to decide whether he was discharged for a discriminatory reason.” Id. at 921. In this case, the
court similarly refuses to inquire into the efficacy of Trinity’s investigation. It is Baxter’s burden
to show that the GED scandal was not the “real” reason for her termination, and she has not done
this. Finally, there is no indication that falsifying a co-worker’s GED is insufficient grounds for
dismissal.

Since Baxter cannot show that an issue of material fact exists as to whether she was
subject to discriminatory or retaliatory discharge, these claims fail.
C. Baxter’s Claim under 42 US.C. § 1983

Section 1983 is intended to deter state actors, and private individuals in collaboration
with state officials, from using a “oadge of authority’ to deprive individuals of rights guaranteed
by the Constitution.” Fries v. Helspet, 146 F.3d 452, 457 (7th Cir. 1998). In order to establish a
cause of action under § 1983, a plainitt must show that she was deprived of a Constitutional

right (or a right guaranteed by other federal law), and that this deprivation resulted from “the

iL
defendant(s) acting under color of law.” Id. “Under color of law” means the same thing as “state
|

action.” Brentwood Acad, v. Tenn. Sccondary Sch. Ath. Ass’n, 531 U.S. 288, 295 (2001);
Thomas v. Pearl, 998 F.2d 447, 448 es Cir. 1993).

Baxter argues that Trinity’s seceptace of state funding makes it a state actor. See Pl’s.
Resp. to Def.’s Mot. for Summ. J. at (3. However, the mere receipt of state funds does not make
a private entity a state actor. Murph. Morgan, 855 F. Supp. 943, 948 (N.D. Ill. 1994) (citing

Blum v. Yaretsky, 457 U.S. 991, 9a se ho Rendle, Ka 457 US. 830,

840 (1982). Trinity’s mere receipt of fate funds, without more, thus does not make Trinity a
il

state actor. Therefore Baxter’s §1983 faim fails.

19


employee to a significantly lower-level position is also an adverse employment action. Dahm v.
Flynn, 60 F.3d 253, 257 (7th Cir. 1994). However, “[nJot everything that makes an employee
unhappy is an actionable adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.
1996). “[A] ‘bruised ego’ is not enough.” Ellerth, 524 U.S. at 761.

In this case, Baxter alleges no adverse employment action. In essence, Baxter alleges
only a “bruised ego.” Baxter’s lack of accreditation training is explainable; accreditation occurs
only once every three years, and Trinity was represented by another, more experienced QMRP
during this accreditation, See Pl.’s LR 56.1(b)(3) Stmt. of Material Facts, Ex. G Sokolowski dep.
at 24-25. In any case, Baxter alleges no economic or other harm from this lack of training.
Further, Baxter was not harmed by the decision not to hospitalize Eric Johnson. Baxter also
alleges no economic or other tangible loss from any heightened scrutiny or variation in
assignments. Finally, Baxter alleges a slew of other trivial matters, none of which constitute a
significant adverse change in her employment status. See Pl.’s Resp. to Def.’s Mot. for Summ. J.
at 9-10.

Baxter does allege that she was denied formal performance reviews that were tied to
increases in pay. Pl.’s LR 56.1(b)(3) Stmt. of Material Facts, Ex. A Baxter aff. { 13. Baxter,
however, has failed to develop this argument. See P}.’s Resp. to Def.’s Mot. for Summ. J. at 10
(outlining this argument in one sentence). The court therefore deems this argument to be waived.
See United States v.Jones, 224 F.3d 621, 626 (7th Cir. 2000) (“The lack of development of this
argument . . . ‘speaks to the paucity of the argument’”); see also United States v. Watson, 189
F.3d 496, 500 (7th Cir. 1999). Moreover, Baxter’s allegation does not rise to the level of a

tangible employment action. See Ellerth, 524 U.S. at 761 (a “tangible employment action”

13


Council”). Based on its prior experience with this accreditation process,’ Trinity decided that
only its degreed professionals and leadership staff would meet with the Council. Di Vittorio
stated that he did not want “those people” to speak with the Council, based on the type of
language “those people” used. Baxter asserts that by “those people,” Di Vittorio meant blacks.
Trinity indicates that Di Vittorio was referring to support staff, and notes that one of the members
of Trinity leadership staff was Lois Tate, an African-American. In addition, Baxter alleges that
not only was she not given an opportunity to participate in this accreditation process, she never
even received training in how to do so. White QMRPs received such training, she asserts. In
response, Trinity points out that this accreditation process occurs only once every three years, and
that during the time in question, QMRPs were represented by Sokolowski. Sokolowski was then
the “lead Q,” the most highly experienced QMRP at Trinity. Pl.’s LR 56.1(b)(3) Stmt. of
Material Facts, Ex. G Sokolowski dep. at 24-25.

