In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1754

D YNETTA C OLE,
                                               Plaintiff-Appellant,
                                v.

S TATE OF ILLINOIS, et al.,
                                            Defendants-Appellees.


            Appeal from the United States District Court
                for the Central District of Illinois.
               No. 06-03089—Jeanne E. Scott, Judge.



     A RGUED D ECEMBER 11, 2008—D ECIDED A PRIL 7, 2009




  Before M ANION, E VANS, and T INDER, Circuit Judges.
  M ANION , Circuit Judge.     Dynetta Cole took leave
under the Family and Medical Leave Act (“FMLA”) in
November 2005. A month later, Cole’s superiors told her
that she would lose her job if she did not submit to an
employee improvement plan. When Cole refused to sign
the plan, her employment was terminated. Cole sued
her employer (the State of Illinois) and her superiors
alleging retaliation for taking FMLA leave. The district
2                                             No. 08-1754

court granted summary judgment to the defendants.
Cole appeals, and we affirm.


                            I.
  The State of Illinois hired Dynetta Cole in October
2004 to work as a receptionist in the Governor’s Office of
Citizen’s Assistance (“GOCA”). The GOCA manages
constituent correspondence for the Governor of Illinois
by responding to letters, telephone calls, faxes, and
emails. Cole’s duties encompassed responding to letters
and copying and filing mail, as well as managing corre-
spondence regarding child support. Her initial super-
visor was Deputy Director of Correspondence Emily
Montgomery. In July 2005, Montgomery was replaced
by the new Deputy Director, Jay Brown. Brown reported
to Director of Correspondence Cory Verblen, who had
taken office in January 2005. Cole and Brown worked in
Springfield; Verblen worked in Chicago.
  According to Brown and Verblen, they received numer-
ous complaints about Cole’s performance. Cole’s co-
workers allegedly complained about her frequent
absences and personality conflicts. Email exchanges in
September and October 2005 reveal that Cole clashed
with Verblen and Brown over her doctor appointments
and her schedule for picking up her children from school.
Cole downplays the significance of these interactions,
arguing that they were misunderstandings that were
resolved.
 On November 10, 2005, Cole was injured in a car accident
while on her lunch break. On November 18, she was
No. 08-1754                                               3

officially granted medical leave under the FMLA. Accord-
ing to the form, the leave was to end “on or about 12/2005.”
Prior to her return, Verblen called Cole and told her
that her work was “piling up” and that she needed to
return. Cole obtained permission from her doctor to
return to work on December 5 on a part-time basis, and
she did, although the transition was less than smooth.
On December 14, Brown sent Cole an email at 9:40 a.m.,
trying to ascertain where she was, and stating, “I under-
stand that you’re going through a lot right now but this
can’t keep happening.” On December 16, Cole arrived
at work at 12:30 p.m.; Verblen had already sent her an
email requesting her to call him when she arrived. Over
the telephone, Cole told Verblen that Brown had given
her permission to arrive late due to a doctor appoint-
ment. After speaking with Cole, Verblen and Brown
conferred by telephone. Brown urged Verblen to take
disciplinary action. Verblen, with help from Brown,
subsequently created an “employee improvement plan” for
Cole.
  At a meeting between Cole, Verblen, and Brown on
December 22, Verblen presented the improvement plan.
The plan stated that it would extend from December 22
to January 13 of the next year. Cole would meet with
Verblen and Brown at the end of the period to discuss
her compliance with the plan. The plan identified three
areas for improvement: attendance, attitude, and job
performance. Under attendance, the plan stated that
Cole “needs to more effectively communicate to her
superiors the exact days and times she will be out of the
office.” To this end, the plan offered these “suggested
4                                               No. 08-1754

