IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CAROLYN BOTTOMS, )

) Case No. 03 C 1881

Plaintiff, )

) Judge Virginia M. Kendall

v. )

)

ILLINOIS DEPARTMENT OF HUMAN ) 

SERVICES, and CHICAGO-READ )

MENTAL HEALTH CENTER, )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

Carolyn Bottoms(“Bottoms” or “Plaintiff”) is a black female who was employed for nearly

nine years by the Illinois Department of Human Services (“IDHS”), most recently at its ChicagoRead Mental Health Center facility (“Chicago-Read,” together with IDHS, “Defendants”). After a

series of workplace incidentsinvolvingBottoms, her supervisors ordered her to submit to a “fitnessfor-duty” examination on June 4, 1999. On November 16, 1999, Bottoms was discharged for her

repeated failure to attend that examination. Bottoms brings this action under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., contending that: she suffered an adverse

employment action – termination – on account of her race; and Defendants’ reason for terminating

her was to retaliate against her for having previously opposed Defendants’ alleged discriminatory

practices. 

Defendants now move for summary judgment on Bottoms’s Title VII claim. Defendants

argue that: (1) Bottoms has presented no direct evidence of either race discrimination or retaliation;

(2) Bottoms cannot establish a prima facie case of race discrimination or retaliation because she has
 The facts are presented in the parties’ statements pursuant to Local Rule 56.1. Defendants’ Statement of 1

Undisputed Material Facts is cited as “Def.’s 56.1 ¶ __”; Plaintiff’s Response is cited as “Pltf.’s Response ¶ __”;

Plaintiff’s Statement of Additional Facts is cited as “Pltf.’s 56.1(b)(3)(C) ¶ __”; and Defendants’ Response is cited as

“Def.’s Response ¶ __”.

 Plaintiff has also filed untimely supplemental responses to Defendants’ motion for summary judgment. On

November 16, 2006, this Court granted Plaintiff, proceeding pro se, leave to file supplemental responses by December

11, 2006, which deadline was subsequently extended three times at Plaintiff’s request. The third extension allowed

Plaintiff until February 6, 2007 to file supplemental responses. Without seeking a fourth extension of time, Plaintiff filed

her supplemental responses on February 12, 2007. Nevertheless, the Court has taken Bottoms’s supplemental responses

under advisement in coming to its decision on Defendants’ motion for summary judgment. 

 

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not identified any similarly-situated non-black employees who were treated more favorably; and (3)

even if Bottoms could establish a prima facie case of race discrimination or retaliation, there were

legitimate, non-discriminatory reasons for her termination.

This Court finds that Plaintiff has not presented any direct evidence of either race

discrimination or retaliation and that Plaintiff has not demonstrated the existence of a genuine issue

of material fact bearing on whether Defendants treated any similarly-situated non-black employees

more favorably than Plaintiff or whether Defendants’ articulated reasons for ordering Bottoms to

submit to a fitness-for-duty examination and for discharging her were a pretext for discrimination

or retaliation. Accordingly, Defendants’ Motion for Summary Judgment is granted. 

STATEMENT OF FACTS

Bottoms, a black female, was employed by Chicago-Read for nearly nine years before she

was terminated on November 16, 1999. (Pltf.’s 56.1(b)(3)(C) ¶ 1; Def.’s 56.1 ¶ 5.) From October 1

1998 until her termination, Bottoms was an Office Assistant in the General Stores division of

Chicago-Read, where her responsibilities included office-related duties such as typing, working with
Though it is not clear from the parties’ Rule 56.1 statements, Bottoms testified during her deposition that she 2

worked as an Office Assistant in various departments of both Chicago-Read and another IDHS facility, the Illinois State

Psychiatric Institute, from 1991 until she began working in General Stores in 1998. (Bottoms Dep., pp. 12-16.) 

 In her brief in opposition to Defendants’ motion for summary judgment, Bottoms urges this Court to find that 3

the order to report for a fitness-for-duty examination constitutes retaliatory discipline in violation of Title VII. Judge

Plunkett specifically held that this case is limited to Bottoms’s Title VII claims for discriminatory discharge due to race

or retaliation. Bottoms v. Illinois Dep’t of Human Services, No. 03 C 1881, 2004 WL 1403811 *6-7 (N.D. Ill. June 22,

2004) (“The conduct at issue [in Bottoms I] occurred between August 1998 and June 14, 1999. Judge Conlon did not

specifically address Bottoms’s claims relating to her discharge and could not have addressed them because Bottoms had

not yet completed the administrative process. . . . Defendants’ motion to dismiss Bottoms’s Title VII claims for

discrimination and retaliation that occurred after July 20, 1999 is denied.”). Accordingly, this Court will not address

Bottoms’s claims based upon Defendants’ June 3, 1999 order to submit to a fitness-for-duty examination.

