Robertson v. State of Wisconsin Department of Health Services, 020720 FED7, 19-1179

Docket Nº:19-1179
Opinion Judge:RIPPLE, CIRCUIT JUDGE.
Party Name:Vanessa Robertson, Plaintiff-Appellant, v. State of Wisconsin Department of Health Services, et al., Defendants-Appellees.
Judge Panel:Before Ripple, Rovner, and Sykes, Circuit Judges.
Case Date:February 07, 2020
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Vanessa Robertson, Plaintiff-Appellant,

v.

State of Wisconsin Department of Health Services, et al., Defendants-Appellees.

No. 19-1179

United States Court of Appeals, Seventh Circuit

February 7, 2020

Argued November 8, 2019

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:18-cv-00116-JPS - J. P. Stadtmueller, Judge.

Before Ripple, Rovner, and Sykes, Circuit Judges.

RIPPLE, CIRCUIT JUDGE.

Vanessa Robertson appeals the district court's grant of summary judgment to the State of Wisconsin's Department of Health Services ("DHS"). In her complaint, Ms. Robertson set forth claims under Title VII of the Civil Rights Act of 1964 and under 42 U.S.C. § 1983, alleging retaliation for complaining of discrimination in the workplace. She named as defendants DHS and two DHS employees, Marlia Mattke and Tonya Evans.1

The defendants moved for summary judgment. In her opposition to that motion, Ms. Robertson did not defend her equal protection claim, and the district court deemed that claim abandoned and dismissed it.2 The district court dismissed the Title VII claims against Ms. Evans and Ms. Mattke because Title VII authorizes suit only against an employer as an entity, not against individuals.3

The district court then granted the summary judgment motion. It first held that Ms. Robertson's retaliation claim against DHS for failing to promote her to the director position failed because she could not prove a "but-for" causal link between her protected activity-reporting discrimination-and DHS's decision not to promote her. With respect to her second retaliation claim, alleging that DHS continued the retaliation against her through Ms. Evans, the court held that Ms. Robertson had failed to establish that she suffered an adverse action. Accordingly, the district court granted the defendants' motion and dismissed all claims. Ms. Robertson filed a timely notice of appeal.4 She seeks reversal of the district court's grant of summary judgment.

We now affirm the district court's judgment. With respect to her failure-to-promote claim, DHS provided a non-retaliatory reason for choosing another candidate, and Ms. Robertson has failed to submit evidence that DHS's reason is pretextual. With respect to her claim alleging that DHS continued the retaliation through Ms. Evans, Ms. Robertson has failed to show that she suffered a materially adverse action.

I.

BACKGROUND

In October 2009, Ms. Robertson became the deputy director of Milwaukee Enrollment Services ("MilES"), a bureau within DHS. Employees of MilES are responsible for determining eligibility for medical assistance, FoodShare, child care, and caretaker supplement entitlements for Milwaukee residents. As deputy director, Ms. Robertson directly supervised ten to twenty employees and indirectly supervised about 350 others.

In January 2014, an employee approached a section chief, Juanita Brown-Small, and reported that the MilES bureau director, Ed Kamin, had told her that he was going to "pimp her out" to another agency.5 Ms. Brown-Small reported this complaint to Ms. Robertson, and the two then informed the human resources department. An investigation took place and concluded that Kamin had engaged in discriminatory conduct. In April 2014, he resigned in lieu of termination. Deputy administrator of DHS, Marlia Mattke, and assistant deputy secretary of DHS, Kevin Moore, met with Ms. Robertson and the section chiefs to inform them about the resignation. At that time, Ms. Robertson and the section chiefs said that they feared retaliation from management in Madison (DHS headquarters) because Kamin had boasted about his connections there.

After Kamin's removal, DHS officials designated Ms. Robertson acting director of MilES and tasked her with running the day-to-day operations. She reported to Ms. Mattke, who worked in Madison. The operation ran smoothly under Ms. Robertson's leadership.

In September 2014, DHS conducted open recruitment for a new MilES director. It received fifty-seven applications, including Ms. Robertson's. After screening the resumes and conducting some interviews, DHS narrowed the field to three applicants: Ms. Robertson, Danyel McNeil (another MilES employee), and Ms. Evans (not a MilES employee). Ms. Mattke and Mr. Moore conducted the interviews.

