REBECCA R. PALLMEYER, District Judge.
Plaintiff Kimberly Bolanos, a Caucasian woman, worked in the registrar's office of Northeastern Illinois University ("NEIU") under the supervision of the University Registrar, Daniel Weber. Bolanos disapproved of the practices of several other workers, who, she claims, came to work late, misreported their time, and engaged in personal activities while at work. Bolanos confronted these other workers from time to time; after one such confrontation, another employee claimed that Bolanos had created a hostile and threatening work environment. After a hearing, NEIU terminated Bolanos's employment. Bolanos sued NEIU, Weber, and NEIU's president, Sharon Hahs, asserting a host of claims: race and sex discrimination; retaliation; violations of procedural and substantive due process; violation of the Stored Communications Act, arising from NEIU's blocking access to Bolanos's e-mail account; retaliatory discharge; and intentional infliction of emotional distress ("IIED"). Defendants have moved for summary judgment on all counts. The court previously dismissed some claims against Weber and Hahs, and now grants summary judgment to all Defendants on all remaining claims.
Plaintiff Kimberly Bolanos was a graduate student at NEIU, and began working there in June 2007 as a Graduate Assistant—is it unclear what this position entailed. (Am. Compl. ¶ 10 [25]; Defs. Weber and Hahs's Answer to Am. Compl. [44] ¶ 10.) Beginning in June 2009, she was employed in the Registrar's office, in a position referred to as the Assistant Registrar of Graduate Records or, sometimes, Coordinator of Graduate Records. (Defs.' Local Rule 56.1 Statement of Facts in Supp. of Mot. for Summ. J. [63] ("DSOF") ¶ 8.) In May 2012, Avril Murray was hired as a Graduate Records Representative, under Bolanos's supervision. (DSOF ¶ 11.) Bolanos herself reported to Daniel Weber, the University Registrar;
At various times during her employment with the Registrar, Bolanos observed that other NEIU employees failed to adhere to policies regarding tardiness, absenteeism, personal activities at work, and time reporting. In the spring of 2009,
On September 18, 2013, there was a confrontation between Bolanos and Murray regarding Murray's interaction with a student. (DSOF ¶ 15.) Bolanos claims that the student had not completed her degree requirements and that the head of the student's academic department would not permit her to graduate. (Bolanos Dep. 148:6-152:20.) Bolanos testified that Murray "had ongoing issues with" the same faculty member, though Bolanos was uncertain of the faculty member's name and did not describe Murray's alleged "issues" with this faculty member. (Id.) According to Bolanos, Murray's questioning the student about the faculty member caused the student to become upset. (Pl.'s Resp. to DSOF ¶ 15.) Bolanos and Murray both became agitated. (DSOF ¶ 16.) Weber testified that he counseled Murray about this incident,
On November 4, 2013, there was an incident between Bolanos and Verla Grays, who held the title of Graduate Admissions and Records Supervisor, and reported to Steven Pajak, the Associate Director of Admission Review and Processing (it is unclear where this falls in the hierarchy with respect to the registrar). (DSOF ¶¶ 22-23; Dep. of Steven Pajak, Ex. 18 to DSOF [63-19] 7:3-9.) Grays supervised Narvaez. (DSOF ¶ 24.) Bolanos became upset because Grays was angry and interrupted Bolanos in her office; Grays claimed that she did so because Bolanos refused to help answer the main office phone. (Pl.'s Resp. to DSOF ¶ 27.) On November 11, Tressa Randolph, a representative from NEIU Human Resources, followed up in response to a request from Bolanos's anger management counselor for information about Bolanos's progress.
Neither Grays nor Bolanos was disciplined for this incident; Bolanos claims Grays was given leniency because she was new to her supervisory position. It is not clear whether Weber himself was involved in Grays' lack of punishment (DSOF ¶¶ 30-31; Bolanos Dep. at 82:8-83:9), but he testified that neither Grays nor Bolanos was disciplined because both were considered to be partially at fault. (DSOF ¶¶ 30-31.) Grays told Bolanos that she was too hard to work with, and also said "You can't expect me to be nice to you when I'm mad at you." (DSOF ¶ 28; PSOAF ¶ 112.) Bolanos claims that neither Weber nor Pajak, Grays's supervisor, responded properly to these comments, though it is unclear whether they were aware of them. (PSOAF ¶ 112.) Bolanos does not specify how she believes Weber or Pajak should have responded, but she complained that Grays "wasn't reprimanded for her unprofessional behavior." (Bolanos Dep. 83:22-84:3.)
On January 15, 2014, Bolanos "yell[ed] at" Narvaez for being late to work. (Pl.'s Resp. to DSOF ¶ 32.) Narvaez claims she was less than ten minutes late (DSOF ¶ 32; Ex. 20 to DSOF [63-21]), and that, although Bolanos did not directly threaten her, Bolanos's loud reaction made Narvaez feel unsafe. (DSOF ¶ 32; Dep. of Martha Narvaez Vasquez, Ex. 10 to DSOF [63-11] ("Narvaez Dep.") 54:16-55:14.) Narvaez reported this incident to her own supervisor, Grays. (DSOF ¶ 33.) Whether Narvaez was disciplined for tardiness is uncertain; Narvaez testified that Grays gave her a verbal warning, but Grays testified she never gave any warnings as a supervisor. (Pl.'s Resp. to DSOF ¶ 34.)
Following the January 15, 2014 confrontation, Narvaez, a civil service union employee, complained to the union, which filed a union grievance against Bolanos for workplace harassment.
Also in January, Bolanos had a meeting with Weber, for reasons not explained in the record. (PSOAF ¶ 122.) During this meeting, Bolanos began crying and told him that Murray and Narvaez were "trying her patience;"
During the time that Bolanos and Narvaez were employed at NEIU, Bolanos complained to several individuals—Pajak, Weber, Randolph, and others—that Pajak and Grays did not discipline Narvaez in the same manner that Bolanos disciplined Murray. (DSOF ¶ 69.) Bolanos believes that this inconsistency contradicts what the parties refer to as the "universal disciplinary process" for civil service employees. (Pl.'s Resp. to DSOF ¶ 64; Weber Dep. 25:5-11.) Bolanos confirmed that the inconsistent disciplinary practice was not linked to race; she testified that her complaints "had absolutely nothing to do with the color of anyone's skin[.]" (DSOF ¶ 70; Bolanos Dep. 134:22-135:4.) Bolanos, Murray, Weber, and Hahs are Caucasian, while Narvaez is Hispanic and Grays is African-American; Bolanos, Murray, Narvaez, Grays and Hahs are all female, while Weber is male. (DSOF ¶¶ 3, 5, 7, 10, 11, 22.)
Bolanos claims that Weber knew that Grays, Murray, Narvaez, and Pennamon "yell[ed] at and harass[ed]" her, but she identifies only a few specific incidents of alleged harassment in her statements of facts. (DSOF ¶¶ 72-73, 75.) First, she complains that she was often required to cover for employees who did not show up for work. (DSOF ¶ 75.) Second, in the spring of 2012, Bolanos heard her coworkers loudly complaining about racism on the part of "certain employees." (Bolanos Dep. 133:6-13; 136:14-21.) Third, Bolanos claims that her coworkers were "standing right next to [Bolanos's] cubicle voicing loud comments about how lucky [she was] that their God has allowed them to forgive people like [her.]" (Bolanos Dep. 66:19-24.) Bolanos asserts that Weber knew about this purported harassment and allowed her coworkers' abusive behavior to continue. (DSOF ¶¶ 72-73, 75; Bolanos Dep. 66:19-24, 133:6-13, 136:14-21.) Bolanos says that she informed Tressa Randolph about these issues, as well, but the only evidence she cites for this assertion is testimony about her communications with Randolph about the January 2014 incident involving Narvaez. (Pl.'s Resp. to DSOF ¶ 71; Bolanos Dep. 172:14-175:24.)