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computers and answering the phone. (Def.’s 56.1 ¶ 6.) Plaintiff’s supervisor in General Stores was 2

Marilyn Targos (“Targos”), who is white. (Pltf.’s 56.1(b)(3)(C) ¶¶ 2, 6.)

Bottoms previously sued Defendants in 2000, alleging violations of Title VII and 42 U.S.C.

§§ 1981, 1983. (Def.’s 56.1 ¶ 11.); see also, Bottoms v. Illinois Dep’t of Human Services, 174 F.

Supp.2d 758 (N.D. Ill. 2001) (“Bottoms I”). Before filing Bottoms I, Bottoms filed an Equal

Employment Opportunity Commission charge against defendants, dated June 14, 1999, alleging

discrimination and retaliation in the form of constant harassment, placement on administrative leave

in May 1999 and the order to report for a fitness-for-duty examination on June 4, 1999. Bottoms 3

also discussed her problems concerning Chicago-Read management with the statewide Equal

Employment Opportunity officer during work hours. (Pltf.’s 56.1(b)(3)(C) ¶ 19).

The Relationship Between Bottoms and Targos.

The relationship between Bottoms and Targos was strained from its inception. Upon the

commencement of Bottoms’s employment in General Stores, Targos “took note” of Bottoms and

began logging the times Bottoms was absent from her work area without first advising anyone as to

where she would be even though Targos did not log the times other employees briefly left their work

stations without telling anyone. (Pltf.’s 56.1(b)(3)(C) ¶ 10.) Within the first two weeks of her tenure
Targos states in her affidavit in support of Defendants’ motion for summary judgment that Bottoms “routinely 4

refused or simply failed to perform essential duties such as answering the telephone, filing, sorting mail, delivering

paperwork and time-sheets, and being courteous to those that she came in contact with both in person and on the

telephone.” Def.’s Exh. E1 ¶ 6.

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at General Stores, Bottomsrefused to speak directly to Targos and requested that Targos provide all

instructions regarding her job duties in writing. (Def.’s 56.1 ¶ 15; Bottoms Dep. p. 39:23-24, 40:1-

13, 41:13-23.) At approximately the same time, Targos began performing certain of Bottoms’s job

duties. (Pltf.’s 56.1(b)(3)(C) ¶ 12.) Plaintiff alleges that Targos took her job duties away from her

without any warning or explanation. (Pltf.’s 56.1(b)(3)(C) ¶ 13, 16-17.) Defendants deny that any

of Bottoms’s job duties were taken from her and instead argue that Targos was forced to perform

certain of Bottoms’s job duties because Bottoms was either unwilling or unable to perform those

duties herself. (Def.’s 56.1 ¶ 16-17; Def.’s Response ¶ 16-17. It is not disputed that during 4

Bottoms’s tenure at General Stores, she was idle for approximately 70% of her work day. (Def.’s

56.1 ¶ 17; Pltf.’s 56.1(b)(3)(C) ¶ 17.)

Targos met with Dr. James Brunner (“Brunner”), Hospital Administrator at Chicago-Read,

to discuss the problems she was having with Bottoms. (Def.’s 56.1 ¶ 18.) Brunner suggested that

Targos hold weekly supervisory meetings with Bottoms to review assignments. (Id.) At Brunner’s

urging, Targos advised Bottoms in March of 1999 that Bottoms would be required to attend twiceweekly supervision meetings with Targos. (Id. at ¶ 19.) 

Bottoms advised Joan Bashaw (“Bashaw”), the Equal Employment Opportunity officer at

Chicago-Read, that she objected to having supervisorymeetings with Targos. (Id. at ¶ 20.) Bottoms

insisted that a union representative be present at her first supervision meeting with Targos even

though union representatives are not permitted at meetings where an employee is not being
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disciplined. (Id. at ¶ 21.) Bottoms’s insistence upon the presence of a union representative

prevented Targos from holding the first supervisory meeting she had scheduled with Bottoms. (Id.)

Targos issued a written reprimand to Bottoms for her failure to attend the supervisory meetings

scheduled for March 17, March 19, and March 24, 1999 and for failing to properly distribute mail

to Targos. (Id. At ¶ 24.; Targos Affid. ¶ 12.) 

On the day of the March 19, 1999 supervisory meeting, Bottoms alleges that Targos

intentionally hit her with a locker door. (Def.’s 56.1 ¶22.) Targos testified at her deposition that she

did not intentionally hit Bottoms with the locker door. (Pltf.’s 56.1(b)(3)(C) ¶ 25; Targos Dep. p.

