1

 Count IV alleges the VA retaliated against Plaintiff in violation of the American with

Disabilities Act (“ADA”), 42 U.S.C. § 12203(a). However, because Plaintiff is a federal

employee, her disability claims must be brought under the Rehabilitation Act. Plaintiff thus

withdrew her ADA claim. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CATHERINE A. KRUGER, )

)

Plaintiff, ) Case No. 01 C 5328

)

v. ) Magistrate Judge Morton Denlow

)

ANTHONY J. PRINCIPI, )

Secretary of the Department )

of Veterans Affairs, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Catherine A. Kruger (“Plaintiff”) filed a four-count complaint against

defendant Anthony J. Principi, Secretary of the United States Department of Veteran Affairs

(“Defendant”), pursuant to 42 U.S.C. § 2000e-16(c). Count I alleges the United States

Department of Veteran Affairs (“VA”) retaliated against Plaintiff in violation of the

Rehabilitation Act, 29 U.S.C. § 794. Counts II and III allege the VA retaliated against

Plaintiff in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e-3(a).1

 Defendant moves for summary judgment on all counts.

I. BACKGROUND FACTS

The following facts are undisputed unless noted. The discussion section of the
2 Citations to the record are in the following form: Plaintiff’s Local Rule 56.1 Statement

of Additional Material Facts in Opposition to Summary Judgment is cited as PF ¶ ___;

Defendant’s Local Rule 56.1 Statement of Material Facts is cited as DF ¶ ; Defendant’s

Response to Plaintiff’s Additional Facts is cited as DR ¶ ___; Plaintiff’s Memorandum of Law in

Support of Plaintiff’s Response to Defendant’s Motion for Summary Judgment is cited as Pl.

Mem. at ___; Defendant’s Memorandum in Support of Summary Judgment is cited as Def. Mem.

at ; the Appendix to Plaintiff’s Local Rule 56.1 Statement of Additional Material Facts in

Opposition to Summary Judgment is cited as Pl. App. Ex. ___; the Appendix to Defendant’s

Local Rule 56.1 Statement of Material Facts is cited as Def. App. Ex. ___.

2

opinion provides a more comprehensive presentation of the most relevant facts.

A. THE PARTIES

Plaintiff was employed by the VA at the Chicago Regional Office (“CRO”) for over

27 years.2

 PF ¶ 1. In her final position at the CRO, Plaintiff was a Supervisory Counseling

Psychologist in charge of the Vocational Rehabilitation and Employment (“VR&E”)

program. Id. She was promoted to the position of Supervisory Counseling Psychologist in

1989 and promoted to the federal employment designation of GS-14 in 1997. PF ¶ 3. She

received multiple performance awards and enjoyed excellent performance ratings. Id.

Plaintiff contends three supervisors retaliated against her: Michael Olson (“Olson”),

Ron Rogala (“Rogala”), and John McCourt (“McCourt”). DF ¶ 3. In 1995, McCourt became

Assistant Director of the CRO and Plaintiff’s direct supervisor. PF ¶ 4. McCourt remained

in this position until September 1998, when he went to work in Washington D.C.. DF ¶ 3.

The Director of the CRO at this time was Montgomery Watson (“Watson”). PF ¶ 5. Watson

remained the Director until he left on May 10, 1998. Id. Following Watson’s departure,

Olson became the Director of the CRO in July 1998 and became Plaintiff’s highest level

supervisor in that office. PF ¶ 13, DF ¶ 3. In late April 1999, Rogala became Assistant
3

Director, and thus was Plaintiff’s direct supervisor until he retired in January 2002. DF ¶ 3.

McCourt left the CRO and no longer had any supervisory authority over Plaintiff

before she participated in Ramza’s EEO action or contacted EEO with her own claims in this

case. PF ¶ 6-10. Plaintiff found McCourt’s management style difficult to deal with, she

found him to be confrontational, and she had difficulty approaching him with issues. DF ¶

4. Two of Plaintiff’s co-workers, Chrissy Carr (“Carr”) and Michael Bates (“Bates”), also

had issues with McCourt’s management style, which was described as overbearing, boorish,

offensive, and combative. PF ¶ 6-10. 

B. SARBRUN RAMZA’S HIRING

On or about December 4, 1997, Plaintiff referred Sarbrun Ramza (“Ramza”), a

disabled veteran, to McCourt for a computer specialist position at the CRO. PF ¶ 14.

Plaintiff testified that in response, McCourt loudly said, “You and your disabled veterans.

That’s all you think about are your rehabs. Well, there’s more to this Agency than Voc

Rehab you know.” DF ¶ 5. After she referred Ramza for the position in December 1997, she

felt McCourt became more accusatory towards her. PF ¶ 16. In February 1998, McCourt

hired Ramza. DF ¶ 6. The relationship between Plaintiff and McCourt worsened after

Plaintiff talked to McCourt about issues relating to Ramza in May 1998. PF ¶ 22. Plaintiff

claims that in May 1998 she became aware that McCourt had made statements to VA

employees implying she had a sexual relationship with Ramza. PF ¶ 24.

Ramza initiated an EEO complaint on August 3, 1998. PF ¶ 36. In August 1998,

Plaintiff provided testimony for Ramza to the VA’s EEO officials that was adverse to the
4

VA’s position. PF ¶ 40. Approximately three weeks after filing his EEO complaint, Olson

terminated Ramza’s employment effective September 8, 1998. PF ¶ 39. 

C. COMPLAINTS OF DISCRIMINATION AND RETALIATION

In July 1997, Plaintiff submitted a complaint to Watson that she was being

discriminated against because she was not receiving equal pay. PF ¶ 12. Plaintiff initiated

the formal EEO complaint process on October 6, 1998, and filed a formal EEO complaint on

November 10, 1998. PF ¶ 58. On February 9, 1999, Plaintiff initiated EEO counseling, and

filed a second formal EEO complaint on March 31, 1999. PF ¶ 75, 78. 

D. ALLEGED RETALIATORY INCIDENTS

1. Audits

On August 6, 1998, Plaintiff requested and received sick leave from Olson. PF ¶ 42.

Plaintiff returned to work on September 28, 1998. PF ¶ 49. While Plaintiff was on sick

leave, Olson ordered an audit of her department’s “scorecard” performance, which measures

indicators of program quality and timeliness. PF ¶ 51. The audit was not a regularly

scheduled audit, it found no serious issues, and it was concluded at the end of September

1998. Id. Plaintiff claims that Rogala and Hunt were not subjected to a special audit. Id.

Olson accused Plaintiff and the auditor, Dennis Johnson (“Johnson”), of cheating and

altering statistics at a September 28, 1998 meeting. PF ¶ 53. At a subsequent meeting on

October 6, 1998, Olson again accused Plaintiff and Johnson of cooking the books. PF ¶ 55.

Plaintiff testified that Olson questioned her about her relationship with Johnson and implied

that she had an improper sexual relationship with him. Id. 
5

Olson was aware Plaintiff had contacted the EEO office in October 1998. PF ¶ 60.

Plaintiff testified that Olson had constant communications with the EEO office as the

Director of the CRO. Id. In the mid-October 1998, Olson requested a second program audit

of her department’s scorecard performance. PF ¶ 62. However, the audit never occurred and

Olson’s issues with Plaintiff’s scorecard performance were resolved. DF ¶ 33.

2. Other Employee Conduct

In January 1999, Plaintiff contends that Olson began a concerted and continuing effort

to discourage the following VA personnel from supporting her EEO claims by threatening

and harassing their employment: Dr. Terrence Collins, Nick Nicholas, Barbara Quade, Jerry

Braun, Bruce Holderhead, Joe Monsam, and Dennis Johnson. PF ¶ 72. Plaintiff also

testified that Olson enlisted the assistance of the other following VA personnel in a campaign

to harass her with false claims and accusations about her conduct and performance: Rogala,

Gladys Gosa, and Rebecca Trujillo. PF ¶ 73. 

