In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2144

HAMIDA H. NAFICY,

Plaintiff-Appellant,

v.

ILLINOIS DEP’T OF HUMAN SERVICES,

Defendant-Appellee.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:09-cv-05408—James F. Holderman, Chief Judge.

ARGUED MAY 23, 2012—DECIDED SEPTEMBER 18, 2012

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. Hamida Naficy sued her employer, the Illinois Department of Human Services

(“IDHS”), alleging discrimination and retaliation under

42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e, et seq.

After dismissing the § 1981 claims, the district court

granted summary judgment to IDHS on Naficy’s Title VII

claims. Naficy appeals, and we affirm.
2 No. 11-2144

I.

Naficy, who is Iranian, began working for IDHS as

a social worker in 1996 at the Chicago Read Mental

Health Center. Social workers for IDHS are classified as

a Social Worker I, II, or III, respectively, with Social

Worker III being the most experienced. Naficy started

at Read Mental Health Center as a Social Worker II.

In 2000, she was promoted to the position of Social

Worker III and also transferred to the Madden Mental

Health Center.

At both Madden and Read, Naficy worked with

Judy Bailey. According to Naficy, Bailey mocked her

accent and suggested that she should not have been

promoted to a Social Worker III because she was Iranian.

In 2005, Bailey became director of the social work department at Madden. As the director of the social work department, Bailey was Naficy’s supervisor. While Bailey

was her supervisor, Naficy filed two complaints of discrimination. The first was filed in 2005 and related to

Naficy’s treatment during a layoff and subsequent

recall back to her previously held position. It is unclear

from the record precisely how that layoff affected

Naficy, but she was ultimately placed in a Social

Worker III position at Madden in September of that

same year. In April 2009, Naficy filed a second complaint of discrimination after she received unfavorable

performance evaluations from Bailey.

Naficy’s current lawsuit arises out of events at Madden

in 2010 related to the closure of another IDHS facility—the

Howe Developmental Center in Tinley Park, Illinois. In
No. 11-2144 3

implementing the Howe closure, IDHS was obligated to

follow certain provisions of a collective bargaining agreement (“CBA”) in effect between it and the American

Federation of State, County and Municipal Employees

(“AFSCME”). Like most IDHS employees, Naficy is a

member of AFSCME. The CBA governs layoffs, and

closing the entire Howe Developmental Center naturally

necessitated a number of layoffs.

The CBA provides that in the event of a layoff, employees may take advantage of a process known as

“bumping,” whereby more senior employees may

displace or “bump” less senior employees subject to

the CBA at other IDHS facilities. The CBA sets forth

the procedures that must be followed for more senior

employees to bump less senior employees. First, IDHS

must notify all employees potentially affected by a

layoff of their rights under the CBA. This notification

must include the following information: (1) a roster

listing employees either subject to layoff or affected by

the layoff and their respective seniority dates, (2) a list

of IDHS vacancies, and (3) available “bumping” options

for employees who may be affected by layoff.

The bumping options are exercised according to seniority: “Starting with the highest bargaining unit and pay

grade” an employee may choose to “exercise or waive” his

or her available bump options. The process, outlined in

detail in the CBA, proceeds according to what are identi-
4 No. 11-2144

In the district court, Naficy denied all of IDHS’s statements 1

of material fact relating to the layoff procedures, but she cited

no contradictory evidence refuting the procedures. Like the

district court, we accept IDHS’s statements of fact and the

text of the CBA itself as undisputed on this point because

Naficy has offered nothing that undermines either one.

fied as “bumping priorities” one through six. First, an 1

employee subject to layoff “shall bump the least senior

employee in the same position classification and work

location.” (Art. XX - Layoff, §§ 3(c)-(h).) Second, if no

one is available to bump at that work location, the employee must bump the least senior employee in that

position classification at another facility within the

county. (Id. § 3(d).) If neither of those options is available, number three directs the employee to bump into

the next lower position in the same position classification series at the same work location. (Id. § 3(e).) If there

is no such available position, an employee must then

bump into the next lower position somewhere within

the county. (Id. § 3(f).) If options one through four are

not possible, steps five and six allow an employee to

bump into a “previously certified position classification”

in either the same work location (step five) or elsewhere

within the county (step six). (Id. §§ (g)-(h).)