solutions”: Cole should write out her schedule “on a daily
and weekly basis” and give copies to Verblen and
Brown, and “[a]ny deviation from that ongoing schedule”
should be brought to the attention of Verblen and Brown.
Under attitude, the plan stated that the GOCA had re-
ceived “multiple complaints from constituents” and staff
members that Cole had been “rude and unhelpful.” These
“suggested solutions” were offered: Cole should “become
more aware of her tone” and should “work[ ] on be-
coming a better listener.” Under job performance, the
plan stated that Cole generally “completes the duties she
is assigned in a satisfactory manner.” However, given
her part-time status due to the car accident, “it is
especially important that she keep up on her filing du-
ties” in order to “alleviate the strain on her fellow em-
ployees.” Accordingly, the plan suggested that Cole
“plan[ ] out her day better and becom[e] more organized
with her work.” Cole was told that she would be fired if
she did not sign the plan.
  Cole declined to sign the improvement plan at the
December 22 meeting. Instead, Cole responded by letter
to Verblen and Brown on December 28. Cole’s letter
indicated that she believed that she had performed her
job satisfactorily, noting that she had scored well on her
most recent job evaluation. Cole blamed any difficulties
on a “cultural difference” and suggested that the GOCA
offer seminars in “multicultural training,” “conflict resolu-
tion,” “sensitivity training,” “stress management,” and
“effective communication.” Cole, Verblen, and Brown
conferred by telephone. Verblen told Cole that, although
he appreciated her suggestions, she would be fired if
No. 08-1754                                                5

she did not sign the improvement plan. Cole again
refused to sign and was fired.
  Cole then brought this suit against the State of Illinois,
Montgomery, Verblen, and Brown. The complaint
claimed that the defendants retaliated against Cole for
exercising her FMLA rights, violated her First Amend-
ment rights, and violated Illinois laws protecting whistle-
blowers. The defendants moved for summary judg-
ment, arguing that Cole could present no evidence of
retaliation for the exercise of her FMLA rights. The defen-
dants also argued that Cole had abandoned the First
Amendment claim and the Illinois state claim. 1 The
district court concluded that Cole had failed to present a
“convincing mosaic” of circumstantial evidence to prove
that the defendants had “acted with discriminatory intent.”
After examining the evidence, the district court held
that “[t]here is nothing Cole can point to that reasonably
suggests that her termination was motivated by any-
thing other than her refusal to accept the improvement
plan.” Accordingly, the district court granted summary
judgment for the defendants. Cole appeals.




1
  The First Amendment claim and the whistleblower claim
were based on allegations that Cole had threatened to report
improprieties that occurred at the GOCA prior to her car
accident. Because Cole abandoned these claims, it is unneces-
sary to discuss them further.
6                                                     No. 08-1754

                                II.
  On appeal, Cole argues that the district court erred
in granting the defendants summary judgment on her
FMLA claim. That law makes it “unlawful for any em-
ployer to discharge or in any other manner discriminate
against any individual for opposing any practice made
unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). Cole
seeks to prove her claim under the direct method.
Under this method, she must “present evidence that her
employer took a materially adverse action against her on
account of her protected activity.” Ridings v. Riverside
Med. Ctr., 

, 771 (7th Cir. 2008). Cole may
prevail under the direct method either by “showing an
admission of discrimination” or by “constructing a con-
vincing mosaic of circumstantial evidence that allows a
jury to infer intentional discrimination by the
decisionmaker.” 2 

defendants contradict Cole’s


2
  Cole contends that the district court “erroneously applied a
much more strenuous standard” than the FMLA requires by
stating that Cole had to show a “convincing mosaic” of circum-
stantial evidence. The phrase “convincing mosaic” was first
mentioned in Troupe v. May Department Stores, 

, 736
(7th Cir. 1994). We later clarified the meaning of this phrase,
stating that:
    A mosaic is a work of visual art composed of a large
    number of tiny tiles that fit smoothly with each other, a little
    like a crossword puzzle. A case of discrimination can
    likewise be made by assembling a number of pieces of
    evidence none meaningful in itself, consistent with the
                                                    (continued...)
No. 08-1754                                                       7

case, “the case must be tried unless [they] present[ ]
unrebutted evidence” that an adverse action would have
occurred “even if [they] had had no retaliatory motive.” 

question is whether Cole was terminated “on
account of” the exercise of her right to FMLA leave. The
district court concluded that “[t]here is nothing Cole
can point to that reasonably suggests that her termina-
tion was motivated by anything other than her refusal
to accept the improvement plan.” We agree. Brown
testified in his deposition that Cole was fired for not



2
    (...continued)
       proposition of statistical theory that a number of observa-
       tions each of which supports a proposition only weakly
       can, when taken as a whole, provide strong support if all
       point in the same direction: a number of weak proofs
       can add up to a strong proof.
Sylvester v. SOS Children’s Vills. Ill., 

, 903 (7th Cir.
2006). We explained that Troupe did not necessarily require
that “circumstantial evidence in a discrimination or retalia-
tion case must . . . have a mosaic-like character.” 