On March 13, 2014, Bolanos was served with a union grievance. (DSOF ¶ 40.) The grievance, filed as a class action,
After this confrontation (for which Narvaez was also present, possibly because she had been with Murray at the meeting with the union president), Murray and Narvaez informed Weber and the Associate Vice President for Enrollment Management Services, Dr. Harring-Hendon,
Together with staff from Human Resources (their names are not in the record), Weber investigated the circumstances surrounding the March 13, 2014 confrontation, interviewing Bolanos, Grays, and Murray.
As part of its own investigation, the NEIU Police Department interviewed employees (the record does not specify who) and conducted a background check of Bolanos. (Bolanos Termination Hr'g Tr., Ex. 15 to DSOF [63-16] 274-6.) Following the investigation, the NEIU Chief of Police, James Lyon, determined that Bolanos was a threat to other employees. (Ex. 15 to DSOF at 277.) NEIU officials (again, not identified) concluded that Bolanos created a hostile work environment and recommended she be terminated. (DSOF ¶ 51; Ex. 15 to DSOF at 277; Weber Dep. 54:4-12.)
Weber, Randolph, Lyon, Harring-Hendon, Director of Human Resources Marta Maso, and Assistant Vice President for Business Affairs Craig Duetsch recommended Bolanos's termination (presumably to Hahs, though that is unspecified). (DSOF ¶ 53.) Hahs wrote to Bolanos, notifying her that NEIU was seeking her termination for creating a hostile and threatening workplace on April 1, 2014. (DSOF ¶ 54.) On April 7, Bolanos requested a hearing pursuant to her right under NEIU regulations. (DSOF ¶ 55; Ex. 28 to DSOF [65-29] 21.) The termination hearing was held on May 9, 2014 before a committee of five employees. (DSOF ¶ 57.) Consistent with NEIU regulations, two of these employees (David Leamon and Mary Hay Verne) were selected by Bolanos.
The committee recommended that Bolanos's employment be terminated. The committee concluded that, although Bolanos made no specific threats, she "exhibited threatening behavior and intimidated her co-workers." (DSOF ¶ 60; Ex. 27 to DSOF [63-28].) As President of NEIU, Hahs placed the matter of the proposed termination on the Board of Trustees' agenda. (DSOF ¶ 61.) NEIU procedure requires that Hahs meet with the employee or attempt to communicate regarding possible remedial actions before a notice of intent to terminate is issued. (Pl.'s Resp. to DSOF ¶ 61.) Bolanos claims that Hahs did not follow these procedures, and that Hahs recommended her termination "with no physical evidence." (DSOF ¶ 91; Pl.'s Resp. to DSOF ¶ 61.) On June 12, 2014, the Board of Trustees voted to accept the recommendation to terminate Bolanos. (DSOF ¶ 62.) The NEIU police escorted Bolanos to retrieve her belongings and Weber inspected them for sensitive information. (DSOF ¶ 87.) Bolanos testified that she had never seen other employees escorted and have their belongings inspected; she conceded, however, that she does not know whether other former employees she observed had been terminated. (DSOF ¶¶ 87-88; Bolanos Dep. 96:13-97:11.)
Bolanos maintained an NEIU e-mail address, which she used in both her capacity as a student and as an employee of NEIU. (DSOF ¶ 9.) When she was placed on administrative leave, Bolanos asked Randolph to set up an auto-reply message for her e-mail. (Pl.'s Resp. to DSOF ¶ 83.) Someone did place an auto-reply on her account the following week. (Bolanos Dep. 90:3-91:18.) At some point after this, Bolanos told Human Resources employee Marta Maso that Weber was "flooding" her e-mail with test messages for the auto-reply. (Bolanos Dep. 91:13-18.) She also e-mailed several NEIU employees, including Hahs, from that account while she was on leave. (DSOF ¶ 90; Bolanos Dep. 92:9-24.) Hahs never met with Bolanos. (DSOF ¶ 90.)
The account was deactivated on May 5, 2014, four days before Bolanos's termination hearing, and Bolanos received a new e-mail account for education purposes. (DSOF ¶ 56.) Bolanos claims that other former NEIU employees retained access to their email accounts, but she does not know if those former employees were discharged.
On May 6, 2014 (three days before the termination hearing), Bolanos filed a Charge of Discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission. (DSOF ¶ 94.) Bolanos also mailed an ethics complaint
Bolanos filed her original complaint on September 26, 2014 against NEIU, alleging claims of sex, race, and national origin discrimination, and retaliation under Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983; due process violations under 42 U.S.C. § 1983; violations of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701, and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; and state law claims of intrusion on seclusion, retaliatory discharge, and IIED. (Compl. [1].) NEIU moved to dismiss all but the Title VII claims on sovereign immunity grounds. (Def.'s Mot. to Dismiss Portions of Pl.'s Compl. [10].) This court granted that motion without prejudice on February 18, 2015. (Minute Entry [24]; Tr. of Proceedings, Feb. 18, 2015 [79].) The court noted that Bolanos's § 1981 and § 1983 claims against NEIU were barred by sovereign immunity, and that the other claims were also barred absent an immunity waiver for such claims. (Tr. of Proceedings [79] 4:1-18.) The court granted Bolanos leave to amend to address the sovereign immunity issue for those claims and to make a claim for prospective relief, if appropriate.
In her amended complaint filed on March 11, 2015, Bolanos withdrew her claim under Computer Fraud and Abuse Act and the intrusion-on-seclusion claim, and added Weber and Hahs as Defendants in their individual and official capacities. (Am. Compl.) The amended complaint alleges, against all Defendants: sex discrimination under Title VII (Count I); race and national origin discrimination under Title VII (Count II); retaliation under Title VII (Count III); violation of procedural and substantive due process under § 1983 (Count IV); sex, race, and national origin discrimination and retaliation under § 1983 (Count V); sex, race, and national origin discrimination and retaliation under § 1981 (Count VI); retaliatory discharge (Count VIII); and IIED (Count IX). She alleged a violation of the SCA against NEIU only (Count VII).
Defendants Weber and Hahs moved to dismiss all but the § 1983 claim alleging sex, race, and national origin discrimination. Bolanos conceded that the Title VII and retaliatory discharge claims should be dismissed against Weber and Hahs, and the court dismissed the claims against those Defendants. (Defs. Weber and Hahs's Partial Mot. to Dismiss [34] 2, 10; Minute Order [43]; Tr. of Proceedings, Jul. 15, 2015 [50] 2:13-19.) The court also dismissed the due process clams in Count IV and dismissed the § 1981 claim in Count VI because there is no private right of action against state actors under § 1981. (Tr. of Proceedings [50] 2:22-3:24); Campbell v. Forest Pres. Dist. of Cook Cty., 752 F.3d 665, 671 (7th Cir. 2014). As for Count V (violation of § 1983), the court dismissed the retaliation aspect of the claim, and all of the official-capacity claims. (Tr. of Proceedings [50] 4:4-12, 5:10-20.) The court denied the motion with respect to Count IX (IIED). (Tr. of Proceedings [50] 5:21-6:13.) Thus, all claims in the amended complaint remain against Defendant NEIU, and the claims remaining against Defendants Weber and Hahs are: Count V (sex, race and national origin discrimination under 42 U.S.C. § 1983) and Count IX (IIED), in their individual capacities.