In January 2010, Naficy and other IDHS employees

potentially affected by the Howe closure received a

letter alerting them to the possibility of a layoff and

outlining potential bump options available to them.

Naficy’s letter listed her potential bump options as

follows: (1) Social Worker III at Madden Mental Health
No. 11-2144 5

Center, (2) Social Worker III (Spanish speaking) at

Madden, (3) Social Worker III (part-time) at Madden, and

(4) Social Worker II at Madden. The letter also explained

that she could “choose not to bump,” and select an IDHS

vacancy for which she was qualified anywhere in the

state, seniority permitting. The letter also contained an

employment application that Naficy could use to determine whether she was qualified for a “lateral move or

voluntary reduction” into a position included on a published vacancy list. The letter was signed by Elizabeth

Sarmiento, the Director of Human Resources. Finally,

the letter informed Naficy that the meeting to discuss her potential options would be held at the Howe

Developmental Center on February 2, 2010.

At that time, Naficy met with Mark Samaras, the manager of the Bureau of Human Relations, to discuss her

options. According to IDHS, as employees exercised

their bumping options, Naficy was bumped from her

position by a more senior IDHS employee. She asserts

that during her meeting Samaras told her, without explanation, that her only remaining option was to take

the part-time Social Worker III position at Madden. In

addition to being part instead of full time, that position

required Naficy to switch from working typical day

shifts to working nights from midnight until 6:45 a.m.

three days a week (Tuesday, Wednesday, and Saturday).

IDHS staff filled out a form for Naficy to sign reflecting

her decision to bump into the part-time position. Naficy

was officially reassigned to the part-time position

on June 1, 2010. She was allowed to return to her

former position (full-time Social Worker III) with the
6 No. 11-2144

In her response to IDHS’s statements of material fact, Naficy

2

denied the allegation that Byrne waived her right to bump. The

district court concluded that Naficy had failed to provide

any evidence contradicting IDHS’s evidence on this point

and observed that despite her denial Naficy “appear[ed] to be

in general agreement that Byrne did not elect to bump and

was allowed to fill a vacant position as a Social Worker II at

the Elgin facility.” Like the district court, we can see nothing

in the record that undermines IDHS’s evidence that Byrne

waived her right to bump and later transferred into the

Social Worker II position.

same schedule and salary two months later on August 1,

2010.

At the time of the Howe layoffs, there were three other

Social Worker III employees at Madden who were less

senior than Naficy. The first, Jaime DeJesus, speaks

fluent Spanish and held the Spanish-speaking Social

Worker III position. The second, Sharon Byrne, waived

her right to bump under the terms of the CBA. When 2

the bumping process was complete at the end of

February, Byrne transferred into a vacant full-time

Social Worker II position in Elgin, Illinois. The third,

William Safian, worked as a part-time Social Worker III.

Safian was laid off because Naficy bumped Safian when

she moved into what had previously been his part-time

position.

Naficy filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) in March 2010,

alleging that her reassignment to the part-time position

was discriminatory and retaliatory. Specifically, she
No. 11-2144 7

Although it is questionable whether this portion of Jett 3

survived the 1991 amendments to § 1981, Naficy has not

appealed the district court’s dismissal of her § 1981 claims. In

any event, Naficy would still have had to show a pattern or

practice of discrimination by IDHS, see Smith v. Chicago Sch.

Reform Bd. of Tr., 165 F.3d 1142, 1148-49 (7th Cir. 1999), and

there is no suggestion from the record that she could have

done so.

claimed that IDHS reassigned her to retaliate for

previous discrimination complaints she had filed with

the EEOC and because she is Iranian. On April 14, 2010,

Naficy received a right-to-sue letter from the EEOC.

