In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3382

GUL RONEY,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF 

TRANSPORTATION,

Defendant-Appellee.

____________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 99 C 4941, Ian H. Levin, Magistrate Judge.

____________

ARGUED NOVEMBER 3, 2006—DECIDED JANUARY 18, 2007

____________

Before EASTERBROOK, Chief Judge, and FLAUM and

WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. This case concerns the second Title VII suit brought by Gul Roney, of Indian descent,

against his former employer, the Illinois Department of

Transportation (“IDOT”). In the first suit, filed in 1995, a

jury found that Roney had not been the subject of unlawful retaliation by IDOT. We affirmed that verdict in

Roney v. Illinois Department of Transportation, No. 98-

1298, 1999 WL 691165 (7th Cir. Sept. 2, 1999). While his

first appeal was pending, Roney filed a second suit against

IDOT asserting: (1) retaliation (for filing the first claim);

(2) employment discrimination on the basis of national
2 No. 05-3382

origin; and (3) hostile work environment. The district

court granted IDOT summary judgment on each of

Roney’s claims, finding that Roney could not establish a

prima facie case of retaliation or discrimination or show

that he was subject to a hostile work environment. We

agree and affirm.

I. BACKGROUND

Roney was hired by IDOT in 1979 as an Engineering

Technician II. By 1992, he had been promoted to level IV

(“ET-IV”) and attained the title of Resident Technician, a

position commonly referred to as “Resident Engineer.”

Resident Engineers are assigned by a construction supervisor to a project where they oversee the work of outside

contractors and supervise all IDOT employees on a project.

In 1994, Roney filed charges of discrimination with the

EEOC alleging that IDOT had engaged in national origin

discrimination and retaliation. He obtained a Notice of

Right to Sue, and in 1995, he filed his first Title VII action

against IDOT. In that suit, Roney claimed that IDOT

had given him lower salary increases due to his national

origin and retaliated against him after he complained to

his state representative. Roney’s case went to trial, and

the jury returned a verdict in favor of IDOT. Roney

appealed the verdict and we affirmed. See Roney, 1999 WL

691165, at *1.

On April 28, 1998, while Roney’s first appeal was

pending, he filed a second EEOC charge against IDOT

accusing it of national origin discrimination and retaliation for pursuing his earlier lawsuit. Roney initiated his

second lawsuit against IDOT on July 27, 1999, asserting

claims of retaliation, national origin discrimination, and

hostile work environment. On November 4, 1999, Roney

resigned from IDOT.
No. 05-3382 3

A few months later, Roney amended his EEOC charge

and alleged that IDOT retaliated against him for pursuing his previous lawsuit, filing his new EEOC charge and

bringing a second lawsuit. Roney then filed an amended

complaint, in which he alleged that he was constructively

discharged and subjected to a hostile work environment.

IDOT filed for summary judgment and argued, inter alia,

that some of Roney’s retaliation claims were time-barred.

The district court granted IDOT partial summary judgment on this basis and concluded that Roney’s claims

involving conduct occurring more than 300 days before

he filed his second EEOC charge (i.e., before July 2, 1997)

were time-barred. See Order at 2, Roney v. Ill. Dep’t of

Transp., No. 99 C 4941 (N.D. Ill. May 19, 2000). In reaching this conclusion, the district court found that there was

“no basis for finding a continuing violation in this case.”

Id. On August 15, 2000, Roney filed a second amended

complaint, which incorporated a second Notice of Right to

Sue. After the parties conducted discovery, IDOT again

filed a motion for summary judgment, which was granted

in its entirety. Roney appeals, and we review de novo the

district court’s decision. Tanner v. Jupiter Realty Corp.,

433 F.3d 913, 915 (7th Cir. 2006).

II. ANALYSIS

A. Roney’s Retaliation Claims

Under Title VII’s anti-retaliation provision, it is unlawful for an employer to “discriminate against” an employee

“because he has opposed any practice made an unlawful

employment practice” by the statute or “because he has

made a charge, testified, assisted, or participated in” a

Title VII “investigation, proceeding, or hearing.” 42 U.S.C.

