In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2043
C LAUDETTE G OODMAN,
Plaintiff-Appellant,
v.
N ATIONAL S ECURITY A GENCY, INC.,
IBRIHIM A. K ISWANI and A BDUL S. K ISWANI,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 1995—Charles R. Norgle, Sr., Judge.
A RGUED S EPTEMBER 17, 2009—D ECIDED S EPTEMBER 3, 2010
Before R OVNER, S YKES, and T INDER, Circuit Judges.
T INDER, Circuit Judge. National Security Agency, Inc.
(a Chicago-based private security company, not the
secretive intelligence-gathering arm of the federal gov-
ernment) hired Claudette Goodman at a job fair at the
end of August 2004. National was ramping up its op-
erations and needed to staff at least two locations for
which it had contracted to provide security. Goodman
2 No. 09-2043
was hired at an initial rate of $8.25 per hour and began
a shift at a North Town housing complex. The shift at
the North Town complex was from 6:00 p.m. to 4:00 a.m.
Because she was caring for a teen-aged child, Goodman
sought a more favorable shift and transferred to the
National operation at Hilliard Homes. Working at
National, according to Goodman, was fraught with dif-
ficulties. She sensed that she was being overcharged
for her uniform. She was sometimes not paid on
time. She was often paid less than she was owed. Her
checks from National sometimes bounced. But, early on
in her time at National, Goodman was promoted to a
supervisor position and got a raise to $8.75 an hour.
Goodman was in regular contact with Ibrihim Kiswani,
National’s owner-operator, about the problems she
faced working at his company. (The other defendant,
Abdul, is Ibrihim’s brother. For all intents and purposes,
he is irrelevant to the case.) In August 2005, Goodman
suspected that male employees were being paid more
than she was. She confronted Kiswani about the sus-
pected pay disparity. He denied it. In October 2005, she
got a job at Titan Security. She quit National and started
at Titan the next day for $10 an hour.
We have recounted the facts above as the parties have
agreed they happened, with deference to the plaintiff’s
version of events. At issue in this case is whether
Goodman was discriminated against in violation of
either the Equal Pay Act, 29 U.S.C. § 206(d), or Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1). The
district court found that Goodman had not offered evi-
No. 09-2043 3
dence sufficient to defeat National’s motion for sum-
mary judgment on either claim. Specifically, the district
court found that Goodman had offered insufficient evi-
dence to prove that there was a discriminatory de-
ficiency in pay or that she was retaliated against as a
result of her pay complaints. Goodman appeals the
grant of summary judgment.
The disputed issues in the case surround Goodman’s
departure from National and the rate at which other
National employees were paid. Goodman claims that,
because of her complaints, her hours at the Hilliard
Homes site were changed and that, ultimately, she
was scheduled to be transferred back to the North
Town complex (a more dangerous location) for the
night shift, which would make it difficult to care for
her daughter. This impending transfer, she argues, was
sufficient to create the adverse employment action
required under the retaliation provisions of both the
Equal Pay Act and Title VII. She also claims that she
offered sufficient evidence that similarly situated male
employees at National were paid more than she was.
We review the summary judgment grant de novo and
construe all facts and reasonable inferences in favor of
the non-moving party (the plaintiff, in this case). Poer v.
Astrue, 606 F.3d 433, 438-39 (7th Cir. 2010). Summary
judgment is only appropriate if the evidence sub-
mitted below reveals no genuine issue as to any
material fact and the moving party (the defendant) is
entitled to judgment as a matter of law. Id. at 439. We
often call summary judgment, the “put up or shut up”
moment in litigation, see, e.g., Everroad v. Scott Truck Sys.,
4 No. 09-2043
Inc., 604 F.3d 471, 476 (7th Cir. 2010); Eberts v. Goderstad,
569 F.3d 757, 767 (7th Cir. 2009), by which we mean
that the non-moving party is required to marshal and
present the court with the evidence she contends will
prove her case. And by evidence, we mean evidence on
which a reasonable jury could rely. See AA Sales & Assocs.,
Inc. v. Coni-Seal, Inc., 550 F.3d 605, 613 (7th Cir. 2008).