Naficy sued IDHS for discrimination and retaliation

under both Title VII and 42 U.S.C. § 1981. The district

court dismissed Naficy’s claims under § 1981 reasoning

that as a state agency, IDHS is not a “person” amenable

to suit under 42 U.S.C. § 1983, see, e.g., Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 70-71 (1989), which

“constitutes the exclusive federal remedy for violation

of the rights guaranteed in § 1981 by state governmental

units.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733

(1989). The court then granted summary judgment to

3

IDHS on Naficy’s Title VII claims. Specifically, the court

concluded that Naficy had no direct evidence of discrimination by anyone involved in her reassignment. Naficy’s

claims fared no better under the indirect method,

where the district court observed that she had failed

to identify a similarly situated IDHS employee who

received better treatment than she during the Howe

layoffs. Finally, the court rejected Naficy’s retaliation
8 No. 11-2144

claim because Naficy had produced no evidence that her

EEOC complaints motivated her reassignment during

the Howe layoffs. Moreover, the considerable temporal

gap between her complaints (one in 2005 and one in

April 2009) and the February 2010 layoffs undermined

the claim of a causal connection between the two.

II.

We review the district court’s grant of summary judgment de novo, examining the record in the light most

favorable to Naficy and construing all reasonable inferences from the evidence in her favor. E.g., O’Leary v.

Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).

Summary judgment is appropriate when there are no

genuine disputes of material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

As relevant here, Title VII forbids an employer from

discharging or demoting an individual on account of

her race or national origin. 42 U.S.C. § 2000e-2. Title VII

also prohibits retaliation for protesting employment

discrimination and other unlawful practices under the

statute. Id. § 2000e-3(a). We begin with Naficy’s discrimination claims. A plaintiff alleging disparate treatment

on account of national origin may prove discrimination

either directly or under the indirect burden-shifting

approach outlined in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1972). Naficy claims she has advanced

sufficient evidence to withstand summary judgment

under both the direct and indirect methods. We disagree.
No. 11-2144 9

Although it is not relevant to the outcome of the appeal, we 4

note that there is some confusion surrounding which

languages Naficy speaks. Naficy’s brief states that she speaks

(continued...)

To avoid summary judgment using the “direct method,”

a plaintiff must marshal sufficient evidence, either direct

or circumstantial, that an adverse employment action

was motivated by discriminatory animus. E.g., Coleman

v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). Direct

evidence “usually requires an admission from the

decisionmaker about his discriminatory animus, which

is rare indeed.” Nagle v. Vill. of Calumet Park, 554 F.3d

1106, 1114 (7th Cir. 2009). Circumstantial evidence may

be sufficient to make out a direct claim of discrimination when the plaintiff presents enough evidence to

allow a reasonable factfinder to conclude that the

adverse employment action was taken as a result of the

plaintiff’s race or national origin. Dass v. Chicago Bd. of

Educ., 675 F.3d 1060, 1071 (7th Cir. 2012).

Naficy points to several facts that she believes amount

to direct evidence that IDHS discriminated against her

in the bumping process. First, she makes much of

the fact that despite her seniority, she was denied the

Spanish-speaking Social Worker III position given to

DeJesus. As best we can tell, she is suggesting that she

has shown discrimination from the fact that IDHS had

a need for a Spanish-speaking social worker instead of a

multilingual employee, like Naficy, who spoke Farsi

(Iranian) and Dari (Afghan). And although she asserts 4
10 No. 11-2144

(...continued) 4

“various Arab dialects,” but she explained in her affidavit in

the district court that she speaks “Farci (Iranian) and Darai

(Afghan).” We assume this means that she speaks Persian—specifically Farsi or Parsi (spoken in Iran, Afghanistan,

and Tajikstan) and Dari (one of the two official languages

of Afghanistan). See Persian Language, Wikipedia, http://

en.wikipedia.org/wiki/Farsi (last visited Aug. 3, 2012).

without support that IDHS “falsely” said the position

was for a Spanish speaker, there is no evidence in the

record that supports this claim. The relevant question

under the direct method is whether the evidence “points

directly” to a discriminatory motive for the employer’s

decision. See Kodish v. Oakbrook Terrace Fire Prot. Dist.,

604 F.3d 490, 501 (7th Cir. 2010) (citation and internal

quotations omitted). The fact that IDHS gave preference

to a Spanish-speaking employee for a Spanish-speaking

position not only fails to “point directly” to discrimination, it does not even raise the implication of discrimination. The only reasonable inference to be drawn from

the fact that IDHS gave the position to DeJesus and

not Naficy is that it needed an individual who spoke

Spanish—a fact that has no bearing on whether or not

IDHS did or did not want employees who spoke Persian. There is no evidence that there was a need for a Farsi

or Dari-speaking Social Worker III. It thus strains reason

to suggest that a Farsi speaker should be chosen for a

Spanish-speaking position or to imply that discrimination

motivated the choice of DeJesus over Naficy. The CBA

expressly reserves IDHS’s right during a layoff “to estab-
No. 11-2144 11

lish bona fide requirements of specialized skills, training,

experience and other necessary qualifications[.]” Naficy

can point to nothing suggesting that IDHS did not have

a bona fide need for a Spanish speaker, and thus its

choice of DeJesus for the position does not raise an inference of discrimination.