In Sylvester, we held that summary judgment for the
defendant was not warranted even though there was “no
rich mosaic of circumstantial evidence of retaliation.” 

contention that the district court’s statement
of law was “erroneous,” we do not believe that she has illumi-
nated a point of any consequence. The “convincing mosaic”
standard is simply shorthand for the requirement that Cole
must present circumstantial evidence that, when considered
together, would permit a jury to believe that the defendants
retaliated against her for exercising her FMLA rights.
8                                               No. 08-1754

agreeing to the improvement plan. Prior to the termina-
tion, Verblen told Cole twice that she would be fired if she
did not sign the plan. Despite these warnings, Cole refused
to sign. Although Cole was fired within two months of
taking FMLA leave, we have held that “[s]uspicious
timing alone rarely is sufficient to create a triable issue”
and on a motion for summary judgment “mere temporal
proximity is not enough to establish a genuine issue of
material fact.” Andonissamy v. Hewlett-Packard Co., 

, 851 (7th Cir. 2008). Cole has not introduced
any evidence to suggest that her termination stemmed
from any cause other than her refusal to sign the plan.
Accordingly, insofar as Cole claims wrongful retaliation
based on her termination, the district court properly
granted summary judgment to the defendants.
  Cole also argues that the improvement plan itself con-
stituted an adverse action. Thus, Cole claims that the
presentation of the plan gave rise to a cause of action for
retaliation. Moreover, she argues that the defendants’
action need not be “materially adverse,” citing a Depart-
ment of Labor regulation that states that an employer may
not “use the taking of FMLA leave as a negative factor
in employment actions, such as . . . disciplinary actions.”
29 C.F.R. § 825.220(c). According to Cole, any disciplinary
action that an employer takes on account of FMLA leave
gives rise to a viable retaliation claim. Hence, under
Cole’s view, because the improvement plan was disciplin-
ary, its imposition constituted an adverse action.
 Contrary to Cole’s position, we have consistently re-
quired that the adverse action giving rise to an FMLA
No. 08-1754                                                  9

retaliation claim be “materially adverse.” See, e.g., 

; Breneisen v. Motorola, Inc., 

, 979
(7th Cir. 2008); Burnett v. LFW, Inc., 

, 481 (7th
Cir. 2006). “Materially adverse actions are not limited to
employment-related activities but include any actions
that would dissuade a reasonable employee from exercis-
ing his rights under the FMLA.” 

(citing Burlington N. & Santa Fe Ry. v. White, 

(2006)). The Supreme Court has noted in the similar con-
text of Title VII claims that “it is important to separate
significant from trivial harms.” 

.
The decision to take FMLA leave “cannot immunize that
employee from those petty slights or minor annoyances
that often take place at work and that all employees
experience.” 

adoption of the improvement plan did not
constitute an adverse action that would cause a rea-
sonable employee to forego exercising her rights under
the FMLA. The most onerous aspect of the improvement
plan was the requirement that Cole submit daily and
weekly schedules to Verblen and Brown. Although the
task of preparing daily plans would necessitate some
extra work, this requirement is not so oppressive that a
reasonable employee would be discouraged from taking
FMLA leave. Presumably, a reasonable employee plans
her day. The mere act of submitting a daily plan to one’s
superiors is not an additional burden of great concern.
Rather, it can be seen as a constructive assignment that,
when executed, could improve an employee’s work
habits and productivity.
10                                                  No. 08-1754

  In addition to the planning requirements, the plan
also obligated Cole to “become more aware of her tone”
and to “work[ ] on becoming a better listener.” Such minor
conditions would not dissuade a reasonable person
from exercising her rights. Cole was not deprived of
responsibility, hours, pay, or any other relevant accoutre-
ment of her position. Indeed, “not everything that
makes an employee unhappy is an actionable adverse
action.” Oest v. Ill. Dep’t of Corr., 

, 613 (7th Cir.
2001). Accordingly, the improvement plan was not a
materially adverse action. Cf. Haynes v. Level 3 Commc’ns,
LLC, 

, 1224 (10th Cir. 2006) (concluding that
an improvement plan, “standing alone, is not an adverse
employment action”); Givens v. Cingular Wireless, 