47:9-14.) Bashaw investigated the incident but the results of her investigation were inconclusive

because there were no witnesses to the incident aside from Bottoms and Targos and Bottoms did not

report any injury. (Def.’s 56.1 ¶ 22; Bashaw Dep. P. 39:2-24; 40:1-9.) On the day of the March 24,

1999 meeting, Bottoms alleges that Targos “aggressively came after [Bottoms].” (Def.’s 56.1 ¶ 23;

Pltf.’s 56.1(b)(3)(C) ¶26; Bottoms Dep. p. 187:15-20.) Bottoms called the police to complain about

the incident, but did not file a police report. (Id.) Bottoms also alleges that Targos attempted to

“close in Ms. Bottoms between a door and its gate.” (Pltf.’s 56.1(b)(3)(C) ¶ 27.) Defendants do not

dispute Bottoms’s testimony with respect to either the March 24, 1999 incident or the incident
 By way of example, at Pltf.’s 56.1(b)(3)(C) ¶ 26, Bottoms states that “Ms. Bottoms testified that at one point, 5

Ms. Targos aggressively came at Ms. Bottoms, who backed up and called the police.” Defendants avoid addressing the

substance of Bottoms’s testimony by admitting only “that Plaintiff testified as described in paragraph 26.” (Def.’s

Response ¶ 26.) In contrast, at Pltf.’s 56.1(b)(3)(C) ¶ 7, Bottoms states that “Ms. Bottoms testified that on her first day

on the job, Ms. Targos told Ms. Bottoms that Ms. Bottoms was placed there to get rid of her.” In response, Defendants

deny “the allegations in paragraph 7" by referring to Targos’s affidavit, in which Targos “vehemently” denies ever having

made the statement Bottoms attributes to her. (Def.’s Response ¶ 7.) Because Defendants have not denied the substance

of Bottoms’s testimony – that “Ms. Targos aggressively came at Ms. Bottoms” and that Targos attempted to “close in

Ms. Bottoms between a door and its gate”– the Court deems the facts to which Bottoms testified as admitted. See

Schacht v. Wisconsin Dep’t of Corrections, 175 F.3d 497, 504 (7th Cir. 1999)(indicating that summary judgment is the

“‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of

fact to accept its version of events.”).

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involving the door and gate. There is no evidence that Targos was disciplined as a result of these 5

incidents.

On May 7, 1999, Targos attempted to meet with Bottoms and Bottoms threatened to call the

police again if Targos attempted to speak with her at that time or in the future. (Id. at ¶ 26; Targos

Affid. ¶ 15.) Thereafter, management at Chicago-Read issued Bottoms a one day suspension for

failure to participate in additional supervisory meetings scheduled for April 28 and April 29, 1999.

(Def.’s 56.1 ¶ 25; Targos Affid. ¶ 14 and Exh. 2 thereto.) 

The Amoruso Memorandum and Bottoms’s White Gloves.

In late March and April of 1999, a representative of the IDHS Office of Internal Audit, Jack

Amoruso (“Amoruso”), occupied an office adjacent to Bottoms while conducting an audit of

property, equipment and inventories at General Stores. (Def.’s 56.1 ¶ 28; Brunner Affid. ¶ 20.) On

April 30, 1999, Amuroso sent an unsolicited memorandum to Brunner outlining his observations of

Bottoms. (Def.’s 56.1 ¶ 28; Pltf.’s 56.1(b)(3)(C) ¶ 30.) Amoruso advised Brunner in the memo that

he had observed Bottoms doing very little work, behaving rudely towards her supervisor (Targos),

and spending work time on personal matters. (Def.’s 56.1 ¶ 28) 
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Amoruso’s memorandum to Brunner also notes that Bottoms wore white gloves while at

work “because she doesn’t want to touch anything that any of the white employees touch.”

(Amoruso Memorandum at Def.’s Exh. D1; Pltf.’s 56.1(b)(3)(C) ¶ 31. Targos also was told that

Bottoms wore the gloves to avoid touching anything that white employees had touched, though

Targos cannot recall whether she received that information directly from Bottoms or from another

source. (Pltf.’s 56.1(b)(3)(C) ¶ 32.) For her part, Bottoms testified that she is allergic to dust and

that she wore the gloves to protect her hands from cuts and paper dust. (Id. at ¶ 33.) Bottoms never

told anyone – including Amoruso – that she wore gloves to avoid touching things that had been

touched by white employees. (Id. at ¶34.)

Bottoms is Placed on Paid Administrative Leave for Injuring a Co-Worker.

In May 1999, one of Bottoms’s co-workers, Thomas Mathew (“Mathew”) entered Bottoms’s

office to access a file cabinet. (Def.’s 56.1 ¶ 29.) Bottoms asked Mathew three times to close the

door to her office. (Id.) When Mathew did not respond, Bottoms rose from her desk, reached around

him and closed the door. (Id.) Matthew testified that Bottoms was somewhat angry when she got

up to close the door. (Id. at ¶ 31.) Mathew testified that the door hit him on the elbow when

Bottoms closed it which caused him to react with a “painful sound.” (Id. at ¶ 33.) Although she

admits that Mathew responded as if in pain, Bottoms denies that the door hit Mathew when she

closed it. (Pltf.’s Response at ¶ 33.)