Baxter also directs the court’s attention to various other incidents of alleged shoddy
treatment by Trinity employees throughout the course of her employment, which she asserts were
based on her race. Baxter focuses much of her attention on the manner in which she alleges she
was treated by her supervisor, Di Vittorio. Di Vittorio allegedly called Baxter “ignorant” four
times during a meeting regarding problems with Baxter’s billing procedures. He allegedly told
Baxter to stop wearing a hat while other white workers were allowed to wear hats. He asked
Baxter whether she could read, called her a liar, and threatened her future in his department. Di

Vittorio later sent Baxter a memo apologizing for calling her a liar and threatening her future.

‘ Trinity has received four consecutive awards for Accreditation with Distinction. See °
http://www.trinity-services.org.


I. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted.

IT IS SO ORDERED.

ENTER:

Llerbe R peg

CHARLES RONALD NORGLE, Judge

United States District Court

DATED: 4-2 O57

20


stated reason for her discharge, Baxter presents only conclusory allegations of racial animus in
response. Baxter thus fails to show a causal relation between her protected activity and her
discharge. See Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002)
(“If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action,
he is entitled to summary judgment”). Baxter has thus not successfully made out her prima facie
case of retaliatory discharge.

Even though Baxter has not established a prima facie case of discriminatory or retaliatory
discharge, the court, with an abundance of caution, will complete the burden-shifting analysis.
Assuming that Baxter has made out a prima facie case of discriminatory and discriminatory
discharge, the burden shifts to Trinity to show a “legitimate, non-discriminatory reason” for her
termination. See Stockett, 221 F.3d at 1001. To meet this burden, Trinity must “only produce
admissible evidence which would allow the trier of fact rationally to conclude that the
employment decision was not motivated by discriminatory animus.” Id, (quoting Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 257 (1981)). Trinity has met this burden by

presenting evidence that it fired Baxter because she helped Reeves procure a fraudulent GED.
Thus the burden shifts back to Baxter to show that this purported reason for her firing is
pretextual. See Stockett, 221 F.3d at 1001.

In order to establish that an employer’s stated reasons for terminating an employee are
pretextual, “a plaintiff must show more than that the employer’s decision was incorrect; the
plaintiff must also show that the employer lied about its proffered explanation.” Johnson v.
Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001). The plaintiff must either show direct

evidence that the reason given for the termination was a lie, or prove pretext indirectly by

17


B,. Baxter’s Claims under Title VII and 42 U.S.C. § 1981

1. Racially Hostile Work Environment

Under Title VIL, employers may not “discriminate 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... .” 42 U.S.C. § 2000e-2(a)(1). Courts have
interpreted this statute to prohibit employers from forcing employees to “work in a
discriminatory hostile or abusive environment.” Shanoff v. Il, Dept. of Human Serv., 258 F.3d
696, 701 (7th Cir. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Workplace
discrimination in the form of “intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment” violates Title VI. Harris, 510 U.S. at 21 (citation omitted) (citing Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). An employer is liable if either the
plaintiff's supervisor created the hostile work environment, Mason v. S. Ill. Univ., 233 F.3d

1036, 1043 (7th Cir. 2000) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)), or a co-worker created the hostile
work environment, and the employer was “negligent either in discovering or remedying the
harassment.” Mason, 233 F.3d at 1043; Parkins v. Civil Constructors of IJ., Inc,, 163 F.3d 1027,
1032 (7th Cir. 1998).

To recover for a hostile work environment, a plaintiff must show that she was: 1)
“subject to unwelcome harassment;” 2) that the harassment was based on her race (or “color,
religion, sex, or national origin,” 42 U.S.C. §2000e-2(a)(1)); 3) that the harassment was severe or

pervasive enough to “alter the conditions of the employee’s environment and create a hostile or


Vittorio was discussing this problem with another Trinity employee, Baxter volunteered that
Reeves had obtained her GED “at the same place that I got mine.” Jd, at 71. Baxter denies
saying this. Based on Reeves lack of basic reading skills, and Baxter’s alleged statement, Di
Vittorio began to investigate the matter. Di Vittorio examined Reeves’ and Baxter’s GEDs, and
determined that they were remarkably similar, based on his observation that the certifying
signatures and the GED format were identical. Id, Di Vittorio then referred the matter to Sharon
Parker, Director of Employee Services at Trinity, for a fuller investigation.