§ 2000e-3(a). An employee can establish a prima facie case

of retaliation by proceeding under either the direct or

indirect method. See Sublett v. John Wiley & Sons, Inc.,
4 No. 05-3382

463 F.3d 731, 740 (7th Cir. 2006). Under the direct approach, the employee must show evidence that he engaged

in a statutorily protected activity (such as bringing a

Title VII claim) and as a result, suffered an adverse action.

Id. Alternatively, the employee may proceed under the

indirect approach and show that after he complained of

discrimination, he, and not any other similarly situated

employee who did not complain, was subject to an adverse

action although he was performing up to the employer’s

legitimate job expectations. Id. “Failure to satisfy any one

element of the prima facie case is fatal to an employee’s

retaliation claim.” Id. (quoting Hudson v. Chi. Transit

Auth., 375 F.3d 552, 560 (7th Cir. 2004)).

i. Roney’s demotion claim is time-barred.

Before we address the sufficiency of Roney’s claims of

retaliation, we must first settle an issue disputed by the

parties at oral argument: whether Roney’s demotion

claim is time-barred by Title VII’s statute of limitations.

At the outset of the litigation, the district court ruled that

Roney could not recover on his claims that involved

conduct occurring before July 2, 1997. The district court’s

ruling stems from 42 U.S.C. § 2000e-5(e)(1), which provides that a charge of employment discrimination must

be filed with the EEOC within 300 days of the alleged

unlawful employment practice. An “unlawful employment

practice” includes various discrete acts such as “termination, failure to promote, denial of transfer, or refusal to

hire.” See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 114 (2002); 42 U.S.C. § 2000e-2(a). If a plaintiff does

not file a charge concerning a discrete act of discriminatory

conduct within 300 days of its occurrence, his claim is

time-barred and he may not recover. Morgan, 536 U.S. at

109-10. Because Roney’s EEOC charge was filed on April

28, 1998, any discrete acts that occurred more than 300
No. 05-3382 5

1 Docket No. 86, Lee Schmidt Dep., Ex. 15, Roney v. Ill. Dep’t of

Transp., No. 99 C 4941 (N.D. Ill. May 4, 2005).

days prior to this date, or before July 2, 1997, cannot be

the basis of his Title VII claims.

Although Roney acknowledges the cut-off date in his

brief, one of his most significant claims of retaliation—that

IDOT demoted him from the position of Resident Engineer, ET-IV to Resident Technician/Inspector—took place

in November 1996. At oral argument, Roney’s counsel

characterized Roney’s alleged demotion by IDOT as

conduct of a “continuing nature,” of which Roney did not

become aware until he received a performance evaluation

in 1998. However, the record establishes that Roney

knew about the retaliatory act of which he now complains shortly after it occurred. On November 21, 1996,

Roney wrote a letter to his supervisor, Lee Schmidt,

wherein Roney complained that Schmidt had entered

Roney’s working title as Resident Technician/Inspector in

his performance plan for November 1996 to November

1997. In the letter he states, “it appears that you want

me to consent to your biased and prejudicial review of my

overall and specific abilities contrary to Mr. Saeed’s

rating.”1

 It is clear that Roney thought he had been

discriminated against by the change in his title, which

Roney claims was a demotion; however, Roney waited over

300 days to file a charge with the EEOC.

As explained by the Supreme Court in Morgan, “discrete

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.” 536 U.S. at 113.

A demotion, like other discrete acts of alleged discrimination, is an unlawful employment practice that must

be brought to the EEOC’s attention within 300 days of
6 No. 05-3382

2 Title VII’s filing requirement is subject to the doctrines of

equitable tolling and estoppel, see Morgan, 536 U.S. at 113,

however, Roney does not invoke them in support of his argument that his demotion claim was timely filed.

its occurrence. See Pegram v. Honeywell, Inc., 361 F.3d

272, 280 (5th Cir. 2004) (listing demotions in the category

of discrete acts). Because Roney waited more than 300

days after the alleged demotion to file an EEOC charge,

his demotion claim is time-barred.2

 In addition, the

incidents accompanying the demotion—his inability to

control his own overtime and the loss of his Resident

Engineer mailbox—are likewise excluded from our consideration. See Jones v. Merchants Nat’l Bank & Trust Co.

of Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994) (finding

that because the plaintiff’s promotion claims were untimely, her claim of discriminatory pay based on her

failure to obtain the promotion was also time-barred).

ii. Roney cannot establish a prima facie case of retaliation.

