United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted December 19, 2019*

Decided December 19, 2019 

Before 

JOEL M. FLAUM, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge 

AMY J. ST. EVE, Circuit Judge

No. 19-2227 

MARVA MACK, 

Plaintiff-Appellant, 

v. 

CITY OF CHICAGO, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 1:16-cv-7807 

Gary Feinerman, 

Judge. 

O R D E R 

Marva Mack was fired from her job with the City of Chicago’s Department of 

Aviation after a dispute about payroll-processing paperwork. She sued the City and her 

former supervisors for age discrimination and retaliation, and the district court entered 

summary judgment in the defendants’ favor. We affirm. 

 

*

 We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. See FED. R. APP. P 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 19-2227 Page 2 

At the summary-judgment stage, Mack failed to comply with the Northern 

District of Illinois’s Local Rule 56.1 in responding to the defendants’ statement of 

material facts, so the district court largely accepted the defendants’ factual presentation 

as uncontested, as do we. See McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 787 

(7th Cir. 2019). Unless otherwise noted, the following facts are undisputed and 

presented in the light most favorable to Mack, the party opposing summary judgment. 

Tolan v. Cotton, 572 U.S. 650, 656–57 (2014). 

The City employed Mack as a timekeeper for its Department of Aviation. She 

used a computer program to track employees’ absences by coding the type of absence, 

such as paid vacation or unpaid leave. When an employee was absent, Mack processed 

an “edit sheet”—a document completed by the employee (and signed by a supervisor) 

that identified the type of absence. Mack conceded in her summary-judgment response 

that her supervisors had authority to view edit sheets, as they were City property, and 

that failure to produce edit sheets to a supervisor on request constituted 

insubordination. 

A conflict between Mack and her supervisors arose when she recorded an 

employee’s single absence twice in the computer program. Mack first marked the 

absence as unpaid sick leave but then changed it to paid leave. Because the employee 

had not requested paid leave, one of Mack’s supervisors inquired about the 

discrepancy. Mack explained that she had received two different edit sheets for the 

absence. She did not, however, give them to her supervisors when they asked her to do 

so. Later, when a supervisor asked her again for the edit sheets, Mack replied that she 

had given the originals to her union and taken the copies home. Department policy and 

Illinois law, 50 ILCS 205/4, prohibited unauthorized removal of public records, like the 

edit sheets, so Mack had to attend a “Pre-Disciplinary Meeting,” at which she admitted 

that she had lied about the whereabouts of the edit sheets because she feared that 

someone would destroy them and accuse her of falsifying records. Because Mack 

violated the policy against removal of public records, withheld the edit sheets, and lied, 

her supervisor suspended her for five days. Before serving the suspension, Mack told 

her supervisors that the edit sheets were locked in her desk and that the key was at her 

home. 

After her suspension, Mack’s conflict with her supervisors escalated. When she 

returned to work, she still refused to provide the edit sheets, in part because she would 

not talk to management without union representation present. She also lied again to a 

supervisor by telling him that she had never been asked for the edit sheets. Mack then 
No. 19-2227 Page 3 

reported to the police that her office desk had been ransacked and that records were 

missing, including the edit sheets. The responding officer, however, recalled additional 

details about the conversation: He documented Mack as saying (1) that the Office of the 

Inspector General instructed her to “secure” the edit sheets to prevent anyone from 

accessing them and (2) that a coworker told Mack that she saw Mack’s supervisors 

“doing something” at Mack’s desk. Both the Inspector General’s Office and the 

coworker, however, denied these statements. 

Shortly thereafter, Mack’s supervisor served her with written notice that the City 

was considering firing her because she (1) lied when she said that no one had asked her 

for the edit sheets, (2) made a false or incomplete statement to the police, (3) caused the 

police to create a baseless report of a crime, (4) possessed City property without 

authorization, (5) was insubordinate, (6) was incompetent, and (7) engaged in conduct 

unbecoming of a public employee. At the direction of the Department’s Commissioner, 

the City then fired Mack. 

In response to the summary-judgment motion, Mack cited the circumstances that 

she considered indicative of age discrimination. The Department’s Assistant 

Commissioner had frequently told her she should retire. Mack also produced a letter 

from a coworker who saw a supervisor “harass[]” Mack. Another supervisor learned of 

the harassment from the coworker but did “nothing.” 