Mathew advised Targos that his elbow had been injured during the incident with Bottoms.

(Def.’s 56.1 ¶ 34.) Targos took Mathew to the infirmary to have the injury examined. (Id.) As a

result of the injury to his elbow, Mathew was placed on restricted duty and was instructed not to lift,

carry, push or pull more than 20 pounds with his left arm. (Id. at ¶ 35.) On May 11, 1999, Brunner
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placed Bottoms on administrative leave pending an investigation into the incident between Bottoms

and Mathew. (Id. At ¶ 36.) The investigation, conducted by James Schiltz (“Schiltz”) of the IDHS

Office of Internal Review, found no evidence that the injury to Mathew was intentional, but

determined that Bottoms had exhibited a disregard for Mathews’s physical safety. (Id. at ¶ 37-38;

Report of James Schiltz, Exh. 2 to Brunner Affid.)

Bottoms is Terminated for Failure to Attend Mandatory Fitness-for-Duty Examination.

By letter dated June 3, 1999, Brunner directed Bottoms, who was still on paid administrative

leave from Chicago-Read, to attend a fitness-for-duty examination on June 10,1999 or face possible

disciplinary action. (Def.’s 56.1 ¶ 45; Exh. 10 to Brunner Dep.) The purpose of the examination

was to determine whether Bottoms suffered from any impairment or disorder that would either

diminish her ability to function in the workplace or cause her to behave in a manner not safe for

herself or for others. (Def.’s 56.1 ¶ 42.) Brunner’s primary reason for referring Bottoms for a

fitness-for-duty examination was the injury to Mathew, but he was also influenced by reports from

Targos, Amoruso and Schlitz regarding Bottoms’s increasingly inappropriate and hostile behavior.

(Pltf.’s 56.1(b)(3)(C) ¶ 59; Def.’s 56.1 ¶ 43.)

Bottoms did not attend the fitness-for-duty examination on June 10, 1999. (Def.’s 56.1 at

¶ 45.) Instead, she sent a letter to Brunner expressing concerns about her privacy, accusing Brunner

of retaliating against her for having filed previous charges of discrimination and indicating that she

was seeking legal advice. (Id. at ¶ 46; Exh. 13 to Brunner Dep.) Plaintiff consulted an attorney and

two union presidents regarding the directive to attend the fitness-for-duty examination. (Def.’s 56.1

¶ 47.)
It is not clear whether Bottoms was referred for a pre-disciplinary meeting for her failure to attend only the first 6

fitness-for-duty examination or for her failure to attend both the June 10 and the June 25 examinations. Defendants state

– and Bottoms admits – that Bottoms was referred for the June 28, 1999 pre-disciplinary meeting as a result of her failure

to attend both the June 10, 1999 and the June 25, 1999 fitness-for-duty examinations. (Def.’s 56.1 ¶ 49; Pltf.’s Response

¶ 49.) However, Exhibit 19 to Bottoms’s Deposition contains a Memorandum dated June 16, 1999 – before Bottoms

had failed to attend the June 25, 1999 examination – advising Bottoms that a pre-disciplinary meeting had been scheduled

for June 28, 1999 at 10:00 A.M.

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On June 15, 1999, Brunner sent Bottoms a second letter directing her to attend a fitness-forduty examination on June 25, 1999. (Id. at ¶ 48.) Brunner’s June 15, 1999 letter again advised

plaintiff that her failure to attend the fitness-for-duty examination would be construed as an act of

insubordination and could subject her to disciplinary action up to and including discharge. (Id.; Exh.

14 to Brunner Dep.) Bottoms responded to Brunner by letter dated June 23, 1999, noting receipt of

Brunner’s instruction to attend the fitness-for-duty examination and expressing confidentiality and

privacy concerns. (Def.’s 56.1 ¶48, Exh. 16 to Brunner Dep.) Bottoms’s letter further advised

Brunner that Bottoms believed the instruction to attend the fitness-for-duty examination was “more

retaliation and harassment due to charges of discrimination and retaliation.” (Exh. 16 to Brunner

Dep.) Despite receiving clear instructions to do so, Bottoms did not attend the June 25, 1999 fitnessfor-duty examination. (Def.’s 56.1 ¶ 48; Exh. 16 to Brunner Dep.) As a result of her failure to

attend a fitness-for-duty examination, Bottoms was referred for a pre-disciplinary meeting for

insubordination on June 28, 1999. (Def.’s 56.1 ¶49.) In August 1999, Bottoms was suspended 6

pending discharge. (Id. at ¶ 51.) The suspension pending discharge was subsequently converted to

a 25-day suspension, after which Bottoms was returned to paid administrative leave. (Id.)