Summary judgment is appropriate when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1032 (7th Cir. 2005). The court will give the plaintiff "the benefit of all conflicts in the evidence and all reasonable inferences that might be drawn from the evidence, without necessarily vouching for their objective accuracy." Malin v. Hospira, Inc., 762 F.3d 552, 554 (7th Cir. 2014). The court construes the evidence and all reasonable inferences in the light most favorable to the nonmoving party. O'Connor v. DePaul Univ., 123 F.3d 665, 669 (7th Cir.1997).
Plaintiff alleged that Defendant NEIU discriminated against her on the bases of her race, sex, and national origin.
"In a discrimination case, a materially adverse employment action is one which visits upon a plaintiff `a significant change in employment status.'" Boss v. Castro, 816 F.3d 910, 915 (7th Cir. 2016) (quoting Andrews v. CBOCS West, Inc., 743 F.3d 230, 235 (7th Cir. 2014), overruled on other grounds by Ortiz, 834 F.3d at 765). "Such changes can involve the employee's current wealth, his career prospects, or changes to work conditions that include humiliating, degrading, unsafe, unhealthy, or otherwise significant negative alteration in the workplace." Boss, 816 F.3d at 915. Bolanos has identified at least eighteen examples of what she deems adverse action.
First, Bolanos claims that Murray, Grays, and Narvaez harassed her, and Weber did nothing. "An employer is prohibited from requiring employees to work in a discriminatory hostile or abusive environment." Velez v. City of Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006). "To survive summary judgment on a hostile work environment claim, [a plaintiff must] establish that: (1) [s]he was subjected to unwelcome harassment, (2) the harassment was based on [her] race, (3) the harassment was severe and pervasive enough to alter the conditions of [her] environment and create a hostile and abusive working environment, and (4) there is a basis for employer liability." Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863 (7th Cir. 2005). As to the fourth element, NEIU is liable "only if [officials or supervisors] know (or ought to know) what is going on and choose to do nothing (or select ineffectual steps when better ones are available)[.]" Maalik v. Int'l Union of Elevator Constructors, Local 2, 437 F.3d 650, 653 (7th Cir. 2006).
If Weber was aware of severe or pervasive racial or sexual harassment and took no action to correct it, then NEIU may be liable. Bolanos makes two claims that her coworkers harassed her. First, she claims that they did not show up to work, so she had to cover for them. (Pl.'s Resp. to DSOF ¶ 75.) Second, she claims that they raised their voices, harassed, and threatened
Assuming that these circumstances constitute harassment, Bolanos has offered no basis for the conclusion that the alleged wrongdoing was motivated by Bolanos's gender or race. There is no evidence that her coworkers were tardy or absent from work because Bolanos is white or female. And it is apparent that the verbal altercations and other conflicts between Bolanos and her coworkers occurred because Bolanos wanted to see her coworkers disciplined for rule infractions—discipline that the coworkers presumably would not have welcomed. Bolanos's coworkers may have reacted hostilely to her efforts to correct them, but Title VII does not cover "all boorish or even all harassing conduct." Berry v. Delta Airlines, Inc., 260 F.3d 803, 808 (7th Cir. 2001); see Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010) ("A plaintiff's subjective determination of tension in the workplace, without more, cannot constitute an adverse employment action absent a tangible job consequence."). Grays made negative comments after a dispute about interruptions and workplace civility, but nothing about these comments suggests a racial motivation (Grays's status as an African-American is, of course, not evidence of any such motivation). Similarly, there is no evidence that Narvaez's complaints about Bolanos had anything to do with her race, sex, or any reason beyond resentment of Bolanos's "yelling" at her. As for the fact that Bolanos's attending anger management classes became known to her coworkers, there is no evidence of who made that information public, let alone any unlawful motivation for the disclosure.
Bolanos offers no evidence that any of the alleged harassment was gender-based, and her evidence of racial motivation is similarly far too thin to support a verdict in her favor on this claim. Her assertion that her coworkers "call[ed] her a racist for enforcing the [NEIU] policies" and that Weber took no action in response (Pl.'s Resp. to DSOF ¶ 72), fails for two reasons. First, the evidence suggests that her coworkers were motivated by Bolanos's outlook on the NEIU rules—not by her race. More significantly, these comments neither mentioned Bolanos's name, nor were they directed at her (Bolanos Dep. 133:23-134:21); instead, "there [were] little comments being made at the front counter . . . never mentioning [Bolanos's] name but they would be at the counter saying, `Certain people around here are racist. . . .' And [another coworker] mentioned to [student workers] that she thought it was racist intent." (Bolanos Dep. 133:8-134:6.)
A suggestion on the part of other workers that unnamed persons were motivated by race is insufficient to establish that Bolanos experienced a hostile environment. "[R]elatively isolated instances of non-severe misconduct will not support a claim of a hostile environment." Whittaker v. N. Illinois Univ., 424 F.3d 640, 646 (7th Cir. 2005) (quoting Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993)). In Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993), the defendant "asked [the plaintiff] for dates, called her a `dumb blond,' put his hand on her shoulder several times, placed `I love you' signs in her work area and attempted to kiss her in a bar." Yet the court held that even those much more overt incidents were "relatively isolated" and did not constitute harassment. Id. Here, it is not even clear that there was more than one instance of comments made at the front counter, and the comments were not directed at her and did not mention her by name. Thus, even if NEIU or Weber knew of these comments and allowed them to occur, this claim of harassment does not survive summary judgment.
Bolanos complains about other incidents as well, but several of these incidents do not rise to the level of adverse employment action. For example, Bolanos claims that she was subject to harsher discipline than Murray and Grays for the same incidents. In order for disciplinary measures to be actionable, they ordinarily must be accompanied by "tangible job consequence[s.]"
Before she was placed on leave, none of the discipline imposed on Bolanos resulted in a consequence sufficient to be adverse employment action. Bolanos does not explain how the aftermath of the September and November 2013 incidents materially altered the terms or conditions of her employment. See Porter v. City of Chicago, 700 F.3d 944, 954-55 (7th Cir. 2012) ("[The plaintiff] fails, however, to put forth evidence that [issuing a counseling session report] materially altered the terms or conditions of her employment. Absent such evidence, these actions are indistinguishable from the schedule changes and reprimands without material consequences that we have held generally do not constitute adverse employment actions.").
Four other incidents that Bolanos cites as evidence of discrimination also are not adverse, and there is no evidence tying them to Bolanos's race or sex. First, police escorted Bolanos to pick up her personal items after she was terminated, and Weber looked through them—treatment Bolanos claims she had never seen imposed on other employees. Bolanos concedes she is not aware how NEIU officials dealt with other employees who were terminated, however. In any event, this treatment occurred after Bolanos was terminated, so it could not have materially altered the conditions of employment.
Next, Bolanos claims that Weber failed to advise her about a Human Resources meeting regarding the January 2014 incident with Narvaez or about the union grievance.