Naficy next asserts that discrimination is shown by

the fact that Sandra Byrne was allowed to “bump social

worker II’s for a position,” and Naficy was not. This

claim is inconsistent with the uncontroverted evidence.

Byrne waived her right to bump. She thus did not “bump”

anyone; instead, she transferred into a position that

became open after those employees who opted to

exercise their bumping rights had completed that process. Naficy fails to point to any evidence that undercuts

this chain of events. She makes much of the fact

that Samaras did not tell her during the meeting that she

could elect not to participate in the bumping process.

But the letter listing her options plainly stated that she

could “choose not to bump” in hopes of transferring into

a vacancy for which she was qualified. It is true that

the position which Byrne ultimately transferred into

did not appear on the original list of vacancies attached

to the January 2010 letter. IDHS presented evidence

that the Social Worker II position in Elgin was added to

the vacancy list via addendum in February after the

union requested that IDHS update the list of vacant

positions. Naficy offers nothing to refute this explanation as to how this position became available. Thus,

Byrne’s treatment does not support the inference that
12 No. 11-2144

anyone at IDHS intended to discriminate against Naficy

on the basis of her national origin.

Lastly, Naficy points to her supervisor Judy Bailey,

claiming that she openly disparaged Naficy’s accent

and attempted to prevent her from obtaining a Social

Worker III position from a recall list during a prior

layoff in 2005 (an incident that formed the basis for

Naficy’s 2005 EEOC complaint). She has neither explained

what happened in the 2005 layoff nor connected her

treatment during it to her reassignment during the

2010 Howe layoffs. Moreover, Naficy has not linked

Bailey to her February 2010 reassignment. Samaras, the

Human Relations manager, testified in his deposition

that Bailey had no input into the layoff process that

accompanied the closure of Howe. Bailey also testified

that she was uninvolved in the process and in fact did

not know Samaras. Naficy’s “evidence” that Bailey

was somehow connected is based on her bare assertion

that Bailey was upset when she heard that Naficy took

the part-time position. Specifically, Naficy claims that

when she informed Bailey after the meeting that she

had taken the part-time position, Bailey was “actually

angry” and asked Naficy why she took the part time

job. Naficy took this response to mean that Bailey somehow had a hand in the layoff process and had been

hoping to use it as an opportunity to eliminate Naficy

because she is Iranian. Naficy further claims that

Bailey’s “anger” proves that she was unhappy that Naficy

bumped a non-Iranian out of the position and did not

lose her job entirely. Bailey, for her part, testified that

she was “surprised and kind of shocked that a full-time
No. 11-2144 13

employee would select a part-time position,” and that

she had urged Naficy to speak to her union representative, which Naficy did. We may accept Naficy’s view of

Bailey’s reaction, but it does nothing to prove Bailey had

a hand in the layoffs. And without evidence connecting Bailey to the layoff process, her alleged discriminatory animus towards Naficy is irrelevant. See Martino

v. MCI Commc’n Servs., Inc., 574 F.3d 447, 452-53 (7th

Cir. 2009) (individual’s discriminatory comments only

relevant if he was a decisionmaker or had “ ‘singular

influence’ ” over the decisionmaker) (internal citation

omitted). There is thus neither direct nor circumstantial

evidence in the record sufficient to create a triable

issue of fact of discrimination under the direct method.

Naficy’s discrimination claim fares no better under

McDonnell Douglas’s indirect burden-shifting method.