3. Returned Report

On February 4, 1999, one day after Plaintiff complained to Olson about someone

tampering with her computer, Olson returned a report to Plaintiff as “unacceptable” and

required her to conduct a more extensive review. PF ¶ 74. Olson was formerly the Director

of the Boston Regional Office. Id. Plaintiff contends the person who held her position in

Boston under Olson, Rick Underwood, was not required to do such an extensive report. Id.

4. Reprimand

On April 14, 1999, Olson issued Plaintiff a reprimand, based on an incident between
6

Plaintiff and Rogala. PF ¶ 79. Plaintiff contends the written reprimand was based on false

information. PF ¶ 80. 

5. Program Area Review

In August 1999, while Plaintiff was on vacation, Olson requested a review of one of

Plaintiff’s program areas: timeliness of processing applications. PF ¶ 86. The program area

had been rated third best in the nation, and Plaintiff testified that it was unusual to request

such a review when Plaintiff was out of the office. Id.

6. Performance Evaluation

Rogala became aware of Plaintiff’s EEO complaints in June or July 1999. PF ¶ 81.

On February 4, 2000, Olson and Rogala met with Plaintiff and gave her an “unacceptable”

rating for her mid-term performance evaluation. PF ¶ 89. In the meeting, Plaintiff was

instructed to meet with Rogala three times per week to aid in “communication.” Id. Plaintiff

had never before been accused of having communication problems. PF ¶ 90.

7. Succession Priority Removal and Unacceptable Performance Warning

In late August 2000, Plaintiff learned that she had been removed from the established

order of succession as Acting Director of the CRO. PF ¶ 93. On November 14, 2000,

Rogala prepared and Olson issued Plaintiff a “Warning of Unacceptable Performance” that

criticized Plaintiff for unacceptable job performance in human resources management. PF

¶ 95. 

8. Within-Grade Increase Denied

In November 2000, Olson and Rogala reinstated the requirement that Plaintiff meet
7

with Rogala three times per week. PF ¶ 97. On December 13, 2000, Rogala issued an

Amended Warning of Unacceptable Performance, which notified Plaintiff that she had

performed unacceptably in two additional areas: delivery of benefits and services, and

organization support and cooperation. PF ¶ 100. The warning criticized her communication

abilities and indicated that if she did not improve performance in 90 days she could be

removed from federal service or demoted. Id. It also informed Plaintiff that her within-grade

increase would be denied. Id.

Plaintiff did not file an EEO complaint. Instead, she appealed the denial of her withingrade increase to the Merit Systems Protection Board (“MSPB”). PF ¶ 102. An

Administrative Law Judge (“ALJ”) conducted a hearing and issued his decision on June 22,

2001. Id. The ALJ ruled that the VA did not present sufficient evidence of unacceptable

performance and that Plaintiff was entitled to her within-grade increase. Id. Defendant

appealed the ALJ’s decision to the MSPB Board. DF ¶ 66. The two Board members that

reviewed the appeal could not agree on the disposition of the case. DF ¶ 67. Therefore, the

initial MSPB decision became the Board’s final decision. Id. 

5. Requested Accommodation

On May 24, 2001, Plaintiff was asked to go to Olson’s office for a meeting regarding

her requested accommodation. PF ¶ 106. Plaintiff went to Olson’s office to inform him that

she had a conference call to attend to and would meet with him afterwards. PF ¶ 107. Olson

ordered Plaintiff into his office, approached her quickly, and they had a confrontation. Id.

When Plaintiff tried to sit down, she fell and had a panic attack. Id. She eventually ran out
8

of Olson’s office. Id., PF ¶ 110. 

Plaintiff began seeing a psychiatrist, Dr. Farid Karimi, on October 16, 1999. PF ¶

117. Dr. Karimi prepared an extensive report on July 30, 2003, which described the

symptoms Plaintiff experienced as extreme anxiety, panic attacks, depression, decreased

sleep, nightmares, and helplessness, and stated that these symptoms affected her ability to

concentrate and focus. Id. Dr. Karimi testified that Plaintiff was going to work all through

this ordeal under extreme stress and anxiety. Id. 

II. LEGAL STANDARDS

A. SUMMARY JUDGMENT STANDARD

A court may grant summary judgment 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. P. 56(c). 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, 477 U.S. 242, 255 (1986). The movant bears the burden of

establishing that there exists no genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

However, the party bearing the burden of proof on an issue at trial may not rest on the

pleadings, but must “designate specific facts showing that there is a genuine issue for trial.”

Celotex Corp., 477 U.S. at 324. The evidence is viewed in the light most favorable to the

non-movant and “all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S.
9

at 255.

III. DISCUSSION

In considering this motion for summary judgment, the Court must decide the

following issues: (1) whether Plaintiff properly raised any discrimination claims; (2) whether

Plaintiff failed to exhaust her administrative remedies; (3) whether Plaintiff established a

prima facie case of retaliation under the indirect method; (4) whether Defendant presented

a non-invidious reason for its actions; and (5) whether there is evidence that Defendant’s

proferred reason is pretextual. 

A. PLAINTIFF HAS FAILED TO RAISE ANY DISCRIMINATION CLAIMS

In Plaintiff’s response to Defendant’s motion for summary judgment, she asserts

claims of disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 701,

and gender discrimination in violation of Title VII, 42 U.S.C. § 2000e-3(a). Neither claim

is set forth in Plaintiff’s complaint. 

A plaintiff may not amend her complaint through arguments in her brief in opposition

to a motion for summary judgment. Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.

1996); Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004) (“[Plaintiff] could not amend her

complaint through allegations made in response to a motion for summary judgment”). In this

case, Plaintiff’s complaint alleges neither gender discrimination nor disability discrimination

claims. In light of Shanahan and Griffin, Plaintiff cannot amend her complaint through

arguments raised in her response brief. At oral argument, Plaintiff’s counsel acknowledged

that this case involves only claims for retaliation, not discrimination.
10

B. PLAINTIFF FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES

ON ONE OF HER TWO CLAIMS

Plaintiff alleges receiving two adverse employment actions in retaliation for having

engaged in protected activity: (1) the denial of a within-grade pay increase, and (2) a hostile

work environment. Defendant asserts that Plaintiff failed to exhaust her administrative

remedies. Therefore, the issue of whether Plaintiff exhausted her administrative remedies

will be reviewed prior to addressing the merits. 

From the time Plaintiff filed her second formal EEO complaint on March 31, 1999,

until the time she contacted an EEO counselor on July 13, 2001, Plaintiff did not contact an

EEO counselor within 45 days of any retaliatory employment actions, with the exception of

her allegation that the denial of her requested accommodation was retaliatory. Plaintiff does

not dispute this; she merely states that she “engaged in protected activity on several

occasions between March 31, 1999 and July 13, 2001.” Def. 56.1 Stmt & Pl. Resp. ¶ 78. 

Defendant argues that because Plaintiff did not contact an EEO counselor between

March 31, 1999 and July 13, 2001, she failed to exhaust her administrative remedies.

Therefore, Defendant asserts, all claims relating to the actions that occurred during that time

period, including the denial of Plaintiff’s within-grade pay increase, must be dismissed.

Defendant argues that Plaintiff was subjected to neither a hostile work environment nor a

continuing violation. Defendant contends that Plaintiff’s retaliatory hostile work

environment claims were disjointed, separate acts, and thus Plaintiff was required to contact
3

 Defendant cites two cases, Johnson v. Runyon, 47 F.3d 911 (7th Cir. 1995), and

McSwain v. Runyon, 990 F.Supp. 1001 (N.D. Ill. 1998), in its argument that Plaintiff

failed to meet the forty-five day deadline and is thus barred from bringing such claims. In

both cases, the plaintiff invoked 29 C.F.R. § 1614.105(a)(2) and argued that the forty-five

day time limit should have been extended. In this case, Plaintiff does not invoke 29

C.F.R. § 1614.105(a)(2) to claim that she was somehow prevented from timely contacting

an EEO counselor. Therefore, Johnson, Runyon, and 29 C.F.R. § 1614.105(a)(2) do not

apply.