Third, Bolanos complains that Narvaez's supervisors did not discipline Narvaez as harshly as Bolanos disciplined Murray. That Grays supervised her employees differently may have made Bolanos's job harder, and she may well be correct that inconsistent enforcement of attendance policies is unwise. But the fact that another supervisor was more lenient than Bolanos cannot be characterized as a significant change in her employment status.
Finally, there is a suggestion that Bolanos believes that she suffered adverse action by being deprived of supervisory responsibility over student workers. (PSOAF ¶ 131.) This is a nonstarter. Bolanos stopped supervising student workers when she became the Assistant Registrar of Graduate Records and started reporting to Weber; this change involved new responsibilities as well as removal of some old ones. This is not adverse employment action.
The court recognizes that even where an incident does not constitute an adverse employment action, it may indicate discriminatory intent. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 739-40 (7th Cir. 2006) ("A negative performance evaluation, however, does not in itself constitute an adverse employment action [but] may serve as [evidence of discrimination].") That is not the case with this evidence: even if Grays intended, by her own leniency, to undermine Bolanos's discipline efforts and did so to interfere with Bolanos's job, there is no sign that she did so because of Bolanos's race. Grays's apparent disagreement with Bolanos's strict enforcement of the rules is a difference in management style, not race discrimination. Similarly, there is no evidence that Bolanos's being escorted by police, Weber's not telling her of the meeting or grievance, or Bolanos's not supervising student workers were related to race or gender.
It is undisputed that Bolanos was disciplined for altercations with co-workers and ultimately discharged. These are adverse actions, but the court concludes she has not presented evidence that she was disciplined more harshly than similarly-situated workers, or that the circumstances otherwise support an inference of race or sex discrimination.
Bolanos complains that NEIU did not punish Avril Murray for the September 2013 incident. She notes, further, that she herself, but not Murray and Narvaez, was sent home after the episode when Bolanos was served with the grievance. Murray was Bolanos's subordinate and is, like Bolanos, a Caucasian female. The alleged fact that she received lesser discipline does not create an inference of discrimination on the basis of race or gender.
Grays is an African American female, but Weber was not her supervisor, so she is not a useful comparator. See Franklin v. City of Evanston, 384 F.3d 838, 847 (7th Cir. 2004) (finding that employees who had different supervisors were not similarly situated); Snipes v. Illinois Dep't of Corr., 291 F.3d 460, 463 (7th Cir. 2002) (finding no abuse of discretion when the court determined that employees with different supervisors were not similarly situated, even though they were subject to the same policies). In any event, as Bolanos recognizes, neither she nor Grays was actually disciplined for the November 2013 incident; Weber told HR about it, but was simply responding to HR's request for information. There is no evidence that Weber or Pajak consciously decided to treat Bolanos and Grays differently, much less that they did so because of Bolanos's race.
Bolanos sees evidence of discrimination in the fact that other supervisors' lax discipline practices resulted in many employees' not being disciplined for personal activities, time reporting, tardiness, and absenteeism, while she herself was disciplined for confrontations with other employees. (PSOAF ¶¶ 99-102, 106, 107.) In order to show that disciplinary practices reflect discrimination, an employee ordinarily presents evidence that she was "similarly situated with respect to performance, qualifications, and conduct[,]" to those who were disciplined less harshly. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000) overruled on other grounds by Ortiz, 834 F.3d 760, 765. "This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Id. at 617-18.
Bolanos was disciplined for her interactions with other employees, and aside from the incidents with Murray and Grays addressed above, none of the alleged comparisons involve employee confrontations. There may have been different discipline for different employees for violations of "the rules," but violations of attendance or record-keeping standards are not sufficiently similar to support an inference that the discipline imposed on Bolanos was based on race or sex. See Gaines v. K-Five Const. Corp., 742 F.3d 256, 263 (7th Cir. 2014) (finding that a tardy employee was not similarly situated to the plaintiff who falsified documents). Moreover, Bolanos refers to lax rules enforcement over a long time period; she describes examples where other employees were not disciplined for absenteeism beginning in 2011. (PSOAF ¶ 99.) Such examples shed no light on the decisions about Bolanos's discipline. That different supervisors enforce some rules more harshly than others may reflect poor management; it does not on its own indicate discrimination.
In fact, there is only one instance in which another employee's attendance transgressions appeared to have any relationship to the discipline imposed on Bolanos: when Narvaez filed a complaint against her after Bolanos scolded Narvaez for tardiness. Narvaez's complaint ultimately led to Bolanos's termination. Bolanos argues that this was discrimination because Narvaez was not disciplined, while "Bolanos was reported to her supervisor, Narvaez's supervisors, Human Resources, and the Union." (Pl.'s Mem. 13.) But Bolanos "was reported" not by NEIU, but by Narvaez, a subordinate of another employee. These actions cannot be attributed to NEIU, and are not examples of disparate discipline.
Finally, Bolanos claims NEIU discriminated against her by setting up an auto-reply message on her e-mail and deactivating her e-mail account. (Pl.'s Resp. to DSOF ¶¶ 83-85.) Bolanos claims "other NEIU employees retained use of their NEIU [e-mail] after [their] employment ended." (Pl.'s Resp. to DSOF ¶ 84) (emphasis added.) But as Defendants point out, Bolanos does not say whether these employees were terminated, nor does she identify these other employees' race or gender. (Def.'s Mem. of Law in Supp. of Mot. for Summ. J. [62] ("Def.'s Mem.") 12.) Bolanos acknowledges she did not know if they had been terminated. (Bolanos Dep. 100:21-102:5.)
On the record before the court, there can be little doubt that Bolanos's conflicts with other workers, not her job performance, were the reason for her discharge. The court nevertheless considers Bolanos's argument that she was meeting NEIU's legitimate expectations, but nevertheless discharged. In considering that argument, "[t]he proper inquiry mandates looking at [the plaintiff's] job performance through the eyes of her supervisors[.]" Gates v. Caterpillar, Inc., 513 F.3d 680, 689 (7th Cir. 2008). First, Bolanos points out that it was part of her job to enforce NEIU's policies. (Pl.'s Mem. 11-12.) But Weber told Bolanos to stop enforcing the policies with respect to employees that she did not supervise—instead, he directed that she inform other supervisors. Bolanos claims this is hypocritical: she was hired to enforce the rules, she contends, but stripped of the power to do so. (Pl.'s Mem. 12.) She offers no evidence, however, that she was expected or entitled to enforce the rules outside of her own chain of command. And her responsibility to enforce rules with respect to her subordinates did not give her license to disobey her own supervisor's direct orders.
Bolanos also notes that she had good performance reviews and that Weber gave her special projects. (Pl.'s Mem. 11-12.) A plaintiff who performs well in some aspects of her job may not meet expectations if she also has interpersonal conflicts, however. See Fane v. Locke Reynolds, LLP, 480 F.3d 534, 540 (7th Cir. 2007) (employee did not meet expectations when she completed assignments but sent an abrasive e-mail to coworkers and a client complained about her communication); Herron v. DaimlerChrysler Corp., 388 F.3d 293, 300 (7th Cir. 2004) (employee did not meet expectations when he performed his job well, but had "volatile relations" with coworkers). Bolanos may have had good performance evaluations, but she also had a history of poor personal interactions with coworkers. Further, she admittedly disobeyed a direct order from her supervisor to stop confronting other employees about rules violations and to inform supervisors instead. These circumstances establish legitimate reasons for her discharge in spite of her otherwise satisfactory performance. A court will not "sit as super-personnel to question the wisdom or business judgment of employers." Gates, 513 F.3d at 689 (internal quotation marks omitted).
