evidence that the suspension was warranted, Coco v. Elmwood Care, Inc. 128 F.3d
1177, 1179 -80 (7* Cir.1997)(stating that “it is no business of a court ina
discrimination case to decide whether an employer demands ‘too much’ of his
workers” as long as the employer presents enough evidence that the expectations
were bona fide). Based upon the evidence no reasonable finder of fact could

conclude that Defendants’ expectations were not bona-fide.

verse I nt Acti

The only actions taken by IDPA against Gizaw that would constitute an
adverse employment action would be the three day suspension she began serving on
April 29, 2002 and the five day suspension relating to the Esposito incident. See
Grube v. Lau Industries, Inc. 257 F.3d 723, 729 (7* Cir. 2001)(stating that “unfair
reprimands or negative performance evaluations, unaccompanied by some tangible
job consequence, do not constitute adverse employment actions.”). Therefore, the

reprimands against Gizaw were not adverse employment actions.

IV. Similarly Situated Empl

An employee is similarly situated if the employee “is one who is ‘directly
comparable to [the plaintiff] in all material respects.’” Rogers v. City of Chicago,
320 F.3d 748, 755 (7* Cir. 2003)(quoting Grayson v. O'Neill, 308 F.3d 808, 819

(7th Cir. 2002)). Gizaw has also failed to point to a similarly situated employee that

13


did not answer her phone. According to Malone Gizaw failed to complete
assignments in a timely manner that were due on F erbruary 26, 2002 and March 1,
2002.

On March 12, 2002 Gizaw had lunch with two co-workers. During lunch
Gizaw apparently had an argument with Darlene Esposito (‘Esposito”). Gizaw
claims that Esposito made an insulting comment about Gizaw’s “African place of
birth.” (SAF 297). Later in the afternoon around 2:45 P.M. Gizaw and Esposito left
their work area to discuss their argument earlier in the day. Defendants claim that
Gizaw did not ask her supervisor for permission to leave the work area and that her
break was not scheduled until 3:00 p.m. The argument began again and Gizaw
claims that Esposito pushed her into the wall injuring Gizaw’s back and neck.
Defendants claim that at approximately 2:50 p.m. Gizaw and Esposito re-entered the
work area yelling and hollering at each other. Jones told Malone about the incident
and Gizaw was taken to Malone’s office where she was asked to write a report about
the incident. Gizaw claims that Defendants refused to let her leave work to seek
medical attention. Defendants claim that Gizaw never asked to leave to seek
medical attention and that after work Gizaw did not seek any medical attention. A
referral of the incident between Gizaw and Esposito was sent to the Office of
Inspector General Bureau of Internal Affairs (“OIG”). On March 13, 2002 Gizaw
went to work and in the morning requested sick leave for the rest of the day which

Malone denied. On March 14, 2002 Gizaw took a sick day in order to see her



2004)(indicating that the Stone standard is the required standard for Title VI
retaliation claims); Rhodes v. Illinois Dept. of Transp, 359 F.3d 498, 508 (7 Cir.
2004)(indicating that the Stone standard is the required standard for Title VII
retaliation claims); Hilt-Dyson v, City of Chicago, 282 F.3d 456, 465 (7* Cir.

2002)(indicating that Stone introduced the new standard for indirect analysis).

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). In seeking a grant of summary judgment the moving party must
identify “those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the non-moving party’s case.”/d. at
325. Once the movant has met this burden, the non-moving party cannot simply rest
on the allegations in the pleadings, but, “by affidavits or as otherwise provided for in
[Rule 56], must set forth specific facts showing that there is a genuine issue for

trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a motion for


was another pre-disciplinary meeting. In attendance were Gizaw, her union
representative, Jones, and Malone. Defendants contend that Gizaw did not claim at
the meeting that she was being harassed because of her national origin.