11

an EEO counselor for each.3

Plaintiff claims that she was not required to make a separate complaint for each

incident because she was subjected to ongoing harassment and a hostile work environment.

Plaintiff argues that the time limit for contacting an EEO counselor may be waived when the

plaintiff alleges a series of related discriminatory acts, one of which falls within the time

period for contacting an EEO counselor. Plaintiff also claims that it was immaterial that

Plaintiff never contacted an EEO counselor within forty-five days of her within-grade pay

increase denial because she had earlier filed an EEOC complaint.

Federal employees asserting Title VII claims must timely exhaust their administrative

remedies before they may assert their claims in a lawsuit. Ester v. Principi, 250 F.3d 1068,

1071 (7th Cir. 2001). One administrative remedy involves contacting an EEO counselor.

Pursuant to 29 C.F.R. § 1614.105(a)(1), an aggrieved employee must initiate contact with an

EEO counselor within forty-five days of the date of the alleged discriminatory act or, in the

case of personnel action, within forty-five days of the effective date of the action. The

regulations provide certain limited exceptions to the forty-five day time limit that are not

involved in this case. 29 C.F.R. § 1614.105(a)(2). In the Seventh Circuit, the forty-five day
12

deadline to seek EEO counseling is construed as a statute of limitations, not as a

jurisdictional requirement. Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995).

In National R. R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme

Court addressed the issue of administrative timeliness for a discrete act versus a hostile work

environment claim in light of 42 U.S.C. § 2000e-5(e)(1)’s requirement that a Title VII

plaintiff must file a charge with the EEOC either 180 or 300 days after the alleged unlawful

employment practice occurred. The Court held, “[D]iscrete discriminatory acts are not

actionable if time barred, even when they are related to acts alleged in timely filed charges.

Each discrete discriminatory act starts a new clock for filing charges alleging that act. The

charge, therefore, must be filed within the 180- or 300-day time period after the discrete

discriminatory act occurred.” Morgan, 536 U.S. at 113. The Court also stated that “[a]

discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’” Id. at 111.

By contrast, the Court found that a hostile work environment claim is composed of

a series of separate acts that collectively amount to one unlawful employment practice. Id.

at 117. Therefore, “[i]t does not matter, for purposes of the statute, that some of the

component acts of the hostile work environment fall outside the statutory time period.

Provided that an act contributing to 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.” Id. The Court thus concluded, “Given, therefore, that the incidents

constituting a hostile work environment are part of one unlawful employment practice, the

employer may be liable for all acts that are part of this single claim. In order for the charge
13

to be timely, the employee need only file a charge within 180 or 300 days of any act that is

part of the hostile work environment.” Id. at 118.

Notwithstanding the rules set forth in Morgan, an exception to the failure to exhaust

administrative remedies requirement exists for retaliation claims in the Seventh Circuit. If

the alleged retaliation claim arose after the EEOC charge was filed, the plaintiff need not file

another EEOC charge. McKenzie v. Illinois Dep’t of Transportation, 92 F.3d 473, 482-483

(7th Cir. 1996); see also Horton v. Jackson County Bd. of County Comm’rs, 343 F. 3d 897,

898 (7th Cir. 2003) (“[R]etaliation for complaining to the EEOC need not be charged

separately from the discrimination that gave rise to the complaint). However, the retaliation

claim must also be (1) similar or reasonably related to the allegations in the EEOC charge

and (2) grow out of those allegations. McKenzie. at 481-482. This exception for later-filed

retaliation claims is policy-driven; namely, a desire to avoid needless, repetitious procedure.

Id. at 482.

McKenzie is the leading case on the exception and its rules are straightforward.

However, McKenzie was decided before Morgan. Thus, Horton, which came after Morgan

and also cited McKenzie’s exception, stated that, “And here we should note that the doctrine

predates [Morgan] which, though principally about the continuing-violation doctrine, is

emphatic that ‘each discrete discriminatory act [i.e. an act that is not part of a continuing

violation] starts a new clock for filing charges alleging that act.’” Id. at 899-900. McKenzie

appears to be good law and the retaliation exception was cited recently in Eruteya v. City of

Chicago, No. 04 C 1482, 2005 WL 563213, at *4 (N.D. Ill. Mar. 9, 2005) (“[T]he Seventh
14

Circuit has held that a plaintiff is allowed to bring a retaliation claim, even if that claim is not

included in the EEOC charge, if the plaintiff alleges that the retaliation occurred after the

filing of the EEOC charge). However, Morgan casts some doubt on the McKenzie exception.

1. Denial of Plaintiff’s Within-Grade Pay Increase

Under both Morgan and McKenzie, Plaintiff failed to exhaust her administrative

remedies for the denial of her within-grade pay increase. The denial was certainly a discrete

act and is therefore time-barred under Morgan because Plaintiff did not timely contact an

EEO counselor or file a charge. 

Plaintiff also fails under the McKenzie exception because the denial of her withingrade pay increase claim (1) is not reasonably related to the allegations in her earlier-filed

EEOC charges, and (2) it does not grow out of those allegations. The Seventh Circuit has

held:

this standard is met ‘if there is a reasonable relationship between the

allegations in the charge and the claims in the complaint, and the claim in the

complaint can reasonably be expected to grow out of an EEOC investigation

of the allegations in the charge.... The claims are not alike or reasonably

related unless there is a factual relationship between them. This means that the

EEOC charge and the complaint must, at minimum, describe the same conduct

and implicate the same individuals.’ 

McKenzie, 92, F.3d at 481 (quoting Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497,

501 (7th Cir. 1994). 

Plaintiff began the EEO complaint process by contacting an EEO counselor on

October 6, 1998 because of problems she was having with Olson. She then filed a formal

EEO complaint on November 10, 1998 (“EEO Complaint I”). In EEO Complaint I, Plaintiff
15

alleged sex and disability discrimination and retaliation, which she claimed were evidenced

by harassment, continuing violations, hostile work environment, duty hours, and failure to

provide reasonable accommodations. Plaintiff contacted another EEO counselor on February

9, 1999 regarding conduct by Olson that Plaintiff felt was harassing. 

On March 31, 1999, Plaintiff filed a second formal EEO complaint (“EEO Complaint

II”). In EEO Complaint II, Plaintiff again alleged sex and disability discrimination and

retaliation, which she claimed were evidenced by harassment, assignment of duties, and

failure to provide reasonable accommodations. Plaintiff filed her EEO complaint in response

to Olson returning a report to Plaintiff as unacceptable and requiring her to conduct a more

extensive review. The denial of Plaintiff’s within-grade pay increase occurred in December

2000, some twenty-one months later. According to Olson, the denial stemmed from poor

communication by Plaintiff. Rogala issued the Amended Warning of Unacceptable

Performance that notified her of the denial. Plaintiff met with Olson about the denial in

January of 2001. 

The denial of Plaintiff’s within-grade increase occurred more than a year and a half

after EEO Complaint II. The two events involve Olson, but the within-grade increase denial

could not reasonably be expected to grow out of the EEOC investigation for the March 31,

1999 complaint that occurred more than a year and a half earlier. Besides the fact that Olson,

her supervisor, was involved in each incident, there is not enough of a factual relationship

between the claims to find that they are reasonably related. The within-grade increase denial

was a separate and distinct act from her EEO charge.
16

Moreover, when Plaintiff learned of her within-grade increase denial, she appealed

it to the MSPB instead of going to the EEO office. Plaintiff had already filed two EEO

charges in the preceding three years, but for this action, a distinct action by her supervisor

enacted because of alleged poor job performance, she went to the MSPB to dispute it on the

merits. Furthermore, Plaintiff raised the issue of retaliation as an affirmative defense in her

MSPB proceeding, and the ALJ found that such an allegation was not sustained. Def. App.

