NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 27, 2014*
Decided June 27, 2014
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13‐3703
ANN LUMPKINS‐BENFORD, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 6547
ALLSTATE INSURANCE COMPANY,
Defendant‐Appellee. Rubén Castillo,
Chief Judge.
O R D E R
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 13‐3703 Page 2
Ann Lumpkins‐Benford, a former customer‐service agent at Allstate Insurance
Company, appeals the grant of summary judgment for Allstate in this employment‐
discrimination lawsuit. She claims that she suffered race discrimination, a hostile work
environment, and retaliation for reporting discrimination, all in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e‐17. We affirm.
Lumpkins‐Benford, who is African American, began to suspect her employer of
racial discrimination after Allstate employees gave inconsistent explanations for not
paying her for two weeks of a three‐week unscheduled absence in January 2011. As
Lumpkins‐Benford testified at her deposition, it was her understanding that she could
use 28 days of paid leave in 2011, whether scheduled or unscheduled. But an employee
in the timekeeping department told her that Allstate would not pay for unscheduled
absences lasting more than one week unless they involved short‐term disability or
family‐medical leave. A human‐resources manager later gave a different explanation,
saying that Lumpkins‐Benford had accrued only two days of paid leave at the time of
her absence. Lumpkins‐Benford believed that this latter explanation was discriminatory
because she knew of white coworkers who had used paid leave before earning it.
After telling the human‐resources manager and Allstate’s CEO in May 2011 that
she planned to file a discrimination charge, Lumpkins‐Benford came to believe that the
company was retaliating against her. Days after sending her email, she arrived at the
office to find a black balloon taped to her desk. All of her coworkers had received white,
yellow, and blue balloons as part of an employee‐recognition day sponsored by
Allstate, so Lumpkins‐Benford saw the black balloon as the company’s way of singling
her out and calling her a “nigger.” One month later she learned that Allstate was paying
only partially for the time (three out of eight hours) she studied continuing education
materials required to maintain her state insurance license; in the past the company had
given her unlimited study time. She filed her charge of discrimination in July 2011 and
amended it in September to include retaliation, citing the black‐balloon incident, the
reduced study time, and an incident in August when she had been unable to use her
security badge to open the door to the call center. She sued in September.
A couple years later, while this suit was pending, Allstate closed the call center
where Lumpkins‐Benford worked and offered all employees severance pay in exchange
for waiving all claims against the company. The waiver given to Lumpkins‐Benford
specifically mentioned her pending suit. She declined to sign the waiver, believing that
it too was retaliatory.
No. 13‐3703 Page 3
The company moved for summary judgment but failed to send the required
notice explaining summary judgment to Lumpkins‐Benford. See N.D. ILL. L. R. 56.2.
The court spotted the oversight and sent the notice to Lumpkins‐Benford, giving her 14
days to amend her statement of facts in light of a motion to strike filed by Allstate.
The district court granted summary judgment for Allstate. First, with respect to
race discrimination, the court concluded that Lumpkins‐Benford could not establish a
prima facie case under the indirect method of proof because she could not show that
she was meeting Allstate’s job expectations given her unscheduled absence. Nor could
she establish discrimination with circumstantial evidence because nothing linked the
black‐balloon incident to Allstate’s decision four months earlier not to pay for all of her
unscheduled leave. Next, regarding her claim of a hostile work environment, the court
ruled that the balloon incident, while “troubling,” was not severe or pervasive enough
to alter the conditions of her employment. Although Lumpkins‐Benford compared the
balloon to a noose or burning cross, the court explained that “[b]urning crosses and
lynchings are violent acts teeming with historical significance, and the Court declines to
find the same hateful and ominous meaning in a balloon.” Finally, concerning
Lumpkins‐Benford’s retaliation claim, the court determined that (1) the black‐balloon
and security‐badge incidents were not adverse employment actions, and (2) she had not
provided evidence of a causal link between the filing of her race‐discrimination
complaint and the reduction in time allotted to complete her continuing education
requirements. The court added that it found nothing retaliatory or otherwise unlawful
about Allstate’s decision to condition severance pay on her agreement to release all
legal claims against it.