On May 6, 2002 Gizaw filed a charge of discrimination with the Equal
Employment Opportunity Commission, alleging discrimination based on race, color,
and national origin and retaliation for complaining about the discrimination. On
May 10, 2002 IDPA’s EEO office approved a request to suspend both Gizaw and
Esposito seven days for the March 12, 2002 incident. On May 17, 2002 Gizaw filed
a grievance requesting that the suspension be rescinded. Defendants contend that
Gizaw did not indicate in the grievance that she was being discriminated against by
her supervisors. On May 30, 2002 Gizaw began serving her suspension. Defendants
claim that the IDPA EEO office received a letter from the EEOC on May 17, 2002
informing them of the pending charge brought by Gizaw. On May 29, 2002 Gizaw
filed an additional charge with the EEOC. Malone denied Gizaw’s grievance. On
August 1, 2002 at the third level of review of the grievance the IDPA decided to
reduce the suspension from seven to five days. On August 16, 2002 Gizaw filed the
instant action. On September 13, 2002 Gizaw filed an amended complaint alleging
national origin discrimination in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000eet seq. (Count I), retaliation in violation of
Title VII (Count Il), denial of equal protection as a class of one in violation of 42

U.S.C. § 1983 (“Section 1983") (Count III).



personal physician. On March 15, 2002 Gizaw took a vacation day.

On March 27, 2002 Jones counseled Gizaw in a meeting regarding her failure
to complete assignments in a timely manner. On March 27, 2002 Gizaw prepared a
letter which she sent to Kirian complaining about her treatment by her supervisors.
On March 27, 2002 Gizaw sent a memo to Jones, Carbine, Malone, and Lewis
indicating that the alleged harassment by her supervisors continued to occur. On
March 28, 2002 Jones issues Gizaw an oral reprimand for her failure to complete
assignments in a timely fashion. On April 3, 2002 Jones sent a memo to Gizaw
informing her that there would be a pre-disciplinary meeting to address Gizaw’s
continued inability to meet deadlines for her assignments. On April 4, 2002 Gizaw
was issued a written reprimand for failing to complete her assignments in a timely
fashion. On April 11, 2002 Gizaw filed a grievance alleging that the written
reprimand was unwarranted. Another pre-disciplinary meeting was held on April
15, 2002 to address Gizaw’s alleged inability to follow instructions and complete
assignments. Kirian, Carbine, and Gizaw were present at the meeting. Defendants
contend that although Gizaw complained about her supervisors, she did not claim
that the harassment was because of her national origin. On April 16, 2002 there was
another pre-disciplinary meeting. Gizaw, a union representative, the union
president, Jones, Lewis, and Malone were in attendance. On April 29, 2002 the
IDPA’s EEO office approved a request for a three day suspension for Gizaw. Gizaw
served the three day suspension beginning on April 29, 2002. On May 6, 2002 there


without resorting to unsubstantiated speculation. Therefore, we denied the motion
without prejudice in order to give the parties an opportunity to address the retaliation
claim under the proper law.

We note that in Defendant’s instant motion Defendants state that our
suggested standard for Title VII retaliation claims is merely one alternative standard
and Defendants indicate that they are willing to accommodate the court by
proceeding under the requested standard. We want to be clear that in allowing
Defendants to file another summary judgment motion on the retaliation claim we are
not endorsing Defendants’ position that the standard set forth inStone v. City of
Indianapolis Public Utils. Division, 281 F.3d 640, 644 (7* Cir. 2002) is merely an
optional standard for the indirect approach on a Title VII retaliation claim. It is the
only standard. There have been a few abberations sinceStone in the Seventh
Circuit, but the Seventh Circuit has made it clear that the standard inStone is the
only standard. See Rogers v. City of Chicago, 320 F.3d 748, 755 (7° Cir.
2003)(stating that the Seventh Circuit introduced a new analysis for Title VII
retaliation claims and that “Stone provides the governing rule in this jurisdiction. . .
.”); Mattson v. Caterpillar, Inc. 359 F.3d 885, 888 -89 (7* Cir. 2004)(indicating
that the Stone standard is the required standard for Title VII retaliation claims}
Williams v. Waste Management of Illinois 361 F.3d 1021, 1031 (7* Cir.
2004)(indicating that the Stone standard is the required standard for Title VII

retaliation claims); Wyninger v. New Venture Gear, Inc, 361 F.3d 965, 981 (7" Cir.