On September 2, 1999, Brunner sent Bottoms a third letter directing her to attend a fitnessfor-duty examination on September 7, 1999. (Id. at ¶52.) Brunner’s September 2, 1999 letter

advised plaintiff for the third time that her failure to attend the fitness-for-duty examination would
10

be considered an act of insubordination that could subject Bottoms to disciplinary action up to and

including discharge. (Id.) Brunner’s September 2, 1999 letter also addressed Bottoms’s concerns

regarding her privacy and the reasons underlying her referral for a fitness-for-duty examination. (Id.)

Bottoms did not attend the September 7, 1999 fitness-for-duty examination and was

subsequently charged with insubordination. (Id. at ¶ 55, 63). Bottoms received a memorandum

informing her of a pre-disciplinary meeting, which was scheduled for September 16, 1999. (Id. at

¶ 63.) Following the pre-disciplinary meeting, Bottoms was suspended pending discharge and was

ultimately discharged on November 16, 1999. (Id. at ¶ 5, 63).

Defendants’ Personnel Decisions Involving Other Employees.

In 1995, a Caucasian Security Officer (“K.M.”) at Chicago-Read was directed to report for

a fitness-for-dutyexamination after he spoke of harming his supervisor and co-workers. (Def.’s 56.1

¶ 76.) K.M. reported for the fitness-for-duty examination and was ultimately discharged for his

statements. (Id.) 

Also in 1995, a black Mental Health Technician (“J.J.”) at Chicago-Read was ordered to

attend a fitness-for-duty examination after she stated that she had been having thoughts of harming

her co-workers, patients and family, and that she possessed a firearm. (Id. at ¶ 77.) J.J. refused to

attend the fitness-for-duty examination and was discharged. (Id.) J.J. filed a charge of

discrimination after she was discharged. (Id.)

In 1997, a Caucasian Psychologist at Chicago-Read (“N.C.”) was directed to report for a

fitness-for-duty examination after threatening to harm the Facility Director. (Id. at ¶ 78.) N.C. filed

a charge of discrimination after he was directed to report for the examination. (Id.) N.C. attended
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the fitness-for-duty examination, participated in out-patient therapy sessions, and was not discharged.

(Id.)

PROCEDURAL HISTORY

Following her termination in November 1999, Bottomsfiled a charge of discrimination with

the Illinois Department of Human Rights on May 15, 2000, wherein she claimed she was discharged

in retaliation for opposing unlawful discrimination. Bottoms litigated her discharge before the

Illinois Civil Service Commission. An administrative law judge (“ALJ”) held that Bottoms’s

discharge was warranted. On September 20, 2000, the Illinois Civil Service Commission adopted

the ALJ’s findings and conclusions and upheld the decision to discharge Bottoms. Thereafter,

Bottoms filed a petition for administrative review in the Circuit Court of Cook County, Chancery

Division. That court upheld the decision of the Illinois Civil Service Commission. Bottoms then

sued IDHS, Chicago-Read and two individuals in federal court, alleging violations of Title VII, 42

U.S.C. §§ 1981, 1983. See Bottoms I. On April 24, 2001, Judge Conlon granted summary judgment

in favor of the defendants in Bottoms I. 

Bottoms brought this action in March 2003, alleging violations of Title VII, 42 U.S.C. §§

1981, 1983, and the Americans With Disabilities Act (“ADA”). In June 2004, the Court granted

Defendants motion to dismiss with respect to Bottoms’s ADA claims as well as her claims under 42

U.S.C. §§ 1981, 1983. Now before this Court is Defendants’ motion for summary judgment. 

STANDARD OF REVIEW

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
12

P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence

and draw all reasonable inferences in favor of the party opposing the motion. Bennington v.

Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). However, the Court will “limit its analysis of the facts on summary judgment

to evidence that is properly identified and supported in the parties’ [Local Rule 56.1] statement.”

Bordelon v. Chicago Sch. Reform Bd. Of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a

proposed statement of fact is supported by the record and not adequately rebutted, the court will

accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a

citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v.

City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134

F.3d 878, 887 (7th Cir. 1998) (“Rule 56 demands something more specific than the bald assertion

of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete

facts establishing the existence of the truth of the matter asserted.”).