Baxter, now suspected of helping Reeves falsify her GED, received a letter from Parker,
dated December 1, 2002, which officially placed her on leave due to her suspected participation
in this scandal. Def.’s LR 56.1(a)(3) Stmt. of Material Facts, Ex. E Baxter dep. at 106-107, ex.
11. The letter also indicated that an investigation was pending, that Baxter had possibly violated
Illinois statutory law, and that Baxter was welcome to make a statement or meet with Parker. Id.
On the advice of counsel, Baxter chose not to cooperate into Trinity’s investigation.

The investigation determined that Reeves’ GED, purportedly from Cook County, dated
February 22, 2002, did not match the format of a legitimate Cook County GED, dated March 27,
2002, held by another Trinity employee. Reeves’ GED did, however, match the format of
Baxter’s Cook County GED, dated March 10, 1981. The investigation also determined that
Reeves’ and Baxter’s GEDs were virtually identical. See Def.’s LR 56.1(a)(3) Stmt. of Material
Facts, 2. The format was the same, the certifying signatures were the same, and the upper state
seal was placed identically in both GEDs. Id. The investigation ultimately culminated in an
admission by Reeves that she had indeed falsified her GED. Reeves, however, asserts that she

did not implicate Baxter in this scheme; in fact, Reeves asserts that she implicated a cousin who


Def.’s LR 56.1(a)(3) Stmt. of Material Facts, Ex. E Baxter dep., ex. 20. Di Vittorio allegedly
ordered Baxter to perform the low-level task of taking clients to the doctor and dentist more often
than other QMRP’s. Def.’s LR 56.1(a)(3) Stmt. of Material Facts, Ex, E Baxter dep. at 181-82.
Trinity, however, asserts that Baxter volunteered for such duties, and notes that Baxter’s
willingness to undertake these duties was admirable. Def.’s LR 56.1(a)(3) Stmt. of Material
Facts, Ex. G Di Vittorio aff 35. Baxter also alleges that Di Vittorio scrutinized her work more
closely than other white QMRP” 's, and yl — at black workers. Finally, Baxter
asserts that her workload was higher than white QMRPs, that she was given lower-level duties
than other QMRPs, and that she was denied formal performance reviews that were tied to
increases in pay.

Baxter also alleges instances of shoddy treatment by a Trinity nurse, Teresa Viebach, and
another Trinity employee, Debbie Stichman. Stichman allegedly scrutinized company loans
made to African American employees much more carefully than she scrutinized company loans
made to white employees. Trinity, however, asserts that it was their policy to give these loans to
any employee who needed one, as long as that employee had not received such a loan in the past
ninety days. Stichman also allegedly removed leave paperwork from Baxter’s mailbox, and
filled it out improperly. Viebach allegedly instructed her niece to be rude to Baxter.

The events leading to Baxter’s termination from Trinity began in November 2002.
Viebach indicated to Di Vittorio that one of Trinity’s employees, Margaret Reeves, seemed to
lack basic reading skills. Pl,’s LR 56.1(b)(3) Stmt. of Material Facts, Ex. D Di Vittorio dep. at
67-69. Reeves claimed to hold a GED (a High-School Equivalency Certificate), and Viebach and

Di Vittorio expected that someone with a GED would have basic reading skills. Id, Later, as Di


showing one of the following: “(1) Defendant’s explanation of Plaintiff's discharge had no basis
in fact, or (2) the explanation was not the ‘real’ reason, or (3). . . the reason stated was
insufficient to warrant the [termination].” Id.; see also Bahl, 115 F.3d at 1291; Lenoir v. Roll
Coaster, Inc., 13 F.3d 1130, 1133 (7th Cir. 1994).

Baxter has presented no direct evidence that Trinity’s stated reason for her termination
was pretext, or a lie. Baxter merely alleges that Trinity never offered a clear reason for firing her,
that Di Vittorio wanted Baxter fired, that the timing of the events is suspect, and that Reeves was
treated differently than Baxter. Pl.’s Resp. to Def’s. Mot. for Summ. J., at 2-8. Even if these
allegations were true, these events would not be direct evidence that Trinity is lying about its
reasons for terminating Baxter. See Bahl, 115 F.3d at 1290 n.6 (direct evidence proves a fact
without the need for “inference or presumption”).