We now turn to Roney’s timely filed claims of retaliation.

In doing so, we recognize that the discriminatory acts

proscribed by Title VII’s anti-retaliation provision are

not limited to those that affect the terms and conditions

of one’s employment. See Burlington N. & Santa Fe Ry.

Co. v. White, 126 S. Ct. 2405, 2412-13 (2006). However, the

employer’s challenged action must be one that a reasonable employee would find to be materially adverse such

that the employee would be dissuaded from engaging

in the protected activity. See id. at 2415. As discussed

below, Roney’s numerous claims of retaliation cannot

succeed because they either do not rise to the level of a

materially adverse action or have no support in the record.

Roney alleges that IDOT retaliated against him both

during and after his employment at IDOT. During his
No. 05-3382 7

employment, Roney claims that IDOT: (1) assigned him to

a dangerous inspection job for which he had not been

trained; (2) refused to create a performance plan for him;

(3) refused his request to use a state vehicle; (4) prevented

him from getting a merit raise by ignoring a positive letter

of recommendation; (5) threatened him with termination

because he did not file an Economic Interest Statement;

and (6) disciplined him based on fabricated grounds. Roney

also raises a claim of constructive discharge that we

will address at the conclusion of this opinion.

Roney contends that he was “assigned to painting

operations, a dangerous job, for which [he] was never

trained” Brief for Appellant at 23, Roney v. Ill. Dep’t of

Transp., No. 05-3382 (7th Cir. Mar. 23, 2006); however,

Roney misrepresents the actual nature of his job assignment. The testimony of Roney’s supervisor Schmidt makes

clear that Roney was not assigned to perform the painting

operations. Rather, his job was to inspect the operations

under the supervision of a Resident Engineer. According to

Schmidt, depending on work load and personnel availability, he would often assign people with Resident Engineer

status, like Roney, to work as an inspector under another

Resident Engineer in charge of a project. Because such

assignments were routine, it is unlikely that a reasonable

employee would view Roney’s inspection assignment as

materially adverse.

Next, Roney cites IDOT’s refusal to create a performance

plan for him between 1996 and 1999, a document that

purportedly forms the basis of an employee’s yearly

evaluation. It is unclear, however, in what way IDOT’s

omission adversely affected Roney. The record shows that

four performance evaluations were completed for Roney

between 1996 and 1999; therefore, any significance that

IDOT’s alleged refusal to create a performance plan may

have had is diminished. Roney’s third claim, that IDOT

refused him use of a state vehicle, is not a materially
8 No. 05-3382

adverse action. Although IDOT’s conduct may have

inconvenienced Roney, it is unlikely that it would have

deterred a reasonable employee from making a charge of

discrimination.

Roney also contends that IDOT deprived him of an

“exceptional performance merit raise” by ignoring an

unauthenticated letter of recommendation written by

another Resident Engineer. However, Roney’s claim is

defeated by the fact that IDOT was no longer giving such

raises during the period at issue. The evidence that Roney

offers in support of his fifth claim, that IDOT threatened

him with termination if he did not file an Economic

Interest Statement (“EIS”), is insufficient to defeat IDOT’s

motion for summary judgment. Roney cites to his declaration and deposition testimony, however, this evidence

lacks the requisite specificity to show that there is a

genuine issue for trial. See Fed. R. Civ. P. 56(e). Roney’s

statements do not establish that IDOT was prohibited

from requiring him to complete an EIS; nor is it known

that IDOT’s alleged threat of termination to enforce this

requirement was improper, let alone a discriminatory

act that could be considered materially adverse.

In Roney’s sixth claim, he alleges that in 1999, IDOT

took two disciplinary actions against him that were based

on fabricated grounds. The first action, which resulted

in an oral warning, stemmed from a May 1999 incident

between Roney and Resident Engineer Imad Shahatit.