Much of the difficulty in resolving this case stems
from the state of the evidence. There is little extrinsic
evidence supporting Goodman’s claims, so Goodman’s
task was to demonstrate that her testimony and the
testimony of a coworker, Michael Moore, was sufficient
to create a triable issue of fact. Goodman has pointed
to several inconsistencies in this testimony that, she
argues, reveal genuine issues of fact that merit consider-
ation by a jury. To survive summary judgment on her
retaliation claim, Goodman needed to offer evidence
to prove the existence of an adverse employment
action after she complained about her pay rate. To
survive on the discrimination claim, Goodman needed
to offer evidence of a discriminatory pay disparity. See
Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787 (7th
Cir. 2007) (“To survive summary judgment, [the plain-
tiff] must make a sufficient showing of evidence for
each element of her case that she bears the burden of
proving at trial.”).
I. Retaliation
Goodman alleges that two acts support her Title VII and
Equal Pay Act retaliation claims. Most of the evidence
No. 09-2043 5
Goodman offers regarding these alleged adverse em-
ployment actions comes from her own testimony. And,
reading her deposition, we are convinced that her testi-
mony is insufficient to create a triable issue of fact on
the issue. “[E]vidence establishing that an adverse em-
ployment action has actually taken place is an essential
element of [a retaliation] claim.” Hottenroth v. Vill. of
Slinger, 388 F.3d 1015, 1029 (7th Cir. 2004). This is true
for both Title VII and Equal Pay Act retaliation claims.
See Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005).
Her first allegation is that National changed her hours
in mid-2005 and demoted her from site to shift super-
visor. The plaintiff’s own testimony does not support
her claim. Goodman testified in her deposition that her
hours never changed at Hilliard Homes and that she
worked the day shift until she quit. Her lawyers are
now relying on Ibrihim Kiswani’s deposition testimony
that he changed Goodman’s hours. Even assuming that
we disregard the plaintiff’s own testimony on the issue,
we would need something more than Kiswani’s testi-
mony about a change in hours to make out a materially
adverse employment action. Goodman needed to pro-
vide evidence of harm. See Burlington N. & Santa Fey Ry.
v. White, 548 U.S. 53, 67 (2006) (“The antiretaliation pro-
vision protects an individual not from all retaliation,
but from retaliation that produces an injury or harm.”).
Her lawyers claim that Goodman’s childcare situation
made the hours unworkable, but there is absolutely no
testimony in the record that this alleged shift change
affected her childcare arrangements. Furthermore, it
appears that if her hours changed, they changed in
6 No. 09-2043
July 2005 (as with all the evidence in the case, the
evidence of timing is unclear). She did not quit until that
October. Considering that Goodman is silent about the
change in hours, she certainly has not offered any
evidence of harm. Accordingly, the evidence she offers
on the hour change fails to establish a genuine issue of
material fact.
The same thing goes for the argument that she was
demoted from her position as site supervisor to shift
supervisor after her complaint. As plaintiff concedes,
however, “reassignment of job duties is not auto-
matically actionable.” Id. at 71. Here, Goodman’s pay
and benefits did not change and Goodman does not
even allege that the job change affected her responsi-
bilities, or moreover, that it affected her in any way,
except for having to report to the new site supervisor,
Michael Moore. Goodman makes no allegation that re-
porting to him was itself an adverse employment ac-
tion. Accordingly, Goodman has once again failed to
show that she was harmed by the change.
Finally, we come to the end of her employment. Good-
man says she was reassigned to a shift she could not
work, which was in essence a type of constructive dis-
charge because the reassignment forced her to look for
a new job. Her chief problem with this claim is factual;
she was never reassigned. At her deposition she first
testified, under examination from the defendant’s law-
yer, that she quit her job because National wasn’t
paying her as much as the other supervisors and that a
paycheck had bounced. When pressed as to whether she
No. 09-2043 7
had listed all the reasons for leaving National, Goodman
offered more: “not getting paid on time; waiting two
weeks for a check . . .; getting cheated out of overtime;
paying for unnecessary uniforms;” and being treated
poorly by management when she complained that she
hadn’t been paid. All of these are great reasons to quit
a job, but notably Goodman omitted the impending
shift change that she now alleges was retaliatory.