On appeal Lumpkins‐Benford first asserts that the district court erroneously
granted summary judgment on her racial discrimination claim in light of time records
showing that her white coworkers used paid leave before they earned it. But the district
court correctly concluded that this evidence did not suggest that Allstate discriminated
based on race. As the court pointed out, there is no evidence that the company treated
white employees differently. Like her white coworkers, Lumpkins‐Benford used paid
leave before accruing it, using five days in January 2011 despite having accrued only
two. And she acknowledged that Allstate expected her to schedule her absences in
advance (though the company never told her of its one‐week limitation on unscheduled
leave). Because no evidence shows that non‐black employees were ever paid for more
than a week’s unscheduled absence, nothing in the record calls into question Allstate’s
non‐discriminatory explanation that it refused to pay for the entire absence because it
was unscheduled. See Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014)
No. 13‐3703 Page 4
(unexcused absences provided non‐discriminatory motive for adverse employment
action); Breneisen v. Motorola, Inc., 512 F.3d 972, 982 (7th Cir. 2008) (same).
Next, concerning her hostile‐workplace claim, Lumpkins‐Benford asserts that the
district court minimized the offensiveness of the black‐balloon incident, which she
continues to compare to burning crosses and nooses. But as the court explained, the
assessment of an offensive incident is made from both an objective and a subjective
viewpoint. See Passananti v. Cook County, 689 F.3d 655, 667–68 (7th Cir. 2012). A single
offensive incident has to be very severe to create a hostile workplace, Johnson v. General
Bd. of Pension & Health Benefits of United Methodist Church, 733 F.3d 722, 729–30 (7th Cir.
2013), and the court here rightly concluded that the balloon’s alleged racial message did
not rise to that level, see Nichols v. Michigan City Plant Planning Dep’t, No. 13–2893, 2014
WL 2766776, at *4 (7th Cir. June 19, 2014) (one‐time use of n‐word directed at plaintiff
insufficiently severe to establish hostile workplace); Ellis v. CCA of Tennessee LLC, 650
F.3d 640, 647–49 (7th Cir. 2011) (single incident where coworkers wore shirts displaying
confederate flags did not rise to level of an objectively hostile workplace); cf. Porter v.
Erie Foods Int’l, Inc., 576 F.3d 629, 635–36 (7th Cir. 2009) (noose was objectively hostile
because it conveyed threat of racial violence as “a visceral symbol of the deaths of
thousands of African‐Americans at the hand of lynch mobs”). Lumpkins‐Benford points
to other incidents that she saw as harassing, such as other timekeeping issues and the
discontinuation of a work‐from‐home program, but the district court correctly
explained that she did not provide any evidence suggesting that these actions were
racially motivated, as required to establish a hostile‐workplace claim. See Zayas v.
Rockford Memʹl Hosp., 740 F.3d 1154, 1159 (7th Cir. 2014); Lucero v. Nettle Creek Sch. Corp.,
566 F.3d 720, 731–32 (7th Cir. 2009).
Regarding her retaliation claim, Lumpkins‐Benford maintains that the district
court should have ruled that the severance waiver offered by Allstate was retaliatory
because, unlike the waivers given to all other employees, it specifically listed her
pending lawsuit. But an employer may ask employees to waive their right to sue in
exchange for money, see Ellis v. DHL Express Inc., 633 F.3d 522, 524–25 (7th Cir. 2011),
and the district court correctly noted that Lumpkins‐Benford offered no evidence
questioning Allstate’s explanation that it listed her case in order to clarify the
consequences of her waiver. Lumpkins‐Benford also points to other actions that she saw
as retaliatory, such as the incidents over the security badge and diminished study time,
but the district court properly concluded that she did not provide any evidence that the
employees involved in these actions were aware of her complaint. See Naficy v. Ill. Dep’t
of Human Servs., 697 F.3d 504, 513 (7th Cir. 2012). And in the absence of other evidence,
No. 13‐3703 Page 5
the court explained, “suspicious timing” was not enough to show retaliation. See Kidwell
v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012).
Lumpkins‐Benford also contends that Allstate’s motion for summary judgment
was untimely because it was filed more than “30 days after the close of all discovery.”
FED. R. CIV. P. 56(b). But the motion was properly filed on the deadline for dispositive
motions set by court order.
Finally Lumpkins‐Benford maintains that the district court should have strictly
enforced local rules and denied Allstate’s motion for summary judgment because the
company failed to send her the required notice to pro se litigants. See N.D. ILL. L. R. 56.2.
But the district court has broad discretion to excuse noncompliance with local rules,
see Edgewood Manor Apartment Homes, LLC v. RSUI Indem. Co., 733 F.3d 761, 770 (7th Cir.
2013), and the court exercised its discretion here by sending Lumpkins‐Benford the
notice and giving her additional time to amend her statement of facts.
AFFIRMED.