] ability to be promoted from a police

sergeant to a lieutenant on the basis of a meritorious

promotion.” Wiberg Dep. at 23-24. And indeed, the two

actionable transfers were “repetitive,” considering as

background evidence the previous eight reassignments.

Therefore, although the CPD asks us to discredit Commander Wiberg’s testimony as “speculation,” Appellee’s

Br. at 27, we find that it raises an issue of fact with

regard to O’Neal’s two actionable transfers being

adverse employment actions. Cf. O’Neal, 392 F.3d at 912

(finding no issue of fact where O’Neal had failed to

present any evidence that the transfer could “ultimately

diminish her chances for promotion”).

Third, O’Neal provided insufficient evidence that she

suffered an adverse employment action because she

engaged in statutorily protected activity, i.e., that either

of her two actionable transfers occurred because of her

2002 lawsuit or her 2006 grievance. Under the direct

method of proof, O’Neal offered evidence only of a

causal connection between the 2002 lawsuit and the

transfer from Vice Control. This evidence consisted only
6 No. 09-1716

of Lieutenant Kusinski, who recommended O’Neal’s

transfer, (1) calling O’Neal a “complainer” and other

similar names, Dunn Dep. at 129:24; and (2) referring to

O’Neal as previously “dating a gang banger”—rumors of

which prompted O’Neal’s initial transfer out of Narcotics,

which in turn prompted O’Neal to file her 2002 lawsuit.

Id. at 89:7-10. These statements, made without reference

to O’Neal’s 2002 lawsuit and made before O’Neal

arrived in Vice Control, constitute neither direct

evidence nor a “convincing mosaic of circumstantial

evidence” that the CPD transferred O’Neal out of Vice

Control because of the 2002 lawsuit seven months later.

Sylvester v. SOS Children’s Vills. Ill., Inc., 453 F.3d 900,

903 (7th Cir. 2006).

Nor did O’Neal provide sufficient evidence to establish a causal connection under the indirect method of

proof. Under the indirect method, O’Neal needed to

present evidence that she met the CPD’s legitimate expectations, that she was treated less favorably than similarly situated employees who did not engage in

statutorily protected activity, and that any nondiscriminatory reasons offered by the CPD for her two actionable

transfers were pretextual. See Tomanovich, 457 F.3d at

666; Stone, 281 F.3d at 644. O’Neal fails under this

method because she provided insufficient evidence

that she was meeting the CPD’s legitimate expectations.

Specifically, she failed to rebut the CPD’s assertion that

O’Neal was borderline insubordinate, had a confrontational attitude, and suffered from an inability to conduct street operations that “jeopardized the safety of [an]

undercover officer.” Kusinski Dep. at 100:14-15. Instead of
No. 09-1716 7

addressing these particular criticisms, O’Neal responded

that she was a good officer in other respects, pointing to

her high efficiency rankings, Appellant’s Reply at 14;

that other sergeants were treated more favorably without reference to whether they exhibited the same faults,

id. at 13; and that her performance was “unblemished.”

Id. at 14. Nowhere in her briefs, however, does O’Neal

deny her insubordination, confrontational attitude, and

putting an undercover officer in jeopardy by poorly

conducting street operations. Indeed, nowhere in the

record are these performance issues contradicted, despite

O’Neal’s numerous citations attempting to do so. See

Plaintiff’s Response to Defendant’s Rule 56.1 Statement

of Facts at 23-24. O’Neal thus presented insufficient

evidence for a reasonable jury to find that she was

meeting the CPD’s legitimate business expectations,

and therefore her 2007 transfer was retaliatory.

B. Sex Discrimination

O’Neal fails on her sex discrimination claim for the

same reason as her retaliation claim: she failed to adduce

any evidence indicating that her actionable transfers

were because of her sex. Indeed, O’Neal’s briefs focus

exclusively on the retaliation claim, and O’Neal’s attorney conceded at oral argument that the sex discrimination claim has no merit.
8 No. 09-1716

III. CONCLUSION

For the reasons discussed above, we AFFIRM the

district court’s grant of summary judgment on O’Neal’s

employment discrimination claims.

11-17-09