So Goodman’s counsel later in the deposition asked
her whether the North Town work site was “sometimes
used as punishment” by National. She testified that
it was “[b]ecause I do recall when I had questioned
Abraham [Ibrihim, her boss,] regarding my pay, he had
mentioned that he was going to send me back to North
Town. And he knew I couldn’t work those hours.” Her
lawyers point to this statement as establishing an ad-
verse employment action. And to make it more clear,
plaintiff’s counsel reminded her of when defendant’s
counsel asked her to list “all the reasons” why she left
National and whether the shift change to North Town
was one of the reasons. “Yes it was,” she says, “but
there’s so many reasons why I left. Like I told him,
I could go on and on all day. The thing is I was treated
unfairly. That’s the bottom line.”
Back under examination by defendant’s counsel, Good-
man was asked whether she was ever actually trans-
ferred to North Town, and she testified, “[T]hat was just
a threat that he was—that he gave me, that he was
going [to] transfer me.” Well, did she remember the
conversation? “I honestly don’t remember the conversa-
8 No. 09-2043
tion, but little pieces that I do remember that he said
that he was going to send me over to North Town, and
we argued about it. I don’t remember exactly what was
said, but I told him that I wasn’t going over there and
he knew I couldn’t work those houses.” She clarified:
“I never did make it over there. [National] never changed
the schedule. I heard stories that they were—from other
people that they were going to put me over there,
but I had started looking for a job. Like I said, the
first day I looked I got hired.” (The emphasis is ours.)
Because of the inconsistencies in the plaintiff’s testi-
mony, we can’t say that we have a clear picture of
what went on here. Her testimony fails to establish that
there was ever a change in her employment (and in
fact, her direct testimony is that no change occurred).
At best, she testified that she was worried that a shift
change may be coming. “[I]t is well established that
unfulfilled threats that result in no material harm
cannot be considered an adverse employment action
under Title VII.” Hottenroth, 388 F.3d at 1030. Goodman
does not allege that the uncertainty over the shift
change led her to seek another job; instead, it’s quite
clear from her own testimony that general dissatisfac-
tion with the amount and manner in which she was
being paid led to the job change. This does not con-
stitute a retaliation claim.
II. Discrimination
The pay issue forms the basis of both her Title VII and
Equal Pay Act claims. As a threshold issue, we note
No. 09-2043 9
that Goodman argues that the district court did not
properly consider her Title VII claim based on pay dis-
crepancy, and instead only considered the retaliation
issue. But because we examine the case de novo, we
may affirm a grant of summary judgment on any
ground in the record, even one the district court did not
rely on. Simmons v. Pryor, 26 F.3d 650, 653 (7th Cir. 1993).
Furthermore, the district court considered her pay
claims in the context of her Equal Pay Act argument. The
same deficiency that defeats her Equal Pay Act argu-
ment also defeats her Title VII claim—she has offered
insufficient evidence of a discriminatory pay differential.
Title VII prohibits workplace discrimination with re-
spect to compensation, and terms, conditions, or privi-
leges of employment because of an employee’s “race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). The Equal Pay Act similarly prohibits em-
ployees from paying employees different wages based
on gender. 29 U.S.C. § 206(d). Under either statute, the
plaintiff bears the burden of proving her claim. For a
Title VII claim, she must allege that her lower pay was a
result of discrimination. See Cullen v. Ind. Univ. Bd. of Trs.,
338 F.3d 693, 704 (7th Cir. 2003). For an equal pay
claim, she must show that “higher wages were paid to
a male employee” for “equal work requiring substan-
tially similar skill, effort and responsibilities” that was
“performed under similar working conditions.” Stopka
v. Alliance of Am. Insurers, 141 F.3d 681, 685 (7th Cir. 1998).
