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Case: 1:12-cv-05381 Document #: 28 Filed: 09/20/13 Page 1 of 20 PageID #:1140

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANN R. PRESSLEY,

Plaintiff,

v.

ERIC K. SHINSEKI, Secretary of
U.S. Department of Veterans Affairs.

Defendant.

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) No. 12 C 5381
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MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant’s motion for summary judgment.

For the reasons stated below, the motion for summary judgment is granted in its

entirety.

BACKGROUND

Plaintiff Ann R. Pressley (Pressley) alleges that she is employed by the U.S.

Department of Veterans Affairs (VA). Pressley contends that in 2008 and 2009 she

worked for the VA as a kinesiotherapist and coordinated and developed the Physical

Medicine and Rehabilitation Service program (PM&R) at the Jesse Brown VA

Medical Center (JBC). In August 2009, Pressley allegedly submitted an application

to the KT Boarding Committee (Committee) for promotion to the GS-11 grade with

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the assistance of Dr. Patrick Barrett (Barrett), the Assistant Chief of PM&R. In

February 2010, Marc Applebaum (Applebaum) allegedly became the Chief of

PM&R. In April 2012, Applebaum allegedly reassigned Pressley to the Adam

Benjamin Jr. Clinic (ABJ), which was 65 miles from Pressley’s residence. Pressley

was initially assigned on a rotation basis and was then permanently assigned to ABJ.

Pressley contends that although a male employee at the VA had been assigned a VA

automobile for travel to work, Applebaum refused to authorize a VA automobile for

Pressley. Pressley contends that at ABJ she was assigned duties such as unloading

wheelchairs from a loading dock and was not allowed to perform the duties she

performed at JBC. Pressley also contends that she was denied training and

education offered to other employees at ABJ and some of her duties she performed at

JBC were assigned to a younger VA employee with less experience who was not

African-American. Pressley also contends that she was excluded from staff meetings

and was not provided minutes or agendas for such meetings. In addition, Barrett had

allegedly initially indicated a willingness to write a letter of recommendation for

Pressley’s promotion, but Barrett allegedly withdrew the offer after conferring with

Applebaum. Pressley also claims that although the promotion applications of other

employees were processed and they were paid at the new grade levels, the

Committee did not process Pressley’s promotion application and she continued to be

paid at a GS-10 grade. Pressley contends that she complained about perceived

discrimination and that in retaliation her subsequent performance ratings were

unjustifiably lowered. Pressley includes in her complaint a claim alleging race

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discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42

U.S.C. § 2000e et seq. (Count I), a Title VII race failure-to-promote claim (Count I),

a Title VII hostile work environment claim based on Pressley’s race (Count II), a

Title VII hostile work environment claim based on Pressley’s sex (Count II), a claim

alleging age discrimination in violation of the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 621 et seq. (Count III), an ADEA failure-to-promote claim

(Count III), a Title VII retaliation claim (Count IV), and an ADEA retaliation claim

(Count IV). Defendant now moves for summary judgment.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most

favorable to the non-moving party, reveals 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); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A

“genuine issue” of material fact in the context of a motion for summary judgment is

not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, 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, Inc., 477 U.S. 242,

248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In

ruling on a motion for summary judgment, the court must consider the record as a

whole, in the light most favorable to the non-moving party, and draw all reasonable

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inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v.

Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

Defendant contends that there are no genuinely disputed material facts and

that the court should find in Defendant’s favor as a matter of law as to all claims in

the instant action.



I. Title VII Race Discrimination Claims (Count I)

Defendant moves for summary judgment on the Title VII race discrimination

claims. A plaintiff seeking to defeat a defendant’s motion for summary judgment on

a Title VII discrimination claim can proceed under the direct or indirect method of

proof. Morgan v. SVT, LCC, 2013 WL 3944269, at *4 (7th Cir. 2013). Under the

direct method of proof, a plaintiff must present direct evidence of unlawful

discrimination or show a “convincing mosaic of circumstantial evidence . . . that

point[s] directly to a discriminatory reason for the employer’s action.” Dass v.

