United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted May 9, 2019*

Decided May 10, 2019 

Before 

JOEL M. FLAUM, Circuit Judge 

DAVID F. HAMILTON, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge

No. 18-1888 

SUSAN M. TOMAS, 

Plaintiff-Appellant, 

v. 

ILLINOIS DEPARTMENT OF 

EMPLOYMENT SECURITY, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 07 CV 4542 

Sharon Johnson Coleman, 

Judge. 

O R D E R 

 Susan Tomas, who is white and Polish, sued the Illinois Department of 

Employment Security and its employees under Title VII and the Fourteenth 

Amendment after she was passed over for a promotion. She also asserted that the 

defendants retaliated against her for filing a discrimination charge with the Equal 

Employment Opportunity Commission. Lastly, she brought discrimination and 

 

*

 We have agreed to decide this case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-1888 Page 2 

retaliation claims against both her union—the American Federation of State, County, 

and Municipal Employees, Local 1006—and union officials for inadequately 

investigating her allegations and declining to file grievances on her behalf. The district 

court granted the defendants’ motions for summary judgment. Because Tomas failed to 

present evidence that her employer or union treated her unfavorably based on her race, 

national origin, or protected activity, we affirm the judgment. 

 Tomas, whose job at the Department involved processing unemployment claims, 

bases her suit on two episodes. First, after Tomas suggested to a coworker that the 

Department denied an applicant benefits because he is white, Tomas’s manager orally 

counseled her not to comment on race in the workplace. (The collective bargaining 

agreement states explicitly that oral counseling is not disciplinary, and the record shows 

that counseling does not result in docked time, pay, or seniority.) Tomas filed a 

discrimination charge with the EEOC, alleging that a non-white employee was not 

disciplined for similar conduct. 

 The second episode occurred months later, when the Department promoted 

Tomas on a probationary basis to a similar job involving more complex claims. The 

Department, however, declined to offer her the position permanently. During the 

probationary period, Tomas’s supervisor was a white, Ukrainian woman. (According to 

Tomas, Ukrainians generally dislike Polish people.) The supervisor showed Tomas how 

to perform the new job and gave her training materials. But after only a few weeks, the 

Department returned her to her former position because she was not keeping up with 

her assignments. Meanwhile, the Department gave an African-American employee in 

another office an entire year to train for a promotion. Tomas filed another EEOC charge, 

alleging discrimination and retaliation in not being promoted. 

 Tomas also asked her union to file grievances against the Department on her 

behalf, but the union—after investigating—declined to do so. As part of the 

investigation, one union official interviewed several of Tomas’s coworkers of various 

races, though Tomas saw her interview only two African-American employees. The 

union’s grievance committee, which is separate from the local union branch, ultimately 

decided that Tomas’s most compelling would-be grievance lacked merit. 

Based on these events, Tomas sued the Department and her superiors (“state 

defendants”) as well as the union and the relevant union officials (“union defendants”). 

These parties, she asserted, discriminated against her because she is white and Polish 

and had previously filed a discrimination charge with the EEOC. See 42 U.S.C. §§ 1981, 
No. 18-1888 Page 3 

1983, 2000e-2(a), (c), 2000e-3(a). After discovery, all parties moved for summary 

judgment. 

The district court granted the defendants’ motions. Regarding Tomas’s 

discrimination claims, the court concluded that she failed to produce evidence from 

which a jury could find that she suffered an adverse employment action while she was 

meeting her employer’s legitimate expectations and that she was treated less favorably 

than similarly situated, non-white and non-Polish employees. See Formella v. Brennan, 

817 F.3d 503, 511 (7th Cir. 2016); Terry v. Gary Cmty Sch. Corp., 910 F.3d 1000, 1005–07 

(7th Cir. 2018). The episode of oral counseling, the court said, was not actionable 

discrimination because it was not an adverse employment action. The Department’s 

decision not to promote Tomas permanently, the court continued, also was not 

actionable because Tomas had not put forth evidence that she met the Department’s 

legitimate expectations during her probationary period or that the defendants treated 

her worse than similarly situated employees. Indeed, the court pointed out that, around 

the same time, the Department promoted two other white, Polish employees. Finally, 

regarding the claim against the union defendants, the court ruled that a jury could not 

conclude that these defendants discriminated or retaliated against Tomas because the 

record shows that they followed protocol when responding to her complaints. 