Her evidence of a discriminatory pay differential is her
own testimony and the testimony of Michael Moore, the
10 No. 09-2043
other supervisor at Hilliard Homes. She testified that
she heard from Moore that he was being paid more
than her, but he admitted later that he just told her that
to “get her stirred up.” So, the real evidence of Moore’s
pay is contained in his testimony and the payroll
records submitted into evidence. In an affidavit sub-
mitted to the district court, Moore testified that he
received $9.00 per hour (25 cents more than Goodman)
by January 2006 and that he received a pay increase to
$9.50 in 2007 after he got his firearm license. In a later
deposition, he testified that he had received two raises—
one to $8.50 per hour (25 cents less than Goodman)
about 90 days after he started and another raise to $9.00
in late 2005 or early 2006. He also confirmed that he
was given a raise to $9.50 after Goodman left.
The parties do a lot of fighting over whether the affi-
davit is sufficient to establish the pay disparity and
whether the raise came about because Moore was asked
to carry a gun at work, but they seem to forget which
dates matter. (In fact, both parties seem to skip a year
in their narration of events; both of their statements of
facts seem to assume Goodman left work in 2006. The
charge Goodman filed with the Illinois Department of
Labor and the date of this lawsuit indicate that she
ceased her employ with National in October 2005 and
sued National in April 2006. Goodman assumed super-
visory responsibilities in January 2005, and Moore was
transferred back to Hilliard Homes that July. The parties’
total failure in figuring out during just what years the
events in question took place increased the difficulty of
sorting through the record in order to decide this appeal.)
No. 09-2043 11
In his affidavit, and also his deposition, Moore pegs
his raise to $9.00 to around January 2006. This was three
months after Goodman left the company. For all we
know, he got a raise to help train her replacement. The
plaintiff blithely asserts that Moore’s raise was tied to
his assumption of supervisory duties at Hilliard Homes
in January 2005, but all the evidence shows that he
started at the $8.50 rate (or $8.65 according to the
payroll records) that January. Moore did offer con-
flicting reasons for the raise and conflicting accounts of
whether he was paid more than Goodman, but both
his affidavit and deposition testimony are clear that
the raise to $9.00 came around January 2006.
Moore’s testimony is partly confirmed by the
company’s payroll records, which show that he was hired
at the same rate as Goodman, but received only a 40-
cent bump when she received a 50-cent bump to $8.75.
(In his testimony, Moore testifies that this intermediate
pay rate was $8.50. In either case, it was below Good-
man’s). The bump occurred around February 13, 2005,
nearly a year before the raise that Moore discusses in
his affidavit and deposition. So, the evidence corro-
borates the defendant’s claim that Moore and Goodman
received similar raises when they received similar pro-
motions. In addition to the payroll records, all the testi-
mony in the case shows that Moore was a supervisor
for almost a full year before he received his second
raise. Therefore, the established date of Moore’s raise
undercuts plaintiff’s claim entirely. In fact, all the
reliable evidence, even Goodman’s, tends to show that
Moore was paid less than Goodman during her entire
tenure at National.
12 No. 09-2043
Goodman makes one last stab at an equal pay claim
by attempting to compare herself to other employees
who received a higher starting wage than she did.
She based this claim below on the existence of mys-
terious employees 507 and 508, whom she argued were
hired the same day she was and were paid more. We
are hard-pressed to glean any information from the
employment history of these two mysterious employees
as it appears in the record. But we know for sure that
the plaintiff has failed to show who these employees
were, what their duties were, when they started work,
where they worked, and what their backgrounds were.
She argues that the district court did not address these
employees, but her showing on the starting pay issue
was so woefully inadequate that the issue did not merit
the court’s time.
III. Conclusion
Because the plaintiff has offered insufficient evidence
to establish the key elements of her retaliation and dis-
crimination claims, the district court’s grant of sum-
mary judgment to the defendants was proper. It almost
goes without saying that the district court likewise
did not abuse its discretion in denying her Rule 59(e)
motion to alter or amend the judgment.
A FFIRMED.
9-3-10