Since Baxter has presented no direct evidence of pretext, she must establish pretext by
making one of the three above showings. This Baxter cannot do, First, Trinity’s explanation for
firing Baxter clearly has a basis in fact. Reeves admitted her GED was false, and Baxter’s and
Reeves’ GEDs were nearly identical. Second, Baxter not shown that the GED scandal was not
the “real” reason she was fired. At most, Baxter has shown that Trinity conducted an imperfect
investigation into the matter. This does not show that Trinity’s explanation for Baxter’s firing
was pretextual. See Logan v. Caterpillar, Inc,, 246 F.3d 912, 921 (7th Cir. 2001). In Caterpillar,
the plaintiff was fired after Caterpillar conducted an arguably imperfect investigation into
whether the plaintiff had violated company rules, and committed crimes. Id, at 920-21. In
tesponse to Logan’s claim that the stated reasons for his termination were pretextual, the Seventh

Circuit indicated that “our task is not to second guess Caterpillar’s investigative process, but only

18


raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See
Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999).

In deciding a motion for summary judgment, the court can only consider evidence that
would be admissible at trial under the Federal Rules of Evidence. See Bombard vy. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all
teasonable inferences drawn therefrom in the light most favorable to the non-moving party. See
Fed. R. Civ. P. 56(c); see also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). “In the
light most favorable” simply means that summary judgment is not appropriate if the court must

make “a choice of inferences.” See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see
also First Nat’! Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss

{America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences

from facts is a jury function. See Anderson v. Liberty Lobby, Inc,, 477 U.S. 242, 255 (1986).

When the defendant moves for summary judgment, the court must view the record and all

inferences in a light most favorable to the plaintiff. Ameritech Benefit Plan Comm. v.

Communication Workers of Am,, 220 F.3d 814, 821 (7th Cir. 2000). However, the inferences

construed in the plaintiff's favor must be drawn from specific facts identified in the record that
support the plaintiff's position. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922-23 (7th Cir.
1994). Under this standard, “[cJonclusory allegations alone cannot defeat a motion for summary

judgment.” Thomas v. Christ Hospital and Medical Center, 328 F.3d, 890, 892-93 (7th Cir.
2003) (citing Lujan v. Nat’! Wildlife Federation, 497 U.S. 871, 888-89 (1990)).


. *
‘Minute Order Form (06°97)

mye, United States District Court, Northern District of inois

Name of Assigned Jud; Sitting Judge if Oth
ge Magtrate Judge Charles R. Norgle than Assigned Judge
CASE NUMBER 02 C 9350 DATE 9/3/2004
CASE Baxter vs. Trinity Services, Inc.
TITLE
{In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
Defendant’s Motion for Summary Judgment
DOCKET ENTRY:
q) D Filed motion of [ use listing in “Motion” box above.}
(2) o Brief in support of motion due
@) ia} Answer brief to motion due . Reply to answer brief due. .
(4) ial Ruling/Hearing on set for at
(5) 0 Status hearing[held/continued to} [set for/re-set for) on set for at
(6) Qa Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(”) o Trial[set for/re-set for} on at
(8) a (Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
OOFRCP4(m) CLocal Rule 41.1 CFRCP41(a\(1) (FRCP41(a){2).
go), @ (Other docket entry] Defendant’s Motion for Summary Judgment [19-1] is granted. See attached.
Jood ee or 4/28/04 2 heden,.

The clerk shall enter judgment pursuant to Fed. R. Civ. Pro. 58.

Male R Reg

a) ff [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.