United States District Court, Northern District of [linois

Name of Assigned Judge _ i Sitting Judge if Other
or Magistrate Judge Samuel Der-Yeghiayan than "Aralgned Judge
CASE NUMBER 02 C 5862 DATE 5/10/2004
CASE Gizaw vs. IL Dept of Public Aid
’ TITLE
[In the following box (a) indicate the party Gling the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.

DOCKET ENTRY:

@ a Filed motion of [ use listing in “Motion” box above.)

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due, . Reply to answer brief due. .

(4) a Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(()) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :

” o Trial[set for/re-set for] on at

(8) oO [BenchyJury trial] [Hearing} held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OLocal Rule 41.1 CUFRCP41(a\(1) CFRCP41(a)2).

(10) [MM  [Otherdocketentry] For the reasons stated on the attached memorandum opinion, the Court hereby
grants defendants’ motion for summary judgment. All pending dates and motions are hereby stricken as
moot. Terminating case. Enter Memorandum Opinion.

gdp [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

of | Docketing to mail notices. Judge's staff

mailed Memorandum Opinion.
Mail AO 450 form. qeneg foweeia‘s'a
Copy to judge/magistrate judge.
courtroom C3: hives
MW6 deputy’s aa
initials
Date/time received in ;
central Clerk's Office mailing deputy initials

+ biapee



Pub. Utils. Div. Div., 281 F.3d 640, 644 (7* Cir. 2002)). Ifa plaintiff establishes a
prima facie case then the burden shifts to the defendant to produce a legitimate non-
discriminatory reason and if one is produced, the burden shifts back to the plaintiff

to show that the given reason is a pretext for retaliation. Jd.

L Protected Activity

Defendants argue that there is not sufficient evidence that Gizaw engaged in
protected activity. Gizaw argues in her answer to the instant motion that she
engaged in protected activity when: 1) she wrote a letter to Harlson in July of 2000,
2) she wrote a follow-up memo to Malone in August of 2000 allegedly addressing
“possible harassment,” 3) Jones told her staff that Gizaw stated that she was being
harassed, and 4) she challenged disciplinary actions taken against her with her union
representative. She claims that the subsequent harassment was at least in part in
retaliation for her complaints. It is not clear that Gizaw engaged in any protected
activity, however, we need not address this prong of theprima facie case because, as
indicated below, there are ample other reasons why summary judgment should be

granted on the retaliation claim.

IL. Work Performance
Gizaw has not pointed to sufficient evidence for a reasonable trier of fact to

conclude that Gizaw was meeting the legitimate expectations of Defendants. Gizaw

1]


summary judgment is not simply a “metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986).
Rather, a genuine issue 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 (1986); Insolia v. Philip Morris, Inc. 216 F.3d 596,
599 (7th Cir. 2000). The court must consider the record as a whole, in a light most
favorable to the non-moving party, and draw all reasonable inferences that favor the
non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co, 212
F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

A plaintiff can establish a prima facie case for a Title VII retaliation claim
under the direct or indirect method of proof. Haywood v. Lucent Techs., Inc. 323
F.3d 524, 531 (7th Cir. 2003). Gizaw has not presented evidence sufficient to
proceed under the direct method and will need to proceed under the indirect method
of proof. A plaintiff can establish a prima facie case under the indirect method by
showing that: 1) she engaged in protected activity, 2) her job performance met the
legitimate expectations of her employer, 3) her employer took a materially adverse
employment action against her, and 4) she was treated less favorably than similarly
situated employees that did not engage in the protected activity. Hilt-Dyson v. City
of Chicago, 282 F.3d 456, 465 (7 Cir. 2002)(citing Stone v. City of Indianapolis

10


On November 1, 2002 Gizaw received her yearly evaluation. Jones asserted
in the evaluation that Gizaw did not meet her job expectations for two out of eight
areas. On January 1, 2003 Gizaw was assigned to a new position as the full-time
front desk person. Gizaw contends that the front desk job is unusually difficult
because it involves contact with clients that are angry and upset. Gizaw contends
that she was assigned to the front desk position as a form of punishment because of
her national origin. On April 1, 2003 Jones changed jobs and Jerena Hope-
Williams, an African-American female, became supervisor.