Chicago Bd. of Educ., 675 F.3d 1060, 1071 (7th Cir. 2012)(internal quotations

omitted)(quoting Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 783

(7th Cir. 2004)). Under the indirect method of proof, a plaintiff must first establish a

prima facie case. Morgan, 2013 WL 3944269, at *4. If the plaintiff establishes a

prima facie case, “the burden shifts to the employer to offer a non-discriminatory

reason for the adverse employment action.” Id. If the employer offers such a reason,

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“the burden shifts back to the plaintiff to present evidence that, if believed by the

trier of fact, would show that the real explanation for the action is discrimination.”

Id.

A. General Race Discrimination Claim

Defendant moves for summary judgment on the general race discrimination

claim. Pressley argues only that she can prevail under the indirect method of proof

and Pressley has not pointed to direct or circumstantial evidence, which would

enable her to prevail under the direct method of proof. (Ans. SJ 8, 10).

1. Prima Facie Case

Defendant argues that Pressley has not established a prima facie case. To

establish a prima facie case for a general race discrimination claim, a plaintiff must

show: (1) that she “is a member of a protected class,” (2) that she met her

“employer’s legitimate job expectations,” (3) that she “suffered an adverse

employment action,” and (4) that “similarly situated employees outside of the

protected class received more favorable treatment.” Morgan, LCC, 2013 WL

3944269, at *4 (internal quotations omitted)(quoting Keeton v. Morningstar, Inc.,

667 F.3d 877, 884 (7th Cir. 2012)).

Defendant argues that Pressley has not shown that she suffered an adverse

employment action. In the Title VII context, an action by an employer constitutes an

adverse employment action if it “materially alter[s] the terms or conditions of

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employment,” and more specifically, “a materially adverse change might be

indicated by a termination of employment, a demotion evidenced by a decrease in

wage or salary, a less distinguished title, a material loss of benefits, significantly

diminished material responsibilities, or other indices that might be unique to a

particular situation.” Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir.

2012)(internal quotations omitted)(quoting Crady v. Liberty Nat’l Bank & Trust Co.,

993 F.2d 132, 136 (7th Cir. 1993)). An adverse employment action “must be more

disruptive than a mere inconvenience or an alteration of job responsibilities” and “not

everything that makes an employee unhappy is an actionable adverse action . . . .”

Id. (quoting Crady, 993 F.2d at 136 and Smart v. Ball State Univ., 89 F.3d 437, 441

(7th Cir. 1996)).

Pressley contends that she suffered an adverse employment action when she

was transferred from JBC to ABJ. A lateral transfer, which “does not involve a

demotion in form or substance, cannot serve as an adverse employment action.”

Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 480 (7th Cir. 2010)(internal

quotations omitted)(quoting Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th Cir.

2008)). The undisputed facts indicate that the transfer from JBC to ABJ was purely a

lateral transfer. (R SF Par. 1-10). Pressley admits that the transfer had no effect on

her salary. (R SF Par. 24). The undisputed facts show that when Pressley was

transferred to ABJ, she retained the same job grade and job description. (R SF Par.

5, 9-10). Although Pressley indicates that she preferred to work at JBC, the mere

fact that she was not given her preferred working location does not mean that she

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was subjected to an adverse employment action. Porter, 700 F.3d at 954. Nor has

Pressley pointed to evidence showing that her transfer constituted a demotion in

substance or reduced her ability to advance in her career. See Dass v. Chicago Bd. of

Educ., 675 F.3d 1060, 1069 (7th Cir. 2012)(stating that a transfer could constitute an

adverse employment action if it “significantly reduces the employee’s career

prospects by preventing her from using her skills and experience”). In fact, the

undisputed facts are that in 2011, shortly after her transfer to ABJ, Defendant granted

a request by Pressley to be transferred to a VA facility in Hines, Virginia. In

addition, at that facility, Pressley was able to obtain a license in kinesiotherapy, a

safe patient certificate, and in November 2012 was again able to apply for a

promotion to GS-11 grade, with the support of her “service chief.” (R SF Par. 50,

64-65).