X | Docketing to mail notices.
OX | Mail A0 450 form. Lng
Copy to judge/magistrate judge. ; 2's
couegs © Hdl. 4
deputy's .. Cen 002

initials

hey if Date/time received in
central Clerk’s Office



prevail on this claim, she must show, inter alia, that the conduct she complains of is “severe” or
“pervasive.” See Faragher, 524 U.S. at 787; Cerros, 288 F.3d at 1045; Mason, 233 F.3d at 1043.
By way of example, the court points to two incidents of conduct clearly severe or pervasive
enough to establish a legitimately racially hostile working environment. In Cerros, the Hispanic
plaintiff was referred to as “brown boy,’ ‘spic,’ [and} ‘wetback.”” Cerros, 288 F.3d at 1042. In
addition, “racist graffiti was painted on the bathroom walls. It included racial remarks and
symbols such as ‘spic,’ “Go Back to Mexico,’ ‘Tony Cerros is a Spic,’ ‘KKK,’ and ‘White
Power.” Id, Finally, the “tires on Cerros* a were slashed.” Jd. In Ferguson, the African
American plaintiff was forced to endure graffiti stating “death to all niggers,” “Fuck Niggers,” a
Ku Klux Klan poster hung in a work trailer, and “‘the display of a hangman’s noose.” Ferguson,
334 F.3d at 658. The conduct Baxter complains of are at worst sporadic incidents of
insensitivity, and simply do not rise to the required level of severity or pervasiveness.

Since Baxter cannot show that an issue of material fact exists as to whether the conduct
she complains of is directly tied to her race, or whether this conduct is sufficiently severe or

pervasive, her claim of a racially hostile work environment fails.°

5 Trinity asserts that some of Baxter’s claims are time-barred. See Def.’s Mem. of Law
in Supp. of Its Mot. for Summ. J. at 6-7. Under Title VI, a plaintiff has 300 days from the
occurrence of an allegedly discriminatory act in which to file a claim. Hardin v. §.C. Johnson &
Sons, Inc., 167 F.3d 340, 344 (7th Cir. 1999). However, under the “continuing violation
doctrine,” if any act constituting part of the claim “occurs within the filing period, the entire time
period of the hostile environment may be considered by a court for the purposes of determining
liability.” AMTRAK v. Morgan, 536 U.S. 101, 117 (2002). The court therefore has considered
all of Baxter’s claims as part of the same allegedly hostile work environment.

11


abusive working environment;” 4) and that “there is a basis for employer liability.” Mason, 233
F.3d at 1043. A plaintiff must demonstrate that the workplace was both “subjectively and
objectively offensive.” Cerros v. Stee Tech., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002) (quoting
Faragher, 524 U.S. at 787); see also Shanoff, 258 F.3d at 704. Not every instance of rude or
insulting behavior, however, creates a statutory violation. See Cerros, 288 F.3d at 1045-46.
Conduct that is “merely offensive” does not rise to the level of creating a hostile work
environment. Id, at 1046 (citing Harris, 510 U.S. at 22). In determining whether a hostile work
environment exists, courts will consider the frequency of the offensive conduct, its severity,
whether the conduct was threatening or merely offensive, and whether the conduct “unreasonably
interferes with an employee’s work performance.” Quantock v. Shared Mktg. Serv., Inc., 312

F.3d 899, 904 (7th Cir. 2002); see also Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th

Cir. 1998).

Baxter’s claim that she was subject to a racially hostile workplace fails for two reasons.
First, she cannot show that the conduct she complains of is directly based on her race. See
Shanoff, 258 F.3d at 706 (remarks by plaintiffs supervisor were a clear indication of “direct,
unambiguous hostility to [plaintiff] because of his race and religion . . .”). There is no indication
that Peterson’s decision not to hospitalize Eric Johnson was based on Baxter’s race, that
Rodgers’ and Sokolowski’s alleged rudeness to Baxter was based on race, that Trinity’s decision
not to allow Baxter to participate in accreditation was based on race, or that any alleged hostility
on the part of Di Vittorio or any other Trinity employee was based on Baxter’s race.

Second, even if Baxter could show that these events were based on her race, these

incidents do not rise to the level of an actionable racially hostile workplace. For Baxter to

10


formerly worked for the Cook County Board of Education. PJ.’s LR 56.1(b)(3) Stmt. of Material
Facts, Ex. C Decl. of Margaret Reeves, ff 6-7. In addition, Reeves denies Baxter participated in
this scheme. Id, at | 8. Based on her cooperation in the investigation, Reeves was given the
option of resigning her position with favorable references or being terminated; Reeves chose the
former. Parker then sent Baxter a letter, dated December 24, 2002, stating: “Based on the
evidence of the investigation the decision has been made to discontinue your employment with
Trinity Services effective 12/20/2002.” Def.’s LR 56.1(a)(3) Stmt. of Material Facts, Ex. E
Baxter dep., ex. 12.
B. Procedural Framework

Baxter filed a formal racial discrimination charge with the EEOC on September 16, 2002.
The EEOC dismissed, and issued Baxter a “Tight to sue” letter on September 30 of that year.
Baxter then filed a complaint of racial discrimination against Trinity with the United States
District Court on December 23, 2002. This complaint was dismissed, but Baxter was given
twenty-one days within which to refile a more definite statement. See Minute Order of February
28, 2003. Baxter’s “Statement of Clarity” followed. See P1.’s Stmt. of Clarity. In response,
Trinity filed a motion for summary judgment, which is now fully briefed and before the court.