According to the disciplinary report, when Shahatit

confronted Roney about his absence from the job site,

Roney responded by screaming and yelling at Shahatit

and jumping and shaking his head and arms. A contractor who witnessed the incident verified Shahatit’s

story in a statement. Other than Roney’s own speculation,

he points to no evidence that suggests IDOT would invent

the basis for processing the oral warning. The second

disciplinary action of which Roney complains occurred on
No. 05-3382 9

July 21, 1999, when IDOT issued another disciplinary

report that accused Roney of falsifying his time record

with regard to overtime. In addition to repeating the

unsubstantiated assertion that IDOT fabricated this

disciplinary report, Roney alleges that IDOT illegally

destroyed the job site records that “would likely” have

assisted him in verifying that he worked on the dates

in question. It is unclear from the record whether IDOT

prematurely destroyed the job site records; however, Roney

does not put forth any evidence that those records contained information that would have confirmed that he

worked on those days.

Roney’s remaining claims of retaliation, which occurred

after he left IDOT, also fall short of constituting a materially adverse action. First, Roney claims that in 2001,

during the Illinois State Police’s investigation of a threatening letter received by an IDOT employee, IDOT falsely

reported that Roney had been terminated from his employment. According to Roney, IDOT’s report caused the

police to interview him as part of its investigation. While

the record is bereft of any direct evidence of the exact

information IDOT conveyed to the police about Roney, one

could infer that someone at IDOT identified Roney as a

former employee who resented the Department. This

sentiment, however, is revealed by the comments Roney

made in his exit interview form. An employer’s truthful

report to the police about an employee is not an adverse

action. Aviles v. Cornell Forge Co., 241 F.3d 589, 593 (7th

Cir. 2001). Roney also claims that IDOT caused the Illinois

Department of Employment Security (“IDES”) to deny

him unemployment benefits. However, there is no evidence that IDES’s ultimate denial of benefits to Roney

could be attributed to IDOT. Rather, the administrative

decision was based on IDES’s finding that Roney was not

constructively discharged because he chose to voluntarily

resign instead of going through the available hearing

process.
10 No. 05-3382

None of the above-alleged acts of discrimination have

the necessary support to establish that they were materially adverse. Therefore, Roney cannot prove this essential

element of a prima face case of retaliation under either

the direct or indirect method. As such, it is unnecessary

for us to determine whether Roney was treated differently

from a similarly situated employee.

B. Roney’s Remaining Title VII Claims

As detailed above, Roney cannot show that he suffered

an adverse employment action; therefore, his claim of

national origin discrimination likewise fails. See Ptasznik

v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006)

(citing as an element of a prima facie case of discrimination under the indirect method a showing that the employee was subject to an adverse employment action).

Roney’s final claim is that he was subjected to a hostile

work environment because he was embarrassed and

humiliated by IDOT’s treatment. For this claim to be

actionable, the conduct of which Roney complains “must be

sufficiently severe or pervasive to alter the conditions of

employment and create an abusive working environment.”

Ezell v. Potter, 400 F.3d 1041, 1047 (7th Cir. 2005).

Furthermore, the workplace must be shown to be both

subjectively and objectively offensive. Id. Roney submits

that he was embarrassed and humiliated by IDOT’s

treatment, but he offers nothing in the way of establishing

that his work environment could objectively be perceived

as hostile; therefore, this claim is without merit.

Because we find that Roney was not subject to a hostile

work environment, his claim of constructive discharge is

automatically foreclosed. To advance such a claim, an

employee’s working conditions “must be even more egregious than the high standard for hostile work environment

because an employee is expected to remain employed while
No. 05-3382 11

seeking redress.” See Patton v. Keystone RV Co., 455 F.3d

812, 818 (7th Cir. 2006) (internal citations and quotations

omitted). Furthermore, Roney has not alleged any conditions that could be considered “so intolerable that a

reasonable person would have felt compelled to resign.”

See Pa. State Police v. Suders, 542 U.S. 129, 147 (2004).

In sum, Roney is unable to establish a prima facie case

of retaliation or national origin discrimination. Nor can he

sustain his claims of hostile work environment or constructive discharge. Therefore, the district court’s grant of

summary judgment to IDOT was proper.

III. CONCLUSION

The judgment of the district court is hereby AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-18-07