DISCUSSION

Plaintiff alleges both race discrimination and retaliation by Defendants under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. Title VII makes it “an unlawful employment

practice for an employer . . . to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment, because

of such individual's race.” 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits an employer from

discriminating against any employee for having opposed any practice made an unlawful employment

practice under Title VII. 42 U.S.C. § 2000e-3(a).
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I. Race Discrimination Claim

To overcome Defendants’ motion for summary judgment, Bottoms may proceed under either

the direct or indirect method of proving that Defendants took an adverse employment action against

her because of her race. Under the direct method, Bottoms must show, using either direct or

circumstantial evidence, that the motivation behind her termination was race. Raymond v. Ameritech

Corp., 442 F.3d 600, 610 (7th Cir. 2006). But because the direct method of proving racial

discrimination “essentially requires an admission by the decision-maker that his actions were based

on the prohibited animus,” this option is not available to many aggrieved employees. Rogers v. City

of Chicago, 320 F.3d 748, 753 (7th Cir. 2003). Bottoms does not point to any direct evidence of race

discrimination. Accordingly, if she is to survive Defendants’ motion forsummary judgment on her

race discrimination claim, she must do so under the indirect method.

When a plaintiff lacks direct evidence of discriminatory motive, courts apply the burdenshifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under

the McDonnell Douglas framework, Bottoms must first present a prima facie case of discriminatory

discharge by showing that: (1) she is a member of a protected class; (2) she was performing at a level

that met her employer’s legitimate expectations; (3) she suffered an adverse employment action; and

(4) another similarly situated individual who was not in the protected class was treated more

favorably than she was treated. Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 750-51 (7th Cir.

2006) (citing McDonnell Douglass). This prima facie showing creates an initial presumption that

the employer unlawfully discriminated against its employee. See St. Mary Honor Center v. Hicks,

509 U.S. 502, 506-07 (1993) (“To establish a presumption is to say that a finding of the predicate

fact (here, the prima facie case) produces a required conclusion in the absence of explanation (here,
14

the finding of unlawful discrimination).”) (internal quotation marks omitted). If Bottoms can

demonstrate such a prima facie case, the burden shifts to Defendants to produce a legitimate, nondiscriminatory reason for Bottoms’s termination. Paul v. Theda Med. Ctr., Inc., 465 F.3d 790, 794

(7th Cir. 2006); see also St. Mary Honor Center, 509 U.S. at 509 (observing that the employer's

burden is one of production only and not persuasion). If the Defendants can produce such a reason,

Bottoms has an opportunity to demonstrate that the articulated reason is, in fact, a pretext. Paul, 465

F.3d at 794. In this context, a pretext is “a lie, specifically a phony reason for some action.” Jackson

v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999).

Defendants concede for the purpose of summary judgment that Plaintiff is a member of a

protected class, and that Plaintiff suffered an adverse employment action when she was discharged.

Defendants argue that Plaintiff has not proven that she met their legitimate expectations or that

Defendants treated any similarly situated, non-black employee differently than they treated her.

A. Bottoms Did Not Meet Defendants’ Legitimate Expectations.

In order to make out her prima facie case, Bottoms must demonstrate that she met

Defendants’ legitimate expectations. The record reveals that she did not. Bottoms was idle for

approximately 70% of her work day. She refused to speak with her direct supervisor and was issued

a written reprimand for her failure to attend several supervisory meetings with her supervisor.

Bottoms also failed on three occasions to follow her employer’s direct instructions to attend a

mandatory fitness-for-duty examination. Each of the three times the examination was scheduled,

Defendants warned Bottoms that her failure to attend could subject her to disciplinary action up to

and including termination. The record reflects that Bottoms was an insubordinate employee who
15

was not meeting Defendants’ legitimate expectations, that she was repeatedly informed of her failure

to do so, and that she made no effort to comply with their reasonable requests. Accordingly,

Bottoms cannot demonstrate that she met her employers’ legitimate expectations. Bottoms I, 174

F. Supp.2d at 765 (citing Kirk v. Fed. Prop. Mgmt. Corp., 22 F.3d 135, 139 (7 Cir. 1994) for the th

proposition that “[a]n employee who is insubordinate does not perform her job satisfactorily.”).

B. Similarly Situated Employees.

Bottoms has also failed to prove that Defendants treated any similarly situated, non-black

employees more favorably in making discharge decisions. “[I]n disciplinary cases – in which a

plaintiff claims that he was disciplined more harshly than a similarly situated employee based on

some prohibited reason – a plaintiff must show that he is similarly situated with respect to

performance, qualifications and conduct. This normally entails a showing that the two employees

dealt with the same supervisor, were subject to the same standards, and had engaged in similar

conduct without such differentiating or mitigating circumstances as would distinguish their conduct

or the employer’s treatment of them.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th

Cir. 2000) (internal citations omitted). The similarly situated inquiry is not rigid or inflexible; it

considers all relevant factors, the number of which will depend on the context of the particular case.

Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007). With respect to those relevant

factors, “an employee need not show complete identity in comparing [herself] to the better treated

employee, but [she] must show substantial similarity.” Id.