On appeal, Tomas first contests the district court’s conclusion that she did not 

put forth evidence that the state defendants discriminated against her. She argues that 

the record shows that the Department did not train her as well as non-white, non-Polish 

employees and that it prematurely ended her probationary period. 

We agree with the district court that the state defendants were entitled to 

summary judgment on these discrimination claims. Tomas failed to put forth evidence 

that, taken holistically and viewed in her favor, could establish a prima facie case of 

discrimination. First, oral counseling without a tangible consequence is not an adverse 

employment action. See Abrego v. Wilkie, 907 F.3d 1004, 1012–13 n.2 (7th Cir. 2018). 

Second, Tomas failed to show that she was meeting expectations while on probation; to 

the contrary, the record shows that she did not keep up with the work to the detriment 

of claimants seeking benefits. Third, she did not produce evidence from which it could 

be inferred that the state defendants gave her less training than they gave to non-white 

or non-Polish employees. Though she maintains that one African-American employee 

in another office received a year of training, there was no evidence of a common 

decision maker, which would be needed for a valid comparison. See Peirick v. Ind. Univ.-

Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 688 (7th Cir. 2007). Moreover, the 
No. 18-1888 Page 4 

Department cut short another African-American employee’s probationary period and 

promoted two other white, Polish employees. (Tomas suspects that the Department 

promoted other Polish employees to cover up their discriminatory conduct against her, 

but mere suspicion does not create a factual dispute, see Jordan v. Summers, 205 F.3d 337, 

345 (7th Cir. 2000).) 

The district court also properly entered summary judgment for the state 

defendants on Tomas’s retaliation claims. To stave off summary judgment, Tomas 

needed to produce evidence that the defendants took an adverse employment action 

against her for engaging in a protected activity. Burton v. Bd. of Regents of Univ. of Wis. 

Sys., 851 F.3d 690, 695 (7th Cir. 2017). But Tomas’s only proof is suspect timing—her 

probationary period started approximately four months after she filed her first EEOC 

charge—and that generally is insufficient by itself to support a retaliation claim. 

See Muhammad v. Caterpillar, Inc., 767 F.3d 694, 700–01 (7th Cir. 2014). Moreover, one 

cannot retaliate for conduct that he or she does not know about, see Emerson v. Dart, 

900 F.3d 469, 472 (7th Cir. 2018), and there is no evidence that Tomas’s supervisor knew 

about the EEOC charge until after the probationary period. 

Finally, we also agree with the district court’s entry of summary judgment for the 

union defendants. We apply the same standards to assess the claims under Title VII and 

§ 1981 against the union defendants as we did to assess the claims against the state 

defendants. See Green v. Am. Fed'n of Teachers/Ill. Fed'n of Teachers Local 604, 740 F.3d 

1104, 1106–07 (7th Cir. 2014) (union and state defendants); Humphries v. CBOCS W., Inc., 

474 F.3d 387, 403 (7th Cir. 2007) (Title VII and § 1981). The union officials responded to 

Tomas’s allegations and assisted her in the same manner as they do for other union 

members. Tomas emphasizes that she saw one of the union officials interview only two 

African-American coworkers during her investigation of Tomas’s case, but the record 

shows that the defendant talked to several more employees, some of whom were white. 

And ultimately, it was a grievance committee, apart from the local union, which 

decided not to file a grievance on her behalf. 

We have considered Tomas’s remaining arguments and none has merit. 

AFFIRMED