Ex. 3. 

 Plaintiff failed to timely contact the EEO for the denial of her within-grade increase,

and thus that claim fails due to Plaintiff’s failure to exhaust her administrative remedies.

However, in the interests of completeness in the event of an appeal, the Court will consider

Plaintiff’s denial of within-grade pay increase claim on the merits in the retaliation discussion

below.

2. Hostile Work Environment

 Plaintiff’s hostile work environment claim involves the same personnel, and many

of her assertions allege similar behavior that occurred at her place of employment. This

discussion is further developed below in the Court’s analysis of whether Plaintiff set forth

a valid retaliation claim under the indirect method. Applying the rules and reasoning

regarding the EEOC charge deadline from Morgan to the instant case and the issue of the 45-

day time limit, this Court finds that Plaintiff did not fail to exhaust her administrative

remedies for her hostile work environment claim so long as she contacted an EEO counselor

within 45 days of any incident that she alleges helped create a hostile working environment.
17

In early February 1999, Olson returned as unacceptable an internal control review

report Plaintiff had submitted. Plaintiff was required to redo the report in a more extensive

manner. She claims another VR&E officer was not required to complete such an extensive

report. Plaintiff contacted an EEO counselor on February 9, 1999 regarding this incident.

In her complaint, Plaintiff alleges both disparate treatment and harassment from Olson in the

form of unacceptable reviews he gave her. Therefore, Plaintiff timely contacted an EEO

counselor for one of the incidents that she alleges contributes to her hostile work

environment claim. Plaintiff’s hostile work environment claim will be decided on the merits

C. RETALIATION

Plaintiff alleges that Defendant unlawfully retaliated against her in violation of Title

VII and the Rehabilitation Act. The retaliation provision of the Rehabilitation Act is

materially identical to the one in Title VII. Twisdale v. Snow, 325 F.3d 950, 952 (7th Cir.

2003). There are two ways for Plaintiff to establish a prima facie case for unlawful

retaliation to avoid summary judgment in favor of the employer. 

1. Two Methods Used to Establish a Retaliation Case 

In Stone v. City of Indianapolis Public Util. Div., 281 F.3d 640, 644 (7th Cir. 2002),

the Seventh Circuit clarified the standards for summary judgment on unlawful retaliation

claims. There are two distinct ways for a plaintiff to establish a prima facie case for unlawful

retaliation and avoid summary judgment. Hudson v. Chicago Transit Authority, 375 F.3d

552, 559 (7th Cir. 2004). The plaintiff must present either direct evidence of discrimination

or indirect evidence under the burden-shifting analysis set forth in McDonnell Douglas Corp.
18

v. Green, 411 U.S. 792 (1973); Mannie v. Potter, 394 F.3d 977, 983 (7th Cir. 2005).

a. Direct Evidence 

The direct evidence method is straightforward and unrelated to McDonnell Douglas.

Stone, 281 F.3d at 644. The plaintiff must “present direct evidence (evidence that establishes

without resort to inferences from circumstantial evidence) that [the plaintiff] engaged in

protected activity (filing a charge of discrimination) and as a result suffered the adverse

employment action of which he complains.” Id. Plaintiff does not possess direct evidence

of discrimination.

b. Indirect Evidence

Under the indirect evidence approach, the plaintiff must first establish a prima facie

case of retaliation by demonstrating: (1) she engaged in protected activity, (2) she was then

subjected to an adverse employment action, (3) even though she was performing her job

satisfactorily, and (4) no similarly situated employee who did not engage in protected activity

was subjected to the adverse employment action. Mannie, 394 F.3d at 984. The burden then

shifts to the defendant employer to produce evidence of a non-invidious reason for the

employment action at issue. Id. If the employer presents such evidence, the burden shifts

back to the plaintiff to demonstrate that the employer’s proffered reason is pretextual. Id.

c. Causal Link

Previously under the indirect evidence method, the plaintiff was also required to

establish a “causal link” between the adverse employment action and the protected activity.

Id. In Stone, however, the Seventh Circuit “held that plaintiffs seeking to prove retaliation
19

under the indirect method need not show ‘even an attenuated causal link.’” Id. (quoting

Stone, 281 F.3d at 643-644). Notwithstanding the holding in Stone, the Seventh Circuit

stated in Mannie it was “[m]indful that some confusion remains,” and thus it “clarif[ied]

again that no ‘causal link’ is necessary under the indirect method.” Mannie, 394 F.3d at 984.

2. Plaintiff Has Not Established a Prima Facie Case of Retaliation Under the

Indirect Method.

Plaintiff asserts that she has submitted sufficient evidence to establish a prima facie

case of retaliation under the indirect evidence method. The Court will consider whether such

sufficient evidence exists under the burden-shifting analysis set forth above.

a. Plaintiff First Engaged In Protected Activity in July 1997.

Plaintiff claims she engaged in protected activity under Title VII in 1997 when she

submitted an informal complaint to Montgomery Watson, Director of the CRO and Plaintiff’s

second-level supervisor at the time, alleging discrimination with respect to her pay and grade

level. Next, she claims that her testimony on August 3, 1998, for Ramza in support of his

formal EEO complaint also constitutes protected activity under Title VII.

Defendant argues that the earliest possible protected activity engaged in by Plaintiff

occurred on September 28, 1998, when she returned to work after her one and a half month

absence and provided Olson with a list of complaints about McCourt, which Olson then

forward to Defendant’s EEO office. Therefore, Defendant claims, even if Plaintiff could

demonstrate that an adverse employment action transpired prior to September 28, 1998,
20

Plaintiff could not establish that such an action was retaliatory.

To establish that she engaged in protected activity, Plaintiff must demonstrate that she

complained about an act that she reasonably believed in good faith violated Title VII.

Firestine v. Parkview Health System, Inc., 388 F.3d 229, 234 (7th Cir. 2004). Even if

Plaintiff was mistaken regarding the merits of a complaint, that would not cost her the

protection of Title VII. Id. In fact, “[o]nly a groundless claim ‘resting on facts that no

reasonable person possibly could have construed as a case of discrimination’ could not

constitute a statutorily protected activity.” Id. (quoting Fine v. Ryan Int'l Airlines, 305 F.3d

746, 752 (7th Cir. 2002)). Informal complaints to supervisors may constitute protected

activity. Maldonado v. Metra, 743 F.Supp. 563, 568 (N.D. Ill. 1990). Furthermore,

“participation as a witness for a co-worker's claim of discrimination under Title VII

constitutes protected activity.” Grana v. Illinois Dept. of Transp., 232 F. Supp. 2d 879, 885

(N.D. Ill. 2002).

In this case, Plaintiff approached Michael Bates, the EEO program manager, in July

1997 to complain about unequal pay. She was the only VR&E officer out of fifty-seven

being paid at the GS-13 level. There were also only two female VR&E officers including

her, and the other woman had just been promoted to GS-14. Plaintiff thus complained to

Bates. She also complained to McCourt and Watson. While her complaint to them was

based on the Equal Pay Act, she felt it was gender discrimination and that is why she took

the issue to the EEO program manager. She brought documentation of the discrepancy to

Bates and Watson, and she was soon thereafter promoted to GS-14. In light of the liberal
4 Even though Plaintiff failed to exhaust her administrative remedies for her denial of

within-grade increase claim and thus this claim is dismissed, the Court will consider the issue on

its merits for completeness. 

21

standard for protected activity set forth above, the Court finds that Plaintiff’s informal

complaint to the EEO program manager and her director constitute protected activity.

Therefore, Plaintiff’s earliest protected activity is her pay discrepancy complaint in July

1997.

b. Plaintiff Was Subjected to a Denial of Her Within-Grade Pay

Increase; She Was Not Subjected to a Hostile Work Environment.

Plaintiff claims that she was subjected to two adverse employment actions. First, she

states that she was subjected to a hostile work environment. Next, she asserts that she was

unjustifiably denied a within-grade pay increase.4

 Defendant does not dispute that the denial

of her within-grade pay increase constitutes an adverse employment action. Instead,

Defendant provides reasons to explain why the denial occurred, which are set forth below.