Indeed, Bolanos can point to no other employee who had her record of interpersonal conflict and disobedience. She admittedly points to several incidents where other employees raised their voices, but the evidence shows only that three other employees—Murray, Grays and Narvaez—each had a single confrontation with Bolanos. Bolanos herself, on the other hand, exhibited a pattern of behavior. It was no doubt frustrating to witness tardiness or other violations on the part of other employees, but that does not make NEIU's response to Bolanos's conduct unfair. "[W]hen [considering] whether an employer's justification for dismissing its employee is pretextual, the inquiry is not whether the reason for the firing was a correct business judgment but whether the decisionmakers honestly acted on that reason." Bahl v. Royal Indem. Co., 115 F.3d 1283, 1291 (7th Cir. 1997).
Plaintiff has offered no evidence of persons outside her protected category being treated more favorably in similar circumstances. And a plaintiff who, like Bolanos, is not a member of a racial minority but alleges race discrimination may be expected to present "`background circumstances' that demonstrate that a particular employer has `reason or inclination to discriminate invidiously against whites' or evidence that `there is something `fishy' about the facts at hand.'" Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir. 2003) (quoting Mills v. Health Care Serv. Corp., 171 F.3d 450, 455 (1999)). Bolanos attempts to do so here, asserting that it is suspicious that NEIU decided "all of a sudden" to charge her with creating a hostile work environment after Bolanos had worked there for years. (Pl.'s Mem. 14-15.) Bolanos does not bother to explain how this alleged sudden change of course is suspicious—but there was no such abrupt change of course in this case. NEIU officials had been aware of Bolanos's interactions with coworkers for nearly two years: NEIU first took action in 2012 by fostering a mediation. NEIU also did not unilaterally invent a hostile work environment charge; Narvaez was the one who initially made such allegations. When Narvaez filed her grievance and claimed she felt threatened, NEIU took those allegations seriously.
Bolanos also contends NEIU's decision to charge her with creating a hostile work environment is suspicious because she never touched or displayed a weapon to any employee. (Pl.'s Mem. 14.) But physical threats or use of a weapon are not the only bases for a finding of hostility. Similarly, Bolanos argues that micromanaging, counseling, and disciplining employees is not a threat. (Pl.'s Mem. 14-15.) This also does not bolster her argument: NEIU is entitled to "insist on a management style that ensures a smooth operating atmosphere." Bagwe, 811 F.3d at 881. Bolanos did not adhere to NEIU's preferred management style.
The other circumstances that trouble Bolanos are that Murray lied to Bolanos about where she was during the grievance meeting, and that Weber refused to move Bolanos's desk at her request. (Pl.'s Mem. 15.) Neither of these circumstances is particularly strange or suspicious, nor is there any basis for the conclusion that they were related to her race. That Murray (Bolanos's subordinate) concealed her meeting from Bolanos had no apparent effect on NEIU's decision to terminate her. Nor is there any evidence that Weber's justification for not moving her desk—that to move Bolanos would put her in a different office from those she supervised—was implausible. (Def.'s Resp. to PSOAF ¶ 135.)
Bolanos identifies a number of additional instances of alleged discrimination, but none require extensive discussion. First, Bolanos claims that Weber discriminated against her when he told her to stop tracking Narvaez. (DSOF ¶ 89.) At the time Weber gave this order, however, Bolanos's monitoring of other employees' conduct, and confrontations with them, had caused significant office conflict. Weber's desire to minimize that conflict has nothing to do with race or sex.
Second, Bolanos claims she was the only assistant registrar who was required to work late. (DSOF ¶ 81.) Bolanos herself testified, however, that Weber gave her special projects, which sometimes required her to work late, because of her database skills, not because of her race.
Fifth, Bolanos also complains that Hahs terminated her with no "physical evidence." (Pl.'s Resp. to DSOF ¶ 91.) The court is uncertain what "physical evidence" means in this context; the NEIU committee recommended termination after hearing testimony from five witnesses. (DSOF ¶ 59.) That NEIU terminated Bolanos even though she had no physical contact with other employees does not indicate discrimination.
Finally, the court notes that NEIU terminated Bolanos after a Human Resources investigation, an investigation by the NEIU police, and an NEIU committee hearing. The court knows nothing about the outcome of other investigations, whether any of those other investigations involved interpersonal interactions or a hostile work environment, or the race or gender of any other individuals who were investigated for such matters. Bolanos herself offers no basis from which the court could conclude that Human Resources, the NEIU police, or the committee members were motivated or affected by Bolanos's sex or race.
Bolanos has identified a number of experiences while employed at NEIU that she deems unpleasant. But the sheer number of negative experiences does not prove discrimination. See Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 763 (7th Cir. 2001) ("[A]n overload of irrelevant or nonprobative facts" does not indicate "evidence of discriminatory intent."). The evidence here would not permit a reasonable factfinder to conclude that Bolanos's gender, race or national origin caused her termination or any adverse employment action. Summary judgment is granted on Counts I and II.
Bolanos also claims that she has been retaliated against for attempting to enforce NEIU's policies, and her filing the Charge of Discrimination. NEIU allegedly retaliated by (1) allowing "select employees to violate NEIU's rules, policies, and procedures[,]" (2) disciplining Bolanos for attempting to enforce those rules, policies, and procedures, (3) terminating her employment, and (4) locking her out of her e-mail account. (Am. Compl. ¶¶ 2, 97.) To prove such a claim, Bolanos must present evidence that she engaged in statutorily protected activity, that she suffered an adverse action, and that there is a causal connection between the two. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016); Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010)). This claim fails for the same reasons that doomed Bolanos's discrimination claim and for additional reasons as well.
Bolanos claims that her persistent attempts to enforce NEIU policies and her Charge of Discrimination were protected activities. "An employee engages in a protected activity by either: (1) filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under Title VII or other employment statutes; or (2) opposing an unlawful employment practice." Northington v. H & M Int'l, 712 F.3d 1062, 1065 (7th Cir. 2013). "Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient." Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006).
Bolanos's Charge of Discrimination is a protected activity. Her attempts to enforce NEIU policies by complaining about the disparate discipline, however, are not. Bolanos claims that "NEIU's willy-nilly enforcement (and discrimination) in its policies" is an unlawful employment practice. (Pl.'s Mem. 15.) But a plaintiff claiming retaliation "must not only have a subjective (sincere, good faith) belief that [she] opposed an unlawful practice; [her] belief must also be objectively reasonable, which means that the complaint must involve discrimination that is prohibited by Title VII." Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 707 (7th Cir. 2000). Nothing suggests that Bolanos's complaints about lax enforcement of NEIU personnel policy were in reality complaints about sex or race discrimination. Every employee about whom Bolanos complained is, like Bolanos, female, and Bolanos points to no instance in which she complained that other employees got away with rules violations because of race. To the contrary, Bolanos testified that her complaints had "absolutely nothing to do with the color of anyone's skin." (DSOF ¶ 70).