Il. Discussion

A. Standard for Summary Judgment

Summary judgment is permissible when “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). The

nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see

Corfield v, Consolidated High Sch, Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that


room with an ice-pick. Johnson also indicated that he had dreams of killing Baxter. Concerned,
Baxter immediately telephoned Peterson and informed her of Johnson’s behavior, and
recommended that Johnson be hospitalized. Based on her history with Johnson, Peterson
decided not to hospitalize him, explaining to Baxter that he would most likely calm down.
Johnson did calm down, and remained calm for the rest of the day. Baxter asserts that Peterson’s
decision not to hospitalize Johnson was based on her race, noting that in an earlier incident in
which Johnson became similarly agitated, Peterson accepted the recommendation of a white
QMRP to hospitalize Johnson. In that incident, however, Johnson had been depressed for a long
period of time, was threatening suicide, and would not “de-escalate.”

Two separate incidents occurred during trips to national QMRP conferences. During
August 2001, Baxter shared a hotel room with Trinity employees Laura Rodgers and Judith
Sokolowski (both white) at a QMRP conference in Nashville, Tennessee. Baxter alleges that
Rodgers ordered Baxter to sleep on a cot, while Rodgers and Sokolowski slept on beds, and that
Rodgers and Sokolowski used all the counter space in the bathroom, as well as all the towels. In
August of 2002, these three women again shared a hotel room, this time at a QMRP conference
in Salt Lake City, Utah. Baxter alleges that Rodgers and Sokolowski brought a male QMRP into
the hotel room while Baxter was in the shower, intending to embarrass Baxter because of her
race. Upon Baxter’s request, Rodgers and Sokolowski escorted the male QMRP out of the room.

During September 2001, Trinity was involved in an accreditation process. Every three

years, Trinity undergoes accreditation with the Council on Quality and Leadership (‘the


constitutes a “significant change in employment status. . . .” (emphasis added)),

Since Baxter cannot show that an issue of material fact exists as to whether she was
subject to a “tangible employment action,” her claim of disparate terms and conditions based on
race fails.

3. Discriminatory and Retaliatory Discharge

Title VII makes it unlawful for an employer to “discharge any individual . . . because of
such individual’s race, color, religion, sex, or national origin... .” 42 U.S.C. § 2000e-2(a)(1).
Title VI also prohibits employers from retaliating against an employee who has “opposed any
practice made an unlawful employment practice by this title, or because he has made a charge . . .
under this title.” 42 U.S.C. § 2000e-3(a); see also Little v. IN. Dep't of Revenue, 369 F.3d 1007,
1011 (7th Cir. 2004). In order to succeed on either of these claims, a discharged plaintiff can
prove her employer’s discriminatory intent by direct or indirect evidence. Id,; see also Bahl v.
Royal Indem. Co., 115 F.3d 1283, 1290 (7th Cir. 1997).

Direct evidence of discriminatory intent is evidence that shows the employer’s intent
without the need to rely on “inference or presumption.” Bahl, 115 F.3d at 1290 n.6. Direct
evidence is evidence that “speak[s] directly to the issue of discriminatory intent, [and] also
relate[s) to the specific employment decision in question.” Oates v, Discovery Zone, 116 F.3d
1161, 1170 (7th Cir. 1997). It is likely the case that the only real direct evidence of
discriminatory intent is an admission by the employer. Logan v. Kautex Textron N, Am,, 259
F.3d 635, 638 (7th Cir. 2001); Troupe v. May Dep’t Store; 20 F.3d 734, 736 (7th Cir. 1994).