Bottoms has not identified any similarly situated non-black employees who received more

favorable treatment than she did after engaging in similar conduct. For her part, Bottoms attempts
Indeed, Bottoms concedes at p. 10 of her Response to Defendants’ motion for summary judgment that “other 7

employees may have been terminated for their failure to attend a fitness-for-duty examination.” She argues, though, that

“no other employee has been terminated for refusing to attend an evaluation that was based upon trivial, biased and racist

reasons.” However, Bottoms has not identified a single employee that was not terminated after refusing to attend a

fitness-for-duty evaluation.

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to shift the analysis by asserting that Defendants have failed to showthat similarlysituated non-black

employees were also referred for fitness-for-duty examinations for reasons similar to those that

motivated Defendants to refer Bottoms for a fitness-for-duty examination. Her attempt to shift the

focus fails for two reasons. 

First, it is Bottoms that has the burden of demonstrating that defendants have treated similarly

situated non-black employees more favorably. Burks, 454 F.3d at 750-51. Bottoms has not pointed

to a single similarly situated non-black employee in any position at Chicago-Read who was not

terminated after engaging in conduct similar to Bottoms’s conduct. Second, this Court has already 7

specifically held that this case is limited to Bottoms’s claims for discriminatory discharge and that

Bottoms is barred from pressing her Title VII claims based upon Defendants’ June 3, 1999 order to

submit to a fitness-for-duty examination. Bottoms v. Illinois Dep’t of Human Services, No. 03 C

1881, 2004 WL 1403811 *6-7 (N.D. Ill. June 22, 2004). 

In any event, Bottoms has failed to present any evidence whatsoever that any similarly

situated non-black employee at Chicago-Read was not referred for a fitness-for-duty examination

after engaging in conduct similar to Bottoms’s conduct. Bottoms argues that Targos, who is white,

was not referred for a fitness-for-duty examination after Bottoms complained that Targos had hit her

with a locker door while Bottoms was referred for an examination after the incident with Mathew.

Setting to one side the fact that Bottoms is barred from complaining that the order to attend the

fitness-for-duty examination constitutes unlawful discrimination under Title VII, her argument fails
17

because Targos is not a sufficient comparator. There is no “substantial similarity” between Bottoms

and Targos. Targos was Bottoms’s supervisor; she and Bottoms clearly held substantially different

positions with different responsibilities. Humphries, 474 F.3d at 405 (finding a sufficient

comparator to plaintiff in another employee who held the same position with the same duties and

who shared the same supervisor and same ultimate decisionmaker).

Bottoms has not demonstrated that she met Defendants’ legitimate expectations or that

Defendants treated any similarly situated non-black employees more favorably than she was treated.

Accordingly, she has failed to make out her prima facie case of discrimination and cannot survive

summary judgment on this claim.

C. Pretext.

Because Bottoms failed to establish a prima facie case of race discrimination, it is not

necessary for this Court to reach the issue of pretext. Burks, 464 F.3d at 754 (citing Haywood v.

Lucent Techs., 323 F.3d 524, 531 (7th Cir. 2003)). Nevertheless, the Court addresses the issue

briefly for the sake of completeness.

Even if Bottoms had established a prima facie case for discrimination, Defendants would

have the opportunity to rebut that prima facie case by articulating a legitimate, nondiscriminatory

reason for terminating her. McDonnell Douglas, 411 U.S. at 802. In other words, even if Bottoms

had established conclusively that the decision to fire her was motivated in part by discrimination,

Defendants could still avoid liability by demonstrating that they would have made the same decision

despite the alleged unlawful motive. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006)

(citing Gleason v. Mesirow Fin. Inc., 118 F.3d 1134, 1140 (7th Cir. 1997)). Defendant states that
Though she concedes failing to attend the fitness-for-duty examination, Bottoms argues that Brunner’s decision 8

to refer her for that examination was the result of his reliance on “racist misinformation” from Targos and Amoruso.

Bottoms states that both Targos and Amoruso told Brunner that Bottoms wore white gloves in order to avoid touching

things white persons had touched. Bottoms charachterizes this as a “racist observation with no basis in fact” and argues

that because Brunner relied upon that kind of information from Targos and Amoruso in making the decision to refer

Bottoms for the fitness-for-duty examination, his decision to do so was tainted by racism. Bottoms’s argument is contrary

to the record, which indicates that Brunner’s primary reason for referring Bottoms for the fitness-for-duty examination

18

Bottoms was terminated for insubordination, not because of her race. Because this

nondiscriminatory reason has been proffered, the burden shifts to Bottoms to establish that reason

as a pretext. Paul, 465 F.3d at 794. 