Defendants previously filed a motion for summary judgment on all claims in
this action. On February 12, 2004 we granted the summary judgment motion in part.
We denied the motion for summary judgment on the Title VII retaliation claim
without prejudice. The reason that we denied the prior motion for summary
judgment on the retaliation claim is that both Defendants and Gizaw provided the
court with arguments relating to an antiquated standard for Title VII retaliation
claims. Since neither side had argued under the proper standard, it would not have
been proper for us to argue the positions for the parties. We denied the motion for
summary judgment without prejudice because, although the parties did not argue
under the proper standard, the summary judgment motion would have served a
meritorious purpose. The motion would have allowed the court to determine if there
are genuine issues of material fact and therefore avoid the possibility of the case

proceeding before the trier of fact at trial who would be unable to make a decision



Gizaw for fraudulently signing in as if on time, failing to complete an assignment in
a timely manner, misuse of work time, and failure to follow the instructions of her
supervisor. Clark informed Gizaw that she was being counseled for her failure to
complete the assignments and for the misuse of work time. Clark issued an oral
reprimand to Gizaw for failure to follow her supervisors’ instructions. Malone
upheld the counseling and the oral reprimand. Gizaw was given a positive evaluation
on her 2000 yearly evaluation. After Jones’ promotion in February of 2001 Clark
went on medical leave and Jones began supervising Gizaw. Defendants claim that
on February 22, 2001, Jones held a meeting for OCs, including Gizaw, and informed
the OCs that they had to notify their supervisor or their second line supervisor orally
or in writing if they needed to leave the work area. Gizaw contends that this policy
was routinely disregarded by employees and that employees often went to see
friends during work hours without permission and without being disciplined. Gizaw
was injured in a bus accident and was on medical leave from March 2, 2001 to June
11, 2001. On August 24, 2001, Jones sent Gizaw an e-mail commending her on a
job well done. Gizaw was given a positive evaluation by Jones, Lewis, and Clark on
Gizaw’s yearly evaluation for 2001 on September 28, 2001. Defendants claim that
on February 26, 2002 Gizaw turned the ringer off on her phone and was not
answering her phone which was part of her job. On that day Malone sent an e-mail
to all staff informing them that all phones must be answered. Malone claims that on

February 28, 2002, despite her warning, Gizaw continued to turn off her ringer and


was treated differently. Defendants correctly point out that the only similarly
situated employee in regards to the Esposito incident was Esposito and Esposito was
suspended for seven days which was the same as Gizaw’s original suspension before
it was reduced. Gizaw has failed to present evidence regarding an employee that is

directly comparable to Gizaw.

V. Pretext

Finally, even if Gizaw were able to establish aprima facie case, Defendants
have provided legitimate non-discriminatory reasons for the actions taken against
Gizaw and Gizaw has not provided sufficient evidence for a reasonable finder of fact
to find that Defendants’ given reasons are a pretext for retaliation. The Esposito
incident and Gizaw’s work deficiencies and disciplinary history are well documented
by Defendants. The main evidence presented by Gizaw in support of her pretext
burden are the statements allegedly made by her supervisors. Gizaw does not allege
more than one or two isolated comments by any particular supervisor. Such isolated
comments are not sufficient to establish pretext. There is no indication by Gizaw
that any of the comments were made in coordination with any work-related decision.
Therefore, we find that even if Gizaw could establish aprima facie case, she has not
presented sufficient evidence for a reasonable finder of fact to conclude that
Defendants’ reasons were a pretext in order to unlawfully retaliate against Gizaw..

In addition Gizaw has not shown that any of the Defendant supervisors had

14


United States in 1969 and became a citizen in 1985. On June 16, 1999, Gizaw began
working for Defendant Illinois Department of Public Aid (“IDPA”) as Office
Coordinator (“OC”) for the Division of Child Support and Enforcement (“DCSE”).
in Region IV. Defendant Robert Carbine (“Carbine”) was the Zone Manager for
DCSE’s Regions IV, V, and VI, until he retired on December 31, 2002. Carbine
reported to Charles Kirian (“Kirian”) who was the manager of DSCE’s Cook County
Field Operations. Carbine and Kirian are both Caucasian males. Gizaw’s first
supervisor at DCSE was Verill Clark (“Clark”) who is of African-American descent.
Defendant Sharon Markette-Malone (“Malone”) is of African-American descent. In
1999 Malone was promoted to regional manager over field operations in the DCSE.
Defendant Sharon Jones (“Jones”), is of African-American descent. She was
promoted to the Office Administrator of Region IV in February of 2001. Jones
apparently reported to Karen Lewis (“Lewis”) and Lewis reported to Malone.