During the second round of interviews, both Ms. Robertson and Ms. McNeil, as current MilES employees, were asked how they would move the agency forward, given Kamin's resignation. The interviewers did not pose the question to Ms. Evans. Neither Mr. Moore nor Ms. Mattke maintained notes during the second round of interviews. Mr. Moore recalled, however, that Ms. Robertson had discussed the importance of bridging the gap between Madison and Milwaukee, a very important issue for MilES. Additionally, Ms. Robertson, unlike Ms. Evans, had income-maintenance experience, which was important to the work at MilES. Mr. Moore had no concerns about Ms. Robertson's candidacy after her interview. However, he was concerned about Ms. Evans's lack of income-maintenance experience and lack of experience working with the State of Wisconsin. He did not consider either of these concerns to be barriers to Ms. Evans's success.6 Ms. Mattke testified, however, that she and Mr. Moore were impressed with Ms. Evans because of her strategic plan for MilES. Ms. Robertson and Ms. Evans had both led social services agencies, directed policy, managed supervisory-level employees, and headed organizations of over 150 employees. Ms. Robertson had five years of experience working for MilES. Ms. Evans had a master's degree in administration. DHS hired Ms. Evans.

For purposes of summary judgment, we must assume the correctness of Ms. Robertson's allegation that Ms. Evans, once chosen as director, antagonized, insulted, and undermined Ms. Robertson. According to Ms. Robertson, in her first meeting with Ms. Evans and Ms. Brown-Small, Ms. Evans commented that she "knew all about the last director leaving" and made references to the "prior director being forced to resign from his position."7 Ms. Robertson understood these comments as a declaration by Ms. Evans that she would not be forced out as Kamin had been. At later meetings, Ms. Evans sat with her back to Ms. Robertson. Ms. Evans also made statements during meetings that implied Ms. Robertson had been doing things incorrectly while acting as interim director. When Ms. Robertson spoke at meetings, Ms. Evans would roll her eyes8 and tell Ms. Robertson to "be quiet."9

In Ms. Robertson's reply brief, she recounts that MilES hosted public meetings which were "a part of a class action settlement."10 At these meetings, MilES staff, including Ms. Robertson, presented information detailing the agency's compliance with certain benchmarks established in the settlement of the lawsuit. Ms. Evans would talk over Ms. Robertson and show disrespect toward her at these meetings. Eventually, Ms. Robertson stopped attending.

Ms. Evans also revoked one of Ms. Robertson's job duties, resource allocation. According to Ms. Robertson, resource allocation was a key element of her job. To support this assertion, she points to Ms. McNeil's testimony that "making timely changes to resource allocation was an area in which Ms. Robertson excelled ... due to her extensive knowledge of income maintenance and her extensive knowledge of the strength and weaknesses of the staff."11

As the direct manager of the section chiefs, Ms. Robertson had to meet regularly with them. However, Ms. Evans discouraged section chiefs from meeting with Ms. Robertson and eventually demanded to be present any time a section chief met with Ms. Robertson.

Dana Thomson, a unit chief at MilES, testified that Ms. Evans treated Ms. Robertson worse than she treated two section chiefs, Mike Poma and Jerry Turner, who had not participated in the Kamin investigation. Ms. Thomson noted, for instance, that when Mr. Poma fell asleep during a meeting, Ms. Evans did not reprimand him.

On February 20, 2015, Ms. Robertson emailed Ms. Mattke and Mr. Moore to request a meeting to discuss her "un- healthy" work environment.12 Specifically, Ms. Robertson explained that she believed her "authority as a Deputy Director has been diminished over the last few months."13

Ms. Mattke responded to the meeting request by offering a date and time but also stated that Ms. Evans would have to be present. Ms. Robertson responded that she did not want Ms. Evans included in the meeting. When Ms. Mattke asked why, Ms. Robertson responded that she was not comfortable discussing her concerns in Ms. Evans's presence. One hour later, Ms. Evans emailed the entire MilES staff and directed them to speak with a direct supervisor before contacting human resources. Ms. Evans justified this step as necessary because of the "great demands" being placed on human resources.14 This policy change would have required Ms. Robertson to address her concerns to Ms. Evans before speaking to human resources. Jennifer Potts, who worked in human resources at MilES, believed that the policy could have had a chilling effect on employees who wanted to speak with human resources-especially if the employee's problem related to her manager.15 Mr. Moore and Ms. Mattke also testified that they were concerned that such a policy would silence people and create a hostile working environment.16

Ms. Brown-Small and Ms. Thomson both stated that Ms. Evans created an environment worse than the one that had existed under Kamin's management. Ms. McNeil resigned from MilES in October 2016, and Ms. Thomson resigned from MilES in February 2017 due to Ms. Evans's harassment.

II.

DISCUSSION

A.

We review the district court's grant of summary judgment de novo and construe...

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