Defendant does argue that Plaintiff was not subjected to a hostile work environment.

Defendant contends that Plaintiff has strung together a variety of separate incidents that

occurred over several years and they do not amount to a hostile work environment.

To constitute an adverse employment action, the act must “materially alter the terms

and conditions of employment.” Stutler v. Ill. Dep’t of Corr., 263 F.3d 698, 703 (7th Cir.

2001). An alteration in the terms and conditions of a plaintiff’s employment is established

by demonstrating either a tangible or non-tangible employment action. Mannie, 394 F.3d at

982. A discharge or demotion constitutes a tangible action, whereas discriminatory conduct
22

so severe or pervasive to create an “abusive” working environment amounts to a non-tangible

action. Id. Therefore, an employee is subject to a hostile work environment when that

employee “experiences harassment that is ‘so severe or pervasive as to alter the conditions

of employment and create an abusive working environment.’” Id. (quoting Faragher v. City

of Boca Raton, 524 U.S. 775, 786 (1998)). The plaintiff must also show “that the workplace

was both subjectively and objectively hostile.” Mannie, 394 F.3d at 982. “In other words,

the environment must be ‘one that a reasonable person would find hostile or abusive, and one

that the victim did perceive to be so.’” Smith v. Northeastern Illinois University, 388 F.3d

559, 566 (7th Cir. 2004) (quoting Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045

(7th Cir. 2002)).

Plaintiff sets forth a lengthy list of incidents in her response brief in her attempt to

show that Defendant’s conduct was so severe or pervasive that it created an abusive working

environment. She cites to even more events described in her statement of facts. The Court

will address several of the most pertinent allegations, but it will not discuss each action,

many of them minor or typical employment issues, that Plaintiff has alleged. 

In the Seventh Circuit, Plaintiff’s allegations do not amount to a hostile work

environment because no factual basis exists for some of her allegations, and the incidents that

are factually supported do not collectively constitute a hostile work environment as a matter

of law. Several cases have addressed this issue and it is clear that more is needed than a

laundry list of incidents that may have upset Plaintiff. As the court in Smart v. Ball State

University, 89 F.3d 437, 441 (7th Cir. 1996), stated when it affirmed the district court’s grant
23

of summary judgment for the employer, “not everything that makes an employee unhappy

is an actionable adverse action.” The incidents Plaintiff complains of involve her job duties

and her relationship with her superiors. She makes numerous conclusory allegations that she

was harassed, and the facts she sets forth do not constitute a hostile work environment.

(1) Audits, Negative Reviews, and Criticism

Accusing Plaintiff of unprofessional behavior at the workplace, ordering audits and

reviews of her department, and criticizing her and giving her negative reviews are regular

workplace occurrences that fall short of constituting an adverse employment action. In

Twisdale, 325 F.3d at 951, the plainitff alleged that audits of some of the programs he

administered, a delay in giving him prized “acting supervisor” assignments, and “above all

the removal from his purview of the Disclosure Office, which had three employees and [was]

responsible for protecting taxpayers’ privacy, and of the Problem Resolution Program, a

program for dealing with taxpayer complaints” constituted an adverse employment action.

The Seventh Circuit, however, affirmed the district court’s grant of summary judgment for

the employer and found that such “unpleasantness ... falls short of the level of severity

required to trigger judicial intervention under Title VII.” Id. at 953. The Seventh Circuit

noted that Title VII “does not protect the hypersensitive employee who is not deliberately

targeted by the employer from the irritations endemic to the employment relation.” Id.; see

also Young v. Will County Dep’t of Public Aid, 882 F.2d 290, 294 (7th Cir. 1989) (affirming

the district court’s grant of summary judgment for the employer and finding that the

withholding of a salary increase, unfavorable work evaluations, and the supervisor referring
24

older employees to a manual for answers do not in combination create a hostile work

environment).

(2) Threats and Improper Sexual Relationship Allegations

Plaintiff also alleges that Olson threatened her and falsely accused her of an improper

sexual relationship with an auditor. Regarding the threats, “it is well established that

unfulfilled threats that result in no material harm cannot be considered an adverse

employment action under Title VII.” Hottenroth v. Village of Slinger, 388 F.3d 1015, 1029

(7th Cir. 2004) (affirming the district court’s grant of employee’s motion for summary

judgment and denial of employee’s cross-motion for partial summary judgment ). Next, the

allegation of Olson making the sexual relationship comment is unsubstantiated and appears

to be conjecture. Plaintiff’s basis for believing Olson falsely accused her of having such a

relationship with Johnson stems from, according to Plaintiff, Olson repeatedly asking her

about her relationship with him. Pl. App. Ex. 3 at 144-145. Olson never actually accused

her of having a sexual relationship. Moreover, Plaintiff indeed had a prior business

relationship with Johnson, and she was formerly his mentor. In Mannie, the plaintiff

“assert[ed] that her supervisors made derogatory statements about her, discussed her mental

condition with other employees, and paged her to return from cigarette breaks,” and the

Seventh Circuit found such allegations insufficient to establish a hostile work environment.

394 F.3d at 982-983.

Plaintiff also claims that McCourt made statements to VA employees implying that

Kruger had an improper sexual relationship with Ramza. Again, this is unsubstantiated and
25

appears to be conjecture. Plaintiff testified that she learned of the alleged statements from

Ramza. She testified, “I think it was an innuendo sort of thing, like, ‘You sure had a close

personal relationship with - - the VR&E officer.’ [Ramza] didn’t like the implication.” Pl.

App. Ex. 3 at 88-89. She also said that Ramza did not mention whether there were any

witnesses. Plaintiff confronted McCourt about the statement, but she did so more on

Ramza’s behalf. She did not contact anyone at EEO. Plaintiff relies on “innuendo” and

hearsay from Ramza in her allegation that such a statement was ever made. In a light most

favorable to Plaintiff, McCourt hinted to Ramza via innuendo that he and Plaintiff had a

sexual relationship. In light of Mannie and the instant facts, such a comment does not

materially alter the terms and conditions of Plaintiff’s employment, and thus does not

establish a hostile work environment. 

(3) Seniority List and Promotion Track Issues 

Plaintiff also claims that Olson replaced her in the order of seniority at the CRO and

pushed her off the track for promotion to GS-15. The assertion that Olson pushed her off her

promotion track stems from negative performance reviews he gave her. As stated above,

unfavorable work evaluations do not amount to an adverse employment action. Next,

replacing her in the order of seniority is also not enough to create a hostile work

environment. As the Seventh Circuit found in Hottenroth, “[a supervisor’s] refusal to

recommend [the plaintiff] for certification as a journeyman-lineman, based on a belief that

[the plaintiff] was not qualified due to her poor job performance and out-of-control behavior,

was properly within [the supervisor’s] discretion, and thus did not constitute an adverse
26

employment action.” 388 F.3d at 1031. The court further noted, “we have repeatedly held

that even the denial of a monetary perk, such as a bonus or reimbursement of certain

expenses, does not constitute an adverse employment action if it is wholly within the

employer’s discretion to grant or deny and is not a component of the employee’s salary. Id.

(citations omitted). 