The only mention of race in this record is Bolanos's 2012 complaint to Weber that other employees insinuated that Bolanos herself was a "racist." Her complaint about this insinuation to Weber is not protected activity. Compare Castro v. DeVry Univ., Inc., 786 F.3d 559, 564 (7th Cir. 2015) (finding protected activity when employees complained that their supervisor "often used racially and ethnically derogatory language in the workplace") with O'Leary v. Accretive Health, Inc., 657 F.3d 625, 628, 631 (7th Cir. 2011) (finding no protected activity when an employee complained that a higher-ranked employee, who was not his supervisor, had remarked "that she preferred dating men his age because `they were more her speed[,]'" because "it involved a single instance of sexually-charged remarks which, however imprudent they may have been, were relatively tame.") Bolanos testified there were "little comments" concerning racism, that one employee (Karen Payne) used the word "racist," but there is no evidence that Bolanos herself was so labelled. (Bolanos Dep. 133:8-135:9.) Unlike in Castro, these remarks were not derogatory. Complaints about these "little comments" do not constitute protected activity. In fact, even if they were protected activity, they would not satisfy the causation element: Bolanos had complained of the lack of rule enforcement for some time, so it is unclear why NEIU would choose this moment to retaliate for those complaints. "Suspicious timing by itself will rarely support an inference of retaliation, but it may do so "`[w]hen [the action] follows on the close heels of protected expression[.]'" Lord v. High Voltage Software, Inc., 839 F.3d 556, 564 (7th Cir. 2016) (first alteration in original) (quoting Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir. 2005)).
Because Bolanos's attempts to standardize discipline were not protected activity, Bolanos's Charge of Discrimination on May 6, 2014 is the only protected activity that could support a retaliation claim. By that date, NEIU's alleged lax and inconsistent discipline had continued for months, and Weber had already cautioned Bolanos against confronting employees who violated those rules. Bolanos's Charge of Discrimination could not have had any causal relationship to the enforcement practices Bolanos complains about.
That leaves the matters of Bolanos's termination and being locked out of her e-mail account. Termination is unquestionably adverse action, but the sequence of events defeats any inference that termination was in retaliation for Bolanos's charge of discrimination. By the time she filed that charge, NEIU had already informed Bolanos that it was seeking to terminate her employment. There is no basis for the conclusion that NEIU would not have proceeded with the termination, had she not filed her charge, and Bolanos does not claim that the outcome of her hearing would have been different if she had not filed the charge.
In Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 676 (7th Cir. 2011), two supervisors had discussed disciplining plaintiff for her combative and demeaning workplace conduct well before her final complaint of discrimination. Although she was not formally terminated until after that final complaint, the Court of Appeals affirmed summary judgment for the defendant; the fact that the plaintiff's supervisors had already decided to enact some form of discipline meant that protected activity was not the cause for the discipline. Id. Here, too, Bolanos's charge was not the trigger for her termination: Randolph, Director of Human Resources Marta Maso, and others had made that recommendation by the time she filed her charge. This distinguishes Bolanos's situation from Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1458 (7th Cir. 1994), where "the decision to discharge [the plaintiff] was made approximately four weeks after she complained[.]" Id. (emphasis added).
The deactivation of Bolanos's e-mail account requires little analysis. The account was deactivated the day before Bolanos filed the charge. The court grants summary judgment on Count III.
Counts IV through VIII allege claims that were dismissed against NEIU on sovereign immunity grounds in the original complaint. (Minute Entry [24]; Tr. of Proceedings [79] 4:1-18). Although the court allowed Bolanos to re-plead these claims and address whether the State has waived sovereign immunity on some claims, Bolanos's allegations in the amended complaint are virtually identical to those in the original complaint, and her arguments in her brief are the same as the ones she presented in response to NEIU's motion to dismiss the original complaint. "[T]he law of the case doctrine embodies the notion that a court ought not to re-visit an earlier ruling in a case absent a compelling reason, such as manifest error or a change in the law, that warrants re-examination." Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007).
Bolanos's arguments that sovereign immunity is overcome are unpersuasive. First, Bolanos argues that Eleventh Amendment immunity does not apply because Bolanos "is not a citizen of another state or of a foreign state." (Pl.'s Mem. 2.) The Supreme Court concluded over one hundred years ago that sovereign immunity applies even when a plaintiff is a citizen of the same state as the purported state defendant. Hans v. Louisiana, 134 U.S. 1, 10-16 (1890). Perhaps Bolanos intended to challenge this non-textual rule, which does have its critics. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 126 (1984) (Brennan, J., dissenting). Bolanos does not make such an argument, however. She instead ignores over a century of precedent. The court declines her implicit invitation to do the same.
Second, Bolanos contends that Illinois has waived sovereign immunity. She points first to the statutory exception to sovereign immunity for actions under Title VII; and indeed, Defendants do not contest that Illinois does not have sovereign immunity for the Title VII claims—those claims were addressed above.
Next, Bolanos argues that, because she seeks prospective relief, immunity does not apply. But a suit against a state agency is barred "regardless of the nature of the relief sought." Pennhurst, 465 U.S. at 100. The kind of prospective relief that Bolanos seeks may be available against state officials, but not against the state itself. See Cory v. White, 457 U.S. 85, 91 (1982) (finding that Eleventh Amendment immunity applies to equitable remedies).
Bolanos also has one new argument that Count IV, in particular, should overcome sovereign immunity: that NEIU must comply with due process, citing Alexander v. Northeastern Illinois University, 586 F.Supp.2d 905, 912 n.2 (N.D. Ill. 2008): "NEIU must comply with due process under the Fourteenth Amendment." But Alexander does not support Bolanos's argument; there, the court concluded that NEIU was immune. Id. at 913-14. The quoted passage has nothing to do with immunity; in it, the court simply noted that the plaintiff had pleaded a due process violation under the Fifth and Fourteenth Amendments, but only the Fourteenth Amendment applied, not the Fifth, because NEIU is a state, not a federal, agency. Id. at 912 n.2.
Finally, Bolanos argues that Congress has abrogated sovereign immunity for the § 1983 and § 1981 claims in 42 U.S.C.A. § 2000d-7(a)(1), which provides:
Bolanos argues that § 1983 and § 1981 are statutes prohibiting discrimination and that NEIU receives federal funding. According to Bolanos, this subjects NEIU to this catch-all abrogation of immunity.
Even if this were not the case, Bolanos also repeats arguments on the merits that the court found unpersuasive when dismissing Count IV against the individual Defendants. First, Bolanos does not explain how NEIU's conduct violated substantive due process rights. Substantive due process "protects plaintiffs only against arbitrary government action that shocks the conscience." Montgomery v. Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005) (internal quotation marks omitted). "[A]n alleged wrongful termination of public employment is not actionable as a violation of substantive due process unless the employee also alleges the defendants violated some other constitutional right or that state remedies were inadequate." Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010) (citing Montgomery, 410 F.3d at 939). Bolanos has made no showing of any arbitrary action that shocks the conscience, no showing of any other constitutional violation, and no basis for the conclusion that state remedies for any wrongdoing are inadequate.