Pressley also contends that she was not given a VA car to drive to ABJ, but

Pressley has not cited any evidence to show that a car was an expected benefit for the

kinesiotherapist position or that the denial of a request for a car materially altered the

terms or conditions of her employment. Pressley also admits that Applebaum did

initially provide her with a car to commute to ABJ for a day. (R SF Par. 29).

Pressley also admits that after that day, Applebaum “was informed that it was

inappropriate for him to allow employees to use a government car to commute to

work.” (R SF Par. 30).

Pressley contends that she had to drive farther from home to get to ABJ, but

such an increased commute is not itself the type of inconvenience that would

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constitute an adverse employment action in the Title VII context. Porter, 700 F.3d at

954; see also Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004)(holding that the

fact that a transfer “lengthened [the plaintiff’s] commute” was merely an

inconvenience and was not an adverse employment action).

Pressley also contends that she suffered an adverse employment action when

she was not promoted and when Barrett declined to write a letter of recommendation

for Pressley for a promotion. (Ans. SJ 8). No evidence has been cited by Pressley

requiring a supervisory recommendation for a promotion. Nor has Pressley cited

evidence that would indicate that it is within the personal discretion of a supervisor

to write a letter of recommendation. Nothing in the record shows that a supervisory

recommendation was owed to Pressley under the terms of her employment and was

denied to her. It is undisputed that Barrett indicated that he decided not to write a

letter of recommendation for Pressley because “he no longer felt comfortable

supporting Pressley’s application” due to her attitude and conduct. (R SF Par. 45-

46).

Pressley also contends that she suffered an adverse employment action when

she was given a lower performance evaluation. However, the Seventh Circuit has

stated that “although negative performance evaluations may be evidence of

discrimination, they are not alone considered to be actionable adverse employment

actions.” Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 862 (7th Cir. 2005).

Thus, based on the above, Pressley has failed to present sufficient evidence to

establish a prima facie case.

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2. Pretext

Defendant also argues that even if Pressley had established a prima facie case,

she has not pointed to sufficient evidence to show that Defendant’s legitimate non-

discriminatory reasons for its actions were a pretext. To meet the pretext

requirement, a plaintiff must show that the defendant’s reason given for the

employment action was a lie to hide unlawful discrimination. See Martino v.

Western & Southern Financial Group, 715 F.3d 195, 202 (7th Cir. 2013)(stating that

“[p]retext means a lie, specifically a phony reason for some action”)(internal

quotations omitted)(quoting Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.

2002); Smiley v. Columbia College Chicago, 714 F.3d 998, 1002-03 (7th Cir.

2013)(stating that the “focus of the pretext inquiry is whether the proffered reason is

a lie” and “whether it is the true ground of the employer’s action rather than being a

pretext for a decision based on some other, undisclosed ground”)(internal quotations

omitted)(quoting in part Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th

Cir. 2006); Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 298 (7th Cir.

2010)(stating that to show pretext, the plaintiff must show the action is based on a

“lie—not just an error, oddity, or oversight”); Bodenstab v. County of Cook, 569 F.3d

651, 657 (7th Cir. 2009)(stating that for the pretext requirement, a plaintiff must

show that “the defendant’s explanation is unworthy of credence”)(internal quotations

omitted)(quoting credence Filar v. Bd. of Educ. of City of Chicago., 526 F.3d 1054,

1063 (7th Cir. 2008).