, 998 (8th Cir. 2005) (holding that placement “on a
‘performance improvement plan,’ without more, did
not constitute an adverse employment action”); Taylor v.
Small, 

, 1293 (D.C. Cir. 2003) (concluding
that placement on an improvement plan that did not affect
pay grade or salary was not an adverse action); Agnew
v. BASF Corp., 

, 310 (6th Cir. 2002) (stating
that “institution of performance improvement plans,
alone, do[es] not constitute objectively intolerable condi-
tions”).
  Our prior decisions further support this conclusion. In
Oest, we concluded that negative performance evalua-
tions did not constitute materially adverse actions. We
stated that although negative evaluations may have
ultimately led to the termination, “[s]uch a course was
not an inevitable consequence of every reprimand.” 

. Instead, “job-related criticism can
No. 08-1754                                              11

prompt an employee to improve her performance and
thus lead to a new and more constructive employment
relationship.” 

noted that the plaintiff in
Oest had not shown “any immediate consequence of the
reprimands, such as ineligibility for job benefits like
promotion, transfer to a favorable location, or an advanta-
geous increase in responsibilities.” 

case, had
Cole signed the employee improvement plan, it is possible
that she may have satisfied Verblen and Brown and
improved her relationship with her superiors. Moreover,
as in Oest, Cole was not made ineligible for job benefits by
the improvement plan; rather, the context for the plan
was an attempt to secure Cole’s FMLA benefits while
ensuring that she made an adequate contribution to the
office. Accordingly, we conclude that Verblen’s act of
requiring Cole to sign the improvement plan was not a
materially adverse action.
  Cole relies on Lewis v. School District #70, 

(7th Cir. 2008), in which we held that an employee had
presented sufficient evidence of retaliatory intent to
survive a summary judgment motion. In Lewis, a book-
keeper at the defendant school district had taken FMLA
leave after exhausting her vacation time and sick leave.

During her leave, she continued to perform
her duties from home. 

was credited for
her time spent working at home . . . and she was not
paid for the days on which she took FMLA leave.” 

school board wanted to terminate her
and expressed frustration with the possibility that she
might be protected under FMLA; board members called
the situation a “fiasco” and decried former President
12                                              No. 08-1754

Clinton for signing the law. They also encouraged the
superintendent to build a case for firing the bookkeeper
in order to skirt the FMLA’s protections. 

school board voted to replace the bookkeeper and
gave her the option of either resigning or accepting a
lower-paid position as a teacher’s assistant. 

The bookkeeper sued the school board members, the
superintendent, and the school district. After the district
court granted summary judgment for the defendants, we
reversed. 

We held that the plaintiff had pre-
sented sufficient evidence of retaliation. First, the letter
informing the plaintiff of the school board’s decision to
terminate her stated that “you miss too much work to
meet the essential functions of your present assignment.”

comments of the school board suggested
an impermissible motive. 

We noted that
the school board could have taken other actions, such as
hiring part-time help, if the bookkeeper’s inability to
perform her functions was its true motivation. 

  This case is distinguishable from Lewis. Unlike the
plaintiff in that case, Cole was not fired or constructively
discharged. Instead, the improvement plan offered her
the opportunity to improve her performance and retain
her job by increasing her communication with her superi-
ors regarding her schedule. Unlike Lewis, Cole could
have signed the plan and presumably avoided termina-
tion. Moreover, the plaintiff in Lewis faced an employ-
ment action that was actually materially adverse: she
could either resign or take a significantly lower-paying
job. In contrast, Cole faced the less-than-intimidating
prospect of planning her days and minding her tone.
No. 08-1754                                             13

Accordingly, Lewis does not require that we reverse the
district court.


                            III.
  The district court properly granted summary judgment
for the defendants on Cole’s FMLA retaliation claim. Cole
has not produced any evidence that the defendants
acted with retaliatory intent in terminating her employ-
ment. The evidence demonstrates that the sole reason
for her termination was her failure to agree to the perfor-
mance improvement plan. Moreover, the performance
improvement plan was not a materially adverse action
because Cole suffered no reduction in responsibility, pay,
hours, or any other benefit, and it did not impose a mate-
rial change in her employment duties. In short, the im-
provement plan would not have dissuaded a reasonable
employee from exercising her rights under the FMLA.
Accordingly, the district court properly granted sum-
mary judgment for the defendants. We A FFIRM .




                           4-7-09