(4) Discouraging Support for Plaintiff’s EEO Claims

Plaintiff also claims that Olson discouraged other VA personnel from supporting

Plaintiff’s EEO claims. These claims, however, are unsubstantiated conjecture. For

example, Plaintiff alleges that Olson discouraged Dr. Terry Collins from supporting her

claim after Dr. Collins provided information to an EEO counselor. Plaintiff claims she was

at a meeting in Des Moines, Iowa when the assistant director, Nick Nicholas, “pretty much

led a discussion that was humiliating to Dr. Collins and ultimately said the directors wanted

Dr. Collins to be out of the leadership position.” Pl. App. Ex. 3 at 206-207. Plaintiff stated

that there was nothing said by Nicholas regarding her EEO case, and the only thing that led

her to believe what was said about Dr. Collins related to her EEO case was the timing. Id.

at 208. Moreover, Plaintiff said that Nicholas was the only one that made humiliating

statements regarding Dr. Collins’ leadership and she could not say that Olson directed

Nicholas to make such statements. Id. at 208-209. The evidence Plaintiff gives for another

employee she claims was threatened, Barbara Quade, is that the employee was audited twice

and had contracts cancelled. Id. at 212-213. Audits and cancelled contracts are typical

workplace occurrences. Moreover, Quade was in a different department in a different city
27

than Plaintiff. Plaintiff also does not know who requested the two audits. 

(5) Enlisting Others to Retaliate 

Plaintiff also claims that Olson enlisted other VA personnel in retaliatory efforts

against her. She claims that Olson directed Rogala to complain about her conduct and issue

a bad report about her so Olson could issue her a reprimand. Pl. App. Ex. 3 at 226-36.

Again, this is speculation. The underlying activity involved an employee who wished to see

a specific counselor who was no longer an employee of the VA. Plaintiff conferred with

Rogala as to the policy for the request. Plaintiff claims that Rogala accused her of lying and

complained about her conduct, which he described as poor communication, to Olson. Olson

then issued a reprimand, and Plaintiff now claims Rogala was enlisted by Olson to complain

about her conduct. As proof, Plaintiff claims that Rogala was promoted to assistant director

within a week after the issuance of her reprimand. Yet Plaintiff made the following

statement in her deposition, “Now, can I say that [the promotion] had anything to do with

[the reprimand]? Absolutely not.” Pl. App. Ex. 3 at 232. 

Rogala also contacted one of Plaintiff’s employees directly because of errors found

in an audit. Rogala asked the employee to correct the errors and the employee corrected

them. Nothing resulted from this incident that affected Plaintiff, but she cites it as proof of

Rogala being enlisted by Olson to retaliate against her. Plaintiff is again speculating, and

regardless, a dispute over an audit and potential errors in a report are typical employment

actions. Lastly, Plaintiff claims that Rogala, at Olson’s direction, retaliated against her by

giving her an “unacceptable” mid-year appraisal. Plaintiff again offers no evidence other
28

than her speculation for this assertion.

Plaintiff provides many conclusory assertions and much of her offered evidence

consists of speculation and conjecture. The Seventh Circuit has clearly stated that

“[c]onclusory allegations by the party opposing the motion [for summary judgment] cannot

defeat the motion.” Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

Moreover, unsupported speculation “does not meet a party’s burden of producing some

defense to a summary judgment motion.” Id. at 931-932. Speculation by a party “does not

create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a

primary goal of summary judgment.” Id. at 932. 

The incidents Plaintiff provides to this Court do not amount to a hostile work

environment. They deal with the management functions of employment, and do not create

an abusive working environment. She also makes conclusory allegations, which hold no

weight. In the end, like other courts have found, Plaintiff was not happy with her situation,

but she was not subject to a hostile work environment. E.g. Stutler, 263 F.3d at 704 (“We

have no doubt that the environment was unpleasant, but none of the conduct complained of

constituted the material harm necessary for a Title VII retaliation claim”); Grana, 232 F.

Supp. 2d at 887 (“Although [the plaintiff] may have felt uneasy and hurt, [his supervisors’]

actions fall short of adverse employment action. [The plaintiff] may not enjoy his current

situation, but a less-than-desirable rapport with his supervisors does not constitute an adverse

employment action.”). Therefore, viewing the facts in the light most favorable to Plaintiff,

the Court finds that no reasonable jury could conclude that the conduct and actions were
29

severe enough to rise to the level of a hostile work environment. The only adverse

employment action Plaintiff was subject to was the denial of her within-grade pay increase.

c. Plaintiff’s Job Performance.

The issue of whether Plaintiff performed her job satisfactorily was not given much

attention by the parties in their briefs. The issue possesses more relevance and significance

when discussed below regarding whether Defendant’s reasons for the actions taken were

pretextual. See Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001) (“As we

have pointed out on several occasions, this issue of satisfactory job performance often

focuses on the same circumstances as must be scrutinized with respect to the matter of

pretext”).

d. Plaintiff Failed to Establish That Other Similarly Situated

Employees Who Did Not Engage In Protected Activity Were

Subjected To The Adverse Employment Action.

The fourth element Plaintiff must prove in order to establish a prima facie case of

retaliation under the indirect method is that no similarly situated employee who did not

complain about discrimination or file an EEO charge was subjected to the adverse

employment action. Mannie, 394 F.3d at 984. Notwithstanding the Court’s finding that

Plaintiff was not subjected to a hostile work environment, for completeness, the Court will

consider this element in light of both adverse employment actions that Plaintiff alleged.

Plaintiff argues that Carolyn Hunt (“Hunt”), Dave Stelsner (“Stelsner”), Rick

Underwood (“Underwood”), Rogala, Lyle Stratton (“Stratton”), and Ramona Garnier

(“Garnier”) were similarly situated employees who did not engage in protected activity and
30

were not subjected to a hostile work environment or denied a within-grade pay increase.

Plaintiff also claims that the testimony of Michael Bates (“Bates”) and Chrissy Carr (“Carr”)

helps her meet this prong. Defendant argues that Plaintiff failed to support her conclusory

assertions concerning these individuals with specific facts or probative evidence. 

A similarly situated employee is someone who is directly comparable to the plaintiff

in all material respects. Rogers v. City of Chicago, 320 F.3d 748, 755 (7th Cir. 2003). When

determining whether two employees are directly comparable, a court must look “at all the

relevant factors, which most often include whether the employees (i) held the same job

description, (ii) were subject to the same standards, (iii) were subordinate to the same

supervisor, and (iv) had comparable experience, education, and other qualifications –

provided the employer considered these latter factors in making the personnel decision.”

Ajayi v. Aramark Business Services, Inc., 336 F.3d 520, 532 (7th Cir. 2003).

(1) Michael Bates

Bates was a Management Analyst at the CRO, a GS-12 position. He retired from the

VA on October 31, 1997. He testified that McCourt “targeted” Kruger by “paying a good

deal of scrutiny to what was happening in her division in terms of personnel, it seems to me

when questions came up about overtime, money, and things along that line.” Pl. App. Ex.

6 at 58. When asked why he thought McCourt scrutinized Plaintiff more closely, Bates

replied, “I think he thought an inordinate importance was given to voc[ational]

rehab[ilitation], to disabled veterans in general....” Id. Bates also testified that McCourt “cut

slack” for the loan guarantee officer as well as the administrative officer when he was at the
31

VA. Id. at 18.

Plaintiff does not argue that Bates was treated differently. Instead, she only offers his

testimony, which offers nothing substantive. Bates left the VA in 1997. Most importantly,

Bates does not provide specific evidence. He merely states that a loan guarantee officer and

an administrative officer were cut some slack, and separately, Plaintiff was scrutinized over

issues like money and overtime, which are important administrative issues. Bates does not

establish that other similarly situated employees who did not engage in protected activity

were not subjected to a hostile work environment or denied a within-grade pay increase. 

(2) Chrissy Carr

Carr was Plaintiff’s coworker and she thought McCourt was harder on Plaintiff than

other employees. Carr stated that McCourt had an overbearing, boorish, and offensive

management style. She said McCourt yelled at Plaintiff in his office more than he yelled at

other employees. Carr left the VA in January 1998. 

Similar to Bates, Plaintiff does not argue that Carr was treated differently. Instead,

she only offers Carr’s testimony, which offers nothing substantive. Carr left the VA in early

1998. Most of Plaintiff’s retaliation claim stems from events that transpired subsequent to

Carr’s departure. If anything, Carr’s testimony establishes that McCourt was an offensive,

overbearing manager before Plaintiff engaged in protected activity. Carr does not establish

that no similarly situated employees who did not engage in protected activity were subjected

to a hostile work environment or denied a within-grade pay increase.