In order to show pretext, Plaintiff must demonstrate that Defendants’ proffered motivation

for her termination “is a lie or completely lacks a factual basis.” Jordan v. Summers, 205 F.3d 337,

343 (7th Cir. 2000). Courts are “not concerned with whether or not the employer’s actions were

mistaken, ill considered or foolish, so long as the employer honestly believed those reasons.”Burks,

454 F.3d at 754 (citing Jordan, 205 F.3d at 343) (internal quotations omitted). An employee cannot

“avoid summary judgment by merely claiming that a jury could disbelieve the employer’s reason.”

Traylor v. Brown, 295 F.3d 783, 791 (7th Cir. 2002). Instead, an employee must put forth evidence

suggesting that the employer itself did not believe the proffered reasons for termination. Burks, 454

F.3d at 754-55. 

In this case, Bottoms has not demonstrated that Defendants’ proffered motive for her

termination - insubordination - is a pretext. Bottoms has put forth no evidence that Defendants did

not believe the proffered reason for termination. To the contrary, Bottoms concedes that she failed

to follow the instructions to attend the fitness-for-duty examination even after having been advised

that her failure to attend would be viewed as insubordination that could subject her to disciplinary

action. Even if she had made out her prima facie case, Bottoms would still be required to set forth 8
was that she had caused an injury to one of her coworkers. In any event, Bottoms concedes that she repeatedly failed

to attend the examination and offers no evidence that would suggest that Defendants’ real reason for terminating her was

anything other than the proffered reason - her insubordinate behavior. 

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specific evidence demonstrating that Defendants’ proffered reason for her termination was a lie;

having failed to do so, Bottoms cannot show pretext, and thus her case cannot survive summary

judgment on this claim. Id. at 755. 

II. Retaliation Claim.

As with her race discrimination claim, Bottoms may overcome Defendants’ motion for

summary judgment with respect to her retaliation claim by proceeding under either the direct or

indirect methods. Humphries, 474 F.3d at 404. Bottoms does not present any direct evidence of

retaliation. Instead, she proceeds under the indirect method.

Bottoms’s retaliation claim also fails under the indirect approach. Under the indirect

approach, Bottoms must demonstrate that after she complained of discrimination, she, and not any

other similarly situated employee who did not complain, was subject to an adverse employment

action even though she was performing up to Defendants legitimate expectations. Roney v. Illinois

D.O.T., 474 F.3d 455, 459 (7th Cir. 2007) (citing Sublett v. John Wiley & Sons, Inc., 463 F.3d 731,

740 (7th Cir. 2006)). The failure to satisfy any one element of this prima facie case is fatal to an

employee’s retaliation claim. Id. (citing Hudson v. Chicago Transit Auth., 375 F.3d 552, 560 (7th

Cir. 2004)).

There is no dispute that Bottoms engaged in protected activity when she filed an EEOC

charge of discrimination and retaliation against Defendants or that she suffered an adverse

employment action when she was terminated. Bottoms fails to demonstrate that she was performing
J.J. later filed a charge of discrimination after she was discharged. 9

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up to Defendants’ legitimate expectations and that after complaining of discrimination, only she, and

not any other similarly situated employee who did not complain of discrimination, was subject to an

adverse employment action.

As an insubordinate employee, Bottoms cannot demonstrate that she was performing up to

her employer’s legitimate expectations. Bottoms I, 174 F. Supp.2d at 765 (citing Kirk v. Fed. Prop.

Mgmt. Corp., 22 F.3d 135, 139 (7 Cir. 1994) for the proposition that “[a]n employee who is th

insubordinate does not perform her job satisfactorily.”). Nor can Bottoms identify any similarly

situated employees that did not complain about discrimination who were treated differently. In fact,

Defendants identify one employee, J.J., a black Mental Health Technician at Chicago-Read, who did

not complain about discrimination but who was also terminated after refusing to attend a fitness-forduty examination. Defendants also identifty another employee, N.C., who complained of 9

discrimination after being referred for a fitness-for-duty examination but who was not fired after he

attended the examination and participated in out-patient therapy sessions. Having failed to identify

even a single similarly situated employee who did not complain about discrimination and was treated

differently, Bottoms cannot prevail on her retaliation claim and Defendants are entitled to judgment

as a matter of law.

CONCLUSION AND ORDER

Reviewing all of the evidence in the record and drawing all reasonable inferences in favor

of Bottoms, there is no genuine issue as to any material fact that Defendants treated similarlysituated non-black employees more favorably than Bottoms or that Defendants’ articulated reason
21

for discharging Bottoms was a pretext for discrimination. Further, there is no genuine issue as to any

material fact that after Bottoms complained of discrimination she, and not any other similarly

situated employee who did not complain, was subject to an adverse employment action. Wherefore,

Defendants’ Motion for Summary Judgment is granted. 

So ordered.

________________________________________

Virginia M. Kendall, United States District Judge

Northern District of Illinois

Date: March 9, 2007