Under this method, a plaintiff must first establish a

prima facie case of racial or national origin discrimination with evidence that (1) she is a member of the

protected class; (2) she met her employer’s legitimate

job expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside

of the protected class were treated more favorably. E.g.,

Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 702

(7th Cir. 2012). If Naficy succeeds in establishing a

prima facie case, the burden shifts to IDHS to introduce

a legitimate, nondiscriminatory reason for the employment action. Id. Then Naficy could avoid summary judgment with evidence suggesting that IDHS’s stated

reason is in fact pretextual.
14 No. 11-2144

Although Naficy can establish the first through third

elements of a prima facie case, she fails to identify a

similarly situated employee who was not adversely

affected in the layoffs. Naficy insists that both DeJesus

and Byrne are similarly situated employees. But as discussed above, both individuals differ from Naficy in

critical respects. DeJesus speaks Spanish, and Naficy

admittedly does not. He was therefore qualified for the

Spanish-speaking position, a material difference between him and Naficy that provides a nondiscriminatory explanation as to why he was not bumped from

his full-time position. As for Byrne, her decision to opt

out of the bumping process placed her in a fundamentally different position than Naficy when it came to

the layoffs. By waiving her right to bump, Byrne

removed herself entirely from the process (at the risk of

losing her job if no vacancies remained when the

bumping was complete). She is therefore an unsuitable

comparator for Naficy.

Naficy devotes much of her brief to lengthy quotes

from our recent decision in Coleman v. Donahoe, 667 F.3d

835 (7th Cir. 2012), where we discussed the similarly

situated requirement in the context of a Postal Service

employee’s discrimination claim. We acknowledged in

Coleman that employees need not be carbon copies, nor

must they be “identical in every conceivable way” in

order to provide a useful comparator. See id. at 846. True

as this may be, it is unhelpful for Naficy, because the

distinctions between herself and her would-be comparators, DeJesus and Byrne, are material in that they go to

the heart of why Naficy received different treatment.
No. 11-2144 15

And the differences—that DeJesus spoke Spanish and

that Byrne waived her right to bump—provide a reason

for their better treatment entirely unrelated to Naficy’s

national origin.

Indeed, these differences provide the basis of IDHS’s

legitimate, nondiscriminatory explanation for Naficy’s

treatment. And Naficy has provided no evidence that

refutes or casts doubt on IDHS’s explanation. Thus, we

could go so far as to assume Naficy had established

a prima facie case under the indirect method, and her

claim would still fail on account of her inability to

cast doubt on IDHS’s nondiscriminatory reason for the

employment action. See Keeton v. Morningstar, Inc., 667

F.3d 877, 885 (7th Cir. 2012).

That leaves Naficy’s retaliation claim. Like discrimination under Title VII, retaliation may be proven using

either the direct or indirect method. Naficy discusses

only the direct method in her brief. Under the direct

method, Naficy may avoid summary judgment by presenting evidence of (1) statutorily protected activity,

(2) an adverse action (sufficiently material to deter protected activity), and (3) a causal connection between

the two. E.g., Harper v. C.R. England, Inc., 687 F.3d 297, 306

(7th Cir. 2012). Naficy can show causation with evidence

that her EEOC filings in 2005 and 2009 were a “substantial

or motivating factor” in her treatment during the

Howe layoffs. Coleman, 667 F.3d at 860 (internal quotations and citation omitted).

The parties agree that Naficy’s charges of discrimination in 2005 and April 2009 constitute statutorily pro-
16 No. 11-2144

tected activity and that her reassignment to the part-time

position is a materially adverse employment action. The

sole question is thus whether Naficy has adequately

connected the two. As with discrimination, “direct”

evidence of retaliation may be proven by evidence

showing retaliation without resort to inference, id.,—i.e.,

something along the lines of a direct admission that

Naficy’s complaints motivated her reassignment to the

part-time position. See Benders v. Bellows & Bellows, 515

F.3d 757, 764 (7th Cir. 2008) (noting the “rare” nature of

truly “direct evidence”). Naficy has no such evidence

linking her reassignment to her previous complaints of

discrimination. Instead, she attempts to connect the

two using what we have recognized as a “ ‘convincing

mosaic’ of circumstantial evidence” that supports an

inference of retaliation. Coleman, 667 F.3d at 860 (internal

citation omitted). Such circumstantial evidence includes suspicious timing, evidence that similarly situated

employees were treated differently, or evidence that the

employer’s stated reason for the adverse employment

action was pretextual. Id.