(3) Carolyn Hunt and Dave Stelsner
32

Plaintiff claims that after she referred Ramza for the computer specialist position, she

was not provided any executive development and management training. However, Plaintiff

argues that Hunt, CRO service center manager, and Stelsner, SRO assistant service center

manager, were CRO managers at the same level and time who were provided such training.

Plaintiff also asserts that Hunt and Stelsner never filed EEO complaints against McCourt,

Olson, or Rogala. 

Plaintiff provides no evidence that Hunt and Stelsner were directly comparable to her

in all material respects. She merely states in her response brief that they were “at the same

level as [Plaintiff],” and cites to her statement of additional material facts as evidence. Pl.

Mem. at 8. In her statement of additional material facts, she again refers to Hunt and Stelsner

as “[o]ther CRO managers at the same level as [Plaintiff]” and cites to her deposition

transcript for evidentiary support. PF ¶ 19. Finally, her deposition transcript provides her

testimony, which merely provides the names and titles of Hunt and Stelsner, says they were

provided training, and refers to them as “other managers within the office.” Pl. App. Ex. 3

at 80.

Plaintiff must present specific evidence showing she was similarly situated to the

employees she alleged received more training. Pafford v. Herman, 148 F.3d 658, 668 (7th

Cir.1998) (affirming the district court’s grant of summary judgment for the employer). As

the Seventh Circuit stated in Pafford, “[t]he mere fact that other employees may have

received more training than [the plaintiff] falls short of raising an inference of

discrimination.” Id.
33

In this case, Plaintiff has presented no evidence that Hunt and Stelsner were directly

comparable to her in all material respects. Plaintiff has merely offered her own conclusory

allegation. Furthermore, the denial of training opportunities does not constitute an adverse

employment action. Needy v. Vill. of Woodridge, No. 96 C 5188, 1997 WL 461093, at *6

(N.D. Ill. Aug. 8 1997) (granting in part and denying in part defendants’ motions for

summary judgment and finding that “reprimands and deprivations of training opportunities

do not constitute an adverse employment action under Title VII”).

(4) Rick Underwood

On February 4, 1999, Olson returned an internal review control report to Plaintiff that

she submitted to him. Olson said it was unacceptable and asked Plantiff to do an additional

report on more program areas. Prior to coming to the CRO, Olson was the Director of the

Boston Regional Office and Underwood, like Plaintiff, was the VR&E department head.

Plaintiff claims that Underwood was not required to do such an extensive report. 

Plaintiff has again failed to establish the similarly situated prong with her allegation

involving Underwood. First, a supervisor requiring an employee to provide a more extensive

report is not an adverse employment action; it does not “materially alter the terms and

conditions of employment.” Stutler, 263 F.3d at 703; see also Bragg v. Navistar Int’l

Transp. Corp., 164 F.3d 373, 378 (7th Cir. 1998) (affirming the district court’s grant of

summary judgment for the employer and finding that neither a performance exam nor a

supervisor's assessment of an employee's skills constitutes an adverse employment action).

Second, Plaintiff merely states that Underwood had her same position under Olson in Boston.
34

She offers nothing more to show they are directly comparable in all material respects. And

third, Plaintiff does not provide any specific evidence, other than her conclusory allegation,

that she has any personal knowledge or knows anything about the extensiveness of

Underwood’s reports under Olson. Rule 56(e) of the Federal Rules of Civil Procedure

mandates that affidavits supporting or opposing motions for summary judgment must 1) be

made with personal knowledge; 2) set forth facts that would be admissible into evidence; and

3) show affirmatively that the affiant is competent to testify on such matters. Johnson v.

Nordstrom, Inc., 260 F.3d 727, 736 (7th Cir. 2001). For these reasons, Underwood does not

establish that no similarly situated employees who did not engage in protected activity were

subjected to a hostile work environment or denied a within-grade pay increase.

(5) Ronald Rogala

Prior to April 1999 when Rogala was a division chief under Olson’s supervision,

Plaintiff claims that Olson treated other CRO department heads, including Rogala, more

favorably than Plaintiff. Plaintiff alleges that Olson did not subject Rogala’s department to

any special audits or reviews, despite his department’s scorecard ratings being at or below

Plaintiff’s. Plaintiff also claims that while she was removed from the order of succession

at the CRO, Rogala was not removed. 

Again, Plaintiff fails to show the Court that she and Rogala were similarly situated.

Plaintiff claims Rogala was a division chief under Olson’s supervision prior to 1999.

Plaintiff offers the Court nothing more to demonstrate that Rogala was directly comparable

to her in all material respects. Notwithstanding Plaintiff’s failure to show she and Rogala
5

 Plaintiff also claims that Hunt’s department was not subjected to any special audits or

reviews, despite her department’s scorecard ratings being at or below Plaintiff’s, and while

Plaintiff was removed from the order of succession at the CRO, Hunt was not removed. As

stated above, however, such a removal does not constitute an adverse employment action, and

neither does an audit or review. Moreover, Plaintiff has not shown that Hunt was a similarly

situated employee. Therefore, this allegation also fails to meet the similarly situated prong. 

35

were similarly situated, as described above, ordering an audit is not an adverse employment

action. Twisdale v. Snow, 325 F.3d at 953. 

Regarding her removal from the order of succession, this event transpired in August

2000. By that time, Rogala was the Assistant Director and Plaintiff’s supervisor and thus the

two could not have been similarly situated. Regardless, removing an employee from the

order of succession does not materially alter her terms and conditions of employment and is

thus not an adverse employment action. See, e.g., Hottenroth, 388 F.3d at 1031; Twisdale,

325 F.3d at 953.5

(6) Lyle Stratton and Ramona Garnier

Plaintiff claims that “unlike [her], other VA employees who complained about

computer tampering, including Lyle Stratton and Ramona Garnier, did not receive letters of

counseling.” Pl. Mem. at 9. Plaintiff offers no evidence to even attempt to show that she and

either Stratton or Garnier are similarly situated. 

Plaintiff cannot satisfy the similarly situated prong and thus she has failed to establish

a prima facie case of retaliation. With Bates and Carr, Plaintiff merely presented their

testimony, without any specific evidence, that they thought Plaintiff was treated differently.
36

Regarding the other six individuals, Plaintiff failed to present a single, cogent argument that

any of them were indeed similarly situated to Plaintiff. Plaintiff couched her argument in

conclusory allegations without directing the Court to specific evidence. Regardless, the

Court followed Plaintiff’s citations from her brief to her statement of facts to Plaintiff’s

deposition to see if such evidence exists. The Court found none. 

Under the similarly situated prong, Plaintiff only discussed separate, minor

employment actions that this Court has found do not collectively amount to a hostile work

environment. Plaintiff did not even discuss the denial of her within-grade pay increase in the

context of similarly situated employees. Plaintiff failed to demonstrate that no similarly

situated employee who did not complain about discrimination or file an EEO charge was

subjected to the adverse employment action. Plaintiff did not establish a prima facie case of

retaliation.

3. Defendant Presented Evidence Of A Non-Invidious Reason For Denying

Plaintiff’s Within-Grade Pay Increase.

Had plaintiff been able to establish a prima facie case of retaliation, the burden would

then shift to Defendant to present evidence of a non-invidious reason for the adverse

employment action. Mannie, 394 F.3d 984. For completeness, the Court will consider this

issue. Defendant focuses its argument on the denial of Plaintiff’s within-grade pay increase.

Therefore, in her response, Plaintiff also addresses the pay increase denial. Even though the

denial of Plaintiff’s within-grade increase was not timely filed, it was the only adverse

employment action Plaintiff was subject to, and thus the Court will address this issue on the
37

merits, as stated above, for completeness.