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Pressley has failed to point to evidence showing any animus against her

because of her race. The mere fact that she was transferred to a new job location and

was not given a promotion does not indicate discrimination against her because of

her race. Pressley points to no evidence of derogatory statements made to her

referencing her race by co-workers or her supervisors. (R SF Par. 67). Defendant

has presented ample undisputed facts explaining the policy decisions behind the

transfer to ABJ. For example, Defendant contends that when Applebaum moved to

his position with PM&R, he “realized that the ABJ clinic needed more staff and that

the veteran[s] at the clinic could benefit from the services of a kinesiotherapist.” (SF

Par. 9). Pressley responds that she admits only that facts were contained in

Applebaum’s declaration, but Pressley fails to respond to the facts presented by

Defendant. (R SF Par. 8). Pursuant to Local Rule 56.1, by not responding to the

facts presented by Defendant, and by not citing to contrary evidence, Pressley admits

such facts as undisputed. See Donald v. Portillo’s Hot Dogs, Inc., 2013 WL

3834402, at *3 (N.D. Ill. 2013)(explaining that “[i]f the opposing party denies a fact

as true, [Local Rule 56.1] requires the opposing party to provide ‘specific reference

to affidavits, parts of the record, and other supporting materials’ that support the

denial”)(quoting LR 56.1(b)); see also Judson Atkinson Candies, Inc. v. Latini-

Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008)(stating that “a district

court has broad discretion to require strict compliance with Local Rule 56.1”);

Jankovich v. Exelon Corp., 2003 WL 260714, at *5 (N.D. Ill. 2003)(indicating that

evasive and non-responsive answers to statements of facts are deemed admissions).

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Pressley admits that she requested that Steven Ray (Ray), another

kinesiotherapist be the one transferred to ABJ. (R SF Par. 10). Pressley also admits

that Applebaum tried to transfer Ray to ABJ, but was unable to do so because of

performance issues for Ray when previously working at ABJ. (R SF Par. 11).

Pressley argues that Defendant has not produced any actual negative performance

evaluations for Ray, but Defendant has presented other circumstantial evidence

showing that Ray had performance issues at ABJ and Pressley has not responded

with any evidence to rebut the evidence presented by Defendant. (R SF Par. 11).

Defendant presents a detailed line of reasoning as to why Pressley and not any

other kinesiotherapist was the proper person for the transfer to ABJ. (SF Par. 11-16).

Defendant also contends that Applebaum made Pressley’s transfer to ABJ a

permanent transfer because it became his only option after several other options were

pursued. (SF Par. 17). There is no indication that Applebaum intended to punish

Pressley by transferring her to ABJ or that he was transferring her because he

thought she had a poor performance history. Pressley admits that Applebaum

explained that he was reassigning Pressley “because she was the most experienced

therapist, and that she would be able to provide the best services to the veterans

receiving treatment at the clinic. . . .” (R SF Par. 20). Although Pressley disagrees

with the reasoning provided by Defendant as to Applebaum’s decisions, it is

ultimately Pressley’s burden to show that Applebaum’s given reasons were a lie, not

just that Applebaum’s reasoning was unwise or that Pressley would have acted

differently. See Bates v. City of Chicago, 2013 WL 4038585 (7th Cir. 2013)(stating

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that “[t]he focus of a pretext inquiry is whether the employer’s stated reason was

honest, not whether it was accurate, wise, or well-considered”)(internal quotations

omitted)(quoting Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)).

Pressley also admits that prior to her being selected for the transfer,

Applebaum sent out an email to all available kinesiotherapists to see if any of them

would volunteer to do a rotation at ABJ. (R SF Par. 15); (SAF Par. 16). Pressley has

not submitted evidence showing an intent by her employer to discriminate against her

because of her race and age. In fact, the evidence shows that she was granted a

transfer to a facility of her choice. Therefore, Pressley has failed to meet the pretext

requirement.