Her procedural due process claim fares no better. To establish procedural due process violation, she must show she had a legitimate expectation of continued employment. Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007). She also acknowledges that "[t]o show a legitimate expectation of continued employment, a plaintiff must show a specific ordinance, state law, contract or understanding limiting the ability of the state or state entity to discharge [her]." Id. Bolanos argues that she had a legitimate expectation of continued employment because the letter offering Bolanos the new position working for Weber provides that her position "is continuous unless limited by contract period or terminated in accordance with the Board of Trustees Governing Policies and Regulations." (Ex. 42 to Pl.'s Resp. to DSOF.) Defendants respond that these regulations do not protect her from termination: indeed the regulations appear to provide that employees "shall be employed by the Board and serve at the pleasure of the President." (NEIU Regulations, Ex. 28 to DSOF [65-29] 20.) These regulations do, however, provide some limitations on NEIU's ability to terminate employees; employees must receive some notice before they are terminated, for example. (Id.)
The court need not resolve whether these limitations are sufficient to create a property right, because even if they do, NEIU did not violate Bolanos's due process. If Bolanos had a constitutionally protected property interest in her job, NEIU must provide, at a minimum, notice of the charges, an explanation of its evidence, and an opportunity for Bolanos to tell her side of the story before an impartial decision-maker. Head v. Chicago Sch. Reform Bd. of Trustees, 225 F.3d 794, 803-04 (7th Cir. 2000). Defendants met those requirements. Bolanos received written notice of the charges against her, a hearing before five NEIU employees, two of whom she selected, where Defendants presented evidence and Bolanos had the opportunity to do so, as well. Bolanos makes no argument that any of these procedures was inadequate; instead Bolanos simply asserts that she had a property interest, but this alone is not sufficient to prove that NEIU violated her due process rights. Bolanos has not presented sufficient evidence to go to the jury on this claim.
Count VIII alleged retaliatory discharge, while Count VII alleges a violation of the Stored Communications Act, 18 U.S.C. § 2701, arising from NEIU's termination of Bolanos's email account. "The SCA provides a private cause of action for unauthorized, intentional access to communications held in electronic storage." Maremont v. Susan Fredman Design Grp., Ltd., No. 10 C 7811, 2014 WL 812401, at *6 (N.D. Ill. Mar. 3, 2014). While § 2701, which Bolanos cites, is a penal statute, § 2707 provides a private right of action against a party who knowingly accesses such stored communications without authorization—the statute also prohibits "obtain[ing], alter[ing] or prevent[ing] authorized access" to the communication.
The SCA has an exception for access "by the person or entity providing a wire or electronic communications service." 18 U.S.C. § 2701(c)(1). An entity providing such a communication service can therefore access, and prevent authorized access, to that service. Defendants argue that exception applies here because NEIU itself provided Bolanos's e-mail account. "Authorization . . . can be given by the entity providing the electronic communications service, which includes a private employer that provides email service to its employees." Joseph v. Carnes, 108 F.Supp.3d 613, 616 (N.D. Ill. 2015) (quoting Shefts v. Petrakis, No. 10-CV-1104, 2011 WL 5930469, at *6 (C.D. Ill. Nov. 29, 2011)). Defendant also cites to Fraser v. Nationwide Mutual Insurance Co., 352 F.3d 107, 109, 114-15 (3d Cir. 2003), as amended (Jan. 20, 2004), where the court held that the § 2701(c)(1) exception applied to an insurance company that accessed a former employee's e-mail account, and to Reichert v. Elizabethtown Coll., No. CIV.A. 10-2248, 2011 WL 3438318, at *1, *5 (E.D. Pa. Aug. 5, 2011), where the court dismissed a SCA claim because the § 2701(c)(1) exception applied to access by a college to a former student's account. Both of these cases involved searches of employer-provided email, rather than termination of e-mail accounts. Fraser, 352 F.3d at 115; Reichert, 2011 WL 3438318, at *5. But, while the SCA generally prohibits both "access[ing]" and "prevent[ing] authorized access" to stored communications, the § 2701(c) exception applies to both actions. Accordingly, the employers in Fraser and Reichert were also entitled to prevent the employees from accessing their e-mails.
This argument appears to be persuasive, but the court need not reach it. Bolanos has not responded to Defendant's arguments on Counts VII and VIII, and is deemed to have withdrawn those claims under the SCA and retaliatory discharge. See Sow v. Fortville Police Dep't, 636 F.3d 293, 305 (7th Cir. 2011) ("Plaintiff waived all . . . claims by failing to argue that [they] were sufficient to survive summary judgment."). The court grants summary judgment to NEIU on Counts IV through VIII.
"The same requirements for proving discrimination apply to claims under Title VII, § 1981, and § 1983." Egonmwan v. Cook Cty. Sheriff's Dep't, 602 F.3d 845, 850 n.7 (7th Cir. 2010). The absence of evidence sufficient to reach a jury on Plaintiff's Title VII claims defeats her claims under § 1983, and § 1981 as well. Defendants Weber and Hahs are therefore entitled to summary judgment on Count V. See Cole v. Bd. of Trustees of N. Illinois Univ., 838 F.3d 888, 895, 901 (7th Cir. 2016) (affirming summary judgment for individual defendants and the university employer defendant on the § 1983 race discrimination claim for the same reasons).
Count IX of the amended complaint alleges intentional infliction of emotional distress against NEIU and the individual defendants. As with Count VIII, Bolanos's brief addresses only the claim against the individual Defendants, not NEIU. Summary judgment is granted in NEIU's favor on Count XI.
As for the individual Defendants, Weber and Hahs argue, first, that they have sovereign immunity for Bolanos's IIED claim, and in the alternative that the claim fails as a matter of law. Both arguments are well-founded.
Federal courts are "bound by state rules of immunity regarding state law causes of action." Magdziak v. Byrd, 96 F.3d 1045, 1048 (7th Cir. 1996). Whether Illinois has waived immunity for this claim turns on whether the action is more properly an action against the State. Jinkins v. Lee, 209 Ill.2d 320, 330, 807 N.E.2d 411, 417-18 (2004). An action is against the State—and sovereign immunity is not waived—when there are:
Id. at 330, 807 N.E.2d at 418 (quoting Healy v. Vaupel, 133 Ill.2d 295, 309, 549 N.E.2d 1240, 1247 (1990)). As explained here, there are no disputes concerning any of these factors.
Bolanos argues that Weber and Hahs acted outside the scope of their authority because (1) Hahs acted out of personal animosity, rather than NEIU's best interest, (2) Hahs did not follow NEIU policy during Bolanos's termination, and (3) Weber singled out Bolanos and did not discipline others who violated NEIU policy. None of these arguments overcome sovereign immunity. First, Bolanos argues that a defendant acts beyond the scope of authority when he or she acts with personal animosity toward the plaintiff; this principle appears to have originated in Nikelly v. Stubing, 204 Ill.App.3d 870, 876, 562 N.E.2d 360, 364 (4th Dist. 1990). But the cases that Bolanos cites for this general principle do not support her argument. Here, as in Nikelly, there are no allegations that the defendants acted with personal animosity toward the plaintiff; instead they acted in what they perceived were the employer's best interest.