To proceed by means of by indirect evidence, a plaintiff must use the familiar McDonnell

Douglass burden-shifting method. See McDonnel! Douglass Corp. v. Green, 411 U.S. 792, 802-

4


performance, including problems with her billing and treatment procedures. Def.’s LR 56.1(a)(3)
Stmt. of Material Facts, Ex. E Baxter dep., ex. 15. She failed to attend training sessions during a
work trip, and a team-building dinner after the trip was completed. She improperly filled out
Social Security forms because she failed to read the instructions, Baxter must also show an

adverse employment action. Little, 369 F.3d at 1011. It is undisputed that Baxter was fired.

Finally, Baxter must show that a similarly situated employee of a different race was treated more
favorably. Id. Baxter argues that Reeves, who was also implicated in the GED scandal, was
treated more favorably than Baxter, as Reeves was allowed to resign with favorable references,
and other Caucasian employees were not placed on leave. P.’s Resp. to Def.’s Mot. for Summ.
J., at 8-9. However, this part of Baxter’s prima facie case fails, as Reeves is, like Baxter, African
American, and no other employee was implicated in this scandal. Because Baxter cannot show
that she was performing her job satisfactorily, or that a similarly situated employee of a different
Tace was treated more favorably, Baxter has not successfully made out her prima facie case of
discriminatory discharge.

To establish a prima facie case for retaliatory discharge, Baxter must first show that she

engaged in some form of expression protected by Title VII. Kautex, 259 F.3d at 640. It is

undisputed that Baxter filed charges of racial discrimination with the EEOC and the federal
district court. These are protected activities under Title VII. See 42 U.S.C. § 2000e-3(a). Baxter
must also show that she suffered an adverse employment action. Kautex, 259 F.3d at 640. It is
undisputed that Baxter was discharged. Finally, Baxter must show a causal relation between her
protected activity and her discharge. Id, Trinity’s clearly stated reason for Baxter’s discharge,

however, is Baxter’s participation in the GED scandal. Rather than attempt to refute Trinity’s

16


Di Vittorio, Director of CILA-East, and Diane Peterson, Associate Director of CILA-East.”
Baxter’s tenure at Trinity was marked by deficiencies in her job performance, including improper
billing and treatment procedures, failure to attend training sessions, failure to properly fill out
Social Security forms, and her alleged involvement in the falsification of another Trinity
employee’s High-School Equivalency Certificate.

After approximately two years, Trinity fired Baxter. Baxter filed suit under Title VII of
the Civil Rights Act of 1964 and 42 U.S.C. § 1981, alleging that Trinity subjected her to a
tacially hostile work environment, disparate terms and conditions of employment based on her
race, and that her discharge by Trinity was both discriminatory and retaliatory. Baxter also filed
suit under 42 U.S.C. § 1983, alleging that Trinity, acting as a state actor, violated her civil rights.
In response, Trinity asserts that Baxter alleges no instances of hostility or discrimination that can
be directly attributed to her race, that it had a valid, non-discriminatory reason for discharging
Baxter, and that it is not liable under § 1983, as it is not a state actor.

To support her claims, Baxter first directs the court’s attention to the following series of
events. In April 2001, Peterson instructed Baxter to deliver a money allowance to Eric Johnson,
a bipolar client of Trinity, who lived in one of Trinity’s group homes. Because the allowance

was a day late, Johnson became upset, and began swearing and punching holes in the wall of his

? ACILA is a “Community-Integrated Living Arrangement.” See http://www.trinity-
services.org/prog_serv/cila.htm. These group homes are integrated into local communities, and
staffed with counselors who support Trinity’s clients. Id,

3 In the Seventh Circuit, it is settled law that “the methods and order of proof. applicable
to a claim of disparate treatment under Title VII are equally availing under § 1981.” Randle v.
LaSalle Telecomm, Inc., 876 F.2d 563, 568 (7th Cir. 1989); see also Ferguson v, Pipefitte:

Ass’n Local Union 597, 334 F.3d 656, 658 (7th Cir. 2003); Johnson v. City of Fort Wayne, 91
F.3d 922, 940 (7th Cir. 1996). The court will therefore analyze these claims jointly.

2


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

EASTERN DIVISION

DAISY BAXTER, )

Plaintiff, } Case No.: 02 C 9350

v. } Honorable Charles R. Norgle

TRINITY SERVICES, INC., ;

Defendant. } Y,

5, “gy
OPINION AND ORDER "by, ®
o

CHARLES R. NORGLE, District Judge.

Before the court is Defendant Trinity Services, Inc.’s Motion for Summary Judgment.