The court also notes that Pressley makes some general references to a

“pattern” by Defendant selecting African-American females over the age of forty for

certain transfers. (R SF Par. 25). However, Pressley falls far short of presenting

evidence to substantiate any unlawful pattern of activity by Defendant. Based on the

above, Defendant’s motion for summary judgment on the Title VII race

discrimination claim is granted.

B. Failure-to-Promote Race Discrimination Claim

Defendant moves for summary judgment on the failure-to-promote race

discrimination claim. Pressley argues only that she can prevail under the indirect

method of proof and Pressley has not pointed to direct or circumstantial evidence,

which would enable her to prevail under the direct method of proof. (Ans. SJ 8, 10).

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To establish a prima facie case for a failure-to-promote race discrimination claim, a

plaintiff must show: (1) that she “was a member of a protected class,” (2) that she

“was qualified for the position,” (3) that she “was rejected for the position,” and (4)

that “the position was given to a person outside the protected class who was similarly

or less qualified than” the plaintiff. Stockwell v. City of Harvey, 597 F.3d 895, 901

(7th Cir. 2010)(internal quotations omitted)(quoting Jackson v. City of Chicago, 552

F.3d 619, 622 (7th Cir. 2009)).

As indicated above, Pressley admits that she ultimately was transferred to a

facility of her choice and was able to apply for promotion. Pressley has not shown

that she was rejected for any position that was in turn given to another employee

outside the protected class. To the extent that Pressley complains about the lack of a

letter of recommendation from Barrett, she points to no evidence entitling her to such

a recommendation or to evidence showing that Barrett acted out of racial animus in

declining to write a letter of recommendation letter for Pressley. Pressley has offered

nothing more than speculation as to the timing of the processing of her promotion

application and has not presented sufficient evidence to show that any delay was the

result of a racial animus. Therefore, Defendant’s motion for summary judgment on

the Title VII failure-to-promote claim is granted.

II. Hostile Work Environment Claims (Count II)

Defendant moves for summary judgment on the hostile work environment

claims. For a hostile work environment claim, a plaintiff must establish: (1) that “her

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work environment was both objectively and subjectively offensive,” (2) that “the

harassment complained of was based on her” protected characteristic, (3) that “the

conduct was either severe or pervasive,” and (4) that “there is a basis for employer

liability.” Porter, 700 F.3d at 955-56 (internal quotations omitted)(quoting Scruggs

v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir. 2009)). In evaluating a hostile work

environment claim, the court must “consider the totality of the circumstances, . . .

including the severity of the allegedly discriminatory conduct, its frequency, whether

it is physically threatening or humiliating or merely offensive, and whether it

unreasonably interferes with an employee’s work performance.” Id.

A. Hostile Work Environment Claim Based on Sex

Pressley has failed to point to evidence showing that her workplace was so

hostile to her because of her sex that it unreasonably interfered with her work

performance. Pressley points to no evidence of derogatory statements made to her,

or about her referencing her sex. Pressley admits that women working with her

received promotions in the past. Pressley offers no evidence that she suffered any

disciplinary actions at work. The undisputed facts also show that Pressley was

allowed to take significant portions of time in a paid-leave status, and that she

ultimately was transferred to a workplace of her choice where she was able to apply

for a promotion. (R SF Par. 38, 39, 50, 64). Pressley’s allegations that she was not

fully apprised of meetings or given agendas to meetings, and other such allegations

of mistreatment, even if true, fall far short of establishing that she was subjected to a

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hostile work environment because of her sex. Therefore, Defendant’s motion for

summary judgment on the hostile work environment claim based on sex is granted.

B. Hostile Work Environment Claim Base on Age

Pressley offers no evidence to support a hostile work environment claim based

on her age. Pressley points to no evidence indicating an animus against her because

of her age. Pressley fails to point to evidence showing that her conditions of her

employment were unreasonably interfered with because of her age. Therefore,

Defendant’s motion for summary judgment on the hostile work environment claim

based on age is granted.