Bolanos believes that Hahs acted against NEIU's best interest in permitting other employees to violate rules about tardiness, timekeeping, and personal activities. (Pl's Mem. 7.) She cites to Lewis v. Caterpillar Inc., 367 F. App'x 683, 685 (7th Cir. 2010), but that case simply acknowledges the obvious proposition that an employee who fails to arrive at work on time does not meet the employer's legitimate expectations. It does not stand for the notion that a university administrator has no discretion in enforcing work rules. In short, whether NEIU should have more closely disciplined other employees for minor rules violations has no bearing on whether Hahs believed it was in NEIU's best interest to terminate Bolanos. It is undisputed that Bolanos continued to monitor and confront employees she did not supervise even after being told to stop. (Pl.'s Resp. to DSOF ¶¶ 38-39.) Further, Hahs received a memorandum recommending Bolanos's termination that cited Bolanos's allegedly threatening behavior. (Pl.'s Resp. to DSOF ¶ 60.) Faced with such allegations, Hahs could conclude that it was in NEIU's best interest to terminate Bolanos, and Bolanos has presented no evidence to the contrary.
That Bolanos believes that Hahs did not follow NEIU policy does not alter the analysis. (Pl.'s Mem. 7.) "A State employee's violation of policy, regulation, or even statute does not necessarily avert the application of sovereign immunity." Welch v. Ill. Supreme Court, 322 Ill.App.3d 345, 352, 751 N.E.2d 1187, 1194 (3d Dist. 2001). Even "[b]y breaking workplace rules[,] . . . employees do not necessarily act outside the scope of their state employment." Jackson v. Alverez, 358 Ill.App.3d 555, 561, 831 N.E.2d 1159, 1164 (4th Dist. 2005). In Jackson, the court held that defendants acted within the scope of their authority even when they violated workplace rules by supervising patients with gross carelessness. Id. at 561, 831 N.E.2d at 1164-65; cf. Carstens-Wickham v. Sedycias, 2016 IL App (5th) 150472, ¶¶ 41, 60 N.E.3d 138, 145 (finding that defendants exceeded the scope of their authority when they sent documents about the plaintiff to the president of the state university, which violated university policies because it was done outside of official processes).
Bolanos disputes Defendants' assertion that Hahs had the authority to "place the matter on the [Board of Trustees'] Agenda to determine whether the recommendation to terminate Plaintiff would be accepted or rejected" (DSOF ¶ 61), but she cites to no evidence that Hahs actually acted outside her authority. Instead, Bolanos notes that Hahs failed to meet with Bolanos personally before the notice of termination was issued (Pl.'s Resp. to DSOF ¶ 61), but that alleged misstep alone does not constitute action outside the scope of her authority.
Third, Bolanos claims that Weber acted outside the scope of his authority by singling Bolanos out and not disciplining employees who violated NEIU work rules. As explained above, however, Weber disciplined Bolanos for conduct that no other employee engaged in: disruptive and unauthorized efforts to "correct" other workers. The fact that he allegedly chose to ignore other wrongdoing says nothing about whether discipline of Bolanos was outside the scope of his authority. The fact that NEIU has a "universal disciplinary process" for civil service employees is irrelevant.
For the second factor to support a waiver of sovereign immunity, Weber and Hahs must have allegedly breached a duty owed to the public generally. The crux of this factor is the "source of the duty" test—if the duty allegedly breached "arises solely by virtue of his state employment," this factor will not support sovereign immunity. Brandon v. Bonell, 368 Ill.App.3d 492, 505, 858 N.E.2d 465, 480 (2d Dist. 2006); see Hampton v. City of Chicago, 349 F.Supp.2d 1075, 1079 (N.D. Ill. 2004) (remarking that the source-of-the-duty test "amplifi[es]" the second factor). "A State employee who breaches a duty he owes regardless of his State employment is no more entitled to immunity than is a private individual who breaches that same duty[.]" See Jinkins, 209 Ill. 2d at 331, 807 N.E.2d at 418 (quoting Currie v. Lao, 148 Ill.2d 151, 158-60, 1592 N.E.2d 977, 980 (1992)).
Bolanos argues that Hahs breached the duty to follow NEIU policy for termination of non-union employees for cause. (Pl.'s Mem. 7.) By definition, however, this duty is specific to Hahs's state employment and not owed to the general public. Bolanos's only argument with respect to Weber is that he singled her out for discipline and did not discipline others. (Pl.'s Mem. 7.) Any duty Weber had to impose consistent discipline on NEIU employees is, again, not one owed to the general public. See Cortright v. Doyle, 386 Ill.App.3d 895, 903-05, 898 N.E.2d 1153, 1160-62 (1st Dist. 2008) (holding that issuing performance evaluations were within the defendants' capacities as supervisors, even in the context of an IIED claim, and were not owed independently of state employment).
Finally, the court examines whether Weber or Hahs acted outside the normal and official functions of the State. "Evaluating, disciplining, and setting assignment deadlines [are] all within the normal and official functions of . . . supervisors as state employees." Id. at 905, 898 N.E.2d at 1162. Bolanos does not claim that Weber or Hahs acted outside of their normal functions. Whether Weber disciplined other employees differently or Hahs followed termination policy, both were acting as NEIU employees when doing so. The third factor thus does not support a waiver of sovereign immunity.
Bolanos's IIED claim fails on the merits, as well. To recover for IIED, a plaintiff must show (1) that the defendant's behavior was "truly extreme and outrageous," (2) the defendant must intend that the conduct will cause severe emotional distress, or know there is a high probability such distress will occur, and (3) the defendant's conduct must actually cause such distress. McGrath v. Fahey, 126 Ill.2d 78, 86, 533 N.E.2d 806, 809 (1988). The conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Pub. Fin. Corp. v. Davis, 66 Ill.2d 85, 90, 360 N.E.2d 765, 767 (1976) (quoting Restatement (Second) of Torts § 46, cmt. d (Am. Law Inst. 1965)).
In the employment context, "courts have found extreme and outrageous behavior . . . where the employer clearly abuses the power it holds over an employee in a manner far more severe than the typical disagreements or job-related stress caused by the average work environment." Honaker v. Smith, 256 F.3d 477, 491 (7th Cir. 2001) (collecting cases). "Another factor . . . is whether the defendant reasonably believed that his objective was legitimate; greater latitude is given to a defendant pursuing a reasonable objective even if that pursuit results in some amount of distress for a plaintiff." Id. Illinois courts "have found outrageous behavior where defendants threatened to exercise their power to coerce plaintiffs into doing something they would not otherwise do." Graham v. Commonwealth Edison Co., 318 Ill.App.3d 736, 747, 742 N.E.2d 858, 867 (1st Dist. 2000).
No authority supports the argument that Weber or Hahs's conduct was extreme or outrageous. Bolanos alleges only that workplace discipline was inconsistent, and that there was no training on issuing discipline. Illinois courts hesitate to find IIED causes of action in "everyday job stresses resulting from discipline, personality conflicts ... or even terminations[.]" Id. at 746, 742 N.E.2d at 867. Disciplining employees differently is not an abuse of an employer's power. Compare Welsh v. Commonwealth Edison Co., 306 Ill.App.3d 148, 154, 713 N.E.2d 679, 684 (1st Dist. 1999) (finding that demoting, transferring, and forcing an employee to perform humiliating tasks was not extreme or outrageous because it was not coercive) with Graham, 318 Ill. App. 3d at 748, 742 N.E.2d at 868 (finding that a "five-month-long sham investigation of [the employee] in retaliation for . . . reporting nuclear safety violations" was extreme and outrageous). Bolanos was not coerced into doing anything, and imposing different discipline for different offenses is not clearly abusive.
Because Defendants have sovereign immunity and Bolanos's claim for IIED fails as a matter of law, summary judgment is granted on Count IX.
For the reasons stated above, Defendants' motion for summary judgment [61] is granted.