For the following reasons, Defendant’s Motion for Summary Judgment is granted.
I. BACKGROUND"

Plaintiff Daisy Baxter, an African-American female, began her employment with
Defendant Trinity Services (“Trinity”) in November 2000. Trinity is a non-profit organization
dedicated to serving individuals with mental retardation and mental illness. Baxter worked as a
Qualified Mental Retardation Professional (“QMRP”) for the duration of her employment with
Trinity. As a QMRP, Baxter’s duties consisted of, inter alia, monitoring the treatment of
Trinity’s clients, developing a personal relationship with the clients and their legal guardians, and

coordinating staffing. During her employment with Trinity, Baxter’s supervisors were Anthony

' The court takes the undisputed facts from the parties’ Local Rule 56.1 Statements, and
notes disputed facts within the text.

\ 1


2. Disparate Terms and Conditions of Employment Due to Racial Discrimination

Under Title VI, an employer may not “limit, segregate, or classify his employees . . . in
any way which would . . . adversely affect [an employee’s} status as an employee, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a){2). This
statute has been interpreted by courts to forbid employers from discriminating in terms of, inter
alia, “terms and conditions of employment.” Hunt v. City of Markham, 219 F.3d 649, 654 (7th
Cir. 2000). In order to recover under this statute, a plaintiff must show that she was subject to an
“adverse employment action.” See id, at 653-54. However, this statute is “not intended to reach
every bigoted act or gesture that a worker might encounter in a workplace.” Id, at 653 (citing
Faragher, 524 U.S. at 787-88; Harris, 510 U.S. at 21). To be successful under this statute, a

plaintiff must allege some tangible loss. See Fortier v. Ameritech Mobile Comm.. Inc, 161 F.3d

1106, 1111 n.7 (7th Cir. 1998).

Typically, an adverse, or tangible, employment action under this statute will “inflict[]
direct economic harm” on the plaintiff. Ellerth, 524 U.S. at 762. Examples of typical adverse
employment actions are “firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Id, at 761; see also Crady
y. Liberty Nat. Bank and Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993). Some adverse
employment actions may not involve direct economic harm, but do involve some loss to the
employee, such as “reduc[ing] the employee’s career prospects,” or creating some sort of
“hardship” for the employee. Tart v. Ill, Power Co., 366 F.3d 461, 475 (7th Cir. 2004). For
instance, taking an office, telephone, and business cards from an employee is an adverse

employment action. Collins v. Illinois, 830 F.2d 692, 704 (7th Cir. 1987). Transferring an

12


04 (1973). Under this method, a plaintiff must first establish a prima facie case. A prima facie
case of discrimination must show: 1) that the plaintiff was “within a protected class;” 2) that the
plaintiff “was performing to the employer's legitimate expectations;” 3) that she “suffered an
adverse employment action;” and 4) that the employer “treated similarly situated employees of a
different race more favorably.” Kautex, 259 F.3d at 639; see also Little, 369 F.3d at 1011.
Likewise, a prima facie case of retaliation must show: 1) that the plaintiff “engaged in statutorily
protected expression;” 2) that she “suffered an adverse employment action;” and 3) that there is a

“causal link between the two.” Kautex, 259 F.3d at 640; see also Bell v. EPA, 232 F.3d 546, 554

(7th Cir. 2000). If the plaintiff presents a prima facie case, there is a presumption of
discrimination or retaliation, and the burden shifts to the employer to show a “legitimate,
nondiscriminatory reason” for the firing. Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997,
1001 (7th Cir. 2000); see also Little, 369 F.3d at 1011. Ifthe employer can show a legitimate
reason for the firing, the burden shifts back to the plaintiff to show that the proffered reason was
pretextual. Stockett, 221 F.3d at 1001; see also Gordon v. United Airlines, Inc., 246 F.3d 878,
886 (7th Cir. 2001).

Baxter has presented no direct evidence (an admission by Trinity) of either discriminatory
or retaliatory firing. She must therefore use the burden shifting method. To establish a prima
facie case of discriminatory discharge, Baxter must first show that she is a member of a protected
class. Little, 369 F.3d at 1011. It is undisputed that Baxter is African American. Baxter must
next show that she was performing her job satisfactorily. Id, It is not clear that Baxter can make
this showing. Baxter improperly billed for client services, causing another Trinity employee’s

billings to be deleted, She received a memo from Di Vittorio outlining deficiencies in her job

15