III. ADEA Discrimination Claims (Count III)

Defendant moves for summary judgment on the ADEA discrimination claims.

A plaintiff seeking to defeat a defendant’s motion for summary judgment can

proceed under the direct or indirect method of proof. Naik v. Boehringer Ingelheim

Pharmaceuticals, Inc., 627 F.3d 596, 599-600 (7th Cir. 2010). Under the direct

method of proof, a plaintiff must show “direct evidence of animus . . . or

circumstantial evidence which establishes a discriminatory motive on the part of the

employer through a longer chain of inferences.” Van Antwerp, 627 F.3d at 297-98.

Under the indirect method of proof, a plaintiff must establish a prima facie case.

Naik, 627 F.3d at 599-600. If the plaintiff establishes a prima facie case, the burden

then shifts to the defendant to present “a legitimate, nondiscriminatory reason for the

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adverse employment action.” Id. If the defendant presents such a reason, the

plaintiff must show that the reason is a pretext for unlawful discrimination. Id.

A. General Age Discrimination Claim

Defendant moves for summary judgment on the general age discrimination

claim. Pressley argues only that she can prevail under the indirect method of proof

and Pressley has not pointed to direct or circumstantial evidence, which would

enable her to prevail under the direct method of proof. (Ans. SJ 8, 10).

To establish a prima facie case for a general age discrimination claim, a plaintiff

must show: (1) that she “is a member of the protected class,” (2) that she “was

performing well enough to meet [her] employer’s legitimate expectations,” (3) that

she “suffered an adverse employment action,” and (4) that “similarly situated

employees not in [her] protected class were treated more favorably.” Naik, 627 F.3d

at 599-600.



As explained above, Pressley has failed to show that she suffered an adverse

employment action. Therefore, Pressley has failed to establish a prima facie case.

Nor has Pressley pointed to evidence to show that Defendant’s reasons for its actions

were a pretext for unlawful discrimination. Pressley has not pointed to evidence of

derogatory statements made to her, or about her, relating to her age. Nor has

Pressley pointed to sufficient evidence to render the ample evidence relating to

Defendant’s policy decisions unworthy of credence. Pressley has failed to point to

sufficient evidence to show that Defendant lied about its reasons in order to hide its

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intent to discriminate against Pressley because of her age. Therefore, Defendant’s

motion for summary judgment on the general age discrimination claim is granted.

B. Failure-to-Promote Age Discrimination Claim

Defendant moves for summary judgment on the failure-to-promote age

discrimination claim. Pressley argues only that she can prevail under the indirect

method of proof and Pressley has not pointed to direct or circumstantial evidence,

which would enable her to prevail under the direct method of proof. (Ans. SJ 8, 10).

To establish a prima facie case for a failure-to-promote age discrimination claim, a

plaintiff must show: (1) that “she was 40 or older,” (2) that “she applied for and was

qualified for the position sought,” (3) that “she was rejected for the position,” and (4)

that “someone substantially younger than she was given the position.” Schaffner v.

Glencoe Park Dist., 256 F.3d 616, 620 (7th Cir. 2001). As explained above, Pressley

never suffered any adverse employment action, including being denied a promotion.

The undisputed facts show that Pressley was ultimately transferred to a work location

of her choice and was able to apply for a promotion. Pressley has failed to show that

she was rejected for any particular position that was given instead to someone

substantially younger than her. Therefore, Defendant’s motion for summary

judgment on the failure-to-promote age discrimination claim is granted.

IV. Retaliation Claims (Count IV)

Defendant moves for summary judgment on the Title VII and ADEA

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retaliation claims. A plaintiff seeking to defeat a defendant’s motion for summary

judgment on a Title VII or ADEA retaliation claim can proceed under the direct or

indirect method of proof. Majors v. General Elec. Co., 714 F.3d 527, 537 (7th Cir.

2013); Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657-58 (7th Cir. 2012).