On July 18, 2000, Lewis, Clark, Malone, and Thomas Harlson (“Harlson”)
who was Zone Manager, decided to place Gizaw on a work improvement plan
(“WIP”). Defendants claim that the purpose of the WIP was to assist Gizaw in
improving her productivity at work. On July 18, 2000 Gizaw wrote a letter to
Harlson complaining about the WIP and claiming that there was possible
harassment. Gizaw stated in the letter that Clark referred to her as “the European
with the red-hair.” After Gizaw complained about the WIP, the WIP was not

implemented. Between September 15, 2000 and October 20, 2000 Clark cited


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

AYNIE GIZAW,

DOCKETED

Plaintiff, MAY 1 1 2004

v. No. 02 C 5862
ILLINOIS DEPARTMENT OF PUBLIC
AID, CHUCK KIRIAN, in his individual
capacity, ROBERT CARBINE, in his
individual capacity, SHARON
MARKETTE-MALONE, in her
individual capacity, and SHARON
JONES, in her individual capacity,

Nw ee ee we Se

Defendants.

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the Court on Defendants Illinois Department of Public
Aid’s, Robert Carbine’s, Sharon Markette-Malone’s and Sharon Jones motion for
summary judgment on Plaintiff's Title VII retaliation claim. For the reasons stated

below we grant Defendants’ motion for summary judgment.

BACKGROUND

Plaintiff, Aynie Gizaw (“Gizaw”), was born in Ethiopia. She moved to the


admits pursuant to Local Rule 56.1 that on March 12, 2002 at around 2:45 P.M.
Gizaw left the work area with Esposito. (RSF 78). Gizaw admits pursuant to Local
Rule 56.1 that she did not tell her supervisor that she was leaving her work areas.
(RSF 79). Gizaw admits pursuant to Local Rule 56.1 that her work break was not
until 3:00 p.m. (RSF 80). Defendants have offered evidence indicating that Gizaw
and Esposito returned to the work area while engaging in a loud verbal argument.
Gizaw has not offered any evidence which would indicate otherwise. Gizaw admits
pursuant to Local Rule 56.1 that on December 21, 1999 Lewis issued a memo
indicating that all Region IV clerical staff must advise their supervisor if leaving the
work area. (RSF 21). Gizaw responds by providing her own unsubstantiated
opinion that in general personnel commonly left the work areas without disciplinary
consequences. (SAF 219). Gizaw does not provide any specific incidents or
indicate how she knows that the persons never suffered a disciplinary action or even
if the supervisors discovered that the persons that Gizaw had in mind left the work
area without permission. Gizaw also responds that the policy was changed to allow
OCs to go and communicate with other OCs. (RSF 21). Even were this so, Gizaw’s
response does not contend that an OC was allowed to leave the work area to conduct
conversations regarding personal matters. Gizaw also admits pursuant to Local Rule
56.1 that she attended a meeting on February 22, 2001 and understood that there was
a policy requiring her to notify her supervisor before leaving her work area. (RSF

44). In regards to the three day suspension, Defendants have also provided ample

12


authority to suspend her. Pursuant to Local Rule 56.1 Gizaw admits that individual
supervisors have no authority to impose discipline above an oral reprimand. See
RSF 68, 69 (evasive denials and no supporting citations for denials)). The Division
of Personnel and Administrative Services is solely responsible for such discipline.

(RSF 68). Therefore, we grant summary judgment on the Title VII retaliation claim.

CONCLUSION
Based on the foregoing analysis, we grant the motion for summary judgment

on the Title VII retaliation claim.

a)
Samuel ot tts L 2 o

United States District Court Judge

Dated: May 10, 2004

15