Defendant argues that Olson’s testimony at the MSPB Board hearing that he denied

Plaintiff’s within-grade pay increase because she failed to communicate with Rogala and

himself constitutes a non-invidious reason for the employment action. At the hearing, Olson

provided various examples of Plaintiff’s failures to communicate. In one example, he

described how he became aware that one of Plaintiff’s employees traveled to a national

meeting only after learning it from someone in Washington, D.C., and then after questioning

Plaintiff about the matter, Olson concluded that she lied to him about her prior knowledge

of the trip. Def. App. Ex. Olson MSPB Testimony at 183-184. In another instance, Olson

explained that Plaintiff failed to inform him that a company she was working with was

having problems with the CRO, and, again, Olson first learned of the problems when the

director of VR&E service in Washington D.C. called him. Id. at 174-176. Olson also

explained how Plaintiff failed to advise him of a lengthy delay in reclassifying two of her

employees’ positions to the GS-10 level. Id. at 184-186. Lastly, Olson testified that Plaintiff

neglected to tell him that an employee at an out-base office was retiring, and he ended up

learning of the retirement from human resources. Id. at 184. 

The Seventh Circuit has explained that “[t]he reason provided for the adverse action

can be ‘good or bad, provided only that it is not one that the law forbids.’” Wyninger v. New

Venture Gear, Inc., 361 F.3d 965, 981 (7th Cir. 2004) (quoting Stone, 281 F.3d at 642). In

light of Olson’s testimony that he denied her within-grade pay increase because of her poor

communication, the Court finds that Defendant has presented a legitimate, non-invidious
38

reason for the pay increase denial. 

4. Plaintiff Did Not Demonstrate That Defendant’s Proferred Reasons Are

Pretextual.

Since Defendant met its burden of providing a non-invidious reason for the pay

increase denial, the burden then shifts back to Plaintiff to demonstrate that Defendant’s

profferred reason is pretextual. Mannie, 394 F.3d at 984. 

To demonstrate that a material issue of fact as to pretext exists, “a plaintiff must show

that either (1) it is more likely that a discriminatory reason motivated the employer than the

proffered non-discriminatory reason or (2) that an employer's explanation is not credible.”

Hudson, 375 F.3d at 561. However, “[p]retext is more than a mistake on the part of the

employer; it is a phony excuse.” Id. “The issue of pretext does not address the correctness

or desirability of reasons offered for employment decisions. Rather, it addresses the issue

of whether the employer honestly believes in the reasons it offers.” McCoy v. WGN

Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). The court looks to see

whether the defendant employer gave an honest explanation for the action it took. Hudson,

375 F.3d at 561. Lastly, “[a]s [the Seventh Circuit] often comment[s], courts do not sit as

super personnel departments to second guess an employer's facially legitimate business

decisions.” Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1007 (7th Cir. 2002).

In this case, Plaintiff argues that evidence of pretext is demonstrated by the fact that

an MSPB ALJ and one member of the two-member MSPB Board agreed that there was

insufficient evidence to justify the denial of Plaintiff’s within-grade increase. Plaintiff
39

claims this shows there are fact issues as to the legitimacy of Defendant’s decision to deny

Plaintiff’s within-grade increase. Defendant argues just the opposite; that no pretext exists

because “the MSPB Board itself could not agree that the denial was unsubstantiated, even

under their heightened ‘substantial evidence’ standard.” Def. Mem. at 25. 

Following the hearings on Plaintiff’s appeal, the ALJ ruled that Defendant failed to

establish by substantial evidence that Plaintiff’s performance was unacceptable and thus she

was entitled to her within-grade increase. Defendant appealed the ALJ’s decision to the

MSPB Board. The two Board members that reviewed the appeal could not agree on the

disposition of the case. The Chairman of the Board found substantial evidence of an

unacceptable performance; the other board member did not. Therefore, the initial MSPB

decision became the Board’s final decision. 

This Court is not concerned with whether or not Defendant’s decision “was accurate,

wise, or well-considered.” Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)

(affirming the district court’s grant of summary judgment for the employer). Our focus is

on whether or not Olson’s reason for his decision was honest. Id. The fact that two MSPB

board members could not reach agreement shows that Olson’s decision was not without

merit, but it is ultimately not relevant. Olson credibly testified before the MSPB and

explained that he denied Plaintiff’s within-grade increase because he felt her communication

was substandard. Olson supported his testimony with multiple examples of poor

communication by Plaintiff. The ALJ’s decision and the split Board do not establish pretext.

Plaintiff also claims that she has presented evidence that Olson’s testimony about her
40

communication problems is unsubstantiated. Specifically, Plaintiff cites two emails sent to

her in March and April of 2002, one year after the MSPB hearing, regarding two of the

examples Olson testified about in the hearing that demonstrated Plaintiff’s communication

problems. One email is from the employee that attended the national conference in

Washington, D.C., Samantha Martin (“Martin”), and the other is from the employee that

retired from the out-base office, Les Alper (“Alper”). 

Neither email raises a triable issue of fact on the issue of pretext. While both emails

explain the circumstances surrounding each incident more fully, neither email shows that

Plaintiff contacted Olson regarding either incident. Olson’s reason for denying Plaintiff’s

within-grade increase was her failure to communicate with him. While these emails may call

into question how reasonable Plaintiff’s failure to contact Olson was for each incident,

neither email shows that Plaintiff did indeed contact him. Again, the inquiry for the Court

is whether or not Olson’s reasoning was honest, not whether it was accurate, wise, or

well-considered. Stewart, 207 F.3d at 378. Olson testified that he was not contacted

regarding either incident and he believed he should have been. These two emails do not raise

a fact question that Olson’s profferred reason was phony or pretextual.

For these reasons, the Court finds that Plaintiff has not created a fact issue that

Defendant’s profferred reason for denying Plaintiff’s within-grade increase was pretextual.
41

IV. CONCLUSION

Summary judgment will be granted in favor of Defendant for several reasons. First,

Plaintiff failed to establish a prima facie case of retaliation. After engaging in protected

activity, Plaintiff was subjected to an adverse employment action. Yet the only adverse

action Plaintiff experienced was the denial of her within-grade increase; she was not

subjected to a hostile work environment. Plaintiff’s claim for the denial of her within-grade

increase, however, is time-barred for failing to exhaust her administrative remedies.

Furthermore, she did not demonstrate that no similarly situated employee who did not

complain about discrimination or file an EEO charge was subjected to either a hostile work

environment or a within-grade increase denial. 

Next, even if Plaintiff had established a prima facie case of retaliation on Plaintiff’s

within-grade increase denial claim and that claim was timely, summary judgment for

Defendant would be proper because Defendant presented unrebutted evidence of a noninvidious reason for the within-grade increase denial. Olson testified that he denied

Plaintiff’s within-grade increase because of her communication problems, and Plaintiff failed

to create a genuine issue of fact that this reason was pretextual. 

Plaintiff has not created a genuine issue of fact on her hostile work environment claim.

The Court thoroughly reviewed the briefs, facts, and exhibits of the case. In the end, the

Court concludes that Plaintiff was subjected to a variety of minor actions, which are endemic

to the workplace, and do not rise to the level of a hostile work environment. Defendant did

not unlawfully retaliate against Plaintiff.
42

For the reasons set forth in this opinion, Defendant’s motion for summary

judgment is granted and judgment is entered in favor of Defendant, Anthony J.

Principi, Secretary of the United States Department of Veteran Affairs, and against

Plaintiff, Catherine A. Kruger, on all three counts of Plaintiff’s complaint.

SO ORDERED THIS 8th DAY OF MARCH, 2006.

 

MORTON DENLOW

UNITED STATES MAGISTRATE JUDGE

Copies mailed to:

Roy R. Brandys

Ryan A. Haas

CHILDRESS DUFFY GOLDBLATT,

LTD.

525 N. State Street, Suite 2200

Chicago, IL 60610

Counsel for Plaintiff

Samuel D. Brooks

ASSISTANT UNITED STATES

ATTORNEY

219 South Dearborn Street

Chicago, IL 60604

Counsel for Defendant