Under the direct method of proof, a plaintiff must show: “(1) that he engaged in

protected activity, (2) that he was subjected to an adverse employment action, and (3)

that there was a causal link between the protected activity and the employment

action.” Hobgood v. Illinois Gaming Bd., 722 F.3d 1030, 1036 (7th Cir. 2013);

Smith, 674 F.3d at 657-58 (providing direct method for an ADEA retaliation claim).

In the alternative, a plaintiff can proceed under the direct method of proof by

establishing “a convincing mosaic of circumstantial evidence.” Hobgood, 722 F.3d

at 1036 (internal quotations omitted)(quoting Rhodes v. Illinois Dep’t of Transp., 359

F.3d 498, 504 (7th Cir. 2004)).

Under the indirect method of proof, a plaintiff must establish a prima facie

case by showing: (1) that she “engaged in a statutorily protected activity,” (2) that

she “met [her] employer’s legitimate expectations,” (3) that she “suffered a

materially adverse action,” and (4) that she “was treated less favorably than some

similarly situated employee who did not engage in the statutorily protected activity.”

Vaughn v. Vilsack, 715 F.3d 1001, 1006 (7th Cir. 2013); see also Majors, 714 F.3d at

537 (listing elements for prima facie case for Title VII retaliation claim); Smith, 674

F.3d at 657-58 (providing prima facie case elements for ADEA retaliation claim). If

the plaintiff establishes a prima facie case, the burden then shifts to the defendant to

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present a legitimate, nondiscriminatory reason for the adverse action. Vaughn, 715

F.3d at 1006; Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006).

If the defendant presents such a reason, the plaintiff must show that

the reason is a pretext for unlawful discrimination. Id.

Pressley has failed to point to sufficient evidence to show a causal link

between any protected activity on her part and actions taken by Defendant. As

explained above, Pressley has failed to show that she suffered an adverse

employment action. Nor has Pressley shown that she suffered any adverse action in

the retaliation context. The adverse action requirement for the indirect evidence

method in the retaliation context has been determined to be broader than a

discrimination claim and is defined as an action “that a reasonable employee would

find to be materially adverse such that the employee would be dissuaded from

engaging in the protected activity.” Silverman v. Board of Educ. of City of Chicago,

637 F.3d 729, 740-41 (7th Cir. 2011)(internal quotations omitted)(quoting Roney v.

Illinois Dep’t of Transportation, 474 F.3d 455, 461 (7th Cir. 2007)); see also

Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012)(stating that the

Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68

(2006) “has construed Title VII’s anti-retaliation provision broadly”). For example,

a negative performance evaluation could constitute an adverse action sufficient for a

retaliation prima facie case. Id. However, Pressley has not put forth evidence

showing that she was ever given a negative performance evaluation. Pressley

complains that she was given a “fully satisfactory” rating instead of an “outstanding”

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Case: 1:12-cv-05381 Document #: 28 Filed: 09/20/13 Page 20 of 20 PageID #:1159

rating. In addition, the undisputed facts show that her “fully satisfactory” rating

enabled her to ultimately obtain the promotion that she sought. Pressley has not

pointed to any action taken by Defendant that would dissuade a reasonable person

from engaging in the protected activity. Pressley has also failed to meet the

similarly-situated requirement for her retaliation claims. Thus, Pressley has failed to

establish a prima facie case. Nor has Pressley established that the given reason for

Defendant’s actions was a pretext to cover up retaliation against Pressley because of

her complaining about discrimination. Defendant has provided ample evidence

indicating the policy reasons for its decisions, and Pressley has not presented

sufficient evidence to show that Defendant’s reason was a lie. Therefore,

Defendant’s motion for summary judgment on the retaliation claims is granted.

CONCLUSION

Based on the foregoing analysis, Defendant’s motion for summary judgment is

granted in its entirety.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge

Dated: September 20, 2013

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