As for suspicious timing, the large temporal gaps between her complaints and her reassignment undercut,

rather than support, a causal link between the two.

Her first EEOC complaint was filed in 2005 and related

to an earlier IDHS layoff. The five-year gap between

her complaint and the Howe layoffs makes it extremely

unlikely that the two events were related. Likewise, the

nine-month gap between her second complaint—filed

in April 2009—does little to raise suspicion about

Naficy’s treatment during the layoff. See Jajeh v. County
No. 11-2144 17

of Cook, 678 F.3d 560, 570 (7th Cir. 2012) (five-month gap

between complaint of discrimination and adverse employment action did not amount to suspicious timing);

Leonard v. E. Ill. Univ., 606 F.3d 428, 432 (7th Cir. 2010)

(noting that six-month lag between complaint and denial

of promotion was “too long to infer a link between the

two”).

As evidence of disparate treatment or pretext, Naficy

provides page after page of quotations from Coleman

and other retaliation cases, but says precious little

indeed about how she has actually established a causal

link between her EEOC complaints and her ultimate

reassignment during the Howe layoffs. Indeed, her primary argument on this point is her assertion, buried

among several pages of quotes from Coleman and other

decisions, that IDHS “qualified Plaintiff for bumping

positions which disappeared and came up with positions which were not presented as alternatives to

Plaintiff in formal notices (Social worker—Spanish speaking; Elgin social worker position, etc.).” This account of

DeJesus and Byrne’s treatment during the layoff does

nothing to establish retaliatory motive on the part of

IDHS. As discussed above, IDHS has provided a

legitimate, nondiscriminatory explanation for why

Naficy’s only option in the bumping process was the parttime position, and also why Byrne—who waived her

right to bump—was able to transfer into the position

in Elgin at the conclusion of the bumping process. Presumably her assertion that positions “disappeared” refers

to positions listed in the January 2010 letter that were

no longer available when she spoke to Samaras at her
18 No. 11-2144

February meeting. But IDHS explained that as senior

employees exercised their bumping options Naficy was

bumped from her position and several of the listed

choices in her letter became unavailable. And although

Naficy cites multiple cases for the proposition that

pretext may be proven with evidence that an employer

lied or failed to follow its own policies, she fails to

identify any instance showing that IDHS is guilty of

such behavior. There is no evidence in the record that

Naficy’s experience deviated in any way from the bumping

protocol set forth in the CBA. In short, Naficy

offers nothing but her own speculation to suggest

that IDHS’s explanations are pretextual, and that is insufficient. Overly v. KeyBank Nat’l Ass’n, 662 F.3d 856, 864

(7th Cir. 2011) (“[R]eliance on speculation is not enough

to get the case to a jury.”)

The last potential evidence of retaliation is Naficy’s

claim that Bailey knew of and disapproved of her EEOC

complaints. This claim, too, goes nowhere. First, she cites

no evidence to support her claim that Bailey knew about

her complaints. More importantly, as discussed above,

Naficy has failed to link Bailey to the layoff procedure

or identify any evidence calling into question IDHS’s

evidence that Bailey had no involvement in the layoff

process and Naficy’s reassignment in particular. As

such, there is no record evidence from which a rational

juror could infer IDHS reassigned Naficy to retaliate

against her for her 2005 and 2009 complaints of discrimination.
No. 11-2144 19

III.

As the concurring opinion in Coleman recently recognized, after setting aside the “snarls and knots” occasioned

by using the “direct” and “indirect” formulations, the

question is simply whether the plaintiff has “one way or

the other” presented sufficient evidence that she is protected by the statute, suffered an adverse employment

action, and sufficient evidence exists that a rational jury

might conclude the employer acted on account of the

plaintiff’s protected class as opposed to some other

benign reason. Coleman, 667 F.3d at 863 (Wood, J. concurring). Regardless of how the evidence is viewed, Naficy

has offered nothing from which a rational juror could

conclude that her reassignment to a part-time position

in the wake of the Howe layoffs was motivated by

either discrimination or retaliation.

Accordingly, we AFFIRM the judgment of the district

court granting summary judgment to IDHS on Naficy’s

claims.

9-18-12