After she was fired, Mack brought this suit against the City and her supervisors. 

She asserted that the defendants violated the First Amendment when they fired her in 

retaliation for engaging in protected speech (by reporting to the police about the theft of 

documents). Additionally, she maintained the defendants violated the Illinois 

Whistleblower Act, 740 ILCS 174/1–40, when they suspended and fired her also in 

retaliation for her refusal to illegally alter the edit sheets to restore an employee’s 

already used vacation days. Mack lastly asserted that she was suspended and fired 

because of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. 

§§ 621–634. 

The district court entered summary judgment for the defendants on all claims. 

Regarding her First Amendment retaliation claim, the court determined that she 

abandoned it by failing not only to respond to the defendants’ arguments but also by 

not presenting any argument of her own. As for her claim of state-law retaliation, she 

failed to introduce any evidence that the activity in which she refused to engage—

producing the edit sheets for her supervisors—was unlawful. Regarding her 
No. 19-2227 Page 4 

age-discrimination claim, the court determined that she could not establish a prima 

facie case under McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), because a 

jury could not find that she was meeting the City’s legitimate expectations, given her 

repeated insubordination and dishonesty. The court added that the record as a whole 

did not show discrimination. 

On appeal, Mack devotes most of her brief to arguing for the first time that the 

City unlawfully subjected her to “industrial double jeopardy”—an apparent reference 

to a principle of labor law that an employee may not be punished twice for the same 

conduct. See, e.g., Zayas v. Bacardi Corp., 524 F.3d 65, 68–69 (1st Cir. 2008). However, by 

failing to raise this issue in opposition to the motion for summary judgment, Mack 

waived the argument. See Betco Corp., Ltd. v. Peacock, 876 F.3d 306, 309 (7th Cir. 2017). In 

any event, she does not explain how any purported violation of industrial double 

jeopardy demonstrates a genuine dispute about her claims of retaliation or age 

discrimination. 

Mack also contends that a jury could find that the defendants retaliated against 

her for engaging in activity protected by the Illinois Whistleblower Act. She maintains 

that she was disciplined for refusing to illegally alter the edit sheets to restore the 

employee’s previously used vacation days. However, to prevail on a Whistleblower Act 

claim, a plaintiff must first establish that she “refused to participate in an activity that 

would result in a violation of a state or federal law, rule or regulation.” Corah v. Bruss 

Co., 77 N.E.3d 1038, 1043 (Ill. App. Ct. 2017) (citing 740 ILCS 174/20). As the district 

court properly determined, the activity in which she refused to engage—producing the 

edit sheets for her supervisors—was not illegal. Mack cites no evidence that she was 

ever asked to do anything illegal, such as doctoring the edit sheets. 

Lastly, Mack argues—relying on the McDonnell Douglas burden-shifting 

framework—that summary judgment was improper on her age-discrimination claim 

because the charges of misconduct against her were pretextual. However, to establish a 

prima facie case of discrimination under the McDonnell Douglas framework, a plaintiff 

must first produce evidence that—among other requirements—she was meeting the 

defendant’s legitimate expectations. McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 

360, 368 (7th Cir. 2019). Only after the plaintiff establishes a prima facie case of 

discrimination, and the defendant articulates a nondiscriminatory reason for the 

adverse action, need the plaintiff show that the explanation was pretextual. Id. Here, 

Mack’s focus on pretext is misplaced because she lacks evidence to make out a prima 

facie case under McDonnell Douglas. She cannot point to evidence from which a jury 
No. 19-2227 Page 5 

could conclude that she was meeting the City’s legitimate expectations. As the record 

reflects, she admitted that she had a duty to produce edit sheets on request from her 

supervisors but did not do so, and she repeatedly lied to her supervisors about the 

whereabouts of those documents. Under these circumstances, the district court was also 

correct to conclude that the evidence, “as a whole,” was insufficient for a jury to find 

age discrimination. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). 

The only evidence conceivably suggesting age-based animus are comments from a 

supervisor that Mack should retire, but nothing in the record suggests that this 

supervisor played a decision-making role in Mack’s discipline or conveyed anything 

about her to a decision-maker. See Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 

866, 883 (7th Cir. 2016). 

AFFIRMED